to the United States and remain here pending the prosecution of their action. It is not disputed that the motion herein is in the nature of a petition for mandamus, and the decision thereon must therefore be governed by the principles applicable to such actions, a relatively recent summary of which is contained in Hammond v. Hull, 76 U.S.App.D.C. 301, 131 F.2d 23, 25, reading as follows:
'Those principles may be briefly summarized as follows: (1) The writ should be used only when the duty of the officer to act is clearly established and plainly defined and the obligation to act is peremptory. (2) The presumption of validity attends official action, and the burden of proof to the contrary is upon one who challenges the action. (3) Courts have no general supervisory powers over the executive branches or over their officers, which may be invoked by writ of mandamus. Interference of the courts with the performance of the ordinary duties of the executive departments of the government would be productive of nothing but mischief. (4) When the performance of official duty requires an interpretation of the law which governs that performance, the interpretation placed by the officer upon the law will not be interfered with, certainly, unless it is clearly wrong and the official action arbitrary and capricious. (5) For it is only in clear cases of illegality of action that courts will intervene to displace the judgments of administrative officers or bodies. * * *'
I do not understand that plaintiffs dispute the correctness of this statement of the law, but contend that they come within it, on the sole theory that there is no discretion left in the defendant, once a sworn application has been filed showing that their claim to nationality is presented in good faith and has substantial basis. In other words, they insist that only a ministerial duty to issue the certificates is involved upon submission of the sworn application required by the statute.
In support of this view, they place their principal reliance on Mendelsohn v. Dulles, decided by the United States Court of Appeals for this Circuit on August 6, 1953, appearing in 207 F.2d at page 37. That case, like the one at bar, was an action under Section 503, supra, but the only issue was whether the complaint stated a cause of action, not whether the plaintiff was entitled to a certificate of identity. However, in the last paragraph of the opinion in that case, the Court stated as follows: 'Mendelsohn stated a cause of action. He is entitled to his day in court and to a certificate of identity under § 503 of the Act to enable him to come here to conduct his case.' (207 F.2d 41.) The statement that he was entitled to a certificate of identity was not necessary to the decision in the case, but nevertheless it is entitled to the respectful consideration accorded to such statements of appellate tribunals if apposite. However, it is clear from the opinion that the statement is not apposite to the present case when read in the context of its facts, because no question was raised therein as to the identity of plaintiff, as is raised here. The only issue was whether, under another section of the Nationality Act of 1940, plaintiff had lost his citizenship under the facts alleged in the complaint. I therefore do not feel that this statement in the Mendelsohn case is controlling or intended for general application.
Turning to the other judicial expressions on this point, I find from my research that all save one have held contrary to plaintiffs' contentions.
Indeed, I find no basis for believing that Congress intended to make Section 503, supra, automatic or self-executing, with the fraud and mischief so easily envisioned from such construction. And finally, it should be stated that the regulations issued under, and authorized by, Section 503 are likewise contrary to plaintiffs' views.
Accordingly, the motion to require defendant to issue the certificates of identity will be denied. Counsel will submit appropriate order.