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NGOW v. DULLES

July 9, 1954

TOM MUNG NGOW
v.
DULLES, Secretary of State



The opinion of the court was delivered by: HOLTZOFF

The question presented on this motion is whether a person who claims to be a citizen of the United States, but who is outside of this country, may maintain an action for a declaratory judgment to secure an adjudication of his citizenship.

This action is brought against the Secretary of State for a declaratory judgment that the plaintiff is a citizen of the United States. The matter comes before the court on a motion by the defendant to dismiss the complaint for insufficiency. This motion, at the defendant's request, is being treated as a motion for summary judgment. The material and pertinent allegations of the complaint can be briefly summarized. It is alleged that the plaintiff was born in China on February 28, 1930, and that he is a son of a citizen of the United States. On this basis it is claimed that the plaintiff is a citizen of the United States by birth. It is further averred that the plaintiff made an application to the American consul at Hong Kong, for a passport to enable him to come to the United States, but that the application was disapproved on the ground that the plaintiff has not established his citizenship.

 The plaintiff seeks an adjudication of his citizenship and of his right to enter the United States. The defendant moves to dismiss the complaint on the ground that the action does not lie. The question of law to be determined on this motion is whether this action may be maintained. While the complaint also raises certain constitutional issues, they are not reached for determination at this time, in the light of the disposition that is being made of this motion.

 Actions for declaratory judgments were introduced into Federal jurisprudence by the Declaratory Judgment Act of June 14, 1934, 48 Stat. 955; 28 U.S.C.A. § 2201. The Supreme Court has approved the application of this statute to suits brought against the Secretary of State or the Attorney General, to establish citizenship, Perkins v. Elg, 69 App.D.C. 175, 99 F.2d 408, affirmed 307 U.S. 325, 59 S. Ct. 884, 83 L. Ed. 1320; McGrath v. Kristensen, 340 U.S. 162, 168-171, 71 S. Ct. 224, 95 L. Ed. 173.

 Since repeals by implication are not favored, and as there was no repugnancy or conflict between the general provisions of the Declaratory Judgment Act and Section 503 of the Nationality Code, the former may not be deemed repealed pro tanto. Both remedies continued to coexist side by side. While the specific provisions were in effect, however, the general remedy fell into temporary disuse for adjudications of citizenship, as the special action provided by the Nationality Code was more flexible and more efficacious.

 This was the state of the law when the Administrative Procedure Act was enacted on June 11, 1946, 60 Stat. 237; 5 U.S.C.A. § 1001 et seq. One of the objectives of this Act was to expand judicial review of administrative actions. This Act contains the broad provision, 5 U.S.C.A. § 1009(a), that, 'Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.' Only two exceptions are expressed to this general rule: 'Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.' The aim of the statute is brought into sharp focus by an additional provision (Id., subsection (c)):

 
'Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review.'

 The Act contains an express provision concerning the form of proceeding to secure judicial review of agency action (Id., subsection (b)):

 
'The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction.' *fn1"
 
The object and intent of Congress in enacting this beneficent and progressive legislation is strongly emphasized by a unique and unusual expression found in the last section of the statute, 5 U.S.C.A. § 1011:
 
'No subsequent legislation shall be held to supersede or modify the provisions of this chapter except to the extent that such legislation shall do so expressly.'
 
The purpose of Congress further unequivocally appears from the following statement in the report of Senator McCarran as Chairman of the Committee on the Judiciary, concerning this legislation (S.Rept. No. 752, 79th Cong., 1st Sess.):
 
'It [i. e., the bill] sets forth a simplified statement of judicial review designed to afford a ...

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