Ling Share Yee v. Acheson, Secretary of State

214 F.2d 4

LING SHARE YEE et al.
v.
ACHESON, Secretary of State.

No. 11306.

United States Court of Appeals, Third Circuit.

Argued June 9, 1954.

Decided June 17, 1954.

Samuel Morris, Atlantic City, N. J., for appellants.

Herman Scott, Asst. U. S. Atty., Newark (William F. Tompkins, U. S. Atty., Newark, N. J., on the brief), for appellee.

Before MARIS, McLAUGHLIN and KALODNER, Circuit Judges.

PER CURIAM.

1

This is an appeal by the plaintiffs from the dismissal of their complaint seeking a declaration of the status of the minor plaintiff as a citizen of the United States under section 503 of the Nationality Act of 1940, 54 Stat. 1171. It appeared from the complaint that the minor plaintiff had applied to the American Consul at Hong Kong for travel documents for the purpose of being admitted to the United States as a citizen and that such documents had not been issued. The report of the Consul, however, showed that the application had not been denied but that action thereon was being withheld pending the production of additional evidence which had been requested but had not yet been produced. The district court concluded that there had not been a denial by the Consul of a right or privilege of the minor plaintiff as a national of the United States within the meaning of section 503 of the Nationality Act and it accordingly dismissed the complaint for want of jurisdiction.

2

We are satisfied that the district court was right in so holding. For it is perfectly clear that there had been no final administrative action on the minor plaintiff's application. The delay in acting on the application did not amount to a denial of it since the delay was attributable to the neglect of the plaintiffs to furnish the Consul with the additional evidence which he had requested. So far as the record shows they neither furnished these additional proofs nor notified the Consul that they did not intend to do so.

3

The judgment of the district court will be affirmed.