United States v. Lucchese

Opinion of the Court.

No. 57. Argued December 8, 12, 1960.-Decided February 20, 1961.

This denaturalization proceeding against respondent was dismissed by the District Court because of failure of the Government to file an affidavit of good cause with the complaint, and that Court did not specify that the dismissal was "without prejudice." The Court of Appeals dismissed the Government's appeal, and this Court granted certiorari, which was sought by the Government only to assure its right to proceed against respondent in a new proceeding.

Held: Under Rule 41 (b) of the Federal Rules of Civil Procedure, such a form of dismissal does not bar a new denaturalization pro- ceeding against respondent, Costello v. United States, ante, p. 265, and, accordingly, the writ of certiorari is dismissed. Pp. 290-291.

Writ of certiorari dismissed.

Wayne G. Barnett argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Wilkey, Beatrice Rosenberg and Eugene L. Grimm.

Richard J. Burke argued the cause for respondent.

With him on the brief was Myron L. Shapiro.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

This denaturalization proceeding was brought in the District Court for the Eastern District of New York under § 338 (a) of the Nationality Act of 1940. 8 U. S. C. (1946 ed.) § 738. The "good cause" affidavit was not filed with the complaint. The District Court dismissed the com- plaint following our decision in United States v. Zucca, 351

U. S. 91, "without prejudice to the government's right to

institute a proceeding to denaturalize the defendant upon

290

Opinion of the Court.

the filing of the required affidavit."

149 F. Supp. 952.

The Court of Appeals for the Second Circuit reversed, holding that the dismissal motion should have been denied. 247 F. 2d 123. We reversed and ordered the case "remanded to the District Court with directions to dis- miss" the complaint. 356 U. S. 256. The District Court on the remand declined to order a dismissal "without prejudice" and instead entered an order which did not specify whether the dismissal was with or without preju- dice. The Court of Appeals for the Second Circuit dis- missed the Government's appeal in an unreported opinion which stated that "there was no basis for [the district judge] to take action other than he did, namely, to com- ply with the clear command of the Supreme Court, with- out attempted embellishment. We have no occasion now to pass on the effect of that command upon possible later litigation."

The Government filed its petition for certiorari only to assure its right to proceed against the respondent in a new proceeding in the event that we should rule in Costello v.

United States, ante, p. 265, that the order entered by the District Court for the Southern District of New York in that case precluded the institution of the second denat- uralization action against Costello. Our decision today in Costello establishes that such a form of dismissal does not bar a subsequent proceeding against the respondent. The writ is therefore

Dismissed.

MR. JUSTICE HARLAN took no part in the consideration or decision of this case.