(dissenting).
Unlike my brethren, I find it unnecessary to pass upon the question whether status as a national of the United States can be lost as the result of an act induced by duress. Assuming that expatriation would not result if duress were present, and assuming further the truth of the facts alleged in the instant complaint, I think the complaint nevertheless fails to assert circumstances warranting a conclusion that duress can be said to have existed here.
By her own admission, plaintiff in January, 1941, was advised by an American *725consul to “leave France and return to the United States if possible.” She does not allege, nor can it be fairly assumed, that physical or other difficulties prevented her at that time, or within a reasonable period thereafter, from leaving France as suggested.1 Instead, she went to the south of France “with the intention of returning to the United States” at some unspecified time in the future.
Her assigned reason for applying for Vichy nationality papers was her alarm for her own safety and that of her unborn child, and also her inability to travel; but she nowhere states or fairly implies that anyone purporting to act in an official capacity for the United States, Vichy, Germany, or any other government instructed her to make such application; nor does she allege that an “apply-or-else” threat had been made to her by anyone.2
While she professes to have had “no knowledge of the contents” of the application she executed, she avers neither that she was ignorant of the purpose or effect of that application, nor that opportunity to examine it was denied her in any way; and she makes no similar disavowals concerning the Vichy certificate of nationality which was issued to her almost three months before the child was born and the United States entered the war. Further, she fails to state that, at any time subsequent to the issue of the Vichy certificate, even unto the day this complaint was filed, she has renounced the nationality granted therein, or has ever taken steps inimical to ±he interests of the Vichy government. The transcript of the hearing in the court below makes clear that the basis for dismissal was plaintiff’s failure to allege facts sufficient to establish duress. The foregoing recital of inadequacies I find with the complaint impels me to the same conclusion as that of the district judge. I believe that fear of possible internment, months before Pearl Harbor, and readily avoidable had the American consul’s advice been heeded, is not sufficient grounds for obtaining and retaining naturalization from a government actively cooperating with the Axis powers. It seems to me apparent that the action which appellant alleges she feared was one which a government in an alliance against the United States had the legal power to inflict upon her, and consequently would scarcely amount to duress. Although the alternatives confronting her were not appetizing, I think it can hardly be said that her deliberate choice of a course immediately favoring her comfort or security, when the dilemma was of her own making and when she permitted years to lapse without repudiating by word or by deed the Vichy nationality, constituted duress. I know of no decision to the contrary.
I think the statute here in question could and did proclaim the expatriation of appellant by virtue of her voluntary application for, and acceptance of, Vichy nationality in preference to returning to the United States or remaining subject to the same risks as the thousands of other United States nationals abroad.3 Accordingly, on the basis of the facts stated on the face of the complaint, I would affirm the judgment of dismissal.
Plaintiff’s child was born more than ten months later. According to her complaint, she became pregnant “in the interval between leaving Paris and the re-issuance of her American passport,” the latter date being May 26, 1941.
The complaint reads, “ * * * Plaintiff applied in accordance with the .suggestions made to her * * It seems to me that we cannot spell a threat out of the word “suggestions,” particularly when the identify of the suggester remains undisclosed.
Cf. Mackenzie v. Hare, 1915, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297, Ann.Cas.1916E, 645 on. the extent of the Congessional power.