Petitioner's citizenship was revoked in a proceeding under §
338(a) of the Nationality Act of 1940. The District Court found
that, within ten years preceding his petition for naturalization,
he had been a member of the Communist Party, that the Party was an
organization which was then advocating the forcible overthrow of
the Government, and that, therefore, petitioner was ineligible for
citizenship under § 305. Pursuant to a stipulation of petitioner's
counsel, his appeal was dismissed with prejudice. Four years later
petitioner moved under Rule 60(b) of the Federal Rules of Civil
Procedure to vacate the judgment, on the ground that it was
voidable under this Court's subsequent decisions in
Nowak v.
United States, 356 U. S. 660, and
Maisenberg v. United States, 356 U.
S. 670.
Held: regardless of whether relief under Rule 60(b) is
available to petitioner in the circumstances, those decisions were
not effective to alter the law controlling petitioner s case. Pp.
364 U. S.
426-437.
272 F.2d 709 affirmed.
MR. JUSTICE STEWART delivered the opinion of the Court.
Petitioner is a native of Greece who came to this country in
1916. In 1942, he became a naturalized citizen by decree of the
United States District Court of Detroit, under the provisions of
the Nationality Act of 1940. [
Footnote 1] In
Page 364 U. S. 427
1952, the United States brought proceedings under § 338(a) of
the 1940 Act to revoke his citizenship. [
Footnote 2] These proceedings culminated in a judgment
of denaturalization, 127 F. Supp. 768. An appeal from that judgment
was docketed in the Court of Appeals for the Sixth Circuit.
Subsequently, under circumstances to be related, counsel for the
petitioner stipulated to dismissal of the appeal with prejudice,
and the appeal was dismissed in accordance with the stipulation.
Four years later, the petitioner moved to vacate the judgment of
denaturalization, relying upon Rule 60(b), Fed.Rules Civ.Proc.
[
Footnote 3] The District Court
denied the motion, 24 F.R.D. 401, and the Court of Appeals
affirmed, 272 F.2d 709. Certiorari was granted to consider the
availability of Rule 60(b) relief in the circumstances here
presented, 361 U.S. 958.
Section 305 of the Nationality Act of 1940 provided that no
person should be eligible for naturalization who, at any time
within ten years preceding his application, had been a member of
any organization that advocated the overthrow by force or violence
of the Government of the
Page 364 U. S. 428
United States. [
Footnote 4]
The Government's complaint in the 1952 denaturalization proceedings
charged that the petitioner's citizenship had been illegally
procured because, within ten years immediately preceding his
application for naturalization, he had been a member of the
Communist Party of the United States, an organization which, it was
alleged, advised, advocated, or taught the overthrow by force and
violence of the Government of the United States. [
Footnote 5]
At the denaturalization hearing, the petitioner, who was
represented by counsel, testified that he had been a member of the
Communist Party of the United States from "around" 1931 until 1938.
He stated that he had attended closed Party meetings about once a
month, that he had been secretary of the "Greek Fraction" of the
Party in Detroit, and that he had left the Party in 1938 only
because of a directive that all aliens resign from the Party at
that time. Other witnesses described the petitioner as a "high
functionary" of the Party who, at closed
Page 364 U. S. 429
meetings had advocated the overthrow of existing government by
force and violence. [
Footnote
6]
Based upon this and other testimony, the District Court found
that the Government had proved by clear, unequivocal, and
convincing evidence that the petitioner had been a member of the
Communist Party of the United States within the statutory period,
and that the Party was an
Page 364 U. S. 430
organization which "was then advising, advocating or teaching
forcible or violent overthrow of this government." 127 F. Supp. at
770. Accordingly, the court held that the petitioner had illegally
procured his citizenship, because he had not been eligible to
become a citizen at the time his certificate of naturalization was
issued. [
Footnote 7] A judgment
cancelling the petitioner's citizenship was entered, 127 F. Supp.
768, 770-772. [
Footnote 8]
From this judgment, the petitioner promptly appealed to the
United States Court of Appeals for the Sixth Circuit. At the time,
there were pending in that court appeals from three other
denaturalization judgments by the same District Court.
United
States v. Sweet, 106 F.
Supp. 634;
United States v. Chomiak, 108 F.
Supp. 527; and
United States v.
Charnowola, 109 F.
Supp. 810. Petitioner's counsel appeared and argued for the
appellants in each of those three cases. Before the petitioner's
brief was due, the Court of Appeals affirmed the judgments in all
three of them, 211 F.2d 118. The petitioner thereafter obtained an
extension of time for filing briefs on the appeal of his case until
thirty days after disposition by this Court of petitioner for
certiorari filed in the other three cases. When those petitions for
certiorari were denied, 348 U.S. 817, the petitioner, by his
counsel,
Page 364 U. S. 431
stipulated in the Court of Appeals that his appeal should be
dismissed with prejudice, and the appeal was dismissed on November
10, 1954.
On August 6, 1958, the petitioner filed his motion under Rule
60(b)(5) and (6) to set aside the 1953 denaturalization decree. The
ground for the motion, supported by an affidavit of counsel, was
that, in the light of this Court's opinions in two cases which had
recently been decided,
Nowak v. United States,
356 U. S. 660, and
Maisenberg v. United States, 356 U.
S. 670, "it now appears that the . . . judgment of
cancellation is voidable," and "that it is no longer equitable that
said judgment should have prospective application." In denying the
motion, the District Court held that the
Nowak and
Maisenberg decisions "do not, as contended by Polites,
clearly control the instant case warranting relief from judgment,"
and that, in any event, the doctrine of
Ackermann v. United
States, 340 U. S. 193,
precludes reopening a judgment under Rule 60(b) where the movant
has voluntarily abandoned his appeal and the only ground for the
motion to reopen is an asserted later change in the judicial view
of applicable law. 24 F.R.D. 401. The Court of Appeals affirmed
"for the reasons set forth" by the District Court, 272 F.2d
709.
It is the contention of the Government that the
"instant case is squarely controlled by the decision of this
Court in
Ackermann v. United States, 340 U. S.
193, that a freely made decision not to appeal a
denaturalization judgment may not be excused by permitting recourse
to Rule 60(b)(6) as a substitute for appeal."
In that case, Mr. and Mrs. Ackermann and a relative, Keilbar,
had been denaturalized after a joint hearing. Keilbar appealed. The
Ackermanns did not. On appeal, the judgment of denaturalization
against Keilbar was reversed upon a stipulation by the Government
that the evidence was insufficient to support it.
Keilbar v.
United States, 144 F.2d
Page 364 U. S. 432
866. The Ackermanns thereafter filed a motion under Rule 60(b)
to vacate the denaturalization judgments against them. They alleged
that they had failed to appeal from the judgments because of
financial inability and in reliance upon the advice of a government
official whom they trusted, the official who was in charge of the
detention camp in which they had been placed following their
denaturalization. After reviewing these allegations, the Court held
that the District Court has been correct in denying the motion to
reopen the judgments, holding that "[s]ubsection 6 of Rule 60(b)
has no application to the situation of petitioner." 340 U.S. at
340 U. S.
202.
What the Court said in
Ackermann is of obvious
relevance here:
"Petitioner made a considered choice not to appeal, apparently
because he did not feel that an appeal would prove to be worth what
he thought was a required sacrifice of his home. His choice was a
risk, but calculated and deliberate, and such as follows a free
choice. Petitioner cannot be relieved of such a choice because
hindsight seems to indicate to him that his decision not to appeal
was probably wrong, considering the outcome of the
Keilbar
case. There must be an end to litigation someday, and free,
calculated, deliberate choices are not to be relieved from."
340 U.S. at
340 U. S.
198.
In the present case, it is not claimed that the decision not to
appeal was anything but "free, calculated, and deliberate." Indeed,
there is not even an indication in this case, as there was in
Ackermann, that the choice was influenced by reliance upon
the advice of a government officer. The only claim is that upon the
advice of the petitioner's own counsel the appeal was abandoned
because there seemed at the time small likelihood of its
Page 364 U. S. 433
success, and that, some four years later, the applicable law was
"clarified" in the petitioner's favor.
Despite the relevant and persuasive force of
Ackermann,
however, we need not go so far here as to decide that, when an
appeal has been abandoned or not taken because of a clearly
applicable adverse rule of law, relief under Rule 60(b) is
inflexibly to be withheld when there has later been a clear and
authoritative change in governing law. The fact of the matter is
that that situation is not presented by this case. Without assaying
by hindsight how hopeless the prospects of the petitioner's appeal
may have appeared at the time it was abandoned, [
Footnote 9] it is clear that the later
decisions of this Court upon which his motion to vacate relied did
not in fact work the controlling change in the governing law which
he asserted. The decisions in question are
Nowak v. United
States, 356 U. S. 660, and
Maisenberg v. United States, 356 U.
S. 670.
Petitioner contends that the
Nowak and
Maisenberg decisions reject the grounds relied upon by the
District Court in revoking petitioner's citizenship in 1953. In the
petitioner's denaturalization proceeding, the court held that a
charge of illegal procurement of citizenship under the Nationality
Act of 1940 could be sustained by clear, unequivocal and convincing
evidence that (a) petitioner had been a member of the Communist
Party within ten years immediately preceding the day he filed his
citizenship
Page 364 U. S. 434
application, and (b) the Communist Party had advised, advocated,
or taught overthrow of the Government by force or violence during
that period. Petitioner claims that this interpretation of the
statute is erroneous because it fails to take into account the
question of the petitioner's knowledge of the Party's activities.
It was the claim of the petitioner's motion that
Nowak and
Maisenberg establish that
"[a] charge of illegal procurement of citizenship based upon
alleged membership in the Communist Party cannot be sustained where
the evidence fails to show . . . that the defendant was aware that
the organization was engaged in the kind of illegal advocacy
proscribed by law during the period of his membership therein."
But the
Nowak and
Maisenberg decisions neither
support nor oppose this interpretation of the 1940 Act. Those cases
simply do not deal with the question.
In
Nowak, the petitioner had acquired his citizenship
under the Nationality Act of 1906. That statute did not
specifically prohibit citizenship to a member of an organization
which advocated overthrow of the Government by force and violence.
It did require an alien to have been "attached to the principles of
the Constitution of the United States" for at least five years
preceding his application for citizenship. [
Footnote 10] In order to show that Nowak had
illegally procured his citizenship because, during the five years
preceding his naturalization, he had not been "attached" to
constitutional principles, the Government
Page 364 U. S. 435
undertook to prove that he had been a member of the Communist
Party with knowledge that the Party advocated the overthrow of the
Government by force and violence. This Court found that the record
contained adequate proof that Nowak had been a member of the Party
during the pertinent five-year period, and it proceeded on the
assumption that the evidence of the Party's illegal advocacy was
sufficient. The Court held, however, that the Government had not
established, under the standard required in denaturalization cases,
that Nowak had known of the Party's advocacy of forcible
governmental overthrow. Accordingly, the Court concluded that the
Government had failed to prove Nowak's "state of mind," 356 U.S. at
356 U. S. 666,
his lack of "attachment" to constitutional principles, by the
clear, unequivocal, and convincing evidence which is required.
Cf. Schneiderman v. United States, 320 U.
S. 118.
Maisenberg was different in that the
ultimate issue involved was whether the petitioner's citizenship
had been obtained "by concealment of a material fact [and] willful
misrepresentation." [
Footnote
11] 356 U.S. at
356 U. S. 671.
But there, too, the Court held that the Government had failed to
prove the petitioner's state of mind, her lack of "attachment" to
the constitutional principles required by the 1906 Act, by its
proof of her Communist Party membership and of the Party's
advocacy. [
Footnote 12]
In the present case, by contrast, the District Court held that
determination of the issue of illegal procurement did
Page 364 U. S. 436
not involve an inquiry into the petitioner's state of mind.
Unlike Nowak and Maisenberg, the petitioner was naturalized under
the Nationality Act of 1940, which withheld the right of
citizenship to any alien who had been a member of a particular kind
of organization during the statutory period. [
Footnote 13] The evidence that the petitioner
was a "member of the Party" in every meaningful sense was
abundantly shown.
Cf. Galvan v. Press, 347 U.
S. 522;
Rowoldt v. Perfetto, 355 U.
S. 115;
Niukkanen v. McAlexander, 362 U.
S. 390. The District Court found that the proof was also
clear, unequivocal, and convincing that the organization to which
the petitioner had belonged was in the category proscribed by the
1940 Act. [
Footnote 14]
Those findings remain completely unaffected by anything that was
decided or said in either
Nowak or
Maisenberg.
As the District Court viewed the issue of illegal procurement in
this case, there was no occasion, as in
Nowak and
Maisenberg, to establish by inference or imputation the
petitioner's personal beliefs, his "attachment" or lack of it. The
court was concerned only with objective facts -- the petitioner's
membership and the Party's purpose. Upon the basis of its findings
as to these factual issues, the Court held that the
"government must prevail on the jurisdictional question that
defendant was not eligible to become a citizen either when he filed
his naturalization petition or when he took the oath. . . ."
127 F. Supp. at 772. As the issue was determined, therefore, the
case was consistent with many decisions in which this Court has
ruled that a certificate of citizenship is cancellable on the basis
of illegal procurement if there has not
Page 364 U. S. 437
been strict compliance with the conditions imposed by Congress
as prerequisites to acquisition of citizenship.
See Maney v.
United States, 278 U. S. 17;
United States v. Ness, 245 U. S. 319;
United States v. Ginsberg, 243 U.
S. 472;
cf. Schneiderman v. United States,
320 U. S. 118,
320 U. S. 163
(concurring opinion).
The validity of the District Court's interpretation of § 305 is
not before us; we are not here directly reviewing the 1953
decision. We hold only that the decisions in
Maisenberg
and
Nowak were not effective to alter the law controlling
the petitioner's case.
Affirmed.
[
Footnote 1]
54 Stat. 1137.
[
Footnote 2]
Section 338(a) of the Nationality Act of 1940, 54 Stat.
1158-1159, provided:
"It shall be the duty of the United States district attorneys
for the respective districts, upon affidavit showing good cause
therefor, to institute proceedings . . . for the purpose of
revoking and setting aside the order admitting such person to
citizenship and canceling the certificate of naturalization on the
ground of fraud or on the ground that such order and certificate of
naturalization were illegally procured."
[
Footnote 3]
The provisions of Rule 60(b) upon which the petitioner relied
are as follows:
"On motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final judgment,
order, or proceeding for the following reasons: . . . (5) . . . it
is no longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the
operation of the judgment."
[
Footnote 4]
"No person shall hereafter be naturalized as a citizen of the
United States --"
"
* * * *"
"(b) Who believes in, advises, advocates, or teaches, or who is
a member of or affiliated with any organization, association,
society, or group that believes in, advises, advocates, or teaches
--"
"(1) the overthrow by force or violence of the Government of the
United States or of all forms of law; . . ."
"
* * * *"
"The provisions of this section shall be applicable to any
applicant for naturalization who at any time within a period of ten
years immediately preceding the filing of the petition for
naturalization is, or has been, found to be within any of the
clauses enumerated in this section, notwithstanding that at the
time petition is filed he may not be included in such classes."
54 Stat. 1141.
[
Footnote 5]
The complaint also alleged that the petitioner had obtained his
naturalized citizenship fraudulently.
[
Footnote 6]
The following are illustrative examples of such testimony:
"Q. What was his statement? What did he say?"
"A. He say the way to organize, agitate -- agitate the workers,
organize them, in order to follow up when the time comes to
overthrow the government by force and violence."
"
* * * *"
"Q. Did he ever say in your presence the methods that he was
going to use?"
"A. Well, the only method he said was by force. He said that we,
the workers, would never be able to get in the Government by
vote."
"
* * * *"
"Q. This was April and May, 1935. What did he say?"
"A. We had this campaign for the bi-weekly paper, and he spoke
very ardently to the members that we had to go ahead and subscribe
and get the money that we supposed to collect in order to reach
them workers and wait in our movement until the time comes when we
would be able to overthrow the present government by force and
violence."
"Q. And you heard him say that at a Greek Fraction meeting?"
"A. Yes."
"
* * * *"
"Q. Do you know of your own knowledge what positions the
defendant, Gus Polites, held in the Communist Party during that
period of time?"
"A. Not all of the positions. I do know that he was a member of
the Fraction Bureau of the Greek Fraction, and my recollection is
that he was Secretary of that Fraction for a time. At least, he was
a high functionary and attended functionary meetings."
"
* * * *"
"A. He has, in speeches, advocated the overthrow of the
government by force and violence, during my presence."
[
Footnote 7]
In connection with the issue of fraudulent procurement, the
court also found that the Government had proved by clear,
unequivocal, and convincing evidence that the petitioner had
personally known that the Communist Party of the United States was
an organization advocating overthrow of this Government by force
and violence. 127 F. Supp. 768, 772-773.
[
Footnote 8]
The court also found that the petitioner had procured his
citizenship fraudulently. The respondent now states that it does
"not now rely upon the fraud findings as an alternative basis for
the judgment of denaturalization." In the light of its concession
that, "in view of the state of this particular record," the finding
of fraud was not supported by sufficient evidence, we proceed upon
that premise.
[
Footnote 9]
It is worth pointing out, with respect to the three other
denaturalization judgments whose affirmance by the Sixth Circuit
assertedly led to the petitioner's decision not to pursue his
appeal, that each was decided upon the facts of its own individual
record. 211 F.2d 118. And it need hardly be repeated at this late
date that the refusal by this Court to review those cases imported
"no expression of opinion on the merits."
Sunal v. Large,
332 U. S. 174,
332 U. S. 181;
see Maryland v. Baltimore Radio Show, 338 U.
S. 912.
[
Footnote 10]
Paragraph 4 of § 4 of the Act, 34 Stat. 596, 598, as amended, 8
U.S.C. (1934 ed.) § 382, provided that no alien should be admitted
to citizenship unless, immediately preceding his application, he
had resided continuously within the United States for at least five
years and that, during this period,
"he has behaved as a person of good moral character, attached to
the principles of the Constitution of the United States, and well
disposed to the good order and happiness of the United States."
[
Footnote 11]
The Government was seeking to denaturalize Maisenberg under the
provisions of § 340(a) of the Immigration and Nationality Act of
1952, 66 Stat. 260, 8 U.S.C. § 1451(a). Under that statute, illegal
procurement, as such, is not a specific basis for cancellation of a
certificate of naturalization.
[
Footnote 12]
In view of this conclusion, the Court did not reach the further
question under the 1952 Act whether the Government had adequately
proved that petitioner had misrepresented her attachment or
concealed a lack of attachment.
See 356 U.S. at
356 U. S. 672,
note 3.
[
Footnote 13]
See note 4
supra.
[
Footnote 14]
It is to be emphasized that neither in his motion to set aside
the denaturalization judgment nor in the supporting affidavit did
the petitioner allege the existence of any new or mitigating
evidence upon these factual issues.
Cf. Klapprott v. United
States, 335 U. S. 601.
MR. JUSTICE BRENNAN, with whom The CHIEF JUSTICE, MR. JUSTICE
BLACK, and MR. JUSTICE DOUGLAS join, dissenting.
In my view, the District Court should have exercised its
discretion under Fed.Rules Civ.Proc. 60(b) to determine whether it
is any longer equitable that this judgment of denaturalization
should have prospective application. The Court's opinion, although
it refers to
Ackermann v. United States, 340 U.
S. 193, as "relevant and persuasive," expresses no
definite view on the availability of Rule 60(b) in this situation,
but instead decides on the merits that the state of the law is
substantially unchanged since the entry of the denaturalization
decree. I would confirm the power of the District Court to act
under Rule 60(b), but remand the cause to that court so that it
may, in the first instance, decide what effect the
Nowak
and
Maisenberg decisions have on petitioner's case.
First, it is necessary to point out that
Ackermann is
not in point. For one thing, relief there was sought only under
subdivisions (1) and (6) of Rule 60(b), not, as here, under
subdivision (5) as well. But, more fundamentally,
Ackermann was a case in which petitioners
Page 364 U. S. 438
could have secured a reversal of their denaturalization simply
by appealing. Since they deliberately chose not to appeal, this
Court held Rule 60(b) unavailable. Here also petitioner chose not
to appeal, but only because of the hopelessness of any chance of
success. The Court of Appeals had affirmed judgments in three
companion cases, and this Court had denied certiorari. True, denial
of certiorari has no legal significance, and petitioner might have
doggedly pursued his appellate remedies to the end. But, as a
practical matter, such a course of action would have been futile.
So petitioner's case must be considered not as one in which he
could have appealed successfully, but as one in which he in fact
did appeal unsuccessfully.
In that situation, it was the law long before the promulgation
of Rule 60(b) that a change in the law after the rendition of a
decree was grounds for modification or dissolution of that decree
insofar as it might affect future conduct.
Pennsylvania v. Wheeling &
Belmont Bridge Co., 18 How. 421,
59 U. S.
431-432. This principle is rooted in the practice of
courts of equity, and is well settled in the vast majority of the
States.
See 7 Moore, Federal Practice (2d ed. 1955), �
60.26(4);
Ladner v. Siegel, 298 Pa. 487, 148 A. 699.
Perhaps before the merger of law and equity in 1938 a
denaturalization proceeding was an "action at law." But a decree of
denaturalization is a determination of status which has prospective
effect, and there is no reason why, in modern times, it should not
be governed by equitable principles.
The decisions under Rule 60(b)(5) (adopted by the 1948
amendments as to the Federal Rules of Civil Procedure) continue
this history of equitable adjustment to changing conditions of fact
and law.
McGrath v. Potash, 91 U.S.App.D.C. 94, 199 F.2d
166, a case decided under subdivision (6), but to which subdivision
(5), by the respondent's admission, was equally applicable, is
directly in point. There, several aliens obtained a decree from a
District Court enjoining
Page 364 U. S. 439
the Attorney General from proceeding to deport them without
complying with the hearing requirements of the Administrative
Procedure Act. Pending appeal by the Government, this Court held,
in
Wong Yang Sung v. McGrath, 339 U. S.
33, that the Administrative Procedure Act did indeed
apply to deportation proceedings. Seeing that further resistance
would be futile, the Attorney General dismissed his own appeal by
agreement. Shortly thereafter, Congress overruled the
Wong Yang
Sung decision and expressly declared that proceedings relative
to the exclusion or expulsion of aliens should not be subject to
the Administrative Procedure Act. 64 Stat. 1048. The Government
then moved under Rule 60(b) for a dissolution of the injunction
against it, relying on this change in law, and the motion was
granted. The United States in this case seeks to distinguish that
decision by asserting that here, "the continuing force of the
decree derives from facts fully accrued and litigated in the
original judgment." True enough; but here, as in
McGrath,
although the facts were fully accrued at the time of the decree and
have not changed, the law has (so petitioner asserts) radically
changed, and, in that situation, it is unjust to give the judgment
prospective effect.
The cases under Rule 60(b)(5) relied on by the United States are
readily distinguishable. In
Title v. United States, 263
F.2d 28,
certiorari denied, 359 U.S. 989;
Elgin Nat'l
Watch Co. v. Barrett, 213 F.2d 776, and
Berryhill v.
United States, 199 F.2d 217, it was entirely possible that the
remedy by appeal would have been successfully invoked. And in
Collins v. City of Wichita, 254 F.2d 837, a modification
of the judgment would have retroactively disturbed existing rights
and financial reliance on the judgment. In
Scotten v.
Littlefield, 235 U. S. 407,
relief was denied in a situation virtually identical to this case.
But the point actually decided there was that a bill of review
would not lie, and it is universally conceded that
Page 364 U. S. 440
Rule 60(b) is not limited to those situations where the old
confusing collateral remedies would have been available.
In sum, the District Court need
"not abdicate its power to revoke or modify its mandate, if
satisfied that what it has been doing has been turned through
changing circumstances into an instrument of wrong."
United States v. Swift & Co., 286 U.
S. 106,
286 U. S.
114-115. It is revolting that petitioner should be
subject to deportation because of a decree which he could not
successfully have attacked on appeal and which subsequent events
may have rendered erroneous. The principle of finality is not
offended by modification which disturbs no accrued rights, and
concerns only future conduct.
Accordingly, I would reverse the judgment of the Court of
Appeals and remand this case to the District Court with directions
to exercise its discretion under Rule 60(b)(5).