In proceedings against petitioner, his wife, and a relative, the
District Court in 1943 entered judgments canceling their
certificates of naturalization on grounds of fraud. Petitioner and
his wife did not appeal, but the relative appealed, and the
judgment against him was reversed. More than four years after
rendition of the judgment against petitioner, he filed in the
District Court a motion to set aside the denaturalization judgment
under amended Rule 60(b) of the Federal Rules of Civil Procedure.
He alleged that the denaturalization judgment was erroneous; that
he did not appeal because his attorney advised him that he would
have to sell his home to pay costs, and that a federal officer, in
whose custody he and his wife then were and in whom he had
confidence, had told him "to hang on to their home," and he would
be released at the end of the war.
Held: the District Court properly denied the motion.
Pp.
340 U. S.
194-202.
1. Relief on the ground of "excusable neglect" was not available
to petitioner under Rule 60(b)(1), since, by the Rule's terms, a
motion for relief on this ground must be made not more than one
year after the judgment is entered, whereas, in this case, the
judgment was entered more than four years previously. P.
340 U. S.
197.
2. The allegations of the motion did not bring petitioner within
Rule 60(b)(6), which applies if "any other reason justifying
relief" exists. Pp.
340 U. S.
197-199.
3.
Klapprott v. United States, 335 U.
S. 601, distinguished. Pp.
340 U. S.
199-202.
178 F.2d 983, 179 F.2d 236, affirmed.
The District Court denied petitioners' motions to set aside
judgments canceling their certificates of naturalization. The Court
of Appeals affirmed. 178 F.2d 983, 179 F.2d 236. This Court granted
certiorari. 339 U.S. 962.
Affirmed, p.
340 U. S.
202.
Page 340 U. S. 194
MR. JUSTICE MINTON delivered the opinion of the Court.
Petitioner Hans Ackermann filed a motion in the District Court
for the Western District of Texas to set aside a judgment entered
December 7, 1943, in that court canceling his certificate of
naturalization. The motion was filed March 25, 1948, pursuant to
amended Rule 60(b) of the Federal Rules of Civil Procedure, which
became effective March 19, 1948.** The United States filed a
Page 340 U. S. 195
motion to dismiss petitioner's motion. The District Court denied
petitioner's motion, and the Court of Appeals affirmed. 178 F.2d
983. We granted certiorari. 339 U.S. 962.
The question is whether the District Court erred in denying the
motion for relief under Rule 60(b).
Petitioner and his wife Frieda were natives of Germany. They
were naturalized in 1938. They resided, as now at Taylor, Texas,
where petitioner and Max Keilbar owned and operated a German
language newspaper. Frieda Ackermann wrote for the paper. She was a
sister of Keilbar, who was also a native of Germany and who had
been naturalized in 1933.
In 1942, complaints were filed against all three to cancel their
naturalization on grounds of fraud. Petitioner and Keilbar were
represented by counsel and answered the complaints. After an order
of consolidation, trial of the three cases began November 1, 1943,
and separate judgments were entered December 7, 1943, canceling and
setting aside the orders admitting them to citizenship. Keilbar
appealed to the Court of Appeals, and, by stipulation with the
United States Attorney, his case in that court was reversed, and
the complaint against him was ordered dismissed. The Ackermanns did
not appeal.
Petitioner, in his motion here under consideration, alleges that
his "failure to appeal from said judgment is excusable" for the
reason that he had no money or property other than his home in
Taylor, Texas, owned by him and his wife and worth $2,500,
"and the costs of transcribing
Page 340 U. S. 196
the evidence and printing the record and brief on appeal were
estimated at not less than $5,000.00."
On December 11, 1943, petitioner was detained in an Alien
Detention Station at Seagoville, Texas. Before time for appeal had
expired, petitioner was advised by his attorney that he had his
wife could not appeal on affidavits of inability to pay costs until
they had "appropriated said home to the payment of such costs to
the full extent of the proceeds of a sale thereof;" that this
information distressed them, and they sought advice from W. F.
Kelley, "Assistant Commissioner for Alien Control, Immigration and
Naturalization Department," in whose custody petitioner and his
wife were being held, "and he being a person in whom they had great
confidence;" that Kelley, on being informed of their financial
condition and the advice of their attorney that it would be
necessary for them to dispose of their home in order to appeal,
advised them in substance to "hang on to their home," and told them
further that they had lost their American citizenship, and were
stateless, and that they would be released at the end of the war;
that, relying upon Kelley's advice, they refrained from appealing
from said judgments; that, on April 29, 1944, after time for appeal
had expired, they were interned, and on January 25, 1946, the
Attorney General ordered them to depart within thirty days or be
deported. They did not depart, and they have not been deported,
although the orders of deportation are still outstanding.
Petitioner further alleged that he would show that the judgment of
December 7, 1943, was unlawful and erroneous by producing the
record in the
Keilbar case.
The District Court, on September 28, 1948, denied petitioner's
motion to vacate the judgment of denaturalization, the court
stating in the order that "there is no merit to said motion."
Page 340 U. S. 197
It will be noted that petitioner alleged in his motion that his
failure to appeal was excusable. A motion for relief because of
excusable neglect as provided in Rule 60(b)(1) must, by the rule's
terms, be made not more than one year after the judgment was
entered. The judgment here sought to be relieved from was more than
four years old. It is immediately apparent that no relief on
account of "excusable neglect" was available to this petitioner on
the motion under consideration.
But petitioner seeks to bring himself within Rule 60(b)(6),
which applies if "any other reason justifying relief" is present,
as construed and applied in
Klapprott v. United States,
335 U. S. 601. The
circumstances alleged in the motion which petitioner asserts bring
him within Rule 60(b)(6) are that the denaturalization judgment was
erroneous; that he did not appeal and raise that question because
his attorney advised him he would have to sell his home to pay
costs, while Kelley, the Alien Control officer, in whom he alleges
he had confidence and upon whose advice he relied, told him "to
hang on to their home," and that he would be released at the end of
the war, and that these circumstances justify failure to appeal the
denaturalization judgment.
We cannot agree that petitioner has alleged circumstances
showing that his failure to appeal was justifiable. It is not
enough for petitioner to allege that he had confidence in Kelley.
On the allegations of the motion before us, Kelley was a stranger
to petitioner. In that state of the pleadings, there are two
reasons why petitioner cannot be heard to say his neglect to appeal
brings him within the rule. First, anything said by Kelley could
not be used to relieve petitioner of his duty to take legal steps
to protect his interest in litigation in which the United States
was a party adverse to him.
Munro v. United States,
303 U. S. 36;
Burnham Chemical Co. v. Krug, 81 F. Supp. 911, 913,
aff'd per curiam sub nom.
Page 340 U. S. 198
Burnham Chemical Co. v. Chapman, 86 U.S.App.D.C. 412,
181 F.2d 288. Secondly, petitioner had no right to repose
confidence in Kelley, a stranger. There is no allegation of any
fact or circumstance which shows that Kelley had any undue
influence over petitioner, or practiced any fraud, deceit,
misrepresentation, or duress upon him. There are no allegations of
privity, or any fiduciary relations existing between them. Indeed,
the allegations of the motion all show the contrary. However,
petitioner had a confidential adviser in his own counsel. Instead
of relying upon that confidential adviser, he freely accepted the
advice of a stranger, a source upon which he had no right to rely.
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.
As further evidence of the inadequacy of petitioner's motion to
bring himself within any division of Rule 60(b) which would excuse
him from not having taken an appeal, we call attention to the fact
that Keilbar got the record before the Court of Appeals, and it
contained all the evidence that was introduced as to petitioner and
his wife, who were tried together with Keilbar. The Ackermanns and
Keilbar were related, yet no effort was made to get into the Court
of Appeals and use the same record as to the evidence that Keilbar
used. It certainly would not have taken five thousand dollars, or
one-tenth, thereof for petitioner and his wife to have supplemented
the
Keilbar record with that pertaining to themselves,
and
Page 340 U. S. 199
to prepare a brief, even if all of it were printed. We are
further aware of the practice of the Courts of Appeals permitting
litigants who are poor but not paupers to file typewritten records
and briefs at a very small cost to them. With the same counsel
representing petitioner as represented his kinsman Keilbar, and
with Frieda Ackermann having funds sufficient to employ separate
counsel, failure to appeal because of the fear of losing his home
in defraying the expenses of the brief and record makes it further
evident that Rule 60(b) has no application to petitioner in this
setting.
The
Klapprott case was a case of extraordinary
circumstances. MR. JUSTICE BLACK stated in the following words why
the allegations in the
Klapprott case, there taken as
true, brought it within Rule 60(b)(6):
"But petitioner's allegations set up an extraordinary situation
which cannot fairly or logically be classified as mere 'neglect' on
his part. The undenied facts set out in the petition reveal far
more than a failure to defend the denaturalization charges due to
inadvertence, indifference, or careless disregard of consequences.
For before, at the time, and after the default judgment was
entered, petitioner was held in jail in New York, Michigan, and the
District of Columbia by the United States, his adversary in the
denaturalization proceedings. Without funds to hire a lawyer,
petitioner was defended by appointed counsel in the criminal cases.
Thus, petitioner's prayer to set aside the default judgment did not
rest on mere allegations of 'excusable neglect.' The foregoing
allegations and others in the petition tend to support petitioner's
argument that he was deprived of any reasonable opportunity to make
a defense to the criminal charges instigated by officers of the
very United States agency which supplied the second-hand
information upon which his citizenship was taken
Page 340 U. S. 200
away from him in his absence. The basis of his petition was not
that he had neglected to act in his own defense, but that, in jail
as he was, weakened from illness, without a lawyer in the
denaturalization proceedings or funds to hire one, disturbed and
fully occupied in efforts to protect himself against the gravest
criminal charges, he was no more able to defend himself in the New
Jersey court than he would have been had he never received notice
of the charges."
Klapprott v. United States, 335 U.
S. 601,
335 U. S.
613-614.
By no stretch of imagination can the voluntary, deliberate,
free, untrammeled choice of petitioner not to appeal compare with
the
Klapprott situation. MR. JUSTICE BLACK set forth in
order the extraordinary circumstances alleged by Klapprott. We
paraphrase them, and give the comparable situation of
Ackermann.
In the spring of 1942, Klapprott was ill, and the illness left
him financially poor and unable to work. On May 12, 1942,
proceedings were commenced in a New Jersey District Court to cancel
his citizenship. As for Ackermann, when he was sued, he was well,
and had a home worth $2,500, one-half interest in a newspaper, and
the means to employ counsel.
When complaint was served upon Klapprott, he had no money to
hire a lawyer, and he wrote an answer to the complaint filed
against him and a letter to the American Civil Liberties Union
asking it to represent him without fee. Ackermann had the means to
hire and did hire able counsel of his own choice, who prepared and
filed an answer for him.
In less than two months after the complaint was served on the
penniless, ill Klapprott, he was arrested for conspiracy to violate
the Selective Service Ac, and taken to New York and jailed in
default of bond. His letter to the American Civil Liberties Union
was taken by the
Page 340 U. S. 201
Federal Bureau of Investigation before time for him to answer
had expired, and was not mailed by that Bureau. Ackermann was never
indicted or in jail from the time complaint was filed against him
until after judgment, during all of which time he had the benefit
of counsel and freedom of movement and action.
Within ten days after his arrest, Klapprott was defaulted in the
citizenship proceedings in New Jersey. He was still in jail in New
York. No evidence was offered to prove the complaint in the
denaturalization proceedings, which complaint was verified on
information and belief only. In Ackermann's case, no default was
entered. He appeared in person and by counsel, and had a trial in
open court with able counsel to defend him. Much evidence was
introduced, and a record was made of it.
Klapprott was convicted in New York and sent to a penitentiary
in Michigan. He was later transferred to the District of Columbia,
where he was lodged in jail and tried on another charge, later
dismissed. The New York conviction was reversed, but he had been in
jail for about two years. He was then lodged at Ellis Island for
deportation because his citizenship had been canceled in the New
Jersey proceedings where he had been defaulted While at Ellis
Island, the motion to relieve from the default judgment canceling
his citizenship was prepared and filed, denied by the District
Court and the Court of Appeals, and finally sustained by this
Court. Ackermann was never under criminal charges or detained while
the suit for cancelation of his citizenship was pending. During all
of that time, he was free, well, and able to defend himself, and,
in that regard, had able counsel representing him in a trial in
open court. Even after the judgment canceling his citizenship, he
had counsel and free access to him, although detained by the United
States Government.
Page 340 U. S. 202
From a comparison of the situations shown by the allegations of
Klapprott and Ackermann, it is readily apparent that the situations
of the parties bore only the slightest resemblance to each other.
The comparison strikingly points up the difference between no
choice and choice; imprisonment and freedom of action; no trial and
trial; no counsel and counsel; no chance for negligence and
inexcusable negligence. Subsection 6 of Rule 60(b) has no
application to the situation of petitioner. Neither the
circumstances of petitioner nor his excuse for not appealing is so
extraordinary as to bring him within
Klapprott or Rule
60(b)(6).
The motion for relief was properly denied, and the judgment
is
Affirmed.
No. 36,
Frieda Ackermann v. United States, is a
companion case to No. 35, and it was stipulated that the decision
in No. 36 should be the same as in No. 35. The judgment in No. 36
therefore is also
Affirmed.
MR. JUSTICE CLARK took no part in the consideration or decision
of this case.
* Together with No. 36,
Ackermann v. United States,
also on certiorari to the same Court.
**
"RELIEF FROM JUDGMENT OR ORDER."
"
* * * *"
"(b) MISTAKES; INADVERTENCE; EXCUSABLE NEGLECT; NEWLY DISCOVERED
EVIDENCE; FRAUD, ETC. 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: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b); (3)
fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or 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. The
motion shall be made within a reasonable time, and for reasons (1),
(2), and (3) not more than one year after the judgment, order, or
proceeding was entered or taken. A motion under this subdivision
(b) does not affect the finality of a judgment or suspend its
operation. This rule does not limit the power of a court to
entertain an independent action to relieve a party from a judgment,
order, or proceeding, or to grant relief to a defendant not
actually personally notified as provided in Section 57 of the
Judicial Code, U.S.C. Title 28, ยง 118, or to set aside a judgment
for fraud upon the court. Writs of
coram nobis, coram vobis,
audita querela, and bills of review and bills in the nature of
a bill of review are abolished, and the procedure for obtaining any
relief from a judgment shall be by motion as prescribed in these
rules or by an independent action."
Fed.Rules Civ.Proc. 60(b).
MR. JUSTICE BLACK, with whom MR. JUSTICE FRANKFURTER and MR.
JUSTICE DOUGLAS concur, dissenting.
The Court's interpretation of amended Rule 60(b) of the Federal
Rules of Civil Procedure neutralizes the humane spirit of the Rule,
and thereby frustrates its purpose. The Rule empowers courts to set
aside judgments under five traditional, specified types of
circumstances in which it would be inequitable to permit a judgment
to stand. But the draftsmen of the Rule did not intend that these
specified grounds should prevent the granting of similar relief in
other situations where fairness might require
Page 340 U. S. 203
it. Accordingly, there was added a broad sixth ground: "any
other reason justifying relief from the operation of the judgment."
The Court nevertheless holds that the allegations of the present
motions were not sufficient to justify the District Court in
hearing evidence to determine whether justice would best be served
by granting relief from the judgments against petitioners.* Because
I disagree with this interpretation of Rule 60(b), it becomes
necessary to summarize the allegations of the motions.
Petitioners, a husband and wife whose native country was
Germany, became naturalized citizens of the United States in 1938.
After the declaration of war against Germany, the Government
commenced proceedings which resulted in the denaturalization of
petitioners and also of their relative, Keilbar.
United States
v. Ackermann, 53 F. Supp. 611. Petitioners did not appeal from
these judgments, but, on March 25, 1948, filed duly verified
motions for relief from the judgments. The uncontradicted
allegations of the motions show: when the judgments were entered,
neither of the petitioners had any money or property except a home
at Taylor, Texas, worth not in excess of $2,500. They were told by
their counsel that the cost of an appeal would be $5,000; that to
prosecute an appeal,
Page 340 U. S. 204
they would have to sell their home, contribute that $2,500, and
then hope to have the appeal tried out on an affidavit of
insolvency. Being distressed by reason of having to choose between
selling their home or foregoing an appeal, the petitioners sought
advice from the United States official who then held them in
custody, one W. F. Kelley, assistant commissioner for alien
control, Immigration and Naturalization Service of the United
States. Petitioners had great confidence in this officer. Kelley
advised them to "hang on to their home," and also that they "would
be released at the end of the war." Because of their reliance on
this advice, petitioners "refrained from appealing . . . said
judgments." Thereafter their relative Keilbar did appeal, and the
judgment of denaturalization against him was reversed on the
Government's admission that the evidence was insufficient to
support it.
Keilbar v. United States, 144 F.2d 866.
Petitioners insisted both in their motions to set the judgments
aside and in argument that the evidence against them and Keilbar
was substantially the same.
In holding that the allegations of these motions are not even
sufficient to justify the District Court in hearing evidence, the
Court relies heavily on its assertion that petitioners "had no
right to repose confidence in Kelley" because Kelley was a
"stranger" to them. In the first place, Rule 60(b)'s broad grant of
power to the District Court should not be constricted by the
importation of the concept of legal "rights." Moreover, far from
being a stranger, Kelley was the United States official who held
petitioners in custody. Any person held by the United States should
be able to repose confidence in the Government official entrusted
with his custody. There are obvious reasons why this should be true
in the case of the foreign born, less familiar with our customs
than are our native citizens.
Page 340 U. S. 205
The Court also relies on the fact that the motions to set aside
the judgments contain "no allegations of privity or any fiduciary
relations existing" between petitioners and Kelley. Surely the
liberalizing provisions of 60(b) should not be emasculated by
common law ideas of "privity" or "fiduciary relations." If
relevant, however, I should think that the phrase "fiduciary
relations," given its best meaning, encompasses the relationship
between petitioners and the official who held them in custody.
Finally, since the Court holds that the allegations of
petitioners' motions were insufficient to justify the hearing of
evidence by the District Court, I think it inappropriate for the
Court to consider what purports to be its judicial knowledge of the
cost of transcripts and the ability of litigants to file
typewritten records and briefs. The motions refute any such
knowledge on the part of these petitioners, and I am satisfied that
no such knowledge would be established if the District Court were
permitted to try these cases.
The result of the Court's illiberal construction of 60(b) is
that these foreign-born people, dependent on our laws for their
safety and protection, are denied the right to appeal to the very
court that held (on the Government's admission) that the judgment
against their co-defendant was unsupported by adequate evidence. It
does no good to have liberalizing rules like 60(b) if, after they
are written, their arteries are hardened by this Court's resort to
ancient common law concepts. I would reverse.
* Petitioners' motions to be relieved from the judgments of
denaturalization invoked the jurisdiction of the District Court
under Rule 60(b). Contending that these motions did "not state
grounds sufficient to invoke the authority of the Court . . . ,"
the Government moved to dismiss them. These pleadings therefore
posed only the question of the trial court's jurisdiction. Without
further pleadings or the taking of evidence, the court entered an
order which stated that "there is no merit to said [petitioners']
motion[s], and . . . the same should be denied." But, since we
cannot assume that an issue not framed by the pleadings was
decided, it necessarily follows that the District Court held it was
without jurisdiction to grant relief under Rule 60(b).
But cf.
Bell v. Hood, 327 U. S. 678,
327 U. S.
682-683;
Brown v. Western R. Co., 338 U.
S. 294.