# Polites v. United States/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Brennan
United States Supreme Court
364 U.S. 426
Polites v. United States
Argued: Aug. 18, 1960. --- Decided: Nov 21, 1960
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. In 1952 the United States brought proceedings under § 338(a) of the 1940 Act to revoke his citizenship. These proceedings culminated in a judgment of denaturalization, D.C., 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 stipulatiom. Four years later the petitioner moved to vacate the judgment of denaturalization, relying upon Rule 60(b), Fed.Rules Civ.Proc., 28 U.S.C.A. 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, 80 S.Ct. 594, 4 L.Ed.2d 541.
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 United States. 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.
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 meetings had advocated the overthrow of existing government by force and violence.
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 organization which 'was then advising, advocating or teaching forcible or violent overthrow of this government.' 127 F.Supp. at page 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. A judgment cancelling the petitioner's citizenship was entered, 127 F.Supp. 768, 770-772.
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, 6 Cir., 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, 75 S.Ct. 28, 99 L.Ed. 644, the petitioner by his counsel 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, 78 S.Ct. 955, 2 L.Ed.2d 1048, and Maisenberg v. United States, 356 U.S. 670, 78 S.Ct. 960, 2 L.Ed.2d 1056, '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,' (24 F.R.D. 403) and that, in any event, the doctrine of Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207, 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 (71 S.Ct. 209, 95 L.Ed. 207), 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, 5 Cir., 144 F.2d 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 page 202, 71 S.Ct. at page 213.
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 page 198, 71 S.Ct. at page 211.
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 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, 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, 78 S.Ct. 955, 2 L.Ed.2d 1048, and Maisenberg v. United States, 356 U.S. 670, 78 S.Ct. 960, 2 L.Ed.2d 1056.
Petitioner contends that the Nowak and Maisenberg decisions reject the grounds relied upon by the District Court in revoking petitioner's citzenship in 1953. In the petitioner's denaturalization proceeding, the court held that a charge of illegal procurement of citzenship 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 application, and (b) the Communist Party had advised, advocated, or munist 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. 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 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 page 666, 78 S.Ct. at page 959, 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, 63 S.Ct. 1333, 87 L.Ed. 1796. 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.' 356 U.S. at page 671, 78 S.Ct. at page 961. 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 vocacy.
In the present case, by contrast, the District Court held that determination of the issue of illegal procurement did 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. 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, 74 S.Ct. 737, 98 L.Ed. 911; Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140; Niukkanen v. McAlexander, 362 U.S. 390, 80 S.Ct. 799, 4 L.Ed.2d 816. 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. 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 page 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 been strict compliance with the conditions imposed by Congress as prerequisites to acquisition of citizenship. See Maney v. United States, 278 U.S. 17, 49 S.Ct. 15, 73 L.Ed. 156; United States v. Ness, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321; United States v. Ginsberg, 243 U.S. 472, 37 S.Ct. 422, 61 L.Ed. 853; cf. Schneiderman v. United States, 320 U.S. 118, 163, 63 S.Ct. 1333, 1355, 87 L.Ed. 1796 (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.
Mr. Justice BRENNAN, with whom The CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice DOUGLAS join, dissenting.

## Notes

* ↑ 54 Stat. 1137.
* ↑ 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.' Now 8 U.S.C.A. § 1451(a).
* ↑ 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.'
* ↑ 'No person shall hereafter be naturalized as a citizen of the United States-
* ↑ The complaint also alleged that the petitioner had obtained his naturalized citizenship fraudulently.
* ↑ The following are illustrative examples of such testimony:
* ↑ 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.
* ↑ 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.
* ↑ 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, 181, 67 S.Ct. 1588, 1592, 91 L.Ed. 1982; see Maryland v. Baltimore Radio Show, 338 U.S. 912, 70 S.Ct. 252, 94 L.Ed. 562.
* ↑ 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.' Now 8 U.S.C.A. § 1427(a).
* ↑ 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), 8 U.S.C.A. § 1451(a). Under that statute illegal procurement as such is not a specific basis for cancellation of a certificate of naturalization.
* ↑ 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 page 672, note 3, 78 S.Ct. at page 962.
* ↑ See note 4, supra.
* ↑ 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, 69 S.Ct. 384, 93 L.Ed. 266.
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