184 F.2d 225 (D.C. Cir. 1950), 10287, Finucane v. Bindczyck

Docket Nº:10287.
Citation:184 F.2d 225
Party Name:FINUCANE et al. v. BINDCZYCK.
Case Date:June 19, 1950
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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184 F.2d 225 (D.C. Cir. 1950)




No. 10287.

United States Court of Appeals, District of Columbia Circuit.

June 19, 1950

Argued Feb. 13, 1950.

Mr. L. Clark Ewing, Assistant United States Attorney, Washington, D.C., with whom Messrs. George Morris Fay, United States Attorney, Ross O'Donoghue, Assistant United States Attorney, and Joseph M. Howard, Assistant United States Attorney, Washington, D.C., were on the brief, for appellants.

Mr. Joseph A. Fanelli, Washington, D.C., for appellee.

Before CLARK, WILBUR K. MILLER and PROCTOR, Circuit Judges.

CLARK, Circuit Judge.

The appellants, defendants below, have prosecuted this appeal to test the validity of a summary judgment in favor of the appellee, Bindczyck, declaring him to be a citizen of the United States and granting him appropriate injunctive relief.

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Peter Alfrons Bindczyck, while a member of our armed forces stationed at Camp Ritchie, Maryland, became a citizen of the United States by naturalization order of the Circuit Court of Frederick County, Maryland, on December 2, 1943, and his certificate of naturalization, No. 6089814, was duly issued by that court. Seven days later, on December 9, 1943, within the same term of the same court, on motion by Leicester W. Cook, United States Naturalization Examiner of the Immigration and Naturalization Service, Washington, D.C., made on behalf of the United States Government in the original proceedings, 'the order of admission to citizenship * * * (was) vacated and set aside, and restored to the pending calendar for immediate hearing, and * * * the original and duplicate certificate of naturalization * * * (was order) voided and returned to the Immigration and Naturalization Service.' 1 The basis for that court's order, as appears from the transcript of the hearing on the motion filed in the United States District Court for the District of Columbia in connection with appellants' motion to dismiss the complaint, was that Bindcyzck, shortly after he was naturalized, made statements to the effect that he had no love for the United States and that he would not fight for this country. At the hearing on the motion in the Maryland court he testified that he had previously stated in court that he was willing to bear arms against all enemies and that he approved of this government, whereas neither statement was true and he was testifying falsely at the time.

Although appellee mentions that the motion was filed, served, heard and decided all on the same day; that he was away from home under military orders and under military arrest at the time; and that he was without counsel, he specifically waives any rights that he might have acquired had any of this procedure departed from the rules of the Maryland court or from the constitutional guarantees of due process on the ground that they are irrelevant to the issue presented here. And the appellants admit that the procedure by which appellee's naturalization order was set aside and vacated in no way complies with section 338 of the Nationality Act of 1940 2 which provides:

'(a) It shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court specified in subsection (a) of section 301 in the judicial district in which the naturalized citizen may reside at the time of bringing suit, 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.

'(b) The party to whom was granted the naturalization alleged to have been fraudulently or illegally procured shall, in any such proceedings under subsection (a) of this section, have sixty days' personal notice in which to make answer to the petition of the United States; and if such naturalized person be absent from the United States or from the judicial district in which such person last had his residence, such notice shall be given by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the State or the place where such suit is brought.'

Nor would we now hesitate to uphold appellee had the appellants, though proceeding as they did, purported to have acted pursuant to the provisions of the aforesaid section. In such cases the authorities are abundantly clear in denying the allowance of the order vacating and setting aside a naturalization where the strict letter of section 338 as laid down by Congress is not followed. But appellants' position is that that section (and its predecessor, section

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15 of the 1906 Act, 3 which for the purposes of this opinion is substantially the same) does not abridge the heretofore existing remedies for setting aside and vacating such orders but merely enlarges them. Section 338 is simply cumulative in effect and does not provide the only and exclusive method whereby a naturalization order may be vitiated. Appellee, on the other hand, has taken the position, which prevailed below, that Congress, by virtue of the Constitution which empowers it 'to establish an uniform Rule of Naturalization,' 4 has, by enacting section 338 of the Nationality Act of 1940, and its predecessor section 15 of the 1906 Act, effectively foreclosed the possibility of vacating and setting aside an order of naturalization by any other method than the one thus prescribed; and, since the government has not proceeded in accordance with that section, the appellee is entitled to a declaratory judgment proclaiming his citizenship.

That Congress has the power to enact uniform laws governing denaturalization cannot be doubted. 5 But the first question before us involves the extent to which Congress has exercised this power, and not whether the power exists to the extent which would be necessary in order to sustain appellee's position; for only if we conclude that it has exercised this power so as to make the remedy thus provided exclusive of all others that may have heretofore existed, would we then have to decide whether the constitutional grant extended so far. Doubt has been expressed in that regard. 6

Little has been written on the question before us, and so before we proceed to an examination of whatever authority there is on the subject, it will be helpful to place the problem in its proper posture. Stripped to its essentials the question is: Has Congress, by enacting a statute governing denaturalization, proscribed the power of a naturalizing court of proper jurisdiction to set aside, vacate, and assign for rehearing its own order of naturalization within the same term of court, in the same manner, and on the same grounds as any other of its judgments similarly assailed?

There are certain basic fundamentals with which we should first acquaint ourselves. These are:

(1) An order of naturalization is like any other judgment of the court issuing the order. 7

(2) Judgments of a court of record are applicable. 8

(3) Under proper circumstances judgments of a court of record are subject to being opened up, modified, corrected, set aside, and vacated. 9 The power of a court to so act, though much modified today by statute, existed at common law 10 and has always been exercised in the judicial discretion of such court. 11

(4) The proceeding to vacate a judgment, especially when made within the same term of court, is generally regarded as a further proceeding in the same action. 12

(5) A statutory remedy is to be considered as cumulative of existing common law remedies, unless the contrary is so declared in express terms or by necessary implication. 13

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From the foregoing it would appear, therefore, that independently of any decisional law, the Circuit Court for Frederick County, Maryland, has the power to set aside and vacate its own naturalization order within the same term of court in the same way that it may set aside and vacate any other of its judgments. But the appellee insists that section 338 of the Nationality Act of 1940 as well as its predecessor were clearly intended by Congress to be exclusive of all other pre-existing methods of denaturalization. With but one exception, however, (United States ex rel. Volpe v. Jordan), 14 none of the cases cited by him refer to the situation here but rather to a proceeding in which the Government has avowedly sought its authority to act from either section 15 of the 1906 Act or section 338 of the current Act. Of course the broad language gleaned from these cases supports the proposition that there must be strict compliance with the statute. There is no question that Congress so intended. But it is self evident that these cases cannot be used as authority on the present question, especially in view of the fact that in none of them does the government contend, even though it may have failed to comply with the statutory conditions for denaturalization, that the authority to proceed as it did could be found elsewhere. Furthermore, as far as we have been able to ascertain, in none of these cases was the attempted denaturalization instituted in the court issuing the naturalization order within the same term that the order was issued, as a part of the original proceeding, rather than as a separate proceeding under the statute. Likewise, appellee, in taking issue with the appellants' statement to the effect that the legislative history affords us little help in determining the intent of Congress, alludes to language in committee reports, statements of Cabinet Officers, and a statement made on the floor of the house, which gives as little support for his position as is...

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