233 F.2d 551 (3rd Cir. 1956), 11651, Stipa v. Dulles

Docket Nº:11651.
Citation:233 F.2d 551
Party Name:Giovanni STIPA, Appellant, v. John Foster DULLES, Secretary of State.
Case Date:May 16, 1956
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 551

233 F.2d 551 (3rd Cir. 1956)

Giovanni STIPA, Appellant,

v.

John Foster DULLES, Secretary of State.

No. 11651.

United States Court of Appeals, Third Circuit.

May 16, 1956

Argued Nov. 18, 1955.

Page 552

Filindo B. Masino, Philadelphia, Pa., for appellant.

W. Wilson White, U.S. Atty., Philadelphia, Pa., for appellee.

Before BIGGS, KALODNER and HASTIE, Circuit Judges.

KALODNER, Circuit Judge.

Giovanni Stipa appeals from the judgment of the United States District Court for the Eastern District of Pennsylvania dismissing his complaint seeking a judgment declaring him to be a citizen of the United States. 1

The premise of the District Court's disposition was that Stipa had, under the provisions of Section 401(d) of the Nationality Act of 1940, 2 expatriated himself by accepting employment as an auxiliary in the Police Force of Italy. Stipa's contention that his employment was impelled by economic duress-- that he 'could find no work in any factory or employment whatsoever' and that he 'was in need of assistance because after the war there was nothing to do in Italy' was rejected by the District Court on the ground that 'economic duress' did not

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constitute such 'legal duress' which would avoid the expatriating effect of his conduct. 3

With respect to the District Court's conclusion that Stipa expatriated himself by accepting employment as an auxiliary in the Italian Police Force, it must immediately be noted that it was in the nature of an ultimate finding of fact and on that score it is well settled that such a finding is but a legal inference from other facts 4 and as such is subject to review free of the restraining impact of the so-called 'clearly erroneous' rule applicable to ordinary findings of fact by the trial court. 5

It is appropriate to note at this point that we are concerned only with the application of Section 401(d) and with no other section of the Nationality Act of 1940. 6 That has been made clear by both Stipa and the Government on this appeal. Attention is called to that fact because in its 'Opinion Sur Motion for Re-Argument' the District Court made some reference to the fact that Stipa 'served in the Italian Navy' 7 and 'he voted in Italy'. 8

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The relevant facts as far as Section 401(d) is concerned are disclosed by the record to be as follows:

Stipa was born in Plymouth, Pennsylvania, September 14, 1918 of parents who were Italian nationals and thus he acquired dual nationality in the United States and Italy under the laws of the two countries. When he was two years old, in September, 1920, his mother having died, he was taken by his father to Italy where he remained until January, 1953, when he came to this country. In November, 1945, when he was discharged from the Italian Navy (Note 7) he wrote to his brother in the United States and was advised by him that 'he would eventually send (Stipa) the money to come to America.' At the time of his release from the Navy Stipa 'was in a very poor financial circumstance'. 9 He testified: 'The first job I got was to clean windows of business places, stores'. 10 He sought to obtain a job 'but there was no work'. 11 He 'was in need of assistance because after the war there was nothing to do in Italy'; he 'could find no work in any factory or any employment whatsoever'; 'having noticed that there were circulars around the country requesting men * * * to be employed as auxiliary police in Italy (he) proceeded to put in an application to enter this auxiliary police' and 'was accepted * * * sometime in October, 1947.' 12

His sole reason for accepting the position in the auxiliary police was 'for the purpose of earning a livelihood'. 13 He served for two years and then resigned because he would have been required to go to a military school for further training. 14

The record discloses that on August 25, 1947, some two months prior to joining the Italian police force, Stipa filed an 'Application for (American) Passport' on a 'Form for Native Citizen' with the American Consul for the district of Rome, Italy. As part of his Application, and attached to it, Stipa took an 'Oath of Allegiance' to the United States. 15

On the facts as stated Stipa contended below, as he does here, that his employment in the auxiliary police force of Italy was compelled by 'economic duress' and was thus involuntary and not within the strictures of Section 401(d).

The District Court did not find that Stipa was not subjected to 'economic duress' but ruled against him on its view that only 'legal duress' could avoid the effect of expatriating conduct and that 'economic duress' did not constitute 'legal duress'.

The District Court in its Opinion Sur Motion for Re-Argument 16 stated its view as follows:

'I agree that where an American citizen accepts expatriating employment

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with a foreign government, if it is the law that the mere fact that he needs a job in order to make a living and is unable at the time to find any other employment constitutes legal duress, then I would have to vacate my order dismissing this complaint.' (Emphasis supplied.)

In our opinion economic duress avoids the effect of an expatriating act. It is well-settled that the very essence of expatriation under any and all of the subsections of Section 401 is that the expatriating act be completely voluntary.

'Expatriation' said the Supreme Court in Perkins v. Elg, 1939, 307 U.S. 325, 334, 59 S.Ct. 884, 889, 83 L.Ed. 1320, 'is a voluntary renunciation or abandonment of nationality and allegiance'. (Emphasis supplied.)

In Doreau v. Marshall, 3 Cir., 1948, 170 F.2d 721, at page 724, we specifically ruled: 'Duress as we see it is a defense to expatriation'. We adhered to that view in Perri v. Dulles, 3 Cir., 1953, 206 F.2d 586 and in Lehmann v. Acheson, 3 Cir., 1953, 206 F.2d 592, 594. In Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 1947, 161 F.2d 860, 868, the rule was stated as follows: 'To 'expatriate' oneself clearly implies voluntary action'. 17

'Economic duress' was held to avoid the effect of expatriating conduct under Section 401(d) in Insogna v. Dulles, D.C.D.C.1953, 116 F.Supp. 473. 18 There a dual citizen of the United States and Italy accepted government employment in Italy in order, as the District Court found, 'to subsist'. Under such circumstances, it was held, the acceptance of employment '* * * was the result of actual duress which overcame her natural tendency to protect her birthright * * * Self-preservation has long been recognized as the first law of nature. 'The means of exercising duress is not limited to guns, clubs or physical threats' * * * (citing cases)'.

On the score of involuntary breach of the provisions of Section 401(c) it was held in Acheson v. Maenza, 1953, 92 U.S.App.D.C. 85, 202 F.2d 453, 459, that 'The law does not exact a crown of martyrdom as a condition of retaining citizenship.'

We had occasion to consider the impact of 'economic duress' on human conduct in another field in German v. Carnegie-Illinois Steel Corporation, 3 Cir., 1948, 169 F.2d 715, 719. There a release was executed by a seaman and his employer asserted its execution was binding on him in view of the absence of any allegation of fraud, accident, mistake or deception. We held, however, that prior 'economic duress' suffered by the seaman because of the employer's refusal to pay him maintenance and cure, as was its obligation under the law, constituted coercion.

Applying the principles stated we are of the opinion that 'economic duress' is a defense to expatriation.

Elizarraraz v. Brownell, 9 Cir., 1954, 217 F.2d 829, cited by the government, is inapposite to the instant case. There a native-born citizen of the United States...

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