235 F.3d 330 (7th Cir. 2000), 00-2442, United States v Tittjung

Docket Nº:00-2442
Citation:235 F.3d 330
Party Name:United States of America, Plaintiff-Appellee, v. Anton Tittjung, Defendant-Appellant.
Case Date:December 15, 2000
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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235 F.3d 330 (7th Cir. 2000)

United States of America, Plaintiff-Appellee,


Anton Tittjung, Defendant-Appellant.

No. 00-2442

In the United States Court of Appeals, For the Seventh Circuit

December 15, 2000

Argued November 9, 2000

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 89-C-1068--John W. Reynolds, Judge.

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Before Flaum, Chief Judge, and Ripple and Kanne, Circuit Judges.

Flaum, Chief Judge.

On December 14, 1990, the District Court for the Eastern District of Wisconsin determined that Anton Tittjung's position as a Nazi concentration camp guard during World War II invalidated his previously issued visa. Therefore, the court revoked Tittjung's citizenship and cancelled his certificate of naturalization. This Court affirmed that decision. On March 24, 1994, the Immigration Court ordered the deportation of Tittjung, pursuant to the Holtzman Amendment, 8 U.S.C. sec. 1227(a) (4)(D) (formerly 8 U.S.C. sec. 1251(a)(4)(D)). The Board of Immigration Appeals ("BIA") affirmed the Immigration Court's decision, and this Court affirmed the decision of the BIA. On January 10, 2000, almost six years after his deportation was first ordered, Tittjung filed a motion to dismiss, pursuant to Fed.R.Civ.P. 60(b)(4), seeking to vacate the district court's 1990 order. The district court denied Tittjung's motion to dismiss. For the reasons stated herein, we affirm the district court's decision.


Anton Tittjung was born in Erdud, Yugoslavia on November 17, 1924. Beginning in October of 1942, and for the duration of World War II, Tittjung served in the Waffen SS, an organization of the Nazi government. Specifically, Tittjung was a member of the Totenkopf-Sturmbann (Death's Head Battalion), where he operated as an armed guard at the Mauthausen concentration camp and its subcamp Gross Raming.1

In 1952, Tittjung applied for and obtained a visa to enter the United States pursuant to the Displaced Persons Act of 1948 ("DPA"). At no point during the application process did Tittjung disclose his association with the SS Death's Head Battalion nor his participation in Nazi persecution as a concentration camp guard. Tittjung applied for naturalization in 1973, once again concealing his Nazi wartime service. On January 9, 1974, Tittjung was naturalized and became a citizen of the United States.

On September 1, 1989, the government filed a complaint against Tittjung asking the District Court for the Eastern District of Wisconsin to revoke Tittjung's citizenship. The request for revocation was based on evidence which revealed Tittjung's history as a member of the Waffen SS and an armed concentration camp guard at Mauthausen and Gross Raming. The government moved for summary judgment, arguing that Nazi concentration camp guards were ineligible for visas under the DPA, and that as a result, Tittjung's citizenship was illegally procured. On December 14, 1990, the district court granted the government's motion. See Tittjung, 753 F.Supp. at 251. The court held that as a concentration camp guard, Tittjung had assisted in the

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persecution of persons because of their race, religion, or national origin. Because the DPA, as amended in 1950, made all persons who assisted Nazi Germany in the persecution of civilian populations of countries ineligible for visas, Tittjung was ineligible for a visa when he entered the United States. To be eligible for naturalization, a person must have been lawfully admitted into the United States with a valid immigration visa. See 8 U.S.C. sec. 1427(a)(1). The court determined that because Tittjung's visa was invalid, he was never lawfully admitted into the United States. Since Tittjung had not satisfied the prerequisites for naturalization, the court revoked his citizenship, set aside its January 9, 1974 order admitting Tittjung to citizenship, and cancelled Tittjung's certification of naturalization. See Tittjung, 753 F.Supp. at 256-57. Because Tittjung's guard service required his denaturalization as a matter of law, the district court did not address allegations that Tittjung misrepresented his World War II service to visa officials and thereby entered the United States by means of fraud. Id. at 257. This Court affirmed the district court's order in an opinion dated November 14, 1991, 948 F.2d 1292 (7th Cir. 1991), and the Supreme Court thereafter denied certiorari, 505 U.S. 1222 (1992).

As a result of the district court's 1990 decision, Tittjung reverted to alien status and was thus removable. On May 11, 1992, the government commenced deportation proceedings against Tittjung. The Immigration Court, on March 24, 1994, ordered Tittjung's deportation pursuant to the Holtzman Amendment.2 Tittjung appealed the decision of the Immigration Court to the BIA. On August 13, 1997, the BIA affirmed the deportation order and dismissed Tittjung's appeal. Tittjung then filed a motion for reconsideration, which the BIA denied on August 27, 1998. On December 2, 1999, this Court affirmed the BIA's decision. Tittjung v. Reno, 199 F.3d at 393, reh'g denied, No. 98-3407 (Feb. 9, 2000). On June 29, 2000, the Supreme Court denied certiorari. U.S., 120 S.Ct. 2746.

Faced with an imminent deportation, Tittjung filed a motion with the District Court for the Eastern District of Wisconsin, seeking to vacate the 1990 denaturalization judgment and dismiss the complaint. Tittjung argued that the 1990 judgment was void under Fed.R.Civ.P. 60(b)(4) on the ground that the district court lacked subject matter jurisdiction. On April 27, 2000, that motion was denied by the district court. Tittjung now appeals, arguing that: (1) there is no Article III jurisdiction to redetermine visa eligibility, and on that basis find that Tittjung was not lawfully admitted when he was granted citizenship; (2) it is an unconstitutional encroachment into an executive function for the judiciary to redetermine visa eligibility; (3) since the DPA is no longer in effect, the district court cannot make a finding of visa ineligibility and unlawful admission based on that law; (4) the court had to make certain factual findings, including that Tittjung made a misrepresentation in order to obtain a visa, before it could hold that he illegally obtained a visa and was thus not "lawfully admitted."


A. Rule 60(b)(4) Standard of Review

Tittjung's present motion challenges the jurisdiction of the District Court for the Eastern District of Wisconsin to determine that he was visa ineligible

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when he entered the United States in 1952. No court may decide a case without subject matter jurisdiction, and neither the parties nor their lawyers may stipulate to jurisdiction or waive arguments that the court lacks jurisdiction. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988); Indiana Gas Co. v. Home Ins. Co., 141 F.3d 314 (7th Cir. 1998); see also United States v. County of Cook, Ill., 167 F.3d 381, 387-88 (7th Cir. 1999). To further that end, "It is the duty of this court to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.'" EEOC v. Chicago Club, 86 F.3d 1423, 1428 (7th Cir. 1996) (citing Mitchell v. Maurer, 293 U.S. 237, 244 (1934)). Therefore, if the parties neglect the subject, a court must raise the jurisdictional question on its own. Christianson, 486 U.S. at 818. However, in unexceptional circumstances, a party that has had an opportunity to litigate the question of subject matter jurisdiction may not reopen that question in a collateral attack following an adverse judgment. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n.9 (1982).

The exception to the general rule barring collateral attacks on subject matter jurisdiction flows from Fed.R. Civ.P. 60(b)(4).3 Yet that exception is narrowly tailored, such that a lack of subject matter jurisdiction will not always render a final judgment "void." Only when the jurisdictional error is "egregious" will courts treat the judgment as void. In re Edwards, 962 F.2d 641, 644 (7th Cir. 1992). To be egregious, and thus void under Rule 60(b)(4), the error must involve a clear usurpation of judicial power, where the court wrongfully extends its jurisdiction beyond the scope of its authority. See O'Rourke Bros., Inc. v. Nesbitt Burns, Inc., 201 F.3d 948, 951 (7th Cir. 2000); Edwards, 962 F.2d at 644; Kansas City S. Ry. v. Great Lakes Carbon Corp., 624 F.2d 822, 825 (8th Cir. 1979). "If it is not egregious, the courts say that the court that issued the judgment in excess of its jurisdiction had jurisdiction to determine jurisdiction, and its jurisdictional finding, even if erroneous, is therefore good against collateral attack, like any other erroneous but final judgment." Edwards, 962 F.2d at 644. Here, the district court did not find any jurisdictional errors let alone egregious ones. We review de novo the denial of a motion to vacate a judgment as "void" under Fed.R.Civ.P. 60(b)(4). Federal Election Comm'n v. Al Salvi for Senate Comm., 205 F.3d 1015 (7th Cir. 2000).

B. Tittjung's Jurisdictional Arguments

1. The District Court's Jurisdiction to Review a Visa

Tittjung's overarching claim on appeal is that a district court lacks subject matter jurisdiction to review a visa eligibility determination and on that basis vacate an order of naturalization. We note at the outset that Tittjung's status as visa eligible has been at issue in Article III proceedings for approximately eleven years to date. To say that Tittjung has had ample opportunity to raise this issue is to understate the matter. Moreover, Tittjung has previously admitted that the courts do have jurisdiction to examine his visa eligibility. The original complaint, filed in 1989, specifically alleged that the...

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