Breyer v. Ashcroft, 02-4226.

• Citation: 350 F.3d 327
• Decision Date: 19 November 2003
• Docket Number: No. 02-4226.,02-4226.
• Parties: Johann BREYER v. <SMALL><SUP>*</SUP></SMALL>John ASHCROFT, U.S. Immigration and Naturalization Service, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 327

350 F.3d 327

Johann BREYER v. ^*John ASHCROFT, U.S. Immigration and Naturalization Service, Appellant.

No. 02-4226.

United States Court of Appeals, Third Circuit.

Argued July 29, 2003.

Decided November 19, 2003.

Jonathan C. Drimmer (Argued), David W. Folts, Office of Special Investigations, United States Department of Justice, Criminal Division, Washington, DC, for Appellant.

Martin R. Lentz (Argued), Pelino & Lentz, Philadelphia, PA, for Appellee.

Before: SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Chief Judge.

The government seeks to strip Johann Breyer of his United States citizenship for serving in the Waffen SS during World War II. At issue is whether Breyer, who joined at age seventeen, was a voluntary member of the Nazi military unit. The District Court found that he was not, and consequently issued a declaratory judgment that Breyer was a United States citizen. We will affirm.¹

I.

The facts of this case have been extensively discussed elsewhere, especially in the District Court's bench opinion in the judgment now appealed. See Breyer v. Meissner, No. 97-6515, 2002 WL 31086985 (E.D.Pa. Sept.18, 2002).² With a few exceptions not determinative here, the District Court's findings of "historical fact" have not been challenged. We detail the facts as they relate to the matters currently being appealed.

Johann Breyer was born in 1925 to an American-born mother and a non-citizen father in Nova Lesna, a small farming village located in what was then Czechoslovakia (and later became Slovakia). Although they resided in Czechoslovakia, the Breyer family was ethnically German ("Volksdeutschen"). Slovakia became a separate state in 1939 controlled by Germany, and thus allied with Germany during World War II. During that time, the political and social interests of the Slovak ethnic German population were represented by Deutsche Partei ("DP"), or German Party. The DP was a functional instrument of the Third Reich, but exerted no legal control over its members.

As the tides of war began to turn against Germany in 1942, the Schutzstaffel ("SS"), a Nazi political organization, coordinated with the DP to devise a plan to recruit Slovak Volksdeutschen for membership in the Waffen SS, a Nazi paramilitary organization. Breyer received a notification letter sent in the first wave of this recruiting drive instructing him to report for military service. Breyer asked the mayor of his town whether he was obligated to report as instructed. The mayor confirmed this obligation, and Breyer subsequently appeared for the required physical examination. Several months later, Breyer received a call-up notification that he had passed the examination, instructing him to report for induction into the Waffen SS. Breyer again approached the mayor who informed him that he was obligated to comply with the notification. But the mayor assured Breyer that he would work with local DP officials to secure Breyer's release if ultimately he were assigned to a distant post.

On February 10, 1943, Breyer was transported to the concentration camp at Buchenwald, Germany, where he was assigned to the Totenkopf Sturmbann, or Death's Head Battalion, in the Waffen SS. Upon completion of a six-week training program, seventeen-year-old Breyer swore an oath of allegiance to Adolf Hitler. Upon induction into the Waffen SS, Breyer was advised to abandon religion — a policy financially encouraged by waiver of the Reich's church tax — but he refused. Breyer also refused to join the new inductees in having his blood-type branded on his upper arm, a mark that would have permanently identified him as a member of the Waffen SS. When Breyer was asked in front of a group of new SS inductees whether he could shoot a person, he responded that he could not. Consequently, he was assigned to a section of the concentration camp where prisoner escape was considered unlikely. He carried a weapon while on perimeter duty, but it was not always loaded. On May 30, 1943, shortly after the completion of his training, Breyer turned eighteen.

Whether Breyer voluntarily entered the Waffen SS is unclear. While there is evidence that Slovak Volksdeutschen were subject to some degree of compulsion to enter the Waffen SS, there is also evidence that membership was ultimately a voluntary choice. On balance, however, the District Court concluded that Breyer's entry into service was voluntary as a matter of fact, though involuntary as a matter of law as Breyer was under the age of eighteen at the time. Id. at *14. In any event, it is undisputed that once inducted in the Waffen SS, a soldier was obligated to remain a member for the duration of the war, whether or not he voluntarily enlisted.

In or around December 1943, Breyer was granted a standard two-week home leave. He was told that if he did not return, his family would be gravely harmed. Breyer took his leave and returned as scheduled. In the spring of 1944, Breyer requested an emergency home leave after receiving word that his mother was ill. This request was denied, but Breyer wrote to inform his parents that he would come home "one way or another." The letter was intercepted by censors and interpreted as a threat of desertion. As punishment for that perceived threat, Breyer was transferred to another unit of the Totenkopf Sturmbann stationed at Auschwitz I, a slave labor camp in Poland. While there, Breyer maintained essentially the same responsibilities he held at Buchenwald. Breyer testified, and the District Court found, that he never harmed a prisoner at Buchenwald or Auschwitz. Id. at *9. He was aware, however, of the large-scale murder being committed at Auschwitz II, the nearby Nazi death camp.

During his time at the concentration camp, Breyer never attempted to transfer to another type of service or to a different unit. He did, however, request leave every week during his posting at Auschwitz. In April 1944, Franz Karmasin, head of the DP and Slovak State Secretary for Ethnic German Affairs, appealed to the Waffen SS for Breyer's permanent release from service, urging that Breyer was needed to tend to the family farm on account of his parents' illness. That appeal was denied, but Breyer was eventually granted temporary home leave in August 1944.

Upon expiration of his scheduled leave, Breyer did not return to Auschwitz — an act of desertion. Although he never stayed at home, Breyer remained in the vicinity, hiding in nearby barns and in the surrounding woods, until at least December 1944 when Slovak Volksdeutschen in Nova Lesna began to evacuate ahead of the advancing Soviet army.

Breyer fled the town and attempted to rejoin his unit at Auschwitz. The District Court found that Breyer had done so because he feared being discovered by the Germans and shot as a deserter. Id. at *11. En route, he was informed that the Soviets already had reached the camps at Auschwitz and that his unit was engaged in combat with the Soviet army on the eastern front. Breyer subsequently rejoined his unit near Berlin as a forward observer. Breyer was wounded in March, 1945, but returned to combat three weeks later. On May 3, 1945, his unit surrendered to the Soviet army, whereupon he was shipped to a prisoner-of-war camp in the Czech Republic. Following his release, Breyer reunited with his family in Bavaria.

Breyer lived in Germany until 1952, when he applied for a United States visa under the Displaced Persons Act of 1948, Pub.L. No. 80-774, 62 Stat. 1009, as amended by Pub.L. No. 81-555, 64 Stat. 219 (1950). In his visa application, Breyer acknowledged his membership in the Waffen SS, but did not disclose his participation in the Totenkopf Sturmbann. After initially rejecting his application, the Displaced Persons Commission certified Breyer eligible for a visa in March, 1952. He immigrated to the United States the same year. He later filed a petition for naturalization and was naturalized as a United States citizen in November, 1957.

II.

In 1992, the government filed an action to denaturalize Breyer because of his service as an armed SS guard at Buchenwald and Auschwitz. The government claimed that Breyer's citizenship was illegally procured, or procured by concealment or wilful misrepresentation. Breyer responded that he derived United States citizenship at birth through his mother who was born in Philadelphia, Pennsylvania. Even if the 1957 naturalization could be set aside, Breyer argued, he was still a citizen by birth.

At the time of Breyer's birth, derivative citizenship was governed by Section 1993 of the Revised Statutes of 1874. Act of Dec. 1, 1873, tit. 25, § 1993 (superseded by Immigration and Nationality Act of 1952 § 301(a), 8 U.S.C. § 1401(1994)). Under that statute, foreign-born children whose fathers were United States citizens at the time of their birth derived United States citizenship.³ The statute did not extend the same right of derivative citizenship to foreign-born children whose mothers were United States citizens. Breyer argued that the statute was unconstitutional as a violation of the Equal Protection Clause of the Fifth Amendment. He contended therefore, that he should be granted citizenship retroactively under the statute.

The District Court granted partial summary judgment for the government with respect to Breyer's denaturalization. United States v. Breyer, 829 F.Supp. 773, 779 (E.D.Pa.1993). But the District Court also determined that Section 1993 was unconstitutional on equal protection grounds. Id. at 781. At trial, the District Court found that Breyer's mother was born in the United States, and held that the appropriate remedy for the unconstitutionality of the statute was to retroactively grant Breyer United States citizenship. United States v. Breyer, 841 F.Supp. 679, 685-86 (E.D.Pa.1993). Nevertheless, the District Court refrained from granting citizenship after concluding that Breyer had failed to exhaust the required administrative...