Alata v. Dulles

• Decision Date: 27 January 1955
• Docket Number: No. 10957.,10957.
• Citation: 221 F.2d 52,95 US App. DC 182
• Parties: Salvatore ALATA, also known as Salvatore Alati, Appellant, v. John Foster DULLES, Secretary of State, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

95 US App. DC 182, 221 F.2d 52 (1955)

Salvatore ALATA, also known as Salvatore Alati, Appellant, v. John Foster DULLES, Secretary of State, Appellee.

No. 10957.

United States Court of Appeals, District of Columbia Circuit.

Argued December 8, 1954.

Decided January 27, 1955.

Mr. Jack Wasserman, Washington, D. C., for appellant.

Mr. Robert L. Toomey, Asst. U. S. Atty., Washington, D. C., with whom Messrs. Leo A. Rover, U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee. Mr. George Morris Fay, U. S. Atty., Washington, D. C., at the time the record was filed, and his successor as United States Atty., Mr. Charles M. Irelan, Washington, D. C., also entered appearances for appellee. Messrs. Joseph M. Howard, William R. Glendon and Willian J. Peck, Asst. U. S. Attys., Washington, D. C., at the time the record was filed, also entered appearances for appellee.

Before FAHY, WASHINGTON and DANAHER, Circuit Judges.

FAHY, Circuit Judge.

After a hearing the District Court dismissed the complaint of Salvatore Alata, a native born American who sought a declaratory judgment that he is a citizen of the United States. This the court denied on the ground that after induction into the Italian army in September, 1933, he took an oath of allegiance to the King of Italy, shown by the evidence to have been in December of the same year.¹

The applicable statute, Section 2 of the Expatriation Act of March 2, 1907,² provides,

"* * * any American citizen shall be deemed to have expatriated himself * * * when he has taken an oath of allegiance to any foreign state."

Alata became a citizen of the United States at his birth in New York City January 12, 1912. Perkins v. Elg, 307 U.S. 325, 328-329, 59 S.Ct. 884, 83 L.Ed. 1320. His parents were Italians and for that reason he was also a national of Italy under the law of that country. When about nine years of age, which would have placed the time in the neighborhood of 1921, he was taken by his parents to Italy and thenceforth resided there until he returned to the United States in 1949 on a certificate of identity to endeavor to establish his status as a citizen, § 503 of the Nationality Act of 1940.³

The court found that Alata had taken the oath of allegiance above referred to and concluded as matter of law that thus he expatriated himself. No mention is made in the findings as to the voluntary character of the oath. Alata points out that expatriation results only from a voluntary renunciation or abandonment of citizenship and contends that the evidence fails to establish such conduct on his part. The Secretary of State answers that since the evidence supports the finding that he took the expatriating oath the burden of offsetting its effect by showing it to have been involuntary was cast upon him and he failed to carry this burden.

We agree with the Secretary's position as to where the burden lay. As held in Pandolfo v. Acheson, 2 Cir., 202 F.2d 38, 40,

"* * * The plaintiff has the burden of proving that he is a United States citizen. He made a prima facie case by alleging and proving his birth in New York. The Government then had the burden of showing that he had expatriated himself. This it did by proof of his oath of allegiance to the King of Italy. Presumptively this oath was voluntarily taken. He then had the burden of going forward with evidence to establish that it was taken under duress."

This analysis seems contrary to the views expressed by the Court of Appeals for the Third Circuit in Lehmann v. Acheson, 206 F.2d 592, 598,⁴ and has not been previously adopted in a precise manner by this court. In Acheson v. Maenza, 92 U.S.App.D.C. 85, 91, 202 F.2d 453, 459, it might be thought we took a different view when we said that the Government had "failed to sustain the burden of proof" of the two alleged grounds of expatriation there involved. But there insofar as the oath of allegiance was concerned the primary issue of fact was whether the oath taken by plaintiff was an oath of allegiance at all, and not the voluntary character of a conceded oath of allegiance. 92 U.S.App.D.C. at pages 88-89, 202 F.2d at pages 456-457. If involuntary or under duress it does not deprive one of his American citizenship. Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 161 F.2d 860; Pandolfo v. Acheson, supra. Though proof of the involuntary nature of the act is upon the one who has performed it, Pandolfo v. Acheson, supra, the rule is strong that factual doubts are resolved in favor of citizenship. This is clear from our decision in Acheson v. Maenza, supra, 92 U.S.App.D.C. at page 88, 202 F.2d at page 456, and is supported by the great weight of authority; Dos Reis ex rel. Camara v. Nicolls, supra; Lehmann v. Acheson, supra; Podea v. Acheson, 2 Cir., 179 F.2d 306; Mandoli v. Acheson, 344 U.S. 133, 73 S.Ct. 135, 97 L.Ed. 146; Tomasicchio v. Acheson, D.C. D.C., 98 F.Supp. 166. We must apply these principles to the present case.

The 1933 entry of Alata into the military service of a foreign state was not then a statutory ground of expatriation.⁵ The question whether his induction was voluntary or not is important, however, because it bears upon the voluntary character of the oath he took pledging allegiance to the King as an incident of the service. In an affidavit which he made before the American Vice Consul at Palermo, Italy, March 6, 1935, he stated that he had not been informed he should protest his induction but had been told by the American Consulate that it was always possible for him to return to the United States after completion of the military service, which no doubt was true under the law as it then stood. The affidavit set forth that he "took the oath of allegeance sic in connection with military service". In the same affidavit Alata stated that he had applied for registration in 1928 and "my application was approved by the Department of State. I have always thought that in applying for registration I had done everything necessary to protect my American citizenship * * *."⁶ Moreover, the nature of the advice given to Alata at his first visit to the Consulate at Palermo, Italy, prior to his induction into military service was such as to discourage any attempts to avoid induction into military service and the consequent demand for an oath of allegiance. See Podea v. Acheson, supra.

On the trial Alata testified not only that he did not wish to go into the service, saying "it was against his will", but explained the circumstances of his oath taking. He said that when people were taken into the Italian army they were put together by squads or corps for training purposes. At one time they gathered together about 5,000. He was in the back and the colonel was reading some paper he did not understand because he was far away. There were no loud speakers or amplifying system and he did not know what was being talked about. He said the entire group was put at attention "and that is all there was to it." He also testified he had told the Consulate that when the oath was administered he merely kept his hands at his side and did not swear and that he had not entered...