Federici v. Miller, Civ. A. No. 7566.
| Decision Date | 21 September 1951 |
| Docket Number | Civ. A. No. 7566. |
| Citation | 99 F. Supp. 962 |
| Parties | FEDERICI v. MILLER, United States Commissioner of Immigration & Naturalition, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Harry S. Kalson, Pittsburgh, Pa., for the plaintiff.
Edward C. Boyle, U. S. Atty., Elliott W. Finkel, Sp. Asst. to the U. S. Atty., Pittsburgh, Pa., for the defendants.
Eleario Federici in a declaratory judgment action instituted pursuant to the provisions of the Act of October 14, 1940, c. 876, Title I, Subchap. V, § 503, 8 U.S.C.A. § 903, seeks judgment declaring him to be a United States citizen and national.
1. Eleario Federici was born in the Borough of German, Fayette County, Pennsylvania, on August 7, 1917, and claims a permanent residence at Uniontown, Pennsylvania.
2. The parents of Eleario Federici, who were Italian nationals, returned to Italy in May 1921, taking Eleario with them.
3. Eleario Federici continued to reside in Italy until 1948.
4. About March 15, 1941, Eleario Federici was inducted into the Italian Army and at that time he took an oath of allegiance to Italy.
5. He served in the Italian Army until on or about October 5, 1945.
6. He voluntarily accepted a commission as a First Lieutenant in the Italian Army and at that time voluntarily took the oath of allegiance to Italy.
7. Since the first action by a government agency was a certificate of the loss of the nationality of the United States as to Eleario Federici issued by a Vice Consul of the United States, and the refusal of a passport and the subsequent actions of the Immigration and Naturalization Service were predicated thereon, the Department of State, although not an original party defendant, subsequently entered its appearance as an additional defendant in order that there might be full disposition of the issue involved without any doubt existing as to the jurisdiction of this Court.
1. Jurisdiction of this action is in the United States District Court for the Western District of Pennsylvania under the provisions of 8 U.S.C.A. § 903.
2. Plaintiff's service in the armed forces of Italy as a commissioned officer was voluntary and resulted in his expatriation under the provisions of Section 401(c) of the Nationality Act of 1940, 8 U.S.C.A. § 801(c).
3. Plaintiff's oath of allegiance to Italy taken at the time of acceptance of an officer's commission in the Italian Army was voluntary and resulted in the expatriation of Eleario Federici under the provisions of Section 401(b) of the Nationality Act of 1940, 8 U.S.C.A. § 801(b).
4. Plaintiff's actions resulted in his expatriation and he is no longer a citizen or national of the United States of America.
It is, inter alia, provided by Section 401 of the Nationality Act of 1940, 8 U.S.C.A. § 801, that:
"A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
* * * * * *
Under the circumstances of this case it is unnecessary to consider the effect of his original induction into the Italian Army and the oath of allegiance taken at that time since there can be no doubt but that his acceptance of a commission as a First Lieutenant in the Italian Army was voluntary. His service thereafter as an officer was voluntary and the oath of allegiance then taken was voluntary and in the exercise of his own free will, in connection with and for the purpose of receiving such commission. It is fundamental that where the overt acts constituting renunciation of United States nationality are freely and...
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Petition of Kutay, 153025.
...§ 1481(a)(3); Bauer v. Clark, 7 Cir., 161 F.2d 397; Minoru Hamamoto v. Acheson, D.C.S.D.Cal., 98 F.Supp. 904, Byrne; Federici v. Miller, D.C.W.D. Pa., 99 F.Supp. 962. It seems to be only elementary fairness to require a person to render military assistance to only one country, and that such......
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