Lehmann v. Acheson, 11035.

• Decision Date: 29 July 1953
• Docket Number: No. 11035.,11035.
• Citation: 206 F.2d 592
• Parties: LEHMANN v. ACHESON.
• Court: U.S. Court of Appeals — Third Circuit

206 F.2d 592 (1953)

LEHMANN v. ACHESON.

No. 11035.

United States Court of Appeals Third Circuit.

Argued June 17, 1953.

Decided July 29, 1953.

Henry A. Craig, Philadelphia, Pa. (Owen F. McLane, Philadelphia, Pa., on the brief), for appellant.

Morton M. Fine, Asst. U. S. Atty., Philadelphia, Pa. (Joseph G. Hildenberger, U. S. Atty., Philadelphia, Pa., on the brief), for appellee.

Before MARIS, McLAUGHLIN and KALODNER, Circuit Judges.

KALODNER, Circuit Judge.

The question presented by this appeal is whether plaintiff below, Albert Hermann Lehmann, a native-born citizen of the United States, expatriated himself by reason of his conscription into a foreign army and incidental taking of an oath of allegiance to a foreign sovereign.¹

The District Court found as a fact² that expatriation had taken place. With respect to that finding 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 facts³ 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.⁴

Our problem then, in short, is to determine whether the evidence on which the District Court premised its ultimate finding of fact of expatriation measures up to the applicable legal standard of proof.

The pattern of this case is not unfamiliar to the courts. In its broad aspects it presents a situation where a young man who was born in the United States of Swiss parentage and by virtue of that fact acquired dual nationality under the laws of the United States and Switzerland, was conscripted into the Swiss Army in accordance wih its laws and as a result was ruled to have suffered loss of his American citizenship under the provisions of Section 401 of the Nationality Act of 1940, 8 U.S.C.A. § 801.

Section 401 of the Nationality Act of 1940 provides as follows:

"A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:

* * * * * *

"(b) Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state; or

"(c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state; * * *."

"Expatriation is a voluntary renunciation or abandonment of nationality and allegiance." Perkins v. Elg, 1939, 307 U.S. 325, 334, 59 S.Ct. 884, 889, 83 L.Ed. 1320.

Conscription into the Army of a foreign government of one holding dual citizenship is sufficient to establish prima facie that his entry and service were involuntary. Perri v. Dulles, 3 Cir., 206 F. 2d 586.

It is well settled that expatriation under Sec. 401(c) is "limited to cases where the induction into the foreign military service may be said to have been voluntary." Dos Reis v. Nicolls, 1 Cir., 1947, 161 F.2d 860, 861; Podea v. Acheson, 2 Cir., 1950, 179 F.2d 306; Pandolfo v. Acheson, 2 Cir., 1953, 202 F.2d 38; Cf. Tomaya Kawakita v. United States, 1952, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249.⁵

In Doreau v. Marshall, 3 Cir., 1948, 170 F.2d 721, 723 we held, in construing the provisions of Sec. 401, that "the very essence of expatriation is that it be voluntary".

Having in mind these principles, we turn to an examination of the record in this case.

Lehmann was born June 2, 1921, in Philadelphia, Pennsylvania of parents who were Swiss nationals, thereby acquiring dual nationality under the laws of the United States and of Switzerland. In 1924, at the age of three years, he was taken by his mother to live in Switzerland, his father continuing to reside in the United States. The father was naturalized in Philadelphia some four years later, in 1928.

In 1939 when Lehmann was 18 years of age, he registered, in response to a summons, for service in the Swiss Army under the compulsory military service laws of that country. Had he ignored the summons to register he would have been subject to penal punishment under Swiss laws.

At the time (in 1939) Lehmann told the Swiss military authorities "I was born in the United States". In response to the question (on cross-examination) "Did you at that time make any protest whatsoever over your registration?" Lehmann answered "No, I didn't, not a formal protest, no." He made no further objection to his registration.

Early in 1941, several months before he was actually inducted into the Swiss Army, Lehmann went to the American consulate in Basel, Switzerland, where he was then resident, and "asked if there would be any way of getting to the United States, because I wanted to join the Air Force at that time." He was told that "due to the conditions of Europe, Switzerland was isolated more or less⁶ * * * so I would have to do it on my own * * * he (the consulate official) couldn't possibly give me any assistance"; "no American consulate abroad dares recruit any soldiers, I would have to try to get to New York to enlist." He was also told "We don't enlist anybody here in the consulate." Lehmann also told the consulate "I am a United States citizen" but was unable to present a birth certificate since his mother "didn't know where it was either." (The birth certificate was later found amongst some papers). Further, Lehmann advised the consulate official "I have to go into the Army" (Swiss Army) and was told in reply "Well, I can't help you. You are on your own." He didn't specifically ask for help nor did he register as an American citizen. (There was no mention made of registration at this visit to the consulate.)

In July, 1941, several months after his visit to the American consulate, Lehmann, then 20 years old, was conscripted into the Swiss Army. He took an oath of allegiance to Switzerland several months later in November, 1941. At various intervals, during 1941, through 1945, and in 1947, Lehmann served a total of 511 days in the Swiss Army.

At the conclusion of World War II, desirous of visiting his father in America, Lehmann addressed a letter to the American consulate, dated December 10, 1945, inquiring under what conditions he could obtain a visa to the United States. He was advised that he had forfeited citizenship by serving in the Swiss Army, and therefore could not obtain a visa. In order to facilitate getting a visa, on April 17, 1946, he was issued a Certificate of Loss of Nationality of the United States by the American Vice Consul at Basel.⁷ He made no further efforts to come to the United States until 1948. He testified that because of his mother's illness he would not have returned to the United States while she lived.

On June 1, 1948, after his mother had died, Lehmann executed a preliminary application for a non-immigrant visa, stating therein that the purpose of his trip to the United States was to visit his father for four months and listing his nationality as Swiss. A non-immigrant visa was accordingly issued and in August of 1948 he came to the United States for the apparent purpose of visiting his father. He first filed an application to regain his American citizenship but withdrew it and then instituted the declaratory judgment proceeding now under review.

The facts above recited are not in dispute. The controversy hinges on the single issue as to whether they established voluntariness or involuntariness with respect to Lehmann's service in the Swiss Army and his concomitant oath of allegiance to Switzerland.

Lehmann contends that the record established involuntariness; the Government disputes that contention.

Lehmann testified, in the District Court proceedings, that he only served in the Swiss Army because he was conscripted under Swiss law and would have been subjected to "penal sanctions" under that law had he refused to serve; his service was "compulsory" and "involuntary"; and he "had no option to do otherwise."

He also produced testimony in the form of a letter from the Swiss Consul in Philadelphia, Pennsylvania supporting his contention that his service in the Swiss Army was "compulsory" under Swiss laws. The letter stated that under the latter Lehmann "was under compulsion to comply with the order of mobilization" and that "the military status of dual citizens, i. e. of both the United States and Switzerland, is determined by the Convention between these two countries of November 11, 1937."

The Convention, published at 53 Stat. 1791, corroborates this statement in the Swiss Consul's letter and clearly establishes the authority of Switzerland to conscript Lehmann.

On the record as stated the District Court was of the opinion that "from all the evidence in this case Albert Hermann Lehmann has failed to establish by a fair preponderance of the evidence that his oath of allegiance to Switzerland and service in the Swiss Army were involuntary" and accordingly made the ultimate fact finding, earlier noted, that Lehmann had "expatriated himself from United States citizenship by service in a foreign army and by taking an oath of allegiance to Switzerland * * *."

An analysis of the District Court's opinion discloses that its determination was premised on acts of omission, rather than commission, on the part of Lehmann with repect to his service in the Swiss Army and attending circumstances.

The omissions enumerated in the opinion were:

(1) On his 1941 visit to the American consulate in Basel, Lehmann failed to furnish proof of his birth in the United States and failed to inquire how he could establish his American birth.

(2) On that same visit he did not ask specifically for the protection of the American consulate and expressed no desire to register as an American citizen.

(3) He did not protest at the time he entered the Swiss Army or at the time he took the oath of allegiance.

With respect to these "omissions" it need only be said that they were utterly irrelevant to the critical issue of "voluntar...