Moldoveanu v. Dulles, Civ. A. No. 15717.

• Decision Date: 10 November 1958
• Docket Number: Civ. A. No. 15717.
• Citation: 168 F. Supp. 1
• Parties: Thomas T. MOLDOVEANU, Plaintiff, v. John Foster DULLES, Secretary of State, Defendant.
• Court: U.S. District Court — Western District of Michigan

168 F. Supp. 1

Thomas T. MOLDOVEANU, Plaintiff, v. John Foster DULLES, Secretary of State, Defendant.

Civ. A. No. 15717.

United States District Court E. D. Michigan, S. D.

November 10, 1958.

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Hudson Mead, Burgess & Mead, Detroit, Mich., Harry Kobel, Detroit, Mich., of counsel, for plaintiff.

Fred W. Kaess, U. S. Atty., John L. Owen, Asst. U. S. Atty., Detroit, Mich., for defendant.

LEVIN, District Judge.

Petitioner, a citizen of the United States by birth, and a resident of this judicial district, having been denied a passport on the ground that he expatriated himself from United States citizenship, brings this action under the authority of Section 360(a) of the Immigration and Nationality Act of 1952; 8 U.S.C.A. § 1503(a),¹ praying for a judgment declaring him to be a national of the United States.

Plaintiff, on November 21, 1955, submitted an application for a United States passport to the State Department. In 1956 his application was denied on the ground that he had expatriated himself by taking an oath of allegiance to the Government of Rumania. Section 2 of the Act of March 2, 1907; 34 Stat. 1228; 8 U.S.C. § 17.²

The Government contends that in addition to the ground relied on by the State Department in denying a passport to plaintiff in 1956, the plaintiff has expatriated himself by voting in a foreign political election (Section 401(e) of the Nationality Act of 1940; 54 Stat. 1169; 8 U.S.C. § 801(e))³ and by failure to comply with Section 401(a) of the Nationality Act of 1940; 54 Stat. 1168-1169; 8 U.S.C. § 801;⁴ which provides for denationalization of a national who acquires foreign nationality through the naturalization of his parents and who did not return to the United States and take up residence as a citizen of the United States within two years after January 13, 1941, the effective date of the Act.

Plaintiff was born in Ohio on June 20, 1908. Some time in 1911 or 1912 he was taken by his parents to Sebesul-de-jos, Transylvania, the place of their birth. At the time of his arrival, this province was part of the Austro-Hungarian Empire but was ceded to Rumania at the conclusion of World War I. Between 1923 and 1926, before he attained his majority, plaintiff made inquiry at the United States Consulate at Bucharest about returning to the United States and was told that a minor would not be granted permission to return to the United States alone. In 1929, at the age of 21, plaintiff was informed by the Rumanian Government that he was being conscripted into the military service. He protested unsuccessfully that he was an American citizen and therefore not subject to military service of a foreign government. He also attempted to secure the aid and intervention of the American Consulate in order to return to the United States but was told by a consular official that nothing could be done for him since he had lived for so long a time in Rumania. He obtained several military deferments to permit him to continue his studies but was finally inducted into the Rumanian Army in 1932 and served until some time in 1933. A few months after he reported for duty, an oral oath of allegiance, the wording of which he had no recollection, was administered to him and to other recruits in a mass ceremony. In the summer of 1939 he again made inquiry of the American Consulate about securing a passport to return to the United States but was refused on the ground that he had expatriated himself by taking the oath of allegiance to the Rumanian Government while in service. On March 2, 1941 he participated in a Rumanian plebiscite held to permit the Rumanian nation to express its approval or disapproval of the manner in which General Antonescue had governed the country since September 6, 1940.

In 1939 he obtained a visitor's visa for entry into the United States in order to clarify his citizenship status and for business purposes. Shortly after his entry into the United States, World War II broke out and he returned to his family in Rumania without having accomplished either of his stated purposes. In 1941 and 1946 he again tried unsuccessfully to secure an American passport.

In 1948 he escaped from Rumania to France. On January 10, 1949 he entered the United States as a visitor with a French Certificate of Identity under Section 3(2) of the Immigration Act of 1924.^* Permanent residence was granted to plaintiff in 1952 by Concurrent Resolution of Congress,⁵ pursuant to the Displaced Persons Act of 1948, 50 U.S. C.A.Appendix, § 1953.⁶

In Nishikawa v. Dulles, 356 U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659, the Supreme Court held that when a citizenship claimant proves his birth in the United States, it then devolves upon the Government to prove any alleged expatriating acts by clear, convincing and unequivocal evidence, and that, in addition, whenever the voluntariness of the citizen's conduct is put in issue, the Government has the burden of showing by the same evidentiary standard that the alleged expatriating act or acts were performed voluntarily.

It is in this light that the evidence relating to petitioner's alleged expatriating acts must be evaluated.

I shall first consider the Government's contention that plaintiff expatriated himself under Section 2 of the Act of March 2, 1907 when he took the oath of allegiance to the Rumanian Government while in military service.

Under Rumanian law, in force at the time plaintiff was conscripted, all persons residing in Rumania between the ages of 19 to 47 were subject to military service and any attempt to avoid service was punishable. 3 Hackworth, Digest of International Law at page 190 (1942).

Plaintiff testified that he was aware that severe penalties were imposed upon those who sought to avoid military service; and, as appears earlier in this opinion, not only did he protest to the Rumanian authorities that as an American citizen he was not required to serve in the Rumanian army, but he also sought aid from the American Consulate in Bucharest. The Government offered no evidence in rebuttal but places its sole reliance upon the act of the oath taking. On the record before me I find that the plaintiff did not enter voluntarily the military service of Rumania.

Where military service in a foreign country is compulsory, the taking of the oath in connection therewith is also, in absence of evidence to the contrary, presumed to be involuntary. Augello v. Dulles, 2 Cir., 220 F.2d 344. There is no evidence to rebut the presumption that the oath of allegiance was taken under duress. To the extent that the Government relies on Section 2 of the Act of March 2, 1907 it must fail.

The Government's contention that expatriation took place under Section 401 (e) when plaintiff participated in the plebiscite of March 2, 1941 is also without merit. Section 401(e) provides two grounds for expatriation; namely, "voting in a political election" and "participating in an election or plebiscite to determine sovereignty over foreign territory." Since the plebiscite in which plaintiff participated did not involve a determination of sovereignty over foreign territory, the questions before me are whether plaintiff by participating in the plebiscite of March 2, 1941 voted in a political election, and, if he did, whether such participation was voluntary.

A political election may be defined as the act of choosing by vote a person to fill an office associated with the conduct of government; whereas, a plebiscite is "a vote or decree of the people (now usually by universal suffrage) or some measure submitted to them by some person or body having the initiative, as where the referendum is employed." Webster's New International Dictionary (Unabridged) 2d Ed. 1954. The drafters of Section 401(e) recognized this difference. When they desired to make participation in a plebiscite a basis for expatriation, they did so. In this context it is clear that participation in the plebiscite of March 2, 1941 did not constitute voting in a political election within the meaning of Section 401(e).

It is also to be noted that not only was no choice given to the electorate to vote for candidates for office, which is a prime requisite of a political election, but the professed opportunity given to approve or disapprove the policies of the Antonescue government was in reality nonexistent. Free expression of the will of the electorate was impossible. Meetings and speeches to discuss and evaluate the policies of the Government were prohibited. There was no provision for a secret ballot but the voters were to openly vote "Yes" or "No" before local commissions. Significant in this respect is the fact that but one tenth of one percent of the voters expressed their disapproval. The plebiscite was merely a device to secure coerced approbation of a course of conduct. It was not a political election.

Moreover, even if it be assumed that the plebiscite was a political election, plaintiff did not expatriate himself by participation in the plebiscite inasmuch as his participation was not voluntary. The plebiscite decree provided that "All Rumanians of any occupation who have attained the age of 21 are obliged to vote." (Article III) And added that the failure to vote would be "punished by five years of hard labor." (Article VII)

Plaintiff testified that he knew he was required to participate...