Podea v. Acheson, 100

• Decision Date: 10 January 1950
• Docket Number: Docket 21475.,No. 100,100
• Citation: 179 F.2d 306
• Parties: PODEA v. ACHESON, Secretary of State of United States.
• Court: U.S. Court of Appeals — Second Circuit

179 F.2d 306 (1950)

PODEA v. ACHESON, Secretary of State of United States.

No. 100, Docket 21475.

United States Court of Appeals Second Circuit.

Argued December 14, 1949.

Decided January 10, 1950.

John W. Burke, Jr., New York City, attorney for Titus Livius Podea, Plaintiff-Appellant; Ralph C. Busser, Philadelphia, Pa., and William T. Love, Jr., New York City, Counsel.

J. Vincent Keogh, United States Attorney, Brooklyn, N. Y., for Dean Acheson, as Secretary of State of the United States of America, Defendant-Appellee; Nathan Borock, Assistant United States Attorney, Brooklyn, N. Y., Counsel.

Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The plaintiff brought this action under Section 503 of the Nationality Act of 1940, which provides as follows:

"If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States. If such person is outside the United States and shall have instituted such an action in court, he may, upon submission of a sworn application showing that the claim of nationality presented in such action is made in good faith and has a substantial basis, obtain from a diplomatic or consular officer of the United States in the foreign country in which he is residing a certificate of identity stating that his nationality status is pending before the court, and may be admitted to the United States with such certificate upon the condition that he shall be subject to deportation in case it shall be decided by the court that he is not a national of the United States. Such certificate of identity shall not be denied solely on the ground that such person has lost a status previously had or acquired as a national of the United States; and from any denial of an application for such certificate the applicant shall be entitled to an appeal to the Secretary of State, who, if he approves the denial, shall state in writing the reasons for his decision. The Secretary of State, with approval of the Attorney General, shall prescribe rules and regulations for the issuance of certificates of identity as above provided." 54 Stat. 1171, 8 U.S. C.A. § 903.

The trial judge dismissed the complaint on the ground that the plaintiff, though born a citizen of the United States, voluntarily expatriated himself and for that reason was not entitled to the judgment which he seeks, under Section 503, supra, declaring him to be a citizen. We hold that the decision that he voluntarily expatriated himself was erroneous and that the judgment must, therefore, be reversed.

Section 401 of the Nationality Act of 1940 further provided as follows:

"§ 401. 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; * * *." 54 Stat. 1168, 1169, 8 U.S.C.A. § 801.

The Nationality Act first went into effect January 13, 1941, but the Act of 1907 was in effect during most of the time embraced in the case at bar.

It was provided in Chapter 2534 of the Act of 1907, 34 Stat. 1228:

"Sec. 2. That any American citizen shall be deemed to have expatriated himself * * * when he has taken an oath of allegiance to any foreign state."

The provisions of the Nationality Act which we have quoted above were in part reenactments of the Act of 1907 which we have referred to.

The question before us is whether Podea, a native-born citizen of the United States, expatriated himself by reason of his conscription into a foreign army and consequent taking of an oath of allegiance to a foreign sovereign.

Podea was born in Youngstown, Ohio, on September 12, 1912. His parents had emigrated to America from Austria-Hungary but had remained citizens of that country. In 1921 they returned to the Province of Transylvania in Roumania, the place of their origin, and brought their son with them. While in Ohio he attended the Youngstown public schools and on his removal to Roumania with his parents went to a high school there and later graduated from the University of Cluj. In 1934 he was ordered by the Roumanian military authorities to appear for registration. After registration he received a two years deferment of induction on the ground that he wished to finish his studies. In July 1931 he applied to the American Consul at Bucharest for a passport to the United States, took the oath of allegiance, stated in his application that since July 1921 he had temporarily resided in Roumania for the purpose of obtaining an education but intended to return to the United States within one year and a half to live there permanently. At the time of this application he had already been registered by the Roumanian...