Polites v. United States

• Citation: 5 L.Ed.2d 173,364 U.S. 426,81 S.Ct. 202
• Decision Date: 21 November 1960
• Docket Number: No. 25,25
• Parties: Gus POLITES, Petitioner, v. UNITED STATES
• Court: United States Supreme Court

364 U.S. 426

81 S.Ct. 202

5 L.Ed.2d 173

Gus POLITES, Petitioner,

v UNITED STATES.

No. 25.

Argued Aug. 18, 1960.

Decided Nov. 21, 1960.

Mr. George W. Crockett, Jr., Detroit, Mich., for petitioner.

Mr. Charles Gordon for respondent.

Mr. Justice STEWART delivered the opinion of the Court.

Petitioner is a native of Greece who came to this country in 1916. In 1942 he became a naturalized citizen by decree of the United States District Court of Detroit, under the provisions of the Nationality Act of 1940.¹ In 1952 the United States brought proceedings under § 338(a) of the 1940 Act to revoke his citizenship.² These proceedings culminated in a judgment of denaturalization, D.C., 127 F.Supp. 768. An appeal from that judgment was docketed in the Court of Appeals for the Sixth Circuit. Subsequently, under circumstances to be related, counsel for the petitioner stipulated to dismissal of the appeal with prejudice, and the appeal was dismissed in accordance with the stipulatiom. Four years later the petitioner moved to vacate the judgment of denaturalization, relying upon Rule 60(b), Fed.Rules Civ.Proc., 28 U.S.C.A. ³ The District Court denied the motion, 24 F.R.D. 401, and the Court of Appeals affirmed, 272 F.2d 709. Certiorari was granted to consider the availability of Rule 60(b) relief in the circumstances here presented, 361 U.S. 958, 80 S.Ct. 594, 4 L.Ed.2d 541.

Section 305 of the Nationality Act of 1940 provided that no person should be eligible for naturalization who at any time within ten years preceding his application had been a member of any organization that advocated the overthrow by force or violence of the Government of the United States.⁴ The Government's complaint in the 1952 denaturalization proceedings charged that the petitioner's citizenship had been illegally procured because within ten years immediately preceding his application for naturalization he had been a member of the Communist Party of the United States, an organization which, it was alleged, advised, advocated, or taught the overthrow by force and violence of the Government of the United States.⁵

At the denaturalization hearing the petitioner, who was represented by counsel, testified that he had been a member of the Communist Party of the United States from 'around' 1931 until 1938. He stated that he had attended closed Party meetings about once a month, that he had been secretary of the 'Greek Fraction' of the Party in Detroit, and that he had left the Party in 1938 only because of a directive that all aliens resign from the Party at that time. Other witnesses described the petitioner as a 'high functionary' of the Party, who at closed meetings had advocated the overthrow of existing government by force and violence.⁶

Based upon this and other testimony, the District Court found that the Government had proved by clear, unequivocal, and convincing evidence that the petitioner had been a member of the Communist Party of the United States within the statutory period, and that the Party was an organization which 'was then advising, advocating or teaching forcible or violent overthrow of this government.' 127 F.Supp. at page 770. Accordingly, the court held that the petitioner had illegally procured his citizenship, because he had not been eligible to become a citizen at the time his certificate of naturalization was issued.⁷ A judgment cancelling the petitioner's citizenship was entered, 127 F.Supp. 768, 770—772.⁸

From this judgment the petitioner promptly appealed to the United States Court of Appeals for the Sixth Circuit. At the time there were pending in that court appeals from three other denaturalization judgments by the same District Court. United States v. Sweet, 106 F.Supp. 634; United States v. Chomiak, 108 F.Supp. 527; and United States v. Charnowola, 109 F.Supp. 810. Petitioner's counsel appeared and argued for the appellants in each of those three cases. Before the petitioner's brief was due, the Court of Appeals affirmed the judgments in all three of them, 6 Cir., 211 F.2d 118. The petitioner thereafter obtained an extension of time for filing briefs on the appeal of his case until thirty days after disposition by this Court of petitioner for certiorari filed in the other three cases. When those petitions for certiorari were denied, 348 U.S. 817, 75 S.Ct. 28, 99 L.Ed. 644, the petitioner by his counsel stipulated in the Court of Appeals that his appeal should be dismissed with prejudice, and the appeal was dismissed on November 10, 1954.

On August 6, 1958, the petitioner filed his motion under Rule 60(b)(5) and (6) to set aside the 1953 denaturalization decree. The ground for the motion, supported by an affidavit of counsel, was that in the light of this Court's opinions in two cases which had recently been decided, Nowak v. United States, 356 U.S. 660, 78 S.Ct. 955, 2 L.Ed.2d 1048, and Maisenberg v. United States, 356 U.S. 670, 78 S.Ct. 960, 2 L.Ed.2d 1056, 'it now appears that the * * * judgment of cancellation is voidable' and 'that it is no longer equitable that said judgment should have prospective application.' In denying the motion the District Court held that the Nowak and Maisenberg decisions 'do not as contended by Polites clearly control the instant case warranting relief from judgment,' (24 F.R.D. 403) and that, in any event, the doctrine of Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207, precludes reopening a judgment under Rule 60(b) where the movant has voluntarily abandoned his appeal, and the only ground for the motion to reopen is an asserted later change in the judicial view of applicable law. 24 F.R.D. 401. The Court of Appeals affirmed 'for the reasons set forth' by the District Court, 272 F.2d 709.

It is the contention of the Government that the 'instant case is squarely controlled by the decision of this Court in Ackermann v. United States, 340 U.S. 193 (71 S.Ct. 209, 95 L.Ed. 207), that a freely made decision not to appeal a denaturalization judgment may not be excused by permitting recourse to Rule 60(b)(6) as a substitute for appeal.' In that case Mr. and Mrs. Ackermann and a relative, Keilbar, had been denaturalized after a joint hearing. Keilbar appealed. The Ackermanns did not. On appeal the judgment of denaturalization against Keilbar was reversed upon a stipulation by the Government that the evidence was insufficient to support it. Keilbar v. United States, 5 Cir., 144 F.2d 866. The Ackermanns thereafter filed a motion under Rule 60(b) to vacate the denaturalization judgments against them. They alleged that they had failed to appeal from the judgments because of financial inability and in reliance upon the advice of a government official whom they trusted, the official who was in charge of the detention camp in which they had been placed following their denaturalization. After reviewing these allegations the Court held that the District Court has been correct in denying the motion to reopen the judgments, holding that '(s)ubsection 6 of Rule 60(b) has no application to the situation of petitioner.' 340 U.S. at page 202, 71 S.Ct. at page 213.

What the Court said in Ackermann is of obvious relevance here:

'Petitioner made a considered choice not to appeal, apparently because he did not feel that an appeal would prove to be worth what he thought was a required sacrifice of his home. His choice was a risk, but calculated and deliberate and such as follows a free choice. Petitioner cannot be relieved of such a choice because hindsight seems to indicate to him that his decision not to appeal was probably wrong, considering the outcome of the Keilbar case. There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from.' 340 U.S. at page 198, 71 S.Ct. at page 211.

In the present case it is not claimed that the decision not to appeal was anything but 'free, calculated, and deliberate.' Indeed, there is not even an indication in this case, as there was in ackermann, that the choice was influenced by reliance upon the advice of a government officer. The only claim is that upon the advice of the petitioner's own counsel the appeal was abandoned because there seemed at the time small likelihood of its success, and that some four years later the applicable law was 'clarified' in the petitioner's favor.

Despite the relevant and persuasive force of Ackermann, however, we need not go so far here as to decide that when an appeal has been abandoned or not taken because of a clearly applicable adverse rule of law, relief under Rule 60(b) is inflexibly to be withheld when there has later been a clear and authoritative change in governing law. The fact of the matter is that that situation is not presented by this case. Without assaying by hindsight how hopeless the prospects of the petitioner's appeal may have appeared at the time it was abandoned,⁹ it is clear that the later decisions of this Court upon which his motion to vacate relied did not in fact work the controlling change in the governing law which he asserted. The decisions in question are Nowak v. United States, 356 U.S. 660, 78 S.Ct. 955, 2 L.Ed.2d 1048, and Maisenberg v. United States, 356 U.S. 670, 78 S.Ct. 960, 2 L.Ed.2d 1056.

Petitioner contends that the Nowak and Maisenberg decisions reject the grounds relied upon by the District Court in revoking petitioner's citzenship in 1953. In the petitioner's denaturalization proceeding, the court held that a charge of illegal procurement of citzenship under the Nationality Act of 1940 could be sustained by clear, unequivocal and convincing evidence that (a) petitioner had been a member of the Communist Party within ten years immediately preceding the day he filed his citizen- ship application, and (b) the Communist Party had advised, advocated, or munist Party had advised, advocated, or taught overthrow of the Government by force or violence during that period. Petitioner claims that this interpretation of the statute...