U.S. v. Wittje, 04-3517.

• Decision Date: 01 September 2005
• Docket Number: No. 04-3517.,04-3517.
• Citation: 422 F.3d 479
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph WITTJE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

422 F.3d 479

UNITED STATES of America, Plaintiff-Appellee, v. Joseph WITTJE, Defendant-Appellant.

No. 04-3517.

United States Court of Appeals, Seventh Circuit.

Argued April 1, 2005.

Decided September 1, 2005.

COPYRIGHT MATERIAL OMITTED

Jeffrey L. Menkin (argued), Department of Justice Office of Special Investigations, Washington, DC, for Plaintiff-Appellee.

Joseph T. McGinness (argued), Cleveland, OH, for Defendant-Appellant.

Before EASTERBROOK, MANION, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge.

During World War II Joseph Wittje was a member of the Waffen SS, the paramilitary component of the Nazi Party. In 1950 he obtained a visa and entered this country. He became a citizen in 1959. He now appeals from a decision of the District Court for the Northern District of Illinois revoking his United States citizenship. We affirm.

I.

Joseph Wittje, an ethnic German, was born in 1920 and grew up in Deutsch St. Michael, an ethnic German enclave in Romania.¹ Prior to World War II, Wittje attended school until he was fourteen and then worked as a bricklayer.

Romania began World War II as a neutral state.² A period of political unrest in 1939 and 1940 that included the forced cession of Romanian territory to Hungary, Bulgaria, and the Soviet Union brought about political leaders who were strongly sympathetic to the Axis powers. By October 1940, several hundred thousand German troops had crossed into Romania. A month later, Romania joined the Tripartite Pact and became a member of the Axis.

In 1942, Wittje was drafted into the Romanian Army and took part in the invasion of Russia (Romania contributed a significant number of troops to the invasion of Russia). Wittje was wounded near Stalingrad and was eventually returned to his home in Romania. After recuperating from his wounds, in July 1943, Wittje was drafted by Germany pursuant to an agreement between Germany and Romania that permitted Germany to draft ethnic Germans living in Romania.

Wittje was not assigned to the German Army, the "Wehrmacht", but was instead assigned to the militarized branch of the Schutzstaffel (the "SS"), the Waffen SS (literally, the "armed SS"). The SS was the paramilitary component of the Nazi Party and was distinct from the Wehrmacht — it had its own command (including, for the bulk of its existence, one of the principal architects of the Holocaust, Heinrich Himmler). It also had a separate organizational structure, discipline, insignia, and uniforms. Originally conceived of as a cadre of bodyguards for Hitler (Schutzstaffel translates to "protection guard"), by the onset of World War II, the SS virtually controlled German state security (one of its principal offices was the Gestapo) and, most infamously, was responsible for the operation of the concentration camps. The SS was, therefore, ultimately charged with the responsibility for carrying out the "final solution" — the murder of the vast majority of European Jewry.³

Wittje's principal assignment during his service in the Waffen SS was to the 9th Company SS Death's Head Guard Battalion (Totenkopf-Wachbataillon) at the Sachsenhausen Concentration Camp ("Sachsenhausen").⁴ Sachsenhausen, located approximately twenty miles from Berlin, was one of the original Nazi concentration camps. From the mid-1930's (when the camp was constructed) to 1945 (when the camp was liberated by the Soviet Army), 200,000 people were imprisoned at the camp.

Prisoners at Sachsenhausen were forced to engage in slave labor including heavy construction and excavation work. Some prisoners were forced to test the durability of combat boots used by the Wehrmacht by wearing the boots on forced marches of thirty to forty miles in all weather. Prisoners at the camp were also farmed out to sub-camps, often near armaments plants to work in factories as part of the German war effort. The death of a prisoner at labor was of no consequence — prisoners were simply worked until they died ("annihilation through labor").

Conditions at the camp were hellish. Food was scarce and malnourishment and disease, including cholera and typhus, swept through the (often overcrowded) camp weakening and killing many. To the extent there was medical care, it often included ghoulish medical experiments subjecting the "patient" to extreme pain and often death.

Tens of thousands of prisoners were killed during the camp's operation. The life span for a prisoner was approximately three months. In addition to the death toll attributable to disease, exhaustion, starvation, and medical experiments, arbitrary executions were common. Guards would often beat or kill a prisoner for sport, sometimes using dogs turned loose on the prisoner. The camp also had a special facility for executing prisoners. Prisoners were taken one at a time to a room and told to undress for a medical examination. A "doctor" examined the prisoner's mouth under this pretense but really for the purpose of determining if the prisoner had any gold teeth that would be removed and melted down. Once the examination was over, prisoners were shot. The body was removed and the room was cleaned to remove all traces of the execution — and another "patient" was brought in.

Wittje was assigned to Sachsenhausen from 1943 to 1945. At all stages of this litigation, Wittje has acknowledged that he was stationed for this period of time at the SS barracks near Sachsenhausen and that this barracks is where camp guards lived. The parties differ, however, on Wittje's role at the camp. The United States claims he was a guard at the camp, while Wittje claims he was a member of a "track and field sports competition unit" stationed near the camp for part of the time he was stationed in the 9th Company. Wittje also claims that he was later assigned work as a bricklayer and helped construct air raid shelters and bunkers. Wittje claims he never set foot in the prison camp proper.

In February 1945, Wittje was transferred from the Death's Head Guard Battalion to the 32nd SS Armored Division, a recently formed combat unit sent to the Eastern Front as part of an attempt to stern the Russian advance. Wittje's service in this unit was brief. He was wounded in combat on March 2, 1945, and sent to a military hospital where he remained for the rest of March. He was discharged from the hospital on March 31, 1945, but apparently did not return to his unit or take further part in what little remained of the German war effort. Sometime after the conclusion of the war in 1945, Wittje traveled with his family to Wels, Austria where he worked for a construction company until 1950.

In February 1950, Wittje applied for a "nonpreference" immigrant quota visa to enter the United States at the United States consulate in Salzburg, Austria. Wittje based his claim for this type of visa on the fact that he was a "Volksdeutscher [an ethnic German]; born in Rumania." He listed his nationality as "stateless" and stated that he resided in Wels, Austria. In an area of the application that required the applicant to list his residences since turning fourteen years old, Wittje stated that he was in St. Michael, Rumania in 1943-1944, Haindorf, Germany in 1944-1945, and Wels, Austria from 1945 to the date of the application. Wittje did not mention his membership in the SS or his assignment to Sachsenhausen from 1943-1945.

Wittje's application was processed by Ralph McMahon, one of the two vice consuls in the Salzburg consulate assigned to review visa applications of ethnic Germans. McMahon approved Wittje's application the same day it was filed and Wittje, with his wife and son, traveled to, and arrived in, this country shortly thereafter.

Wittje settled in Chicago, and in 1959 applied for United States citizenship. The petition for naturalization Wittje completed required a petitioner to list his membership in any "organizations, clubs, or societies in the United States or in any other country . . . before the last 10 years." Wittje listed membership in a Roman Catholic youth organization. He did not mention his membership in Waffen SS. Wittje's petition was granted and he became a United States citizen on August 18, 1959.

On September 10, 2003, the United States filed a four-count complaint seeking to revoke Wittje's citizenship. The first count (and the only count at issue here) alleged that Wittje unlawfully procured a visa by failing to disclose his membership in a movement hostile to the United States — the Waffen SS.

At the conclusion of significant discovery (including the deposition testimony of Wittje), on June 18, 2004, the United States moved for summary judgment as to count one. Three days later, on June 21, Wittje moved to dismiss the complaint for lack of subject matter jurisdiction, failure to state a claim upon which relief may be granted, and on the ground that the United States's efforts to revoke his citizenship constituted a violation of his rights to due process and equal protection. The district court denied the motion and subsequently granted the United States's motion for summary judgment and revoked Wittje's Certificate of Naturalization. This appeal followed.

II.

Wittje raises three issues on appeal. First, he argues that the district court lacked the jurisdiction to reconsider a visa eligibility determination by consular officers. Second, he argues that denaturalization violates his constitutional right to equal protection. Third, he argues that the United States was not entitled to summary judgment because it was not entitled to judgment as a matter of law and there are genuine issues as to material facts.

A. Statutory Background

Section 340(a) of the Immigration and Nationality Act of 1952 (the "INA") directs the United States (acting through the United States Attorney in the appropriate district) to seek the revocation of a certificate of naturalization when that certificate was "illegally procured . . . ." 8 U.S.C. § 1451(a). In order to be eligible for a certificate of...