United States v. Kiros

• Decision Date: 31 December 1956
• Docket Number: Civ. A. No. 13924.
• Citation: 149 F. Supp. 730
• Parties: UNITED STATES of America, Plaintiff, v. George KIROS, also known as George Kiriakos, Defendant.
• Court: U.S. District Court — Western District of Michigan

149 F. Supp. 730

UNITED STATES of America, Plaintiff, v. George KIROS, also known as George Kiriakos, Defendant.

Civ. A. No. 13924.

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

December 31, 1956.

Fred W. Kaess, U. S. Atty., and Dwight K. Hamborsky, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

George W. Crockett, Jr., Goodman, Crockett, Eden & Robb, Detroit, Mich., for defendant.

KOSCINSKI, District Judge.

A complaint was filed in this denaturalization proceeding on November 17, 1954. Defendant filed an answer, a pretrial hearing was had at which certain agreements of counsel with reference to presentation of evidence were reached, and the matter was then placed on the trial docket. Defendant thereafter filed a substitution of counsel and a motion for leave to withdraw the answer and to file a motion to dismiss this proceeding for want of jurisdiction over the subject-matter on the ground, among others, that this proceeding was not instituted "upon an affidavit of good cause therefor" as required by Sec. 340 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1451(a). Defendant also moved to strike from the pre-trial order references to the agreements of counsel at the pre-trial.

The hearing on the motion to dismiss was adjourned from time to time, upon request of counsel, pending determination by the Supreme Court of the United States of the case of United States v. Zucca which raised the issue as to necessity of filing an affidavit of good cause in a denaturalization proceeding. After that case was decided, 351 U.S. 91, 76 S. Ct. 671, 100 L.Ed. 964, the motion to dismiss was heard.

No affidavit of good cause was filed up to the time of hearing on the motions but the complaint alleges, in paragraph 8 thereof, that good cause exists for the institution of this suit. At the opening of the hearing on the motions Government counsel orally moved for leave to amend paragraph 8 of the complaint to include an affidavit of good cause and to attach it to the complaint as Exhibit A. The affidavit which is dated prior to the date on which the suit was filed, was at that time submitted to the court for filing, with a request that the record show it was done before action on the motion to withdraw the answer. Defendant's counsel, who stated that he was familiar with the contents of the affidavit, strongly objected to the filing of the affidavit and also challenged its sufficiency. Government counsel made no objection to the granting of defendant's motion for leave to withdraw the answer and strike portions of the pre-trial order in order that defendant be given an opportunity to assert any meritorious defense he may have during trial or any objection to proceedings which could be raised by motion before trial. Defendant's motions to withdraw the answer and to strike portions of the pre-trial order were granted but the remaining motions, that of the Government for leave to amend the complaint and to file the affidavit and defendant's motion to dismiss, were taken under advisement and are under consideration here.

Both sides agree that under the denaturalization statute, as interpreted by the Supreme Court in the Zucca case, above cited, an affidavit of good cause must be filed in a denaturalization proceeding. Defendant also claims that the Zucca decision is authority for the proposition that the filing of the affidavit is a jurisdictional prerequisite to the institution of a denaturalization suit and that failure to meet such prerequisite, by filing the affidavit with the complaint, requires dismissal of the complaint. The Government, on the other hand, interprets the opinion as holding that failure to file the affidavit is not a jurisdictional but a procedural defect which may be cured by filing the affidavit after the complaint has been filed.

Defendant contends that, as applied to denaturalization proceedings, the affidavit requirement, in effect, constitutes an amendment to Rules 3 and 4(a) of the Federal Rules of Civil Procedure, 28 U.S. C.A., relating to commencement of civil suits and issuance of summonses; that no affidavit having been filed with the complaint, this action was not "commenced" by the mere filing of the complaint and the clerk had no authority to issue the summons; and that service upon defendant was invalid because it was not accompanied by a valid complaint. The Government claims that the procedural defect can be cured by filing of the affidavit at this time and that, even if failure to file it can be construed as a jurisdictional defect, which the Government denies, the Supreme Court has recognized the rule that the court has broad power to make such disposition of a case as justice requires and may allow even jurisdictional defects to be cured in a proper case.

Defendant places strong emphasis on the following portion of the Zucca opinion, 351 U.S. at page 100, 76 S.Ct. at page 677:

"We believe that, not only in some cases but in all cases, the District Attorney must, as a prerequisite to the initiation of such proceedings, file an affidavit showing good cause."

To support its contention the Government relies on repeated references, in other portions of the opinion, to the filing of the affidavit as "a procedural prerequisite to the maintenance" of a denaturalization proceeding.

As to defendant's contention that the affidavit requirement is an amendment to the rules, it is to be noted that this requirement was placed in the statute of 1906 and was incorporated in the same language into the 1940 and 1952 naturalization acts without Congressional comment. United States v. Zucca, D.C., 125 F.Supp. 551, 552. The Federal Rules of Civil Procedure came into effect some three decades later. Rule I provides that the rules govern procedure in all civil suits, at law or in equity with the exceptions stated in Rule 81. A suit to revoke citizenship is a civil action in equity to which the rules apply. United States v. Jerome, D.C.N.Y., 16 F. R.D. 137. In promulgating the rules the Supreme Court recognized exceptions, especially in matters governed by statutes, and insofar as proceedings to cancel certificates of citizenship are concerned, Rule 81(a) (6)...