Brief for the United States in Opposition — Klapprott v. United States

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INDEX: - |

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Opinions below | : - ners ee ]

Jurisdiction. oe tle : ek he eo 1

Questions presented. : Sree ; { ag

Statutes and -rules involved Bee * 2

Statement. grees : : 4

.Argument .... o>. =. es ae te.

Conelusion . | } oer ore | Se.

* CITATIONS .

Cases:

” Cétézens Protective League v. Clark, 155-F. 2d 290, certi-

orari denied, 329 ‘U.S. 787 ~ 6

Keegan Vv. United States, 325 U: 8.478 . 5

' United States vy. Borchers, a F. Pd. 347, certiorari,

denied, 332 U.S. 811 ae - 10,11

» United States v. Kuhn, 49 F.Supp. 407 - 5 . +

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| Statutes and Rules:

(See, 338 of the’ Nationality Act of 1940, e. 876, 54 Stat.

7 1137, 1158, 8 U. S.C. 738:

| (a) | . ; : PN 3 9 .

| b) | pew ite a

(b) b . a

’ rae a

\ eat Jee 5 ( 1

: Federal Rules| of Civil P recedure: a f

- ‘ be ° e a

Rule 55(b) (2): é ree - a, 31

Rule 60(b) . is eee Sar ee 3°°

Rule 60 (b) as amended, 329 U.S. 863 | %s ’ ee.

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Satie Sapreme eof the nite Piaies

Oc TUBER TE kM, 3,

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. AvGuUST KLAPPROTT, PETITIONER

v. ¥ ~

United States OF AMERICA

Pee < O

ON PETITION FOR A WRIT OF CERNORARI TO THE

UNITED STATES CIRCUIT COURT. OF .APPEALS FOR | e

THE THIRD peepee ae | a

BRIEF FOR THE UNITED STATES IN OPPOSITION

re OPINIONS BELOW SUE |

The opinions -in the circuit court of irppeals”

(R. 32-40), are reported at’ 166 F.2d 273. _The.

_ opinion of the district court AK. 21 -25) is reported

Jat OBR. D. 450, | ae

: JURISDICTION

The. nee of the cireuit court of appeals

“Was e ntered January 12. 148 (CR. 41). The petition

on

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for a writ of certiorari was tiled April 10, 1948.

The jurisdiction of this Court is ‘invoked. under

Section 240 (a) of the J udicial Code, as amended by

the Act of February 1321925, | |

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‘a QUESTIONS PRESENTED 3 ;.

1. Whether, in the circumstanees of this case.

-the district éourt properly denied petitioner's

motion to vacate a judgment of dehaturalization

entered by default four and one-half years earlier.

2. Whether a defendant who dias deliberately:

defaulted itt a denaturalization proceeding is ein-

. titled as of right te have counsel appointed for him

“and to he present. in court béfore wa judgment is

entered. a

3. Whether a judgment of denaturalization may —

be entered by default without a hearing.

es STATUTES AND RULES INVOLVED

Section 338 of the Nationality Act of 1940, ©. 876,

of Stat. 1137, 1158,8 U.S. C. 738, provides:

» (a) It shall be the duty of the United States

district attorneys for the respective districts,

upon affidavit showing good cause therefor, to

institute proceedings in‘any court specified in

» subsection Xa) of section 301 in the judicial —

district in which the naturalized. citizen. may.

_ reside at the time of bringing suit, forthe pur-

pose of revoking and setting aside the order “

admitting such person to eitizenship.and ean-

eeling the certificate of naturalvation on the

‘ground ef fraud or on thie ground that such

order And certificate of. naturalization wert

iegally procured. . - :

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~(b) The party to whom was granted the

naturalization alleged to have heen fraudu-

lently or illegally procured sHall, in any such

proceedings under subsection (a) of this see-

tion, have sixty days” personal notice in which

to make’ answer to the petition of the’ United

States; and if such’ naturalized’ person be

absent from the United States or from. the —— -

_ “jndicial district in which such person last had

+ his residence, such noticesshall be given hy

publication. in*the manner provided for the.

service. of*summons by publication or upon:

absentees by the laws of the State:or the:

place where suc ‘h suit is brought.

ta 55(h)-(2) of the Federak Rules ny 5 vil -

Precedure provides in part :

/.% © -*" Tt the party. against whom judg: ages

ment-by default is sought haS appeared Indhe .

action, he (or, if appearing by, representa-

- tive, his representative) shall he served with

’ written notic ‘ec of the application for judgment

at least 3 days prior to the hearing on such

application. Tf, in order to enable the court to

enter judgment or to carry it into effect, it is

necessary to take an account or to determine

the amount of damages or to “establish the

'. .truth of any averment by evidence or to make

an investigation of any other matter, the court

may conduct such hearings or order such ref-

erencesias, it deems nec essary and proper anil

shall accord a right of trial by jury to the

_ parties when and as required by any statute

-. of the U nited States. :

Rule 60(b) ‘of the Fede ‘al Rules of Civil Pre-

cedure, prior to its recent amendme nt, provided :

»

_ On motion the court, upon sek terms ws

are just, may reliey ve a party or his legal re P-

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resentative from a judgment, order, or pro-

ceeding taken against him through his mistake,

inadvertence, surprise, er exe arsable neglect.

The nfotion shall be made withitt a reasonable

‘ time, but in ne case exceeding six months after

‘such judgment, order, or proceeding was taken.

A motior under this subdivision dves> not

affect the Tinality of a judgment or suspend

% _ ifs operation: This rule-do6es not Timit the

power of a court (1) to‘entertain anm-action

tu relieve a party: froma judgment, order, or

procéeding, or (2) to set aside within one.vear,

as provided in Section. 57 of the Judicial

Code, U.S. €., Title 28, § 118, a-judgment ob-

tained against a defendant not actaany per-

sonally notified. ie eee

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STATEMENT

In wes 1942, the United States commerce d pros

ceedings i in the United States District Court forthe.

District of New Jersey pursuant to Section 338

of the Naturalization” Act to cancel petitioner's

certificate of naturalization on the ground that he.

liad taken a false oatlr of allegiane eo (R. 2-69. A

summons -was personally served on petitioner on

May 13, 1942 (R. 1:) When petitioner failed to

make his appyirance within .the 60-day. period

_fixed_by the statute, supra, judgment by default

was entered ; against himonJaly 17, 1942 (R. 7).

Four and a half years later, in January 1947,

petitioner moved in the district court to vacate

‘the judgment of denaturalization (Rh. 9-20). In

an affidavit submitted’ in support ‘of the petition,

“he 3 alleged that at the time he was served with the.

summons on May 15, 1942. he was in ill health, and

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was recuperating at the German-American Bund.

r camp, known as Camp Nordland, and that because.

of his poor health and sttaitened’ finane ial cireum-

stances, he was ‘unable to obtain an attorney. (R.

15). On July 7 , 1942, eight days before the ex- “

piration. of his time to answer or othe rwise move.”

in the denaturalization. proceedings, he wa’ ar-

_rested under an; indictment. returned against him

and other Bund leaders in the Unite ‘d: States

District Court for the Southern District of New:

York charging ¢ conspiracy to violate tlie Selective

Service Act. Petitioner. alleged that at the time he

was drrested, -he- had in his possession a letter

- addressed to the American Civil Liberties Union in’

New: ‘York requesting legal assistance, that the

“letter was taken from him at the time of his ar-

rest, and that he did not-know what had become of

it. _(R. 15-16.) | He also alleged.that-the attorney

who was appointed to defend him i in the New York:

conspiracy ¢ ase promised to look into the denatural- .

ization proceedings; but that the attorney failed to

~ do so (R.'16), He further alleged that.from the’

\ time of his arrest in July 1942 until November 1946

he was in constant custody under ‘the indictment

and convietion an the conspiracy charge, (sithse- os, -

quently, reversed by.this Court, Keegan v. United —

States, 325.0, S, 478), and in connection with the |

sedition trial in the District of Coltmbia ; that after

his release on the crimifial charges, he was taken — -

into custody: for deportation ‘and confined aut Mllis

Island (Rt. 16-17). He further stated that in July

1945, he and a number of other persons soughit> -

‘ an Injunction against possible deportatign, brat. .

that such relief was denied (RW). (See ‘iti: Cus

Protective League v. ¢ lark, Iho I , 2d 290 (Ayyp.

D.:C.), certiorari denied, 029 USS. 787.) He as-

_ serted that, because of these ¢ ire tnstances, he Jiad

- been unable to defe nd the -denaturalization pro:

ceedings, aind he denieil: the truth of the allega-

o tions in the. complaint. for denatur alization (CR.

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its opinion, the court stated that from petitioner's

own affidavit it appeared that his default was im:

Initable to his own wilful and inexcusable neglect,

but that even on the contrary assumption, Rule.

60(b) of the Federal Rules of Civil Procedure

rendered, the court withouit power to open peti-

——tioner’s default more than six months after entry

; of the judgment (R. 21-22), Tr eating the petition

as a bill of review, the distriet court held that

‘petitioner had show n ne grounds for such relief,

since he could point to no error on the face of the

_record and no new facts affecting the decreaawhich

distriet court also he ‘Id that petitione Ps delay’ in

: seeking relief from the judgment was imputable

| entirely to his wilful neglect, and that his petition

should be dismissed on the: — of. laches CK.

24): The court said (RR. 24-2

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It is our opinion that the de fe nel-

ant’s. initiation of this actionat this late date -

The district court denied the motion Ch. 26). In

would. warr rant.its bei ‘ing set. aside. 4R, 22-23-- The

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» Was not prompted hy: uny desire to assume the

‘duties of eitize uship: but by a recent realiza-

2 tion of: thes serious ‘ consequences’ attendant

upon the loss of its privileges. "Mie defend-.

ant’s motives should not, and do not. influence:

our ultimate decision, but we have thought it

Well to Qamine his tenuous exeuses for delay

_ in their Iyht.. th

« On appeal, ‘the order of the district court Wis”

_afirmed: (R. 41),-one judge relying primarily on

the absence of jurisdiction, although also noting

the lack of equity in petitioner's applic ation (R.

32-399¢ one judge relying primarily On. laches ?

aaah 39- 40), and one judge disse ‘nting Ch. 40),

ARGUMENT ~

1. Despite his present protestations to the cone.

trary, it is clear’ thitt petitioner's ‘default_in the—

‘aization proceedings was wilful and de-*. -

libe vate, By his Own account, at the time of his

arrest on the New York cons spiracy indictment,

2 days after he had been personally served with |

me sumnions, and only cigit days before his time

to-answer expired, he had taken no ) steps what- _—

soeve ver to secure-representation in the de naturaliza-

tion proceedings, _As to the alleged letter which

he was preparing: te send to the American Civil

> Liberties Union at the time of his arrest, it:

——signifieant that petitioner makes no allegation that |

he attempted to discover What happened to that.

letter, or that he: attempted toe ommunicate further

with that organization,

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Furthermore, it is elear that petitioner lias

offered no ‘valid excuse for failing to move more

promptly after the entry of judgment. His in-

‘arceration on the criminal charges would net

have prevented him’ from secking assistance. “As

a matter of fact, a number of petitioner's co-de- .

fendants in the Selective Service conspiracy case

- were actively ¢efending denaturalization proceed-

ings (see United States v. Kuhn,-49 F. Supp.

407 (S.. D. Ni Y.), decided March 18, 1943),' and

it seems unlikely that petitioner would have heer |

unwiare of such fact. Admittedly, petitioner had

counsel appointed for him in the conspiracy ease,

* and thus knew of the practice of courts to assign

counsel fow indigent defendants. It is significant |

~ that he made no attempt to seck assistance of coun--

sel from the District Cqurt for the District of New

Jersey. In- addition, as noted in the concurring

opinion of Judge O’Connell, petitioner was-able

to obtain.counsel in an attempt to prevent possible

deportation in 1945, while held on the sedition i in-

dictment, and’ was able to institute the instant pro-

3 ceedings after certiorari had been denied in that

. Selective Service charge i in June 4943 (R. 16). ee

case. His custody war, therefor e, nota barrier to

obtaining legal assistance as he mew Asse rts it to”

have been, sO or ga

-Manifestly, therefore, petitioner’s default and

aataeeas inaction were wilftl and -deliberate.

1 Petitioner states that jhe began service of his sentence om the

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relief fro,

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The re is ample justific ation for the. cone ‘lusion of

ou the district court and of the: majority of the court

helow that petitioner was enilty of laches,” “Jt seems

‘clear that the defeat of Germany, rather than any

> inability te take prier action, prompted petition-

er’s present motion. ee: |

Assuming, therefor @, that the dist rict court had

power to vaeate the judgment four and a half

years after its entry, petitioner’s motion was prop-

erly denied for the reason that he failed to offer:

any legitimate excuse for~ “not “Typing more

4

?. Petitions does’ not: {gontend th: if the judg-

“ment was taimted by fraud or: new evidence’

has been diseovere: l.. He conte nds : in ‘effect, that.

thes re are et ‘rors of law apparent on the.face of

the reeord which render the jndgme nt of denatur al-

ization n void, and thus subject to be set aside abany: |

o ) He argues (Pet. 10-14, 21-24) that since this

Court shgs ruled ‘that the evidence to support

judgment of denatur alization must, be clear, un-

equivocal and weaconvincing, denaturalization pro-.

ceedings are so assimilated to criminal prosetue

tions that, as a matte r of constitytional right, a

defe nd: int must ‘be hefore. the-court when judgment

2Cf Rule pa of the Rules of Civil Provedure as hiciniahiiy

- amended; 329 U.S. 863, whieh specifies and codifies the relief avail-

able uniler older pions of remedy and provides that a motion for

a final’ judgment must he mide ‘within a reasonable

suine specified eases within one vear after judgment.

time, andy

is-entered, and couns wel must be assigned for him.

Denaturalization proceedings are, however, obvi-

ously not ériminal prosecutions. They ; are. equity

actions and it is manifest. that Congress-tre: ated

them as civil actions since: it_made: ane for

substituted servi ice _on-absentee defendants., Cer--

tainly y the provision for substituted service, makes °

a it clear that Congress did not intend to'reqtire that

a defendant: necessarily be before the court before

entry of judgment. ” Bre :

. While petitioner’ was not entitled. to counsel as

a matter of right since the action is ‘a. civil one,

counsel undoubtedly would have been appointgd for

him, had he requested the court for such/assistance. .

But since even ina criminal prosecation, a. defend-

ant may waive his right to cotinsel,, the court wi

not required to appoint counsel for a defendant

who, by failing to make an ‘appearance. or answer : es

of any kind, indicated that he’ had decided not to:

‘contest the allegations of the complaint.

As to petitioner? s contention | that no-clear and -

convincing ‘evidence could have heen: adduced by

. the Government ( Pet. 20-21.), that, of course,’ i

not an error of law appearing. on ‘the face. of ite 7

~ record, and not a matter Which can. be determined —

at this time. ‘As the ¢ ‘ireuit Court of Appeals for..

. . the Second Circuit held in United States v. Bor--

7 che¥s, 163. Fy 2d 347, 349-350, se, ickhes denied, .

| 332.0. S. We sere ee

- < * #)* “As tosuch judgments the. default of

defendants who have been personally served '

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may well take the place of the é Jear arid To

equivocal’” ey ae ‘©. Tequire “f. had the. ease

gone ty +e saps Oe a : |

PET LEI De

(b) IP etitioner pees contends that the court had ea

‘he power to enter a judgment of ile naturalization

without he: wing evidence (Pet “19-21 ). This con-

tention was made and rejected in the circuit cofirt «

PETE ATP tT giv

_ Of appeals in. the Borchers case, supre, and was

urged in the petition fer certiorari to this Court. . A

Under Rule 355(b) of the Federal Rules of Civil

Procedure, the nee essity for‘a hearing is a matter

within the discretion of the trial court. Testimony

is normally taken only in those cases where the ex-

tent of the relief to be gr ante “d must be dete rmined.

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‘on é evidence, andgiot from the complaint. Here, of

course, the relief sought. in. the complaint was.

definite and certain—the cancellation of the -cer-

tifieate of naturalization+-and judgment was. en-

tered for the specific relief sought by the complaint.

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BR RB Oy oe

CAPA! A,

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CONCLUSION

For the reasons stated, we respectfully ‘submit

that the petition, fer a writ of certiorari should be Se

a in ei BM Yet Sete act Calera tit IN by!

Ceer

ened, Pine B. Peruaan.

We ee ad Solicitor General.

; T. VINCENT QUINN,

A ssistant Attorney General:

Rosperr S. ERDAHL,

SEATRICE ROSENBERG,

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OS ee Bt yes AL agin pone

May 1948. Attorneys.

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na oy © 8 GOVERNMENT PRINTING OFFICE. ise