# Brief for the United States in Opposition — Klapprott v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0089%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States in Opposition - **Published:** January 1, 1949 - **Citation:** 335 U.S. 601 ## Text > ' > “ . INDEX: - | o ‘ } t i Page 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 . + \; " ‘ . o ; | 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. : o Satie Sapreme eof the nite Piaies Oc TUBER TE kM, 3, ; _— ee ° j © 4 | . AvGuUST KLAPPROTT, PETITIONER v. ¥ ~ United States OF AMERICA Pee 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 * 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 ms. > s % 5 a 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. WM : ° 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 * = 6 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 7 » 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, _ 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 s \ ~~ \ .. ‘1. as - ~ : promptly. ¥ relief fro, oj 3 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 - “d . \ : ‘ : , | | : o : . . y 6 : a ig : ; ao . . e . Es a . - ad > , ; : - ‘7 i é ; , 2 . ® - ' t ¥ : ‘ : : x } = . . . - . , ; | : | : : 7 = * ‘ ° ° . e ° ee ‘ 7 % ; . ; t | | ° \ - : ; ‘ rie % ° - ’ ~ a i “ . ra ° . é ‘ . 3 7 a * E ‘ ; se ° , ‘ . a ° € . ‘ ° me . . * . ‘ . - : -* : t , ae eae : Py “ va oes ois Z . Yo Pe id ‘ ~~ we . Ph Sa oY . a — I). 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. zt + : bs vi = 2, a ; ‘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. . BR RB Oy oe CAPA! A, 2 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, ne on -® OS ee Bt yes AL agin pone May 1948. Attorneys. . ra . na oy © 8 GOVERNMENT PRINTING OFFICE. ise --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0089%3A06. Public record. Not legal advice.