United States v. Zucca/Opinion of the Court

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Opinion of the Court
Dissenting Opinion

United States Supreme Court

351 U.S. 91

United States  v.  Zucca

 Argued: Jan. 24, 25, 1956. --- Decided: April 30, 1956

This is a denaturalization proceeding under § 340(a) of the Immigration and Nationality Act of 1952. [1] The sole question is whether § 340(a) makes the filing of the 'affidavit showing good cause' a prerequisite to maintenance of the suit. The District Court held that it does and ordered the complaint dismissed unless the Government filed an affidavit showing good cause within 60 days. As this was not done, the complaint was dismissed without prejudice to the Government's right to institute an action to denaturalize the respondent upon filing the affidavit. 125 F.Supp. 551. On appeal by the Government the Court of Appeals for the Second Circuit affirmed, adopting the opinion of the District Court. 221 F.2d 805. We granted certiorari, 350 U.S. 817, 76 S.Ct. 72, because of an asserted conflict with decisions of the Seventh [2] and Ninth [3] Circuits and because of the importance of the question in the administration of the immigration and naturalization laws.

Respondent Ettore Zucca was naturalized on January 4, 1944. In 1954, the United States Attorney for the Southern District of New York, proceeding under § 340(a), filed a verified complaint in the United States District Court in his District seeking revocation of respondent's naturalization on the grounds of illegality, concealment of material facts, and willful misrepresentation.

The complaint alleged that respondent, at his naturalization hearing and in his petition for naturalization, had falsely sworn 'that he did not belong to and was not associated with any organization which teaches or advocates the overthrow of existing government in this country * * *,' that it was his 'intention in good faith to become a citizen of the United States and to renounce absolutely and forever all allegiance and fidelity to any (foreign powers) * * *,' and that he was and had been 'attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States.' This was followed by a general allegation of membership in the Communist Party and 'other organizations affiliated with or controlled by the Communist Party of the United States from 1925 to 1947,' and equally general allegations that respondent procured his naturalization by concealment and willful misrepresentation in that he concealed the facts relating to his membership in the Communist Party and affiliated organizations and otherwise swore falsely as to his intentions and beliefs. The pleader concluded that 'good cause exists for the institution of this suit * * *.' The complaint, no part of which was alleged on information and belief, was verified by an Assistant United States Attorney. When respondent sought to take depositions of this Attorney, he was met with an affidavit in opposition denying personal knowledge. [4] Respondent then filed his motion to dismiss on the ground, inter alia, that § 340(a) required the filing of an affidavit showing good cause and that this requirement had not been complied with. As stated above, the motion to dismiss was granted on this ground.

The Government argues that a reading of the statute and its legislative history leads to the conclusion that the filing of an 'affidavit showing good cause' is not a prerequisite to maintaining denaturalization proceedings under § 340(a). We do not agree.

The affidavit provision with which we are here concerned first appeared in § 15 of the Act of June 29, 1906. [5] Without substantial change, it was carried forward in the laws of 1940 [6] and 1952, [7] currently reading as follows:

'Sec. 340. (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 (a) of section 310 of this title in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation, * * *.' (Emphasis added.)

Were we obliged to rely solely on the wording of the statute, we would have no difficulty in reaching the conclusion that the filing of the affidavit is a prerequisite to maintaining a denaturalization suit. This conclusion is not altered by a consideration of the Government's highly speculative suggestions as to the meaning of the legislative history. On the contrary, we think that it is entirely consistent with the Court's statement in Bindczyck v. Finucane, 342 U.S. 76, 83, 72 S.Ct. 130, 134, 96 L.Ed. 100, that Congress acted '(w)ith a view to protecting the Government against fraud while safeguarding citizenship from abrogation except by a clearly defined procedure * * *.'

The natural meaning of the language used in § 340(a) is that filing of the affidavit is a procedural prerequisite to maintenance of the suit. In the Bindczyck case, this Court held that § 338(a) of the Nationality Act of 1940, predecessor of § 340(a), sets forth the exclusive procedure for denaturalization. [8] Despite that decision, the Government would have us hold now that the grant of power to maintain denaturalization suits is found in the general duty of United States Attorneys to prosecute all civil actions in which the United States is concerned, [9] and that § 340(a) merely imposes the 'additional duty * * * to act, not alone on their own knowledge and judgment, but on the basis of an affidavit of good cause furnished by private citizens.' In effect the Government argues that the affidavit is required only when the proceeding is to be brought on the complaint of a private citizen. We need not decide whether a private citizen may ever file such a complaint. The short answer in this case is that the Government laid its complaint expressly under § 340(a).

While arguing that the words of § 340 are words of limitation on the discretion of the United States Attorney, the Government apparently concedes that the venue and notice provisions of the Section are generally applicable to denaturalization proceedings. Its argument overlooks the fact that the affidavit and venue provisions are in the same sentence. If the affidavit were required only when the United States Attorney proceeded on the complaint of a private citizen, then only in such a case would the venue be restricted to the district of the defendant's residence. We could accept such a limiting construction of the statute only upon a very clear showing that Congress meant something other than what it said.

The original Act of 1906 was the culmination of many years of study by Congress and a commission of which the Attorney General was a leading spirit and his Assistant the Chairman. Shortly after its enactment, the same Attorney General rendered an opinion to the Secretary of Commerce and Labor to the effect that the filing of an affidavit was 'necessary to give a United States attorney authority to institute proceedings in any court for the cancellation of a naturalization certificate.' [10] In such circumstances, a contemporaneous construction of a statute by the officer charged with its enforcement is entitled to great weight. Fawcus Machine Co. v. United States, 282 U.S. 375, 378, 51 S.Ct. 144, 145, 75 L.Ed. 397; Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796. Over a period of years, however, there has been some conflict among the circuits concerning the affidavit requirement. [11] The Government relies particularly on our affirmance of the decision of the Court of Appeals for the Ninth Circuit in Schwinn v. United States, 311 U.S. 616, 61 S.Ct. 70, 85 L.Ed. 390. The Court decided that case on the sole ground of illegal procurement. Although the necessity of the affidavit was considered below in view of the Government's failure to offer proof in support of its allegation that an affidavit of good cause had been furnished, the question was not presented to this Court. [12]

Prior to the decision in the Schwinn case the practice of the Justice Department seems generally to have been to institute denaturalization proceedings upon affidavit showing good cause. The Government does not now contend that it has abandoned that practice. It merely claims the right not to do so when it chooses, as clearly appears from portions of a Department of Justice memorandum which has been brought to the Court's attention. [13] We are unimpressed by the reasoning of that memorandum. We think that the public interest is not served by taking such liberties with a specific statutory requirement designed for the protection of naturalized citizens. And we fail to see that the requirement imposes a burden on the Government. At this Term, it has been represented to us that the usual practice is that, 'if sufficient grounds are shown, an 'affidavit showing good cause' (see Section 340(a) of the Act * * is prepared and executed, and is forwarded as an aid to the formal judicial proceedings * * *.' [14]

Lastly the Government contends, as an alternate ground for reversal, that no harm is done to the defendant because the complaint itself is verified and, therefore, accomplishes the function of the affidavit. With this we cannot agree. The complaint, under modern practice, is required merely to allege ultimate facts while the affidavit must set forth evidentiary matters showing good cause for cancellation of citizenship. [15]

In the Bindczyck case, supra, the Court summed up the purpose of and approach to denaturalization proceedings as follows:

'(W)e cannot escape the conclusion that in its detailed provisions for revoking a naturalization because of fraud or illegal procurement not appearing on the face of the record, Congress formulated a self-contained, exclusive procedure. With a view to protecting the Government against fraud while safeguarding citizenship from abrogation except by a clearly defined procedure, Congress insisted on the detailed, explicit provisions of § 15.

'* * * if citizenship ws granted, it was to be proof against attacks for fraud or illegal procurement based on evidence outside the record, except through the proceedings prescribed in § 15. The congressional scheme, providing carefully for the representation of the Government's interest before the grant of citizenship and a detailed, safeguarded procedure for attacking the decree on evidence of fraud outside the record, covers the whole ground. Every national interest is thereby protected.' 342 U.S. at page 83, 84, 72 S.Ct. at page 134.

This proceeding was concededly brought under § 340(a). We hold that this is the only Section under which a United States attorney may institute denaturalization proceedings, and that the affidavit showing good cause is a procedural prerequisite to the maintenance of proceedings thereunder.

The mere filing of a proceeding for denaturalization results in serious consequences to a defendant. Even if his citizenship is not cancelled, his reputation is tarnished and his standing in the community damaged. Congress recognized this danger and provided that a person, once admitted to American citizenship, should not be subject to legal proceedings to defend his citizenship without a preliminary showing of good cause. Such a safeguard must not be lightly regarded. 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. The District Court below correctly dismissed the proceedings in this case because of the failure of the Government to file the required affidavit and the judgment of the Court of Appeals is therefore affirmed.


Mr. Justice HARLAN took no part in the consideration or decision of this case.

Mr. Justice CLARK, with whom Mr. Justice REED and Mr. Justice MINTON join, dissenting.


^1  66 Stat. 163, 260, as amended, 68 Stat. 1232, 8 U.S.C. (Supp. II) § 1451(a), 8 U.S.C.A. § 1451(a).

^2  United States v. Tuteur, 7 Cir., 215 F.2d 415.

^3  Schwinn v. United States, 9 Cir., 112 F.2d 74, affirmed per curiam, 311 U.S. 616, 61 S.Ct. 70, 85 L.Ed. 390.

^4  The affidavit read as follows:

'George C. Mantzoros, being duly sworn, deposes and says as follows:

'That he is one of the Assistant United States Attorneys on the staff of J. Edward Lumbard, United States Attorney for the Southern District of New York in charge of the above-entitled case.

'That the only knowledge or information which he has in this case has been obtained through files turned over to him for use in preparation of the complaint.

'That he has no personal knowledge of any of the facts herein and is not a prospective witness.

'That on information and belief his superior, the said J. Edward Lumbard likewise has no personal knowledge of any of the facts herein and is not a prospective witness.

'That he has carefully reviewed the files in this case and finds nothing therein which would indicate any special or unusual circumstances requiring the production of the documents requested by the defendant in his notice to take depositions, dated July 8, 1954.

'That many of the documents in said files are privileged because of their confidential nature.' R. 8.

^5  34 Stat. 596, 601.

^6  Section 338(a) of the Nationality Act of 1940, 54 Stat. 1137, 1158.

^7  66 Stat. 163, 260, as amended, 68 Stat. 1232, 8 U.S.C. (Supp. II) § 1451(a), 8 U.S.C.A. § 1451(a).

^8  The specific holding, that § 338(a) of the 1940 Act overrode local rules concerning time limitations upon the power of state courts to reopen their judgments, was abrogated by § 340(j) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 262. The underlying philosophy of Bindczyck remains intact.

^9  28 U.S.C. § 507(a)(2), 28 U.S.C.A. § 507(a)(2).

^10  Letter of Attorney General Bonaparte, March 26, 1907 (unpublished, National Archives), cited in a contemporary treatise by a recognized authority on the statute. Van Dyne, Law of Naturalization (1907), 138. The letter is reproduced at p. 50 of the Brief for the United States.

^11  The Courts of Appeals for the Third, Fifth, and District of Columbia Circuits had taken the position adopted by the Second Circuit in this case. United States v. Richmond, 3 Cir., 17 F.2d 28; United States v. Salomon, 5 Cir., 231 F. 928; Cohen v. United States, 38 App.D.C. 123. The Seventh and Ninth Circuits favored the contrary position. United States v. Tuteur, 7 Cir., 215 F.2d 415; Schwinn v. United States, 9 Cir., 112 F.2d 74, affirmed per curiam, 311 U.S. 616, 61 S.Ct. 70, 85 L.Ed. 390; United States v. Knight, D.C.Mont., 291 F. 129, affirmed 9 Cir., 299 F. 571; United States v. Leles, D.C., 227 F. 189.

^12  On two prior occasions this Court has had occasion to notice the affidavit provision without suggesting that it was not an essential procedural step in the denaturalization proceeding. See Johannessen v. United States, 225 U.S. 227, 242, 32 S.Ct. 613, 617, 56 L.Ed. 1066; Schneiderman v. United States, 320 U.S. 118, 159, note 54, 63 S.Ct. 1333, 1353, 87 L.Ed. 1796.

^13  'As indicated below in 'IV. Pre-Trial Procedure,' the defendant can probably obtain most of the government's evidence by a proper utilization of the methods of discovery provided in Rules 16, 33, and 34 (Fed.Rules Civ.Proc. 28 U.S.C.A.). It, therefore, may be advisable at the outset to furnish him with a reasonable amount of the government's evidence in order to reduce the chance of these discovery rules being employed, and thus avoid the ensuing delay. If this is done, it would seem that the affidavit rather than the complaint is the proper place in which to recite evidence.

'In the event it is decided in a given case to furnish the defendant with some of the government's evidence, it is recommended that an affidavit be prepared and served with the complaint and that in the affidavit there be recited briefly the nature of the evidence to be relied upon. This recitation of evidence should be of a general nature but sufficient to reduce the ordinary chance of the discovery rules being employed and at the same time to reduce the likelihood of the government having to oppose a motion for a bill of particulars. On the other hand, it should not be so complete as to provide the defendant with the names of witnesses and possibly can be so phrased as not to disclose their identity. Similarly, it may be disadvantageous to make it so complete as to identify specific instruments or writings, for this may increase the likelihood of a demand for their production under Rule 34. It would seem sufficient to set out the general substance or type of statements or writings known to have been made without quoting them. It would also seem proper to aver generally membership and leadership in the German-American Bund or other un-American organizations, refusal of military service, general propaganda activities, etc.

'If it is believed undesirable to attach an affidavit to the complaint and to serve it upon the defendant, as discussed above, in that instance no reference should be made in the complaint to an affidavit having been prepared and as constituting the basis of the action.' Circular No. 3663, Dept. of Justice, Supp. No. 9, April 6, 1943 (mimeographed), p. 87, printed in a supplemental memorandum filed by the Government in this case.

^14  Brief for the United States, United States v. Minker, 350 U.S. 179, 76 S.Ct. 281 (No. 35, October Term, 1955), at p. 34.

^15  United States v. Richmond, 3 Cir., 17 F.2d 28; United States v. Salomon, 5 Cir., 231 F. 928.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).