Polites v. United States

PETITIONER:Gus Polites
RESPONDENT:United States
LOCATION:Mapp’s Residence

DOCKET NO.: 25
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 364 US 426 (1960)
ARGUED: Oct 18, 1960
DECIDED: Nov 21, 1960

ADVOCATES:
Charles Gordon – for the United States
George W. Crockett, Jr. – for the petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – October 18, 1960 in Polites v. United States

Earl Warren:

Number 25, Gus Polites, petitioner, versus United States.

George W. Crockett, Jr.:

Mr. Chief Justice.

Earl Warren:

Mr. Crockett.

George W. Crockett, Jr.:

Members of the Court.

I believe it will be possible for me to be rather brief in my presentation because I think the issue is pretty clear and a pretty concise one, and there is no material dispute as far as the facts are concerned.

The petitioner, a 60-year-old native of Greece, was naturalized in 1942 and, later, in 1952, because of this prior admission of membership in the Communist Party during the early years, his naturalization was cancelled.

It was cancelled upon the grounds that it was fraudulently obtained, in that, he had not disclosed to the naturalizing court the fact that he had been a member of the Communist Party within 10 years prior to his naturalization.

The District Court ruled that the question number 28 in his petition for naturalization which was addressed to the question of whether he belonged to any organization that advocated our position to organize Government should have been interpreted by him as a question calling for his admission or denial of Communist Party membership.

That was the basis for the finding of fraud.

The Court also ruled that his naturalization had been illegally procured because, as a member of the Communist Party, he was a member of an organization which made him ineligible for membership, in that, under the 1940 Act, Congress had amended the 1906 Act so as to provide that teaching or advocating a membership in any organization which teaches or advocates the violent overthrow of the government should bar naturalization.

There was nothing, of course, in the 1940 Act relating to Communist Party membership.

The court, moreover, concluded that it was not necessary to prove that the petitioner actually knew the Communist Party as an organization that engaged in illegal teaching and advocacy.

That knowledge was of no significance, that the mere fact that he was a member of the Communist Party plus evidence that the Communist Party itself engaged in such teaching and advocacy was sufficient to bar him from citizenship.

The petitioner took an appeal to the Court of Appeals for the Sixth Circuit.

He was represented on that appeal by my office.

His case was one of approximately six cases of denaturalization that followed essentially the same pattern, the same charges, the same type of evidence.

At the time his case was appealed, there was pending, in our Sixth Circuit, three denaturalization cases, the Chomiak case, the Charnowola case, and the Sweet case each of which are referred to in our brief.

And each of those cases, the identical issues that have been raised and litigated in petitioner’s case were likewise raised.

Potter Stewart:

Pardon me Mr. Crockett.

George W. Crockett, Jr.:

Following his appeal —

Potter Stewart:

Mr. Crockett, when was this that these appeals —

George W. Crockett, Jr.:

These appeals —

Potter Stewart:

Indicated?

George W. Crockett, Jr.:

Would be in 1953.

Potter Stewart:

(Voice Overlap)

George W. Crockett, Jr.:

petitioner’s case was appealed, if I remember correctly, in October, 1953.

Following these appeals in the — in petitioner’s case and before the brief was doing his case, we filed a motion with the Court of Appeals requesting that we be given an extension of time to file a brief in this case because, meanwhile, the Court of Appeals had affirmed in each of these other three cases and we represent it to the Court that we had petition this Court for certiorari to review those cases.

The Government upholds that our request for an extension of time, nevertheless, the Court of Appeals gave us that extension conditioned upon our filing the brief within 30 days after this Court’s action in Sweet, Chomiak, and Charnowola cases.

This Court denied certiorari in the last three cases.

It may be that we, as counsel for petitioner, did him an injustice by doing what, I am persuaded, every other member of the bar of this Court has done and every other District Court judge and many Circuit Court judges have done and, that is, to read into a denial of certiorari.

George W. Crockett, Jr.:

Some indication that, of course, this Court has said on several occasions should not be read into such a denial.

We advised the petitioner that it was pointless to go ahead with this appeal.

Our Circuit Court, on three occasions, had turned us down.

The Supreme Court had denied certiorari.

The petitioner accepted our advice and stipulated for a dismissal of his appeal.

Subsequently, my office represented the petitioners in the Nowak and the Maisenberg cases.

John M. Harlan II:

Mr. Crockett, were these cases all under the 1940 National Act — Nationality Act?

George W. Crockett, Jr.:

The three that I’ve mentioned Sweet, Chomiak, and Charnowola were under the 1940 Act.

Petitioner’s case was under the 1940 Act.

John M. Harlan II:

Yes, that’s what I want to know.

Felix Frankfurter:

Are you really ready to say that you’re not familiar with the fact that this Court had frequently, after it has denied certiorari, taken up a question and reversed what was better for the rulings of the lower court?

George W. Crockett, Jr.:

No, Your Honor.

Felix Frankfurter:

That this Court —

George W. Crockett, Jr.:

I —

Felix Frankfurter:

— has even dismissed as wanting — for want of a substantial federal question in a succession of cases and then dramatically reversed on — on a consideration of the merits?

George W. Crockett, Jr.:

I do not —

Felix Frankfurter:

You really don’t mean to say that, Mr. Crockett.

You leave it to the lawyers —

George W. Crockett, Jr.:

I do not say that —

Felix Frankfurter:

— to say that.

George W. Crockett, Jr.:

— Your Honor.

But, what I do say is that when we go through a period of the length of time that transpired between this Court’s ruling in Schneiderman and the time that this Court accepted certiorari in Nowak.

And, during that period of time, petition after petition was filed with this Court, asking for an opportunity to examine the rulings made by the District Courts in denaturalization cases, and this Court had indicate that it was not prepared to examine those rulings.

Felix Frankfurter:

Well — but each case pre — may present a separate state of fact and not all — this wasn’t a case of — where all presented the same simple, lucid, unembarrassed question of law.

George W. Crockett, Jr.:

Your Honor —

Felix Frankfurter:

Denaturalization cases don’t all fall under the same pattern.

George W. Crockett, Jr.:

They do not and I mean no criticism of this Court when I say —

Felix Frankfurter:

Well, I didn’t —

George W. Crockett, Jr.:

That I myself —

Felix Frankfurter:

I didn’t take — I wasn’t defending the Court.

Felix Frankfurter:

I was defending your ability as a lawyer.

George W. Crockett, Jr.:

Subsequently, this Court accepted certiorari in Nowak and Maisenberg, which also were handled by my office.

The Government has raised the question why, in view of our advise to the petitioner in this case, we petition for certiorari in the Nowak and Maisenberg cases.

I think this Court is aware that, subsequent to the denial of certiorari in Sweet, Charnowola, and Chomiak, this Court decided Scotten which involved the question of the affidavit of good cause.

In both Nowak and Maisenberg, we had the question of the sufficiency of the affidavit of good cause.

It was our position that this Court had ruled that the affidavit was jurisdictional and we raised the issue, can an affidavit which is jurisdictional be predicated upon hearsay.

And, that was the primary issue that prompted us, first, to petition for certiorari in Nowak and Maisenberg, and I’m informed that it was the major issue that was discussed at the time of the oral argument in this Court.

I mentioned that only parenthetically to indicate that there were some justification for coming to the Court in Nowak and Maisenberg that, in our opinion, did not exist before.

Now, following this Court’s decision in Nowak and Maisenberg, we became satisfied that the judgment of denaturalization against Polites was clearly erroneous.

We, therefore, filed with the District Court a motion, under Rule 60 (b) (5) and (6), asking that that judgment be set aside.

Among other things, we not only pointed out why we thought the judgment of denaturalization was erroneous, but we pointed out that the Government was trying to take advantage of that erroneous judgment by now regarding the petitioner as an alien and seeking his deportation to Greece and his separation from his family.

That was the gist of our motion to the District Court.

The Government filed no document in opposition to the motion, certainly, no pleading.

They did file a memorandum of law in opposition to the motion.

The District Court, after discussing generally the impact of Nowak and Maisenberg upon Polites, finally decided that it lacked power to grant the relief that we sought.

I believe that, therein, we have the primary issue that is before the Court today.

The District Court, in our case, did not pass on the merits whether or not granted it has the power it should grant this relief.

It said, “We understand the law to be that once you start an appeal and you dismiss that appeal, you cannot then come to the District Court under Rule 60 (b) and ask for relief.”

Now, it is our contention that that is not the law.

Thank you.

Earl Warren:

We’ll recess.

Mr. Crockett, you may continue your argument.

George W. Crockett, Jr.:

Thank you, Your Honor.

At the time of the recess, I have stated what I consider to be the central theme of my argument that what is involved here is a question of the power of the District Court under Rule 60 (b) (5) or (6) and not whether or not that power has been properly exercised under the circumstances.

I would buttress that by quoting from what the District Court judge actually said at the conclusion of his — or near the conclusion of his opinion.

I’m quoting from page 26 of my brief.

He said “therefore, since petitioner abandoned his appeal, as he states, because of the controlling decisions in Chomiak, Sweet, and Charnowola, we have absolutely no alternative but to follow the Ackermann decision coupled with the Sixth Circuit Court of Appeals’ statement in Berryhill versus United States which refutes petitioner’s reasoning by saying, “It appears to be the subtle law that a change in the judicial view of the applicable law, after a final judgment, is not a basis for vacating a judgment entered before announcement of the change.”

Hugo L. Black:

What page did you say you were reading from, Mr. Crockett?

George W. Crockett, Jr.:

I was reading from page 26 and 27.

And then, the District Court concluded his opinion with the following quotation which appears on page 11 of petitioner’s brief.

George W. Crockett, Jr.:

“Ordinarily, we would have granted petitioner’s prayer, particularly under subsections (b) (5) of Rule 60, authorizing us to do so if it is no longer equitable that the judgment should have prospective application.

But, in our opinion, our Court of Appeals specifically eliminates such holding where the only reason for abandoning the appeal was because of the then status of the law under the controlling decisions.”

I submit that it’s apparent from that that the District Court did not reach the merits of petitioner’s case under Rule 60 (b) and that, if I’m correct that this is a question of power then we need not come to the other question, whether or not the order of denaturalization in petitioner’s case was actually erroneous.

I submit that it probably would be inappropriate for this Court to rule on that, since all of the facts in petitioner’s case are not before this Court, since the District Court which is more cumbersome with the record in petitioner’s case will have before it the opinion of this Court in Nowak and Maisenberg and can make that initial determination for itself.

I submit further, however, that if the District Court came to the conclusion that its judgment of denaturalization was erroneous, that would be one element to be considered by the District Court in deciding whether relief should be granted under Rules 60 (b) (5) or (6).

I do not argue that that element would be controlling.

It would however, be a consideration that I think should influence, to some extent the District Court in deciding whether to grant relief.

Again, I do not think it is necessary for this Court to deciding whether or not petitioner was justified in dismissing his appeal in the Court of Appeals.

There again, I submit that that is an additional element that would or would not influence the District Court in exercising its discretion if it got to the merits.

Now, the Government argues and I might say before I go into that that I have been able to find only two decisions in this Court dealing with Rule 60 (b) (5) and (6) and I don’t think the Government relies on any others that’s the Klapprott case — Klapprott against United States which is cited in both briefs and the Ackermann case which likewise is cited in both briefs.

In Ackermann, on which the Government places primary reliance, the District Court there did not say, “I do not have power to grant the relief.”

The District Court said “I am denying your motion on the merits.

I have considered all of these extenuating circumstances that you present, and I am not persuaded, in the exercise of my discretion, that I should vacate the judgment.”

And, all that this Court said was, “We find no basis for disturbing the discretion exercised by the District Court.”

So, Ackermann does not go to the question of jurisdiction on its face.

By necessary implication, I would submit that Ackermann holds that the District Court did have jurisdiction in the sense of power to grant the relief prayed for by the petitioner there and by analogy that the District Court, in Polites case, had jurisdiction in the sense of power to grant the relief prayed by Polites.

Now, Klapprott, I believe, might be interpreted as actually going to the question of power.

There, the petitioner alleged, among other things, that he was imprisoned at the time of his denaturalization proceedings that, through a various unfortunate circumstances, he was prevented from defending his case and, as a result, he was denaturalized by means of a default judgment.

This Court considered his petition and, among other things, this Court ruled that Rule 60 (b) was intended to give very liberal power to the District Courts to correct manifest injustices.

That ,among other things, it was intended to eliminate some of the restrictions that had been placed upon District Courts in vacating or changing judgments at the expiration of a term.

So that Rule 60 (b) is not, for example, comparable to a bill of review or a bill in the nature of review and equity.

It goes beyond even those liberal rules that were devised by the old common law — or the old equity courts, rather, to take care of this case of what happens where a judgment, in its prospective effect, has unfortunate consequences from which the person should be relieved.

The court, among other things, in Ackermann decided that, there, the petition had set up sufficient facts which, if true, would warrant relief.

Accordingly, this Court remanded the case to the District Court to do what?

To frame the issue, to take testimony on whether or not this was a case of extraordinary circumstances warranting the use of Rule 60 (b).

To that extent, this Court has held, I contend, in Kalpprott that the District Court here in Polites had power, had jurisdiction to do what we have requested should be done.

Now, of course, all of us are concerned about the finality of judgments and the Government makes the big argument that if this can happen in Polites case, then it’s rather difficult to conceive of any situation where judgment of denaturalization becomes final.

I don’t experience any difficulty with that argument because I think the whole judicial process is one of balancing.

Here, we have to balance what petitioner contends is an obvious injustice that results to him based upon an erroneous judgment against the desire to maintain stability of judgments.

And, I think, in that very balancing process, we are doing what the District Court here has declined to do because the District Court has declined to enter into that balancing process by not actually accepting jurisdiction in getting to the merits.

George W. Crockett, Jr.:

I could, of course, prolong this argument by going into a differentiation of the various cases cited by the Government.

I think, however, that a simple reading of those cases will indicate that they’re distinguishable on their face.

I would, however, call attention to the Sunal case which is primarily relied upon by the Government and is cited in its brief.

Sunal, I believe, it’s called, against Large.

That case was a case where this Court, after denying certiorari, subsequently granted certiorari and, in effect, changed the rule of law.

Sunal was charged with failing to report for induction into the Armed Services.

Among other things, he contended that he was improperly classified.

The District Court ruled, relying upon prior decisions, that the defense of improper classification could not be made at the time of trial, that it had been administratively determined and that was the end to it.

Sunal was convicted.

He did not take an appeal.

A similar situation, a companion case, was the Kulick case that happened in the Second Circuit.

Subsequent to these convictions, this Court ruled that the defense of improper classification could be asserted at the time of the trial for the main offense.

Sunal then made application not under Rule 60 (b) but by petition for habeas corpus to have his conviction set aside.

This Court divided on that issue but the majority opinion concluded that there was not sufficient justification shown for setting aside the conviction.

I’m primarily concerned, however, with the rule that was announced by the majority in that case, and I quote that rule, it was as follows.

“The rule which requires resort to appellate procedure for the correction of errors is not one defining power but one which relates to the appropriate exercise of power.

That rule is, therefore, not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.”

I submit that the same considerations should control in applying Rule 60 (b) (5) or (6) of the Federal Rules of Civil Procedure and that, in its very nature, the District Court is in the most advantageous position to determine whether or not the injustice which the petitioner allegedly will suffer, by giving prospective effect to the judgment or by continuing an operation of judgment which he thinks or which the District Court finds have been erroneous outweighs the desirability of maintaining the stability of judgments and it is upon —

Felix Frankfurter:

Mr. Gordon, I’d like to call your attention to the fact that the Sunal case was decided before this Court that so unequivocally laid down the rule in Garr against Griffith as to the legal non-significant, in any sense of the merit, of a denial of certiorari.

At the time of Sunal, it wasn’t at all clear what this Court would do when there’s a concession of denial and there was much more reason at the time of Sunal —

George W. Crockett, Jr.:

I might —

Felix Frankfurter:

Before Darren Griffin, in relying on denial of certiorari, isn’t that true?

George W. Crockett, Jr.:

I think you — I think you’re right, Your Honor, but I also think that there were other cases even before the promulgation of Rule 60 (b) and even before Sunal that did not arise under any rule but arose under the general powers of equity to give relief where there have been a substantial change in the law.

And, in none of those cases did the Court hold that the fact that an appeal was or was not taken was decisive of the issue.

Felix Frankfurter:

All I’m suggesting that, in Sunal, a man was kept in jail simply because his counsel had relied on what he thought he had a right to rely on, namely, clear contrary rulings which were never taken by this Court, merely in the Court of Appeals.

George W. Crockett, Jr.:

I wouldn’t go so far, Mr. Justice Frankfurter —

Felix Frankfurter:

That’s the effect and why you go —

George W. Crockett, Jr.:

As to say that was —

Felix Frankfurter:

And that’s what Sunal decided, isn’t it?

George W. Crockett, Jr.:

I wouldn’t go so far as to say that was the only consideration that influenced the majority in Sunal merely because he did not take an appeal.

George W. Crockett, Jr.:

The court discussed the circumstances also under which he did not take an appeal as —

Felix Frankfurter:

And the reason was that he had every right to rely that there would consistent decisions.

It would be a futile thing for him to spend time, money, and hopeless hope in trying to get a contrary decision.

George W. Crockett, Jr.:

No, I think you had another element there that I emphasize in my brief in my discussion of the Title case, and that is that, within the time that was still available to Sunal to take an appeal, this Court had indicated a willingness to consider the question.

That was true in the Title case.

For example, within the time that Title’s appeal was still pending in the Court of Appeals, this Court granted certiorari in the Zucca case.

Title must have known, his counsel must have known that this Court would then resolve the question of affidavit that was presented in Zucca —

Felix Frankfurter:

But I —

George W. Crockett, Jr.:

And, notwithstanding that, he did nothing to protect his right to appeal.

Felix Frankfurter:

It isn’t my observation, in the course of all these years, that counsels of the United States are rather timid about filing petitions for certiorari, particularly in causes that they think worthy that alone in all the frivolous cases in which petitions apply to this Court.

I don’t find its submissiveness on the part of the Bar the intimation that they’re going to move a petition for certiorari.

George W. Crockett, Jr.:

Thank you, Your Honor.

Earl Warren:

Mr. Gordon?

Charles Gordon:

May it please the Court.

The simple and the overwriting question which is presented by this appeal is whether a litigant who has lost his case after a full day in court and who has voluntarily relinquished his right of appeal can renew the controversy five years later merely because he thinks that he then would have a better chance to prevail.

In our view, an affirmative answer to that question would discard the ancient principles that safeguard the finality of judgments.

It would mean that no controversy could ever be regarded as ultimately settled and that an unsuccessful litigant would have a right at any time in the future to reopen the case when he deemed to be time propitious.

Now, in this case, the facts are quite simple.

A denaturalization suit was brought against Mr. Polites 10 years after his naturalization.

The suit was commenced in 1952.

A trial took place in 1953.

The trial covered four days and, at that trial, Polites was represented by his present counsel.

At the conclusion of the trial, Judge Picard of the District Court of Detroit found that the naturalization had been fraudulently and illegally procured, and he ordered the denaturalization.

Now, Polites then filed an appeal, but he never completed that appeal.

Instead, as Mr. Crockett has said, he, first, obtained from the Court of Appeals an extension of his time in which to file briefs.

And, this was done because the Court of Appeals then had under consideration, three cases involving similar issues.

One was identical.

The others were similar.

In the — in the Chomiak case, the issue was identical.

In the others, the issues were similar.

Charles Gordon:

The others claimed only fraud.

Chomiak — they may have claimed both fraud and illegality.

Cromi — Chomiak was decided only on the issue of illegality based on Section 305.

They were quite similar.

Then, when Chomiak, Charnowola, and Sweet lost in the Court of Appeals, they applied for certiorari and certiorari was denied.

At that time, petitioner’s counsel who re — also represented Sweet, Chomiak, and Charnowola voluntarily stipulated to dismiss the appeal of Polites with prejudice.

This was the language of the stipulation.

And the Court of Appeals, in November of 1954, entered an order on that stipulation, dismissing the appeal with prejudice.

That, again, was the language of the order of the Court of Appeals.

And then, deportation proceedings followed.

The deportation order was entered.

A judicial review to the deportation order was commenced.

And, while the proceedings for judicial review of the deportation order were pending, Polites brought this motion to reopen the 1953 judgment, to reopen it because, as he said, the decisions of this Court in Nowak and Maisenberg had changed the picture.

Now, this motion, Your Honors, was brought five years after the original judgment and four years after plaintiff, through his — petitioner, through his counsel, had voluntarily stipulated to abandon his appeal.

Charles E. Whittaker:

(Inaudible)

Charles Gordon:

I’m talking about Polites.

Charles E. Whittaker:

(Inaudible)

Charles Gordon:

And — and the certiorari was denied and that — we have a three-prong position here, Your Honor.

Charles E. Whittaker:

(Inaudible)

Charles Gordon:

Our answer is no.

We have three facets of our position.

In the first place, after an order has become final, a judgment has become final, we believe that the Rule 60 (b) itself in its historical context, in the light of everything that went before, in the light of every adjudication on the rule, precludes reopening of the judgment merely because the party thinks that he’d have a better chance.

Secondly, we say that, in this case, Polites had a chance to appeal.

He had a chance to present his case to the Court of Appeals and to this Court.

He voluntarily relinquished his right of appeal without any suggestion of broader imposition or impropriety and we feel that he is bound by that choice.

And, third, we say that, because he voluntarily entered into this stipulation, agreeing to dismiss the appeal with prejudice is bound by the terms of that stipulation, unless something unconscionable appears and we find nothing in this record which even suggests inequity

Felix Frankfurter:

I don’t understand the difference in your second and third, and third —

Charles Gordon:

Well, the third is slightly different because he stipulated to appeal — to dismiss the appeal with prejudice knowing the consequences.

Felix Frankfurter:

What is the second?

Charles Gordon:

The second is that he abandoned the appeal.

Charles Gordon:

There’s a li — a little difference —

Felix Frankfurter:

Alright.

Charles Gordon:

I think.

Felix Frankfurter:

Alright.

Charles Gordon:

It is — it may not be very great but there’s some difference.

But, in any event, we feel that, under each of these theories, petitioner is far close from relief.

Now, the motion to reopen was denied by Judge Picard and then appeal followed to the Court of Appeals for the Sixth Circuit which, in the very terse order, unanimously affirmed Judge Picard’s order for the reasons that he has stated.

Now, as I’ve said the motion to reopen was based on — it was made in 1958 incidentally and was based on the decisions of this Court in 1958 in the Nowak and Maisenberg cases.

We believe those decisions and we shall show later that those decisions are inevitable, but I think it’s more important to confront, first, at the outset the propriety of the relief which is sought by the petitioner here.

We respectfully submit that there is no warrant in Rule 60 (b), or elsewhere, for this effort to reopen a five-year-old judgment made by one who voluntarily elected to dismiss his appeal without any showing of fraud, risk, impropriety, improper activities of government officials, or any other reason for disturbing the judgment.

In fact, in our view, this belated plea lies in the face of the need for an orderly administration of justice and is directly opposed to at least two decisions of this Court.

Now, we agree that naturalization is a precious privilege and that citizenship rights must receive full protection, but it also must be remembered that the right to citizenships through naturalization is granted and may be revoked through a judicial proceeding.

The applicant for naturalization is given his day in court when he seeks citizenship and he is also given his day in court when the government moves to revoke that citizenship grant.

Polites had his day in court.

He had a full day in court.

And when the decision again — went against him, he decided not to appeal.

We believe that under such circumstances, Polites like every other litigant is bound by the judgment against him.

Now, Rule 60 (b) obviously was not intended as a substitute for an appeal.

In my view, there is no sound basis for supporting the view that this rule grants the right to a defeated party sometime in the future to seek a reopening of the judgment merely because subsequent adjudications persuaded that he now might have a better chance particularly where he voluntarily relinquished the right to test that theory in the original proceedings.

There are many authorities which oppose the position urged by the petitioner here and of course the most telling and convincing authority, in my view is that the decision of this Court in the Ackermann case 340 US I think the Ackermann case is exactly like this but I can’t see any possible basis for distinction.

The Ackermanns — like this petitioner lost a denaturalization suit.

They — thereafter considered the possibility of appealing.

They decided not to appeal and voluntarily abandoned the right to appeal.

In making this determination they were influenced by the fact that the appeal would be expensive, that it would’ve resulted in their having to sell their home, and also by the advice of an official of the Immigration of Naturalization Service who told them that in his opinion the appeal would be futile.

They relied on his advice and did not take the appeal.

Now, a co-defendant in the Ackermann case, a fellow named Keilbar, did take an appeal.

Keilbar was the brother of Mrs. Ackermann.

He wanted to defend his citizenship rights and, therefore, he took an appeal to the Court of Appeals.

While that appeal was pending, this Court decided the Baumgardner case which was inconsistent with the theory on which the judgment of denaturalization in the Ackermann case rested.

As a result of the decision of this Court in the Ackermann case, Keilbar obtained a reversal of the denaturalization judgment.

Charles Gordon:

Four years after the original denaturalization judgment in the Ackermann case, the Ackermanns made a motion to reopen the judgment under Rule 60 (b) claiming that, because of the intervening decisions in the Keilbar case and in the Baumgardner case, it was no longer equitable to enforce this denaturalization decree against it.

Yet, this Court determined that, under such circumstances, Rule 60 (b) did not afford a basis for relief.

Now, at page 20 in our brief, we have an excerpt from the opinion of this Court in Ackermann, and it seems to me that the language used by the Court in that case is directly important.

I should like to refer to it.

The Court said, “Petitioner made a considered choice not to appeal, apparently, because he did not feel that the appeal would be worth — would prove to be worth what he thought was a required sacrifice of his home.”

His choice was a risk, both calculated and deliberate and such as follows in free choice.

Petitioner cannot be relieved of such a choice because hindsight seems to indicate to him that his decision not to appeal was probably wrong, considering the outcome of the Keilbar case.

There must be an end to litigation someday and free, calculated, and deliberate choices are not to be relieved from.

Earl Warren:

Was the Court addressing itself there to the merits of the case or to the power of the district judge to act under 60 (b)?

Charles Gordon:

The merits — by the merits, you mean the question of whether the individual was properly denaturalized or whether relief under 60 (b) was available?

Earl Warren:

Yes, I mean, which of the two?

Charles Gordon:

Oh, only to the question of whether relief under 60 (b) was available.

Earl Warren:

What was the action of the trial below?

Didn’t it —

Charles Gordon:

In — in Ackermann?

Earl Warren:

Yes.

Charles Gordon:

The — the reopening was refused.

Earl Warren:

Yes, but on the merits?

Charles Gordon:

On — no, on the applicability of Rule 60 (b).

Earl Warren:

You mean that he didn’t have the power to do it?

Charles Gordon:

Well, under —

Earl Warren:

Under this —

Charles Gordon:

— the circumstances, the Court did not have the power.

Earl Warren:

Did the — did the District Court say that, under circumstances, he did not have the power or that, in his discretion, it wouldn’t be done?

Charles Gordon:

Well, Your Honor discretion, I think is a treacherous word here.

I think, in the construction of the rule, the construction by this Court in the Ackermann case, the Keilbar case, the rule of courts relief in a situation of this type of an old judgment, only when there are exceptional circumstances.

Now, if the exceptional circumstances support the framework of the discretion, then I agree with you Your Honor that it’s discretionary.

But, the rule is that there can be no reopening unless there are exceptional circumstances.

And in this case, there are no exceptional circumstances of the type which are contemplated in Klapprott and Ackermann.

Now, three members of the court dissented in that, but their dissent rested solely on their belief that the right to appeal that — that the petitioner in that case had been redirected from appealing by the improper action of government officials.

Charles Gordon:

This, they felt was an exceptional circumstance which justifies relief.

Now, in Ackermann, this Court distinguished its prior holding a year earlier in the Klapprott case which Mr. Clark had just adverted.

Klapprott also was a denaturalization suit.

Klapprott had defaulted in answering.

He had not interposed an answer.

There had been no trial of the issue.

Judgment by default had been entered against him.

Then, four years later he made a motion under Rule 60 (b) to reopen the judgment claiming that he had been prevented from defending by illness, lack of funds by interference of FBI agents, by imprisonment, and by similar circumstances.

Now, the opinions in the Klapprott case were concerned chiefly with the propriety of a default judgment, but they did make some significant observations in regard to the propriety of Rule 60 (b) relief.

Originally the courts directed that the default be vacated — the judgment be vacated and that the case be sent back for a completely new trial of the issue.

However, on reconsideration the court modified its order and merely sent the case back for a hearing to determine whether the default had been deliberate.

A hearing was conducted.

The District Court concluded that the — that the default had been deliberate and refused to reopen the judgment.

That determination was affirmed by the Court of Appeals and then this Court denied certiorari thus, appears that Klapprott is opposed to the position here.

For there, the Court refused to reopen a default in answering where there had been a determination that the default was deliberate.

I think the proper formulation, the proper approach to these cases, was that of Mr. Justice Black in his opinion in the Klapprott case.

In that case, Mr. Justice Black said that a party could be relieved from a default in answering that case or for appealing, as in this case, only if there were a special situation.

This was the language of Mr. Justice Black.

“An extraordinary situation” I believe was the language which, in effect, prevented him from appealing.

This formulation was adopted by the court in the Ackermann case.

And there, the prevailing opinion said the party can be relieved from his default in appearing — in appealing, as in that case, only upon a showing of extraordinary circumstances.

This was the language of the Ackermann case which prevented him from exercising his right to defend or exercising his right to appeal, as in Ackermann.

Now, it seems to me that there obviously are no special or extraordinary circumstances such as those contemplated by the Ackermann and the Klapprott cases.

In the first place, Just — Mr. Justice Black, in his opinion in the Klapprott case, emphasized that there had been no trial of the issue here, and he felt that the defendant there, Mr. Klapprott, should be given an opportunity to have a trial of the issue.

Here, there was a full trial of the issue.

Secondly, there was — there is no allegation that the petitioner was deprived of the effective assistance of counsel, as we suggested in the Klapprott case.

Petitioner was represented throughout these litigations by able and experienced counsel.

These were the same counsels who represented Sweet, Chomiak, and Charnowola in the contemporary cases.

These were the same attorneys who represented Nowak and Maisenberg in their efforts — their successful efforts to reverse a denaturalization judgment.

Now, there aren’t any extraordinary circumstances here such as illness, imprisonment, improper activities of government officers or any of these special considerations which were involved in Klapprott or were alleged in Klapprott and to some extent were alleged in Ackermann.

Charles Gordon:

Indeed, it seems to me that petitioner’s situation is hardly as advantageous as that of Ackermann to whom this Court denied Rule 60 (b) relief.

John M. Harlan II:

Doesn’t everything you’re arguing go to the question — or discretion of the questions?

Charles Gordon:

Well, as I said in answer to Mr. — the Chief Justice’s question, discretion here may be a relative term.

I think — I think it is — rather than —

John M. Harlan II:

This —

Charles Gordon:

— discretion, there are certain standards which have been established for determining whether such a motion is appropriate.

The standards are extraordinary circumstances which in effect preclude a party from presenting a defense or prosecuting an appeal.

This would be my formulation rather than discretion.

Now, I don’t think that Rule 60 (b), as contemplated by the decision in Ackermann or Klapprott or by the rule itself —

Hugo L. Black:

May I ask you, suppose the man had been deported under the statute — an order to be deported under a statute —

Charles Gordon:

Under a —

Hugo L. Black:

Under — under a statute.

He’s been —

Charles Gordon:

The statute, I’m sorry.

Hugo L. Black:

Ordered to be denaturalized by either one.

And, that statute should be held unconstitutional thereafter.

He made a motion under 60 (b) saying that the law is no good.

Now, he’s convicted under orders to be deported or to be denaturalized under a void statute.

What would you say about that?

Charles Gordon:

Well, my first reaction to that sir, is that I would say that he should have raised that at the outset.

However, there is a suggestion that —

Hugo L. Black:

You would say that he should be deprived of his right —

Charles Gordon:

Well —

Hugo L. Black:

Deprived of any advantage under 60 (b), even though you knew and this Government knew that the statute was unimposable and has been all the time void?

I’m asking you this to point out the question of Mr. Justice Harlan.

I have just reread what all of them has said on the Act.

It seems to me that all that you can say that that those cases are that, under the circumstances of those cases, they couldn’t get it in Ackerman.

They couldn’t get the advantage of 60 (b).

I think that they sat there and the opinion went on the ground.

Under those circumstances, do you think it went any further than that?

Charles Gordon:

Well, if Your Honor please we don’t have any question here of a claim that the statute is unconstitutional.

Hugo L. Black:

I understand that.

Charles Gordon:

So, this is something which is speculative.

Hugo L. Black:

You might have — you might have — well, you might have a different Circuit Court.

What — what is the reason have you to say that either of those cases stand for the principle that there is now a rigid ruling, such as you contend for, rather than a ruling saying that that we look at the circumstances of the case?

Charles Gordon:

I — I agree with Your Honor that the rule is not rigid, that the circumstances of the case are controlling, and I say that the circumstances here are nowhere near as acute as the circumstances —

Hugo L. Black:

Well, I gather that.

Charles Gordon:

Allegedly, Klapprott recommended.

Hugo L. Black:

I understand that argument.

Charles Gordon:

And in those cases, the Court denied Rule 60 (b) relief.

Hugo L. Black:

I understand your argument when you say that there is so much like this that involved the Government acts.

I don’t — I don’t necessarily agree with it.

(Inaudible)

I understand that argument, but I don’t understand why you hesitate to answering Justice Harlan’s question when he asked you if it, in effect, is what held on this issue.

Whether you call it discretion, anything else, you determine it on the circumstances of the case.

Charles Gordon:

Well, I think we agree.

I think when you call it discretion or extraordinary circumstance, that you have to look at the circumstance.

That —

Felix Frankfurter:

— like what you’re doing?

Given the fact that I’m a dissenter in Ackermann, I think I — if we try to understand what that case held, even that case of Klapprott said that “we leave it to the individual judgment of the judge and, if he is a kindhearted man, he will grant it and, if he’s not a kindhearted man, he won’t grant it.

There were certain criteria for exercising discretion, so-called, and not the individual predisposition or tenderness or severity, this judgment or that judgment, about finality.

One judge thinks finality is important.

He will say no and the judgment who thinks it’s not important we would say yes.

That isn’t what Klapprott or Ackermann decided.

Charles Gordon:

Your Honor stated completely what I attempted to say.

Hugo L. Black:

So, you do agree that they held that both of them stand for the tranquility judges by the extraordinary circumstances of the case.

Charles Gordon:

Well, you must find — I wouldn’t put it that — you must find extra —

Hugo L. Black:

The Court is not in discretion, in that, the Court can do what he wants to because he wants to and not because he won.

In that sense, it would not be discretionary acts determined on the circumstances of the case, whether they meet this challenge, that rule which has not been expressed in any rigid terms.

Charles Gordon:

I agree fully with Your Honor, but extraordinary circumstances — in determining whether there are extraordinary circumstances, we have some guidelines, Klapprott and Ackermann.

Charles Gordon:

And, the guidelines are — in those cases, are far above what the petitioner here has suggested.

In those cases, what some people might consider to be extraordinary circumstances were regarded as not sufficiently extraordinary to warrant relief under 60 (b).

Now, here, petitioner doesn’t even say “I was I’ll.

I was in prison.

I was without funds.

The FBI agents improperly withheld my letter to my counsel.”

These were circumstances alleged in Klapprott and, in Ackermann, it was thought by the dissenting judges that government — the government officer had improperly interfered with the individual’s right of appeal.

Hugo L. Black:

Are you saying the argument now, that they may be or not, that maybe it’s right?

You seem to be arguing the position that the rule does rigid, always without regard to circumstances, bar the use of 60 (b) if there — if the man did not appeal the judgment that was against him?

Charles Gordon:

No.

I — I haven’t said that and I don’t mean to say that.

Hugo L. Black:

I see.

I thought it was —

Charles Gordon:

I know.

Hugo L. Black:

Something that —

Charles Gordon:

I don’t mean to say that and I don’t believe I’ve said it, sir.

I have said that when a —

Hugo L. Black:

That’s what I gathered from —

Charles Gordon:

Well, let me make my point —

Hugo L. Black:

Yes.

Charles Gordon:

My position clear.

My position is that where a party has defaulted in answering a complaint as in Klapprott or in prosecuting an appeal, as in Ackermann, that default can be relieved from under Rule 60 (b) only if he shows extraordinary circumstances which, in effect, precluded him from interposing a defense or from prosecuting an appeal.

Hugo L. Black:

Well, that’s just a critical — the one critical point, whether he doesn’t appeal or couldn’t appeal.

Charles Gordon:

Well, that’s right, whether he was prevented from appealing.

Hugo L. Black:

It wouldn’t make any difference how much change had occurred in reference to anything in the world therein.

He could have appealed and didn’t know.

Are you construing Rule 60 (b) as barring it?

Charles Gordon:

That that is my position sir, that Rule 60 (b) says to the individual “you have a day in court.

We do not permit reopening of judgments after you have already had your opportunity, unless you can show that something in the circumstances of the case prevented you from urging your position, presented — prevented you from prosecuting the appeal.”

Charles E. Whittaker:

In other words, as I understand you are agreeing to the fact that Rule 60 (b) should not fall around delay in motions to re-file but rather allow reopen upon defined condition set out in the rule.

Charles E. Whittaker:

Is that it?

Charles Gordon:

Well, defiance is also a sort of vague term.

They’re not exactly defined.

The clause 5 and clause 6 of Rule 60 (b) are stated in somewhat expansive terms.

For example, clause 6 says that reopening can be granted for any other reasons which justify the reopening of the judgment.

But, in its historical context, this rule was not intended to authorize the reopening of any judgment merely because the party thinks, in a later time, he will get a better break.

It was intended to provide for situations where there was unfairness at the inception of the original proceeding, where, because of this unfairness, he, in effect, was prevented from having his full day in Court.

Now, in our estimation, Rule 60 (b) is not a license for everybody who is unhappy with his judgment to have a second chance at the court, or a third chance, or a fourth chance.

He has one day in court.

Rule 60 (b) was not intended to change that rule.

Charles E. Whittaker:

Do you agree Ackermann, as Mr. Crockett does, that involving only discretion is not power?

Charles Gordon:

Well, I’ve made that answer twice.

I think —

Charles E. Whittaker:

(Inaudible)

Charles Gordon:

I — I would hate to be put in the position that Mr. Justice Frankfurter suggested as conceding that Rule 60 (b) gives to any trial court the discretion in the judgment of reopening a case when it deems fit.

I think Rule 60 (b), in a sound construction, in its historical context, in a reading of the purpose for which it was adopted applies only when there was inequity in the original proceedings or when some intervening fact later, like dissatisfaction of a judgment, of the court’s finding, or bankruptcy, or conditions which make the enforcement of an injunction inequitable require that what was originally a correct decree or what was a decree on the mind by unfairness should now be reexamined.

Felix Frankfurter:

Mr. Gordon, you have a long white note to the Immigration and Naturalization Service Department but you’re here as a representative of the Department of Justice dealing with a problem arising under 60 (b).

The problem, under that section they arise, not touching immigration services at all, touching all sorts of claims, fraud, an inequity, a misconduct of all sorts.

And, presumably, a case like this, and was true of Ackermann and Klapprott, lays down certain considerations, criteria, call them what you will, guidelines, but district judges will have to deal with these problems everyday and we have to tell them how they are to decide these cases.

And, in Ackermann and in Klapprott, this Court laid down certain standards, not a 36 inches constitute a yard, not a mechanic thing, and not a scaling stick and weigh it, 16 ounces and not 18 ounces, but the general consideration by which judges are to be governed.

And, Klapprott and Ackerman, particularly Ackermann, said the circumstances in that case did not warrant resort to 60 (b).

And, what I understand to be your argument is that the considerations here are far less lenient for exercising authority under 60 (b) than they were in Ackermann.

Charles Gordon:

Exactly, sir, and touching on your point that this — the question involved here is broader than the rule in denaturalization cases.

We have a case pending on petition for certiorari in this Court, Emmetts against Beard which does not involve denaturalization, in which a similar effort to reopen a judgments based on a subsequent decision was presented and rejected in which a petition for certiorari has not been filed in this Court.

The same principle could apply in any conceiva —

Hugo L. Black:

What is the judgment there?

Charles Gordon:

The name of the case?

Hugo L. Black:

Yes, the case you have mentioned.

Charles Gordon:

Emmett against Beard.

Hugo L. Black:

But what is it?

Hugo L. Black:

What was the judgment?

Felix Frankfurter:

What’s it about?

Charles Gordon:

Condemnation.

Hugo L. Black:

Condemnation?

Charles Gordon:

Condemnation, yes, sir, in which one party in a condemnation suit were not appealed, later, attempt to take advantage of benefits which the persons who had appealed had obtained.

John M. Harlan II:

Are you going to save some time in getting to the merits to this case?

Charles Gordon:

That all depends on the Court.

I hope to — I would like to say something about the relevance, before I get to the merits, of Nowak and Maisenberg.

The motion to reopen was predicated on the supposed effect of this Court’s decisions in Nowak and Maisenberg.

Now, if — of course if we’re right on our first point, if the motion to reopen under circumstances such as these is not appropriate, then, of course, I think there’s nothing more to the case.

But, if the Court gets beyond that, then we think that the motion is still not sustainable because we believe that Nowak and Maisenberg are definitely not the same cases as this.

Now, there are a number of decisive considerations, which are present here which were not before the Court, and were not considered in Nowak and Maisenberg.

Nowak and Maisenberg were naturalized in 1938.

The statute which controlled the qualifications for naturalization then was the Nationality Act of 1906.

That statute had no specific prohibition against denaturalization of aliens who advocated the violent overthrow of the government, nor did it have a specific prohibition against denaturalization of aliens who were members of organizations which advocated the violent overthrow of the government.

Nowak and Maisenberg addressed — insofar as the finding of illegality is concerned, addressed only the statutory requirement that a petitioner for naturalization must demonstrate that he is attached to the principles of the Constitution.

Now, the Court, in those cases, found that, although there was substantial and convincing evidence that Nowak and Maisenberg had been members of the Communist Party, although the — there was a finding, apparently substantiated in the Court’s view, that the Communist Party advocated the violent overthrow of the government.

The lack of attachment which was the basis of the charge of illegal procurement could not be established for the purposes of a denaturalization suite, unless it were shown that the naturalized person himself advocated or was aware of the advocacy of those proscribed doctrines by the Communist Party.

Now, Polites on the other hand was naturalized in 1942.

At that time, the Nationality Act of 1940 had become effective.

The Nationality Act of 1940 continued to former statute’s requirement of attachment to the principles of the Constitution.

However, the Nationality Act added something new.

It added a specific and detailed prohibition against the naturalization of aliens who themselves advocated or who were members of organizations that advocated the violent overthrow of the government.

This was Section 305 of the Nationality Act.

Now, in the denaturalization suite before Judge Picard in 1953, the Government contended that Polites had been fraudulently and illegally naturalized.

The Court found that both charges were sustained and based its judgment of denaturalization on both.

However, we believe that, insofar as the charge of fraud is concerned or was concerned at that time, this has become doubtful because of this — the Court’s later decisions in Nowak and Maisenberg.

Now, we think the resemblance is so great that we do not trust the charge of court here.

However, the denaturalization decree also rested on a finding that the naturalization had been illegally procured and that was described in Judge Picard’s opinion as the primary charge on which he rested.

Now, his finding of illegal procurement was based on this sequence of proof.

Charles Gordon:

First, that Polites had been a member of the Communist Party, which is not disputed, during the period of 1931 to 1938.

This was within the 10-year-period preceding the naturalization.

The Court also found that the Communist Party advocated the violent overthrow of the Government and that, too, was not disputed here.

That finding is not disputed.

And, then, on the basis of these two prior findings, the Court found that, as a member of an organiz — organization advocating the violent overthrow of the Government, Polites was disqualified from naturalization under the explicit and direct terms of Section 305 of the Nationality Act of 1940.

Potter Stewart:

Mr. Gordon, as I understood Mr. Crockett’s argument was or his position was that these matters, the actual merits of the controversy, should best be left in this stage to District Court and that it was, as he suggested, that the basic issue for us to decide was whether or not there was power under Rule 60 (b) to grant this motion and, having to sign at that, that we should remand it to the District Court for consideration of the merits of the petitioner’s argument under 60 (b) as to the applicability of Belmont, Nowak, and Maisenberg, and to the pe — specific facts of this case.

If there is any — assuming that we should decide their power under 60 (b), given there’s any merit to that suggestion as to the disposition of the so-called merits?

Charles Gordon:

I — I don’t rega — I haven’t gotten to the merits yet, Your Honor.

I don’t regard this as part of the merits.

I regard this as the basis for his soliciting relief under Rule 60 (b).

If it — if that is the type of merits Your Honor has in mind, then I think that this was directly involved in the order of Judge Picard.

Judge Picard found that Nowak and Maisenberg were not applicable.

You can say the direct finding on this and, therefore, he said that Rule 60 (b) doesn’t justify relief.

This is one of thes parties.

Potter Stewart:

He also said, or at least he find, that — he said, didn’t he, that he was without power, in any event, under Rule 60 (b)?

Charles Gordon:

Because this was not the type of situation that Rule 60 (b) contemplated.

He said both things, I think.

Potter Stewart:

It was an alternative —

Charles Gordon:

That’s right.

Potter Stewart:

Position.

Charles Gordon:

And he said that he didn’t find Nowak and he discussed it.

He said I don’t find Nowak and Maisenberg applicable.

I agree with them.

I think they are not.

Now, Section 60 — 305 had not yet been enacted at the time Nowak and Maisenberg were naturalized.

Of course, that Section was not before the Court in Nowak and Maisenberg and is not something which the court can be regarded as having decided.

Actually, the controlling precedent at that time were the decisions of the Court of Appeals in the Sweet, Chomiak, and Charnowola cases represented by the same council in which the court — the three courts in those cases and the District Court had considered directly the applicability of Section 305 in which the Court of Appeals considered the applicability of 305 and in which this Court had denied certiorari.

Now, we believe that, in attempting to justify this application under Rule 60 (b), on the basis of subsequent decisions of this Court in Nowak and Maisenberg, petitioner is wrong.

We think what he actually is presenting here is an entirely new question, not considered at all in Nowak and Maisenberg and never before considered by this Court.

And, that question is whether Section 305, in prescribing for the denial of naturalization to members of “subversive organizations” is the certain short-hand term of use, required that the membership be with knowledge of the organization’s proscribed dates.

Charles Gordon:

Now, we think that this is an issue which he could have raised in the original proceeding and actually did raise.

It’s been fully argued.

This was an issue that he could have raised in the appeal which he chose not to pursue.

And in our view, there isn’t any basis in Rule 60 (b) or in any other valid consideration which would support his present effort to renew the controversy which he abandoned five years before his present motions.

Now, I should like to devote a few moment to the ultimate merits, if I may use that term, and that is whether, ultimately, he was properly denaturalized.

And this, of course — this question is reached only if we are wrong on proposition (a) that this relief is inappropriate, only if we are wrong, I believe, on propositions (b) that Nowak and Maisenberg, in our view, are inapplicable and, that is, attempt to reopen the proceedings relying on those decisions is supported by Nowak and Maisenberg, but if we are wrong on those two assumptions, then we may perhaps get to the merits.

Now, the merits of the case are, and this was developed by the testimony, that petitioner, at the time he applied for naturalization, by his own admission, was a member or had been a member between 1931 and 1938 of the Communist Party.

During that time, he had been an active functionary of the party, serving as Secretary of the Greek Fraction, as a member of the bureau, and in other important capacities that, in 1938, when he left the party, he left it only because the party had adopted a national policy that aliens should get out, and had communicated that policy to him and he obeyed the orders of his superiors in the party.

And, he testified that, at the time of his naturalization in 1942, he still believed in the aims and objectives of the party.

Now, the record demonstrates, in my view, that this membership, I think it’s pretty well set forth in the record, was meaningful within the contemplation of this Court’s decisions in the Rowoldt, Galvan, and Niukkanen cases for the purposes of the deportation statute.

It is equally meaningful, I think, for the purposes of Section 305.

This was an active membership in the ranks of the Communist Party.

Now, at the trial, the Government produced evidence through witnesses and documents that the Communist Party advocated the violent overthrow of the government.

The court found that it was such an organization and that finding is not disputed here, as I understand petitioner’s brief.

The urgent wish of Congress to bar naturalization to alien communist is underscored in the legislative history of Section 305, which is described in our brief.

The legislative deliberations — throughout the legislative deliberations, responses of this measure stated very definitely that they were aiming this statute at alien communists.

Now, the language of the statute itself and other materials in its background, I think, indicate very decisively that petitioner’s argument, which he has not stated orally yet but which is addressed in his brief, that Section 305 was aimed only at members with personal knowledge of the organization’s proscribed aims or mem — or persons who themselves advocated those prescribed — proscribed documents.

Now, I think a number of considerations, which I’ll try to summarize briefly, tell us that Congress certainly did not mean to add such a requirement.

In the first place, there is not even the suggestion of such a requirement in the language of Section 305.

In the second place, the legislative history demonstrates that, at one time, a proposal to include, to add such a requirement of personal knowledge or advocacy was proposed to Congress and that Congress did not adopt it.

And third, Your Honors will notice from reading Section 305 that it covers two types of individuals.

First, those who themselves advocate violent overthrow and, second, those who are members of organizations which advocate violent overthrow.

Now, the Senate report on this measure emphasizes that Congress intended to reach both types of cases, both those who themselves advocated violent overthrow and those who were members of organizations which advocated violent overthrow of the government.

Finally, I think it is obvious that if Congress intended that the membership clause would require personal knowledge, then the second portion of the statute was utterly meaningless because, in the first statute, it had already dealt with persons who themselves believed in or advocated the violent overthrow of the government.

Now finally, Your Honors will observe that the pertinent language of the controlling language, the language which we point here, of Section 305 are taken from and, no doubt were taken deliberately, from a resemble and no doubt were taken from the similar language of the Alien Registration Act, deportation provisions of the Alien Registration Act, which had been enacted by Congress only four months earlier and, which this Court has said in the Galvan case, did not contemplate personal knowledge of the party’s violent aims.

Now, we believe it is highly in Congress to suppose that, in Section 305, Congress intended to authorize denaturalization of aliens whose deportation it had commanded in the Alien Registration Act.

It seems to us that, under the explicit terms and the manifest purpose of Section 305, the petitioner who was admittedly a member of the Communist Party, an organization bound by the Court and not disputed hereto, bound to have advocated the violent overthrow of the government.

With those findings, petitioner was illegally naturalized within the contemplation of Section 305 which made him ineligible to consider it.

Now, from this conclusion, if we are correct in this conclusion, we think it follows that his naturalization is subject to revocation, under Section 338 of the Nationality Act of 1940, as a naturalization which was illegally procured.

Now that conclusion I think is supported by a number of decisions of this Court.

Charles Gordon:

In the Ginsberg case, decided by this Court in 1917 the Court upheld a denaturalization decree based on illegal procurement when the individual had been naturalized in the Court’s chambers rather than in open court as the statute require.

In the Ness and Maney cases which followed, this Court upheld denaturalization decrees but where there had not been attached to the petition for naturalization a certificate of lawful arrival, which the statute commanded.

Now, in each of those decisions, the ruling of this Court was unanimous.

Although, later, the latter two of these decisions, the opinions were delivered by Justices Brandeis and Holmes.

We hardly think that Congress was more concerned with these technical procedural requirements than with its vital interest in the national security.

And, with it, very definitely expressed desire to bar alien communists during the time of national crisis when the Nationality Act of 1940 was enacted.

Indeed, we think that, because of its paramount and exclusive authority over naturalization, it was well within the power of Congress to prescribe for the revocation of citizenship which had been illegally procured.

I think this is highlighted by the observations of this Court in the Ginsberg case, which we have a brief quotation from at page 43 of our brief.

There the Court says, “No alien has the slightest right to naturalization unless all statutory requirements are complied with, and every certificate of naturalization of citizenship must be treated as granted upon condition that the Government may challenge it as provided in Section 15 and demand its cancellation, unless issued in accordance with such requirements, if procured when prescribed qualifications have no existence in fact, it is illegally procured and subject to cancellation.”

Now, we find nothing in the Schneiderman or the Nowak decisions which is inconsistent with the application of the Doctrine of Illegal Procurement here.

In Schneiderman, the Court was addressing merely the requirement of attachment to the principles of the Constitution.

The Court assumed that illegal procurement would be a valid basis for denaturalization, but found the proof inadequate.

In Nowak, the Court proceeded on like assumptions.

Now, here, we have breach of a direct requirement of a statute, in Section 305, which precluded denaturalization of an alien who was a member of an organization devoted to the violent overthrow of the government.

We think that this is precisely the type of jurisdictional defect that this Court had in mind in its decisions in the Ginsberg, the Ness, and the Maney cases.

Moreover, we think it is precisely the type of jurisdictional requirement that was in the mind of Mr. Justice Douglas in his concurring opinion in the Schneiderman case, which we referred to at page 47 of our brief.

Now, I think these observations are very much in point.

Mr. Justice Douglas said, “If an anarchist is naturalized, the United States may bring an action under Section 15 to set aside the certificate on the ground of illegality.”

Since Congress, by Section 7 of the Act, forbids denaturalization of anarchist, the alien anarchist who obtains the certificate has procured it illegally whatever the naturalization court may find.

The same would be true of Communists if Congress declared they should be ineligible to citizenship — for citizenship.

Then, proof that one was not a Communist and did not adhere to that party or its belief would become, like other expressed conditions of the Act, a so-called jurisdictional fact upon which they grant this revocation.

We hold with Mr. Justice Douglas that where there is omission to comply with a jurisdictional requirement, the requirement specifically required by Congress, prescribed by Congress, there is an invalid naturalization within the contemplation of Section 338 of the Nationality Act of 1940.

Here, we have such a specific jurisdictional requirement in Section 305 which declared, “No alien shall hereafter be naturalized who belongs to the one of the organizations described in the statute.”

We think that, since there has been a violation of such a jurisdictional requirement, denaturalization was illegally procured and was, therefore, subject to revocation.

In our view, Judge Picard was clearly right in 1953 when he found that this naturalization in 1942 had been illegally procured, and when he cancelled Polites’ citizenship.

We believe, therefore, that the attack on the ultimate merits must fail.

In our view, the judgments reop — refusing to reopen the 1953 judgment is clearly correct, and we urge that it would be affirmed.

Earl Warren:

Mr. Crockett.

George W. Crockett, Jr.:

Mr. Justice, may it please the Court.

I should like to deal very briefly with one or two points advanced by counsel, which I think are readily answerable.

George W. Crockett, Jr.:

He places, I believe, undue emphasis upon the fact that the appeal in this case was dismissed with prejudice.

I do not think any significance attaches to the words with prejudice because the — the appeal was dismissed approximately one year after it was taken and it would necessarily be with prejudice.

He suggests further that this is an attempt by the petitioner to gain a retrial of his denaturalization proceeding under circumstances where he thinks the outcome will be more favorable.

I deny that because the petitioner is not asking for a retrial.

He does not regard this as a matter of appeal.

I thought I made it clear at the outset that we would suggest to the District Court that, in the light of Maisenberg and Nowak, a reconsideration of the facts in petitioner’s case might warrant that Court in concluding that petitioner’s case was decided erroneously.

The Court does not necessarily have to conclude that.

The Court might very well say, “Well, in the light of those decisions, I am still not persuaded that the Government has proved the case by clear and convincing evidence and, yet, I do not feel sufficiently doubtful to cancel denaturalization, but I do feel sufficiently doubtful to listen to these other considerations that he is mentioning.

The primary one being, should this judgment be allowed to serve as a foundation, as a springboard for the Government to now uproot this man and send him back to another country.”

Now, impinging on such a consideration would be such other factors as the fact that the petitioner has been a law-abiding citizen in this country ever since he came here at the age of 16 years of age.

He is 60 years of age now.

He needs a little help and I think the immigration service is aware of that.

I pointed out in our petition for certiorari.

In addition to that, he has no family in Greece.

His entire family is here, his American-born wife, his two children, and his two grandchildren.

He is not employed now.

Now, all of those are considerations that tend to show what, I agree Ackermann and Klapprott point out, must be an extraordinary situation.

But, there is another extraordinary situation here that was not present in Ackermann, for example, and that stems from new legislation.

In Ackermann, the petitioner was not threatened with denaturalization.

There was no statute that provided that, for conduct which he had done in the past, he could now be deported.

Meanwhile, in this case, there is such a statute.

Congress has provided that if, at any time, you were a member of the Communist Party and you are an alien, you can be deported.

So, we have a combination of circumstances here.

Because of his denaturalization, he is an alien.

Because of an act that he is — that he admittedly did back in the early 1930s, he admitted membership in the Communist Party, he can now be deported.

But, that can only follow so long as the judgment of denaturalization is allowed to have prospective application, so long as the judgment of denaturalization can serve as a basis for regarding him as an alien.

Now, those are factors, which I again submit, are more — I would not say more capably, but I would say a more easily assessed on the District Court level than they are on the level of this Court.

Now, the Chief Justice asked counsel whether or not, in the Ackermann case, the court there — the District Court reached and decided the case on the merits.

And, as I understood counsel’s answer, he suggested that there was not a decision on the merits.

However, I believe an examination of that case will indicate the following, The District Court denied the motion in an order which stated, “There is no merit to said motion.”

George W. Crockett, Jr.:

And then, the court went on to point out why it felt that there was no merit to the application for relief.

The court clearly indicated, “If there were merit, I have power in the sense of having jurisdiction to grant that relief.”

Now, counsel did not set forth, in answer to several questions from the bench, what are the normally recognized standards for granting relief under Section 60 (b) — 60 (b) (5) and (6)?

And, is it an unfailing rule that merely because one fails to appeal, that, in itself, precludes him from getting a relief under Rule 60 (b) (5) or (6).

Well, there are several standards for playing Rule 60 (b) (5) or (6).

Normally, the Court will not grant relief on either of those sections if intervening rights of third parties have become vested.

Let’s take one case decided by the government in its brief, Collins against Wichita.

That was a condemnation proceeding and, incidentally, there, an appeal was taken and this Court denied certiorari, and then an application was made for relief based upon a later decision of this Court which held that the statute providing for notice in the condemnation proceeding was unconstitutional.

The court there denied relief not because an appeal was not taken because an appeal was taken.But there had been intervening rights of third parties.

The city had condemned the property and put in a very expensive water main.

The court said, “Where real estate rights like that are concerned, we will not disturb it.”

And, the same thing is true in these other so-called condemnation cases.

Felix Frankfurter:

Why — why do you think — why do you find conflict in those cases?

George W. Crockett, Jr.:

I find conflict in those cases, Mr. Justice Frankfurter, because, here, you do not have any intervening rights of third parties vested, as the Government itself, which put my petition in this predicament, which is now seeking to take advantage of the subsequent more liberal interpretation of the law made by this Court.

Felix Frankfurter:

What part of the Government put your client to do it particularly?

George W. Crockett, Jr.:

The Government was the one that instituted the denaturalization proceeding against him.

The Government was the one who trust the District Court to make a judgment, which we contend was an erroneous judgment.

I don’t go into a discussion of why the judgment is erroneous, but let’s assume that the judgment was erroneous and that the District Court decides that it was erroneous.

Felix Frankfurter:

Why should I make any quick assumption?

Since you had a — since he had a very able knowledge of a counsel who told him that, under the law, it was not erroneous.

George W. Crockett, Jr.:

I suppose I turn then Your Honor to the discussion of whether or not the judgment itself is erroneous.

I don’t feel that it is necessary to get to that point, but since the counsel has spent quite a bit of time talking about it, I would like to do the same thing.

He begins by conceding that the judgment is erroneous under Nowak and Maisenberg insofar as it found that my client was had procured his naturalization by fraud or, be it, the Government’s brief waits until I think it is the very last footnote in which that concession is made.

So, the idea of fraud is completely out of the case.

We go then to the other ground for denaturalization, which was illegal procurement.

Now, there, the government is on very tenuous ground.

First, they quote from Mr. Justice Douglas, but I think they do a disservice to Mr. Justice Douglas in their quotation because at that time, the statute specifically mentioned anarchist and precluded the naturalization of anarchist.

The statute did not pro — specifically mentioned communist.Mr. Justice Douglas was merely saying “if Congress had said no communist shall be granted citizenship, then, obviously, proof that a man was a communist was all that was necessary.

That is not what the statute says at that time.

It was not until 1952 that statute was amended to make any such provision.

George W. Crockett, Jr.:

So what we have here is a case in which the Court concludes that there is sufficient evidence to show that the petitioner was a member of the Communist Party and that the Communist Party, within the 10-year-period taught and advocated the violent overthrow of the government.

The Court did not go on to find, and specifically disclaim any intention to find, that this petitioner had knowledge of any such illegal advocacy.

The Government argues that we, on this occasion, do — that we concede that the Communist Party was an organization that taught and advocated according to this record.

We make no such concession.

As a matter of fact, in our brief, we point out repeatedly that we are incorporating by a reference, all of the pertinent arguments that we made in the Nowak case and, in addition, on page 21, I think, this — of our brief where we discussed the insufficiency of the evidence.

We point out here that the evidence did not show, in our view of the evidence, illegal teaching and advocacy and certainly did not show knowledge on the part teaching and advocacy and certainly, it did not show knowledge on the part of this petitioner.

Now, why do I say that the evidence did not show illegal teaching and advocacy?

First, because you have here no more than the evidence that you had in the Nowak case.

And, there, the Court was unable to conclude that the proofs were sufficient to show that the party taught and advocated overthrow the government by force and violence.

The court said assuming that without deciding it.

But, in addition to that, the Court also called attention to its previous decision in Yates versus United States where it clearly pointed out that the teaching and the advocacy must be of a character that incites to action and that in the absence of any such showing of incitement, you could not say this was the kind of teaching and advocacy contemplated by Congress in the use of those words which have come to be words of art.

Obviously, when you read the quotations that are set forth in our brief and the references that are made in the Government’s brief, I think you come to the conclusion that, here, again, the government has failed to show by clear convincing unequivocal evidence that the Communist Party in 1930 when the petitioner admittedly was a member of it, engaged in teaching in advocacy of the violent overthrow of the government in words of incitement to action.

There is no such indication here in the record.

Now, this whole idea of what constitutes illegal procurement is one that seems to have confused the District Courts for a long, long period of time.

In the Schumer case in the Eastern District of Michigan, I believe you will find the one and only decision with exception of the subsequent decision in Polites’ case where a District Court has held that a mere showing of membership in the Communist Party and that the Communist Party was an organization that taught and advocated force and violence without any indication of any knowledge on the part of the petitioner of such teaching and advocacy constituted illegal procurement.

As a result of those two decisions, I might say, both of those two decisions were considered by Judge Goodman of the Northern District of California who, I might say parenthetically, is regarded in many courts as being an authority on immigration law, has having been erroneously decided.

He interprets illegal procurement to mean any instance where the record on the denaturalization proceeding fails to show that all of the requirements of the statute were met before there was a grant of citizenship.

And so, he says “Ginsberg?

That’s correct.”

The record there clearly showed that he was granted citizenship without the requirement of a hearing in open court.

He goes on to consider the other cases dealing with residence and so forth.

That interpretation makes sense.

Applying that to Polites’ case where is there anywhere in the record of his naturalization any proof that the Communist Party — any proof, one, that he was a member of the Communist Party, and two, that the Communist Party at that time taught and advocated the violent overthrow of the government.

The Court made no such finding.

On the record of his naturalization, every requirement made by Congress in the statute was satisfied.

Under those con — circumstances it cannot I contend be logically argued that his citizenship was illegally procured.

Now, I desire to take up just one final point and that brings me back to the question of whether or not the District Court here was justified in concluding that merely because of the failure to appeal, there was no power in the District Court to grant the relief.

And in that connection, I want to call attention to the case cited in the Government’s brief the Elgin case on page 29 and point out that in that case an appeal was actually taken and relief was denied but when later a petition was made setting four circumstances that showed an extraordinary situation within the — within the opinion of the District Court.

The court did not say merely because you took an appeal and the issue has already been resolved, we will not grant you relief.

Instead, the District Court granted the relief.

George W. Crockett, Jr.:

The Circuit Court said, “We see no basis for disturbing the discretion that was exercised by the District Court.”

So, we submit — may it please the Court that in this case the appropriate remedy would be to send this case back to the District Court just as was done in Klapprott with directions take testimony and determine whether or not this is an exceptional situation within the prior holdings of this Court, and if you find or if you do not find that this is an exceptional situation then exercise your discretion in determining whether or not relief should be granted.

Thank you.