United States v. Lucchese

PETITIONER: United States
LOCATION: John H. Kerr Dam and Reservoir

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 365 US 290 (1961)
ARGUED: Dec 08, 1960 / Dec 12, 1960
DECIDED: Feb 20, 1961

Facts of the case


Media for United States v. Lucchese

Audio Transcription for Oral Argument - December 12, 1960 in United States v. Lucchese

Audio Transcription for Oral Argument - December 08, 1960 in United States v. Lucchese

Earl Warren:

Number 57, United States, Petitioner versus Gaetano Lucchese, et cetera.

Mr. Barnett.

Wayne G. Barnett:

Mr. Chief Justice, may it please the Court.

This is actually two cases and they are consolidated for argument.

The Lucchese case is here on writ of certiorari, but also the Costello case Number 59 is being argued with Lucchese on one question that that question that was raised by the motion for leave to amend the petition in Costello.

In the 1955 term, this Court held in United States v. Zucca that a denaturalization proceeding could not be maintained without filing in Court the affidavit of good cause required by Section 340 (a) of the Immigration Act.

These cases arise from the Government's attempt to comply with those requirements.

In both of these cases as in Zucca, the affidavit of good cause was not filed with the original complaint.

After the Zucca decision however, the Government did file affidavits in attempt to cure the original defect.

The Second Circuit in both cases held that that late filing was adequate.

This Court, however, granted certiorari and in per curiam orders, reversed the judgments and remanded the cases with directions to dismiss the complaints saying and the order appears in new Lucchese at page 29 an affidavit showing good cause as a prerequisite to the initiation of the denaturalization proceedings.

The affidavit must be filed with the complaint when the proceedings are instituted.

On remand of the -- of these two cases to the District Courts, Lucchese to the Eastern District of New York and Costello to the Southern District, the Government submitted proposed judgments dismissing the complaints without prejudice.

The District Courts in each case, however, felt that they were bound by this Court's mandate simply to dismiss without specifying the effect of the dismissal orders and the order in Lucchese is in the record at page 30 and 31.

The dismissal order in Costello is not printed in the record, but we are -- by stipulation filed copies which I believe were distributed to the Court.

As the Court will see there substantially identical and simply reciting the prior proceedings and judging that the complaints be dismissed.

Now up to that point, the two cases are identical for all material purposes and it's only after that point that they're filed separate.

In Costello, the Government did not appeal from the dismissal order, but rather simply filed the new complaint with the required affidavit.

It was met, however with the claim by Costello that since the dismissal order of the prior action did not specify that it was without prejudice, it operated by force of Rule 41 (b) as a dismissal with prejudice and barred the new action.

Both the District Court and the Court of Appeals rejected that argument and it's that question that Costello seeks to raise by the motion to amend the petition.

This Court granted the main petition in the Costello which raises other questions which are being argued separately, did not act on the motion to leave to amend the petition and set that motion down for argument together with Lucchese.

Now, in the meantime, because of the res judicata argument being made in the Costello, the Government sought to protect itself in Lucchese by appealing in the original proceedings themselves from the refusal of the District Court to act without prejudice to a dismissal order.

The Court of Appeals dismissed that appeal on the ground that the District Court had no power on remand to do anything more than dismiss as this Court had said without embellishment or elaboration.

The Court granted certiorari on the Government's petition and as I say, consolidated that with the Costello motion.

Potter Stewart:

Mr. Barnett, it's a little complicated procedure to follow.

The basic issue is simply not I expected sure enough.

What was the chronology in the Court of Appeals for the Second Circuit?

Did the Costello appeal get there ahead of the Lucchese appeal?

Wayne G. Barnett:


The Lucchese appeal was -- I'm not sure when they were filed.