Before 'SPARKS, MAJOR, and MINTON, Circuit Judges.
This appeal is from an order entered by the District Court on May 17, 1946, dismissing plaintiff's complaint in a suit predicated upon Section 903, Title 8 U.S.C.A., entitled "Judicial proceedings for declaration of United States nationality in event of denial of rights and privileges as national."
Section 903 provides: "If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in * * * the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States."
The complaint, filed January 22, 1946, alleged so far as here material that the permanent residence of plaintiff was in the City of Indianapolis, Marion County, State of Indiana, and that he was a citizen of the United States of America by virtue of a decree of naturalization duly entered by the Supreme Court of the District of Columbia on October 1, 1935, pursuant to which decree a certificate of citizenship was issued to him on October 1, 1935. A certificate of such citizenship was attached to and made a part of the complaint. It alleged that said decree and certificate of citizenship had never been revoked, rescinded or cancelled, nor had any action ever been commenced for such purpose, and that by virtue of such citizenship plaintiff was entitled to and claimed the right and privilege to reside in the United States.
The complaint further alleged that the defendant in his capacity as Attorney General and as the executive officer of the Department of Justice of the United States had disputed and denied plaintiff certain of his rights and privileges as a citizen and national of the United States in the following manner: That upon plaintiff's discharge from service as a soldier in the United States Army, agents of the said defendant took him into custody and issued what it termed an order of internment, erroneously proclaiming that plaintiff was an enemy alien and a native citizen or subject of Germany and that plaintiff had been interned and was being held as a prisoner on Ellis Island, a place designated and used by the government of the United States as an exodus point from which enemy and other aliens are deported from this country. The complaint also alleged in substance that defendant was threatening to rescind and revoke plaintiff's citizenship and deport him from the United States, in contravention and denial of his rights and privileges as a citizen. The complaint concluded by praying, among other things, that plaintiff be produced in court, that a hearing be had and that "his said citizenship as a National of the United States of America be confirmed and ratified."
On March 21, 1946, defendant answered the complaint and, so far as here material, admitted that plaintiff became a citizen of the United States by naturalization at the time and place alleged in the complaint and that no judicial proceedings had ever been commenced for the purpose of setting aside said decree of naturalization, but that plaintiff on November 4, 1938 returned to Germany, that he entered the German Army in June 1940, that he had expatriated himself and lost his nationality and citizenship by virtue of taking an oath of allegiance to Adolph Hitler, then Fuehrer of the German Reich, during or about June 1940, and that he was an alien enemy. The answer also admitted that the defendant in his official capacity had withheld from plaintiff certain rights and privileges and that he was being detained as alleged in the complaint. The answer prayed that the judgment sought by plaintiff be denied and that a judgment be entered declaring that plaintiff ceased to be a citizen of the United States upon his taking the oath of allegiance to Germany. On May 17, 1946, defendant filed an amendment to his answer in which he further alleged that plaintiff lost his United States nationality by obtaining naturalization in a foreign state, to wit, the Third German Reich, upon his application on or about June 1940.
Upon this state of the pleadings the cause came for trial before Honorable Walter C. Lindley, specially assigned to hear and decide the case. At the hearing plaintiff, so far as the record discloses, was represented by counsel of his own choosing. The court at the conclusion of the trial rendered an oral opinion which it expressly adopted as its findings of fact and conclusions of law, and on May 17, 1946 entered the order appealed from, dismissing the complaint "for lack of equity." Upon plaintiff's application, he was permitted to prosecute his appeal in forma pauperis, printing of the record was dispensed with, and this court appointed as counsel for the plaintiff for the purpose of perfecting and presenting plaintiff's appeal to this court Honorable Jay J. McCarthy, a prominent member of the Chicago Bar. In this connection we think it appropriate that we express our appreciation for the ability, earnestness and diligence displayed by this court-appointed counsel.
The contention most seriously urged on this appeal is that the findings made by the trial court are not justified by the record. It is also contended that the court erred in the admission of evidence, that the judgment is erroneous because based upon an ex post facto law, and that plaintiff in no event is a national of Germany but one of France. Closely related to the contention that the findings of the court are not substantially supported is the argument that the court erroneously placed the burden of proof upon the plaintiff. In fact, a large portion of plaintiff's brief is devoted to this phase of his argument. This contention of plaintiff is predicated upon the following statement contained in the opinion of the trial Judge:
"Now, I have heard this evidence. I have observed the demeanor of the witnesses on the witness stand. I must confess that I have had a good deal of sympathy for the plaintiff in some respects in certain parts of his story. But I think upon a resolution of all this evidence, remembering that the burden of proof is upon the plaintiff to prove his case by a preponderance of the evidence, that I cannot put the stamp of approval, the stamp of probity, the stamp of truthfulness upon his testimony."
In response to plaintiff's contention as to the burden of proof, defendant argues (1) that the burden is upon the plaintiff because the suit was instituted by him, and (2) the language quoted from the trial Judge's opinion did not relate to any of the expatriating acts relied upon by the government but only to asserted facts advanced by the plaintiff to excuse and avoid the consequences of such acts, that is, that he committed such acts as a result of duress. There may be some basis for the defendant's latter contention but we must admit that we are unable to say that the court thus limited its conclusion that the "burden of proof is upon the plaintiff." In fact, we think it more likely that plaintiff's appraisement of the court's statement is correct.
We have examined the cases cited by the defendant in support of his contention that the burden of proof is upon the plaintiff. We find them not in point. In fact, there is no case, so far as we are aware, which has discussed or decided where the burden lies in a case of the instant character. There are cases which have discussed the matter in suits brought under the general declaratory judgment Act, Sec. 400, Title 28 U.S.C.A., Judicial Code Sec. 274d, and we see no reason why the same rule should not apply in the instant case. It has been held that a suit of the instant character may also be maintained under the general declaratory judgment Act. Ginn v. Biddle, D.C., 60 F.Supp. 530. See also Perkins v. Elg, 307 U.S. 325, 59 S. Ct. 884, 83 L. Ed. 1320.
Of the numerous authorities which we have examined, we think the rule is best stated in Reliance Life Ins. Co. v. Burgess, 8 Cir., 112 F.2d 234, certiorari denied 311 U.S. 699, 61 S. Ct. 137, 85 L. Ed. 453, wherein the court, in discussing the burden of proof in a declaratory judgment suit, stated, 112 F.2d at page 237:
"The question as to whether the burden of proof in its primary sense rests upon the plaintiff or defendant is ordinarily to be determined by ascertaining from the pleadings which of the parties without evidence would be compelled to submit to an adverse judgment before the introduction of any evidence. It is a fundamental rule that the burden of proof in its primary sense rests upon the party who, as determined by the pleadings, asserts the affirmative of an issue and it remains there until the termination of the action. It is generally upon the party who will be defeated if no evidence relating to the issue is given on either side." (Citing cases.)
Applying the rule thus announced to the instant situation, it is pertinent to note the state of the pleadings. As already shown, plaintiff alleged that he was a naturalized citizen and submitted in connection with his complaint his certificate of naturalization. Also, that his rights as such were being interfered with by defendant. The burden of course would have been upon plaintiff to prove such allegations if they had been denied, but they were expressly admitted by defendant in his answer. Such being the case, plaintiff without proof would have been entitled to a judgment. We suppose all would concede that an agency of the government is without authority to interfere with the rights of a citizen, whether he be naturalized or native born, except in a manner authorized by law. Defendant in his answer or otherwise makes no intimation to the contrary but relies upon the ...