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United States v. Backofen and Four Other Cases .

decided.: June 30, 1949.


Author: Mclaughlin

Before BIGGS, Chief Judge, and GOODRICH, McLAUGHLIN, O'CONNELL and KALODNER, Circuit Judges.

McLAUGHLIN, Circuit Judge.

These appeals comprise a group of denaturalization cases which are vitally affected by the recent decision of the United States Supreme Court in Klapprott v. United States, 335 U.S. 601, 69 S. Ct. 384, judgment modified 336 U.S. 942, 69 S. Ct. 398.

In Backofen, Koop and Neupert, on February 18, 1948 we affirmed the judgments of the District Court because of our opinion in the Klapprott case, 3 Cir., 166 F.2d 273, now reversed supra. We stayed the mandates in those issues pending review of our decision in Klapprott by the Supreme Court. The appeals in Fitting and Kohler were argued before this court on January 3, 1949 and October 21, 1948 respectively.*fn1 We reserved decision in both those matters pending final determination of the Klapprott litigation. Following the filing of the Supreme Court opinion in Klapprott, the five appeals were reargued before us.

In all of these cases the Trial Judge functioned under Rule 60(b), Federal Rules of Civil Procedure; 28 U.S.C.A., as it was before its amendment*fn2 and we ourselves decided Backofen, Koop and Neupert prior to said amendment which became effective March 19, 1948. Under the original Rule 60(b) the Court on motion could relieve a party from a judgment "taken against him through his mistake, inadvertence, surprise, or excusable neglect" provided the motion was made within six months of the judgment. The rule also provided that "This rule shall not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding * * *." The Trial Judge correctly construed that exception to mean that in a proper case, proceedings by way of bill of review or bill in the nature of a bill of review could be had.*fn3 He considered the applications in these matters as bills of review. His holding that at most they were for alleged error on the face of the record is not disputed nor is his finding that a bill of review for such error must ordinarily be brought within the time limited for an appeal.*fn4 He disposed of the applications on two grounds: (1) No error on the face of the record; and (2) Because in Backofen, Koop and Neupert the application was made over three years after the entry of judgment in the original proceedings; in Fitting, just less than three years, and in Kohler, four and one-half years. The Court attributed the delay to the defendants' wilful neglect.

In each of the suits, a complaint was filed in the District Court alleging that the particular certificate of naturalization had been illegally and fraudulently procured and seeking cancellation of said certificate on those grounds. The complaints in Backofen, Koop, Neupert and Fitting were filed October 23, 1942. The complaint in Kohler was filed May 12, 1942. Personal service of the summons and complaint upon the defendant was had in each case. Thereafter default judgments were entered in accordance with the prayers of the complaints. In Backofen, Koop and Neupert such judgments were entered June 15, 1943; in Fitting, judgment was entered August 10, 1943; in Kohler, judgment was entered July 17, 1942. In Backofen, Koop and Neupert testimony was taken in support of the allegations of the complaints. There was no such testimony in Fitting and Kohler. In Fitting an Affidavit having to do with the mechanics of service of the complaint and order for service of same by publication was filed by the Government.

Amended Rule 60(b), as said, became effective March 19, 1948.*fn5 As amended, the rule, among other things, increased from six months to a year the time for making the motion for relief from a judgment on the ground of mistake, inadvertence, surprise or excusable neglect. It added to the rule the power of the Court to relieve the party from a final judgment for "any other reason justifying relief from the operation of the judgment." This provision carries no limitation of time other than the general restriction applying to the motion whatever its basis, namely, that "the motion shall be made within a reasonable time * * *." In Klapprott, despite the fact that amended Rule 60(b) did not become effective until after the District Court had denied the motion to set aside the default naturalization judgment and we had affirmed that action, the Supreme Court held that amended Rule 60(b) should be applied. The Court said 335 U.S. at page 609, 69 S. Ct. at page 387 of the opinion: "Petitioner should be afforded the benefit of the more liberal amended 60(b). For Rule 86(b) made amended 60(b) applicable to 'further proceedings in actions then pending' unless it 'would work injustice' so to apply the rule. It seems inconceivable that one could think it would work any injustice to the Government to measure the petitioner's rights by this amended rule in this case where all he asks is a chance to try the denaturalization proceeding on its merits. Amended Rule 60(b) should be applied."

With substantially the same circumstances appearing in the instant matters, it is conceded that the above pronouncement is controlling here. Having it in mind we will examine the individual appeals.


Appellant sent a letter to the District Court dated September 10, 1946 asking that his case be reexamined. The Court regarded the letter as a motion to open and set aside the default judgment. With the matter coming under the then existing Rule 60(b) the Court decided it was without jurisdiction and dismissed the motion. Since under the Supreme Court's ruling in Klapprott, supra, amended Rule 60(b) is to be applied to this case there remain only the questions whether appellant's letter petition alleges "any other reason justifying relief from the operation of the judgment" and if so, whether the petition was presented within a reasonable time. The letter was written from the internment camp at Crystal City, Texas, where appellant had been interned for over three years. It states he is without funds to procure a lawyer and begs the Court "to please provide such counsel for the defense of my citizenship." The vague second paragraph of the letter can be interpreted to indicate that Backofen is trying to assert that he has a good defense to the charges against him.*fn6 The inferable facts are within the range of the detailed allegations of the Klapprott petition and of the Supreme Court's holding that those allegations came under the "any other reason" clause of 60(b) to which the one year limitation provision does not apply. Since appellant now has an attorney, particulars of his petition should be readily available to the Government. And under the Klapprott rule in view of appellant's circumstances, the time within which his petition was filed can be accepted as reasonable.


The Koop facts are virtually identical with Backofen. Koop's letter to the Court is from the same internment camp and bears the same date. He asserts that he is without funds saying that "Otherwise I would have secured a lawyer at the time I lost my 'citizenship-papers'". He asks the Court to provide a lawyer for him. The same inference that he alleges a good defense can be taking from the second paragraph of his letter which is practically word for word, the Backofen language. The Trial Judge disposed of this matter as he did Backofen.He took the letter as a petition to reopen the judgment and denied the petition on the ground that the Court was without jurisdiction to reopen the judgment under Rule 60(b) as it then read. We think that the Klapprott opinion governs as in Backofen.


This case is similar to though stronger than either Backofen or Koop. Neupert's letter to the District Judge was dated September 11, 1946. It came from the Crystal City internment camp and was considered by the Court as a petition to reopen the judgment. Its pattern is that of the Backofen and Koop letters except that Neupert specifically states that "At the time my citizenship-paper was going to be revoked, I was physically and mentally unable to defend myself and wrote this to Mr. Charles M. Phillips, United States Attorney."*fn7 Its allegations bring it within the "any other reason" clause of ...

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