Before MARIS, McLAUGHLIN and KALODNER, Circuit Judges.
The question presented by this appeal is whether plaintiff below, Albert Hermann Lehmann, a native-born citizen of the United States, expatriated himself by reason of his conscription into a foreign army and incidential taking of an oath of allegiance to a foreign sovereign.*fn1
The District Court found as a fact*fn2 that expatriation had taken place. With respect to that finding it must immediately be noted that it was in the nature of an ultimate finding of fact and on that score it is well settled that such a finding is but a legal inference from other facts*fn3 and as such is subject to review free of the restraining impact of the so-called "clearly erroneous" rule applicable to ordinary findings of fact by the trial court.*fn4
Our problem then, in short, is to determine whether the evidence on which the District Court premised its ultimate finding of fact of expatriation measures up to the applicable legal standard of proof.
The pattern of this case is not unfamiliar to the courts. In its broad aspects it presents a situation where a young man who was born in the United States of Swiss parentage and by virtue of that fact acquired dual nationality under the laws of the United States and Switzerland, was conscripted into the Swiss Army in accordance with its laws and as a result was ruled to have suffered loss of his American citizenship under the provisions of Section 401 of the Nationality Act of 1940, 8 U.S.C.A. § 801.
Section 401 of the Nationality Act of 1940 provides as follows:
"A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
"(b) Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state; or
"(c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state; * * *."
"Expatriation is a voluntary renunciation or abandonment of nationality and allegiance." Perkins v. Elg, 1939, 307 U.S. 325, 334, 59 S. Ct. 884, 889, 83 L. Ed. 1320.
Conscription into the Army of a foreign government of one holding dual citizenship is sufficient to establish prima facie that his entry and service were involuntary. Perri v. Dulles, 3 Cir., 206 F.2d 586.
It is well settled that expatriation under Sec. 401(c) is "limited to cases where the induction into the foreign military service may be said to have been voluntary." Dos Reis v. Nicolls, 1 Cir., 1947, 161 F.2d 860, 861; Podea v. Acheson, 2 Cir., 1950, 179 F.2d 306; Pandolfo v. Acheson, 2 Cir., 1953, 202 F.2d 38; Cf. Tomaya Kawakita v. United States, 1952, 343 U.S. 717, 72 S. Ct. 950, 96 L. Ed. 1249.*fn5
In Doreau v. Marshall, 3 Cir., 1948, 170 F.2d 721, 723 we held, in construing the provisions of Sec. 401, that "the very essence of expatriation is that it be voluntary".
Having in mind these principles, we turn to an examination of the record in this case.
Lehmann was born June 2, 1921, in Philadelphia, Pennsylvania of parents who were Swiss nationals, thereby acquiring dual nationality under the laws of the United States and of Switzerland. In 1924, at the age of three years, he was taken by his mother to live in Switzerland, his father continuing to reside in the United ...