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Stipa v. Dulles

decided.: May 16, 1956.

GIOVANNI STIPA, APPELLANT,
v.
JOHN FOSTER DULLES, SECRETARY OF STATE.



Author: Kalodner

Before BIGGS, KALODNER and HASTIE, Circuit Judges.

KALODNER, Circuit Judge.

Giovanni Stipa appeals from the judgment of the United States District Court for the Eastern District of Pennsylvania dismissing his complaint seeking a judgment declaring him to be a citizen of the United States.*fn1

The premise of the District Court's disposition was that Stipa had, under the provisions of Section 401(d) of the Nationality Act of 1940,*fn2 expatriated himself by accepting employment as an auxiliary in the Police Force of Italy. Stipa's contention that his employment was impelled by economic duress - that he "could find no work in any factory or employment whatsoever" and that he "was in need of assistance because after the war there was nothing to do in Italy" was rejected by the District Court on the ground that "economic duress" did not constitute such "legal duress" which would avoid the expatriating effect of his conduct.*fn3

With respect to the District Court's conclusion that Stipa expatriated himself by accepting employment as an auxiliary in the Italian Police Force, 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*fn4 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.*fn5

It is appropriate to note at this point that we are concerned only with the application of Section 401(d) and with no other section of the Nationality Act of 1940.*fn6 That has been made clear by both Stipa and the Government on this appeal. Attention is called to that fact because in its "Opinion Sur Motion for Re-Argument" the District Court made some reference to the fact that Stipa "served in the Italian Navy"*fn7 and "he voted in Italy".*fn8

The relevant facts as far as Section 401(d) is concerned are disclosed by the record to be as follows:

Stipa was born in Plymouth, Pennsylvania, September 14, 1918 of parents who were Italian nationals and thus he acquired dual nationality in the United States and Italy under the laws of the two countries. When he was two years old, in September, 1920, his mother having died, he was taken by his father to Italy where he remained until January, 1953, when he came to this country. In November, 1945, when he was discharged from the Italian Navy (Note 7) he wrote to his brother in the United States and was advised by him that "he would eventually send (Stipa) the money to come to America." At the time of his release from the Navy Stipa "was in a very poor financial circumstance".*fn9 He testified: "The first job I got was to clean windows of business places, stores".*fn10 He sought to obtain a job "but there was no work".*fn11 He "was in need of assistance because after the war there was nothing to do in Italy"; he "could find no work in any factory or any employment whatsoever"; "having noticed that there were circulars around the country requesting men * * * to be employed as auxiliary police in Italy (he) proceeded to put in an application to enter this auxiliary police" and "was accepted * * * sometime in October, 1947."*fn12

His sole reason for accepting the position in the auxiliary police was "for the purpose of earning a livelihood".*fn13 He served for two years and then resigned because he would have been required to go to a military school for further training.*fn14

The record discloses that on August 25, 1947, some two months prior to joining the Italian police force, Stipa filed an "Application for (American) Passport" on a "Form for Native Citizen" with the American consul for the district of Rome, Italy. As part of his Application and attached to it, Stipa took an "Oath of Allegiance" to the United States.*fn15

On the facts as stated Stipa contended below, as he does here, that his employment in the auxiliary police force of Italy was compelled by "economic duress" and was thus involuntary and not within the strictures of Section 401(d).

The District Court did not find that Stipa was not subjected to "economic duress" but ruled against him on its view that only "legal duress" could avoid the effect of expatriating conduct and that "economic duress" and not constitute "legal duress".

The District Court in its Opinion Sur Motion for Re-Argument*fn16 stated its view as follows:

"I agree that where an American citizen accepts expatriating employment with a foreign government, if it is the law that the mere fact that he needs a job in order to make a living and is unable at the time to find any other employment constitutes legal ...


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