AUGUSTUS N. HAND, Circuit Judge.
The plaintiff brought this action under Section 503 of the Nationality Act of 1940, which provides as follows:
"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
The trial judge dismissed the complaint on the ground that the plaintiff, though born a citizen of the United States, voluntarily expatriated himself and for that reason was not entitled to the judgment which he seeks, under Section 503, supra, declaring him to be a citizen. We hold that the decision that he voluntarily expatriated himself was erroneous and that the judgment must, therefore, be reversed.
Section 401 of the Nationality Act of 1940 further provided as follows:
"§ 401. 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; * * *." 54 Stat. 1168, 1169, 8 U.S.C.A. § 801.
The Nationality Act first went into effect January 13, 1941, but the Act of 1907 was in effect during most of the time embraced in the case at bar.
It was provided in Chapter 2534 of the Act of 1907, 34 Stat. 1228:
"Sec. 2. That any American citizen shall be deemed to have expatriated himself * * * when he has taken an oath of allegiance to any foreign state."
The provisions of the Nationality Act which we have quoted above were in part reenactments of the Act of 1907 which we have referred to.
The question before us is whether Podea, a native-born citizen of the United States, expatriated himself by reason of his conscription into a foreign army and consequent taking of an oath of allegiance to a foreign sovereign.
Podea was born in Youngstown, Ohio, on September 12, 1912. His parents had emigrated to America from Austria-Hungary but had remained citizens of that country. In 1921 they returned to the Province of Transylvania in Roumania, the place of their origin, and brought their son with them. While in Ohio he attended the Youngstown public schools and on his removal to Roumania with his parents went to a high school there and later graduated from the University of Cluj. In 1934 he was ordered by the Roumanian military authorities to appear for registration. After registration he received a two years deferment of induction on the ground that he wished to finish his studies. In July 1931 he applied to the American Consul
In October, 1936, the plaintiff was inducted into the Roumanian army, and as an incident thereof, took an oath of allegiance to the King of Roumania along with four or five hundred other conscripts, and thereafter served in the Roumanian army until October 1937, when he was placed on the military reserve list and continued to reside in Roumania. In the winter of 1938 he again visited the American Consulate in Roumania and asked if any new efforts might result in granting him an opportunity to return to the United States, to which it was replied that he had taken an oath of allegiance to a foreign government. In 1939 he obtained an American visa based on a Roumanian passport in order to cover the World's Fair in New York as a Roumanian newspaper reporter. On May 29, 1939, the Supreme Court held in Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320, that a child born in the United States did not lose his citizenship by reason of his parents' resumption of their former allegiance. On the occasion of his visit to America to report on the World's Fair, the plaintiff called at the State Department, discussed with an official there his citizenship status, and was advised that he was not an American citizen, but should reenter through another country and establish permanent residence as an immigrant. He returned to Roumania late in 1939, and in June 1941 was again inducted into the Roumanian army, where he served until October 1941. The trial judge found that the plaintiff, at the time of his return to Roumania, knew that he could again be inducted into service there since he was a reserve officer in the Roumanian army. On December 31, 1941, he married an American citizen, after which he applied for and obtained a visa from the American Consul under which he left Roumania and arrived in the United States in June 1942. In May 1946 he again applied to the State Department for an American passport, which was denied on the ground that he had lost his citizenship.
The defendant contends that Podea's oath of allegiance to the King of Roumania in 1936 and his re-entry into the Roumanian army in 1941 were not involuntary, and therefore were not acts caused by duress which would negative expatriation. If there was duress, no loss of citizenship would result and so the Court of Appeals for the First Circuit held in Dos Reis ex rel. Camara v. Nicolls, 161 F.2d 860, in an opinion by Judge Magruder. See also Perkins v. Elg, supra, 307 U.S. at page 334, 59 S.Ct. 884. When the plaintiff was refused a passport by the State Department he was compelled to serve in the Roumanian army in 1936 and could not return to America until he completed his military service and could obtain a Roumanian passport on the theory that he was a Roumanian citizen — as our government said he was. He obtained that passport because of the ruling of our State Department that he was a Roumanian citizen, and without it he could neither have come to America temporarily to pursue his calling as a newspaper reporter, nor as a temporary
For the foregoing reasons the judgment of the District Court is reversed and the cause remanded with direction to enter a judgment declaring that the plaintiff is a native born citizen of the United States entitled to all the rights and privileges of such a citizen.