The opinion of the court was delivered by: MCGOHEY
The plaintiff, a native born citizen of the United States, having been declared to have expatriated himself by allegedly taking an oath of allegiance to the German Government, brings this suit pursuant to 8 U.S.C. § 903 for a judgment declaring him to be a national of the United States. The case was tried to the Court alone.
The complaint is dismissed as to the defendant McGrath because no evidence whatever was introduced that he or the Department of Justice at any time denied to the plaintiff 'any right or privilege' within the meaning of the statute.
The complaint is dismissed as to the defendant Acheson because the evidence, which in my opinion is clear, unequivocal and convincing, leaves me in no doubt,
that the plaintiff did freely take an oath of allegiance to Adolf Hitler and to the German Reich and thus expatriated himself under the Nationality Act of 1907.
The facts of the plaintiff's life and activities here and abroad came almost entirely from himself at different times and in the following forms: two statements to U.S. Army investigators in Germany in 1947; two questionnaires filed at an engineering school in Germany; and his testimony as a witness in his own behalf at the trial.
His present position is this. Whatever in the former versions is adverse to his interests should be disregarded in favor of so much of his present version as is helpful. Of course, whatever in his earlier statements is helpful or innocuous is to be accepted as true.
I am unable, however, to indulge the underlying assumption of this argument which is that Jost told the truth before me. By his own admission on the stand he thinks it is all right to lie when that is convenient to his purpose, and he acts accordingly. Moreover, his whole demeanor both on direct and on cross-examination showed him, in my opinion, to be utterly unworthy of belief except when corroborated. Although he is intelligent and obviously understands English well, he pretended to misunderstand simple questions. On cross-examination he persistently refused, unless directed, to answer responsively. At first he claimed that the statements he himself wrote out for the Army authorities in Germany were untrue when he made them. Later, however, when confronted with the statements on the stand and having read them, he admitted that everything he said in them was true when he said it and is true now. The situation here, then, is like that in United States ex rel. Bishop v. Watkins
where the Court had to select from various contradictory statements those which under all the circumstances seemed to it most likely to be true.
Discussion of matters in dispute will be aided, it is believed, by setting forth here the Court's findings of fact on matters which are either not in dispute or so clearly established by the evidence as to require no discussion.
1. George Raymond Jost was born in the United States on July 31, 1918, of parents who, though born in Germany, had become naturalized United States citizens prior to his birth.
2. In 1922 and again in 1930 he visited Germany with his parents, during summer vacations.
3. He completed elementary school and high school, the latter on graduation in June, 1937. In the fall of 1937 he secured employment in a manufacturing plant in New York and continued to work there until some time in August, 1938.
4. In October, 1938, accompanied by his mother and, as a minor, traveling on her passport, he left the United States and went to Germany. There he remained until 1950 when, under a certificate of identity, he returned here to prosecute this suit. His mother returned to the United States at the end of 1938 or January, 1939.
5. From October, 1938, until September or October, 1939, he lived in Munich and worked as a mechanic in a Ford repair shop in that city. During this period he associated closely and continually with a cousin George Rauh who was concededly a member and probably some kind of official of the Strum Abteilung (Storm Troop or Storm Group), which is hereafter referred to as the S.A. Jost accompanied this cousin to meetings, social events and sports meets held by the S.A. He acquired and wore at least part of the uniform of the S.A. He participated as a member, with other members, in athletic and semi-military training conducted and directed by the S.A.
6. In October, 1939, he was admitted to a school of engineering in Augsburg, Germany. He remained there until he was graduated in February, 1943. During the summer vacations he worked at jobs to which he was assigned by the school authorities. Some of his assignments consisted of work on farms, some in manufacturing plants.
7. He never registered for American Selective Service after the law went into effect in 1940.
8. At the beginning of the fall term in 1940 he filed with the school a personal history questionnaire. Item 13 thereof called for information concerning memberships in various organizations. In answer to this Jost stated that since April, 1940, he was a member of the National Socialist Deutsche Studentenbund (Federation of German Students) hereafter called the Studentenbund. He also stated that he was a member of S.A. since 1939, that his membership number was 13 and that his ...