Petition — United States v. Mendoza

82-849 ape Ta TS)

FILED

NOV 19 1082

STEVAS,

CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1982

No.

UNITED STATES OF AMERICA, PETITIONER

SERGIO ELEJAR MENDOZA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Rex E. LEE

Solicitor General

KENNETH S. GELLER

Deputy Solicitor General

JOSHUA I. SCHWARTZ

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the United States may be collaterally estopped

from litigating a question of constitutional law of public

importance by the judgment of a district court in a prior

case, involving different parties, in which the question

was resolved adversely to the United States.

(1)

TABLE OF CONTENTS

Page

Se IIATIIIIIOIY :1.<cssinsssissinimmnbisnensatiabtiinsietieniddbiannianteteinmnatinbuiiteee 1

I oa ae cessaateiansnesiaminenaenciiantcianlicigniniaiit 1

Statutes and regulations involved 200.0..0...0...eece ee 2

TINIE ::-: nenseepbecessnasisnnsinsdsetinntandannsetienmennuenneeennennnenstion 2

A. The background of this case _.............---.-..... 3

B. Prior Filipino veteran litigation —...................... 7

C. Proceedings below _................-...-..-cc--c-eccecceseeeeeenes 14

Reasons for granting the petition 16

BINED sntnscitosennnensnctiseenimmncsessatiancanssinnnnnaptannnninmendinieeat 26

PIII 2 «sca cenacsapsnetinnsinsesiiiintndanaititeigipenmbteandianiananeels la

SEITE TID scunesssesesinsqecniininnidinmidioneldsentaeenetninautsaiaiiadaisnn 22a

STITT UD : .ciccrsssininninceseninianetnanpenetigsmentatenmmieatstiandiseastibatinn 25a

STINET UE’ viinsinncchseenenndssanennapsnptnienenniantninstnsemmteteimiiiatithdeais 34a

III TIT sass tenecsianetite enema peeaainenianmeeessiansiats 35a

SII UF” sccetenssentcuimetiennigatpimainiammuptestaeatinnneiuiniiel 36a

SII UE sic ssinctprnceseeesinaisieeiiiesetiaaiatidastiitisaamastts salable 48a

TABLE OF AUTHORITIES

Cases :

Allen V. MeCurry, 449 U.S. 90 20.0. ccccececceccneeeeee 25

American Medical International Inc. v. Secretary

of Health, Education and Welfare, 677 F.2d 118.. 23

Automobile Club v. Commissioner, 353 U.S. 180.... 21

Barrett v. United States, 423 U.S. 212 000. 21

Barretto v. United States, Pet. No. 248806 (N.D.

Cal. Aug. 15, 1980), appeal pending, No. 80-4441

ND cca ciceeiseaiaiiih nbtiasildidahinlastlines iceman 24

Blonder-Tongue Laboratories, Inc. v. University of

Illinois Foundation, 402 U.S. 318 00000. 17

(m1)

IV

Cases—Continued Page

Califano Vv. Yamasaki, 442 U.S. 682 —........00 22

Colmenar, In re, No. 308-P-22551 (S.D. Cal. Mar.

I I IS SE nn ears ae 12

Divine v. Commissioner, 500 F.2d 1041 .................... 23

Dizon Vv. United States, 381 U.S. 68 _...................... 21

Fedorenko v. United States, 449 U.S. 490 .............. 19

INS v. Hibi, 414 U.S. 5, rev’g, 475 F.2d 7......7, 8, 9, 10, 15,

16, 19, 23, 24

INS Vv. Miranda, No. 82-29 (Nov. 8, 1982) ............. 19

Kapili, In re, 473 F. Supp. 600 _........--..----.----.-. 24

Montana V. United States, 440 US. 147 .................. 17

Munoz, In re, 156 F. Supp. 184 _....................... 10

NLRB vy. Enterprise Association of Pipefitters,

Sk 22

NLRB Vv. Iron Workers, 434 U.S. 335 —................ 21

Naturalization of Inton, In re, No. SA-79-CA-284

sf ef SS eee 24

Nisperos, In re, 471 F. Supp. 296 —.......00.......... 12

Olegario v. United States, 473 F. Supp. 185, rev'd,

629 F.2d 204, cert. denied, 450 U.S. 980....12, 13, 15, 17,

22,24

Pangilinan v. INS, Pet. No. 251849 (N.D. Cal.

Sept. 24, 1980), appeal pending, No. 80-4543

RRR PEND bie. tet Ath a ae Ea ae 24

Parklane Hosiery Co. v. Shore, 489 U.S. 322......13, 14, 15,

16, 17, 19, 24, 25

Standefer v. United States, 447 U.S. 10 0.000000... 17, 18

United States v. Foster Lumber Co., 429 U.S. 82... 22

United States v. Moser, 266 U.S. 236 0.0... 17

Constitution, statutes, regulations and rule:

United States Constitution, Fifth Amendment

(Due Process Clause) 202i. cccccccccceccceeeeeeeeeee 9,10

Act of Dec. 28, 1945, Pub. L. No. 79-270, Section

I i eeetennes 4

First Supplemental Surplus Appropriation Rescis-

sion Act, 1946, ch. 30, 60 Stat. 6, 14 0... 6, 10

Immigration and Nationality Act of 1952, 8 U.S.C.

1101 et seq.:

Section 310(e), 8 U.S.C. 1421 (e) ........ 2, 8, 14, 15, 45a

Section 329, 8 U.S. 1440 00 eeecceceececeeeeeeees 7,14

v

Constitution, statutes, regulations

and rule—Continued Page

Nationality Act of 1940, as amended, 8 U.S.C.

(1940 ed. & Supp. V 1945) 501 et seq.:

Section 701, 8 U.S.C. (Supp. V 1945) 1001......passim

Sections 701-705, 8 U.S.C. (Supp. V 1945)

ERR ETS, AO ERE Pe TEEN 9

Section 702, 8 U.S.C. (Supp. V 1945) 1002....2, 4, 6, 7,

9, 10, 12, 44a

Section 705, 8 U.S.C. (Supp. V 1945) 1005....2, 4, 45a

Philippine Independence Act of 1934, ch. 84, Sec-

I I caiestisinienianbinionan 8,10

Second War Powers Act, 1942, ch. 199, 56 Stat.

ANTS a a Ie eae 4

ft Re Se Oe ae ETC eee 2, 43a

EE SERS a a RANT na ETI 11, 43a

AS ee cerns 22

Miscellaneous:

Administrative Office of the United States Courts,

Annual Report of the Director (1980) ................ 19

Bork, The Problems and Pleasures of Being Solici-

tor General, 42 A.B.A. Antitrust L. J. 701

I 21

Carrington, United States Appeals in Civil Cases,

11 Hous. L. Rev. 1101 (1974) 0.0.0.0... 21

Note, Government Litigation in the Supreme

Court: The Roles of the Solicitor General, 78

NE 21

Note, The Solicitor General and Intragovernmental

Conflict, 76 Mich. L. Rev. 324 (1977) 0.000.000... 21

Oversight of INS Programs and Activities: Hear-

ings Before the Subcomm. on Immigration, Citi-

zenship and International Law of the House

Comm. on the Judiciary, 95th Cong., 2d Sess.

FRESE Sie ae ee 12

Restatement (Second) of Judgments (1980) .......... 20

Sobeloff, Attorney for the Government: The Work

of the Solicitor General’s Office, 41 A.B.A.J. 229

Ec ary en piece Saar ee ae ee 21

Iu the Supreme Court of the United States

OCTOBER TERM, 1982

No.

UNITED STATES OF AMERICA, PETITIONER

v.

SERGIO ELEJAR MENDOZA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the United States,

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Ninth Cir-

cuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-2la) is reported at 672 F.2d 1320. The opinion of the

district court (App. B, infra, 22a-24a) is not officially

reported. The findings of fact, conclusions of law, and

recommendations of the designated naturalization exam-

iner (App. C, infra, 25a-33a) are likewise unreported.

JURISDICTION

The judgment of the court of appeals (App. D, infra,

34a) was entered on April 2, 1982, and a timely petition

for rehearing was denied on July 22, 1982 (App. E,

(1)

2

infra, 35a). On October 13, 1982, Justice Rehnquist ex-

tended the time in which to file a petition for a writ of

certiorari to and including November 19, 1982. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATUTES AND REGULATIONS INVOLVED

Sections 701, 702 and 705 of the Nationality Act of

1940, as amended, ch. 199, 56 Stat. 182-183, 8 U.S.C.

(Supp. V 1945) 1001, 1002 and 1005; Section 310/e)

of the Immigration and Nationality Act of 1952, 8 U.S.C.

1421(e); and 28 C.F.R. 0.20 are reproduced in Appen-

dix G, infra, 43a-45a.

STATEMENT

Respondent, a Filipino national, entered the United

States in 1975 in a nonimmigrant status. On May 10,

1978, after other legal avenues intended ‘o prolong his

stay in the United States had been exhausted or aban-

doned, respondent filed a petition for naturalization under

Section 701 of the Nationality Act of 1940, a provision then

no longer in force that had relaxed the norma! requirements

for naturalization for certain individuals who fought in

the United States armed forces in World War II. Re-

spondent claimed that under Section 701 he was entitled

to naturalization based upon his service during World

War II in the Army of the Commonwealth of the Philip-

pines. The designated naturalization examiner recom-

mended that the petition be denied, noting that respondent

was not eligible for naturalization under the provisions

of the Immigration and Nationality Act of 1952 then in

effect and that naturalization under Section 701 of the

1940 Act was unavailable because petitioner had not filed

for naturalization by December 31, 1946, the expiration

date of that provision. The examiner also rejected re

spondent’s argument that naturalization was necessary to

remedy an alleged denial of due process in the adminis-

tration of Section 701 in the Philippines at the close of

World War II.

The district court rejected the naturalization examiner’s

recommendation and granted the petition without reach-

ing “the Constitutional issues or other merits of the

petition” (App. B, infra, 22a). The district court con-

cluded that the United States was collaterally estopped

to oppose respondent’s naturalization petition because the

constitutional question presented by the petition had been

resolved adversely to the United States in a case involving

the naturalization petitions of different individuals, Jn re

Naturalization of 68 Filipino War Veterans, 406 F.

Supp. 931 (N.D. Cal. 1975). The court of appeals

affirmed, basing its decision solely upon collateral estop-

pel grounds.

A. The Background of this Case

1. Respondent served with the Philippine Common-

wealth Army as a physician from December 1, 1941,

until June 30, 1946. During that time, as the United

States became involved in World War II, the Common-

wealth Army, which was ordinarily under the control of

the semi-autonomous Commonwealth government,’ was in-

corporated into the armed forces of the United States

pursuant to the order of President Roosevelt. Respondent

was held prisoner by Japanese forces from Apri] 1942

until February or March 1945. Upon his release re-

spondent remained in the Commonwealth Army. In the

fall of 1945 the United States Army sent respondent to

Pennsylvania for approximately six months of medical

training. Shortly after his return to the Philippines, on

1 Pursuant to Section 10(a) of the Philippine Independence Act

of 1934, ch. 84, 48 Stat. 463, the Philippines were scheduled to

become a fully independent, self-governing nation on July 4, 1946.

Although a United States possession prior to that date, the Philip-

pines enjoyed considerable autonomy under the terms of the Inde-

pendence Act.

4

June 30, 1946, respondent secured his discharge from the

Commonwealth Army (App. A, infra, 7a).

2. The statute upon which respondent’s petition for

naturalization rests is Section 701 et seg. of the Nation-

ality Act of 1940, 8 U.S.C. (Supp. V 1945) 1001 et

seg., as added by the Second War Powers Act, 1942,

ch. 199, 56 Stat. 182-183. Section 701 exempted cer-

tain alien servicemen who served honorably in the

United States armed forces during World War II

in locations beyond the continental limits of the United

States from some of the usual requirements for naturali-

zation, including literacy in English and a period of resi-

dence in the United States. As amended by Section 202

(ec) (1) of the Act of Dec. 28, 1945, ch. 590, 59 Stat.

658, the Act specified that any petition under Sec-

tion 701 had to be filed no later than December 31,

1946. Section 702 of the 1940 Act provided for the over-

seas naturalization of persons in the United States armed

forces who were eligible for naturalization under Section

701 but who were beyond the jurisdiction of the United

States naturalization courts. Under Section 702, repre

sentatives designated by the Commissioner of Immigra-

tion and Naturalization were authorized to receive peti-

tions, conduct hearings, and grant naturalization outside

the United States.

Pursuant to Section 705 of the 1940 Act, the Commis-

sioner and the Attorney General implemented the provi-

sions of Sections 701 and 702. Between 1943 and 1946

immigration officers traveled on rotation through Great

Britain, Ireland, North America and the Pacific Islands,

admitting thousands of foreign nationals serving in the

United States armed forces to citizenship. Naturalization

of alien servicemen in the Philippines, however, was im-

possible during the Japanese occupation.* The liberation

* Between 1942 and 1945, approximately 7000 Filipino service-

members were naturalized under Section 701 at locations outside

the occupied Philippines.

of the Philippines by Allied forces began in February

1945. After resolution of some uncertainties as to the

applicability of Section 701 to Filipino servicemen,’ the

Immigration and Naturalization Service, in early August

1945, designated George Ennis, an American vice-consul

in Manila, to naturalize aliens pursuant to Section 702.

Almost immediately, the Philippine government expressed

its concern to the State Department about the possibility

that large numbers of young Filipino men, perhaps as

many as 250,000, would be naturalized and leave for the

United States on the eve of the scheduled Philippine in-

dependence ‘see page 3, note 1, supra!. On September

13, 1945, the Commissioner of Immigration and Nat-

uralization recommended to Attorney Genera! Clark that

the situation be handled by revoking the authority previ-

ously granted to Vice-Consul Ennis. The Attorney Gen-

eral approved the Commissioner’s recommendation on

September 26, 1945, and Ennis’ authority to naturalize

alien servicemen was thereafter revoked. Naturalizations

ceased by October 27, 1945.

The INS subsequently reconsidered and abandoned its

prior position ‘see note 3, supra) that members of the

Commonwealth Army were eligible for naturalization

% One question was whether service in the Army of the Com-

monwealth of the Philippines qualified as service in the military

forces of the United States for purposes of Section 701. Doubt

existed because the Army of the Commonwealth, an instrumental-

ity of the Philippine government, was simply incorporated as a

unit into the United States armed forces by Presidential order. By

contrast, a separate unit known as the Philippine Scouts was an in-

tegra! unit of the United States Army; its members had thus in-

dividually enlisted in the armed forces of the United States, and

their status for this purpose was comparatively free from doubt.

In 1945 the INS concluded that members of both Philippine units

were covered by Section 701 (but see pages 5-6 & note 4 infra).

A second question concerned the eligibility for naturalization under

Section 701 of Filipinos who had never resided in the United States.

The Attorney General concluded that prior residence in the Philip-

pines, then an American possession, satisfied the statute’s require-

ments on that score.

under Sections 701 and 702.4 Under the revised adminis-

trative interpretation, the foreign relations difficulties

posed by the presence of a naturalization officer in the

Philippines were substantially reduced. Accordingly, in

August 1946 the Service again designated a naturaliza-

tion representative for the Philippines. The representative

remained there until December 1946 and naturalized

many Philippine Scouts ‘see page 5 note 3, supra) who

were still on active duty at that time and were still

regarded as eligible under Section 702.°

3. Although respondent was present in the Philippines

between August and October 1945, when naturalization

under Section 702 was possible in the Philippines, it is

undisputed that he made no effort to avail himself of

that opportunity. Nor did he make any effort to avail

himself of the substantive provisions of Section 701,

which were available to him without any need for reli-

ance upon the special overseas naturalization provisions

of Section 702, during the time he was stationed in

Pennsylvania.

* This redetermination was prompted by enactment of the First

Supplemental Surplus Appropriation Rescission Act, 1946, ch. 30, 60

Stat. 6, 14, which provided in part that service in the Army of the

Commonwealth of the Philippines was not to be deemed service in the

United States armed forces for purposes of any United States stat-

ute conferring benefits on military veterans. But see page 10 note 9.

infra.

5 The First Supplemental Surplus Appropriation Rescission Act

(see note 4, supra) had no application to members of the Philip-

pine Scouts.

* The INS did not adopt its revised interpretation of Section 701,

excluding members of the Commonwealth Army from the benefits

of that provision, until after the date of respondent's return to the

Philippines and his discharge from service.

By the time naturalization was again available in the Philippines

under Section 702, respondent was doubly ineligible because he was

no longer in service, as well as because the INS regarded service in

the Commonwealth Army as nonqualifying under Section 701. Re-

spondent, of course, made no application for naturalization at this

time either.

7

Respondent returned to the United States in 1975 in

a nonimmigrant status. His right to remain was ex-

tended by the INS through June 9, 1976. During this

time respondent operated a restaurant and attempted to

start an export-import business. On July 15, 1976, re-

spondent sought to change his status to that of a Treaty

Investor. This application was denied by the INS Dis-

trict Director on August 29, 1977, because respondent

had not complied with the conditions of his nonimmigrant

status. Respondent took an administrative appeal from

that decision, but subsequently abandoned that appeal

and filed the petition for naturalization under Section

701 at issue in this case.

B. Prior Filipino Veteran Litigation

Because Section 701 required filing of a naturalization

petition prior to the close of 1946, its provisons were not

the subject of litigation in succeeding years, until a

series of novel arguments supporting naturalization rest-

ing upon the manner in which Section 702 had been ad-

ministered in the Philippines gave rise to substantial

litigation in the 1970's."

1. In INS v. Hibi, 414 U.S. 5 (1973), this Court con-

sidered the ramifications of that course of administra-

tion upon facts strikingly similar to those of the present

ease. Hibi, a veteran of the Philippine Scouts, entered

the United States in 1964 and petitioned for naturaliza-

tion under Section 701 in 1967. He argued that notwith-

7 Section 329 of the Immigration and Nationality Act of 1952,

8 U.S.C, 1440, currently authorizes naturalization of aliens who

fought in the United States armed forces during World War II.

Unlike its predecessor, Section 701 of the 1940 Nationality Act,

however, the benefits of Section 329 are available only to these who

either (1) enlisted or were inducted in certain geographical areas

(which do not include the Philippines), or (2) are lawfully admitted

to the United States for permanent residence. It is accordingly

significantly more restrictive than Section 701. Respondent does not

meet the requirements of the current provision.

standing 8 U.S.C. 1421(e), which precludes naturaliza-

tion under provisions of law no longer in effect, the

United States was estopped from enforcing the statutory

time limit for filing a petition under Section 701 because

of an alleged failure to inform him of his opportunity

for naturalization, and because of the revocation of Vice-

Consul Ennis’ naturalization authority in October 1945

and the failure to provide a substitute until August 1946.

The district court granted Hibi’s petition, adopting his

estoppel argument, and the court of appeals affirmed.

475 F.2d 7 (9th Cir. 1973).

This Court summarily reversed, explaining that no

estoppel could lie against the government in these circum-

stances (414 U.S. at 8-9):

It is well settled that the Government is not in a

position identical to that of a private litigant with

respect to its enforcement of laws enacted by Con-

gress. * * * Here [the INS] has been charged by

Congress with administering an Act which both made

available benefits of naturalization to persons in

(Hibi’s] class and established a cutoff date for the

claiming of such benefits. [The INS], in enforcing

the cutoff date established by Congress, * * * is

T

5

;

.

i

5

9

2a. In In re Naturalization of 68 Filipino War Vet-

erans, 406 F. Supp. 931 (N.D. Cal. 1975) (herein-

after “68 Filipinos”), the district court (Renfrew, J.),

considered the petitions for naturalization resting upon

Sections 701-705 of the Nationality Act of 1940 of 68

Filipino veterans who had served in the Commonwealth

Army or the Philippine Scouts during World War II.’

Rejecting the recommendations of the naturalization

examiners, the district court granted the petitions with

certain exceptions. The district court first considered

the claims of those who it found to have filed preliminary

applications for naturalization, which had not been acted

upon, before the statutory deadline. 406 F. Supp. at 937-

940. As to these “Category I” veterans, the court held

in the alternative that: (1) the failure to process the

submitted applications was “affirmative misconduct,”

which, notwithstanding 7NS v. Hibi, supra, “estopped

[the United States] from relying upon the expiration

date of Sections 701-705 as grounds for denial of their

petitions for naturalization” (id. at 939; footnote omit-

ted), and (2) because they had done all that was

practical to avail themselves of the opportunity provided

by Section 701 at the proper time, these veterans should

be deemed to have “constructively filed” their petitions

for naturalization within the statutory time limit (id.

at 940).

The district court defined a second category to include

53 veterans who, like the present respondent, had made

no effort to secure naturalization under Section 702 in a

timely manner. These “Category II” veterans claimed

that the absence from the Philippines of an official] em-

powered to effect naturalizations during the period Octo-

ber 1945 through August 1946 denied them equal pro-

tection, in violation of the Due Process Clause of the

Fifth Amendment, and required that their tardy peti-

tions be granted. In response the government argued

* 68 Filipinos was not a class action.

10

that: (1) Filipinos were unprotected by the Due Process

Clause at the time in question because of the enactment,

in 1934, of the Philippine Independence Act; (2) the

veterans’ claims were foreclosed by JNS v. Hibi, supra;

(3) because Attorney General Clark’s decision to with-

draw naturalization authority from Vice-Consul Ennis

responded to the complaint of a foreign government and

was based upon considerations of foreign policy, the vet-

erans’ claims presented a nonjusticiable political ques-

tion; and (4) the Attorney General’s action did not vio-

late due process.’ The district court rejected each of

these contentions (406 F. Supp. at 940-951). Although

it recognized that “the actions of the Commissioner of

the INS were motivated by reasonable concern for the

maintenance of amicable relations between the United

States and the Philippine Islands” (id. at 951), the

court, applying a strict scrutiny standard,’ held that

“the failure of the Government to have stationed in the

Philippine Islands a representative of the INS author-

ized to naturalize members of the American armed

forces pursuant to Section 702 of the Nationality Act

during all of the time those statutory rights were avail-

able denied petitioners due process of law.” Thus, the

court granted naturalization to all of the petitioners,

except for those (“Category III”) veterans who were

unable to show that they had ever been eligible for

naturalization under Section 701 (406 F. Supp. at 937,

951).

* After the decision in /n re Munoz, 156 F. Supp. 184 (N.D.

Cal. 1957), the INS abandoned the argument that provisions of the

First Supplemental Surplus Appropriation Recession Act, 1946,

rendered the benefits of Section 701 unavailable to veterans of the

Commonwealth Army. and did not otherwise argue thereafter that

such veterans did not qualify for naturalization under Section 701.

Compare pages 5-6 and notes 3 & 4, sypre.

In the district court’s view, absence of a naturalization officer

from the Philippines constituted discrimination upon the basis of

race, alienage or nationality, and was accordingly subject to strict

scrutiny (406 F. Supp. at 950).

11

b. Pursuant to authority delegated by the Attorney

General to determine whether an appeal should be taken

from a judgment adverse to the interests of the United

States, see 28 C.F.R. 0.20/b), in March 1976 the Solici-

tor General authorized an appeal from the district court’s

decision. An appeal was docketed and the case was

briefed and readied for oral argument.

In the interim, however, a new Administration had

taken office. By memorandum dated September 21, 1977,

(App. F, infra, 36a-42a', INS Commissioner Castillo

sought authorization to withdraw the pending appeal

(App. C, infra, 30a'. Noting that “[t]he desire ex-

pressed by the Philippine Government in 1945 to hold

onto its young manpower in the post-war period” was

no longer an operative consideration, the Commissioner

stressed that acquiescence in the naturalization of the

68 Filipinos petitioners “would be in keeping with the

policy of the [new] Administration,” described as “a

course of compassion and amnesty” (App. F, infra,

4la, 42a'. Commissioner Castillo’s request provoked

considerable discussion, and some dissent, within the

Department of Justice. The memoranda prepared for

the Solicitor General’s consideration reflect the con-

viction that the district court’s legal conclusions were

legally erroneous, but that acquiescence in naturalization

of the petitioners would be an acceptable remedy for the

inequities perceived by the officials vested by law with

policy making authority and would not affect significant

numbers of individuals or establish a binding precedent.

In response to these recommendations, on November 14,

1977, the Solicitor General authorized withdrawal of the

pending appeal. On November 30, 1977, the court of

appeals granted the government’s motion to dismiss the

appeal.

c. In the aftermath of these events, Commissioner Cas-

tillo was questioned upon his recommendation during

congressional oversight hearings.'' The appropriate re-

11 Commissioner Castillo explained that his recommendation to

withdraw the appeal in 68 Filipinos was based on equitable consider-

12

sponse to Filipino veterans’ naturalization petitions also

received extensive reconsideration within the Department

of Justice. The position ultimately adopted in 1978, after

thorough reexamination, was that the Department would

not ordinarily oppose naturalization of Filipino veterans

who actually attempted to become naturalized United

States citizens pursuant to Sections 701 and 702 while

those provisions were in effect—i.e., “Category I’ veter-

ans. Contrary to the position adopted in withdrawing the

appeal in 68 Filipinos, however, the Department in-

structed the INS thereafter to oppose naturalization of

those who could not satisfy this prerequisite—i.e., “Cate-

gory II” veterans. App. C, infra, 30a; see Olegario V.

United States, 629 F.2d 204, 214 (2d Cir. 1980), cert.

denied, 450 U.S. 980 (1981).”

ations “aside from the legal argument of, was correct procedure

of process used.” Oversight of INS Programs and Activities: Hear-

ings Before the Subcomm. on Immigration, Citizenship and Inter-

national Law of the House Comm. on the Judiciary, 95th Cong., 2d

Sess. 272 (1978).

12 To mitigate the effects of this change in policy, the Department

adopted a “grandfather rule” exception for persons who had filed

naturalization petitions prior to the withdrawal of the govern-

ment’s appeal in 68 Filipinos. See Olegario v. United States, supra,

629 F.2d at 214-215. There was reason to believe that processing of

at least some such petitions had been delayed by INS, either uni-

laterally or by agreement with opposing counsel, in anticipation of

securing a definitive ruling upon appeal in 68 Filipinos. It was

further recognized that absent that procedure some of the petitions

involved would have been granted at the time the government with-

drew its 68 Filipinos appeal. Because it was thought difficult to

determine with confidence which petitioners had relied to their

detriment upon such procedural understandings, the Solicitor Gen-

eral authorized withdrawal of previously authorized appeals in all

cases falling within the “grandfather rule” and declined to authorize

appeal in other such cases. Among the appeals withdrawn were

those in Jn re Nisperos, 471 F. Supp. 296 (C.D. Cal. 1979); and

In re Colmenar, No. 308-P-22551 (S.D. Cal. Mar. 20, 1979). See

App. A, infra, 8a.

13

3. The issues presented by the tardy filing of natural-

ization petitions by Filipino veterans resting on Section

701 were considered by the Second Circuit in Olegario v.

United States, supra. Adopting Judge Renfrew’s reason-

ing in 68 Filipinos, the district court had granted Ole-

gario’s petition for naturalization, 473 F. Supp. 185

(S.D. N.Y. 1979), and the government appealed.” On

appeal, the Second Circuit considered the argument that

under Parklane Hosiery Co. v. Shore, 439 U.S. 322

(1979), the decision in 68 Filipinos should be given col-

lateral estoppel effect, so as to preclude denial of natural-

ization to any “Category II” Filipino veteran. The Sec-

ond Circuit rejected this argument, observing that “[i]n

contrast to Parklane, the government is the defendant

here, and the case raises important issues of national con-

cern.” 629 F.2d at 215. The court observed that the gov-

ernment’s failure to appeal an adverse decision may rest

upon policy considerations rather than acquiescence in

the legal reasoning upon which it rests, and that the

invocation of collateral estoppel would compel the Solici-

tor General to authorize appeal from adverse decisions

in an uncritical manner (ibid.'. The court also stressed

that the United States has broad discretion whether to

pursue an appeal in a particular case and remain free

to reverse its position to correct prior legal positions

perceived to have been ill-advised (id. at 216). Turning

to the merits, the Second Circuit concluded that the ab-

sence of a naturalization officer from the Philippines

during part of the period when naturalization was avail-

able under Section 701 did not violate the statute or

work a denial of due process or equal protection. 629 F.2d

at 223-233. Accordingly, the Second Circuit reversed the

district court and ordered that Olegario’s petition be

denied.

18 Olegario was a “Category II” veteran—i.e., he had not made a

timely effort to avail himself of the benefits of Section 701. Nor

was his petition filed in time to benefit from the “grandfather rule”

adopted by the Solicitor General ‘see page 12 note 12, supra).

14

C. Proceedings Below

1. Respondent filed his naturalization petition invoking

Section 701 of the 1940 Nationality Act on May 10, 1978.

The designated naturalization examiner recommended

denial of the petition. The examiner noted that respond-

ent could not qualify for naturalization under the cur-

rent provision for naturalization of alien servicemen,

8 U.S.C. 1440 ‘see page 7 note 7, supra), and that

8 U.S.C. 142l(‘e) precludes naturalization under ex-

pired or superseded statutory authority. Because re-

spondent had not claimed that he sought naturalization

under Section 701 in a timely manner, and because re-

spondent had actually been in Pennsylvania for much

of the time naturalization was unavailable in the Philip-

pines, the examiner concluded that respondent could not

be deemed to have constructively filed his petition under

the 1940 Act; respondent’s petition was therefore barred

by 8 U.S.C. 1421/e). Similarly, given these facts, the

examiner found no more basis for an estoppel than was

present in Hibi, and notwithstanding 68 Filipinos, found

that respondent had not suffered any denial of due

process ‘App. C, infra, 25a-33a).

The district court granted respondent's petition with-

out reaching the merits, treating the matter as a routine

application of the doctrine of offensive nonmutual col-

lateral estoppel under Parklane Hosiery Co. v. Shore,

supra. Although the naturalization examiner had noted

(App. C, infra, 31a) that the effect of 8 U.S.C. 1421/e)

had not been considered in 68 Filipinos, and that respond-

ent, unlike the 68 Filipinos petitioners, had been in Penn-

sylvania for most of the relevant time period, the district

court did not address these issues.

2. The Solicitor General authorized an appeal.’* The

government once again argued that respondent’s consti-

“4 Like Olegario, respondent was a “Category II’ veteran and had

not filed his petition in time to benefit from the Solicitor General's

“grandfather rule” (see page 12 note 12, supra).

15

tutional claim was nonjusticiable, and in any event with-

out merit. Several arguments not considered in 68 Fili-

pinos were also advanced: (1) the constitutional claim

was barred by laches; (2) the claim was barred by 8

U.S.C. 1421/e); (3) the remedy awarded for the alleged

constitutional violation—naturalization—was tantamount

to an equitat'e estoppel, and thus inconsistent with Hibi;

and (4) respondent lacked standing to complain of the

withdrawal of a naturalization officer from the Philip-

pines, and had suffered no personal deprivation of rights,

because he was in Pennsylvania for most of the period in

question. The court of appeals affirmed, reaching only

the collateral estoppel issue.**

The court of appeals concluded that, under Parklane

Hosiery, the district court did not abuse its discretion in

applying collateral estoppel to bar consideration of the

government’s legal arguments against respondent’s nat-

uralization. The court of appeals stated that none of the

circumstances listed by this Court in Parklane Hosiery

(439 U.S. at 329-331 and nn. 14 & 15) as precluding an

estoppel was present here. The court also stressed the lack

of record support for the government’s suggestion that the

withdrawal of the appeal in 68 Filipinos was based in

part upon a misapprehension of the practica! conse-

quences of doing so, and it questioned whether the under-

lying issue was, in fact, of sufficient practical importance

to warrant a fresh determination of the legal issue ( App.

A, infra, 12a-15a). The court of appeals acknowledged

the conflicting decision of the Second Circuit in Olegario,

but it considered that ruling to be neither persuasive

15 The court of appeals stated that because respondent may have

been in the Philippines for as much as three months during which

time he was eligible for naturalization but no naturalization official

was present, “this is * * * sufficient * * * to implicate his due

process rights and place him in the same situation as [the] Cate-

gory II veterans” whose rights were litigated in 68 Filipinos ( App.

A, infra, 12a n.8). The court did not address the other issues

raised by the government that had not been decided in 68 Filipinos.

16

respecting the collateral] estoppel issue nor reason enough

to deny preclusive effect to 68 Filipinos (id. at 16a-18a).

Finally, the court of appeals rejected the government’s

contentions that Parklane Hosiery was inapposite because

of the special attributes and interests of the United

States as a litigant and the purely legal character of the

questions presented here ‘App. A, infra, 18a-20a). Al-

though it acknowledged that “the government is fre

quently involved in cases raising issues of great public

importance, and that in such cases the public interest in

permitting the government to relitigate those issues may

outweigh the public interest in avoiding needless litiga-

tion” (id. at 18a), the court concluded that this is not

such a case because it found “no ‘critical’ need for re

determination” of the issue and “no compelling public

interest in opposing naturalization” of persons such as

respondent (id. at 19a, 20a). On the contrary, the court

thought that the equities strongly supported preclusion

(id, at 20a-21a).

REASONS FOR GRANTING THE PETITION

The decision of the court of appeals is without prece-

dent. To our knowledge no other appellate court has ever

held that the United States may be estopped from litigat-

ing a pure question of law, much less a question of con-

stitutional law affecting the special prerogatives of the

Executive in the sphere of foreign relations, by the un-

appealed adverse decision of a trial level court rendered

in a different action involving a different opposing party.

If permitted to stand, the decision below would compel a

drastic alteration of the federal government’s salutary

practice of selective pursuit of appeals, thereby imposing

a substantial burden upon the courts of appeals and, ulti-

mately, this Court. Moreover, the court of appeals failed 6c

to heed this Court’s admonition in United-State v. Hib No

414 U.S. 5, 8 (1973), that “the government is not in a

position identical to that of a private litigant with respect

to its enforcement of laws enacted by Congress.” By con-

17

trast, the Second Circuit, in considering a claim identical

to respondent's, recently refused to apply collateral estop-

pel to prevent the government from litigating the legal

issue. Olegario v. United States, 629 F.2d 204 (1980),

cert. denied, 450 U.S. 980 (1981). This Court should re-

solve the conflict.

l.a. Contrary to the view of the court of appeals,

Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), is

not controlling here. In Parklane Hosiery, the issues upon

which preclusion was upheld were factual! (see id. at 324) ;

here, the underlying issue in dispute is an unmixed ques-

tion of law, indeed a significant question of constitutional

law. This Court has recognized that powerful considera-

tions militate against extension of the preclusion doctrine

to purely legal issues—especially those of constitutional

impact—even when the parties in the successive lawsuits

are the same. Montana v. United States, 440 U.S. 147,

162-163 (1979); United States v. Moser, 266 U.S. 236,

242 (1924). Application of the preclusion doctrine to a

legal issue where there is no identity of parties is es-

pecially inappropriate.

b. This Court also stated in Parklane Hosiery that

the courts should refuse to apply nonmutual collateral

estoppel in circumstances where such use would for any

reason “be unfair to a defendant.” 439 U.S. at 331. We

submit that the special attributes and role of the United

States as a litigant strongly militate against application

of the issue preclusion doctrine to the government, partic-

ularly when it is engaged in the uniquely sovereign func-

tion of enforcing the public law. This Court recognized

these unique attributes in Standefer v. United States, 447

U.S. 10 (1980), in declining to apply the rule of non-

mutual collateral] estoppel announced in Parklane Hosiery

and Blonder-Tongue Laboratories, Inc. v. University of

Illinois Foundation, 402 U.S. 313 (1971), against the gov-

ernment in a criminal case. The Court stated, in terms

that are fully applicable here (447 U.S. at 24-25):

18

Finally, this case involves an ingredient not pres-

ent in either Blonder-Tongue or Parklane Hosiery:

the important federal] interest in the enforcement of

the criminal law. Blonder-Tongue and Parklane

Hosiery were disputes over private rights between

private litigants. In such cases, no significant harm

flows from enforcing a rule that affords a litigant

only one full and fair opportunity to litigate an

issue, and there is no sound reason for burdening

the courts with repetitive litigation.

That is not so here. The court of appeals put the

point well:

“(T]he purpose of a criminal court is not to

provide a forum for the ascertainment of pri-

vate rights. Rather it is to vindicate the public

interest in the enforcement of the criminal law

while at the same time safeguarding the rights

of the individual] defendant. The public interest

in the accuracy and justice of criminal results

is greater than the concern for judicial economy

professed in civi] cases and we are thus inclined

to reject, at least as a general matter, a rule

that would spread the effect of an erroneous ac-

quittal to all those who participated in a par-

ticular criminal] transaction. To plead crowded

dockets as an excuse for not trying criminal

defendants is in our view neither in the best

interest of the courts, nor the public.” 610

F.2d, at 1093.

In short, this criminal case involves “competing pol-

icy considerations” that outweigh the economy con-

cerns that undergird the estoppel doctrine.

The fact that this case is not a criminal prosecution

does not dilute the strength of these factors. Whenever

the government acts in its sovereign capacity to enforce

the public laws, public policy dictates the applicability of

the Standefer analysis. This is especially so where, as

here, the government acts to ensure enforcement of the

immigration and naturalization laws, which this Court

19

has recognized as “[a]n increasingly important interest

* * * of broad public concern.” INS v. Miranda, No. 82-29

(Nov. 8, 1982), slip op. 5; see also INS v. Hibi, supra,

414 U.S. at 8; Fedorenko v. United States, 449 U.S. 490,

506-507 (1981).

In addition, numerous practical and legal considera-

tions, applicable in criminal and noncriminal] cases alike,

set the United States apart from any other litigant and

argue strongly against the estoppel invoked by the court

of appeals. The government is involved in far more liti-

gation than any other party.’* In 1981, for instance, the

Solicitor General received recommendations respecting the

desirability of appellate review of a decision adverse to

the government in over 1850 cases. Second, many of the

issues of greatest public importance, including constitu-

tional issues, arise only in litigation to which the govern-

ment is a party, and others are characteristically asso-

ciated with government litigation. Third, the government,

unlike other litigants, necessarily finds itself in litigation

presenting a particular legal issue in a host of jurisdic-

tions—indeed potentially (and not uncommonly) in every

district and circuit. In such cases, which include the pres-

ent one, the potential unfairness of invoking the preclusion

doctrine absent mutuality ‘see Parklane Hosiery Co. v.

Shore, supra, 439 U.S. at 330 & n.14) is necessarily

present, for there is a substantial likelihood that in liti-

gating a recurring issue, the government will at some

point encounter an adverse decision.

Because of these unique attributes of government liti-

gation, application of collateral estoppel in the circum-

stances of cases such as the present one would substan-

In a recent year the United States was a party to 63,628 civil

cases filed in the United States District Courts, 37.7% of total

filings. Administrative Office of the United States Courts, Annual

Report of the Director 224, 227 (1980). In the same year the United

States was party to 4.654 and 14.854 civil cases appealed from the

district courts to the courts of appeals as well as 2950 original

actions to review the decision of an administrative agency. /d.

at 203, 205.

tially disrupt the existing process of development of the

law through resolution of conflicts by appeal, en banc

review and certiorari, by supplanting the more flexible

doctrine of stare decisis and the persuasive effect of deci-

sions of coordinate courts with the rigid doctrine of issue

preciusion.'’ As the American Law Institute has recog-

nized, when “the party against whom the rule of pre

clusion is to be applied is a government agency responsi-

ble for continuing administration of a body of law appli-

cable to many similarly situated persons * * * the rule

of preclusion should ordinarily be superseded by the less

limiting principle of stare decisis.” Restatement (Second)

of Judgments § 29, comment i (1980) ."*

Furthermore, invocation of collateral] estoppel against

the government on legal issues of public importance is

inappropriate because, through the Office of the Solicitor

General, the government, unlike any other litigant, em-

ploys a formal mechanism for selective prosecution of

appeals from adverse judgments. The government alone

regularly takes into account factors other than its nar-

row interest in prevailing in the particular lawsuit in

determining whether to seek further judicia] review. As

a result, the Solicitor General frequently decides against

‘? The court of appeals’ suggestion (App. A, infra, 17a) that the

considerations we have canvassed might be more weighty when an

issue arises in two different circuits simply illustrates the court's

failure to recognize the distinction between collateral estoppel and

stare decisis. Moreover, considered within the framework usually

reserved for stare decisis, the court’s observation is unsound. Under

the court of appeals’ analysis the decision of a single inferior court

may be binding upon a court of appeals, while the authority of

decisions of one or more courts of appeals, even those rendered

en banc, may be regarded as merely persuasive.

‘* The Restatement also cautions against use of collateral estop-

pel “when the issue was determined in the first action by a trial

court and in the second action will probably be taken to en appellate

court,” and when “the issue is of general interest and has not been

resolved by the highest appellate court that can resolve it.” Restate-

ment (Second) of Judgments § 29, comment i. The decision of the

court of appeals disregards these strictures as well.

21

appeal or certiorari even though the legal conclusions

of the deciding court are believed to be erroneous. Such

decisions rest upon a host of other factors including: a

substantial measure of prosecutorial discretion, equi-

table and policy considerations,"* the perceived prac-

tical importance of the decision, recognition of the

limited resources of the government and sensitivity to

crowded dockets of the courts.” As we have explained

above (pages 11-12), the decision not to pursue an appeal

in 68 Filipinos was just such a decision.

Adoption of the novel rule endorsed by the court of

appeals would compel the United States to reconsider this

salutary practice, which benefits the public interest and

facilitates sound judicial management. Instead, the gov-

ernment would be obliged to consider an inflexible policy

of appealing ‘and even seeking certiorari on) the first

adverse decision rendered on a legal issue. As a result,

the courts of appeals and this Court would be burdened

1 The United States, even as a litigant, does not abandon its re-

spensibilities as the government. As this Court has remarked,

“(t)here is, of course, no rule of law to the effect that the Govern-

ment must be consistent in its stance in litigation over the years. It

has changed positions before.” Barrett v. United States, 423 U.S.

212, 222 n.6 (1976). See also NLRB v. Iron Workers, 434 U.S. 335,

351 (1978); Diron v. United States, 381 U.S. 68, 70-75 (1965):

Automobile Club v. Commissioner, 353 U.S. 180, 183 (1957). As

this case illustrates, the political process by which the United States

changes policies from time to time in a democratic society is itself

a powerful reason to preclude collateral estoppel against the gov-

ernment on matters of public law. Indeed, the decision of the court

of appeals permits one administration to bind its successors even

on questions of constitutional law.

2 See, ¢.9., Note, The Solicitor General and Intragovernmental

Conflict, 76 Mich. L. Rev. 324, 324-230 (1977): Carrington, United

States Appeals in Civil Cases, 11 Hous. L. Rev. 1101, 1101-1195

(1974); Bork, The Problems and Pleasures of Being Solicitor Gen-

eral, 42 A.B.A. Antitrust L. J. 701 (1973) ; Note, Government Liti-

gation in the Supreme Court: The Roles of the Solicitor General,

78 Yale L. J. 1442, 1453-1457 (1969); Sobeloff, Attorney for the

Government: The Work of the Solicitor General's Office, 41

A.B.A.J. 229 (1955).

prematurely and unnecessarily, and judicia] economy—

the touchstone of the preclusion doctrine—would be dis-

served. Moreover, because of the limited docket of this

Court, and the proliferation of statutes and litigation in

recent years, constructions of the law that this Court

might ultimately determine to be erroneous would more

often be given finality. See, e.g., United States v. Foster

Lumber Co., 429 U.S. 32 (1976) (rejecting the view of

three courts of appeals) ; NLRB v. Enterprise Association

of Pipefitters, 429 U.S. 507 (1977) ‘rejecting the view of

five courts of appeals). Plainly, there is no interest served

by invocation of collateral estoppel in the circumstances

of this case that would justify these detrimental con-

sequences.**

2. These considerations led the Second Circuit in

Olegario v. United States, supra, upon the very facts pre-

sented here, to refuse to apply collateral estoppel against

the government. The Second Circuit explained that, “{i]n

contrast to Parklane, the government is the defendant

here, and the case raises important issues of national con-

cern.” 629 F.2d at 215. The Second Circuit also pointed

out that the government’s decision to forego further judi-

cial review of an adverse decision, as in 68 Filipinos, may

result from a variety of factors unrelated to the legal

issues in the case. “If each adverse decision were ac-

corded the collateral estoppel effect urged * * *, the Solic-

itor General would be forced to seek review of cases that

would not otherwise be appealed.” Jhid. Other courts

have reached similar conclusions, refusing to invoke col-

*! At a minimum there is no basis for the court of appeals’ asser-

tion ‘App. A, infra, 15a) that “[i)t should have come as no surprise

to the government” that Judge Renfrew’s decision in 68 Filipinos

would reach the claim of every Filipino veteran. Parklane Hosiery

had not been decided at the time the 64 Filipinos appeal was with-

drawn. The proper mechanism for putting the government on

notice that litigation on a particular matter will bind an entire

class of litigants is to seek class action certification. See Fed. R.

Civ. P. 23: Califano v. Yamasaki, 442 U.S. 682, 698-703 (1979).

23

lateral estoppel against the government on purely legal

issues of public importance, at least absent a complete

identity of parties. See, e.g., American Medical Interna-

tional, Inc. v. Secretary of Health, Education and Welfare,

677 F.2d 118, 121-124 (D.C. Cir. 1981); Divine v. Com-

missioner, 500 F.2d 1041 (2d Cir. 1974). The decision of

the court below thus stands in sharp contrast to the deci-

sions of other courts.

To be sure, the court of appeals acknowledged that

collateral estoppel might not be applicable in some gov-

ernment cases presenting legal issues (App. A, infra,

19a}. But because the court below saw no “ ‘critical’ need

for redetermination” of the underlying constitutional is-

sue (ibid.) and no “compelling public interest in op-

posing the naturalization” of persons such as respondent

(id. at 20) and believed that the equities favored re-

spondent (id. at 20a-21a), it held that the government was

precluded from relitigating the constitutional issues pre-

sented. None of these considerations justifies the court of

appeals’ conclusion.** As explained above (pages 18-19),

the decisions of this Court, including Hibi, reflect that

the enforcement of the naturalization laws in every in-

dividual case is of utmost public importance. Judge

Renfrew’s holding in 68 Filipinos that the actions of an

Attorney General taken for foreign policy reasons ac-

knowledged to be valid effected a denial of due process is

necessarily significant, without regard for the number of

persons involved or the court of appeals’ assessment of

the equities. Moreover, while this Court’s decision in Hibi

makes clear that the equitable considerations mentioned

by the court below are irrelevant to the merits of re-

spondent’s claim, it is particularly clear that these equi-

ties have no place in the calculus of decision when the

22 The court of appeals’ necessarily subjective conclusions regard-

ing the “critical need for redetermination” and “compelling public

interest” also provide no standard for accurate prediction of which

legal rulings, if not appealed by the government, would be given col-

lateral estoppel effect in the future.

24

issue is not whether respondent is entitled to naturaliza-

tion, but only whether the United States is foreclosed

from securing an adjudication of that question.

3. We have explained above that, because of the unique

situation of the government in enforcing the public law,

nonmutual collateral estoppel on issues of law should

never be applied against the United States. But even if

that were not so generally, and Parklane Hosiery were re-

garded as controlling in government litigation, the court of

appeals erred in approving application of that doctrine

here.

First, the Court emphasized in Parklane Hosiery that

the doctrine of nonmutual collateral estoppel must always

be applied selectively and cautiously. 439 U.S. at 329-331.

The Court mentioned, for example, that issue preclusion

would be inappropriate when “the judgment relied upon

as a basis for the estoppel is itself inconsistent with one or

more previous judgments in favor of the defendant.”

Id. at 330 (‘footnote omitted!. Here, of course, as the

court of appeals acknowledged (App. A, infra, 16a),

Judge Renfrew’s decision conflicts with the Second Cir-

cuit’s subsequent decision in Olegario. See page 13,

supra. In addition, decisions inconsistent with 68 Fili-

pinos have been rendered in Jn re Kapili, 473 F. Supp.

600 (E.D. N.Y. 1979); In re Naturalization of Inton,

No. SA-79-CA-284 (W.D. Tex. July 3, 1980); Pan-

gilinan Vv. INS, Pet. No. 251849 (N.D. Cal. Sept. 24,

1980), appeal pending, No. 80-4543 (9th Cir.) ; Barretto

v. United States, Pet. No. 248806 (N.D. Cal. Aug. 15,

1980), appeal pending, No. 80-4441 (9th Cir.). In view

of this division of authority, the court of appeals was

plainly required to take an independent look at the merits

of respondent’s constitutional claim.**

3 An additional factor that should have caused the court of ap-

peals to address the merits is the substantial tension between Judge

Renfrew’s conclusion that Attorney Genera! Clark’s actions denied

due process to Filipino veterans and this Court’s conclusion in Hibi

that the very same actions were not affirmative misconduct. Indeed,

25

Other factors also should have precluded any estoppel

here. As we have noted (pages 14-15 & note 15, supra),

the court of appeals rested its decision entirely upon the

preclusive effect of 68 Filipinos, even though significant

legal arguments not addressed by Judge Renfrew were

presented by the government throughout the litigation of

respondent’s claim. The court of appeals thus effectively

applied the broader res judicata (“claim preclusion”)

doctrine, rather than collateral estoppel, to bar all argu-

ments the United States might raise in answer to re-

spondent’s claim. See Allen v. McCurry, 449 U.S. 90,

94 & n.5 (1980). There can be no justification for the

court of appeals’ failure to consider legal arguments that

might have been, but were not, addressed in 68 Filipinos.

An equally remarkable feature of the decision below is

the court’s conclusion (App. A, infra, lla n.8) that re-

spondent’s residence in Pennsylvania during most of the

time a naturalization examiner was absent from the

Philippines does not serve to distinguish him sufficiently

from the petitioners in 68 Filipinos to require an inde-

pendent determination of his right to naturalization.

While we question whether any person who made no ef-

fort to avail himself of the opportunity for naturaliza-

tion provided by Section 701 of the 1940 Nationality Act

should be heard to complain of the temporary absence of

a naturalization official from the Philippines, it is far

clearer that persons such as respondent can make no such

claim. And even if, as the court of appeals thought, the

facts of this case “implicate” respondent’s due process

the arguments made in this Court by Hibi include ones virtually

indistinguishable from those approved by Judge Renfrew in 68

Filipinos but for the label used to describe them. See 72-1652 Memo-

randum in Opposition (at 6, 12) (1973 Term). In these circum-

stances, due regard for the authority of this Court's decisions re-

quired the court of appeals to treat the decision in 68 Filipinos as

one at least potentially “inconsistent with * * * [a] previous judg-

ment[] in favor of” the United States. Parklane Hosiery Co. v.

Shore, supra, 439 U.S. at 330.

26

rights (App. A, infra, 12a n.8), there is no reason what-

ever to conclude that the holding of 68 Filipinos, which

takes no account of these facts, precludes a determination

on the merits here. By invoking collateral estoppel, the

court of appeals failed to discharge its duty to determine

whether, on the facts of this case, respondent is entitled

to naturalization under the laws of the United States.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

Rex E. LEE

Solicitor General

KENNETH S. GELLER

Deputy Solicitor General

JOSHUA I. SCHWARTZ

Assistant to the Solicitor General

NOVEMBER 1982

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

No. 79-3478

IN THE MATTER OF PETITION FOR NATURALIZATION

OF SERGIO ELEJAR MENDOZA, PETITIONER-APPELLEE

Vv.

UNITED STATES OF AMERICA, RESPONDENT-APPE"LANT

Argued and Submitted May 6, 1981

Decided April 2, 1982

Appeal from the United States District Court

for the Central District of California

Before TANG and NORRIS, Circuit Judges; and

CARROLL,’ District Judge.

NORRIS, Circuit Judge:

The issue raised by this appeal is whether the dis-

trict court abused its discretion in collaterally estop-

ping the government from relitigating the constitu-

tionality of the Attorney General’s decision to with-

draw a naturalization examiner from the Philippines

in 1945. We hold there was no abuse of discretion

and affirm.

I

HISTORICAL BACKGROUND

The historical events giving rise to appellee Sergio

Mendoza’s claim for naturalization are undisputed.

* The Honorable Earl H. Carroll, United States District

Judge for the District of Arizona, sitting by designation.

2a

In March, 1942, Congress amended the Nationality

Act of 1940, Pub.L. No. 76-853, 54 Stat. 1137 (1940)

to provide for the naturalization of non-citizens who

served honorably in the United States armed forces.

Section 701 exempted alien servicemen from some

of the usual naturalization requirements, such as a

period of residence and literacy in English. Section

702 provided for overseas naturalization of those eli-

gible under section 701 who were in active service in

the military and not within the jurisdiction of any

court authorized to naturalize aliens. Section 705

provided that the “Commissioner [of Immigration

and Naturalization] with the approval of the Attor-

ney General, shall prescribe and furnish forms, and

shall make such rules and regulations, as may be nec-

essary to carry into effect the provisions of this Act.”

The Act was subsequently amended to specify that

all naturalization petitions filed under section 701

must be submitted by December 31, 1946. Act of

Dec. 28, 1945, Pub.L. No. 79-270, (c), 59 Stat. 658

(1945).

Pursuant to the Act, INS officers were sent over-

seas to naturalize eligible members of the United

States military. From 1943-46, these officers traveled

from post to post through England, Ireland, North

Africa and the Pacific, naturalizing servicemen. In

early August, 1945, following the liberation of the

Philippines, the INS designated George Ennis, Vice

Consul in Manila, to naturalize Filipino servicemen

under the Act.’

‘The INS and the Attorney General had concluded that

members of the Army of the Commonwealth of the Philip-

pines qualified as servicemen in the United States armed

forces.

3a

The Philippines was scheduled to become independ-

ent on July 4, 1946. Philippine Independence Act

of 1934, Pub. L. No. 73-127, §10(a), 48 Stat. 463

(1934). The Philippine government apparently feared

that naturalizations under section 702 would cause

large numbers of Filipinos to emigrate to the United

States, draining that country of much-needed man-

power. These fears were communicated by the Philip-

pine government to the United States Department of

State, which passed them on to the INS Commis-

sioner. In September, 1945, the Commissioner wrote

to the Attorney General:

The Philippine Government again has expressed

to the Department of State its concern because

Filipino members of the armed forces of the

United States are being naturalized even though

they have always been domiciled in the Philippine

Islands... . In view of the concern expressed

by the Philippine Government, it is my beiief

that the situation might best be handled by re-

voking the authority previously granted to Mr.

Ennis and by omitting to designate any rep-

resen ative authorized to confer citizenship in the

Philippine Islands. This course would eliminate

a source of possible embarrassment in our deal-

ings with the Philippine people, who probably

will be awarded independence in the near future.

Memorandum to Attorney General Tom C. Clark

from INS Commissioner Ugo Carusi (September 13,

1945).

Acting upon the Commissioner’s recommendation,

the Attorney General revoked Vice Consul Ennis’

naturalization authority and on October 26, 1945,

naturalizations in the Philippines were halted. No

new naturalization officer was appointed for the

4a

Philippines until August, 1946. Thus, for nine

months no INS official was present in the Philippines

to implement the 1940 Act.

II

THE MATTER OF NATURALIZATION

OF 68 FILIPINO WAR VETERANS

In 1975, the claims of 68 Filipino war veterans

whose petitions for naturalization pursuant to sec-

tions 701-705 of the Nationality Act of 1940 had been

denied by the Immigration and Naturalization Serv-

ice (INS) were joined in the United States District

Court for the Northern District of California. Mat-

ter of Naturalization of 68 Filipino War Veterans,

406 F.Supp. 931 (N.D.Cal. 1975) (Renfrew, J.) (68

Filipinos). The veterans claimed that although sec-

tions 701-705 of the 1940 Act had expired, their pe-

titions should be granted because the United States

government had failed to station in the Philippines

from October 1945 two August 1946 an INS examiner

authorized to naturalize members of the American

armed forces pursuant to section 702 of the Act.

In his opinion, Judge Renfrew divided the peti-

tioners into three categories. Category I consisted of

those veterans who had taken action to become nat-

uralized prior to December 31, 1946 but had not been

processed by the INS. Category II consisted of those

veterans who were eligible for citizenship under the

1940 Act but did not file petitions before the Act

expired. Category III included those petitioners who

were unable to prove eligibility for naturalization un-

der the 1940 Act. Jd. at 936-37.

Judge Renfrew found that Category I veterans had

been victims of “affirmative misconduct” by the INS

and that the government was thus equitably estopped

0a

from denying their petitions. In addition, Judge

Renfrew held that Category I veterans had “con-

structively filed” their petitions for naturalization

prior to the expiration of the 1940 Act, thus comply-

ing with the 1946 statutory deadline for filing. Jd.

at 937-40.

Judge Renfrew next addressed the claims of the

Category II veterans. As a threshold matter, he ruled

that their claim that their due process rights had

been violated by the government’s decision to with-

draw naturalization authority from Vice Consul En-

nis was not a non-justiciable “political question.” *

Id. at 943-48. He next held that the constitutional

claims were not barred by INS v. Hibi, 414 U.S. 5,

94 S.Ct. 19, 38 L.Ed.2d 7 (1973).* 406 F.Supp. at

* Judge Renfrew applied the six-pronged test set forth in

Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d

663 (1962). Noting that it is error to suppose that al! cases

touching upon foreign affairs are nonjusticiable, 406 F.Supp.

at 945, he concluded that the judicia] standards of equal pro-

tection and due process are well-developed; that the case in-

volved no “initial policy determination of a kind clearly for

nonjudicial discretion,” since Congress had already established

the relevant policy by enacting Sections 701-705 of the 1940

Act; that there was no especial need for unquestioning ad-

herence to a political decision already made since it was un-

likely that the foreign policy of the United States would be

affected by the court’s consideration of the merits in that case,

and that there was little likelihood that “multifarious pro-

nouncements by various departments on one question” would

embarrass the United States. Jd. at 945-47.

*In INS v. Hibi, a Filipino who had served in the United

States military sought naturalization under section 701 of

the 1940 Act. The veteran claimed that the Government was

equitably estopped from relying on the expiration date of the

1940 Act (December 31, 1946) because it had failed to advise

him, during the time he was eligible, of his right to naturaliza-

6a

942-43. Finally, Judge Renfrew held that the gov-

ernment’s withdrawal of its naturalization examiner

from the Philippines during 1945-46 had deprived

Category II veterans of their due process rights. Ap-

plying the equal protection component of the Due

Process Clause of the Fifth Amendment, Judge Ren-

frew reasoned that:

although the Court has no doubt that the actions

of the Commissioner of the INS were motivated

by reasonable concern for the maintenance of

amicable relations between the United States and

the Philippine Islands, that concern alone, when

considered in light of the suspect nature of the

classification herein, and the strictness of the ap-

plicable constitutional standard, is insufficient

justification for violating petitioners’ rights.

Id. at 951.

Accordingly, Judge Renfrew also granted the peti-

tions for the Category II veterans.

tion, and because the government had failed to provide a

naturalization offieer in the Philippines during the time he

was eligible. 414 U.S. at 5-8, 94 S.Ct. at 19-21. The Court

rejected this claim, ruling that while it remained an open

question whether affirmative misconduct on the part of the

government might estop it from denying citizenship, the

failure to fully publicize the rights accorded war veterans

under the 1940 Act and the failure to station an authorized

naturalization officer in the Philippines was not such miscon-

duct. Jd. at 8-9, 94 S.Ct. at 21-22.

Hibi was a summary reversa] without the benefit of brief-

ing or oral argument. The sole issue was one of equitable

estoppel, and was therefore not, in Judge Renfrew’s view,

dispositive of the petitioners’ constitutional claims in 68

Filipinos. 406 F Supp. at 942-43.

7a

Category III veterans were given 90 days to pro-

duce proof that they had served in the United States

armed forces in the Philippines and were thus eligi-

ble for naturalization under the 1940 Nationality Act.

Id. at 951. After 90 days, no such proof was forth-

coming, and their petitions were denied.

The government filed a notice of appeal in 68 Fili-

pinos but subsequently withdrew its appeal.

III

DR. MENDOZA

Petitioner, Sergio Elejar Mendoza, is a 73-year old

Filipino citizen currently residing in this country. He

served in the armed forces of the United States as a

medical doctor from December 1, 1941 until June 30,

1946. In 1942, he was captured by the Japanese and

survived the notorious Bataan Death March. In Feb-

ruary or March, 1945, Dr. Mendoza was released by

the Japanese. In the fall of 1945, he was sent to the

United States for army medical training, and spent

approximately six months in Pennsylvania. There-

after, he returned to the Philippines, where he stayed

until his discharge from the military. At no time

during 1945-46 did Dr. Mendoza make any efforts to

become an American citizen.‘ In 1978, he filed for

naturalization as a Filipino war veteran pursuant to

sections 701-706, claiming that he was denied due

process of law by the government’s actions in 1945-

* Such inaction is not surprising since many Filipino soldiers

imprisoned by the Japanese were unaware of their right to

apply for naturalization. See, e.g., Olega: © v. United States,

629 F.2d 204, 211 (2nd Cir. 1980), cert. denied, 450 U.S. 980,

101 S.Ct. 1513, 67 L.Ed.2d 814 (1981).

46.° Judge Lucas found that Dr. Mendoza was a

Category II veteran for the purpose of applying

Judge Renfrew’s decision in 68 Filipinos, and he held

the government collaterally estopped from relitigating

the issues decided in 68 Filipinos. The government

appealed Judge Lucas’ order granting Dr. Mendoza

citizenship. We note jurisdiction under 28 U.S.C.

§ 1291.

IV

OTHER FILIPINO WAR VETERAN CASES

Prior to Judge Lucas’ decision in Dr. Mendoza’s

case, two other district judges in this circuit held that

the government is collaterally estopped by 68 Fili-

pinos from relitigating the constitutional! issue raised

by the Filippino war veterans. See Petition of Nis-

peros, 471 F.Supp. 296 (C.D.Cal. 1979); Petition of

Crispulo Columna Colmenar, No. 308-P-22551 (S.D.

Cal. March 20, 1979). Shortly after Dr. Mendoza’s

petition was granted, however, the Second Circuit, in

Olegario v. United States, 629 F.2d 204 (1980), cert.

denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814

(1981), held that the government was not collaterally

estopped by 68 Filipinos from contesting Olegario’s

naturalization petition; on the merits, the Second Cir-

cuit disagreed with Judge Renfrew in 68 Filipinos

and held that the government’s decision to withdraw

naturalization authority from Vice Consul Ennis vio-

lated no due process rights of Filipino veterans.

* Mendoza last entered the United States on June 12, 1975,

and was ordered to depart on June 29, 1978. Were this court

to reverse the judgment below granting his petition for natu-

ralization, he would be subject to deportation under 8 U.S.C.

§ 1251(a) (9) (1976).

9a

V

COLLATERAL ESTOPPEL

In the seminal case of Parklane Hosiery Co. v.

Shore, 439 U.S. 332, 99 S.Ct. 645, 58 L.Ed.2d 552

(1979), the Supreme Court held that federal trial

courts have broad discretion to apply collateral estop-

pel offensively in the interest of avoiding needless liti-

gation. In this case, we hold that Judge Lucas did

not exceed the bounds of his discretion in estopping

the government from relitigating, in opposition to Dr.

Mendoza’s naturalization petition, the constitutional

issues decided in 64 Filipinos. We agree with Judge

Lucas that under the guidelines adopted in Parklane

Hosiery, “offensive collateral estoppel would not in

any way be unfair to the government” in this case.

Accordingly, we affirm the judgment granting Dr.

Mendoza’s petition for naturalization.

A.

The question of applying collateral estoppel offen-

sively arises “when the plaintiff seeks to foreclose the

defendant from litigating an issue the defendant has

previously litigated unsuccessfully in an action with

another party.” * Parklane Hosiery, 439 U.S. at 326

n.4, 99 S.Ct. at 649 n.4. See also Blonder-Tongue

¢In approving the use of collateral estoppel offensively, the

Court in Parklane Hosiery sounded the death knell to the

common law doctrine of mutuality of parties. Under the mu-

tuality doctrine, one party could preclude another party from

relitigating an issue that had been litigated in a previous

suit only if both had been parties to the original! action. Thus,

under the mutuality doctrine, the government would not have

been foreclosed in this case from relitigating issues decided

adversely to it in 68 Filipinos because Dr. Mendoza was not a

party to that action.

10a

Laboratories, Inc. v. University of Illinois Founda-

tion, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788

(1971); Montana v. United States, 440 U.S. 147, 99

S.Ct. 970, 59 L.Ed.2d 210 (1979); Hinkle Northwest,

Inc. v. S.E.C., 641 F.2d 1304 (9th Cir. 1981).

Writing for the Court in Parklane Hosiery, Jus-

tice Stewart stressed the need for caution in using

collateral estoppel offensively because of the risk of

unfairness to a defendant. First, the availability of

offensive collateral estoppel may encourage potential

plaintiffs to sit on the sidelines, taking a no risk “wait

and see” attitude in the hope that another plaintiff

will obtain a favorable judgment that can be invoked

offensively against the defendant. Second, a defend-

ant with little at stake in the first action, and thus

little incentive to defend vigorously or to appeal an

adverse judgment, might find himseli, in a subsequent

unforeseen action involving higher stakes, estopped

from relitigating an issue decided against him in the

earlier action. Third, the offensive use of collateral

estoppel raised the specter that a defendant faced

with identical claims by multiple plaintiffs may pre-

vail in several actions, then be faced with an incon-

sistent adverse judgment that can be used offensively

by future plaintiffs. Finally, offensive use of col-

lateral estoppel may be unfair where the defendant

in the first action is forced to defend in an incon-

venient forum or where the second action affords the

defendant significant procedural opportunities not

available in the first action.

Notwithstanding these acknowledged risks of un-

fairness to a defendant, the Court was persuaded that

the dual purposes of collateral estoppel—“protecting

gg from the burden of relitigating an identical

issue .. . and promoting judicial economy by prevent-

lla

ing needless litigation,” 439 U.S. at 326, 99 S.Ct.

at 649—justified a rule permitting discretionary use

of offensive collateral estoppel in the federal courts.

Thus, the Court concluded that “[t]he preferable ap-

proach for dealing with these problems in the federal

courts is not to preclude the offensive use of collateral

estoppel, but to grant the trial courts broad discre-

tion to determine when it should be applied.” Jd. at

331, 99 S.Ct. at 651. In exercising that discretion,

trial judges should be guided by the general rule that

“where a plaintiff could easily have joined in the

earlier action, or where... the application of offen-

sive collateral estoppel would be unfair to a defend-

ant,” id., the defendant should be permitted to reliti-

gate despite a prior adverse determination.’

B.

The government contends that the application of

offensive collateral estoppel by Judge Lucas as a basis

for granting Dr. Mendoza’s petition was grossly un-

fair and an abuse of discretion.* To support this con-

‘In Parklane Hosiery, the district court refused to apply

collateral estoppel offensively on grounds that it would de-

prive the defendant of its right to trial by jury. The Second

Circuit reversed, applying collateral estoppel, and the Supreme

Court affirmed. The Court reasoned, inter alia, that it was not

unfair to collaterally estop Parklane Hosiery from relitigat-

ing, in a shareholders’ class action, a determination in a prior

action brought by the SEC that a proxy statement issued by

Parklane Hosiery was false and misleading.

* As a preliminary matter, the government also argues that

the facts of Dr. Mendoza’s case are quite different from 68

Filipinos, since Dr. Mendoza spent approximately six months

in the United States and was therefore not in the Philippines

during much of the time that Vice Consul Ennis’ naturaliza-

tion authority was revoked. It is impossible to tell from Judge

12a

tention, the government focuses on the Solicitor Gen-

eral’s decision to withdraw the appeal in 68 Filipinos,®

allowing the judgment in that case to become final.

The government claims that it grossly underestimated

the number of persons who would be eligible for nat-

uralization under 68 Filipinos, and that the appeal

was withdrawn “without a complete understanding

of the implications of [Judge Renfrew’s] decision.”

With no citation to the record, the government claims

that it appeared at the time it withdrew the appeal

that only “a fairly small number” (some 25,000

Filipino veterans, by an unidentified State Depart-

ment estimate, plus derivatively eligible relatives)

would be eligible for naturalization under 68 Fili-

pinos. Brief for Respondent-Appellant at 22. The

government goes on to contend, still without record

support, that the Solicitor General, acting on unspeci-

fied “new information,” later reversed his position

and decided to perfect appeals in all subsequent cases,

including Dr. Mendoza’s. /d.

Renfrew’s opinion the number of months that each Category

II veteran in 68 Filipinos was eligible for United States citi-

zenship under the 1940 Act but was deprived of the oppor-

tunity to become naturalized because of the Commissioner’s

decision to withdraw the examiner from the Philippines. In

any event, the record shows that Dr. Mendoza was in the

Philippines for as much as three months, during which time

he was eligible under sections 701-705 but unable to become

naturalized because no naturalization examiner was present.

We think this is a sufficient period to implicate his due process

rights and to place him in the same situation as other Cate

gory II veterans.

* The Solicitor General, subject only to the genera] super-

vision and direction of the Attorney General, authorizes or

declines to authorize the appeal of judgments adverse to the

government. 28 C.F.R. § 0.20(b) (1980).

13a

The government fails to provide any record support

for its claim that offensive collateral estoppel was un-

fairly applied by Judge Lucas in granting Dr.

Mendoza’s petition. We are not advised of the source

of or basis for the original State Department esti-

mate of 25.000 eligible Filipino veterans; nor are we

advised of the nature or source of the “new informa-

tion” claimed to be the basis of the Solicitor Gen-

eral’s change in position. All we have from the gov-

ernment is an unsupported claim that 60,000-80,000

Filipino veterans “may yet” seek naturalization un-

der 68 Filipinos.”

Even were we to accept the government’s claim of

error in its original estimate of eligible Filipino vet-

erans, the new numbers of 60,000 to 80,000 give no

meaningful indication of the consequences of barring

relitigation of the issues decided in 68 Filipinos. In

basing its argument of unfairness on the number of

persons eligible for naturalization under 68 Filipinos,

the government makes no distinction between those

Filipino veterans who, like Dr. Mendoza, are likely to

“Yet the courts now invoke offensive collateral estoppel

to hold that the Government is powerless to resist further

petitions by Filipino war veterans who may yet number

60,000 to 80,000." Brief for Respondent-Appellant at 20. We

assume, although the government does not tell us, that the

figures of 60,000-80,000 are based on the INS research re-

ferred to by INS Commissioner Castillo in his 1978 testimony

to Congress. See Slip op. p. 1395, p. ——, infra; Hearings

Before the Subcomm. on Immigration, Citizenship and Inter-

national Law of the House Comm. on the Judiciary, 95th

Cong., 2nd Sess. 272-73 (1978). We note, moreover, that

Commissioner Castillo gave no indication in his testimony

that those figures were not available to the Solicitor General

at the time he decided, on the recommendations of the INS, to

withdraw the appeal in 68 Filipinos.

l4a

petition for naturalization, and those who have re-

mained in the Philippines and have no interest in

leaving their homeland to become United States citi-

zens. Indeed, what is most astonishing about the gov-

ernment’s vision of a horde of Filipino veterans ap-

plying for citizenship in reliance on 68 Filipinos is

what the government has failed to tell us: how many

persons have in fact petitioned for naturalization on

the basis of 68 Filipinos since the judgment became

final in 1977. We are dealing with a class of persons

who served in the Philippines Army some 40 years

ago. Common sense tells us that the actual number

likely to petition for naturalization in reliance on 68

Filipinos is no more than a small fraction of the un-

documented numbers cited by the government. In

fact, this was the case as of 1978, when Leonel

Castillo, then Commissioner of INS, testified before

Congress:

Our independent research indicates that if all of

the veterans followed the same mortality rates

and so on, that demographically there shouldn’t

be more than 60,000 to 80,000 assuming they all

wanted to come. ...

[A]nd yet our experience in the aftermath of

the 1968 [sic] Filipino War Veterans case is

that we've had fewer than 100 applicants, so

there really has been no big change. The number

has been very, very small,

Heargings Before the Subcomm. on Immigration,

Citizenship and International Law of the House

Comm. on the Judiciary, 95th Cong., 2d Sess. 273

(1978) (emphasis added). Surely, if the number of

petitioners had increased dramatically since 1978, the

lida

government would have advised the court of that sig-

nificant fact. .

Moreover, whatever the government’s original esti-

mate of the number of eligible Filipino veterans, the

government had every incentive to litigate vigorously

the issues in 68 Filipinos and to prosecute an appeal

of the adverse trial court judgment. This is not a

case where an original suit is followed by an unfore-

seen action involving much higher stakes. See Park-

lane Hosiery, 439 U.S. at 330, 99 S.Ct. at 651. On

the contrary, in 68 Filipinos the government faced 68

separate naturalization petitions joined together in

one action, not a lone veteran seeking citizenship. It

should have come as no surprise to the government

that the effects of Judge Renfrew’s decision would

reach not only the 68 Filipinos before the court, but

all similarly situated Filipino veterans, whatever

their number.

It is not for this court to speculate on the reason

the Solicitor General reversed his position after with-

drawing the government’s appeal in 68 Filipinos. We

have only the record before us to go on, and that rec-

ord is bare of any support for the government’s

proffered explanation that it did not fully appreciate

until a later time the implications of Judge Renfrew’s

decision. We thus conclude that the government had

a full and fair opportunity to litigate the issues in

68 Filipinos and that the government’s decision to

withdraw its appeal does not make it unfair to estop

the government from relitigating the identical issues

in an effort to defeat Dr. Mendoza’s naturalization

petition. See United States v. Munsingwear, 340 U.S.

36, 39, 71 S.Ct. 104, 106, 95 L.Ed 36 (1950);

Starker v. U.S., 602 F.2d 1341, 1349-50 (9th Cir.

1979); Winters v. Lavine, 574 F.2d 46, 62-63 (2nd

Cir. 1978) ; Continental Can Co. v. Marshall, 603 F.2d

16a

590, 596 (7th Cir. 1979); Restatement (Second) of

Judgments § 68.1(a) Comment a (Tent. Draft No. 4,

1977).

C.

We recognize that the Second Circuit in Olegaria,

supra, recently refused to estop the government from

relitigating the constitutional issues decided in 68

Filipinos and, disagreeing with Judge Renfrew, ruled

in favor of the government on the merits.” We do

not believe, however, that Olegario compels reversal

of the trial court judgment granting Dr. Mendoza’s

naturalization petition.’’ As the Ninth Circuit has

11 Nor, under the guidelines of Parklane Hosiery, do we find

other circumstances that warrant relitigation of the issues

decided adversely to the government in 68 Filipinos.

The record gives no indication that in 1975 Dr. Mendoza

was aware of the 68 Filipinos litigation and adopted a “wait

and see” attitude in the hope of using a favorable decision as

a basis for estopping the government from challenging his

petition for naturalization. See Parklane Hosiery, 439 U.S.

at 329-30, 99 S.Ct. at 650-51.

Furthermore, the government was not required to defend

the 68 Filipinos case in an inconvenient forum, and there

are no significant procedural opportunities in this action that

were not available in the earlier 68 Filipinos action. See id.,

439 U.S. at . 30-31, 99 S.Ct. at 651-52.

2 The district court, apparently without considering col-

lateral estoppel, had adopted Judge Renfrew’s “able opinion”

and granted Olegario’s petition on the merits. 473 F.Supp.

185, 186 (S.D.N.Y. 1979).

13 We note that Olegario was not decided until after Judge

Lucas issued his order granting Dr. Mendoza’s petition in this

case; thus, Judge Lucas could not have considered Olegario in

exercising his discretion to apply collateral estoppel offen-

sively against the government. We find no abuse of discre-

tion on the record before him, however, and conclude that

the subsequent inconsistent decision does not require reversal.

l7a

recently noted, “(t]he fact of inconsistent decisions

is a relevant, but not always dispositive, factor to be

considered in the exercise of discretion.” Western Oil

d@ Gas v. United States E.P.A., 633 F.2d 803, 809

(9th Cir. 1980). See also Crawford v. Ranger Ins.

Co., 653 F.2d 1248, 1251-52 (9th Cir. 1981).

Inconsistent judgments may render collateral es-

toppel unfair. In Parklane Hosiery, 439 U.S. at 330

n.14, 99 S.Ct. at 651 n.14, the Court recited Professor

Currie’s famous example of a railroad collision in-

volving 50 passengers. Currie, Mutuality of Estoppel:

Limits of the Bernhard Doctrine, 9 Stan.R.Rev. 281,

304 (1957). In that example, the railroad wins 25

suits, and a plaintiff wins suit 26. It w ould be unfair,

of course, to estop the railroad in suits 27 through 50

on the basis of the apparently fortuitous jury deci-

sion in suit 26. Similarly, in Commissioner v. Sun-

nen, 333 U.S. 591, 599, 68 S.Ct. 715, 720, 92 L.Ed.

898 (1948), the Court reasoned that it would be un-

just to give collateral estoppel effect to a judgment

against taxpayer A in subsequent tax years, while

similarly situated taxpayers, not collaterally estopped

by the judgment against taxpayer A, are accorded

more favorable tax treatment because of a change in

the tax law.

In this case, there is only one inconsistent judg-

ment, and the inconsistency stems from a conflict be-

tween the courts of two circuits, not from an appar-

ently fortuitous jury decision or an intervening

statutory change in the law.“ Any unfairness oc-

4 Moreover, 68 Filipinos was litigated in the courts of the

Ninth Circuit. Whatever the value of permitting another

circuit to take a fresh look at the legal issue involved, thereby

perhaps facilitating Supreme Court review, see American

Medical International Inc. v. Secretary of HEW, —— F 2d

18a

casioned by application of collateral estoppel in this

case is no greater than the unfairness that results

whenever circuits disagree; thus, we do not believe

that the existence of an inconsistent second circuit

decision outweighs the factors favoring collateral es-

toppel in this case.

Moreover, we find the Second Circuit’s reasoning

unpersuasive on the collateral estoppel issue. The

Second Circuit accepts, without analysis, the govern-

ment’s characterization of the case as one raising is-

sues of national significance. (“In contrast to Park-

lane, the government is the defendant here, and the

case raises important issues of national concern.” 629

F.2d at 215.) We recognize that the government is

frequently involved in cases raising issues of great

public importance, and that in such cases the public

interest in permitting the government to relitigate

those issues may outweigh the public interest in

avoiding needless litigation. We simply do not be

lieve, as appears below, that this is such a case.

D.

The government’s final] line of argument is that

Parklane Hosiery should be limited to private liti-

gants. It is by now well settled, however, that col-

lateral estoppel may be involved against the govern-

ment, see Montana v. United States, 440 U.S. 147, 99

S.Ct. 970, 59 L.Ed.2d 210 (1979), and may be in-

voked not only on issues of fact, but on mixed issues

of law and fact or pure issues of law. See Montana

v. U.S., supra; Carr v. District of Columbia, 646 F.2d

, at : No. 79-1460, slip op. at 10-11 (D.C.Cir.

. 14, 1981), we think these policies lose much of their

the same circuit as the initial

gation. See Starker v. U.S., 602 F.2d at 1848-49 n.5.

19a

599, 608 (D.C.Cir. 1980); Starker v. U.S., 602 F.2d

at 1344-48. Moreover, the Ninth Circuit has already

approved the use of collateral estoppel offensively

against the government. Hinkle Northwest, 641 F.2d

at 1508-10; Starker v. U.S., 602 F.2d at 1350.

Nonetheless, the Supreme Court has cautioned

that “(u)nreflective invocation of collateral estoppel

against parties with an ongoing interest in constitu-

tional issues could freeze doctrine in areas of the law

where responsiveness to changing patterns of conduct

or social mores is critical.” Montana v. U.S., 440

U.S. at 163, 99 S.Ct. at 978. Similarly, courts have

recognized that, as the institutionalized representa-

tive of the public interest, the government is some-

times involved in cases of far-reaching national sig-

nificance, where the policies of conserving judicial re-

sources and preventing parties from taking a “second

bite of the apple” are outweighed by the societal in-

terest in “getting a second opinion.” See American

Medical International, slip op. at 1393-1398; Western

Oil & Gas, 633 F.2d at 809-10; Porter & Dietsch Ine.

v. FTC, 605 F.2d 294, 299-300 (7th Cir. 1979), cert.

denied, 445 U.S. 950, 100 S.Ct. 1597, 63 L.Ed.2d 784

(1980). The Restatement (Second) of Judgments,

$68.1(e) (Tent. Draft No. 4, 1977), for example,

States that issue preclusion is inapplicable where

“there is a clear and convincing need for a new deter-

mination of the issue (1) because of the potential ad-

verse impact of the determination on the public in-

terest... .”

We find no “critical” need for redetermination of

the Filipino war veterans’ rights. Despite the gov-

ernment’s rhetoric, the record is devoid of evidence

that Judge Renfrew’s decision in 68 Filipinos has

had, or can be expected to have, any significant effect

20a

on the number of veterans who become United States

citizens."* Moreover, even if the number of Filipino

veterans petitioning for naturalization on the basis

of 68 Filipinos were larger than the record would

indicate, we can discern no compelling public interest

in opposing the naturalization of those veterans. The

persons who may take advantage of 68 Filipinos are

World War II veterans who are likely to be well over

60 years of age; they fought side-by-side with United

States troops in the Pacific, and many, like Dr.

Mendoza, suffered imprisonment by the Japanese and

survived the notorious Bataan Death March. In ap-

preciation for their sacrifices, Congress voted to admit

those veterans to United States citizenship over 30

years ago. As former INS Commissioner Castillo ob-

served in his testimony to Congress concerning the

Solicitor General’s decision to withdraw the appeal in

68 Filipinos: ‘[‘i]t seem[s] . . . that just as a matter

of simple justice, that we should honor our commit-

ment to people that we agreed to naturalize thirty

years ago.” Hearings Before the Subcomm. on Im-

15 Moreover, it is a significant limiting factor that the “legal

matter raised in the second proceeding . . . involve[s] the

same set of events” as that involved in the first. Commissioner

v. Sunnen, 333 U.S. 591, 601-602, 68 S.Ct. 715, 721-92, 92

L.Ed. 898 (1948) ; see United States v. Moser, 266 U.S. 236,

242, 45 S.Ct. 66, 67, 69 L.Ed. 262 (1924), explained in Mon-

tana Vv. U.S., 440 U.S. at 162-63, 99 S.Ct. at 978. Both the facts

giving rise to Dr. Mendoza’s cause of action and the under-

lying claims are the same as those in 68 Filipinos. While we

therefore have no occasion to decide whether the government

could be estopped from relitigating legal issues determined

in 68 Filipinos in a subsequent case involving a different cause

of action, we note that factors favoring relitigation would

assume greater weight in a new factual setting. See Montana

v. U.S., 440 U.S. at 162-68, 99 S.Ct. at 978.

2la

migration, Citizenship and International Law, supra,

at 272.

In light of the foregoing analysis, we hold that the

district court did not abuse its discretion in estopping

the government from relitigating, in opposition to Dr.

Mendoza’s petition for naturalization, the constitu-

tional issues decided in 68 Filipinos.

The judgment is AFFIRMED.

22a

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISRICT OF CALIFORNIA

Petition No. 406054

PETITION FOR NATURALIZATION

OF SERGIO ELEJAR MENDOZA

[Filed Jan. 4, 1979]

ORDER GRANTING PETITION

Petitioner is a citizen of the Philippines who served

honorably in the Armed Forces of the United States

from 1941 to 1946. His petition was filed under

$§ 701 and 702 of the Naturalization Act of 1940 as

amended in 1942. The government opposes the grant-

ing of this petition on the grounds that the rights

petitioner possessed under the Act expired in 1946

when petitioner left the Armed Forces. As petitioner

can make no valid claim for citizenship under law in

force at the time he filed his petition, the government

argues that his petition must be denied under 8

U.S.C. §1421(e). Petitioner raises Constitutional

arguments which he submits allow him to make this

petition under the 1942 Amendments. For the reason

stated below the Court grants the petition on other

grounds and does not reach the Constitutional issues

or other merits of the petition.

Matter of Naturalization of 68 Filipino War Vet-

rans, 406 F.Supp. 931 (N.D. Ca., 1975) involved

23a

three categories of veterans asserting rights under

the 1942 Amendments. Petitioner’s position is the

Same as those petitioners in “Category II” in 68

Filipino War Veterans. That is, petitioner served in

the United States Armed Forces in the Philippines

during the time when the United States government

withdrew the authority of the INS special agent there

to naturalize petitioners under the 1942 Amendments.

The District Judge in 68 Filipino War Veterans

found that the Category II petitions should be

granted. This Court holds that the policy of offensive

collateral estoppel as recently refined by the Supreme

Court in Parklane Hosiery Co., Ine. v. Shore, 99 S.Ct.

645 (1979) is apposite and will be applied to estop

the government from challenging the petition here.

Although plaintiff probably could have joined as a

petitioner in 68% Filipino War Veterans, his failure to

do so is not suggested to have been the result of collu-

sion, bad faith, or other improper motive. Indeed, it

has not been suggested that petitioner was aware of

the suit at all. Thus it would not be unfair to allow

petitioner to make use of that decision. Second, the

government surely had as much incentive to litigate

the issues in 68 Filipino War Veterans as in this case.

The government has not pointed to any factor indi-

cating that it did not litigate that case fully. Third,

the use of offensive collateral estoppel here wil] not

produce a decision inconsistent with other judgments.

In fact, the decision here will square not only with

68 Filipino War Veterans but with the decision of

Chief Judge Schwartz in Petition of Crispulo Columna

Colmenar, Pet. No. 308-P-22551, (S.D. Ca., 20 March

1979). Finally no procedural advantages are avail-

able to the government in this case that were unavail-

able in 68 Filipino War Veterans. In sum, offensive

24a

collateral estoppel would not in any way be unfair

to the government.

Under the guidance of Parklane Hosiery, then, the

Court holds that the government is estopped from

challenging this petition by the decision in Matter of

Naturalization of 68 Filipino War Veterans and, ac-

cordingly, the petition is granted.

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the Clerk of

the Court serve copies of this Order on counsel of

record in this action.

Dated: June 4, 1979

/s/ Malcolm M. Lucas

MALCOLM M., Lucas

United States District Judge

25a

APPENDIX C

THE UNITED STATES DISTRICT COURT FOR

THE CENTRAL DISTRICT OF CALIFORNIA

Petition No. 406054

PETITION FOR NATURALIZATION

OF SERGIO ELEJAR MENDOZA

FINDINGS OF FACT, CONCLUSIONS OF LAW,

AND RECOMMENDATIONS OF THE

DESIGNATED NATURALIZATION EXAMINER

To THE HONORABLE, THE JUDGES OF THE UNITED

STATES DISTRICT COURT FOR THE CENTRAL DIs-

TRICT OF CALIFORNIA:

I

The undersigned, duly designated under the Im-

migration and Nationality Act to conduct preliminary

examination upon petitions for naturalization, re-

spectfully submits that the above named petitioner, a

native and national of the Philippines, age 70 years,

presently in the United States in the status of over-

stayed visitor for business, filed the petition for nat-

uralization numbered above on May 10, 1978, under

Section 701 of the Nationality Act of 1940, as

amended (Act of March 27, 1942 (56 Stat. 182) ).

The question presented is whether the petitioner is

now eligible to be naturalized under the statute cited

above relating to service in the Armed Forces of the

United States during World War II, and which stat-

ute expired by its own terms on December 31, 1946.

26a

II

The petitioner served honorably in the Armed

Forces of the United States from December 1, 1941

to June 30, 1946. His service was with the Philippine

Commonwealth Army and he enlisted in the Philip-

pines. Petitioner was never lawfully admitted to the

United States for permanent residence. Verification

of his service and its honorable character has been

obtained from official records.

The petitioner herein has offered no evidence to

establish that he attempted to apply for or even in-

quired about naturalization prior to the expiration of

the law on December 31, 1946. Further, petitioner

has testified that he left the Philippines in September,

1945 for the United States to go to school under

United States Army authority, and did not return to

the Philippines until at least June, 1946.

There are no other issues, such as good moral char-

acter or attachment to the principles of our constitu-

tion, in this case. The sole issue is eligibility for nat-

uralization under the provisions of the Nationality

Act of 1940, as amended (supra), and under the cur-

rent Immigration and Nationality Act, Section 329

(8 U.S.C. 1440).

Section 701 of the Act of March 27, 1942 sought

to reward through naturalization, those who were

then serving or who had served honorably on active

duty with the Armed Forces of the United States.

Section 702 of that Act (56 Stat. 183) provided for

the overseas naturalization of those then serving. The

eqn ty ee

27a

times during our nation’s history that such admin-

istrative procedures were available. The Philippines

was among the overseas locations visited by those offi-

cers following the recovery of those Islands by

friendly forces. However, on the representations of

Philippine officials, the government official was with-

drawn for a period of approximately nine months,

from late 1945 to mid 1946. Such a situation did

not occur elsewhere. Thus, for this period, naturali-

zation was not available to qualified servicemen then

in the Philippines.

III

Section 701 of the Act of March 27, 1942 called

only for honorable services in the United States

Armed Forces and did not require, as does its current

successor statute, Section 329 of the Immigration and

Nationality Act (8 U.S.C. 1440), that the serviceman

be enlisted in a qualifying geographic area or that he

have been at any time lawfully admitted to the

United States for permanent residence. Those geo-

graphically qualifying areas are the United States,

the Canal Zone, American Samoa and Swains Island.

Most, if not all, of the Filipino nationals had either

enlisted in the Philippines in such units as the Philip-

pine Scouts (part of the United Armed Forces) or

being members of the Commonwealth Army of the

Philippines had been incorporated by executive and

military orders into the United States Armed Forces.

Others served in guerrilla units recognized by the

United States Armed Forces.

Within recent years, the situation of another Fili-

pino native and veteran of World War II was con-

sidered by the United States Supreme Court (/NS v.

Marciano Haw Hibi, 414 U.S. 5 (1973)). In Aibi,

28a

the Supreme Court considered the petitioner’s argu-

ment that the government was estopped from using

the cut-off date of December 31, 1946 as spelled out

in Section 701 of the 1940 Act since the government,

by withdrawing its examiner from the Philippines for

a period of several months, had effectively denied Fil-

ipino veterans the opportunity te apply at that time.

Hibi had not applied nor tried to apply prior to De-

cember 31, 1946. The Supreme Court was not per-

suaded by that argument.

In a split decision, the Court ruled that, since Hibi

had not applied for naturalization until many years

after 1946, the withdrawal of the examiner did not

rise to the level of “affirmative misconduct” required

to successfully invoke estoppel against the govern-

ment. Even though the Court concluded that natural-

ization under Section 701 was no longer available to

Hibi on the issue of estoppel, there was no hint of

what the decision might have been had Hibi at-

tempted to apply before that section’s expiration.

Subsequently, a number of Filipino World War II

veterans residing in San Francisco, California filed

petitions for naturalization claiming eligibility under

the same provision. Their petitions were joined and,

notwithstanding the Supreme Court’s decision in Hibi,

the United States District Court found the majority

of the 68 Filipinos eligible for naturalization under

Section 701 of the Nationality Act, as amended. See

Matter of Naturalization of 68 Filipino War Vet-

erans, 406 F. Supp. 931 (N.D. Cal. 1975).

This Court will note that the San Franciseo Court

29a

denied the opportunity to file formal petitions because

of the government’s withdrawal of its overseas officer.

The Court, distinguishing Hibi, found that these per-

sons had “constructively” filed petitions and that

the government was estopped, notwithstanding H/ibi,

from now denying them naturalization.

In the second category were those veterans who

convinced the Court that they would have applied had

the officer not been withdrawn. These persons, like

Hibi, took no steps to apply until many years later.

With respect to these, the Court found that the vet-

erans had been denied due process, an issue not raised

or decided in Hibi. It reasoned that, since Filipinos

were, before July 4, 1946, non-citizen nationals of

the United States, they owed permanent allegiance to

the United States. In turn, they were entitled to

due process.

Finally, the third category included several Fili-

pinos who could not produce the critical proof of

qualifying honorable and active service in the United

States Armed Forces during the World War II pe-

riod. The Court gave this group additional time

within which to produce that proof. Evidence was

not forthcoming and the petitions of those in the third

category were dismissed.

As to categories one and two, the government

sought appeal. The appeal was grounded primarily

on the fact that the petitioners’ cases were not es-

sentially distinguishable from that in Hibi. Briefing

was completed and the appeal was awaiting oral ar-

gument in the Ninth Circuit Court of Appeals.

In a memorandum dated September 21, 1977, the

Commissioner of the Immigration and Naturalization

Service recommended to the Department of Justice

that the appeal be withdrawn. Officials at the De-

30a

partment of Justice agreed and in an order dated

November 30, 1977 the Court of Appeals granted the

government’s motion to dismiss. The order made no

comment one way or the other on the merits of the

case(s).

Upon reexamination, the government has adopted

the reasoning of the San Francisco Court only as to

Filipino World War II veterans in the first category.

It is however the government’s position that the

naturalization of those veterans in the second cate-

gory is unsupported by statute and precedent. Not-

withstanding the decision in the San Francisco case,

notwithstanding the government’s withdrawal of its

appeal in that case, and for the following reasons, the

government must recommend that this petition for

naturalization be denied.

The current Immigration and Nationality Act of

1952 was amended by the Act of September 26, 1961,

Sec. 17 (75 Stat. 656). Specifically, Section 310 of

the 1952 Act was amended by the addition of Sub-

section (e) thereof (8 U.S.C. 1421(e)). The amend-

ment provided that, notwithstanding the savings

clause of the Act, all petitions for naturalization filed

after the effective date of the amendment would be

determined in accordance with the requirements of

the 1952 Act still in effect. As indicated earlier, the

basic and current Act requires, under Section 329 (8

U.S.C. 1440), that qualified servicemen or veterans

must have enlisted (or reenlisted, by judicial inter-

pretation) in certain geographical areas or have been

admitted to the United States for lawful permanent

residence.

The District Court, in the cases of the 68 veterans,

did not discuss Section 310(e) in reaching its con-

clusion as to either categories one or two. If cate-

gory one veterans are determined to have “construc-

8la

tively filed” their petitions in 1946, Section 310(e)

does not apply, and the savings clause, Section 405(b)

(8 U.S.C. 1101 note), would allow their petitions to

be heard and determined in accordance with the re

quirements of law ‘n effect when such petitions were

filed.

The present petitioner, however, made no attempt

to inquire or apply until well after the enactment of

Section 310(e), and as such is bound by the require-

ments of the present statute (8 U.S.C. 1440). Since

he was neither enlisted nor inducted in the qualify-

ing geographical area outlined above and is not a

lawful permanent resident, the requirement is not

met. Further, during a large majority of the time

when authority to naturalize in the Philippines was

revoked (October, 1945 until August, 1946), peti-

tioner was either in the United States as a student

officer under United States Army authority, or in

transit back to the Philippines.

Interestingly, in a decision dated October 17, 1975,

just over three weeks prior to the District Court’s

judgment in the cases of the 68 Filipino veterans, the

Ninth Circuit Court of Appeals ruled that Section

310(e) of the Act (supra) barred the naturalization

of a veteran whose eligibility was claimed on the basis

of the provisions of a prior statute, L’nited States v.

Pasion, 524 F.2d 249 (9th Cir. 1975).

Further, the situation of category two veterans is

indeed indistinguishable from that in Hibi (supra).

Since no attempt was made to inquire or apply prior

to December 31, 1946, the government's failure to

have an examiner in the Philippines did not amount

to the “affirmative misconduct” necessary to invoke

estoppel, nor was it a denial of due process.

32a

Thus it is the position of the government that nat-

uralization under Section 701 of the Nationality Act

of 1940 is not available to a Filipino World War II

veteran who cannot prove that he made a reasonable

inquiry or application prior to the expiration of the

above section on December 31, 1946.

Pursuant to the provisions of Section 335 of the

Immigration and Nationality Act (8 U.S.C. 1446),

I hereby make the following findings of fact and con-

clusions of law:

FINDINGS OF FACT:

(a)

(b)

The petitioner filed a petition for naturaliza-

tion on May 10, 1978 under the provisions of

Section 701 of the Nationality Act of 1940 as

amended;

The petitioner is a Filipino national who served

honorably on active duty with Armed Forces

of the United States from December 1, 1941

to June 30, 1946 by reason of his service in

the Philippine Commonwealth Army during

that period; he was enlisted in the Philippines;

(c) The petitioner was either in the United States

(d)

as a student officer under United States Army

authority or in transit back to the Philippines

during a large majority of the time when au-

thority to naturalize in the Philippines was

revoked ;

The petitioner is not a lawful permanent resi-

dent of the United States;

(e) The petitioner has offered no evidence to show

that he inquired about naturalization or ap-

plied for naturalization prior to December 31,

1946.

33a

CONCLUSION OF LAW:

(a) The petitioner is ineligible for naturalization

under the provisions of Section 701 of the Na-

tionality Act of 1940 as amended because of

the decision of the United States Supreme

Court in INS v. Hibi, 414 U.S. 5 (1973), and

because of current Section 310(e) of the Im-

migration and Nationality Act, as amended

(8 U.S.C. 1421(e)), notwithstanding the deci-

sion of the United States District Court, San

Francisco, California in Matter of Naturaliza-

tion of 68 Filipino War Veterans, 406 F.

Supp. 931 (N.D. Cal. 1975).

V

I recommend that this petition for naturalization

be DENIED pursuant to the facts and law outlined

above.

Respectfully submitted,

‘s/ John B. Bartos

JOHN B. BARTOos

Genera] Attorney ( Nationality)

Designated Naturalization Examiner

Nov. 29, 1978

Date

84a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 79-3478

MISC =7783 MML

IN THE MATTER OF PETITION FOR NATURALIZATION OF

SERGIO ELEJAR MENDOZA, PETITIONER-APPELLEE

v8.

UNITED STATES OF AMERICA, RESPONDENT-APPELLANT

Appeal from the United States District Court

for the Central District of California

JUDGMENT

THIS CAUSE came on to be heard on the Tran-

script of the Record from the United States District

Court for the Central District of California and was

duly submitted.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court, that the

judgment of the said District Court in this Cause be,

and hereby is affirmed.

A TRUE Copy

ATTEST Oct. 22, 1982

PHILLIP B. WINBERRY

Clerk of Court

by /s/ Oscar Tagle

Deputy Clerk

Filed and entered April 2, 1982

35a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 79-3478

IN THE MATTER OF PETITION FOR NATURALIZATION OF

SERGIO ELEJAR MENDOZA, PETITIONER-APPELLEE

v.

UNITED STATES OF AMERICA, RESPONDENT-APPELLANT

[Filed Jul. 22, 1982]

Before: TANG and Norris, Circuit Judges; and

CARROLL,* District Judge

ORDER

The panel as constituted in the above case has voted

unanimously to deny the petition for rehearing and

to reject the suggestion for a rehearing en banc.

The full court has been advised of the suggestion

for en banc rehearing and no judge of the court has

requested a vote on the suggestion for rehearing en

bane. Fed. R. App. P.35(b).

The petition for rehearing is denied and the sug-

gestion for a rehearing en banc is rejected.

* The Honorable Earl H. Carroll, United States District

Judge for the District of Arizona, sitting by designation.

36a

APPENDIX F

Sep. 21, 1977

To: Philip Wilens, Chief

Government Regulations and

Labor Section Criminal Division,

Department of Justice

From: Leonel J. Castillo, Commissioner

Immigration and Naturalization Service

Subject: In the Matter of Petitions for Naturaliza-

tion of 68 Filipino War Veterans Pursuant

to Sections 701-702, Nationality Act of

1940, 406 F. Supp. 931 (N.D. Cal. 1975) ;

Appeal filed January 9, 1976

INTRODUCTION

The Commissioner has reviewed the decision of the

District Court and wishes to withdraw the Service

recommendation that the case be appealed.

BACKGROUND

The petitioners are Filipino veterans of World War II

who would have been eligible for naturalization under

special World War II legislation that expired on De-

cember 31, 1946. Section 701 of the Nationality Act

of 1940, 56 Stat. 182 et seg., as amended, 8 U.S.C.

1001 (1940 ed supp. V) exempted alien servicemen

who served outside the continental limits of the

United States from certain of the usual requirements

for naturalization, including those of a period of resi-

dence in the United States and literacy in English.

Section 702 provided for the naturalization overseas

37a

of persons eligible for naturalization under section

701 who, while serving honorably in the U.S. military,

were not within the jurisdiction of any court author-

ized to naturalize aliens.

At the request of the Philippine Government, which

feared a mass exodus, the Service had withdrawn nat-

uralization facilities from the Philippines during a

nine-month period before the statute expired. Eight

of the petitioners in this case (Category I) had sub-

mitted timely applications to the Service in the Philip-

pines, only to have them rejected. Fifty-three peti-

tioners (Category II) were unaware of their eligi-

bility before the law expired. The seven petitioners

in Category III were in the same position as those in

Category II, except that they had not shown that they

served in the United States armed forces as required

by section 701.

Section 310(e) of the Immigration and Nationality

Act, 8 U.S.C. 1421(e) requires all petitions for nat-

uralization filed after the enactment of that section

(September 26, 1961) to be heard and determined in

accordance with the requirements of that Act. Sec-

tion 329 of the Act, 8 U.S.C. 1440 presently regulates

the naturalization of aliens on the basis of active duty

service in the armed forces of the United States.

That section provides for the summary naturalization

of an alien who served in the armed forces before

December 31, 1946, if “. .. (2) at any time subse-

quent to enlistment or induction such person shall

have been lawfully admitted to the United States for

permanent residence.” 8 U.S.C. 1440(a)(2). None

of the petitioners in the case at bar have been ad-

mitted for permanent residence. Further, they cannot

obtain that status because the immigration quota for

their country is oversubscribed.

88a

DISTRICT COURT DECISION

In United States Immigration and Naturalization

Service vy. Hibi, 414 U.S. 5 (1973), the Supreme

Court held that the principle of estoppel is not ap-

plicable against the Government to enable a Philip-

pine national whose right to petition for U.S. citizen-

ship expired in 1946 to now apply for such citizen-

ship under the provisions of the Nationality Act of

1940. Hibi claimed estoppel on the ground that dur-

ing the time in question the American authorities did

not adequately publicize the rights accorded under the

Act of 1940 and did not have available an authorized

naturalization representative in the Philippine Islands

during all the time those rights were available. The

Supreme Court rejected the claim, ruling that estop-

pel against the Government could be premised only on

affirmative misconduct of its officials. The District

Court, however, held that the rejection of the Cate-

gory I applications constituted “affirmative :uiscon-

duct” within the meaning of Hibi, and concluded that

this estops the Service from raising the expiration of

the World War II special legislation. The District

Court found that since all the Category I petitioners

had filed the appropriate forms for commencing nat-

uralization proceedings, they would be deemed to have

constructively filed petitions for naturalization within

the required time. Jn re Vacontios’ Petition, 155 F.

Supp. 427 (S.D.N.Y. 1957).

As to the Category II petitioners, the District Court

held that the Service’s discrimination against eligible

veterans in the Philippines, while making naturaliza-

tion facilities available to eligible veterans elsewhere,

constituted a denial of equal protection of the laws

and of due process forbidden by the Constitution.

89a

The petitioners in Category III, having failed to pro-

duce the necessary proof of their military service

within 90 days from the date of the court’s order,

had their petitions denied on April 1, 1976.

GOVERNMENT’S ARGUMENT

The Government presented four principal reasons

why the petitions should be denied:

(1) that the Hibi decision by the Supreme Court was

res judicata against the application of the doctrine

of estoppel on grounds of failure to maintain a nat-

uralization examiner in the Philippines between Oc-

tober 1945 and August 1946. The court reasoned,

however, that since Hibi was a summary reversal

limited to the estoppel issue, it had less precedential

value than an opinion on the merits. Further, since

the constitutional claim raised here was neither pre-

sented to nor considered by the Supreme Court, Hibi

does not bar petitioners from raising the constitu-

tional claim.

(2) that due process rights did not apply in the

Philippines after the March 24, 1934 Philippine In-

dependence Act because the Philippines was a terri-

tory, and not a part, of the United States. The court

found that the Act did not transform the Philippines

into a foreign country into which the guarantees of

the Constitution did not penetrate, notwithstanding

the fact that the Philippines was treated as a foreign

country for limited purposes (e.g., immigration,

tariffs on products). Filipinos were not aliens resi-

dent in a foreign country. Owing allegiance to the

United States (48 Stat. 456 3 2(a)(I)), they were

nationals entitled to claim the protection of the funda-

mental guarantees of the United States Constitution

40a

for events occurring prior to the Philippine Independ-

ence on July 4, 1946.

(3) that the decision to honor the request of the

Philippine Government was a matter of foreign rela-

tions policy, an executive function not reviewable by

the courts. While conceding that the Government’s

decision was motivated by foreign policy considera-

tions, the court, relying on Baker v. Carr, 369 U.S.

186 (1962), found that this case presents a justici-

able question.

(4) that the nine-month absence of the naturaliza-

tion examiner did not deny petitioners due process of

law. Petitioners argued that the Commissioner’s de-

cision to withhold from servicemen stationed in the

Philippines the opportunity to become naturalized dis-

eriminated against the Filipinos as a class. As the

only class forced to suffer such discrimination, peti-

tioners contended that they were denied equal protec-

tion of the laws. This equal protection claim is based

on the principle that the unequal application of a law

among those entitled to be treated alike may violate

the Due Process Clause of the Fifth Amendment.

Petitioners also claimed that the discrimination was

based on race, alienage, or nationality—suspect clas-

sifications—which must be subjected to strict judicial

scrutiny and can only be justified by compelling gov-

ernment interest. In order to justify the use of a

suspect classification, the Government must show that

“its purpose or interest is both constitutionally per-

missible and substantial, and that its use of the clas-

sification is ‘necessary * * * to the accomplishment’

of its purpose or the safeguarding of its interest Jn

re Griffiths, 413 U.S. 717, at 721-722. The court

found, however, that the Government failed to show a

compelling national interest to justify withdrawing

4la

the naturalization examiner from the Philippines

while summary overseas naturalization of alien vet-

erans was taking place during that period in other

countries.

DISCUSSION

When the Congress enacted the provisions of section

701-705, it was aware of the number of persons who

would be entitled to receive the benefits. Certainly

the Filipinos were intended to be among the major

beneficiaries of these provisions since there were more

Filipino servicemen in the U.S. armed forces than any

other ethnic group. The “national interest” was ex-

pressed by Congress in the enactment of this legisla-

tion providing for the naturalization of all qualified

war veterans. The actions taken by the Service not

only failed to further the intent of Congress but ap-

pear to have been wholly inconsistent with it.

The desire expressed by the Philippine Government

in 1945 to hold onto its younger manpower in the

post-war period is hardly valid any longer. “The

Court does not believe that Filipino-American rela-

tions in particular, or the foreign policy of the United

States in general, are likely to be affected adversely

by judicial consideration of the merits of the instant

case. As the Government repeatedly called to the at-

tention of the Court the executive action complained

of here occurred nearly thirty years ago and reflected

decisions based upen fact and policy objectives then

existent. The Court does not perceive any reason why

it must continue to adhere unquestionably to these

much earlier executive decisions.” 406 F. Supp. 931,

947.

The Service withdrew its naturalization facilities

from the Philippines and from no other area where

42a

alien servicemen were on active duty in the armed

forces of the United States. Since the decision by the

District Court concerns only Filipino veterans of

World War II, it will not be a precedent for future

litigation.

The essence of due process is fundamental fairness.

It is grossly unfair of the Government to raise the

barrier of 8 U.S.C. 1421(e) (which requires nat-

uralization petitions to be determined in accordance

with the current Immigration and Nationality Act)

to bar the naturalization of these war veterans when

it was the Government itself which prevented them

from applying at a time when there was no such

barrier.

A relatively low number of Filipino nationals are af-

fected by the decision. While there are some 25,000

certifiable veterans residing in the Philippines, it is

unlikely that most of them would come to the United

States at this late stage in their lives. Since the fall

of Saigon in 1975, the United States has admitted

145,000 Indochinese under the emergency parole au-

thority extended to the Attorney General. The Presi-

dent and the Commissioner have pledged themselves

to a course of compassion and amnesty. The with-

drawal of the Government’s appeal in this case would

be in keeping with the policy of the Administration.

FoR THE COMMISSIONER

David Crosland

Genera] Counsel

43a

APPENDIX G

STATUTES AND REGULATION INVOLVED

1. 28 C.F.R. 0.20 provides in pertinent part:

The following-described matters are assigned

to, and shall be conducted, handled, or supervised

by the Solicitor General, in consultation with each

agency or official concerned :

+ e * * *

(b) Determining whether, and to what extent,

appeals will be taken by the Government to

all appellate courts (including petitions for

rehearing en bane and petitions to such

courts for the issuance of the extraordinary

writs) eee

2. Sections 701, 702, and 705 of the Nationality

Act of 1940, as amended, ch. 199, 56 Stat. 182-183,

8 U.S.C. (Supp. V 1945) 1001, 1002 and 1005, pro-

vided in pertinent part: '

Sec. 701. * * * [A]ny person not a citizen

regardless of age, who has served or hereafter

serves honorably in the military or naval forces

of the United States during the present war and

Who shall have been at the time of his enlistment

or induction a resident thereof and who (a) was

lawfully admitted into the United States, includ-

ing its Territories and possessions, or (b) having

entered the United States, including its Terri-

tories and possessions, prior to September 1,

1943, being unable to establish lawful admission

‘The Nationality Act of 1940 was repealed by Section

403 (a) (42) of the Immigration and Nationality Act of 1952,

Pub. L. No. 82-414, 66 Stat. 280.

44a

into the United States serves honorably in such

forces beyond the continental limits of the United

States or has so served may be naturalized upon

compliance with all the requirements of the nat-

uralization laws except that (1) no declaration

of intention, no certificate of arrival for those

described in group (b) hereof, and no period of

residence within the United States or any State

shall be required; (2) the petition for naturali-

zation may be filed in any court having naturali-

zation jurisdiction regardless of the residence of

the petitioner; (3) the petitioner shall not be re-

quired to speak the English language, sign his

petition in his own handwriting, or meet any

educational test; * * * Provided, however, That

* * * (3) the petition shall be filed not later than

December 31, 1976. * * *

Sec. 702. During the present war, any person

entitled to naturalization under Section 701 of

this Act, who while serving honorably in the mili-

tary * * * forces of the United States is not

within the jurisdiction of any court authorized

to naturalize aliens, may be naturalized in ac-

cordance with all the applicable provisions of sec-

tion 701 without appearing before a naturaliza-

tion court. The petition for naturalization of any

petitioner under this section shall be made and

sworn to before, and filed with, a representative

of the Immigration and Naturalization Service

designated by the Commissioner or a Deputy

Commissioner, which designated representative is

hereby authorized to receive such petition in be-

half of the Service, to conduct hearings thereon,

to take testimony concerning any matter touch-

ing or in any way affecting the admissibility of

45a

any such petitioner for naturalization, to call

witnesses, to administer oaths, including the oath

of the petitioner and his witnesses to the petition

for naturalization and the oath of renunciation

and allegiance prescribed by section 335 of this

Act, and to grant naturalization, and to issue

certificates of citizenship; * * *.

Sec. 705. The Commissioner, with the approval

of the Attorney General, shall prescribe and fur-

nish such forms and shall make such rules and

regulations, as may be necessary to carry into

effect the provisions of this Act.

3. Section 310(e) of the Immigration and Nation-

ality Act of 1952, as added, Pub. L. No. 87-301, 75

Stat. 656, 8 U.S.C. 1421(e), provides:

Notwithstanding the provisions of section

405(a)'*’ any petition for naturalization filed

on or after September 21, 1961, shall be heard

and deterinined in accordance with the require-

ments of this subchapter.

* Section 405(a) of the Immigration and Nationality Act

of 1952, Pub. L. No. 82-414, 66 Stat. 280, was a general sav-

ings clause that preserved the legal effectiveness of certain

acts taken under provisions of prior law that were in other

respects superseded by the 1952 Act.

@ ©. ©. soverement reverie orrice, 1902 ee