# Petition — United States v. Mendoza

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 464 U.S. 154

## Text

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-
t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1191%3A1. Public record. Not legal advice.