Appeal from a judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, granting the petitioner American citizenship. The court of appeals held that the withdrawal of a naturalization examiner from the Philippine Islands in 1945 neither contravened a statutory mandate nor unjustifiably discriminated against a particular class. Accordingly, the Immigration and Naturalization Service's denial of petitioner's naturalization petition did not violate his statutory or constitutional rights. Reversed.
Before Oakes, Van Graafeiland, Circuit Judges, and Tenney, District Judge.*fn*
The historical and political events giving rise to this appeal began almost four decades ago at the beginning of the United States' involvement in World War II. In response to the deteriorating situation in the Pacific, President Roosevelt issued an order on July 26, 1941 calling all organized military units of the Commonwealth of the Philippines into the armed forces of the United States. On March 27, 1942, Congress amended the Nationality Act of 1940, Pub.L. No. 76-853, 54 Stat. 1137 ("the 1940 Act"), to provide for the naturalization of non-citizens who served in the United States armed forces, Second War Powers Act, Pub.L. No. 77-507, § 1001, 56 Stat. 182.*fn1 Section 701 exempted certain noncitizen servicemen who served outside the continental United States from some of the usual naturalization requirements, such as a period of residence in this country and literacy in English. Section 702 provided for the overseas naturalization of persons eligible under section 701 who were in active service in the United States military and were not within the jurisdiction of any court authorized to naturalize aliens. Section 705 directed the Commissioner of Immigration and Naturalization ("Commissioner"), with the approval of the Attorney General, to prescribe and furnish forms and make such rules and regulations as were necessary to implement the Act. As amended by subsequent statutes, the 1940 Act ultimately specified that all naturalization petitions filed under section 701 had to be submitted by December 31, 1946. Act of Dec. 28, 1945, Pub.L. No. 79-270, § 202(c)(1), 59 Stat. 658.*fn2
Pursuant to the Act, Immigration and Naturalization Service (INS) officers were sent to overseas military posts to naturalize noncitizen members of the United States armed forces. Between 1943 and 1946, these officers traveled from post to post through England, Iceland, North Africa, and the Pacific naturalizing thousands of foreigners. Matter of Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931, 935 (N.D.Cal.1975) (hereinafter cited as 68 Veterans). Although the Act could not be effectuated in the Philippines during the Japanese occupation, from 1942 to 1945, approximately 7,000 Filipinos were naturalized in the United States or at military posts outside the Philippines. Memorandum for the Attorney General from Assistant Solicitor General Hugh B. Cox, dated June 23, 1945 ("Cox Memorandum"), at 2. Implementation of the Act commenced there following the liberation of the Philippines and the resolution of statutory interpretation questions concerning the eligibility of Filipino servicemen under section 701-702.*fn3 In August 1945, George H. Ennis, Vice Consul of the United States at Manila, was designated to naturalize aliens under the Act and naturalizations in the Philippines began.
The Philippines were scheduled to become an independent, self-governing country on July 4, 1946, less than one year after Vice Consul Ennis began naturalizing eligible Filipinos. See Philippine Independence Act of 1934, Pub.L. No. 73-127, § 10(a), 48 Stat. 463. Apparently, the Philippine government feared that a mass emigration of newly naturalized Filipinos to the United States would drain the country of much needed manpower and thwart post-war reconstructive efforts. See Memorandum to Ugo Carusi, INS Commissioner, from Edward J. Shaughnessy, Special Assistant to the Commissioner, dated October 19, 1945 ("Shaughnessy Memorandum I"), at 1. This concern was conveyed to the United States Department of State which passed the information on to the Commissioner. On September 13, 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 belief that the situation might best be handled by revoking the authority previously granted to Mr. Ennis and by omitting to designate any representative authorized to confer citizenship in the Philippine Islands. This course would eliminate a source of possible embarrassment in our dealings with the Philippine people, who probably will be awarded independence in the near future.
Memorandum to Tom C. Clark, Attorney General, from Ugo Carusi, INS Commissioner, dated September 13, 1945 ("Carusi Memorandum"), at 2. The Attorney General adopted the Commissioner's recommendation on September 26, 1945 and revoked Vice Consul Ennis's naturalization authority. Notice of the revocation did not reach him for several weeks, however, and Ennis continued to naturalize aliens until October 26, 1945. 68 Veterans, supra, 406 F. Supp. at 936. As succinctly stated in an internal INS memorandum, the revocation of the Vice Consul's naturalization authority created "the rather anomalous situation that while we recognize in law the legal right of these persons to the benefits under the Act we have, from an administrative standpoint, made it impossible for such persons to acquire these benefits." Shaughnessy Memorandum I, at 1.
Several months after the Philippines lost its naturalization representative, Congress enacted a statute that appropriated funds for the Philippine Army and provided that service in that Army, pursuant to President Roosevelt's 1941 order, was not to be deemed service in the United States armed forces. First Supplemental Surplus Appropriation Rescission Act of February 18, 1946, Pub.L. No. 79-301, 60 Stat. 14.*fn4 The INS had previously concluded that service in the Philippine Army satisfied the section 701 naturalization requirement of active service in the United States armed forces. In response to this new piece of legislation, the INS reversed its earlier position and adopted the view that Filipinos inducted into the Commonwealth Army under the President's military order were not eligible for naturalization under the 1940 Act because they had not served in the United States military. Memorandum to T. B. Shoemaker, Acting INS Commissioner, from L. Paul Winings, General Counsel, dated July 10, 1946.*fn5 This statute presumably did not affect the eligibility of Filipinos who individually joined the United States military subsequent to the "mass enrollment" provoked by the President's order. See Memorandum to Ugo Carusi, INS Commissioner, from L. Paul Winings, General Counsel, dated February 5, 1945 (discussing eligibility of each group of servicemen prior to enactment of the appropriations statute). However, the INS's interpretation of this provision greatly reduced the number of Filipino servicemen who could qualify for citizenship under sections 701-702. Government's Brief at 8.
The INS appointed a new naturalization representative for the Philippines, P. J. Phillips, who began processing petitions in August 1946. From that time until the Act expired (December 31, 1946), Phillips naturalized approximately 4,000 Filipinos pursuant to section 702. 68 Veterans, supra, 406 F. Supp. at 936. No INS official was present in the Philippines to implement the Act during the nine month period after Ennis's naturalization authority was revoked and before Phillips was appointed.
Petitioner Antonio Olegario, a sixty-one year old Philippine citizen, served in the Army of the Commonwealth of the Philippines from December 20, 1941 to December 2, 1945.*fn6 Although Olegario was eligible to apply for naturalization during the brief two to three month period that Ennis served as an INS representative in the Philippines, he did not take any action in this matter. Of course, his inaction is not surprising since many Filipino soldiers, isolated and imprisoned during the Japanese occupation, were unaware of the opportunity to apply for naturalization. See In Re Petition for Naturalization of Neria, No. 67485, slip op. at 25-26 (Aug. 29, 1979) (hereinafter, Petition of Neria ). Ennis's naturalization authority was effectively revoked on October 26, 1945. The petitioner remained eligible for naturalization under the 1940 Act until December 2, 1945 when his service in the Philippine Army ended. Therefore, for about five weeks from October 26th to December 2d, Olegario apparently qualified for United States citizenship, but no INS representative was present in the Philippines to accept his petition.
Olegario concedes that he neither filed a timely naturalization petition nor made any attempt to do so. He contends, however, that his constitutional rights were violated by "the arbitrary action of the Commissioner . . ., with the approval of the Attorney General, which resulted in the removal of the Vice Consul from the Philippines during 1945-46 . . . and precluded petitioner, and Filipino servicemen similarly situated, from exercising the opportunity to become naturalized pursuant to Sections 701-702 of the (Act)." Brief of Petitioner-Appellee ("Petitioner's Brief"), at 25. The district court agreed with this contention and, reversing a decision rendered by an INS naturalization examiner, granted Olegario's naturalization petition. Relying on Judge Renfrew's comprehensive opinion in the 68 Veterans case, supra, Judge Knapp concluded that the petitioner "had been denied due process of law in a manner which could only be remedied by now admitting (him) to citizenship." While recognizing the import of Judge Renfrew's discussion, and the substantial arguments made by the petitioner and amicus on appeal, we are constrained to disagree with that result.
Several preliminary issues and arguments must be addressed before the constitutional question presented by this appeal can be fully examined. These issues, in turn, require some further background discussion of legislative history and prior cases involving Filipino veterans seeking United States citizenship.
Statutory and Case Law Background
In 1952, Congress enacted a new Immigration and Nationality Act that appeared to extinguish some of the naturalization rights granted to alien servicemen under the 1940 Act. Immigration and Nationality Act of 1952, 66 Stat. 242, codified at 8 U.S.C. §§ 1427 et seq. ("1952 Act"). Specifically, the 1952 Act required that the applicant had either enlisted in the military while located in a qualifying geographic area that did not include the Philippines, or been lawfully admitted to the United States for permanent residence. 8 U.S.C. § 1440(a). Yet the 1952 Act also included a savings clause that was relied upon by aliens who claimed that their rights under the 1940 Act had been preserved. This argument was accepted by the courts, and citizenship was granted to certain aliens who would otherwise have been ineligible under the 1952 Act. See, e. g., United States v. Menasche, 348 U.S. 528, 75 S. Ct. 513, 99 L. Ed. 615 (1955); Medalion v. United States, 279 F.2d 162 (2d Cir. 1960); United States v. Wolff, 270 F.2d 422 (3d Cir.), cert. denied, 362 U.S. 928, 80 S. Ct. 753, 4 L. Ed. 2d 746 (1960). Congress, however, disagreed with the courts' interpretation of the statute. In 1961 Congress amended the 1952 Act to provide:
Notwithstanding the provisions of Section 405(a) (the savings clause), any petition for naturalization filed on or after September 26, 1961 shall be heard and determined in accordance with the requirements of this subchapter.
Act of September 26, 1961, 75 Stat. 650, codified at 8 U.S.C. § 1421(e). The House Judiciary Committee's Report on the amendment clearly explains Congress's intent in enacting this measure.
The purpose of this amendment is to overcome interpretations placed upon the savings clause (sec. 405) of the Immigration and Nationality Act (United States v. Menasche, (supra), United States v. Wolff, (supra), Medalion v. United States, (supra)), holding in effect, that residence in the United States before December 24, 1952, was sufficient to confer naturalization rights under the Nationality Act of 1940, as amended, notwithstanding its repeal on that date by the Immigration and Nationality Act. As a consequence, petitioners of this class are being considered eligible, 9 years after its repeal, for naturalization under the 1940 law, and, if more favorable to the circumstances in their cases, they may elect to claim the benefits of the Immigration and Nationality Act. This, notwithstanding the fact that the petition for naturalization was not filed until after December 24, 1952, when the Immigration and Nationality Act became effective.
In the opinion of the committee, such interpretations are contrary to the intent of Congress clearly indicated in the basic Immigration and Nationality Act. The administration of two nationality laws simultaneously is cumbersome, inefficient, and unfair to other applicants for naturalization. In accordance with the original purpose of the Immigration and Nationality Act, this clarifying amendment will make it amply apparent that from and after its enactment the requirements and provisions of the Immigration and Nationality Act will be uniform and will apply to all petitioners for naturalization.
(1961) U.S.Code Cong. & Ad. News, pp. 2981-82.
After this explicit statement of congressional intent regarding the 1952 Act's savings clause, petitioners seeking naturalization under the 1940 Act presented the courts with more creative arguments. In INS v. Hibi, 414 U.S. 5, 94 S. Ct. 19, 38 L. Ed. 2d 7 (1973), a Filipino who had served in the United States armed forces applied for naturalization under the 1940 Act in September 1967. Hibi argued that the government was estopped from relying on the statute's expiration date and time limit because it had failed to advise him of his rights under the Act during the time he could have applied and had failed to provide an INS representative in the Philippines during the entire time he was eligible for naturalization. The district court agreed with Hibi's contentions, and its decision was upheld by the Court of Appeals for the Ninth Circuit. Without hearing oral argument in the case, the Supreme Court summarily reversed the Ninth Circuit in a brief per curiam opinion from which three justices dissented. The Court held that although Montana v. Kennedy, 366 U.S. 308, 81 S. Ct. 1336, 6 L. Ed. 2d 313 (1961), left open the question whether the government's "affirmative misconduct" could estop it from denying citizenship, "no conduct of the sort there adverted to was involved here." 414 U.S. at 8, 94 S. Ct. at 22.
Affirmative misconduct, as well as constitutional violations, were found by the district court in 68 Veterans, supra, which involved a similar challenge to the withdrawal of naturalization authority from the Philippines. The petitioners in that case were sixty-eight Filipinos who had served in the United States armed forces during World War II and were seeking naturalization pursuant to section 702 of the 1940 Act. Judge Renfrew divided the petitioners into three categories. Category I included those who had taken affirmative action amounting to "constructive filing" of a naturalization petition prior to December 31, 1946. Category II consisted of those veterans who were eligible for citizenship under the 1940 Act but made no efforts to file a petition before the Act expired. Category III included those petitioners who were in the same position as those in Category II except that they had no proof that they served in the United States military as required by Section 701.
Judge Renfrew held that the Category I petitioners should be granted citizenship because, unlike Hibi, they had presented evidence of affirmative misconduct by the government and had taken steps amounting to the "constructive filing" of naturalization petitions. With respect to Category II, the judge ruled that "the failure of the Government to have stationed in the Philippine Islands a representative of the INS authorized to naturalize members of the American armed forces pursuant to Section 702 of the Nationality Act of 1940 during all of the times those statutory rights were available denied petitioners due process of law." 406 F. Supp. at 951. Category III petitioners were granted ninety days before their petitions would be dismissed to provide proof of service in the American armed forces.
Judge Renfrew's constitutional analysis began with the determination that these petitioners, although not citizens, were protected by the due process clause of the Fifth Amendment during the time that the INS representative was withdrawn from the Philippines. Upon reviewing the Philippine Independence Act and various definitions in the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(3), (22), (31), he concluded that Filipinos were nationals of the United States until July 4, 1946 when the country became fully independent.*fn7 Furthermore, the Philippine Independence Act "evidence(d) an unmistakable Congressional intent to preserve for Filipinos basic civil rights." Id. at 942. Judge Renfrew stated that while the petitioners were United States nationals, their constitutional rights were the same as those of noncitizen residents of the United States. Id. at 949-50. In his view, the government had to show a compelling interest to justify its decision to withdraw the naturalization officer from the Philippines because the action had discriminated against Filipinos, an inherently suspect class. Id. at 950. The court ruled that the government failed to carry this heavy burden.
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 applicable constitutional standard, is insufficient justification for violating petitioners' rights.
The government appealed the decision in 68 Veterans. However, the Department of Justice subsequently moved to dismiss the appeal on the basis of a recommendation by the Commissioner. On November 30, 1977, an order dismissing the Ninth Circuit appeal was entered.
After the appeal was dismissed, the government reevaluated its policy regarding Category I and Category II petitioners. The government has now adopted Judge Renfrew's view with respect to Category I cases and will not oppose these petitions because it is conceded that these aliens were prejudiced by the government's failure to process their applications in 1945 and 1946. However, the government strongly disagrees with Judge Renfrew's decision that Category II petitioners should be granted citizenship because they were previously denied due process of law. In Category II cases, the government will not oppose naturalization only if the application was filed before the appeal in 68 Veterans was withdrawn. The reason offered to support this differentiation among Category II cases is that "the failure of these applicants to press their cases to judgment could have resulted from their expectation that they would receive the same treatment as the aliens in (68 Veterans )." Brief of Respondent-Appellant ("Government's Brief") at 14. Pursuant to this policy, several other appeals have been withdrawn. This case has been pursued, however, because Olegario filed his naturalization petition after November 30, 1977.
Collateral Estoppel and Failure to Appeal
The Association of Immigration and Nationality Lawyers ("Association"), which has submitted an amicus brief supporting the petitioner, argues that the collateral estoppel effect of the decision in 68 Veterans precludes the government from contesting the decision of the district court in this case. According to the Association, 68 Veterans resolved the precise issue raised in this case, and "having failed to prosecute its appeal . . ., (the government) should be prohibited, on the principle of collateral estoppel, from litigating the same issue all over again." Brief of Association of Immigration and Nationality Lawyers, Amicus Curiae ("Amicus Brief") at 10. The Association's argument relies on the Supreme Court's decision in Parklane Hosiery Co., v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979), which approved the use of "offensive" collateral estoppel under certain circumstances. While the government agrees that Parklane is critical to this determination, it disagrees with the Association's application of the case and contends that collateral estoppel should not be applied here. The court concurs.
The Parklane Court upheld the "offensive use of collateral estoppel," which it defined as "a plaintiff . . . seeking to estop a defendant from relitigating the issues which the defendant previously litigated and lost against another plaintiff." Id. at 329, 99 S. Ct. at 650. Noting that courts have "broad discretion" in applying the doctrine, the Court ruled that collateral estoppel should not be applied when the plaintiff could have easily joined the prior action or when it would be unfair to the defendant. Neither circumstance was present in that case, which involved a stockholders' class action for securities fraud that was instituted after a successful SEC action challenging the defendants' conduct.
In contrast to Parklane, the government is the defendant here, and the case raises important issues of national concern. As stated by the government "a determination to forego further judicial review of an adverse decision, as in (68 Veterans ), may result from a variety of factors scarcity of resources, potential impact, public interest which are unrelated to the legal issues in the case." Reply Brief of Respondent-Appellant ("Government's Reply Brief") at 3-4. If each adverse decision were accorded the collateral estoppel effect urged by the Association, the Solicitor General would be forced to seek review of cases that would not otherwise be appealed. "While the Solicitor General apparently thought the problem of Filipino War Veterans would end with (68 Veternas ), the case has spurred litigation rather than settled the issue." Id. at 4-5. None of these subsequent cases was decided on the grounds that the 68 Veterans decision collaterally estopped the government from contesting the naturalization petition. Nor will we resolve the case at bar by relying on the collateral estoppel doctrine.
The Association also contends that denial of Olegario's petition would constitute a due process violation because the government failed to contest the naturalization of similarly situated petitioners in the 68 Veterans case and other applicants who filed their petitions before November 30, 1977, when the 68 Veterans appeal was withdrawn. In the Association's view, the government offers "no rational basis" for distinguishing between the two groups of petitions and the "arbitrary cutoff date has no bearing whatever to one applicant's eligibility over another's." Amicus Brief at 13. The government, in turn, contends that it had an affirmative duty to review its decision to withdraw the appeal once it became evident that the impact and practical consequences of the 68 Veterans decision were much more substantial than had originally been anticipated. See Bentex Pharmaceuticals, Inc. v. Richardson, 463 F.2d 363, 368 n.17 (4th Cir. 1972), rev'd on other grounds sub nom. Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S. Ct. 2488, 37 L. Ed. 2d 235 (1973). The government describes its policy of not contesting any petitions that were filed before the appeal was withdrawn as "an attempt to draw the line on the claims of Filipino war veterans while at the same time according those who had not adopted a "wait and see' attitude the benefits obtained by the aliens in (68 Veterans )." Government's Reply Brief at 5.
While the court agrees that the government's cutoff date is unrelated to an applicant's eligibility, this observation is also besides the point. The government was entitled to reassess its initial view of the decision and to reverse its position on the case. Even after the appeal was dropped, the government apparently could have challenged other petitions filed before withdrawal of the appeal. The cutoff date, although somewhat confusing, ...