UNITED STATES OF AMERICA, PETITIONER V. MARIO VALDERRAMA LITONJUA, ET AL. No. 82-1877 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgments of the United States Court of Appeals for the Ninth Circuit in these cases. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PARTIES TO THE PROCEEDINGS In addition to Mario Valderrama Litonjua, respondents are petitioners for naturalization Antolin Punsalan Pangilinan, Panfilo Jabalde, Fidel Zosimo Usi Canilao, Antonio Patdo Tantay, Arcadio Revilla Nepomuceno, Dionisio Vallejos Lucas, Oliver Juan Posadas, Vincente Miranda Belizario, Rodolfo DeJesus Batac, Pedro Dumlao Ponciano, Cesar Jocson Ascalon, Winifredo Pableo Bello, Bonifacio Leoncio Zarcal and Benjamin Natividad Bonus. TABLE OF CONTENTS Opinions below Jurisdiction Statutes and regulations involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-14a) is reported at 694 F.2d 603. The opinion of the district court denying the naturalization petition of respondent Litonjua (App. B, infra, 15a-21a) is unreported, as is the order of the district court (App. C, infra, 22a-23a) denying the naturalization petitions of the remaining respondents. JURISDICTION The judgments of the court of appeals (Apps. D. and E, infra, 24a, 25a-26a) were entered on December 10, 1982, and a timely petition for rehearing was denied on February 22, 1982 (App. F, infra, 27a-28a). 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, 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(b) are reproduced in Appendix G, infra, 29a-31a. 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. STATEMENT 1. Respondents are 15 Filipinos who served in the United States' armed forces during World War II. Each entered the United States in a nonimmigrant status and at some date subsequent to November 30, 1977, filed a petition for naturalization based upon his wartime service. These petitions rest upon Sections 701-705 of the Nationality Act of 1940, 8 U.S.C. (Supp. V 1945) 1001-1005, as added by the Second War Powers Act, 1942, ch. 199, Section 1001, 56 Stat. 182-183. Section 701 of the 1940 Act exempted from some of the usual requirements for naturalization, including literacy in English and a period of residence in the United States, alien service members who served honorably in the United States armed forces during World War II in locations beyond the continental limits of the United States. Section 702 of the 1940 Act provided for the overseas naturalization of persons serving in the United States armed forces who were eligible for naturalization under Section 701 but who were beyond the territorial jurisdiction of United States courts vested with naturalization authority. Under Section 702, representatives designated by the Commissioner of Immigration and Naturalization were authorized to receive naturalization petitions, conduct necessary hearings and grant naturalization to such persons in overseas locations. As amended by Section 202(c)(1) of the Act of Dec. 28, 1945, ch. 590, 59 Stat. 658, Section 701 specified that any petition submitted thereunder had to be filed by December 31, 1946. Thus, the statutory authority under which respondents sought naturalization had expired more than 30 years prior to the filing of their naturalization petitions. Each respondent nonetheless argued that he was entitled to naturalization under Section 701, asserting that he was denied due process of law by the Attorney General's removal of Section 702 overseas naturalization authority from the American vice-consul stationed in Manila for a portion of 1945 and 1946. /1/ Respondents contended, moreover, that the United States is collaterally estopped from opposing their naturalization petitions by the unappealed judgment in In re Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931 (N.D. Cal. 1975) ("68 Filipinos"), which resolved the due process issue against the United States in connection with the naturalization petitions of other Filipino veterans. /2/ None of the respondents claimed to have made any effort to secure naturalization under Section 702 in the Philippines. Thus, none of the respondents qualified as "Category I" veterans -- that class of individuals whose naturalization applications the Attorney General decided not to oppose in the aftermath of the 68 Filipinos litigation. /3/ Furthermore, respondents filed their naturalization applications after the United States had withdrawn its appeal in 68 Filipinos. Accordingly, they were unable to avail themselves of the "grandfather rule" applied by the Solicitor General in cases arising from petitions filed before that date, pursuant to which the United States acquiesced in the grant of naturalization to such Filipino veterans if they satisfied the substantive requirements for naturalization under Section 701. /4/ 2.a. All of the respondents except Litonjua filed their petitions in the United States District Court for the Northern District of California. These 14 respondents (Pangilinan, et al.; see page I, supra) stipulated with the government that their legal claims are identical to those of the "Category II" veterans granted naturalization in 68 Filipinos. E.R. 1. /5/ The naturalization examiner rejected the rulings of the district court in 68 Filipinos, however, and concluded that: (1) respondents' naturalization is barred by 8 U.S.C. 1421(e), which precludes naturalization under expired or superseded statutory provisions; (2) respondents' claims are barred by laches; (3) respondents' due process claims are nonjusticiable because their adjudication would trench impermissibly upon the conduct of the foreign relations of the United States by the Executive Branch; (4) those claims are, in any event, nonmeritorious; (5) respondents suffered no prejudice from the government conduct complained of; and (6) respondents' claims are barred by INS v. Hibi, 414 U.S. 5 (1973). E.R. 2-31. On September 24, 1980, upon consideration of the Immigration and Naturalization Service recommendation and the Second Circuit's decision in Olegario v. United States, 629 F.2d 204 (1980), cert. denied, 450 U.S. 980 (1981), /6/ the district court denied the petitions of the 14 respondents in a single order (App. C, infra, 22a-23a). These cases were consolidated for purposes of appeal. b. Respondent Litonjua's petition was filed in the United States District Court for the Southern District of California. The naturalization examiner recommended that Litonjua's petition be denied, for essentially the same reasons advanced by the INS in opposition to naturalization of respondents Pangilinan, et al. C.R. 1. /7/ The district court denied Litonjua's naturalization petition on April 9, 1981 (App. B, infra, 15a-21a.). Although the district court concluded that Litonjua's claim is not barred by the political question doctrine, laches, 8 U.S.C. 1421(e), a failure to demonstrate prejudice, or the decision in INS v. Hibi, supra, the court, following the Second Circuit's analysis in Olegario, rejected the due process claim on the merits (App. B, infra, 19a-20a). The court also rejected Litonjua's contention that the unappealed judgment of the district court in 68 Filipinos collaterally estops the United States from contesting the due process claim (App. B, infra, 20a-21a). Respondent Litonjua's appeal was considered with the appeals of respondents Pangilinan, et al. 3. While respondents' appeals were pending, the court of appeals rendered its decision in Mendoza v. United States, 672 F.2d 1320 (1982), cert. granted, No. 82-849 (Jan. 24, 1983), holding that the district court's judgment in 68 Filipinos collaterally estops the United States from opposing naturalization of a Filipino veteran qualifying under Section 701. Shortly thereafter, the court of appeals reversed the district courts' judgments in respondents' cases and directed that each naturalization petition be granted on the ground that the district court's judgment in 68 Filipinos precluded relitigation of the due process issue considered there. The court of appeals invoked stare decisis, stating (App. A, infra, 10a): "Mendoza must control the disposition of the Pangilinan and Litonjua appeals." The court of appeals concluded that the petitioners in Pangilinan and Litonjua were situated identically to Mendoza (id. at 4a-5a) and rejected the government's arguments against application of collateral estoppel for the reasons stated in its opinion of Mendoza (id. at 7a-10a). /8/ 4. By the time the court of appeals rendered its decision in this case, the government had filed its petition for a writ of certiorari in Mendoza. In an effort to make unnecessary the filing of a certiorari petition here, the government filed a petition for rehearing in which it informed the court of appeals of the pendency of the petition in Mendoza and suggested that the panel hold this case for reconsideration as appropriate in light of the ultimate disposition of Mendoza. The court of appeals subsequently was advised that this Court had granted the government's petition for certiorari in Mendoza. Nevertheless, the court of appeals denied the petition for rehearing on February 22, 1983, its order reciting that "the Suggestion to Hold in Abeyance is rejected" (App. F, infra, 28a). /9/ REASONS FOR GRANTING THE PETITION On January 24, 1983, this Court granted the petition for a writ of certiorari in United States v. Mendoza, No. 82-849. The Court thus undertook to review the court of appeals' ruling that the unappealed judgment in In re Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931 (N.D. Cal. 1975), collaterally estops the government from contesting the naturalization petitions of other Filipino war veterans resting on Section 701 of the Nationality Act. As explained above (page 6), the decision of the court of appeals directing that respondents' petitions for naturalization be granted rests squarely upon its earlier decision in Mendoza. Accordingly, this Court's decision in Mendoza should control the disposition of this case. In the circumstances, it is appropriate to hold this case for disposition in light of Mendoza. /10/ CONCLUSION The petition for a writ of certiorari should be held for appropriate disposition in light of United States v. Mendoza, No. 82-849. Respectfully submitted. REX E. LEE Solicitor General MAY 1983 /1/ Those events are described in greater detail in our brief in United States v. Mendoza, No. 82-849 (1982 Term), at pages 4-6. As described below, this case presents precisely the same question as Mendoza. Copies of our brief in Mendoza have been served upon counsel for respondents. /2/ The 68 Filipinos litigation and its aftermath are described at pages 9-12 of the Brief for the United States in Mendoza. /3/ See Brief for the United States at 12, United States v. Mendoza, No. 82-849, supra. /4/ See Brief for the United States at 12 n.13, United States v. Mendoza, No. 82-849, supra. /5/ "E.R." denotes the excerpt of record filed in the court of appeals in conjunction with the appeal of respondents Pangilinan, et al. /6/ The Second Circuit's decision in Olegario, which rejects the due process claim sustained in 68 Filipinos, is described in our brief in Mendoza at pages 13-14. /7/ "C.R." denotes the clerk's record filed in the court of appeals in conjunction with respondent Litonjua's appeal. The numerical entry is the sequential number of the document cited in the compiled clerk's record. /8/ In addition to the appeals of Litonjua and Pangilinan, et al., the court of appeals' opinion in this case addressed the separate appeal of Renato Leopoldo Barretto from the order denying his naturalization petition. Unlike respondents, Barretto filed his naturalization petition prior to the government's withdrawal of its appeal in 68 Filipinos. Notwithstanding the grandfather rule applied in such cases by the Solicitor General, see page 4, note 4, supra, the INS opposed Barretto's naturalization petition because he had spent the period February 1945 through June 10, 1946, in the United States, undergoing military flight training, during which time he could have been naturalized by a United States District Court pursuant to Section 701 of the 1940 Nationality Act. Moreover, Barretto had actually filed a preliminary application for naturalization under that Act, which he failed to perfect, while in the United States. Twenty days after his return to the Philippines from his tour of duty in the United States, Barretto was discharged from the United States armed forces and thus became ineligible for naturalization under Section 702 of the 1940 Nationality Act. He accordingly was stationed in the Philippines for only 20 days out of the period in 1945 and 1946 when naturalization under Section 702 was unavailable there because of the withdrawal of naturalization authority from the United States consular official in Manila. The district court denied Barretto's naturalization petition. Pet. No. 248806-WWS (N.D. Cal. Aug. 15, 1980). The court concluded that Barretto could not claim any injury from the course of the government's administration of Section 702 in the Philippines, because he had been in the United States for almost all of the time during which a naturalization officer was absent from the Philippines, and had not sought naturalization during the 20 days after his return from the United States while he was still eligible for naturalization under Section 702. The court of appeals reversed, directing that Barretto's petition be granted. The court did not rely directly upon the collateral estoppel rationale of Mendoza. Instead, the court's decision rested on the grandfather policy adopted by the Solicitor General respecting naturalization petitions filed by Filipino veterans of World War II prior to November 30, 1977, and a stipulation, purportedly made by government counsel at oral argument, to the effect that the government would withdraw its opposition to Barretto's petition "if this court (i.e., the court of appeals) finds that Barretto is" situated similarly to Filipino veterans who spent the period when naturalization was unavailable in the Philippines in that location (App. A, infra, 12a). The court of appeals held that Barretto's situation was indistinguishable from that of other Filipino veterans who had filed their petitions in time to avail themselves of the "grandfather rule." The court explained (id. at 13a): In Mendoza we found that Dr. Mendoza's presence in the Philippines for as much as three months, after having been in the United States for several months, was sufficient to implicate Dr. Mendoza's due process rights, 672 F.2d at 1326 n.8; we know of no principled basis -- and the government offers none -- for drawing a line between three months in Dr. Mendoza's case and three weeks in this case. If the government's conduct violated the constitutional rights of Filipinos serving in the United States armed forces in the Philippines, it violated their rights whether they were in the Philippines for nine months or nine days. The court of appeals concluded (App. A, infra, 14a): "(P)ursuant to the government's 'grandfather' policy and its stipulation in court, we hold that Barretto is legally entitled to be naturalized." /9/ On May 16, 1983, the district court granted respondent Litonjua's petition for naturalization pursuant to the mandate of the court of appeals. After the district court had advised the parties of its intentions, the government moved the court of appeals to recall the mandate, but the court of appeals took no action on that motion by the time the district court had fixed for a naturalization hearing. The district court accordingly proceeded to naturalize Litonjua. These events do not moot this case as to Litonjua, because reversal of the judgment of the court of appeals would enable the government to have the naturalization decree vacated pursuant to 8 U.S.C. 1451(j) and Fed. R. Civ. P. 60(b)(5). See Mancusi v. Stubbs, 408 U.S. 204, 205-207 (1972). /10/ As indicated above (page 7 note 8), the court of appeals' judgment with respect to the naturalization petition of Renato Leopoldo Barretto appears to rest upon a ground that is at least formally independent of the court's Mendoza doctrine. Although we are troubled by this branch of the court of appeals' decision, the issues presented are distinct from those in Mendoza and, because fact-bound, do not appear to warrant further consideration. Accordingly, we do not seek review of the court of appeals' judgment directing that Barretto's petition for naturalization be granted. Appendix Omitted