UNITED STATES OF AMERICA, PETITIONER V. SERGIO ELEJAR MENDOZA No. 82-849 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 judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutes and regulations involved Statement A. The background of this case B. Prior Filipino veteran litigation C. Proceedings below 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-21a) 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 examiner (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, infra, 35a). On October 13, 1982, Justice Rehnquist extended 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 Appendix G, infra, 43a-45a. 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 Respondent, a Filipino national, entered the United States in 1975 in a nonimmigrant status. On May 10, 1978, after other legal avenues intended to prolong his stay in the United States had been exhausted or abandoned, respondent filed a petition for naturalization under Section 701 of the Nationality Act of 1940, a provision then no longer in force that had relaxed the normal requirements for naturalization for certain individuals who fought in the United States armed forces in World War II. Respondent 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 Philippines. The designated naturalization examiner recommended 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 respondent's argument that naturalization was necessary to remedy an alleged denial of due process in the administration 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 reaching "the Constitutional issue or other merits of the petition" (App. B, infra, 22a). The district court concluded 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 petitioners of different individuals, In 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 estoppel grounds. A. The Background of this Case 1. Respondent served with the Philippine Commonwealth 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 Commonwealth Army, which was ordinarily under the control of the semi-autonomous Commonwealth government, /1/ was incorporated into the armed forces of the United States pursuant to the order of President Roosevelt. Respondent was held prisoner by Japanese forces from April 1942 until February or March 1945. Upon his release respondent 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 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 seq. of the Nationality Act of 1940, 8 U.S.C. (Supp. V 1945) 1001 et seq., as added by the Second War Powers Act, 1942, ch. 199, 56 Stat. 182-183. Section 701 exempted certain 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 naturalization, including literacy in English and a period of residence in the United States. As amended by Section 202(c) (1) of the Act of Dec. 28, 1945, ch. 590, 59 Stat. 658, the Act specified that any petition under Section 701 had to be filed no later than December 31, 1946. Section 702 of the 1940 Act provided for the overseas 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, representatives designated by the Commissioner of Immigration and Naturalization were authorized to receive petitions, conduct hearings, and grant naturalization outside the United States. Pursuant to Section 705 of the 1940 Act, the Commissioner and the Attorney General implemented the provisions 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 impossible during the Japanese occupation. /2/ The liberation 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, /3/ 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 independence (see page 3, note 1, supra). On September 13, 1945, the Commissioner of Immigration and Naturalization recommended to Attorney General Clark that the situation be handled by revoking the authority previously granted to Vice-Consul Ennis. The Attorney General 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 under Section 701 and 702. /4/ Under the revised administrative 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 naturalization 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. /5/ 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 reliance upon the special overseas naturalization provisions of Section 702, during the time he was stationed in Pennsylvania. /6/ Respondent returned to the United States in 1975 in a nonimmigrant status. His right to remain was extended 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, respondent sought to change his status to that of a Treaty Investor. This application was denied by the INS District 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 provisions were not the subject of litigation in succeeding years, until a series of novel arguments supporting naturalization resting upon the manner in which Section 702 had been administered in the Philippines gave rise to substantial litigation in the 1970's. /7/ 1. In INS v. Hibi, 414 U.S. 5 (1973), this Court considered the ramifications of that course of administration upon facts strikingly similar to those of the present case. Hibi, a veteran of the Philippine Scouts, entered the United States in 1964 and petitioned for naturalization under Section 701 in 1967. He argued that notwithstanding 8 U.S.C. 1421(e), which precludes naturalization 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 circumstances (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 Congress. * * * 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 enforcing public policy established by Congress. While the issue of whether "affirmative misconduct" on the part of the Government might estop it from denying citizenship was left open in Montana v. Kennedy, 366 U.S. 308, 314, 315 (1961), no conduct of the sort there adverted to was involved here. We do not think that the failure to fully publicize the rights which Congress accorded under the Act of 1940, or the failure to have stationed in the Philippine Islands during all of the time those rights were available an authorized naturalization representative, can give rise to an estoppel against the Government. (Hibi's) effort to claim naturalization under a statute which by its terms had expired more than 20 years before he filed his lawsuit must therefore fail. 2a. In In re Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931 (N.D. Cal. 1975) (hereinafter "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. /8/ 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 INS 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 omitted), 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 empowered to effect naturalizations during the period October 1945 through August 1946 denied them equal protection, in violation of the Due Process Clause of the Fifth Amendment, and required that their tardy petitions be granted. In response the government argued 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 INS v. Hibi, supra; (3) because Attorney General Clark's decision to withdraw naturalization authority from Vice-Consul Ennis responded to the complaint of a foreign government and was based upon considerations of foreign policy, the veterans' claims presented a nonjusticiable political question; and (4) the Attorney General's action did not violate due process. /9/ 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, /10/ held 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 during all of the time those statutory rights were available 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). 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 Solicitor 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 expressed 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, 41a, 42a). Commissioner Castillos' request provoked considerable discussion, and some dissent, within the Department of Justice. The memoranda prepared for the Solicitor General's consideration reflect the conviction 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 Castillo was questioned upon his recommendation during congressional oversight hearings. /11/ The appropriate response 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" veterans. Contrary to the position adopted in withdrawing the appeal in 68 Filipinos, however, the Department instructed the INS thereafter to oppose naturalization of those who could not satisfy this prerequisite -- i.e., "Category 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). /12/ 3. The issues presented by the tardy filing of naturalization petitions by Filipino veterans resting on Section 701 were considered by the Second Circuit in Olegario v. United States, supra. Adopting Judge Renfrew's reasoning in 68 Filipinos, the district court had granted Olegario's petition for naturalization, 473 F. Supp. 185 (S.D. N.Y. 1979), and the government appealed. /13/ 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 collateral estoppel effect, so as to preclude denial of naturalization to any "Category II" Filipino veteran. The Second 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 concern." 629 F.2d at 215. The court observed that the government'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 Solicitor General to authorize appeal from adverse decisions in an uncritical manner (ibid.). The court also stressed that the United States had 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 absence of a naturalization officer from the Philippines during part of the period when naturalization was available 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. 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 respondent could not qualify for naturalization under the current provision for naturalization of alien servicemen, 8 U.S.C. 1440 (see page 7 note 7, supra), and that 8 U.S.C. 1421(e) precludes naturalization under expired or superseded statutory authority. Because respondent had not claimed that he sought naturalization under Section 701 in a timely manner, and because respondent had actually been in Pennsylvania for much of the time naturalization was unavailable in the Philippines, 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 without reaching the merits, treating the matter as a routine application of the doctrine of offensive nonmutual collateral 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 respondent, unlike the 68 Filipinos petitioners, had been in Pennsylvania for most of the relevant time period, the district court did not address these issues. 2. The Solicitor General authorized an appeal. /14/ The government once again argued that respondent's constitutional claim was nonjusticiable, and in any event without merit. Several arguments not considered in 68 Filipinos 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 equitable estoppel, and thus inconsistent with Hibi; and (4) respondent lacked standing to complain of the withdrawal of a naturalization officer from the Philippines, 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. /15/ 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 naturalization. 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 practical consequences of doing so, and it questioned whether the underlying 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 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). Although it acknowledged 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" (id. at 18a), the court concluded that this is not such a case because it found "no 'critical' need for redetermination" 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 precedent. To our knowledge no other appellate court has ever held that the United States may be estopped from litigating a pure question of law, much less a question of constitutional law affecting the special prerogatives of the Executive in the sphere of foreign relations, by the unappealed 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 ultimately, this Court. Moreover, the court of appeals failed to heed this Court's admonition in INS v. Hibi, 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 contrast, the Second Circuit, in considering a claim identical to respondent's, recently refused to apply collateral estoppel 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 resolve the conflict. 1.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 question of law, indeed a significant question of constitutional law. This Court has recognized that powerful considerations 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 especially 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, particularly when it is engaged in the uniquely sovereign function 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 government in a criminal case. The court stated, in terms that are fully applicable here (447 U.S. at 24-25): Finally, this case involves an ingredient not present in either Blonder-Tonque 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 private 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 civil cases and we are thus inclined to reject, at least as a general matter, a rule that would spread the effect of an erroneous acquittal to all those who participated in a particular 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 policy considerations" that outweigh the economy concerns 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 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 considerations, applicable to 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 litigation than any other party. /16/ 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 constitutional issues, arise only in litigation to which the government is a party, and others are characteristically associated with government litigation. Third, the government, unlike other litigants, necessarily finds itself in litigation presenting a particular legal issue in a host of jurisdictions -- indeed potentially (and not uncommonly) in every district and circuit. In such cases, which include the present one, the potential unfairness of invoking the preclusion doctrine absent mutality (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 litigating a recurring issue, the government will at some point encounter an adverse decision. Because of these unique attributes of government litigation, application of collateral estoppel in the circumstances of cases such as the present one would substantially 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 decisions of coordinate courts with the rigid doctrine of issue preclusion. /17/ As the American Law Institute has recognized, when "the party against whom the rule of preclusion is to be applied is a government agency responsible for continuing administration of a body of law applicable 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 Section 29, comment i (1980). /18/ 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, employs a formal mechanism for selective prosecution of appeals from adverse judgments. The government alone regularly takes into account factors other than its narrow interest in prevailing in the particular lawsuit in determining whether to seek further judicial review. As a result, the Solicitor General frequently decides against 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, equitable and policy considerations, /19/ the perceived practical importance of the decision, recognition of the limited resources of the government and sensitivity to crowded dockets of the courts. /20/ 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 government 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 prematurely and unnecessarily, and judicial economy -- the touchstone of the preclusion doctrine -- would be disserved. 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 consequences. /21/ 2. These considerations led the Second Circuit in Olegario v. United States, supra, upon the very facts presented 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 concern." 629 F.2d at 215. The Second Circuit also pointed out that the government's decision to forego further judicial 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 accorded the collateral estoppel effect urged * * * , the Solicitor General would be forced to seek review of cases that would not otherwise be appealed." Ibid. Other courts have reached similar conclusions, refusing to invoke collateral estoppel against the government on purely legal issues of public importance, at least absent a complete identity of parties. See, e.g., American Medical International, Inc. v. Secretary of Health, Education and Welfare, 677 F.2d 118, 121-124 (D.C. Cir. 1981); Divine v. Commissioner, 500 F.2d 1041 (2d Cir. 1974). The decision of the court below thus stands in sharp contrast to the decisions of other courts. To be sure, the court of appeals acknowledged that collateral estoppel might not be applicable in some government cases presenting legal issues (App. A, infra, 19a). But because the court below saw no "'critical' need for redetermination" of the underlying constitutional issue (ibid.) and no "compelling public interest in opposing the naturalization" of persons such as respondent (id. at 20) and believed that the equities favored respondent (id. at 20a-21a), it held that the government was precluded from relitigating the constitutional issues presented. None of these considerations justifies the court of appeals' conclusion. /22/ As explained above (pages 18-19), the decisions of this Court, including Hibi, reflect that the enforcement of the naturalization laws in every individual 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 acknowledged to be valid effected a denial of due process in 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 respondent's claim, it is particularly clear that these equities have no place in the calculus of decision when the issue is not whether respondent is entitled to naturalization, 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 regarded 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 Circuit's subsequent decision in Olegario. See page 13, supra. In addition, decisions inconsistent with 68 Filipinos have been rendered in In 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); Pangilinan v. 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. /23/ 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 arguments the United States might raise in answer to respondent'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, 11a n.8) that respondent'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 independent determination of his right to naturalization. While we question whether any person who made no effort to avail himself of the opportunity for naturalization 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 rights (App. A, infra, 12a n.8), there is no reason whatever 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 /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 Philippines enjoyed considerable autonomy under the terms of the Independence Act. /2/ Between 1942 and 1945, approximately 7000 Filipino service-members were naturalized under Section 701 at locations outside the occupied Philippines. /3/ One question was whether service in the Army of the Commonwealth 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 instrumentality 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 integral unit of the United States Army; its members had thus individually 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 Philippines, then an American possession, satisfied the statute's requirements on that score. /4/ 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 statute 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 Philippine Scouts. /6/ 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. Respondent, of course, made no application for naturalization at this time either. /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 those 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. /8/ 68 Filipinos was not a class action. /9/ After the decision in In 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, supra. /10/ 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/ Commissioner Castillo explained that his recommendation to withdraw the appeal in 68 Filipinos was based on equitable considerations "aside from the legal argument of, was correct procedure of process used." Oversight of INS Programs and Activities: Hearings Before the Subcomm. on Immigration, Citizenship and International 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 government'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 unilaterally 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 withdrew 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 General 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 In 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/ 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 pages 12 note 12, supra). /14/ 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/ 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) Category 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/ In a recent year the United States was a party to 63,628 civil cases filed in the United States District Court, 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. Id. at 203, 205. /17/ 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. /18/ The Restatement also cautions against use of collateral estoppel "when the issue was determined in the first action by a trial court and in the second action will probably be taken to an appellate court," and when "the issue is of general interest and has not been resolved by the highest appellate court that can resolve it." Restatement (Second) of Judgments Section 29, comment i. The decision of the court of appeals disregards these strictures as well. /19/ The United States, even as a litigant, does not abandon its responsibilities as the government. As this Court has remarked, "(t) here is, of course, no rule of law to the effect that the Government 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); Dixon 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 government 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. /20/ See, e.g., Note, The Solicitor General and Intragovernmental Conflict, 76 Mich. L. Rev. 324, 324-330 (1977); Carrington, United States Appeals in Civil Cases, 11 Hous. L. Rev. 1101, 1101-1105 (1974); Bork, The Problems and Pleasures of Being Solicitor General, 42 A.B.A. Antitrust L. J. 701 (1973); Note, Government Litigation 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). /21/ At a minimum there is no basis for the court of appeals' assertion (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 68 Filipinos appeal was withdrawn. 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). /22/ The court of appeals' necessarily subjective conclusions regarding 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 collateral estoppel effect in the future. /23/ An additional factor that should have caused the court of appeals to address the merits is the substantial tension between Judge Renfrew's conclusion that Attorney General 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, 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 Memorandum in Opposition (at 6, 12) (1973 Term). In these circumstances, due regard for the authority of this Court's decisions required the court of appeals to treat the decision in 68 Filipinos as one at least potentially "inconsistent with * * * (a) previous judgment( ) in favor of" the United States. Parklane Hosiery Co. v. Shore, supra, 439 U.S. at 330. Appendix Omitted