IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. ANTOLIN PUNSALAN PANGILINAN, ET AL. No. 86-1992 In the Supreme Court of the United States October Term, 1986 The Solicitor General, on behalf of the Immigration and Naturalization Service, 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 PARTIES TO THE PROCEEDINGS Petitioner is the Immigration and Naturalization Service. Respondents are Antolin Punsalan Pangilinan, Panfilo Jabalde, Fidel Zosimo Usi Canilao, Antonio Patdo Tantay, Arcadio Revilla Nepomuceno, Dionisio Vallejos Lucas, Oliver Juan Posadas, Vicente Miranda Belizario, Rodolfo De Jesus Batac, Pedro Dumlao Ponciano, Cesar Jocson Ascalon, Winifredo Pableo Bello, Bonifacio Leoncio Zarcal, Benjamin Natividad Bonus, and Mario Valderrama Litonjua. TABLE OF CONTENTS Parties to the Proceedings Opinions below Jurisdiction Question presented Statutes involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals on remand from this Court (App. 1a-24a) /1/ is reported at 796 F.2d 1091. The dissenting opinion from the denial of rehearing en banc (App. 29a-41a) is reported at 809 F.2d 1449. The original opinion of the court of appeals (App. 42a-53a) is reported at 694 F.2d 603. The opinion of one district court (App. 54a-59a) is reported at 511 F. Supp. 630. The opinion of the other district court (App. 60a-61a) is unreported. The findings and recommendations of the designated naturalization examiners (App. 62a-127a, 130a-160a) are likewise unreported. /2/ JURISDICTION The judgments of the court of appeals (App. 25a-27a) were entered on August 11, 1986. A petition for rehearing was denied on February 13, 1987 (App. 28a-29a). On May 5, 1987, Justice O'Connor extended the time within which to file a petition for a writ of certiorari to and including June 13, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES INVOLVED Sections 701, 702, and 705 of the Nationality Act of 1940, as amended by the Second War Powers Act, 1942, ch. 199, Section 1001, 56 Stat. 182-183, 8 U.S.C. (Supp. V 1945) 1001, 1002, and 1005, and Section 310(e) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1421(e), are reproduced in the Appendix (App. 161a-163a). QUESTION PRESENTED Whether Philippine veterans of World War II, whose opportunity to apply for American citizenship under greatly liberalized conditions expired in December 1946, are nonetheless currently entitled to citizenship because, during a nine-month period between October 1945 and August 1946, there was no designated examiner stationed in the Philippines to whom they could have applied for naturalization. STATEMENT Respondents are 15 Philippine veterans of World War II who, between June 1978 and April 1980, filed petitions for naturalization under Section 701 of the Nationality Act of 1940 (the 1940 Act or the Act), 8 U.S.C. (Supp. V 1945) 1001, as added by the Second War Powers Act, 1942, ch. 199, Section 1001, 56 Stat. 182 (App. 62a-127a, 130a-160a; Lodging 326-463). /3/ Under this Section, aliens who served in the American Armed Forces during World War II were permitted to apply for citizenship under greatly liberalized conditions. As part of the program, servicemen on active duty outside the United States were allowed under Section 702 of the Act to obtain naturalization overseas by applying to special examiners designated by the Commissioner of Immigration and Naturalization (the Commissioner). As amended by Section 1(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 no later than December 31, 1946. Respondents made no effort to apply for overseas naturalization while on active duty in the Philippines (App. 4a-6a, 63a, 87a, 89a-129a, 131a-132a). Nor did they attempt to enforce their alleged entitlement to citizenship under the 1940 Act until more than 30 years after the cutoff date. Nevertheless, the court of appeals ordered that all of them be granted citizenship. 1. a. The events leading to the present case began more than 40 years ago. In 1942, Congress amended the 1940 Act to provide liberalized conditions for the naturalization of aliens who served honorably in the United States Armed Forces during World War II. Section 701 exempted certain alien servicemen who served in areas outside the continental United States from various naturalization requirements, such as literacy in English and a period of residence in the United States. Section 702 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 jurisdiction of the United States naturalization courts. Under Section 702, representatives designated by the Commissioner were authorized to receive petitions, conduct hearings, and grant naturalization outside the United States. Section 705 authorized the Commissioner, with the Attorney General's approval, to make such rules and regulations as were necessary to carry into effect the provisions of Sections 701-702. See INS v. Hibi, 414 U.S. 5, 6-7 (1973). The great bulk of alien servicemen were naturalized by naturalization courts in this country, but thousands were naturalized pursuant to Section 702 by immigration officers traveling on rotation throughout England, Ireland, North Africa, and the islands of the Pacific. /4/ The 1940 Act could not be carried out in the Philippines between 1942 and 1945 because of the Japanese occupation. Nonetheless, approximately 7000 Filipino service members were naturalized in places outside the Philippines. /5/ See Hibi, 414 U.S. at 10 (Douglas, J., dissenting); Olegario v. United States, 629 F.2d 204, 209 (2d Cir. 1980), cert. denied, 450 U.S. 980 (1981); In re Naturalization of 68 Filipino War Veterans (68 Filipinos), 406 F. Supp. 931, 935 (N.D. Cal. 1975). Following the liberation of the Philippines by Allied Forces and the resolution of certain issues as to the applicability of Sections 701-702 to various Filipino servicemen, /6/ the provisions of the 1940 Act were implemented in the Philippines. In early August 1945, the Immigration and Naturalization Service (INS) designated George Ennis, an American vice consul in Manila, to naturalize aliens pursuant to Section 702. The Philippine government subsequently expressed its concern to the State Department that the mass migration to this country of perhaps as many as 250,000 newly naturalized veterans would drain its soon-to-be independent country /7/ of essential manpower and undermine post-war reconstruction efforts. In September 1945, the Commissioner recommended to Attorney General Tom Clark that the problem be resolved by revoking Vice Consul Ennis's naturalization authority. /8/ The Attorney General approved the recommendation, and naturalizations in the Philippines ceased in late October 1945, App. 3a, 44a; Olegario, 629 F.2d 209-210. In August 1946, the INS designated a new naturalization official for the Philippines, P.J. Phillips, who naturalized approximately 4000 Filipinos between August 1946 and the December 31, 1946, cutoff date. /9/ No INS official was present in the Philippines to implement the 1940 Act during the nine-month period between October 1945 and August 1946. App. 3a, 44a; Olegario, 629 F.2d at 211. b. In the past two decades there has been a stream of litigation as a result of belated efforts by Filipino veterans to obtain naturalization under the 1940 Act. These veterans have asserted that they were denied statutory and constitutional rights as a result of the nine-month absence of a naturalization examiner in the Philippines. Several of these prior Filipino veteran cases provide essential background for the present case. In INS v. Hibi, 475 F.2d 7, rev'd, 414 U.S. 5 (1973), the Ninth Circuit held that the government was equitably estopped from denying naturalization to Hibi, a Filipino veteran, based on the statute's expiration date. This Court reversed, holding that the government's revocation of Ennis's authority and its failure to publicize the rights available to Filipino veterans under the 1940 Act did not give rise to an estoppel against the government. Two years later, in 68 Filipinos, the district court granted the petitions for naturalization of numerous Filipino veterans. The court classified the veterans into three groups: (1) "Category I": those who took affirmative steps to apply for naturalization while on active duty in the Philippines but whose applications were not acted upon before the statutory deadline; (2) "Category II": those who, like respondents, had not sought naturalization in a timely manner but who could have qualified had they done so; and (3) "Category III": those who were unable to establish that they had ever qualified under Sections 701-702. The court granted the petitions of the Category I and II veterans but denied those of the Category III veterans (406 F. Supp. at 936-937). /10/ The government appealed the district court's decision in 68 Filipinos and filed a brief, but it later withdrew the appeal after a new administration took office. The government later reevaluated its position and decided that it would challenge the petitions of Category II veterans. Subsequently, in a case involving a different Filipino veteran, the Ninth Circuit held that because the government had withdrawn its appeal in 68 Filipinos, it was collaterally estopped from contesting petitions for naturalization of other Filipino veterans who qualified under Sections 701-702 of the 1940 Act. This Court reversed. United States v. Mendoza, 464 U.S. 154 (1984), rev'g 672 F.2d 1320 (9th Cir. 1982). 2. a. The present case represents the third phase of the attempts of Filipino veterans to obtain naturalization under the now-expired 1940 Act. All of the respondents except Litonjua filed their petitions in the United States District Court for the Northern District of California. Those Pangilinan respondents /11/ stipulated with the government that their legal claims were identical to those of the Category II veterans in 68 Filipinos (App. 4a, 45a, 128a-129a -- namely, they were all on active duty in the Philippines for at least part of the period between October 1945 and August 1946, when there was no designated examiner in the Philippines, and they made no effort to apply for naturalization prior to the expiration of the liberalized naturalization provisions. Indeed, most of them did not even learn about the availability of citizenship for World War II veterans under the 1940 Act until the late 1970s. /12/ One naturalization examiner was designated to handle the cases of all of the Pangilinan respondents. Rejecting the reasoning of the district court in 68 Filipinos, he recommended against naturalization. /13/ On September 24, 1980, upon consideration of the examiner's recommendation and the Second Circuit's Olegario decision, /14/ the district court denied the petitions of the 14 respondents in a single order (App. 60a-61a). Those cases were consolidated for purposes of appeals. /15/ b. Respondent Litonjua's petition was filed in the United States District Court for the Southern District of California. Litonjua, who served in the Philippines from May 1941 to April 1946 as a member of the United States Navy, made no effort to apply for naturalization while on active duty. He made preliminary efforts to obtain citizenship during a visit to the United States after his discharge, but did not complete the petition process prior to the cutoff date. /16/ The naturalization examiner recommended that Litonjua's petition be denied; /17/ the district court agreed and denied Litonjua's naturalization petition on April 9, 1981 (App. 54a-59a). Although it concluded that Litonjua's claim was not barred by the political question doctrine, laches, or this Court's Hibi decision, the court followed Olegario and held that the Attorney General's revocation of the vice consul's authority was proper (id. at 56a-59a). c. The veterans appealed, and Litonjua's case was consolidated with those of the Pangilinan respondents. Applying its Mendoza decision, which had not yet been overturned by this Court (see page 7, supra), the court of appeals reversed the two district courts on collateral estoppel grounds (App. 42a-53a). After this Court reversed the Ninth Circuit in Mendoza, it also vacated the court of appeals' collateral estoppel judgments in the present case (INS v. Litonjua, 465 U.S. 1001 (1984), rev'g Barretto v. United States, 694 F.2d 603 (1982) (App. 42a-53a)), /18/ thus setting the stage for the current phase of the litigation. 3. On remand from this Court, the court of appeals did not reach respondents' due process claims. Rather, it "avoid(ed) deciding this substantial constitutional question" (App. 20a) and instead held that the revocation of Vice Consul Ennis's naturalization authority violated the 1940 Act and that, as a consequence, belated naturalization was appropriate as an equitable remedy (id. at 11a-24a). At the outset, the court concluded, with no elaboration, that this Court's Hibi decision was not relevant because respondents were "rais(ing) statutory and constitutional arguments neither presented to nor addressed by the Supreme Court in Hibi" (App. 11a). /19/ On the issue whether the Attorney General lawfully revoked the vice consul's naturalization authority, the court held that "there is little room for doubt" that the Attorney General's action was contrary to "'the expressed will of Congress'" (id. at 16a (citations omitted)). The court stated that the language of Sections 702 and 705 was "mandatory, not discretionary," and contained "no express or implied delegation of authority to the Attorney General to deny the benefits of the Act to eligible aliens for any reason" (ibid. (footnote omitted)). The court therefore refused to "find an implied intent to defer to the Attorney General's judgment that benefits under the Act should be withheld from Filipinos in response to postwar manpower concerns expressed by Philippine officials" (id. at 17a). The court acknowledged (App. 20a) that its interpretation of the 1940 Act conflicts with the Second Circuit's holding in Olegario that the Attorney General's action was permissible under that Act. It concluded, however, that the Second Circuit's analysis is "unpersuasive" (App. 21a), and noted that Olegario was decided before this Court stated in INS v. Miranda, 459 U.S. 14 (1982), that "the Attorney General's 'error was clear' when he revoked (the vice consul's) naturalization authority in 1945" (App. 21a). /20/ The court then addressed the question whether it had power to remedy the Attorney General's "transgression" by granting respondents naturalization notwithstanding the untimeliness of their petitions (App. 22a). It stated that a federal court has "broad remedial powers" and is authorized to "adjust its relief to the exigencies of the case in accordance with the equitable principles governing judicial action" (ibid. (citation omitted)). In the court's view, because "(t)here (was) simply no other way to restore the lost opportunity for citizenship that Congress offered (Filipino veterans) as a just reward for their military service in World War II," granting naturalization to respondents was "the only effective remedy available to 'rectify the agency action taken'" (id. at 23a (citation omitted)). 4. The court subsequently denied the government's petition for rehearing and suggestion for rehearing en banc, with Judge Kozinski, writing for himself and seven other judges, dissenting from the denial of rehearing en banc (App. 29a-41a). In disputing the panel's conclusion that the 1940 Act gave Philippine servicemen a "right" to citizenship, the dissenting judges agreed with the Second Circuit in Olegario that, at most, the statute provided such servicemen "'with an opportunity to become * * * citizen(s).'" Id. at 30a (emphasis added by dissent (quoting Olegario, 629 F.2d at 224)). The dissent also agreed with Olegario that the statute gave the Attorney General "very broad discretion" in "implementing the naturalization program," and that foreign relations was "a proper concern of the executive branch" in the decision to withdraw the naturalization examiner from the Philippines (App. 32a). /21/ In addition, the dissent stated (App. 33a) that the panel had merely used a different label to achieve precisely what had already been rejected by this Court in Hibi. Indeed, even aside from the teachings of Hibi, the dissent maintained, the panel's invocation of equity power in this case was erroneous. It noted that, while equity courts have broad discretion to fashion a remedy, such discretion only arises "once a right has been established" (id. at 35a (emphasis in original)). Equity courts, the dissent asserted, have no authority to "enforce rights denied by statute" (id. at 36a). It pointed out that respondents failed to meet the statutory criteria for citizenship because their petitions were untimely (ibid.). The dissent concluded (id. at 41a) that the panel had "stretch(ed) the court's equity powers far beyond previously accepted limits." REASONS FOR GRANTING THE PETITION Notwithstanding this Court's prior reversals in Hibi and Mendoza, the Ninth Circuit has, for a third time, ordered the naturalization of Filipino veterans under a statute that expired more than 40 years ago. In reaching this result, the court has undertaken to sit in judgment, decades after the fact, on the balance struck by the Attorney General between his obligations under Sections 701-705 of the 1940 Act and his responsibility, as an executive officer acting on behalf of the President, to consider this country's foreign policy interests when carrying out his duties. The court's rejection of any role for executive foreign policy discretion in the implementation of Sections 701-705 conflicts with the Second Circuit's holding in Olegario. This conflict will inevitably lead to forum-shopping by Filipino veterans seeking naturalization under the 1940 Act. More fundamentally, the court has improperly asserted equitable authority in a manner that cannot be reconciled with the teachings of this Court. First, in granting citizenship under expired statutory provisions, the court ignored this Court's cases establishing that a naturalization court has no authority to dispense with congressionally-mandated requirements for citizenship. See, e.g., Fedorenko v. United States, 449 U.S. 490, 517-518 (1981); United States v. Ness, 245 U.S. 319 (1917); United States v. Ginsberg, 243 U.S. 472 (1917). Second, the court's decision conflicts with Hibi, in which this Court confronted a claim identical to respondents' in all respects but one: the label given to the legal theory has been changed from "equitable estoppel" to "equitable remedy for denial of statutory rights." As the dissenting judges noted (App. 33a), "(t)here is no meaningful difference between saying that the government is equitably estopped from raising the statutory cutoff date and disregarding the cutoff date as a matter of equity." Finally, the court granted equitable relief without pausing to balance the equities. As this Court has emphasized, such a balancing is required, and, particularly when government conduct is involved, the need and justification for equitable relief must be clear. See, e.g., Eccles v. Peoples Bank, 333 U.S. 426, 431 (1948). The court of appeals' decision, if not corrected, will have a considerable impact in light of the thousands of Filipino veteran cases and potential cases that are pending administratively or have already reached the courts. /22/ At this late date, the government will have great difficulty verifying the veterans' assertions that (1) they possessed the necessary qualifications under the expired 1940 Act, /23/ and (2) had the opportunity been presented, they would have sought naturalization while that Act was still in effect. Moreover, the naturalization of these veterans would have a spillover effect. Once the veterans obtain citizenship, their spouses and minor children will be entitled to visas without regard to quotas. In addition, the unmarried adult children of the veterans will be able to obtain "first preference" visas, thus placing them ahead of other Filipinos awaiting visas under the quota system. See 8 U.S.C. 1151(b), 1153(a)(1). The court's decision thus threatens a serious distortion of both the naturalization and the immigration processes established by Congress. For all of these reasons, review by this Court is plainly warranted. 1. The underlying premise of the Ninth Circuit's decision is that the Attorney General violated the 1940 Act by revoking the vice consul's naturalization authority. The court reached this conclusion despite its recognition (App. 3a) that the Attorney General had acted in response to concerns expressed by Philippine officials that the implementation of the 1940 Act in their country would result in the loss of critical manpower. It is fundamental that decisions affecting our relations with foreign nations are entrusted to "the very delicate, plenary and exclusive power of the President" and that such power "does not require as a basis for its exercise an act of Congress * * *." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). See also Regan v. Wald, 468 U.S. 222, 243 (1984); Dames & Moore v. Regan, 453 U.S. 654 (1981); Haig v. Agee, 453 U.S. 280 (1981); Goldwater v. Carter, 444 U.S. 996, 1002-1006 (1979) (Rehnquist, J., concurring); Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 109-111 (1948); Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979), cert. denied, 446 U.S. 957 (1980). /24/ The proper judicial inquiry is not, as the court below suggested, whether Congress specifically intended to grant the Attorney General authority to make the precise response to the concerns of Philippine officials that he made, but rather whether it intended to accord him generally "a degree of discretion and freedom from statutory restriction" that would enable him to implement Sections 701-702 in a manner that would avoid an adverse impact on our relations with another government. Curtiss-Wright, 299 U.S. at 320. That inquiry does not necessitate a search of the statutory language for either an express or an implied delegation of authority to the Executive Branch to take the foreign policy interests of this country into account. Rather, unless specifically negated, it is always the implied will of Congress to give the Executive Branch authority to implement legislation overseas in a manner which will not undermine this country's foreign policy interests. Id. at 319-321. See also Japan Whaling Ass'n v. American Cetacean Society, No. 85-954 (June 30, 1986), slip op. 19; Zemel v. Rusk, 381 U.S. 1, 17 (1965). In holding that executive foreign policy discretion did not legitimize the Attorney General's actions, the court of appeals stated that the revocation of the vice counsul's naturalization authority was "'incompatible with the expressed will of Congress'" (App. 16a (citation omitted)). /25/ Congress's "expressed will," according to the court, was that "eligible aliens" not be denied the benefits of Sections 701-702 "for any reason" (App. 16a). But the Attorney General did not directly deny the benefits of the 1940 Act to respondents; he did not, for example, direct that naturalization petitions filed by them or others similarly situated not be processed. What the court apparently meant was that revocation of the vice consul's naturalization authority had the practical effect of denying them the Act's benefits because, during the subsequent nine months, they were left without a special examiner to whom they could submit their overseas petitions (see id. at 21a-22a). Such revocation can be said to have violated Congress's "expressed will," however, only if the statute required the Attorney General to ensure that all eligible servicemen had a continuous opportunity to apply for overseas naturalization during the time that they were eligible for that benefit. If that was Congress's intent, the entire overseas naturalization program established by the Commissioner and the Attorney General was fatally flawed. In fact, however, the authority granted to the Executive Branch to implement the 1940 Act necessarily included a degree of discretion in enforcing its provisions. Since no mandatory procedures, schedules, or timetables were prescribed for the assignment of INS representatives to overseas locations, the Attorney General and the Commissioner were free, for example, to adopt a post-to-post rotation system for examiners, even though that system did not provide continuous availability of a naturalization examiner. See Olegario, 629 F.2d at 226. Indeed, the Ninth Circuit agreed that Congress did not require that examiners be made "continuously available to alien servicemen wherever they may be stationed" (App. 13a). It found, nonetheless, that the absence of such a requirement was irrelevant because the vice consul's authority was not revoked as part of a program for making the most effective use of "limited personnel" (ibid.). According to the court, the Attorney General "was expected to carry out the mandate of Congress in an even-handed, nondiscriminatory manner" (id. at 19a), and Congress could not have "intended to license the Attorney General to deny the benefits of the 1940 Act to Filipinos as a class" (id. at 18a (footnote omitted)). It is apparent, however, that the Attorney General did not deny the benefits of the 1940 Act to "Filipinos as a class"; the 7000 Filipinos who were naturalized outside the Philippines attest to that. Revocation of the vice consul's authority affected the naturalization opportunity of only a subclass, i.e., those Filipinos who were in military service in the Philippines, for the most part as members of the Commonwealth Army or its guerrilla components. /26/ Since Filipinos were not affected "as a class" by the revocation decision, the clear expression of congressional intent necessary to deny foreign policy discretion to the Executive Branch cannot be found in generalized congressional expectations of an even-handed and nondiscriminatory implementation of the 1940 Act. /27/ Thus, as the Second Circuit held in Olegario (629 F.2d at 227), the authority granted to the Executive Branch to implement Sections 701-702 without specific guidelines or restrictions "was sufficient to permit the executive to exercise some discretion when confronted with a seemingly delicate foreign affairs matter." The court of appeals should not have second-guessed the sensitive foreign policy decisions made by the Executive Branch more than four decades ago. Cf. Japan Whaling Ass'n, slip op. 19. 2. In contrast to the lack of evidence that Congress intended to restrict the Attorney General's discretion to consider and respond to foreign policy implications of the naturalization program, Congress's intent on another issue was unmistakably clear: petitions for naturalization under Sections 701-702 had to be filed no later than December 31, 1946. See Hibi, 414 U.S. at 8. a. The court of appeals purported to invoke principles of equity to justify its disregard of the cutoff date. Contrary to the court's assumption, however, equity provides no such authority. The broad equity powers which the court invoked (App. 23a) arise only after "a right and a violation have been shown." Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 15 (1971). Absent such a showing, there is no basis for the exercise of judicial "remedial power" (id. at 16). The court of appeals apparently proceeded on the assumption that Sections 701 and 702 granted respondents a "right" to citizenship that was denied by the revocation of the vice consul's naturalization authority (see App. 20a), and that the requisite showing had therefore been made. But as the Second Circuit held in Olegario (629 F.2d at 223-224), those Sections did not grant "a vested right to citizenship," but merely provided a "mechanism" which extended an "opportunity" to apply for overseas naturalization under liberalized requirements. Even if Sections 701 and 702 could be deemed to have vested respondents with a right to citizenship, moreover, that right necessarily expired long before respondents filed their naturalization petitions. First, as we have noted, the liberalized citizenship provision expired on December 31, 1946, and any "right" to citizenship was thereby terminated for those who failed to apply by that date. Second, even if the December 31, 1946, cutoff date had been ambiguous, Congress repealed the 1940 Act in 1952 when it enacted Section 403(a)(42) of the 1952 Act, 66 Stat. 280. Finally, if those two statutory enactments were not enough, Congress amended the 1952 Act in 1961 by enacting Section 310(e) (Pub. L. No. 87-301, Section 17(e), 75 Stat. 656), which provides that "any" naturalization petition filed after that date is to be heard and determined in accordance with the requirements of the 1952 Act. /28/ Since respondents do not (and cannot) claim that they qualify for citizenship under the 1952 Act, they lack any existing statutory basis upon which to assert a present "right" to citizenship. b. The court nevertheless held that Section 310(e) of the 1952 Act was not intended to "foreclose" the assertion of rights under the 1940 Act (App. 9a-10a) and that it was free "to restore the lost opportunity for citizenship that Congress offered" to respondents when it enacted Sections 701 and 702 (App. 23a). But the only way that rights can be asserted today under those expired sections is to treat respondents' belated petitions as if they had been filed while those provisions were still in effect. The court's necessary holding, therefore, was that it had equitable power to do so because the revocation of the vice consul's authority deprived respondents of an opportunity to file timely petitions. A court, however, has no authority to ignore statutory requirements for citizenship. As this Court stated in Fedorenko v. United States, 449 U.S. 490 (1981), "there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship" (id. at 506). If a person fails to qualify for citizenship, the Court there observed, "'the district court has no discretion to ignore the defect and grant citizenship'" (id. at 517 (citation omitted)). Accord, e.g., United States v. Ness, 245 U.S. 319, 324 (1917); United States v. Ginsberg, 243 U.S. 472, 474-475 (1917). Furthermore, this Court long ago held that "(a) court of equity cannot, by avowing that there is a right but no remedy known to the law, create a remedy in violation of the law, or even without the authority of law." Rees v. City of Watertown, 86 U.S. (19 Wall.) 107, 122 (1874). To the contrary, "wherever the rights or the situation of the parties are clearly defined and established by law, equity has no power to change or unsettle those rights or that situation * * *." Magniac v. Thomson, 56 U.S. (15 How.) 281, 299 (1854). The court, therefore, could not avoid the requirements of Section 701 of the 1940 Act and Section 310(e) of the 1952 Act by treating petitions filed in 1978 as if they had been filed prior to December 31, 1946. c. Even if the court did possess equitable power to treat respondents' petitions as if they had been timely filed under the 1940 Act, Hibi conclusively established that this case does not warrant the exercise of that power. /29/ Hibi held that the revocation of the vice consul's naturalization authority (as well as the failure fully to publicize the rights accorded by Sections 701 and 702) did not constitute "affirmative misconduct" that might warrant estopping the government "from the denying citizenship." 414 U.S. at 8-9. Contrary to the court of appeals' suggestion (App. 11a), this holding was not a narrow or technical one but rather was a definitive ruling that revocation of the vice consul's authority did not provide a basis for equitable relief. Hibi sought to estop the government "from alleging that the filing deadline in section 701 ha(d) passed or that 8 U.S.C. Section 1421(e) preclude(d his) petition." INS v. Hibi, 475 F.2d at 9. But when a litigant seeks, as did Hibi, to estop the government from enforcing a statutory provision, it is the operation of the statute that he actually seeks to prevent; it is for that reason that this Court held in Hibi 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" (414 U.S. at 8). In the context of naturalization, moreover, an estoppel claim is really not addressed to Executive Branch enforcement of a legislative provision, since the Executive Branch does not rule upon a naturalization petition. The designated naturalization examiner recommends the appropriate disposition to the court, but only the court can grant or deny citizenship. See 8 U.S.C. 1446(b) and (d), 1447. Thus, Hibi did not seek merely to estop an unfavorable recommendation by the examiner. /30/ His goal was an award of citizenship from the court; to achieve that goal, he had to show that he met the statutory requirements, and he could do so only if his petition were treated as if it had been filed while Section 701 uas still in effect. The equitable relief, therefore, that he ultimately sought -- and the relief that every veteran seeking belated naturalization under Section 701 must necessarily seek -- was the indulgence on equitable grounds of the legal fiction that a naturalization petition filed long after December 31, 1946, was constructively filed before that date. /31/ It follows that this Court's decision in Hibi, read in light of the real relief sought by Hibi and awarded him by the lower courts, must necessarily be understood as a holding that revocation of the vice consul's naturalization authority did not constitute affirmative misconduct such as to justify the granting of equitable relief. /32/ Since the facts in regard to that revocation are no different here, the dissent was correct in noting that the panel, in attempting to distinguish Hibi, had merely "substitute(d) words for concepts" (App. 33a). /33/ d. Finally, even if Hibi were not dispositive, the court's decision is erroneous for yet another reason. As the dissent noted (App. 33a), the court totally failed to balance the equities before ordering relief. Had it done so, it would have been compelled to deny relief. This Court has made clear that equitable relief is not required as a matter of course whenever a violation of rights is found. Rather, "(i)t is always the duty of a court of equity to strike a proper balance between the needs of the plaintiff and the consequences of giving the desired relief." Eccles v. Peoples Bank, 333 U.S. 426, 431 (1948); see also Amoco Production Co. v. Gambell, No. 85-1239 (Mar. 24, 1987), slip op. 8-10; Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982); Hecht Co. v. Bowles, 321 U.S. 321, 329-330 (1944). Moreover, courts should be especially cautious in ordering equitable relief "where governmental action is involved," and "should not intervene unless the need for (such) relief is clear, not remote or speculative" (Eccles, 333 U.S. at 431). Here, equitable considerations weigh heavily against granting respondents citizenship. In the first place, the revocation of the vice consul's naturalization authority was prompted by delicate foreign policy considerations. Even if the Attorney General misjudged his authority to consider foreign policy concerns in executing Sections 701-702, his misjudgment can hardly be characterized as egregious. /34/ In addition, it is difficult to perceive any nexus between the revocation of the vice consul's authority and the alleged injury to respondents. Every respondent concedes that he did not even attempt to apply for naturalization while on active duty in the Philippines. /35/ It is sheer speculation to conclude that respondents would have applied for citizenship (or would have even learned about its availability) had Vice Consul Ennis's naturalization authority not been revoked. Moreover, respondents are seeking to revive statutory rights that expired 30 years before they filed their petitions. Granting their belated petitions would open the way to similar requests by thousands of other Filipino veterans. See note 22, supra. /36/ Proper adjudication of such petitions would be difficult, since, in many cases, there would be virtually no way adequately to determine whether the veterans actually qualified under Sections 701-702 or whether they would have sought naturalization more than 40 years ago had an examiner been stationed in the Philippines during the period in question. It follows that there is no demonstration here of the clear need for equitable relief which, Eccles teaches, is a prerequisite to such relief where governmental action is involved. The court of appeals was plainly wrong in asserting (App. 23a) that "(t)here is simply no other way to restore the lost opportunity for citizenship that Congress offered"; if Congress were to conclude that is naturalization offer was improperly thwarted by the Attorney General, it is perfectly capable of providing relief through the legislative process. /37/ Since respondents' eligibility for citizenship under the 1940 Act expired more than four decades ago, their proper recourse today is not with the courts but with Congress. CONCLUSION The petition for a writ of certiorari should be granted. /38/ Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General ROBERT H. KLONOFF Assistant to the Solicitor General LAURI STEVEN FILPPU MARSHALL TAMOR GOLDING Attorneys JUNE 1987 /1/ "App." refers to separately bound appendix to this petition. /2/ This case involves two appeals that were consolidated in the court of appeals: Pangilinan, et al. v. INS (caption below) and Litonjua v. INS (caption below). One naturalization examiner was assigned to handle the cases of all 14 respondents in Pangilinan, et al. His legal analysis is essentially identical in each case. Accordingly, we have reproduced the complete findings and recommendations in only one of the cases, that of respondent Pangilinan (App. 62a-88a). With respect to the other 13 Pangilinan respondents, we have reproduced only individualized excerpts (id. at 89a-127a), but have lodged with the Clerk of the Court copies of the unedited versions (Lodging 1-325). In addition, we have lodged with the Clerk one set of appendices to the findings and conclusions in the Pangilinan cases (Lodging 464-547), which are identical in each of the 14 cases. We have also reproduced the unedited findings and recommendations of the naturalization examiner in Litonjua (App. 130a-160a). /3/ The 1940 Act was replaced by Section 403(a)(42) of the Immigration and Nationality Act of 1952 (the 1952 Act), ch. 477, 66 Stat. 280. /4/ Most of the overseas naturalizations were performed by one individual, Dr. Henry Hazard (Lodging 523). A total of 6574 alien servicemen were naturalized by Hazard between 1943 and 1945 (Lodging 543-544). Between 1942 and 1944, 80,062 alien servicemen were naturalized by naturalization courts in this country (Lodging 545-547). /5/ Between 1942 and 1944, 5919 Filipinos were naturalized by naturalization courts in this country (Lodging 545-547). Dr. Hazard naturalized 923 Filipinos during his overseas visits (Logding 544). /6/ One issue was whether service in the Philippine Commonwealth Army constituted service in the United States military forces for purposes of Section 701. A question existed because that army (which, with guerrilla units, was estimated at between approximately 166,000 and 270,000 men), was an arm of the Philippine government and was simply incorporated into the United States Armed Forces by a Presidential Order in 1941. By contrast, a much smaller unit known as the Philippine Scouts (consisting of about 6200 men) was an integral unit of the United States Army, since its members had individually enlisted in the American Armed Forces. See Lodging 506, 508. In 1945 the Attorney General determined that members of both Philippine units were covered by Section 701. Congress subsequently enacted the First Supplemental Surplus Appropriation Rescission Act, 1946, ch. 30, 60 Stat. 14 (Rescission Act), which provided, in relevant part, that service in the Philippine Commonwealth Army was not to be deemed service in the American Armed Forces for purposes of any federal statute conferring benefits on military veterans. See note 27, infra. Based on the Rescission Act, the Attorney General reversed his previous position. The government maintained that revised position until 1957, when a district court held that the Rescission Act did not take away the naturalization rights of members of the Philippine Commonwealth Army (Petition of Munoz, 156 F.Supp. 184 (N.D. Cal. 1957)). See Olegario, 629 F.2d at 209-210 & nn.3, 5. A second issue concerned the eligibility 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 requirement of Section 701 that the applicants have been "lawfully admitted into the United States, including its Territories and possessions." See Olegario, 629 F.2d at 209 n.3. /7/ The Philippines were scheduled to become an independent country on July 4, 1946. Philippine Independence Act of 1934, ch. 84, Section 10(a), 48 Stat. 463. /8/ The INS took the position that Section 702 authorized but did not mandate the designation of overseas examiners (Lodging 513). /9/ This new examiner was designated after the Attorney General concluded, based on the enactment of the Rescission Act, that members of the Commonwealth Army were not members of the American Armed Forces and therefore were ineligible for the liberalized naturalization benefits under Section 701. See note 6, supra. /10/ With respect to the Category I veterans, the court held that their petitions should be treated as "constructively filed" and that the government was equitably estopped to contest the petitions because of its failure to process the applications (406 F.Supp. at 938-938). With respect to the Category II veterans, the court held that they were entitled to citizenship because the government's revocation of the vice consul's authority violated their due process rights (id. at 948-951). Since the 68 Filipinos case, the government has adopted a policy of not opposing naturalization petitions of Category I veterans. /11/ The case of Pangilinan, et al. involves 14 veterans (referred to collectively as the "Pangilinan respondents"). The Litonjua case involves only a single veteran. See note 2, supra. /12/ Respondent Pangilinan claimed in his petition for naturalization that, "(a)fter (his) discharge (he) inquired with the Veterans Administration in 1946 to become a U.S. citizen but they told (him he) was not eligible" (Lodging 334). He later stipulated with the government that he was a Category II veteran (App. 128a), and the designated naturalization examiner found that Pangilinan "offered no evidence to establish that he attempted to apply for or even inquired about naturalization while he was on active duty, and prior to the expiration of the law on December 31, 1946" (id. at 63a). The other 13 veterans conceded in their petitions that they did not even learn of the availability of naturalization for veterans until after 1946. Specifically, respondents Canilao and Tantay first learned in 1947 that they could have applied for citizenship (Lodging 353, 362); respondents Ascalon and Zarcal first learned in 1948 (id. at 428, 448); respondent Jabalde first learned in 1976 (id. at 344); respondents Lucas, Batac, Ponciano, Bello, and Bonus first learned in 1977 (id. at 380, 408, 419, 439, 455); respondents Nepomuceno and Belizario first learned in 1978 (id. at 371, 398); and respondent Posadas first learned "a few years" prior to 1979 (id. at 389). /13/ Specifically, he concluded that: (1) the petitions of the Pangilinan respondents were barred by Section 310(e) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1421(e), which precludes naturalization under expired or superseded statutory provisions; (2) the claims were barred by laches and by the veterans' failure to show that they were injured by the absence of an examiner; (3) the claims were nonjusticiable because the Attorney General's actions involved issues of foreign policy that were within the sole prerogative of the Executive Branch; (4) the veterans' due process claims were nonmeritorious; and (5) their claims were barred by Hibi. App. 67a-87a. /14/ In Olegario, the Second Circuit rejected a Filipino veteran's claim of entitlement to citizenship, holding, inter alia, that the decision to revoke Vice Consul Ennis's authority for foreign policy reasons was properly within the discretion of the Executive Branch and was not barred by the 1940 Act. /15/ The district court actually ruled on and denied 17 petitions, but only 14 of the veterans filed appeals. /16/ Specifically, Litonjua made inquiries at the INS during late July or early August of 1946 while in Seattle as a civilian employee of the United States Army Transport Service. He apparently submitted some sort of paperwork, although the nature of that paperwork is unclear. In any event, although Litonjua was instructed by the INS not to leave the Seattle area without first notifying that office, he left Seattle on August 17, 1946, without following those instructions. Litonjua made no effort to contact the INS until he returned to Seattle in January 1947 and was informed that the naturalization program for veterans had expired. Litonjua then waited 31 years before filing a petition for naturalization. App. 132a-133a. The court of appeals treated Litonjua as a Category II veteran and for that reason did not reach his claim that he should be treated as Category I veteran even though he did not pursue naturalization while overseas (App. 6a n.3; see also id. at 45a-46a n.3). /17/ The reasons given by the examiner were essentially the same as those of the examiner in Pangilinan, et al. (App. 130a-160a). See note 13, supra. /18/ Veteran Barretto is no longer part of this litigation because the court of appeals granted him citizenship for reasons unique to his case (see App. 52a-53a). /19/ The Court also rejected the government's argument that the issue was a nonjusticiable political question, that 8 U.S.C. 1421(e) precluded respondents' naturalization, and that respondents' petitions were barred by laches (App. 7a-10a). /20/ In Miranda, the Court held that the government's 18-month delay in processing an application for adjustment of status did not give rise to a claim of estoppel. No issue involving citizenship for Filipino veterans was involved. In reaching its conclusion in regard to Miranda's claim, the Court stated (459 U.S. at 18) that, "(u)nlike Montana (v. Kennedy, 366 U.S. 308 (1961)) and Hibi, where the Government's error was clear, the evidence that the Government failed to fulfill its duty in this case is at best questionable." /21/ The dissent noted that the 1940 Act "speaks in mandatory terms only in describing the steps the naturalization petitioner must take in applying for citizenship," and that "(i)n all other respects (it) * * * speaks in the permissive, leaving it to the 'Commissioner, with the approval of the Attorney General,' to establish the procedures for implementing the Act" (App. 31a (citation omitted)). /22/ There are several pending Filipino veteran cases in the Ninth Circuit that will be governed by the ultimate disposition of this case. In addition, the INS is presently contesting more than 1100 petitions for naturalization under the 1940 Act in various district courts, and it also has before it for processing more than 3500 petitions filed by alleged Filipino veterans. Moreover, it has received approximately 5000 inquiries from Filipino veterans regarding the procedures for making application. Furthermore, the State Department informs us that since the present decision was issued, an estimated 80 to 110 Filipino veterans have applied for visas to come to this country for the purpose of applying for naturalization. Finally, some 200 civil actions have been filed in the United States District Court for the District of Columbia by World War II veterans residing in the Philippines who, in addition to claiming veterans' or welfare benefits, have applied for naturalization under the 1940 Act. /23/ In July 1973, a fire at the Military Personnel Record Center in St. Louis, Missouri, destroyed millions of Army records for the period between World War I and 1959. As the naturalization examiner for the Pangilinan respondents noted, "(w)ithout military records to verify alleged service the Government will be confronted with an administrative nightmare." App. 72a-73a. /24/ These principles are particularly relevant to immigration and naturalization matters. See, e.g., Mathews v. Diaz, 426 U.S. 67, 81-82 (1976) (footnote omitted) (noting that such matters "may implicate our relations with foreign powers" and that "(t)he reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization"); Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952) (footnote omitted) (indicating that "any policy toward aliens is vitally and intricately interwoven with contemporaneous policy in regard to the conduct of foreign relations" and that such matters are "largely immune from judicial inquiry or interference"). /25/ The court relied heavily on a comment by this Court in Miranda, 459 U.S. at 18, that in Hibi, "the Government's error was clear" (App. 16a, 21a). See page 12 & note 20, supra. As the dissent below observed, however, "such heavy reliance on a stray remark made by the Court in an unrelated context by way of illustrating an entirely different point is misplaced. It is inconceivable that the Court resolved this important and difficult question in such an off hand manner in a case where it was not argued, briefed or even at issue" (App. 32a). The court gave several additional reasons as well, all of which lack merit. First, it noted (App. 18a n.12) that no one "with responsibility for foreign affairs participated" in the revocation decision. But the court errs in suggesting that only subordinates possessing formal responsibility for foreign affairs are entitled to make decisions affecting foreign policy. See, e.g., United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542-543 (1950). Second, the court indicated (App. 18a) that the Philippines were not a proper subject of the exercise of foreign policy discretion because they were a territory in 1945 and thus under congressional regulation under Art. IV, Section 3, Cl. 2 of the Constitution. But the independence of the Philippines was imminent, and the Attorney General's decision was clearly made in contemplation of a soon-to-be independent nation. Third, the court noted (App. 18a) that Congress, with the approval of Philippine officials, authorized the recruitment of 50,000 Filipinos to serve in our postwar occupation forces. But there is a significant difference between conferring citizenship on veterans (resulting in a permanent loss of manpower to the Philippines) and the temporary loss of manpower resulting from service in the occupation forces. Indeed, members of Congress and Philippine officials contemplated that the Philippines would benefit by later having trained servicemen as the nucleus for a Philippine army. See Second Supplemental Surplus Appropriation Rescission Bill, 1946; Hearings on H.R. 5604 Before the Subcomm. of the Senate Comm. on Appropriations, 79th Cong., 2d Sess. 32 (1946) (remarks of Sen. Hayden) (hereafter 1946 Hearings). See generally Olegario, 629 F.2d at 227. /26/ Of the 15 respondents in this case, for example, 13 served in the Commonwealth Army or its guerrilla units (App. 63a, 90a, 93a, 99a, 102a, 105a, 108a, 111a, 114a, 117a, 120a, 123a, 126a). /27/ Ironically, while the court of appeals purported to be carrying out Congress's clearly expressed intent, it is anything but clear that Congress contemplated that its citizenship offer would extend to the estimated 166,000-270,000 Filipinos serving in their own national army (see note 6, supra). The intent of Sections 701-702 was to encourage and reward the enlistment of aliens into our armed forces. See, e.g., 88 Cong. Rec. 1797-1798 (1942) (remarks of Rep. Celler). Filipinos who were members of the Commonwealth Army and its guerrilla components, however, fought primarily to ensure the independence of their own country. See 1946 Hearings 60. Indeed, in 1946, Congress enacted the Rescission Act, which provided, subject to certain exceptions, that service in the Philippine Commonwealth Army was not to be equated with service in the American Armed Forces for the purpose of any law "conferring rights, privileges, or benefits" by reason of service in the American Armed Forces. Senator Hayden, one of the bill's co-authors, later noted that the provision "cancel(ed) any right which soldiers in the Philippine Army may have had to become citizens of the United States under the Nationality Act of 1940, as amended" (ibid. (emphasis added)). Senator Hayden explained that "(i)t was the view of the committee that the approximately 200,000 Filipinos who first and last served in that army did so because they fervently desired freedom for their country and not with the idea of acquiring the right to go to another country" (ibid.). He added that "(i)t would be the worst kind of public policy practically to invite them to leave their homes, where their position as patriots is recognized, and come to the United States, where, as immigrants, they would have to begin at the very bottom of the economic ladder to make their way upward" (ibid.). The court that decided Munoz (see note 6, supra) was apparently unaware of Senator Hayden's statements. /28/ Section 310(e) was enacted specifically because, in Congress's view, "'(t)he administration of two nationality laws simultaneously is cumbersome, inefficient, and unfair to other applicants for naturalization.'" United States v. Pasion, 524 F.2d 249, 252 (9th Cir. 1975) (quoting legislative history). /29/ The facts here are in all relevant respects identical to the facts in Hibi. The only differences between the two cases concern the length and nature of World War II service and the degree of untimeliness of the naturalization petitions. These differences have no bearing on the equitable remedy which the court below granted to respondents. /30/ In fact, Hibi's petition was granted by the district court over the adverse recommendation of the designated examiner. See INS v. Hibi, 475 F.2d at 9. /31/ Indeed, both the veteran in Hibi and the court of appeals in that case recognized that "equitable estoppel" was merely the label placed upon a more general request for equitable relief. In his opposition to the government's petition for a writ of certiorari, Hibi (who was represented by the lead counsel for 14 of the 15 respondents in this case) made substantially the same contentions concerning the revocation of the vice consul's naturalization authority that respondents urged (and the court below accepted) in this case (Hibi Mem. in Opp. 3-6). He specifically disavowed any narrow or technical construction of his claim, aruging instead that "(e)quitable estoppel is only the name for a legal principle employed by the courts below to enforce (the) promise" of citizenship to alien servicemen, and that, "while the events of this case may be described in the traditional terminology of equitable estoppel, it is the overriding commands of justice and good conscience which make the difference" (id. at 12). Similarly, the court of appeals in Hibi characterized its decision as falling within a class of cases that have "invoke(d) equitable relief to permit one to obtain his rights of citizenship where those rights have been denied due to erroneous action on the part of administrative officials" (475 F.2d at 11). The Ninth Circuit's analysis in Hibi is thus very similar to its reasoning in the present case (see App. 21a-23a). /32/ This Court's recent decision in Lyng v. Payne, No. 84-1948 (June 17, 1986), is not to the contrary. That case held merely that a litigant cannot be denied his statutory remedy because the relief he seeks resembles equitable estoppel and he fails to meet the latter's more stringent requirements (slip op. 8-10). Nothing in that holding suggests that, in the absence of a statutory remedy, an equitable claim can be successively presented, based on the same asserted government misconduct, by merely requesting estoppel under another label. /33/ Indeed, it is arguable that, under the court of appeals' rationale, no decision denying equitable relief against the government on an estoppel theory would ever be conclusive, since it would be open to the litigant to return to court and allege that the government's conduct, while not affirmative misconduct, nonetheless denied him certain statutory "rights" and that equitable relief, i.e., preventing the government from enforcing the law, was therefore appropriate. Hibi and this Court's other equitable estoppel cases would thereby be rendered essentially meaningless. /34/ See Hibi, 414 U.S. at 8-9 (Attorney General's actions did not constitute affirmative misconduct); Santiago v. INS, 526 F.2d 488, 496 (9th Cir. 1975) (en banc) (Choy, J., dissenting) (explaining Hibi as a case in which the Attorney General's "decisions were so patently of the type committed to the executive branch" that, "(r)egardless of whether the Government's conduct constituted an abuse of discretion," the Supreme Court "was extremely reluctant to nullify them over 20 years later in order to relieve one individual instance of hardship"), cert. denied, 425 U.S. 971 (1976); Comment, Estoppel Against the Government, 1976 Utah L. Rev. 371, 381-382 (1976) (noting that the veteran in Hibi "could show almost no equities in his favor which required the Government to be estopped" whereas "the Government's arguments against estoppel were strong" because of the foreign policy considerations underlying the Attorney General's decision). /35/ Indeed, none of them even learned about the availability of citizenship under Sections 701-702 until after those provisions had expired. Under the examiners' findings, six of the respondents apparently became aware of the opportunity in the late 1940s, yet waited decades before filing petitions for naturalization. The other nine respondents did not learn about Sections 701-705 until the late 1970s. See pages 8-9 & note 12, supra. Moreover, all of the respondents had ample opportunity to apply for citizenship before Ennis's authority was revoked, since they were all on active duty in the Philippines between August 1945 and October 1945, when Ennis was naturalizing servicemen there (see App. 63a, 90a, 93a, 96a, 99a, 102a, 105a, 108a, 111a, 114a, 117a, 120a, 123a, 126a, 131a). /36/ See Note, Estopping the Government in Immigration Cases: The Immigration Estoppel Light Remains Cautionary Yellow, 56 Notre Dame Law. 731, 737 (1981) (footnotes omitted) (expressing opinion that the equities in Hibi favored the government because someone "who did not pursue his claim of citizenship for twenty-two years could not claim serious injustice," whereas a decision in his favor "could have resulted in successful claims by thousands of other Filipinos who were similarly situated" and could have "unduly harmed the public interest"). /37/ Congress has, in fact, refused to do so on several occasions. In the first session of the 93d Congress, Congressman Burton introduced a bill (H.R. 11963, 93d Cong., 1st Sess. (1973)) which would have allowed Filipinos who served honorably in "any United States Armed Force" during World War II, along with their spouses and children, to be admitted to this country as lawful permanent residents. The same proposal was reintroduced by Congressman Anderson (H.R. 1512, 94th Cong., 1st Sess. (1975)), and by Congressman Burton (H.R. 1568, 96th Cong., 1st Sess. (1979)). More recently, Congressman Dymally introduced two bills (H.R. 4895, 98th Cong., 2d Sess. (1984) and H.R. 5875, 98th Cong., 2d Sess. (1984)) that would have extended naturalization rights to Filipino veterans notwithstanding Section 310(e) and the cutoff date of Section 701. These proposals have not generated serious interest in Congress. /38/ In light of the controlling authority of INS v. Hibi, supra, as well as the governing equitable principles announced in its prior decisions, the Court may wish to consider summary reversal. Appendix