Yuen v. International Revenue Service Reply Brief for Plaintiff-Appellant

    IN THE
80-6206

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

No. 80-6206

VERONICA YUEN,

Plaintiff-Appellant, 

v s .

INTERNAL REVENUE SERVICE, et al.,

Defendants-Appellees.

On Appeal From The United States District Court 
For The Southern District Of New York 

Judge Leonard Sand

REPLY BRIEF FOR PLAINTIFF-APPELLANT

MARGARET FUNG 
STANLEY MARK 

Suite 308 
350 Broadway 
New York, N. Y. 10013 
(212) 966-5932

O. PETER SHERWOOD 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, N. Y. 10019 
(212) 586-8397

STEPHEN GLEIT 
2 Mott Street 
New York, N. Y. 10013 
(212) 227-1948

ATTORNEYS FOR PLAINTIFF-APPELLANT



INDEX

1. Statutory Issue .....................................  1

2. Legal Permanent Resident Aliens .................  6

3. Temporary and Permanent Allegiance .............. 8

4. Hampton v. Mow Sun Wong ............................  9

5. Face of the Statute and its Purpose ............  12

6. Pre-Hampton Legislative History .................  14

7. Post-Hampton Acquiescence .........................  17

8. Due Process ..........................................  18
Conclusion .................................................. 22

Certificate of Service ................................... 22

Page

-l-



TABLE OF AUTHORITIES

Baumgarten v. United States, 322 U.S.
665 (1944) ..............................................  3 , 8 , 16

Califano v. Gildfarb, 430 U.S. 199
(1977)   20

Carlisle v. United States, 83 U.S.
147 (1872) .............................................. 8

Craig v. Boren, 429 U.S. 190 (1976) ................... 20

Ex parte Endo , 323 U.S. 283 (1944)   6

Fedorenko v. United States, ____  U.S. ____ ,
49 U.S.L.W. 4120 (Jan. 21, 1981)   14

Girouard v. United States, 328 U.S.
61 (1946)   4

Hampton v. Mow Sun Wong, 426 U.S. 88
(1976)   passim

Hurtado v. California, 110 U.S. 516
(1884)   18

In re Griffiths, 413 U.S. 717 (1973) .................  4 , 7 , 9

Law Students Research Council v. Wadmond, 401
U.S. 154 (1971) ..................................... 4

NLRB v. Plasterers' Local Union, 404
U.S. 116 (1971) ........................................ 5, 14

Personnel Administrator v. Feeney, 442
U.S. 256 (1979)   20

Reed v. Reed, 404 U.S. 71 (1971)   20

Revedin v. Acheson, 194 F.2d 482
(2d Cir.), c e r t . denied 344 U.S. 820 (1952)   4

Savorgnan v. United States, 338 U.S. 492
(1950)   3

Schlesinger v. Ballard, 419 U.S. 498
(1975)   20

Cases Page

- ii-



Cases Page

Truax v. Raich, 239 U.S. 33 (1915) ....................  6

Weinberger v. Wiesenfield, 420 U.S. 636
(1975) ...................................................  20

Wengler v. Druggist M u t . Ins. Co.,
100 S.Ct. 1540 (1980) ................................  20

Constitutional Provisions and Statutes

United States Constitution, Art. VI, cl. 3 .......... 4

Act of January 29, 1795, 1 Stat. 414,
c. 20    3

Act of June 4, 1920, c. 227, Subchapter II,
§1, 41 Stat. 809 ......................................  4

Citizenship Act of March 2, 1907,
Section 2, 34 Stat. 1228 ............................. 3

31 U.S.C. S 699b ........................................... 2

8 U.S.C. § 1101(a) (15)   6

8 U.S.C. § 1101 (a) (20)   6

8 U.S.C. § 1184   7

8 U.S.C. § 1427   7

8 U.S.C. § 1448 ............................................  3

8 U.S.C. § 1481(a)(2)   3

10 U.S.C. § 502   4

29 U.S.C. § 16 0 (k )   5

-iii-



Page

Other Authorities

Executive Order 11935, 41 Fed. Reg. 37301
(September 7, 1976) ................................  9, 17 , 21

8 C.F.R. § 214   6

8 C.F.R. § 337.2   3

Gordon and Rosenfield, Immigration Law
and Proc . (1980 ed) ................................... 3, 7, 8

O t t e , Aliens in the Federal Service,
10 Cornell Int. L.J. 255 (1977) .................... 20

Reubens, Aliens, Jobs, and Immigration
Policy, Public Interest 113 (1978) ................  7

Rosberg, The Protection of Aliens from 
Discriminatory Treatment by the 
National Government, 1977 Sup. Ct.
Rev. 275   10

- iv-



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 
No. 80-6206

VERONICA YUEN,
Plaintiff-Appellant, 

vs.
INTERNAL REVENUE SERVICE, et al.,

Defendants-Appellees.

On Appeal From The United States District Court 
For The Southern District Of New York 

Judge Leonard Sand

REPLY BRIEF FOR PLAINTIFF-APPELLANT

In this reply brief, plaintiff-appellant Veronica Yuen 

replies to several arguments made in the brief for defend- 

ants-appellees (hereinafter "appellees' brief").
1. Statutory Issue. We first clarify the statutory 

issue before the Court. The lower court stated that " [p]lain- 

tiff contends that an oath of allegiance ... makes her eligible 
for federal employment under the 'owes allegiance' provision 

of § 699b (3)," J.A. 4-5, 497 F. Supp. 1023, 1026, and we



stated and argued the statutory question in this Court as 

"[w]hether an appropriations act, 31 U.S.C. § 699b, permits 

federal employment of aliens who take an oath of allegiance 

to the United States?" Brief for Plaintiff-Appellant at 1 
(hereinafter "principal brief"). The government, however, 

misstates that we argue that the appropriations act permits 

federal employment of all aliens since "all aliens living in 

the United States owe at least a temporary allegiance to this 

country." Appellees' brief at 7. The question is whether 
the statutory phrase includes, as we argue, both persons who 
owe allegiance by virtue of their status as citizens or 
nationals and persons who owe allegiance by virtue of a sworn 

oath, or, as the government argues, only the former.

At bottom, neither the lower court nor the government
is willing to accord oaths to support and defend the Consti-

1/
tution their usual significance in our law. Clearly, the 

government's position requires that "allegiance" in the appro­
priations act be read counter to the customary and long- 
established usage of "allegiance" in American law as a legal 

relationship of attachment created or affirmed by the taking

1/ There is no dispute between the parties, and the lower 
court did not rule otherwise, that the word "person" in the 
"person" in the phrase "person who owes allegiance to the 
United States" includes aliens. See, principal brief at 
16-17.

\

- 2 -



of an oath. Thus, consistent with our country1 s unique his­

tory as a nation of immigrants from many nations, " [f]rom 

the earliest days of the Republic, Congress has required as 

a condition of citizenship that the alien ... swear alle­

giance to this country and its Constitution. Act of January
2/

29, 1795, 1 Stat. 414, c. 20." This requirement of an oath
"in order to be and before being admitted to citizenship"

continues to this day. Section 337, Immigration and Nationality
3 /

Act of 1952, as amended, 8 U.S.C. § 1448. Indeed, "taking

an oath or making an affirmation or other formal declaration

of allegiance to a foreign state" deprives an American by
birth or naturalization of nationality. Section 349(a)(2),

Immigration and Nationality Act of 1952, as amended, 8 U.S.C.
1/§ 1481(a)(2). See, Savorgnan v. United States, 338 U.S. 492,

2 /  Baumgarten v. United States, 322 U.S. 665, 673 (1944). 
See principal brief at 17-20.

3/ See, 3 Gordon and Rosenfield, Immigration Law and 
Proc. § 16.8 (1980 ed.). Naturalization is deemed effec­
tive upon the taking of an oath of allegiance although 
official grant of citizenship is granted by court order.
8 CFR § 337.2.
4/ The predecessor provision was first enacted as Section 
2 of the Citizenship Act of March 2, 1907, 34 Stat. 1228 
("That any American citizen shall be deemed to have expatri­
ated himself ... when he has taken an oath of allegiance to 
any foreign state."). See, 3 Gordon and Rosenfield, Immi­
gration Law and Proc., supra, § lOd.

3



502 (1950); Revedin v. Acheson, 194 F.2d 482 (2d Cir.)/ cert.
denied, 344 U.S. 820 (1952). Moreover, an oath to support 
the Constitution has always been associated with public ser­

vice. See, e.q., Art. VI, cl. 3, United States Constitution
1/(oath required of federal and state officers); 10 U.S.C.

6/
§ 502 (oath required of military enlistees); see also, Law 
Students Research Council v. Wadmond, 401 U.S. 154, 161-152 
(1971) (admission of attorneys), and aliens "cannot be pre­

cluded, as a class, from taking an oath to support the Consti­

tution on the theory that they are unable to take the oath in 
good faith." In re Griffiths, 413 U.S. 717, 726 n. 18 (1973); 

Hampton v. Mow Sun Wong, 426 U.S. 88, 109 n. 39 and accompany-
ying text, 111 n. 43 (1976).

The statutory question, we submit, boils down to whether 
Congress has clearly and without doubt foreclosed the employment

5/ "The Senators and Representatives before mentioned, and 
the Members of the several State Legislatures, and all execu­
tive and judicial officers, both of the United States and of 
the several States, shall be bound by Oath or Affirmation, to 
support this Constitution."
6/ This provision was originally enacted as Act of June 4,
1920, c. 227, subchapter II, § 1, 41 Stat. 809.
7/ An oath is a solemn undertaking. The failure to truth­
fully swear an oath can result in denial of privileges, see, 
e.g., Girouard v. United States, 328 U.S. 61 (1946), or their 
withdrawal, see principal brief at 19-20.

4



of aliens who owe allegiance by virtue of a solemn oath.

Nowhere in appellees' brief, however, is there any evidence 

presented of any such purpose or intent: the government, at
most, establishes a specific Congressional intent to protect 

the employment of incumbent United States national employees, 

but not that that group of persons was intended to be 
the exclusive group of non-citizen employees, or an affirma­

tive intent to exclude or negative the employment of aliens 

who establish their allegiance by oath. Compare NLRB v . 

Plasterers' Local Union, 404 U.S. 116, 127-130 (1971) (spe­
cific legislative history referring to hearing disputes between 

unions does not indicate an affirmative intent to exclude or 

negative employer participation in hearings as "parties to 
the dispute" under Section 10(k) of the National Labor Rela­
tions Act, 29 U.S.C. § 160 (k)). The Supreme Court's cautious 

and careful inquiry into the appropriations act's language 
and legislative history in Hampton v. Mow Sun Wong, 426 U.S.

88, 105-110 (1976), argues for no less. Furthermore, absent 

clear indicia of Congressional will, this Court should not 

broadly construe a statute in derogation of protectible due

8/

0 /  The oath was submitted in the form of an affidavit which, 
as the lower court observed, the appropriations act specifies 
"shall be considered prima facie evidence that the require­
ments of this section with respect to his status have been 
complied with." J.A. at 10, 497 F. Supp. at 1029.

5



process liberty interests- "We must assume, when asked to

find implied powers in a grant of ... executive authority, that

the lawmakers intended to place no greater restraint ... than

was clearly and unmistakably indicated by the language they
10/

used." Ex parte Endo, 323 U.S. 283, 300 (1944).

2. Legal Permanent Resident Aliens. Reversal would not, 

as the government suggests, make every alien in the United 
States eligible for federal employment. Veronica Yuen is a 

permanent resident alien lawfully "admitted as a result of 

decisions made by Congress and the President, implemented by 

the Immigration and Naturalization Service acting under the 

Attorney General." Hampton, supra, 426 U.S. at 116. Lawfully 

admitted resident aliens fall squarely within the protection 

of Hampton v. Mow Sun Wong, supra, 426 U.S. at 90, and In re 
Griffiths, supra, 413 U.S. at 718 n. 1. This limited group of 

aliens has been "lawfully accorded the privilege of residing 
permanently in the United States as ... immigrant[s]" and is gen­

erally not subject to any restrictions on employment or other 

endeavor. Section 101(a)(20) of the Immigration and Nationality

2/

9/ Hampton v. Mow Sun Wong, 426 U.S. 88, 102-103 (1976); 
Truax v. Raich, 239 U.S. 33, 41 (1915) (ineligibility of 
aliens for public employment is a deprivation of an interest 
in liberty).

10/ See, principal brief at 7.

6



Act of 1952, as amended, 8 U.S.C. § 1101(a) (20). In contrast,
all other aliens are prohibited from employment, or restricted

to specific employment or employer. See, Sections 101(a)(15)

and 214, 8 U.S.C. § 1101(a) (15) and 1184; 8 CFR § 214. It

is permanent resident aliens who, "like citizens, pay taxes,

support the country, serve in the armed forces, and contribute
12/

in myriad other ways to our society." Only aliens lawfully

admitted for permanent residence, with minor exceptions, are

eligible for citizenship upon fulfilling the five year resi-
13/

dence and other requirements. Section 316, 8 U.S.C. § 1427.

Permanent resident aliens, in short, have a measure of the

privileges and obligations of citizens although they are not

citizens. An estimated one million legal permanent residents
comprise about one-sixth of all aliens currently working in the

14/
United States and about one percent of the domestic labor force.

11/

11/ See, 1 Gordon & Rosenfield, Immigration Law & Proc., 
supra, § 1.34.

12/ In re Griffiths, supra, 413 U.S. at 722. See, 1 Gordon 
& Rosenfield, Immigration Law and Proc., supra, § 1.39-1.42.

13/ See, 1 Gordon & Rosenfield, Immigration Law & Proc., 
supra, § 1.33.

14/ Reubens, Aliens, Jobs, and Immigration Policy, Public 
Interest 113, 116 n. 1 (1978). There are an estimated 120,000 
authorized temporary workers and 5 million illegal resident 
aliens.

7



Moreover, the kind of federal position in issue here is excepted

service oositions rather than the entire spectrum of federal 
15/

jobs.
3. Temporary and Permanent Allegiance. The distinction 

between the two kinds of "allegiance" that the government sets 

up obviously begs the statutory question presented. If Con­

gress intended to limit federal employment to citizens and 
non-citizen nationals it could easily have done so by using 

limiting terms such as "national" (instead of "persons") or 

"permanent allegiance" (instead of "allegiance"), see princi­

pal brief at 20-22. Carlisle v. United States, 83 U.S. 147 

(1872), merely restates the settled distinction between "tem­

porary allegiance" to obey the law that any resident alien owes 
as a result of his residence alone, and the "permanent alle­
giance" of citizens and non-citizen nationals whose obedience
to the law is presumed to arise from belief and devotion that

!§/
does not end with change of residence alone. See, e .g., 
Baumgarten v. United States, supra, 322 U.S. at 673-674.

Carlisle does recognize, 83 U.S. at 155, appellees' brief at 7,

15/ The post-Hampton Executive Order 11935 of September 2,
1976, which imposes a broad prohibition of alien employment, 
see principal brief at 33-34, and whose validity is not in 
issue, addresses only "competitive service" positions and does 
not cover "excepted service" positions. See also, infra at 17-18.
16/ As the government states, even "permanent allegiance" can 
be terminated. Appellees' brief at 8, first note.

8



that an oath of allegiance can establish a higher affiliation 
than temporary allegiance (which exists "independently of the 

taking of any oath of allegiance"). While a lawfully admit­

ted permanent resident alien's oath of allegiance does not in 

itself make an alien a citizen or national for nationality 

purposes, see, supra at 3, an oath does establish or affirm, 

at minimum, that the alien will support and defend the Consti­

tution out of good faith belief and devotion for employment 

purposes. See, Hampton v. Mow Sun Wong, supra, 426 U.S. 109,

111 n. 43; In re Griffiths, supra, 413 U.S. at 726 n. 18.
4. Hampton v. Mow Sun Wong. The government proceeds 

immediately to the legislative history of the appropriations
act without considering the construction of the act in Hampton

17/
v. Mow Sun Wong, supra. Appellees' brief at 8. We speak to 
this proper initial matter first (as did the court below). The 
government contends that the Hampton discussion of the act's 
non-citizen categorical exceptions is only illustrative because 

the scope of the appropriations act and "owes allegiance" pro­

vision was never in issue, Appellees' brief at 27-29. This

contention plainly flies in the face of the record, lower court
18/

decision, and Hampton opinion. Properly construed the

17/ The government discusses Hampton at 26-36, and the face of 
the statute not at all.
18/ The Solicitor General's brief in Hampton, which the govern­
ment filed below, S.R. 2, Brief for the Petitioners, p. 7,

9



government is only arguing that the legal theory of the 

Hampton opinion was not argued by the parties. But, whether 

the briefs before the Court in Hampton discuss the legal 

theory of the Court's decision is a red herring because "[t]he 
Supreme Court held the Civil Service Commission rule invalid 

on a very intriguing theory neither presented below nor argued 

to the Court." Rosberg, The Protection of Aliens for Discrim­
inatory Treatment by the National Government, 1977 Sup. Ct.

18/ Continued
recites that "respondents urged in the district court that the 
regulation also contravenes Section 502 of the Public Works 
Appropriations Act, 1970," a predecessor to the present appro­
priations act, and then cites in note 8 the Public Works Appro­
priations Act's provision for employment of, inter alia, "a 
person who owes allegiance to the United States" and that two 
of the named plaintiffs filed affidavits in support of their 
motion for summary judgment declaring that they owe allegiance 
to the United States.

The district court in Hampton rejected both the claim that 
the Commission regulation was inconsistent with several execu­
tive orders and " [p]laintiffs' other main non-constitutional 
argument ... that the Commission's regulation is inconsistent 
with § 502," 333 F. Supp. 527, 530-531; see principal brief at 
12-13. The Supreme Court found this part of the proceedings 
below relevant:

The [district] court also rejected an argument that the 
Civil Service Commission regulation was inconsistent with 
§ 502vof the Public Works for Water, Pollution Control, 
and Power Development and Atomic Energy Commission Appro­
priations Act, 1970, which permitted payment to classes of 
persons who are made ineligible by the Civil Service regu­
lation. On that point the court said:

"The Commission has acted permissibly in relation 
to the Appropriations Act in not opening up the 
civil service to all those whom Congress has indi­
cated it would be willing to pay for their work."
333 F. Supp. at 531.

426 U.S. at 93-94.
10



Rev. 275, 278; see generally, S.R. 2. The Hampton opinion 

simply cannot be impeached or narrowed based on what the 

parties argued or failed to argue on a properly presented 

issue. We believe it obvious that the Court's Hampton opinion

19/

19/ It is clear that the Court did reject the government's 
construction of the appropriations act as consistent with 
the Commission regulation. The Government's Brief for 
Petitioner, R. 2, 83-84, argued:

However, most components of the civil service—  
whether in the competitive service or the "excep­
ted service"— are now subject to statutory limita­
tions on the employment of aliens in the continental 
United States contained in provisions in appropria­
tion legislation similar to restrictions enacted71annually since 1938. The restriction in effect at 
the time this action was begun was contained in Sec­
tion 502 of the Public Works Appropriation Act, 1970,
83 Stat. 336 (see p. 7, supra, n. 8). In language 
almost identical to that used in the appropriations 
acts of 1938, it prohibits the use of appropriated 
funds for payment of salaries to almost all alien 
employees of the United States whose post of duty is 
in continental United States without limitation as 
to whether they are competitive civil service employees.

The basic prohibition of these annual appropria­
tions provisions reinforces the policy reflected in 
the Commission’s regulation, and the exceptions have 
the effect of merely authorizing payment of salaries 
to aliens who might otherwise be eligible for federal 
civil service employment.

From the preceding discussion of the history of 
the pertinent federal civil service laws and regula­
tions, it is abundantly clear that Congress expected 
that the Civil Service Commission might require

71 Treasury-Post Office Appropriation Act, 1939, 52 
Stat. 148; Appropriation Act for Departments of State, 
et al., 1939, 52 Stat. 289-290; Independent Offices 
Appropriation Act, 1939, 52 Stat. 435; Second Defi­
ciency Appropriation Act, 1938, 52 Stat. 1162-1163.

11



recites the legislative history of the appropriations act it 

considered relevant and material to its decision, see prin­

cipal brief at 25-27, and that merely because the indicia 

of legislative intent now proffered by the government is not 

cited is no reason to divest Hampton of its stare decisis 

impact here.

The authoritative statement that because "Congress has 
regularly provided for the compensation of any federal employee 

owing allegiance to the United States" and that "[s]ince it is 

settled that aliens may take an appropriate oath of allegiance 

the statutory category, though not previously defined, is 

plainly more flexible and expansive than the commission rule," 

426 U.S. at 109, is not dictum. The Court properly focused 
on the "owes allegiance" provision because the named plaintiffs 
had standing only to challenge that categorical exception pro­

vision, see principal brief at 10, 14-15. The Hampton statement 
is holding.

5. Face of the Statute and Its Purpose. The government 

says not a word about either the face of the statute or its

19/ Continued
citizenship as a qualification for the competitive 
civil service, and that, with the full knowledge 
of Congress, the Commission has maintained such a 
requirement from the outset of its existence.

12



purpose before rushing to a discussion of pre-Hampton legis­

lative history, which we believe is equivocal. Appellees' 

brief at 8. The government apparently concedes that the 

customary usage of the terms "a person who owes allegiance"

in American law ordinarily includes aliens who swear alle-
20/

giance, see supra at 2-4, and principal brief at 15-24, 

and that the purpose of the appropriation act's non-citizen 

categories was to "authorize payment to a much broader class 

of potential category of citizens and natives of Samoa." 
Hampton, supra,426 U.S. at 109. In short, permitting federal 

employment of permanent resident aliens who swear an oath of 

allegiance enforces both the face of the statute and its pur­

pose .
Obviously, this does not end the inquiry or disable a 

court from also looking to legislative history and other aids 
to statutory construction. The Court, however, should exer­

cise great care that the terms of the act and statutory purpose 

be given their proper heavy weight. "In construing a statute, 

the Court has ruled that legislative materials, if 'without 

probative value, or contradictory, or ambiguous,' should not 

be permitted to control the customary meaning of words."

20/ The government does cite several other statutes in which 
the term "owes allegiance" has been given unusual and spe­
cially restrictive meaning. See infra at 15-16.

13



NLRB v. Plasterers' Local Union, supra, 404 U.S. at 129, n. 24
21/

(citing cases).
6. Pre-Hampton Legislative History. We respectfully

submit that the government, appellees' brief at 8-25, has not

refuted our demonstration that the sparse legislative history

of the act is without probative value, principal brief at 25-
22/

31. Nor has the government refuted that the legislative 

history, at best, establishes only that non-citizen nationals 

are covered, but simply fails to establish that Congress 

affirmatively prohibited hiring of aliens whose allegiance is 

created or affirmed by an oath. NLRB v. Plasterers' Local 
Union, supra; see, supra at 5-5; principal brief at 31-32. It 
requires too much of a leap of faith to accept, as the government 

argues, that because the employment of incumbent United States 
non-citizen national employees is safeguarded that the employ­

ment of all non-citizens is barred. The suggestion that the

21/ Just this term, the Supreme Court cautioned that "[a]s 
this Court has previously stated: 'We are not at liberty to
imply a condition which is opposed to the explicit terms of 
the statute. ... To [so] hold ... is not to construe the Act
but to amend it.'" Fedorenko v. United States, ___ U.S. ___,
49 USLW 4120, 4126 (decided January 21, 1981).
22/ The Glass amendment included both the "owes allegiance" 
provision and a provision covering persons "now in the service 
of the United States," and it is not clear which provision is 
being explained as including incumbent Filipino employees by 
the only authoritative spokesman for the provision, Sen. Glass. 
Sen Hayden's remarks about the Glass amendment are contradic­
tory or ambiguous.

14



logical gap can be filled by referring to administrative

policy or practice, appellees' brief at 12, note, was expressly
argued and unquestionably rejected in Hampton, supra, 426 U.S.
at 105-113, where the Court reviewed Civil Service Commission

citizenship policies and practices and found no evidence of
congressional or presidential approval. Nor is any silent

congressional "assumption" that non-national aliens would never

be hired adequate to close the gap.
A provincial attitude toward aliens may 
partially explain the assumption that they 
would not be employed by the new Civil Ser­
vice Commission. But since that attitude has 
been implicitly repudiated by our cases 
requiring that aliens be treated with the 
dignity and respect accorded to other persons, 
and since that attitude did not affect the 
form of the legislation itself, we disregard 
it in our evaluation of Congress' participa­
tion in the decision to impose the citizenship 
requirement.

Hampton, supra, 426 U.S. at 107.
With respect to the government's discussion of the pass­

port law, Philippine Islands Independence Act and Neutrality 
Act of 1939, plainly these provisions were not mentioned and 
not referred to in the legislative history of the appropria­

tions act, see principal brief at 32-33. Nothing in the 

legislative history of the appropriations act shows any congres­
sional intent to depart from the usual understanding of owing 

allegiance by oath in nationality law or public service or

15



employment, see supra at 3-4, in deference to passport or
other laws dealing with territorial power over non-citizen 

nationals. These laws are obviously remote from the subject 

of employment of resident aliens. Moreover, the passport law 

demonstrates that when Congress gives "allegiance" a spe­

cial meaning, the legislative history is clear and specific 
on the point, see principal brief at 33, n. 19. Nor do we 

question that Congress can and has legislated that Filipinos 
and other non-citizen nationals "owe allegiance," but this 

does not mean that Congress intended in the appropriations act 

to prohibit employment of those owing allegiance by virtue of 
a sworn oath.

The government, appellees' brief at 21-22 and note, sug­

gests that the "state of mind"of a person is irrelevant in 
considering allegiance of aliens. Without doubt there are statu­

tory contexts in which allegiance refers exclusively to status 
as a national, such as the passport law where non-nationals 

are usually not entitled to issuance of passports. However, 
under American law allegiance is typically associated with the 

swearing of an oath which affirms a subjective affiliation, 
see supra at 2-4, and principal brief at 17-20. "Allegiance to 
to this Government and its laws, is a compendious phrase to 
describe those political and legal institutions that are the 

enduring features of American political society." Baumgarten

16



v. United States, supra, 322 U.S. at 673. Moreover, other

provisions of the appropriations act, such as permitting employ­
ment of employees who have "filed a declaration of intention 
to become a citizen," see, principal brief at 2, comport with 

a subjective notion of allegiance.
7. Post-Hampton Acquiescence. The legislative history 

of the appropriations act's provisions on Cambodian and 

Laotian refugees, appellees' brief at 36-38, does not address 
the "person who owes allegiance" provision. At most, the 

government again relies on some kind of assumption that aliens 

who owe allegiance by virtue of an oath are prohibited from 

employment. This is insufficient. See supra at 15. Resi­

dent aliens who swear an oath of allegiance to the United 

States, unlike other specifically exempted persons, may impair 
their allegiance to their native state. See, supra at 3, 

principal brief at 22-24. Indeed, post-Hampton legislative 

history demonstrates that Congress has had occasion to amend 
the appropriations act since Hampton, but declined to change 
the terms of the "owes allegiance" provision.

With respect to Executive Order 11935 and post-Hampton 
acquiescence, the government questions whether Congress was put 
on notice that Hampton v. Mow Sun Wong, supra, had construed 

the appropriations act in a fashion possibly contrary to con­

gressional will. The Executive Order, however, shows that the

17



President acted after Hampton to limit employment in competi­

tive service, but not excepted service, positions to "citizen [s] 

or national[s] of the United States," see, principal brief at 

33-35. In fact, President Ford's letter to the Speaker of 
the House accompanying the executive order states that:

In this regard, I am mindful that the 
Congress has the primary responsibility 
with respect to the admission of aliens 
into, and the regulation of the conduct 
of aliens within, the United States.

While I am exercising the constitu­
tional and statutory authority vested in 
me as President, a recognition of the spe­
cific constitutional authority vested in 
the Congress prompts me to urge that the 
Congress promptly address these issues.

41 Fed. Reg. 37301, 37304 (September 3, 1976). No Congres­

sional action to change the "person who owes allegiance" pro­

vision has been forthcoming.
8. Due Process. Initially, we note that the government 

apparently concedes, as it must, that the statutory provision 
should be construed to avoid doubts of unconstitutionality, 

see, principal brief at 35-37. Clearly, the constitutional 
issue is one a court should avoid because the classification of 
aliens on the basis of their national origin for employment is 

an inherently invidious form of discrimination among "a people 
gathered and to be gathered from many nations and of many 

tongues," Hurtado v. California, 110 U.S. 516, 531 (1884).

18



However, with respect to the constitutional issue, the

government argues that the mere invocation of the "flex­

ibility of the political branches" disables judicial review, 

appellees' brief at 46. If this were so, the Hampton require­

ment that "due process requires that there be a legitimate 

basis for presuming that the rule was actually intended to 

serve that [overriding national] interest," 426 U.S. at 103, 

would be effectively gutted. At minimum, Hampton stands for 

the rule that due process requires that the proper level of 
the federal government clearly articulate and assert an over­
riding national interest in derogation of rights of resident 

aliens lest there be any question that such a corrosive asser­
tion was not intended. The lower court properly applied an 

intermediate standard of review. Where, as here, the statute 
concerns employment (not foreign affairs or immigration) and 

cuts a jagged line among aliens on the basis of national origin 

(not a clear line between aliens and citizens or among aliens) 

no presumption should be exercised that "any interest which 
might rationally be served by the rule did in fact give rise 

to its adoption." 426 U.S. at 103.
In sex discrimination cases where the intermediate standard 

of equal protection review has been developed, "classifications 
... must serve important governmental objectives and must be 

substantially related to the achievement of those

19



objectives" and require "an exceedingly persuasive justifica-
24/

tion to withstand a constitutional challenge." "The burden

... is on those defending the discrimination to make out the
25/

claimed justification." See principal brief at 43-44. Where

such distinctions are made on the basis of alienage and national

origin, as well as gender, inquiry into the actual purposes of
26/

the discrimination is necessary because distinctions which

reflect outmoded notions about the role of aliens, as women, are 
27/

impermissible. Here, neither the statute, its purpose nor 
legislative history support any claim of overriding national 

interest. Nor would any of the interests asserted rationally 

be served by the discrimination set up. See, principal brief 

at 44; Otte, Aliens in the Federal Service, 10 Cornell Int.

L.J. 255, 263-267 (1977).

23/

23/ Craig v. Boren, 429 U.S. 190, 197 (1976); Reed v. Reed, 
404 U.S. 71 (1971).
24/ Personnel Administrator v. Feeney, 442 U.S. 256, 273
(1979) .
25/ Wengler v. Druggist Mut. Ins. Co., 100 S.Ct. 1540, 1546
(1980) .
26/ See, Califano v. Goldfarb, 430 U.S. 199, 212, 213 
(1977).
27/ See, e .g., Weinberger v. Wiesenfield, 420 U.S. 636, 648 
n. 16 (1975); Schlesinger v. Ballard, 419 U.S. 498, 508 
(1975).

20



Moreover, since their first enactment in 1938, the
appropriations acts' categorical exceptions have never been 

implemented by the Civil Service Commission, which has con­
sistently barred all non-national employment, see Hampton, 

supra, 426 U.S. at 105-107, 110-111, Executive Order 11935, 
or the U. S. Postal Service, the largest civilian employer, 

which before 1974 barred non-nationals like other agencies, 
and after 1974, and postal reorganization, permits employment 

of all legal permanent resident aliens. Hampton, supra,

426 U.S. at 97, 112. On their face the interests asserted 

are not overriding national interests.

21



CONCLUSION

The order and judgment of the district court should be 

reversed.

0. PETER SHERWOOD
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, N. Y. 10019 
(212) 586-8397

MARGARET FUNG
STANLEY MARK 

Suite 308 
350 Broadway 
New York, N. Y. 10013 
(212) 966-5932

STEPHEN GLEIT 
2 Mott Street 
New York, N. Y. 10013 
(212) 227-1948

Attorneys for Plaintiffs-Appellant

CERTIFICATE OF SERVICE

Undersigned counsel for plaintiff-appellant hereby certi­

fies that copies of the foregoing Reply Brief for Plaintiff- 

Appellant have been served on counsel for the parties by prepaid

22



first class U. S. mail, this 3d day of February, 1981
addressed to:

John S. Martin, Jr.
United States Attorney 

Steven E. Obus 
Peter C. Salerno
Assistant U. S. Attorneys 
One St. Andrews Plaza
New York, New

Attorney for Plaintiff-Appellant

23