Yuen v. International Revenue Service Petition for Writ of Certiorari

    No.

In the

Court of tt?c lEntteii States
October Term , 1981

Veronica Yuen,
Petitioner,

—v.—

Internal Revenue Service, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

O. Peter Sherwood*
Bill Lann Lee 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Margaret Fung 
Stanley Mark 
350 Broadway, Suite 308 
New York, New York 10013 
(212) 966-5932

A ttorneys for Petitioner

*Attorney of Record



- 1 -

Petitioner respectfully prays for a writ 

of certiorari to review the judgment of the 

United States Court of Appeals for the Second 

Circuit in this case.

QUESTIONS PRESENTED

1. Whether the Second Circuit's narrow 

interpretation of the provision "A person who

owes allegiance to the United States" in the
\

Appropriations Act, 31 U.S.C. § 699b, which 

prohibits federal employment of a majority 

of aliens, conflicts with this Court's 

decision in Hampton v. Mow Sun Wong, 426 U.S. 
88 (1976)?

2. Whether the Appropriations Act, 31 

U.S.C. § 699b, invidiously discriminates 

against some aliens over others on the basis 
of national origin, in violation of the Fifth

Amendment?



-11-

The petitioner, plaintiff-appellant below, 
is VERONICA YUEN.

The respondents, defendants-appellees 
below, are the INTERNAL REVENUE SERVICE;

GEROME KURTZ, in his capacity as Commissioner 

of the Internal Revenue Service; JOHN IMBESI, 
JOSEPH TRAGNA, H. KRAMER and CAROLE BUTLER, 

in their official capacities as agents/employees 
of the Internal Revenue Service.

LIST OF THE PARTIES



- l l l -

TABLE OF CONTENTS Page

QUESTIONS PRESENTED ...................  i
LIST OF THE PARTIES...................  ii

TABLE OF CONTENTS........................iii

TABLE OF AUTHOR I T I E S.................  iv

OPINIONS B E L O W ............    1

JURISDICTION .........................  1

STATUTORY PROVISION INVOLVED ........  2
STATEMENT OF THE C A S E .................  3

\

REASONS FOR GRANTING THE W R I T ........  7

I. THE SECOND CIRCUIT'S RESTRICT­
IVE CONSTRUCTION OF "A PERSON 
WHO OWES ALLEGIANCE TO THE 
UNITED STATES" UNDER THE APPRO­
PRIATIONS ACT, 31 U.S.C. § 699b,
IS IN DIRECT CONFLICT WITH A
PRIOR DECISION OF THIS COURT. . . 8

II. THE APPROPRIATIONS ACT, 31 
U.S.C. § 699b, VIOLATES THE 
FIFTH AMENDMENT BY INVIDIOUSLY 
DISCRIMINATING AGAINST SOME 
ALIENS OVER OTHERS ON THE 
BASIS OF NATIONAL ORIGIN........  16

C O N C L U S I O N ............................ 24

APPENDIX
Opinion of the Court of Appeals . . . A1

Opinion of the District Court . . . . A13



-iv-

TABLE OF AUTHORITIES

Edelman v. Jordan,
415 U.S. 651 (1974)............... 15

Cases Page

Hampton v. Mow Sun Wong, 
424 U.S. 88 (1976), on 
remand, 435 F. Supp. 37 
(N.D. Cal. 1977), aff'd, 
626 F.2d 739 (9th Cir. 
1980), cert, denied,
101 S. Ct. 1419 (1981).............passim

Hines v. Davidowitz,
312 U.S. 52 (1941) .................. 16

Hirabayashi v. United States,
320 U.S. 81 (1943)................. 21

Lorillard v. Pons,
434 U.S. 575 (1978)............... 13

Mathews v. Diaz,
426 U.S. 67 (1976)................. 16,18,19

21,23
Narenji v. Civiletti,

617 F .2d 745 (D.C. Cir.
1979), cert, denied,
446 U.S. 957 (1980)............... 19

Petitioner for Naturalization 
of Olegario v. United States,
629 F .2d 204 (2d Cir. 1980) . . . . 21



-v-

Ramos v. Civil Service 
Commission, 430 F. Supp.
422 (D.P.R. 1977) (three
judge c ourt)...................  19

Truax v. Raich, 239 U.S. 33
(1915)    20

Vergara v. Hampton, 581
F .2d 1281 (7th Cir. 1978), 
cert, denied, 441 U.S. 905
T1979) . . ..........................  19

Weinberger v. Wiesenfeld,
420 U.S. 636 (1975).................  23

Yassini v. Crosland, 618 F.2d
1356 (9th Cir. 1 9 8 0 ) ...............  19

\

Other Authorities

8 U.S.C. § 1101.......................  9
28 U.S.C. § 1254 (1)...................  1

28 U.S.C. § 1 3 3 1 .....................  5

28 U.S.C. § 1 3 6 1 ................. .. . 5
31 U.S.C. § 6 9 9 b .......................passim

Pub. L. No. 91-144 (1970)............. 9

Executive Order 11935,
41 Fed. Reg. 37301
(Sept. 3, 1976)...................  11,12,19

Cases Page



Other Authorities Page

5 C.F.R. § 213.3101(a)   3

5 C.F.R. § 338.101 .................  9

Rule 20.2, Supreme Court Rules . . . .  1

Rosberg, "The Protection of 
Aliens From Discriminatory 
Treatment By the National 
Government," 1977 S. Ct.
Rev. 275 ............................ 20

-vi-



-1-

OPINIONS BELOW

The decision of the United States Court 

of Appeals for the Second Circuit, No. 80-6206 

(2d Cir. May 21, 1981), not yet reported, is 
attached hereto as Appendix A. The opinion 

of the United States District Court for the 

Southern District of New York, reported at 
497 F. Supp. 1023 (S.D.N.Y. 1980), is attached 

hereto as Appendix B.

\

JURISDICTION

The judgment of the U.S. Court of Appeals 

for the Second Circuit was entered on May 21, 

1981. This petition for certiorari was filed 

within ninety days of that date, as required 

by 28 U.S.C. § 2101(c) and Rule 20.2 of the 

Supreme Court Rules. This Court's juris­

diction is invoked under 28 U.S.C. § 1254(1).



-2-

STATUTQRY PROVISION INVOLVED 

31 U.S.C. § 699b (1981 Supp.)/ codifying 
Pub. L. No. 96-74, Title VI, § 602:

Unless otherwise specified during the 
current fiscal year no part of any appro­
priation shall be used to pay the compensa­
tion of any officer or employee of the Govern­
ment of the United States (including any 
agency the majority of the stock of which is 
owned by the Government of the United States) 
whose post of duty is in continental United 
States ̂ unless such person (1) is a citizen of 
the United States, (2) is a person in the 
service of the United States on September 29, 
1979, who, being eligible for citizenship, 
has filed a declaration of intention to 
become a citizen of the United States prior 
to such date and is actually residing in the 
United States, (3) is a person who owes 
allegiance to the United States, (4) is an 
alien from Cuba, Poland, South Vietnam, or 
the Baltic countries lawfully admitted to 
the United States for permanent residence, or 
(5) South Vietnamese, Cambodian and Laotian 
refugees paroled into the United States be­
tween January 1, 1975, and September 29, 1979: 
Provided, That for the purpose of this section, 
an affidavit signed by any such person shall 
be considered prima facie evidence that the 
requirements of this section with respect to 
his status have been complied with: Provided
further That any person making a false affi­
davit shall be guilty of a felony, and, upon 
conviction, shall be fined not more than 
$4,000 or imprisoned for not more than one 
year, or both: Provided further, That the
above penal-clause shall be in addition to, 
and not in substitution for any other pro­
visions of existing law: Provided further,
That any payment made to any officer or 
employee contrary to the provisions of this



-3-

section shall be recoverable in action by the 
Federal Government. This section shall not 
apply to citizens of Israel, the Republic of 
the Philippines or to nationals of those 
countries allied with the United States in 
the current defense effort, or to temporary 
employment of translators, or to temporary 
employment in the field service (not to 
exceed sixty days) as a result of emergencies.

STATEMENT OF THE CASE 

Petitioner Veronica Yuen was born in 

China and is an alien lawfully admitted for 

permanent residence in the United States. In 
April 1980, while completing her second year 

at Brooklyn Law School, petitioner applied
* /for a GS-7 excepted civil service position— 

as a legal research assistant in the Appeals 

Office of the Internal Revenue Service 

[hereinafter "IRS"], located in New York City. 

Her duties were to assist Appeals Officers in 
researching tax issues and other case-related 

technical support activities. Although the

*/ Excepted civil service positions are those 
which are not filled by competitive examina­
tion. 5 C.F.R. § 213.3101(a).



-4

job advertisement did not state that aliens 

were barred from employment, petitioner 

disclosed her lawful permanent resident 

status both in her application and at the 
employment interview.

On May 29, 1980, John Imbesi, Associate 

Chief of the New York City Appeals Office of 
the IRS, orally offered petitioner the 

position, to begin June 2, 1980. She was to 
work full time during the summer and part 

time during her third academic year. Peti­

tioner obtained a release from a prior employ­

ment commitment, called Mr. Imbesi and accepted 

the offer. Later that day, an IRS represen­

tative called and left word that the offer 

was rescinded because petitioner was not a 

United States citizen. The IRS's sole basis 
for withdrawing her employment offer was 

section 699b of the Appropriations Act, since 

IRS stood ready to appoint her to the position 
should she prevail in the litigation.



-5-

Petitioner executed the following affi­

davit bearing her oath of allegiance to the 

United States:

I, Veronica Yuen, do solemnly 
swear (or affirm) that I will 
support [and] defend the Con­
stitution of the United States 
against all enemies, foreign 
and domestic; that I will bear 
true faith and allegiance to 
the same. So help me God.

On June 4, 1980, she filed an action in 

federal district court, pursuant to 28 U.S.C. 
§§ 1331, 1361 and the Fifth Amendment of the 

United States Constitution, against the IRS 

and named officials because they denied her 

employment due to her alienage. She sought 

$10,000 in damages and an order to hire her.

The district court conceded that in 

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

this Court clearly decided that aliens are 

eligible for federal employment under the 

same provision contained in similarly-worded 

predecessor appropriations acts. Nonetheless, 
the district court declined to follow Hampton



-6-

and instead relied upon obscure excerpts of 

pre—Hampton legislative history to conclude 
that aliens, such as petitioner, are barred 

from federal employment. With respect to the 

constitutional issue, the district court 

correctly applied an intermediate equal 

protection standard but found that the statu­

tory classification drawn by Congress further­
ed sufficiently important governmental 

interests to satisfy Fifth Amendment due 

process requirements. Summary judgment was 
granted in favor of defendants, and the 

complaint was dismissed. On appeal, the 

Second Circuit Court of Appeals affirmed for 

the reasons set forth in the district court's 
opinion.



-7-

REASONS FOR GRANTING THE WRIT 

The Second Circuit's decision--the only- 

reported opinion interpreting the Appropria­

tions Act--involves the important question of 

the extent to which Congress may discriminate 

against legal permanent resident aliens in 

federal employment.

Viewed as a matter of statutory con­

struction, the decision below conflicts with

this Court's decision in Hampton v. Mow Sun
\

Wong, supra, which ruled that aliens may take 

an oath of allegiance and be eligible for 

federal employment.
However, if the Appropriations Act is 

construed to exclude aliens from federal 

employment, this Court is squarely presented 

with the constitutional question left open 

in Hampton: whether a congressional ban on

the employment of aliens by the federal 

government violates equal protection prin­

ciples encompassed in the Fifth Amendment.

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



-8

at 114, 117 (Brennan and Marshall, JJ., 

concurring). If the constitutional issue is 

reached, this case provides the Court with an 

opportunity to clarify the standard by which 

congressional action limiting the rights of 

aliens should be reviewed under the Fifth 
Amendment.

I. THE SECOND CIRCUIT'S RESTRICTIVE 
CONSTRUCTION OF "A PERSON WHO 
OWES ALLEGIANCE TO THE UNITED 
STATES" UNDER THE APPROPRIATIONS 
ACT, 31 U.S.C. § 699b, IS IN 
DIRECT CONFLICT WITH A PRIOR 
DECISION OF THIS COURT.

In Hampton v. Mow Sun Wong, supra, this 

Court conclusively construed the term "A 

person who owes allegiance to the United 

States" to include aliens who take an oath 

of allegiance. At issue in Hampton was a 

Civil Service Commission [hereinafter "CSC"] 

regulation which provided that a person could 

be appointed to a competitive civil service 

position "only if he is a citizen of or owes 

permanent allegiance to the United States,"



-9-

5 C.F.R. §338.101(1976)— i.e., a citizen
* /or a noncitizen national- of the United 

States.

Plaintiffs in Hampton argued that the 

regulation was inconsistent with section 502 

of Pub. L. No. 91-144 (1970), a substantially 

similar predecessor of the Appropriations 
Act here, which provided that appropriated

funds could only be paid to a citizen or "a
\

person who owes allegiance to the United 

States." 333 F. Supp. 527, 530, 531 (N.D. 

Cal. 1971); 426 U.S. at 93, n.6 and accom­

panying text.

This Court invalidated the regulation 

under the Fifth Amendment's due process 

clause, holding that "[s]ince these residents 

were admitted as a result of decisions made 

by the Congress and the President . . . due

process requires that the decision to impose

V  A "national" is defined as "a person 
owing permanent allegiance to a state."
8 U.S.C. § 1101 (1980).



10-

that deprivation of an important liberty be 

made . . .  at a comparable level of govern­
ment . . . ." 426 U.S. at 116. Central to 

this holding was a careful review of the 

language, purpose and legislative history of 
appropriations acts since 1938 and, specifi­

cally, the "owes allegiance" provision at 

issue here. See id. at 107-12. This Court 

thus concluded: "Congress has regularly

provided for compensation of any federal 

employee owing allegiance to the United States. 

Since it is settled that aliens may take an 

appropriate oath of allegiance, the statutory 

category, though not precisely defined, is 

plainly more flexible and expansive than the 

Commission rule." Id. at 110. Since this 

Court decided the statutory question at issue 

in this case, principles of stare decisis

should control.



-11-

Moreover, Congress has demonstrated its 

acquiescence in the clear holding of Hampton 

by failing to modify the terms of the Appro­

priations Act to exclude aliens who take an 

oath of allegiance.
After Hampton was decided, the President 

issued Executive Order 11935 of September 2, 

1976, which states that no "person" shall be 

admitted to competitive examination or given 
any appointment in the competitive service 

"unless such person is a citizen or national 

of the United States," except that the Commis­

sion may "authorize the appointment of aliens 

to positions in the competitive service when 

necessary to promote the efficiency of the 

service in specific cases or for temporary 

appointments. 41 Fed. Reg. 37301 (Sept. 3, 

1976). At the time, the President stated:

"In its decision, the Court stated that either 

Congress or the President might issue a broad 

prohibition against the employment of aliens 

in the civil service, but held that neither 

Congress nor the President had mandated the



-12-

general prohibition." Letter of the President 

to the Speaker of the House, accompanying 

Executive Order 11935 of September 2, 1976.

41 Fed. Reg. 37301, 37303 (September 3, 1976). 

Both the executive order and the letter refer 

specifically to the "competitive service."

However, neither the President nor 

Congress has changed the terms of the yearly 

appropriations act or otherwise affected the 

status of the excepted service, such as the 

position sought by petitioner. Thus, although 

the appropriations acts clearly apply to both 

competitive and excepted service, see pp. 2-3 

supra, Congress has acquiesced in the con­

struction of the appropriations act given by 

Hampton as to excepted service positions, and 

reenacted the act as construed by Hampton. 

Plainly, Congress or the President knew of 

Hampton and could have acted to modify the 

terms of the appropriations act if they desired 

to because the President did, in fact, act as 

to competitive positions.



-13-

Since "Congress is presumed to be aware of 
. , . [a] judicial interpretation of a statute

and to adopt the interpretation when it re­
enacts a statute without change," Lori Hard 

v. Pons, 434 U.S. 575, 580-81 (1978) and 

authorities cited therein, it is clear that 

Hampton remains controlling authority with 

respect to this case.
The Second Circuit's characterization 

of dispositive passages in Hampton as dicta 

was erroneous for a number of reasons.

First, this Court necessarily relied upon 

the "owes allegiance" provision of that 

appropriations act in determining that the 

class of persons eligible for employment 

under the statute was broader than the class 

eligible under the CSC regulation. Hampton
held that the statute is "plainly more 

flexible and expansive" than the CSC rule



-14 -

precisely because "Congress has regularly 

provided for compensation of any federal 

employee owing allegiance to the United 

States" and "it is settled that aliens 

may take an appropriate oath of allegiance." 
Id. at 109-10.

Second, the statutory question was

clearly decided since the Hampton plaintiffs

in fact had standing only to challenge the

impermissible narrowing of the "owes

allegiance" provision. It appears that

the Hampton plaintiffs were not eligible

for employment under any other statutory 
* /classification,- and two of the plaintiffs 

filed affidavits swearing allegiance to the 
United States, thereby confirming their

*_/ The other classifications included 1) citi­
zens; 2) certain persons declaring their intent 
to become citizens; 3) certain aliens from Cuba, 
Poland, South Vietnam, or the Baltic countries; 
4) certain Southeast Asian refugees; 5) citizens 
of Israel, the Philippines or nationals of 
countries allied in the "current defense effort" 
or emergency temporary service. See pp. 2-3 
supra.



-15-

standing to challenge the "owes allegiance" 

provision.

The controlling effect of Hampton on 
the statutory question in this case is further 

supported by the fact that it was decided 

only after this Court's thorough review of 

the language, legislative history and Presi­
dential interpretation of the "owes allegiance" 

provision. Id. at 108-11. Since this 

question was not decided in a summary 

fashion, compare with Edelman v. Jordan,

415 U.S. 651, 670-71 (1974), the doctrine 

of stare decisis bans relitigation of 

settled law that an alien who takes an 
oath of allegiance is considered "a person 
who owes allegiance to the United States" 

and thus is eligible for federal employment.



-16-

II. THE APPROPRIATIONS ACT,
31 U.S.C. § 699b, VIOLATES 
THE FIFTH AMENDMENT BY 
INVIDIOUSLY DISCRIMINATING 
AGAINST SOME ALIENS OVER 
OTHERS ON THE BASIS OF 
NATIONAL ORIGIN.

This Court has stated that Congress 

has broad power to restrict the rights of 

aliens residing in this country. See, e.g., 

Hampton v. Mow Sun Wong, supra, 426 U.S. at 

118; Mathews v. Diaz, 426 U.S. 67, 81-82 

(1976); Hines v. Davidowitz, 312 U.S. 52, 

69-70 (1941). While judicial scrutiny of 

federal governmental action in this area 

is admittedly narrow, the full reach of 

the equal protection component of the Fifth 

Amendment's due process clause has



-17-

not been precisely defined, and the standard 

of review for federal classifications based 

on alienage remains obscure.

In Hampton v. Mow Sun Wong, supra, this 

Court noted that "overriding national interests 

may provide a justification for a citizenship 

requirement in federal service even though an 

identical requirement may not be enforced by

a State." 426 U.S. at 101. The Court none-%
theless recognized certain limits upon 
federal power and thus cautioned that "[w]e do 

not agree, however, with the petitioners' 

primary submission that the federal power 

over aliens is so plenary that any agent of 
the National Government may arbitrarily sub­

ject all resident aliens to different sub­
stantive rules from those applied to citizens." 
Ih. However, with respect to an express 

Congressionally-mandated rule, i.e., a statute, 
the Court stated that it "might presume that 

any interest which might rationally be served 

by the rule did in fact give rise to its



-18-

adoption." Id. at 103 (emphasis added). No 

indication was given as to the particular 

considerations that would govern such a pre­
sumption .

Mathews v. Diaz, supra, decided on the 

same day as Hampton, involved a federal 

regulation that discriminated within

the class of aliens by restricting Medicare 

benefits to aliens who were admitted for 

permanent residence and who had continuously 

resided in the United States for five years. 

Applying an apparently more relaxed standard 

than in Hampton, this Court upheld these 

eligibility requirements affecting only 

certain aliens since neither requirement was 
"wholly irrational." 426 U.S. at 83.

The instant case raises a question 

regarding federal alienage classifications 
that differs substantially from other cases 

previously decided by this Court. Unlike 
Hampton v. Mow Sun Wong, supra, and its



-19-

* /progeny,— the issue here does not involve 

a provision that draws a clear unvarying line 

between citizens and all aliens. Nor does 

the Appropriations Act make distinctions 

within a class of aliens on the basis of a 

neutral dividing line, such as the residency 

requirement in Mathews v. Diaz, supra. In 

addition, the Appropriations Act does not

constitute a direct exercise of Congress's
%

plenary power to admit and exclude aliens 

or to implement foreign policy decisions.

See, e.g., Yassini v. Crosland, 618 F.2d 1356 

1360 (9th Cir. 1980) (upholding revocation 

of deferred departure dates for Iranian 
nationals under deportation orders); Naren]i

*/ See, e.g., Hampton v. Mow Sun Wong, 435 
F. Supp. 37 (N.D. Cal. 1977), aff'd, 626 F .2d 
739 (9th Cir. 1980), cert, denied, 101 S. Ct. 
1419 (1981) (on remand); Vergara v. Hampton, 
581 F .2d 1281 (7th Cir. 1978), cert, denied, 
441 U.S. 905 (1979); Ramos v. Civil Service 
Commission, 430 F. Supp. 422 (D.P.R. 1977)
(three judge court) (upholding constitutional 
ity of Executive Order 11935).



-20-

v. Civiletti, 617 F.2d 745, 747 (D.C. Cir.

1979), cert, denied, 446 U.S. 957 (1980) 

(upholding reporting requirements applied 

only to Iranian nationals). See generally 

Rosberg, "The Protection of Aliens From 

Discriminatory Treatment by the National 
Government," 1977 Sup. Ct. Rev. 275.

Instead, the Appropriations Act creates 
distinctions that permit federal employment 

of specifically-exempted aliens, defined by 
their national origin,-' but deprives all 

other aliens of an important interest in 

liberty.—  Such distinctions based on 

national origin have long been acknowledged 

to be "odious to a free people whose institu­

tions are founded upon the doctrines of

*/ See pp. 2-3 supra for enumerated categories 
of exempted aliens.
**/ This Court acknowledged in Hampton that 
"ineligibility for employment in a major sector 
of the economy [the federal government] . . . 
is of sufficient significance to be character­
ized as a deprivation of an interest in liberty. 
426 U.S. at 102. See also Truax v. Raich, 239 
U.S. 33, 41 (1915)“ “



-21-

equality." Hirabayas'hi vY United States, 320 

U.S. 81, 100 (1943). Where, as here, Congress 

selectively deprives certain aliens of a sig­

nificant liberty interest under the due process 

clause on the basis of national origin, a 

higher level of judicial scrutiny should be 

required or, at minimum, a more clearly arti- 

culated standard than the vague criteria set 

forth in Hampton and Mathews.
* /Whatever standard of review xs applied, 

the Second Circuit erroneously concluded that 

section 699b rationally furthers the federal 

interests asserted by the government below.
In support of its position, respondents con­

tended that the statutory provision gives the 

President a bargaining chip in negotiating 
defense alliances, encourages naturalization

and provides Congress with an expendable
**7 While the district court in the instant 
case applied an intermediate equal protection 
standard, 497 F. Supp. 1023, 1037-39; accord, 
Mow Sun Wong v. Hampton, 435 F. Supp. 37 (N.D, 
Cal. 1977) (on remand)'';' Petition for Naturali­
zation of Olegario v.' United States, 629 F . 2d 
204 (2d Cir. 1980), the Second Circuit did not 
decide what standard of review is appropriate. 
No. 80-6206 (2d Cir. May 21, 1981), slip op. 
at 3142.



-22-

foreign policy token— justifications which, 

not surprisingly, coincide precisely with 

what this Court posited in Hampton as possible 

legitimate governmental interests. 426 u.S. at 104, 
Even assuming that the federal interests 

asserted are bona fide, the actual categories 

of aliens exempted by the statute are either 
underinclusive or overinclusive as implemen­

tation of the interests asserted. First, 

there is no evidence on the face of the Appro­

priations Act or its legislative history 

which demonstrates that, for instance, offer­

ing federal employment to Cuban or Polish 
lawful permanent resident aliens but not to, 

say, Czech or Soviet permanent resident aliens 

would serve as a "bargaining chip" or "token."

Nor is there any demonstration that federal 

employment would be a better "bargaining chip" 

or "token" than the refusal to hire certain 
aliens (thus avoiding possible "brain drain" 

in those countries). Moreover, it is difficult 

to perceive how naturalization is encouraged



-23-

by exempting some but not all aliens on a 

basis having nothing to do with what an 

individual himself or herself could affect. 

Finally, if a purpose of the Appropriations 

Act is to prohibit federal employment of 

persons who have not renounced their allegiance 

to a foreign country, the statute does not 

accomplish this goal; it allows Israeli and 

Filipino citizens and certain aliens to qualify 
for federal civil service positions.

As this Court stated in Weinberger v. 

Wiesenfeld, 420 U.S. 636, 648 (1975), "(T]he 

mere recitation of a benign . . . purpose is

not an automatic shield which protects 

against any inquiry into the actual purpose 

underlying a statutory scheme." The skeletal 

standard set forth in Hampton and Mathews 

fails to permit any meaningful analysis of 

actual governmental interests furthered by 

the statutory provision and thereby allows 
discriminatory federal legislation to stand 

on mere hypothetical justifications. Given



-24-

the invidious nature of national origin classi­

fications , the federal government should carry 

a heavier burden to justify such distinctions 

within the class of aliens. By reviewing this 

case on certiorari, this Court can clarify the 

degree to which Congress may restrict fundamen­
tal rights of permanent resident aliens under 

the Fifth Amendment.

CONCLUSION

For the reasons set forth above, a writ 

of certiorari should issue to review the 
judgment below.

Respectfully submitted,

0. PETER SHERWOOD*
BILL LANN LEE
10 Columbus Circle, Suite 2030 
New York, New York 10019 
(212) 586-8397

MARGARET FUNG 
STANLEY MARK
Asian American Legal Defense 

and Education Fund 
350 Broadway, Suite 308 
New York, New York 10013 
(212) 966-5932
Attorneys for Petitioner
*Attorney of Record

Dated: New York, New York
August 17, 1981



A P P E N D I X



A1

U N IT ED  STATES CO U RT OF A PPE A LS

For the Second C ircuit 

----------- —--------- .

No. 858— September Term, 1980 

(Argued February 18, 1981 Decided May 21, 1981)

Docket No. 80-6206

------ *■------
Veronica Yuen,

Plaintiff-Appellant,

Internal R evenue Service, G erome Kurtz, in his ca­
pacity as Commissioner of the Internal Revenue Ser­
vice; John Imbesi, J oseph T ragna, H. Kramer and 
C arole Butler, in their official capacities as agents/ 
employees o f  the Interna! Revenue Service,

Defendants-Appellees.

B e f o r e :
Van G raafeiland and Kearse, Circuit Judges, 

and Stewart,* District Judge.

---------------

Honorable Charles E. Stewart, of the United States District Court 
for the Southern District of New York, sitting by designation.

3131



A 2

Appeal from a final judgm ent of the United States 
District Court for the Southern District o f  New York, 
Leonard B. Sand, Ju d g e , 497 F. Supp. 1023, dismissing a 
complaint challenging the denial of federal employment 
to a resident alien under 31 U .S.C. § 699b.

Affirmed.
-------*-------

Bill Lan Lee , New York, New York 
(Margaret Fung, Stanley M ark, Stephen 
Gleit, O. Peter Sherwood, New York, 
New York, of counsel), f o r  P la in t i f f - A p ­
p e lla n t.

Steven E. O bus, Assistant United States 
Attorney, New York, New York (John S. 
Martin, Jr., United States Attorney for 
the Southern District o f  New York, Peter 
C. Salerno, Assistant United States 
Attorney, New York, New York, of coun­
sel), f o r  D e fe n d a n ts -A p p e lle e s .

-------«-------

Kearse, C ircu it J u d g e :

Plaintiff-appellant Veronica Yuen appeals from a final 
judgm ent of the United States District Court for the 
Southern District of New York, Leonard B. Sand, Ju d g e , 
dismissing her complaint against the United States In­
ternal Revenue Service (“ IRS” ) and certain o f  its employ­
ees for denial o f  employment with IRS. IRS refused to 
employ Yuen on the ground that a statutory provision 
entitled “ Citizenship requirement for federal employees 
compensated from appropriated funds,” codified at 31 
U .S.C . § 699b (Supp. Ill 1979) (hereinafter, together with

3132



A 3

its predecessor statutes, referred to as the “A ppropria­
tions A c t” or the “ A ct” ), prohibits employment by the 
federal government of persons other than United States 
citizens and certain groups of noncitizens that IRS con­
tends do not include Yuen. Yuen contended that the 
proper construction of the Act does not, and could not 
constitutionally, exclude her from employment. The dis­
trict court upheld IR S’s interpretation of the Act and 
ruled that the Act, as construed, does not deprive Yuen of 
the equal protection of the law. We agree.

BACKGROUND

The case involves the interpretation and constitutional­
ity of 31 U .S.C. § 699b which, in effect, prohibits the 
federal government from employing in the continental 
United States any person

unless such person (1) is a citizen of the United 
States, (2) is a person in the service of the United 
States on September 29, 1979, who, being eligible for 
citizenship, has filed a declaration of intention to 
become a citizen o f  the United States prior to such 
date and is actually residing in the United States, (3) 
is a person who owes allegiance to the United States, 
(4) is an alien from Cuba, Poland, South Vietnam, 
or the Baltic countries lawfully admitted to the 
United States for permanent residence, or (5) South 
V ietnamese, C am bodian  and Laotian  refugees 
paroled into the United States between January 1, 
1975, and September 29, 1979 . . . .'

1 31 U.S.C. § 699b provides:

Unless otherwise specified during the current fiscal year no part 
of any appropriation contained in this or any other Act shall be

3133



A 4

The relevant facts were stipulated and are set forth in 
greater detail in the district cou rt’s opinion, reported at 
497 F. Supp. 1023, familiarity with which is assumed. 
Briefly, Yuen is a Chinese citizen, permanently residing in 
the United States, who in April 1980 applied for employ­
ment with the IRS. IRS offered Yuen a position, and she 
accepted the offer on the same day, after terminating 
other employment. Later that day, IRS realized that Yuen 
was a citizen o f  China rather than the United States (a 
fact disclosed on her written application). Believing that 
§ 699b barred its employment of Yuen, IRS promptly 
informed her that citizenship was required for the posi­
tion she had sought (a fact not disclosed in IRS’s solicita­
tion o f  applications), and that she was therefore not to 
report for work with IRS.

Yuen commenced the present action, alleging breach of 
contract and violation o f  her rights to equal protection

used to pay the compensation of any officer or employee of the 
Government of the United States (including any agency the major­
ity of the stock of which is owned by the Government of the United 
States) whose post of duty is in continental United States unless 
such person [is in one of the five categories quoted in the text 
accompanying this footnote]: Provided, That for the purpose of 
this section, an affidavit signed by any such person shall be 
considered prima facie evidence that the requirements of this 
section with respect to his status have been complied with: Provided 
further, That any person making a false affidavit shall be guilty of a 
felony, and, upon conviction, shall be fined not more than $4,000 
or imprisoned for not more than one year, or both: Provided 
further, That the above penal-clause shall be in addition to, and not 
in substitution for any other provisions of existing law: Provided 
further, That any payment made to any officer or employee con­
trary to the provisions of this section shall be recoverable in action 
by the Federal Government. This section shall not apply to citizens 
of Israel, the Republic of the Philippines or to nationals of those 
countries allied with the United States in the current defense effort, 
or to temporary employment of translators, or to temporary em­
ployment in the field service (not to exceed sixty days) as a result of 
emergencies.

3134



A 5

and due process. The complaint sought $10,000 in d am ­
ages and an injunction compelling IRS to hire Yuen.

A fter commencing the action, Yuen executed an affi­
davit which stated as follows:

I, Veronica Yuen, do solemnly swear (or affirm) 
that I will support [and] defend the Constitution of 
the United States against all enemies, foreign and 
domestic; that 1 will bear true faith and allegiance to 
the same. So help me God.

Yuen contends, and IRS disputes, that on the basis of this 
affidavit she “ is a person who owes allegiance to the 
United States” within the meaning of category (3) of 
§ 699b.2 In support of her position, Yuen pointed to the 
opinion of the Supreme Court in H a m p to n  v. M o w  S u n  
W ong, 426 U.S. 88 (1976), in which, while ruling on the 
constitutionality of certain regulations of the United 
States Civil Service Commission (“C SC ” or “Comm is­
s ion”), the Court stated as follows:

Congress has regularly provided for compensation of 
any federal employee owing allegiance to the United 
States. Since it is settled that aliens may take an 
appropria te  oath of allegiance, the statutory cate­
gory, though not precisely defined, is plainly more 
flexible and expansive than the Commission rule.

Id . at 109 (footnote omitted). Yuen argued that she was 
entitled to judgment on the basis of this language, plus 
the provision in § 699b that “ for the purpose of this

Finding that IRS would have refused to hire Yuen even if she had 
executed such an affidavit prior to the decision on her application, the 
district court properly declined to base its decision on the technical 
ground that Yuen apparently did not “owe [ ] allegiance” to the
United States at the time she was rejected.

3135



A 6

section, an affidavit signed by any such person shall be 
considered prima facie evidence that the requirements of 
this section with respect to his status have been complied 
with . . . Alternatively, she argued that if the statute 
were construed to bar her employment, it impermissibly 
distinguished among aliens on the basis of their nationali­
ties, in violation o f  the Equal Protection Clause o f  the 
Constitution.

In an able opinion, Judge Sand granted summary 
judgm ent dismissing the complaint. He held, first, that 
the dicta in H a m p to n  did not foreclose inquiry into the 
meaning of § 699b(3), 497 F. Supp. at 1028; second, that 
the language and legislative history of that section, rein­
forced by the history o f  similar language in other s ta tu­
tory provisions, led to the conclusion that the phrase “ a 
person who owes allegiance to the United States” was 
intended to mean a noncitizen national of the United 
States rather than a nonnational alien who merely exe­
cutes an affidavit, id. at 1035-36; and finally, that C on­
gress’s restriction on federal employment of aliens had a 
sufficient relationship to appropriate congressional con­
cerns that it did not violate the Constitution, id. at 1040.

DISCUSSION

We affirm principally on the basis of the district cou rt’s 
thorough opinion, which we adopt, and content ourselves 
here with a few observations.

A. H a m p to n  v. M o w  S u n  W ong

We agree with the district court that H a m p to n  v. M o w  
S u n  W ong, su p ra , did not definitively resolve the question 
presented here, and that the Supreme C o u rt’s observa­
tions with respect to the Appropriations Acts neither were

3136



A 7

nor were intended to be dispositive of the meaning of 
“ owes allegiance.”

In H a m p to n ,  several resident aliens challenged the 
constitutionality of a CSC regulation that permitted a 
civil service appointment only if the candidate was “a 
citizen of or owe[d] permanant allegiance to the United 
States.” 5 C.F.R. § 338.101 (1976). After first concluding 
that the question before it was the validity o f  a CSC 
regulation rather than the validity of a s ta tu te ,3 * 5 426 U.S. 
at 98-105, the Supreme Court sought to determine 
whether there had been Congressional approval or disap­
proval of C SC ’s citizenship/nationalism requirement. In 
so doing it reviewed the then-current and four prior 
A ppropriations Acts, whose “owes allegiance” provisions 
are identical to category (3) o f  the current § 699b. The 
C ourt found that the limitations on federal employment 
provided by Congress in the Acts gave rise to conflicting 
inferences as to whether or not the CSC rule was author­
ized:

In the District Court respondents argued that the 
exemptions from the limitations included in the A p­
propriations Acts had become so broad by 1969 as to 
constitute a congressional determination of policy 
repudiating the narrow citizenship requirement in the 
Commission rule. Though not controlling, there is 
force to this argument. On the other hand, the fact

3 The Court had granted certiorari on the question:

Whether a regulation of the [CSC] that bars resident aliens from 
employment in the federal competitive civil service is constitutional.

426 U.S. at 98-99. The defendants had devoted their argument instead 
to the proposition that the CSC regulation was “within the constitu­
tional powers of Congress and the President and hence not a constitu­
tionally forbidden discrimination against aliens.” Id. at 99.

3137



A 8

that Congress repeatedly identified citizenship as one 
appropria te  classification o f  persons eligible for com ­
pensation for federal service implies a continuing 
interest in giving preference, for reasons unrelated to 
the efficiency of the federal service, to citizens over 
aliens. In our judgm ent, however, that fact is less 
significant than the fact that Congress has consis­
tently authorized payment to a much broader class of 
potential employees than the narrow category of 
citizens and natives o f  American Samoa eligible un ­
der the Commission rule. Congress has regularly 
provided for compensation o f  any federal employee 
owing allegiance to the United States. Since it is 
settled that aliens may take an appropria te  oath of 
allegiance, [citing In  re G r iff i th s ,  413 U.S. 717, 726 
n.18 (1973)], the statutory category, though not pre­
cisely defined, is plainly more flexible and expansive 
than  the Commission rule. Nevertheless, for present 
purposes we need merely conclude that the A ppro ­
priations Acts cannot fairly be construed to evidence 
either congressional approval or disapproval of the 
specific Commission rule challenged in this case.

Id . at 109-110.
We agree with the district cou rt’s conclusion that the 

Supreme C o u r t’s discussion of the “ owes allegiance” 
provision in the passage quoted above is not an au thori ta ­
tive construction necessary to the C o u r t’s determination 
o f  the validity o f  the CSC regulation. First, the Court did 
not purport to give a definitive interpretation of “ owes 
allegiance” ; rather, it stated that the statutory category of 
those owing allegiance was “ not precisely defined.” Id . at 
109 (majority opinion); id. at 126 (Rehnquist, J . ,  dissent­
ing). Moreover, although Yuen argues that the discussion

3138



A 9

of “ owes allegiance” was essential to the decision because 
the H a m p to n  plaintiffs were not eligible for federal em­
ployment under any other category of the Appropriations 
Act, we note that the meaning o f  “owes allegiance” was 
not considered an issue by the parties. The plaintiffs in 
H a m p to n  made no assertion that they qualified under the 
“ owes allegiance” provision, 426 U.S. at 126 (Rehnquist, 
J . ,  dissenting); and the Commission, for its part, did not 
assert that employment of the plaintiffs was barred by the 
A ppropriations Act. The Appropriations Acts were not 
listed by the parties as relevant statutory provisions; and 
none o f  the briefs, including the three a m ic u s  briefs filed, 
argued the meaning o f  the phrase “ owes allegiance.” 
Finally, it is clear that the decision of the case did not turn 
on a construction of “owes allegiance” favorable to the 
plaintiffs, since only two of the plaintiffs executed affi­
davits stating that they owed allegiance, and the C o u r t’s 
judgm ent did not distinguish between the two who had 
done so, and those who had not. The CSC regulation was 
held invalid as to all o f  them, and the basis of the 
invalidity was not the Appropriations Acts: the Court had 
concluded that those Acts could not fairly be construed as 
either approval or disapproval of the CSC rule in issue.

Consequently, we concur that the Supreme C ou rt’s 
discussion of “ owes allegiance” in H a m p to n  was dictum, 
and that the district court was bound to make its own 
inquiry into the meaning o f  the language.

B. C o n g r e s s ’s  In te n t

We agree generally with the district cou rt’s analysis of 
the language and history o f  § 699b(3), and make the 
following observations.

Yuen relies in part on H a m p to n  for the proposition that 
an affidavit such as she has executed here meets the

3139



A10

statutory requirement for p roof that she “owes alle­
giance” to the United States. In H a m p to n ,  the Court 
stated that “ it is settled that aliens may take an appropri­
ate oath of allegiance,” 426 U.S. at 109, citing In  re 
G r if f i th s ,  413 U.S. 717, 726 n.18 (1973), in which the 
C ourt had rejected the proposition that only a citizen 
could in good faith take an oath to support the Constitu­
tion, and had held that a state may not restrict an 
individual from practicing law on the basis o f  alienage. 
The proposition that an alien may in good faith take an 
appropria te  oath of allegiance to the United States, how­
ever, does not compel the conclusion that Congress in­
tended a conclusory oath to suffice to establish an alien as 
a person who “ owes allegiance” to the United States, for 
purposes of federal employment. Thus, the language of 
H a m p to n  and the ruling in G r if f i th s  do not dispose o f  the 
question at issue here, which is not who may take an 
oath , but rather what Congress meant by “ owes alle­
giance.”

The intendment of category (3) must be assessed in 
light o f  Congress’s overall purpose in enacting § 699b. 
S ee  K o k o s z k a  v. B e lfo rd , 417 U.S. 642, 650 (1974). 
Contrary  to Yuen’s suggestion that the “ overall statutory 
purpose” of the Appropriations Act was to authorize 
federal employment of a much broader class o f  potential 
employees than citizens and other nationals, we agree 
with the district co u r t’s view that the o vera ll purpose of 
the Act was restrictive.4 As originally proposed, the Act 
would have limited federal employment strictly to citi-

The district court did not err by testing this conclusion against 
analogous or related statutes since other statutes “not strictly in pari 
materia but employing similar language and applying to similar per­
sons, things, or cognate relationships may control by force of anal­
ogy.” Stribling v. United States, 419 F.2d 1350, 1352 (8th Cir. 1969).

3140



A l l

zens. 83 Cong. Rec. 357, 713 (1938). Although that 
proposed exclusivity was relaxed, the tenor of the statute 
remains restrictive. The Act is phrased in negative terms: 
it provides that no federally appropriated moneys may be 
used to employ anyone who is not within the groups 
listed. The congressional debate with respect to the “ owes 
allegiance” category evinced concern for only limited 
groups of aliens— most notably the Filipinos—who by- 
virtue of their status, owed allegiance to the United 
States. And the subsequently added special categories of 
§ 699b, apparently enacted in response to international 
political situations, have extended federal employability 
to aliens from only specified countries, such as Poland, 
Pub. L. No. 87-125, 75 Stat. 268, 282 (1961); Cuba, Pub. 
L. No. 93-143, 87 Stat. 510, 525 (1973); South Vietnam, 
Pub. L. No. 94-91, 89 Stat. 441, 458 (1975); and C am bo­
dia and Laos, Pub. L. No. 95-429, 92 Stat. 1001, 1015 
(1978). Congressional debate surrounding certain o f  these 
special extensions reveals a belief that such extensions are 
the only means by which such an alien may obtain federal 
employment. Thus, in arguing in favor of the most recent 
exception for Cam bodian and Laotian refugees, C on­
gressman Steed stated that “ [w ithou t this waiver, even 
though they do come in legally as refugees, they would 
not be allowed to work for the Federal Governm ent.” 124 
Cong. Rec. H. 11439 (1978).

In short, we do not find support for the proposition 
that Congress intended to allow the mere execution o f  an 
affidavit promising allegiance to convert any and every 
alien into a person who “ owes allegiance” to the United 
States within the meaning of § 699b.5

5 Cf. Woodward v. Rogers, 344 F. Supp. 974, 984 (D.D.C. 1972), 
a ff’d, 486 F.2d 1317 (D.C. Cir. 1973) (table), construing the phrase 
“owing allegiance” in the passport law, 22 U.S.C. § 212:

(footnote continued)
3141



A 1 2

C. The Constitutional Question

The district court ruled that § 699b, as interpreted to 
deny federal employment to aliens whose sole claim o f  
employability under § 699b was the execution o f  an 
affidavit swearing allegiance, did not deny Yuen equal 
protection o f  the law because it sought to further app ro ­
priate congressional goals. Yuen argues that although the 
court correctly chose an “ intermediate” standard of re­
view of the propriety of Congress’s classifications, it 
erred in its conclusions that the statute evinced proper 
congressional concerns. IRS, on the other hand, while 
approving the district court’s conclusion, argues that only 
minimal judicial scrutiny o f  Congress’s actions was 
appropria te  and that § 699b must be upheld if it has any 
rational basis.

While there is contemporaneous support for both posi­
tions as to the standard of review, compare Hampton v. 
M ow Sun Wong, supra (because CSC regulation deprived 
aliens of a liberty interest, “ some judicial scrutiny o f  the 
deprivation is mandated by the C onstitu tion” ), 426 U.S. 
at 103, with Mathews v. Diaz, 426 U.S. 67, 82, 83 (1976) 
(under “ narrow standard of review,” Medicare benefit 
restrictions based on alienage were upheld where not 
“ wholly irrational”), we see no need to decide which 
standard o f  review was required here. Even under the 
intermediate review used by the district court, we find no 
error in the conclusion that the statute furthers important 
governmental interests.

The judgm ent o f  the district court dismissing the com ­
plaint is affirmed. No costs.

The statutory test is whether one “owes” allegiance—that is, 
whether he is regarded by law as “owing” allegiance to the United 
States by virtue of his territorial residence and status. The statutory 
test is not whether one “gives” or promises his allegiance to the 
United States.

3142



A 1 3

OPINION OF THE DISTRICT COURT

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK ----------------------------- -------x

VERONICA YUEN, :

Plaintiff,
vs.

80 Civ. 3177

INTERNAL REVENUE SERVICE et al.,

Defendants.
x

OPINION

Stephen Gleit, New York City, for plaintiff.

John S. Martin, Jr., U.S. Atty., for the 
Southern District of New York, Steven E. 
Obus, Asst. U.S. Atty., New York City, for 
defendants.

SAND, District Judge.

Plaintiff is a permanent resident alien 
who claims that she sought and was unlawfully 

denied federal employment solely on account 
of her alienage."'" Plaintiff first contends

1. Plaintiff is apparently a citizen of 
China who came to this country as a student in 
1970. (Yuen Aff. p. 8). Her assertion that 
she is a lawful permanent resident alien is 
not contested by the defendants. (Yuen Aff. 
p. 6). The position for which plaintiff 
applied is an excepted, i.e., non-Civil Service 
position. See discussion, infra. Positions

(footnote continued on next page)



A 1 4

that she "owes allegiance" to the United States 

and is therefore eligible for federal employ­

ment under 31 U.S.C. § 699b (Supp. 1980), (re­
ferred to hereinafter as the "appropriation 

act" or "§ 699b"), which, with certain exceptions, 

effectively limits federal employment opportu­

nities to citizens, aliens from specifically 

enumerated countries, and those who "owe

2

(footnote continued)
in the competitive Civil Service are generally 
limited to citizens or "nationals" of the 
United States. Exec. Order No. 11,935, 5 C.F.R. 
§ 7.4 (1974). See also, Jailil v. Campbell,
590 F .2d 1120 (D.C. Cir. 1978); Vergara v. 
Hampton, 581 F.2d 1281 (7th Cir. 1978), cert. 
denied 441 U.S. 905, 99 S. Ct. 1993, 60 L.Ed.2d 
373 (1979); Mow Sun Wong v. Hampton, 435 F.
Supp. 37 (N.D. Calif. 1977); Ramos v. Civil 
Service Commission, 430 F. Supp. 422 (D.P.R. 
1977) (3 Judge Court).

2. Plaintiff's claim that she "owes allegiance" 
to the United States is based solely on her 
execution, on June 10, 1980, of the following 
affidavit:

I, VERONICA YUEN, do solemnly swear 
(or affirm) that I will support defend 
the Constitution of the United States 
against all enemies, foreign and 
domestic; that I will bear true faith 
and allegiance to the same. So help 
me God.



A 1 5

allegiance" to the Unxted States. Alterna-3

3. The statute, which limits the class of 
persons who can be compensated from funds 
appropriated by Congress and which is entitled 
"Citizenship requirement for federal employees 
compensated from appropriated funds" provides 
that:

"Unless otherwise specified during the 
current fiscal year no part of any appropria­
tion shall be used to pay the compensation of 
any officer or employee of the Government of 
the United States (including any agency the 
majority of the stock of which is owned by 
the Government of the United States) whose 
post of duty is in continental United States 
unless such person (1) is a citizen of the 
United States, (2) is a person in the service 
of the United States on September 29, 1979, 
who, being eligible for citizenship, has filed 
a declaration of intention to become a citizen 
of the United States prior to such date and is 
actually residing in the United States, (3) is 
a person who owes allegiance to the United 
States, (4) is an alien from Cuba, Poland,
South Vietnam, or the Baltic countries lawfully 
admitted to the United States for permanent 
residence, or (5) South Vietnamese, Cambodian 
and Laotian refugees paroled into the United 
States between January 1, 1975, and September 
29, 1979; Provided, That for the purpose of 
this section, an affidavit signed by any such 
person shall be considered prima facie evidence 
that the requirements of this section with 
respect to his status have been complied with.; 
Provided further, That any person making a 
false affidavit shall be guilty of a felony, 
and, upon conviction, shall be fined not more 
than $4,000 or imprisoned for not more than one 
year, or both; Provided further, That the above 
penal-clause shall be in addition to, and not 
in substitution for any other provisions of 

(footnote continued on next page)



A 1 6

tively, if her status is construed as not 

falling within the express terms of that 

statute, plaintiff argues that the "distinction 

made by the statute between alien [s] eligible 
to work and receive compensation and those 

alien[s] not eligible to work and receive com­

pensation is unconstitutional and deprives

(footnote continued)
existing law; Provided further, That any pay­
ment made to any officer or employee contrary 
to the provisions of this section shall be re­
coverable in action by the Federal Government. 
This section shall not apply to citizens of 
Israel, the Republic of the Philippines or to 
nationals of those countries allied with the 
United States in the current defense effort, 
or to temporary employment of translators, or 
to temporary employment in the field service 
(not to exceed sixty days) as a result of 
emergencies." 31 U.S.C. § 699b.

Section 699b is from the Treasury, Postal 
Service, and General Government Appropriations 
Act, 1980, Pub. L. No. 96-74, 93 Stat. 559, 574 
(1979). Similar appropriations acts have been 
enacted annually since at least 1938 . See, 
e .g., Treasury and Post Office Department 
Appropriations Act for 1939, Pub. L. No. 75-453, 
52 Stat. 120, 148 (1938) .



A 1 7

plaintiff of equal protection of the law." 

(Plaintiff's Memorandum of Law In Support of 

Issuance of Preliminary Injunction at 2).

At a hearing held on June 10, 1980, 

plaintiff's application for preliminary
4injunctive relief was denied. Since there 

are no disputed issues of material fact, the 

parties have agreed to present the case to the 

Court for disposition on the merits on stipula-
5ted facts. After considering a series of

4. Plaintiff commenced this action by com­
plaint dated June 4, 1980, alleging that the 
Court has jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1361 and the Fifth Amendment to 
the United States Constitution. Simultaneously 
with the filing of the complaint plaintiff 
sought a preliminary injunction to prohibit 
defendants from hiring any person other than 
herself for the position in question.

Although the hearing on June 10, 1980 was 
not transcribed, the Court summarized its 
reasons for denying plaintiff's application at 
a subsequent hearing on June 16, 1980. See 
Transcript of June 16, 1980 Hearing (hereinafter 
"Trans.") at 4-6.

5. The parties also agreed that plaintiff's 
affidavit in support of her application for a 
preliminary injunction ("Yuen Aff."}, together 
with the opposing affidavit of Robert Walker, 
Chief, Personnel Branch, North Atlantic Region, 
Internal Revenue Service ("Walker Aff."), would 
constitute the agreed statement of facts.



A 1 8

briefs submitted by each side,6 the Court 

finds that plaintiff is not eligible for 

federal employment under the appropriation 

act and that the statute does not deprive her 

of equal protection of the law. Accordingly, 

summary judgment is granted in favor of the 
defendants and the complaint is dismissed.

I. The Factual Background

On April 6, 1980, plaintiff, a second 

year law student, applied for a position as a 

Legal Research Assistant with the New York 

City Appeals Office of the Internal Revenue 

Service ("IRS"). (Yuen Aff. p. 2). Plaintiff 

disclosed her alien status both in her employ­

ment application (Standard Form 171) and at

6. In addition to the briefs submitted in 
connection with plaintiff's application for 
a preliminary injunction, supplemental memo­
randa of law were served and filed prior to 
the hearing on June 16, 1980. At that time, 
the Court requested further briefing on 
specific questions, see Trans, at 8-13, and 
final briefs were submitted on July 8, 1980.



A 1 9

her employment interview. (Yuen Aff. pp.

6, 8). Apparently, the job description for

the position she sought "did not require

United States citizenship as a condition of
7employment." (Yuen Aff. p . 7).

On May 29, 1980, John Imbesi, Associate 

Chief, New York City Appeals Office, telephoned 

Ms. Yuen and offered her a position as a Legal 

Research Assistant commencing on June 2, 1980. 

(Walker Aff. p. 4). Plaintiff was to work 

"full time" during the summer and "part-time 

during the academic year." (Yuen Aff. p. 10). 

After obtaining a release from a prior employ­

ment commitment of which defendants were 
apparently aware (Yuen Aff. pp. 3, 4), Ms.

Yuen telephoned Imbesi later in the day on 7

7. According to the IRS, Internal Revenue 
Manual 13 G 107 (April 7, 1978) contains 
guidelines to be followed in hiring law 
students as part time Legal Research Assistants. 
(Walker Aff. p. 2).



A 2 0

May 29, 1980 and accepted the position.

(Walker Aff. p. 5; Yuen Aff. p. 2). That 

same day, after "discovering" that Yuen was 

not a United States citizen, Imbesi contacted 

IRS Personnel Specialist Carole Butler, who
Oimmediately rescinded the offer. (Walker 

Aff. pp. 6, 7). Although the interval of time 

between the offer of employment and its with­

drawal was thus no more than several hours, 

it was long enough for plaintiff to have ob­

tained a release from her prior employment 

commitment. Plaintiff maintains that she 

still desires a Legal Research Assistant's 

position with the IRS. (Yuen Aff. p. 9). 8

8. Butler attempted to reach Yuen by telephone 
late in the afternoon of May 29, 1980. Al­
though she did not reach Yuen directly, Butler 
left a message to the effect that "United 
States citizenship was required and that she 
[Yuen] should not report for work on June 
2, 1980." (Walker Aff. p. 7).

We note that the IRS asserts that "[t]he 
action of the North-Atlantic Region, Internal 
Revenue Service in rescinding the oral offer 
of appointment made to Yuen was based upon 
the legal proscription against utilizing appro­
priated funds to pay non-citizens." (Walker 
Aff. p. 8) (emphasis added.) It is clear from 
defendant's subsequent assertions, however, both 

(footnote continued on next page)



A 2 1

II. The Statutory Issue

A. Preliminary Considerations

Plaintiff contends that an oath of

allegiance which she executed in affidavit

form on June 10, 1980 makes her eligible for

federal employment under the "owes allegiance"
9provision of § 699b(5). Plaintiff also 

points specifically to the clause in that 

statute which provides that "for the purpose 

of this section, an affidavit signed by any 

such person shall be considered prima facie 
evidence that the requirements of this section 

with respect to his status have been complied 
with . . . Id. On the other hand, the

government contends that Congress' intent 

when it first enacted the "owes allegiance" 

provision in 1938 was to exempt non-citizen 

"nationals", i.e., inhabitants of United *

(footnote continued)
at oral argument and in various briefs, that 
IRS's actual position is that the offer was 
rescinded because plaintiff is not encompassed 
within any of the categories of eligible em­
ployees contained in the appropriation act.
See note 3, supra.
9. See notes 2 and 3, supra.



A 2 2

States possessions such as Puerto Rico or the

Philippines, from a newly imposed citizenship

requirement,10 rather than to open federal

employment to any alien willing to take an

oath. The government claims that at the

present time, the only non-citizens who owe

allegiance to the United States in the sense

that that phrase is used in the statute are

inhabitants of American Samoa. Before

reaching these primary statutory contentions,

there are two preliminary matters which must

first be addressed: the first relates to the

timing of plaintiff's oath of allegiance; the

second concerns plaintiff's contention that

the statutory issue in this case has already

been resolved by the United States Supreme 
decision

Court's/ in Hampton v. Mow Sun Wong, 426 U.S.

88, 96 S. Ct. 1895, 48 L.Ed.2d 495 (1976) 

(Hampton I.)

10. See discussion infra. A citizenship 
requirement had long been imposed by the Civil 
Service Commission. See Hampton v. Mow Sun 
Wong, 426 U.S. 88, 105, 110-111, 96 S. Ct. 
1895, 1906, 1908-1909, 48 L.Ed.2d 495 (1976).



A 2 3

Plaintiff applied for federal employment 

on April 6, 1980 and was offered, accepted 

and ultimately denied a Legal Research Assist­

ant's position on May 29, 1980. Since her 

oath of allegiance, on which she relies ex-
11clusively to establish her statutory claim, 

was executed on June 10, 1980, Ms. Yuen 

apparently did not "owe allegiance" to the 

United States in the sense that she uses the 

phrase either at the time of her application 

or at the time the offer was made, accepted, 

and withdrawn. It is thus arguable, although 

the government has not raised this issue, that 
plaintiff's statutory claim is non-justiciable 

because she could not prevail even if her in- 11

11. Plaintiff puts forth no other ground on 
which to base her claim of allegiance. More­
over, it is clear that neither the duration 
nor the nature of her residence in the United 
States will satisfy the "owes allegiance" 
requirement. See Oliver v. United States De­
partment of Justice, Immigration and Naturali­
zation Service, 517 F.2d 426 (_2d Cir. 1975), 
cert. denied,~~42 3 U.S. 1056, 96 S.Ct. 789, 46 
L.Ed.2d 646 (1976) .



A 2 4

terpretation of the statute is correct.

While the Court has raised this question 

on its own initiative, we decline to reach such 

a result. Despite IRS's assertion that it 

"stands ready" to hire plaintiff if she should 

prevail in this litigation (Walker Aff. p. 9; 

Trans, at 15), the Service has persisted in 

its refusal to hire Ms. Yuen even after her 

execution of an oath of allegiance. Obviously, 

the government disputes plaintiff's interpreta­

tion of the statutory phrase "owes allegiance"; 

just as obviously, Ms. Yuen, as a result of 

that dispute, is being denied a position which 
would otherwise be hers. We turn next to 

plaintiff's argument concerning the significance 
of Hampton I to the statutory issue in this case.

In Hampton I, the Supreme Court held that 
a Civil Service Commission ("CSC") regulation

which excluded all aliens from competitive
12Civil Service employment and which was not 12

12. The CSC regulation at issue in Hampton I,
5 C .F .R. § 338.101 (1976), provided in per- 
tinpnt narf- •F '(footnote continued on next page)



A 2 5

mandated by either Congress or the President

deprived aliens of liberty without due process 
13of law. Addressing the question whether the

(footnote continued)
"(a) A person may be admitted to com­
petitive examination only if he is a 
citizen of or owes permanent allegiance 
to the United States.
"(b) A person may be given appointment 
only if he is a citizen of or owes 
permanent allegiance to the United 
States. However, a noncitizen may 
be given (1) a limited executive 
assignment under section 305.509 of 
this chapter in the absence of qualified 
citizens or (2) an appointment in rare 
cases under section 316.601 of this 
chapter, unless the appointment is pro­
hibited by statute."

Under the CSC' s interpretation of the regula­
tion, except for the specific exceptions under 
§ 338.101(b)(1) and (2), only citizens and 
residents of American Samoa were qualified.
See Hampton I, at 90 n.l, 96 S. Ct. at 1899.

13. The Court first assumed "without deciding 
that the national interests identified by the 
. . . [government] would adequately support an
explicit determination by Congress or the Presi­
dent to exclude all noncitizens from the federal 
service." 426 U.S. at 116, 96 S. Ct. at 1911.
It then concluded, however, that because the 
"only concern of the [CSC] is the promotion of 
an efficient federal service . . .," the 
Commission, unlike Congress or the President, 
see discussion infra, could put forth no 
interest other than efficiency in support of a 
citizenship requirement. Id. at 114-115, 96 
S. Ct. at 1910. Since the Court found no 

(footnote continued on next page)



A 2 6

CSC regulation at issue was mandated by 

Congress, the Court examined, inter alia, the 

citizenship requirements contained in Appro­
priation Acts similar to the one currently 

14before us. Id. 426 U.S. at 108-109, 96

S. Ct. at 1907-1908. The Court found that

" . . .  Congress has consistently 
authorized payment to a much broader 
class of potential employees than 
the narrow category of citizens and 
natives of American Samoa eligible 
under the Commission rule. Congress 
has regularly provided for compensa­
tion of any federal employee owing

(footnote continued)
evidence that the regulation at issue resulted 
from a "considered evaluation of the relative 
desirability [from the standpoint of efficiency] 
of a simple exclusionary rule on the one hand, 
or the value to the service of enlarging the 
pool of eligible employees on the other," it 
held that the CSC's efficiency interest could 
not support the rule. Id. Finally, the Court 
noted that

"[a]ny fair balancing of the public 
interest in avoiding the wholesale 
deprivation of employment opportunities 
caused by the Commission's indiscrim­
inate policy, as opposed to what may be 
nothing more than a hypothetical justi­
fication, requires rejection of the 
argument of administrative convenience 
in this case." Id. at 115-116, 96 S.
Ct. at 1911. (Footnote omitted).

14. See note 3, supra.



All

allegiance to the United States.
Since it is settled that aliens 
may take an appropriate oath of 
allegiance, the statutory category, 
though not precisely defined, is 
plainly more flexible and expansive 
than the Commission rule." Id. at 
109, 96 S. Ct. at 1908. (Footnote 
omitted).

Plaintiff relies on this passage from 

Hampton I to argue that "the Supreme Court 
necessarily decided that the phrase 'a per­

son who owes allegiance to the United States' 

in the appropriations act may include an 

alien" and that the principles of stare de­

cisis bar a reconsideration of that issue by 

this Court. (Plaintiff's Response To Defen­

dant's Memorandum of Law at 6; Plaintiff's 
Further Memorandum of Law at 5-7). The govern­

ment characterizes this portion of Hampton I 

as "dictum" and contends that in Hampton I the 

Court "was not squarely presented with any 

issue requiring interpretation of the 'owes 
allegiance' provision of any federal appro­

priations act." (Memorandum of Law In Oppo­

sition to Plaintiff's Motion For A Preliminary



A 2 8

Injunction at 15; Defendants' Supplemental 
Memorandum at 16-17) .

Plaintiff's contention is not without 
initial appeal. Although the Court's sugges­

tion that aliens are eligible for employment 

under the appropriations acts because they can 
take an oath of allegiance is technically 

dictum, Hampton I referred specifically to 

the "owes allegiance" provision and its impact 
on aliens to support its conclusion that the 

class eligible under those acts is more 

expansive than the class eligible under the 

CSC rule. This conclusion, moreover, was 
central to the Court's finding that the rule 

was not mandated by Congress, which was in turn 
central to the Court's holding that the rule 

violated due process. Nevertheless, we reject 
the contention that Hampton I "necessarily 

decided" the meaning of "owes allegiance" in 

this context, and conclude that Hampton I does 

nbt foreclose an analysis of that question by 
this Court,



A 2 9

As the government correctly points out,

the Hampton I Court was not "squarely presented"

with any issue requiring interpretation of the

"owes allegiance" provision. The passage
relied on by plaintiff was undoubtedly an

important "building block" in the Court's

reasoning, but the essential part of that

passage is the finding that:
" . . .  Congress has consistently 
authorized payment to a much broader 
class of potential employees than the 
narrow category of citizens and 
natives of American Samoa eligible under 
the Commission rule."
426 U.S. at 109, 96 S. Ct. at 1908.

The Court's passing reference to the apparent 

plain meaning of the "owes allegiance" pro­

vision, however, was not essential to the 

conclusion that the CSC rule was not mandated 15

15. Although the Court made some references 
to the legislative history of the appropriation 
acts, see 426 U.S. at 108, 96 S. Ct. at 1907, 
no detailed analysis of the purposes and 
origins of either the "owes allegiance" pro­
vision or the affidavit provision, see text 
accompanying notes 9-10 supra, appears to 
have been undertaken by the Court or the 
parties. See the following briefs in Hampton I: 
Brief For the Petitioners at 83-84; Brief For 
the Respondents; Reply Brief For the Petitioners.



A 3 0

by Congress. Even if an oath alone cannot 

qualify aliens for federal employment under 

the appropriation acts, "the statutory cate­

gory . . .  is [still] plainly more flexible 

and expansive than the Commission rule."16 

Finally, to conclude that Congress meant 

something other than an oath of allegiance 

when it used the phrase "owes allegiance" is 
not to deny that "aliens may take an appro­

priate oath of allegiance . . . ."Id., 

citing In re Griffiths, 413 U.S. 717, 93 S.Ct. 
2851, 37 L .Ed.2d 910 (1973).

We thus proceed with our analysis of the 

language and legislative history of the 
relevant appropriation acts.

B . The Statutory Language

On its face, § 699b appears to support 
plaintiff's position. Plaintiff has signed 

an affidavit stating that she "will bear 

true faith and allegiance to" the Constitu-

16. Compare 31 U.S.C. § 699b (note 3 supra) 
with 5 C.F.R. § 338.101 (note 12 supra).



A 3 1

txon of the United States. Since the 

statute provides that "an affidavit signed 

by [a person seeking federal employment] . . . 

shall be considered prima facie evidence that 

the requirements of this section with respect 

to [her] status have been complied with; . .

the burden would appear to be on the govern­

ment to prove that plaintiff's affidavit is 

false. Obviously, this argument assumes 

that an oath can satisfy the "owes allegiance" 

requirement. Although we ultimately conclude 

that the legislative history compels a 

contrary conclusion, there are difficulties 

with such an assumption that are apparent 

from the face of the statute.

"Allegiance" generally denotes loyalty
X 8to a nation, sovereign or cause. It is

17. See footnote 2 supra.

18. Webster's New Twentieth Century 
Dictionary (2d Ed. 1970) defines allegiance 
as follows:

1. the relationship of a vassal to 
his feudal lord.

2. the tie or obligation of a citizen 
or subject to his government or ruler; the 
duty of fidelity to one's ruler, government,

(footnote continued on next page)

1 7



A 3 2

impossible, however, to assign meaning to a 

particular use of the term without under­

standing how such loyalty must be proven in 

the circumstances to which that usage applies. 

See Oliver v. United States Department of 

Justice, 517 F.2d 426, 427 (2d Cir. 1975)

("the concept of owing allegiance for purposes 

of nationality is not so easily . . . under­

stood") , citing Koessler, "'Subject,' 'Citizen', 
'National' and 'Permanent Allegiance,'" 56 

Yale L.J. 58, 67-69 (1946).^ Unfortunately,

(footnote continued)
or country. Natural or implied allegiance 
arises from the connection of a person with 
the society in which he is born, and from 
his duty to be a faithful citizen, indepen­
dent of any express promise.

3. loyalty and devotion in general, 
as to a church, a political party, a prin­
ciple, a leader.

19. In its original feudal setting, "alle­
giance" denoted a reciprocal correlation of 
interconnected rights and duties between 
those in authority and those who relied on 
that authority for their protection. See 
Koessler, supra, who argues that to the 
extent that the obligations of a citizen or 
national of a modern state are seen as uncon­
ditional rather than contingent upon a state's 
compliance with corresponding duties, the term 
"allegiance" has become archaic.



A33

the language of § 699b provides no guidance 

as to how Congress intended to define "alle­

giance" or as to how a person seeking federal 

employment could prove that he or she owed 

allegiance to the United States. Plaintiff, 

of course, contends that an oath is sufficient.

The government urges that an acceptance 

of plaintiff's contention would render meaning­

less the appropriation act's specific exceptions 

for aliens from the enumerated countries.

"[H]aving categorized in great detail 
the circumstances under which persons 
of various nationalities would be 
exempt from the statute, it defies 
logic to suggest that Congress intended 
these distinctions to be obliterated 
by the expedient of an individual's 
taking an oath of allegiance which 
might, in any event, be required of 
employees qualifying undei^other sub­
sections of the statute." (Memoran­
dum of Law In Opposition To Plaintiff's 
Motion For A Preliminary Injunction 
at 17) .

20. The government has advised the Court that 
federal employees are required to take an oath 
of allegiance only when required by specific 
statute or regulation.



A34

Plaintiff argues that acceptance of her in­

terpretation of the statute would not under­

mine these statutory exemptions, because 

aliens from the enumerated countries will be 

immune from the allegiance requirement while 

other aliens will be required to take an oath. 

"Congress may also have specially exempted 

certain classes of aliens . . . for the 

specific purpose of permitting them to work 

for the government without having formally 

to declare their allegiance to the United 

States, which is otherwise required by

status or declaration." (Plaintiff's Further
21Memorandum of Law at 18).

21. Plaintiff goes on to argue that: "In the
specific case of Filipinos, for example, under 
the Tydings-McDuffie Act of March 24, 1934, 
[Pub. L. No. 73-127, 48 Stat. 456 (1934)]the 
allegiance of Filipinos was to be transferred 
to the new republic upon the day of indepen­
dence from the United States, It would have 
been unduly harsh and contradictory to force 
a class of people, by statute, to change 
their allegiance and at the same time, take 
away their jobs or opportunities for employ­
ment, solely because of the transfer of 
allegiance. In the more general case of 
refugees, typically aliens fleeing a communist 

(footnote continued on next page)



A35

While plaintiff's argument is not with­

out merit, we are not convinced that Congress, 

by exempting specified aliens from a general 
citizenship requirement for federal employ­

ment, intended only to relieve such aliens 

from the burden of satisfying the "owes 

allegiance" provision by taking an oath. The 

statute as a whole suggests that Congress in­

tended to restrict federal employment to per­

sons with a clearly demonstrable affinity to 

the United States, i.e., citizenship, "alle­
giance" or, under some circumstances, an

(footnote continued)
government or a communist takeover (e.g.,
Cuba, Vietnam and Cambodia), the usual hope 
was that these people would return to their 
native countries at a future date. To declare 
their allegiance to the United States would 
jeopardize their relationship to their native 
countries. Congress, thus, may have set up 
two classes of aliens who are eligible for 
federal employment: one class which must
formally declare allegiance to the United 
States and one class which need not." 
Plaintiff's Further Memorandum of Law at 
18-19 (footnotes omitted).



A36

intent to become a citizen, and to specified

groups of aliens upon whom the benefit of

eligibility for such employment is for one
22reason or another bestowed. Plaintiff's 

interpretation of the "owes allegiance" pro­

vision would open federal employment to aliens 

not from the enumerated countries whose claim 

of allegiance is based on an arguably minimal 

demonstration of affinity to the United

States. Moreover, under § 699b(2), persons
23currently in the "service" of the United 

States who are eligible for citizenship must

22. Aside from temporary employees, exempted 
aliens are all either from countries under 
communist control or from countries with a 
close defense relationship with the United 
States. See discussion, infra.

23. Although the question is not before us, 
the legislative history of the citizenship 
requirement and its exceptions clearly suggest 
that in the "service" of the United States 
refers to service in the armed forces. See
83 Cong. Rec. 2531-2532 (remarks of Senator 
Hayden).



A37

file a "declaration of intention to become a 

citizen" before they are eligible for federal 

employment. If plaintiff's interpretation of 

the statute is correct, Congress has effect­

ively made federal employment more easily 

obtainable by aliens not included under any 

statutory exemption other than § 699b (3) than 
it is by aliens covered under § 699b(2).

In sum, the Court concludes that despite 
the apparent plain meaning of the statute, 

it would be inappropriate if not impossible 

to attempt to divine what Congress meant by 

"owes allegiance" without examining the 
relevant legislative history.

C . The Legislative History

Congress first adopted the appropriation 

act's restriction on federal employment in 

two acts passed in 1938. During the House

24. Independent Offices Appropriation Act, 
1939, Pub. L. No. 75-534, 52 Stat. 410, 435 
(1938); Treasury and Post Office Department 
Appropriation Act for 1939, Pub. L. No. 75- 
453, 52 Stat. 120, 148 (1938).



A38
the 2 5debate on /two appropriation bills, an amend­

ment restricting federal employment to citi­

zens of the United States was offered by
2 6>Congressman Starnes. The purpose of the 

amendment, according to Congressman Starnes, 

was to "protect the integrity of the National 

Budget and to give preferred employment to 

American citizens . . .."

"At a time when millions of 
American citizens are unemployed 
and unemployment is increasing daily 
it is high time we weed out of our 
governmental agencies every employee 
who is not a citizen of the United 
States. When American taxpayers are 
taxed for the support of our regular 
governmental agencies and institu­
tions certainly American citizens 
should be employed to administer 
these agencies and to receive the 
compensation raised by such taxes. 
Unquestionably hundreds of millions 
of dollars have been spent in the 
past 5 years in giving employment 
to people who were not American 
citizens even though we had millions 
of American citizens out of employ­
ment. This practice must stop. I 
urge the adoption of my amendment."

25. See H.R. 8837 and H.R. 8947, 75th Cong., 
3rd Sess. (1938).

26. The full text of the amendment to H.R. 
8837, which was identical in substance to

(footnote continued on next page)



A39

83 Cong. 357 (1938). See also 
83 Cong. Rec. 713 (1938); Hampton I,
426 U.S. at 108, 96 S. Ct. at 1907.

Although both bills passed the House without

further debate, the Senate subsequently
27added the "owes allegiance" provision.

The Senate debate surrounding the 

adoption of this provision demonstrates that 

it was intended to protect Filipinos employed 

by the government. In 1938, the Philippine 

Islands were still a part of the United States, 

and Filipinos occupied the status of non­

citizen "nationals". See Rabang v. Boyd, 353 

U.S. 427, 429, 77 S. Ct. 985, 986, 1 L.Ed.2d

(footnote continued)
the amendment to H.R. 8947, provided that;
"No part of any appropriation contained in 
this act or authorized hereby to be expended 
shall be used to pay the compensation of any 
officer or employee of the Government of the 
United States or of any agency, the majority 
of the stock of which is owned by the Govern­
ment of the United States, whose post of duty 
is in continental United States, unless such 
person is a citizen of the United States."
83 Cong. Rec. 357 (1938). See also, 83 Cong. 
Rec. 713 (1938).
27. Immediately following the amendment 
quoted in note 26 supra, the Senate added 

(footnote continued on next page)



A40

956 (1957). Apparently, Filipinos had 

been permitted to take Civil Service examina­

tions since 1903. 83 Cong. Rec. 2532 (1938)

(remarks of Senator Hayden). By 1938, a 

substantial number of Filipinos had long 

been employed by the federal government, and 

the concern was that they would be "automa­

tically thrown out" as a result of the newly 

adopted citizenship requirement. Id. at 

2532• See also 83 Cong. Rec. 2424 (1938). 
Senator Glass, who introduced the amendment 

which contained the "owes allegiance" pro­
vision to the first of the two House appro­

priation bills, specifically stated that its 

purpose was to immunize such employees from 
the citizenship requirement.

(footnote continued)
the clause: "or a person owing allegiance
to the United States, or who is now in the 
service of the United States." 83 Cong. Rec. 
2424, 2532 (1938).
28. The term "national" was apparently not 
statutorily defined until Congress passed 
the Nationality Act of 1940, Pub. L. No. 
76-853, 54 Stat. 1137 (1940). See discussion, 
infra.

2 8



A41

Mr. GLASS• Mr. President, the purpose 
of the amendment is to protect several 
thousand people in the United States 
who are now employed by the Government 
and who have not had an opportunity to 
take out citizenship papers.

Mr. NORRIS. In other words, it limits 
the section; it takes out of the class 
mentioned those who are included in the 
amendment?

Mr. GLASS. It exempts that class.
Mr. NORRIS. I have no objection.
Mr. McKELLAR, Mr. President, as I 

understand, those to whom it would 
apply are mostly Filipinos who have 
been in this country for a number of 
years.

Mr. GLASS. Yes.
Id.29

The use in this context of the phrase 

"owes allegiance to the United States" is 

not surprising. Only four years earlier, 

Congress had enacted the Tydings-McDuffie 
Act of 1934, Pub. L. No. 73-127, 48 Stat.

456 (1934), which established a timetable 
for the transition of the Philippine Islands 

from a United States possession to an inde-

29. While plaintiff attaches great signifi­
cance to the words "mostly Filipinos," see 
Plaintiff's Further Memorandum of Law at 13, 
the Court sees this portion of the colloquy 
as nothing more than a recognition that in­
habitants of American territorial possessions 
other than the Philippine Islands were in 
similar position. See discussion infra.



A42

pendent nation. Section 2(a)(1) of that 

Act provided that until such time as indepen­

dence was proclaimed by the President, "[a]11 

citizens of the Philippine Islands shall owe 

allegiance to the United States." (Emphasis 

added). The "owes allegiance" provision was 

thus a particularly appropriate means for 

describing the relationship between Filipinos 
and the United States, as Senator Hayden, who 

introduced the amendment to the second of the 

two House appropriation bills, was apparently 
aware:

Mr. Hayden. . . .the words "or a 
person owing allegiance to the 
United States" describe the status 
of a Filipino. He is not a citizen 
of the United States, but he owes 
allegiance to the United States.

83 Cong. Rec. 2532 (1938) .

30

30. The act established a ten-year period of 
gradual reduction of American control. The 
probationary period was interrupted by Japan­
ese occupation during World War II but was 
completed on July 4, 1946.



A4 3

The fact that Congress on more than one 

occasion used the phrase "owes allegiance to 

the United States" to. describe the "status of 

a Filipino" strongly suggests that Congress 

intended the phrase to describe the relation­
ship between the United States and inhabitants 

of its territorial possessions, rather than as 

descriptive of the state of mind required of 

individual persons. Under this construction, 

"owes allegiance" would be synonymous with 
the concept of non-citizen "national", a phrase 

frequently used to describe the status of non­
citizen inhabitants of this country's terri­

torial possession. See Rabang v. Boyd, supra. 

In the case of a non-citizen, nationality 

depends primarily upon place of birth, and 

not upon one's willingness to express loyalty 
to the United States. See Oliver v. United 

States Department of Justice, 517 F.2d at 427; 

Cabebe v. Acheson, 183 F.2d 795, 797 (9th 
Cir. 1950). Plaintiff contends, however, that 

a "national" is one who owes permanent alle-



A44

giance to the United States, and that if the 

"owes allegiance" provision was meant to apply 

only to non-citizen nationals. Congress would 

have used "permanent allegiance" rather than 

just "allegiance" when it enacted the exemption 

from the appropriation act's citizenship re­

requirement. (Plaintiff's Further Memorandum 

of Law at 21). Plaintiff points specifically 

to the language of the Nationality Act of 

1940, Pub. L. No. 76-853, 54 Stat. 1137 (1940), 

to support the significance of this distinction. 
The Nationality Act defines a "national of the 

United States" as a citizen of the United 

States or "a person who, though not a citizen 

. . . owes permanent allegiance to the United

States." nbU § 101(b); 8 U.S.C. § 1101(a) (22) 
(1976) .

We are not convinced that Congress was so 

discriminating in its use of these two phrases. 

Although the Nationality Act, which was appar­

ently the first attempt to statutorily define 

the term "national", and the "owes allegiance"



A45

provision of the appropriations act were both 

intended to apply to Filipinos, Congress used 

"permanent allegiance" in one context and 

"allegiance" in the other. See Cabebe v, 

Acheson, supra; Scholz v. Shaughnessy, 180 F .2d 

450 (2nd Cir. 1950). Congress also used "alle­

giance" in the Tydings-McDuffie Act. In 

addition, Congress' earlier use of the phrase 

"owes allegiance" in a 1902 revision to the 

passport law, Pub. L. No. 57-158, 32 Stat. 386 

(1902), indicates that both "allegiance" and 

"permanent allegiance" have been used exclu­

sively, in the case of non-citizens, to describe 
the status of inhabitants of United States 
territories.

Prior to 1902, the passport law authorized 

the issuance of passports only to citizens of 
the United States. 35 Cong. Rec. 4993 (1902).

As a result of the 1902 amendment, the statute, 

which has remained in force without further 

amendment to the present day, provides that:



A46
No passport shall be granted or 

issued to or verified for any other 
persons than those owing allegiance, 
whether citizens or not, to the 
United States. 22 U.S.C. § 212 (1979).

The legislative history of the amendment to 

the act demonstrates that its purpose was to 

enable the Secretary of State to issue pass­

ports to inhabitants of the territories

acquired as a result of the recent war with 
31Spain. The statute was obviously not in­

tended to authorize the issuance of passports

to any alien willing to take an oath of alle-
32giance to the United States.

In a letter to the Chairman of the House 
Committee on Foreign Affairs, included in the

31. According to the amendment's sponsor,
The sole object of the measure is 

to enable the State Department to issue 
passports to all the citizens of the 
United States and those of our recent 
possessions. . . .

The amendment simply revises the law 
in that respect and has no other object, 
35 Cong. Rec. 5697 (1902) (remarks of 

Congressman Adams). See discussion, infra.

32. See discussion infra. Under current 
State Department regulations, a passport may 
be issued "only to a national of the United 
States." 22 C.F.R. § 51.2(a) (1979). A

(footnote continued on next page)



A47

Committee's brief but unanimous report on the 

amendment, Secretary of State John Hay wrote:

SIR: I have the honor to inclose
herewith a draft of a proposed amend­
ment to sections 4076, 4078 and 4075 
of the Revised Statutes of the United 
States, which now limit the issuance 
of passports to citizens of the United 
States.

Since the treaty of peace with Spain 
the Department has received applica­
tions for passports from residents 
of the Philippine Islands, Porto (sic) 
Rico, and Guam.

The purpose of the amendment to 
existing legislation herewith sub­
mitted is to secure the sanction of 
law to the granting of passports to 
residents of our insular possessions, 
and thus enable this Government to 
extend to them a full measure of 
protection abroad.

H.R. Rep. No. 559, 57th Cong., 1st 
Sess. 1 (1902); 35 Cong. Rec. 4992.

The Committee concluded its report with the
following statement:

(footnote continued)
"national" is defined as a citizen or a "non-­
citizen owing permanent allegiance to the 
United States." IcL § 51.1(d). "United 
States" is defined as the continental United 
States, the State of Hawaii, the Commonwealth 
of Puerto Rico, the Virgin Islands of the United 
States, the Canal Zone, American Samoa, Guam 
and any other islands or territory over which 
the United States exercises jurisdiction. Id.
§ 51.1(a)



A4 8

The reasons for the necessity for 
the passage of this bill are so fully 
set forth in the letter from the 
Secretary of State that your committee 
does not deem it necessary to make 
further suggestions.

Id. at 2. Congressman Hitt, Chairman of 
the Foreign Affairs Committee, stated:

. . . there is a body or class 
of persons . . . who owe allegiance 
to the United States, living in Porto 
(sic) Rico and other insular posses­
sions, to whom it is our duty to 
afford protection, but who have not 
yet been decided to be citizens. In 
the bill presented that protection is 
authorized to be extended by diplo­
matic officers granting passports to 
those owing allegiance to the United 
States.

35 Cong. Rec. 4993 (1938).

The floor debate following the reading of 

the Committee's report indicates that the 

amendment was necessitated in part by the 
controversy, unresolved at the time, over 

whether the inhabitants of the newly acquired 
territories were citizens of the United 

States. 35 Cong, (sic) 4993-4994; 5697-5699



A49

(1902}. In the absence of an agreement 

on that issue, the amendment was explicitly put 

forth by its backers as an expedient designed 

solely to facilitate the issuance of passports 
to those people.

Mr. CLARK. . . . The situation,
Mr. Speaker, is simply this: some
of us believe that the very minute 
the Philippine Islands were annexed 
to the United States the people of 
those islands became citizens, as 
we had it stated here in the debate 
on the Porto (sic) Rican tariff; but 
there are a great many other people 
who do not believe anything of the 
sort, and it was necessary, in the 
judgment of the State Department and 
in the judgment of this committee, 
that some arrangement be made to 
grant a passport to these people in 
in the Philippine Islands and other 
islands that are hung up like Mo­
hammed's coffin, between heaven and 
earth. But in order to avoid that

3 3

33. Some members of the House believed that 
the language of the amendment clearly implied 
that inhabitants of the territories were not 
citizens, while the amendment's backers 
claimed that the language was deliberately 
ambivalent. The amendment apparently passed 
on the assumption that the "owes allegiance" 
provision was included only to cover such 
persons if it was ultimately determined that 
they were not citizens. See discussion 
infra.



A5Q

very difficulty of undertaking to 
decide whether they are citizens 
or not citizens, we used the language 
in the second section, which I have 
read, evading the whole thing.

. . .  if you support this bill, you 
will simply retain your political and 
constitutional integrity and at the 
same time allow the State Department 
to be authorized to issue passports 
to the Filipinos, whether it shall 
turn out ultimately that they are 
American citizens or not; and that 
is the reason this language is put 
in there— so that everybody here can 
vote for the bill and so that if a 
Filipino wants to go anywhere in the 
world before it is determined whether 
he is a citizen or not, he can, some­
how or other, get a passport under 
the provisions of this bill.

35 Cong. Rec. 4993 (1938) .

The floor debate also demonstrates that

although the act, as finally amended, uses

the term "allegiance," the bill originally

referred to the committee contained the

phrase "permanent allegiance". See H.R. 8129,

57th Cong. 1st Sess. (1902); 35 Cong. Rec.

4992 (1902). Some members of the House

objected to this change on the ground that

it might authorize the State Department to

issue passports to aliens who owed only



A51

"temporary" allegiance to the United States.

35 Cong. Rec. 5697-5698 (1902) (remarks of
34Congressman Smith). Congressman Adams, the

34. Congressman Smith stated:
"Now, my criticism upon the language pro­

posed by the committee is that there are 
different kinds of allegiance owing to the 
Government. There is what is known as temp­
orary allegiance, as well as that of permanent 
or unqualified allegiance. There are a great 
many people in this country who owe temporary 
allegiance to the United States who are not 
citizens of the United States. . . So that 
under this bill you propose to authorize the 
Secretary of State to issue passports to people 
who are not citizens of the United States and 
who do not owe permanent allegiance to its 
Government. So far as I am advised, there is 
not a government under the shining sun that 
undertakes to issue passports to people who 
are not citizens of that government. If you 
pass this bill, you place your Government in 
the attitude of authorizing passports to people 
who owe but temporary allegiance to your Govern 
ment, because you use merely the expression 
'allegiance,' whereas the Secretary of State 
used the expression 'permanent allegiance.'

"Now, as I said, I would be perfectly 
willing to accept the proposition of the 
Secretary of State. I believe that the resi­
dents of the Philippine Islands owe permanent 
allegiance to the Government of the United 
States, and, believing that, I would be 
willing to pass a law that would authorize 
the issue of passports to all persons who owe 
Permanent allegiance to the United States.
But you ask me to go further by your amendment; 
you ask me to vote for a proposition that will 
authorize the Secretary of State to issue 
passports to everybody that owes any kind of 

(footnote continued on next page)



A52

Foreign Affairs Committee's chief spokesman 

on the bill, insisted that that was not the 

Committee's intent and explained that the 

"allegiance" referred to by the bill was dis­

tinct from the allegiance owed to a sovereign 
by aliens temporarily residing in a country.

Mr. ADAMS. In regard to the objection 
of the gentleman from Kentucky [Mr. 
SMITH] I would state that the word 
"permanent" is only an adjective; 
that all allegiance is permanent 
until it is broken by the Government 
or broken by the citizen. The word 
"permanent" does not reenforce the 
fact of allegiance. It is simply an 
adjective.

•  •  *  • •

Mr. SMITH of Kentucky. If the 
gentleman will refer to the case 
of Radich v. Hutchins . . . and to 
the case of Carlisle v. The United 
States . . . he will see that the"- 
court says:

As a foreigner domiciled 
in the United States he was 
bound to obey all the laws 
of the United States not 
immediately relating to 
citizenship and was equally 
amenable with citizens to 
the penalties prescribed 
for their infraction. He

(footnote continued)
allegiance to the Government of the United 
States, and I am unwilling to support that 
kind of a proposition." 35 Cong. Rec. 5098 
(1902) .



A53

owed allegiance to that 
Government of the country 
so long as he was therein.

So that there is such a thing as a 
temporary allegiance.
Mr. ADAMS. Mr. Speaker, passports 

are not issued to foreigners tempo­
rarily residing in any country.

Mr. SMITH of Kentucky. Yes; but 
you are proposing to pass a law 
that will authorize it.

Mr. ADAMS. Not at all. The kind 
of allegiance referred to in that 
case is what you may call a police 
allegiance, which simply is imposed 
on foreigners temporarily residing 
in any country, that they will be 
amenable to the laws and do no 
act that would bring discredit or 
warfare upon that country.

Mr. SMITH of Kentucky. It is a 
temporary allegiance.

Mr. ADAMS. That may be, but it 
is a specified kind, understood in 
international law between different 
countries, and has no reference to 
the allegiance due between the in­
habitants of any country and the 
government thereof.
Mr. SMITH of Kentucky. Let me 

ask you this question: You authorize
the issuing of a passport to anyone 
who owes allegiance to the United 
States. Now, does not that cover 
any kind of allegiance that a person 
may owe?

Mr. ADAMS. No, sir.
Mr. SMITH of Kentucky. Why does 

it not?
Mr. ADAMS. Simply because resi­

dents and inhabitants of a foreign 
country are never granted passports



A54

in the country in which they 
temporarily reside.
Mr. SMITH of Kentucky. But if 

you pass this bill you authorize 
this Government to do so.

Mr. ADAMS. Then you will fall 
from the established rule that 
prevails in all nations of the 
world»

Mr. SMITH of Kentucky. Now, the 
gentleman knows that they can not 
secure passports at all under the 
law at present.
Mr. ADAMS. And they will not 

under this law. They are citizens 
of a foreign country temporarily 
residing, and they can not be 
granted passports and can not 
apply for them.

Mr. SMITH of Kentucky. You say 
the allegiance referred to in this 
bill is permanent?

Mr. ADAMS. Yes.
Id. at 5698.35

35. The colloquy continued with the follow­
ing exchange:

Mr. SMITH of Kentucky. What objection 
can there be to accepting the propo­
sition of the Secretary of State, and 
saying "permanent?"
Mr. ADAMS. That is the Secretary's 

opinion but it adds no force. When 
this question was before the Committee 
the provision in this measure that 
the gentleman from Kentucky refers 
to was changed in the language of this 
bill so as to meet expressly the views
(footnote continued on next page)



A55

We conclude from the legislative history 

of these various acts that Congress has used 

"allegiance" and "permanent allegiance" inter­

changeably and that, as used in these acts, 

both terms refer exclusively to those people 

"hung . . . between heaven and earth" in

America's overseas possessions. The use of 

the phrase "owes allegiance in the appropria­

tion act, as shown by an examination of its 
own legislative history, is consistent with 

this general usage. Congress intended to 

restrict federal employment to citizens and 

inhabitants of our territorial possessions 

when it enacted the appropriation azts for

(footnote continued)
of gentlemen on that side of the 
Chamber, and every member of the 
committee was perfectly satisfied 
with this bill. It is a unanimous 
report, and when it was discussed 
before the arguments in favor of 
this bill were made entirely by 
gentlemen on that side of the Chamber, 
as we thought it was the better way. 
Now, Mr. Speaker, I call for a vote 
on the bill.



A56

1938, and nothing in the legislative history 

of subsequent appropriation acts suggests that 

Congress at any time assigned a different
3 6meaning to the "owes allegiance" provision.

36. When the Independent Offices Appropria­
tion Act, 1944, Publ. L. 78-90, 57 Stat. 169 
(1943) was before the Senate in May of 1943, 
the following colloquy took place,

Mr. GILLETTE. Mr. President, I 
should like to ask the distinguished 
Senator in charge of the bill what 
class of persons is included in the 
third category-

(3) is a person who owes allegiance 
to the United States.

What persons, besides citizens and 
persons who have filed declarations 
of intention to become citizens, owe 
allegiance to the United States?

Mr. McKELLAR. Section 205 as passed 
by the House seemed to members of the 
Senate committee to need clarification. 
The amendment which the Senate commit­
tee added was for the purpose of 
clarifying the language of the House 
bill. It did not change it, as we 
understood it. It appears that no 
suggestion was made as to the defini­
tion of a person who owes allegiance 
to the United States. I am in doubt 
about it myself.

This language has been carried in 
the law for a number of years, and 
we left it there. I am not sure 
what it means.

Mr. GILLETTE. I cannot conceive of 
any person who is not a citizen and 
who has not filed a declaration of 

(footnote continued on next page)



A57

Finally, the Court notes that neither the 

Committee Reports nor the floor debates con­

cerning the first adoption of the "affidavit 

provision" in the Independent Offices Appro­

priation Act, 1944, Pub. L. No. 78-90, 57 

Stat. 169, 196 (1943), sheds any light on the 

meaning of the term "allegiance". See 89 
Cong. Rec. 1074-1075; 4786; 4967-4968; 5935- 

5936 (1943) . Insofar as it relates to the 

"owes allegiance" provision, the affidavit

(footnote continued)
intention to become a citizen, who 
owes allegiance to the United States.

Mr. McKELLAR. Possibly it refers 
to a person from the Philippine 
Islands, the Virgin Islands, or 
Puerto Rico, who owes allegiance.

Mr. McNARY. Mr. President. I 
think this amendment comes under 
the head of controversial amend­
ments, and I ask that it go over.

Mr. McKELLAR. Very well.
THE PRESIDING OFFICER (Mr. MAYBANK 

in the chair). Without objection, 
the amendment will be passed over.
89 Cong. Rec. 4786 (1943). The amend­

ment referred to is not relevant to this 
discussion. Although the Senate ultimately 
passed the bill as amended, 89 Cong. Rec.
4968 (1943), the Court has found no further 
discussion of the "owes allegiance" provision.



A58

referred to in § 699b and its predecessor 

acts merely enables a government agency or 
department to employ a person who claims to 

be a non-citizen national without conducting 

an independent inquiry into that person's 

true status. See 89 Cong. Rec. 4967 (remarks 
of Senator Overton).

Ms. Yuen admittedly is not a non-citizen 

national of the United States. Since we find 

that she is not eligible for federal employ­

ment under the appropriation act, we turn 

next to plaintiff's claim that that statute 

deprives her of equal protection of the law.

XIX. The Equal Protection Issue

Plaintiff claims that "the distinction 
made by the Appropriations Act between aliens 
who can be compensated and aliens who cannot, 
is unconstitutional" and denies her equal 

protection of the law. (Memorandum of Law 

in Support of Issuance of Preliminary Injunct­
ion at 6). Apparently arguing that either 

"strict scrutiny" or some intermediate standard



A59
37of review applies here, plaintiff contends 

that "[n]either the face of the statute nor 

[its] legislative history . . . discloses any 

'overriding national interest' which would 

justify preferring some aliens over others 

for federal employment on the basis of national 
origin." (Plaintiff's Further Memorandum of 

Law at 26). The government, on the other
O Ohand, urges that the "wholly irrational"

37. Initially, plaintiff "acknowledged" that
§ 699b "must be sustained unless 'wholly irra­
tional ,1" but at the same time sought to pre­
serve her right to argue on appeal that a 
stricter standard of review should apply. 
(Memorandum of Law in Support of Issuance of 
a Preliminary Injunction at 7). At the June 16, 
1980 oral argument, however, the Court informed 
plaintiff that such a procedure would be in­
consistent with the interest of enabling an 
appellate court to derive whatever benefit it 
could from this Court's consideration of the 
issue. (Trans, at 11-12). Plaintiff now 
asserts that the "wholly irrational" standard 
is inapplicable to the facts of this case. 
(Plaintiff's Further Memorandum of Law at 25-26),
38, Although the Court used the phrase "wholly 
irrational", the standard employed in Mathews 
appears to be the "rational relationship test," 
which requires that the government demonstrate 
that the classification involved is rationally 
related to a legitimate government interest.
See Olegario V. United States, supra, at 228- 
2 2 9  .' “



A60

standard applied in Mathews v. Diaz, 426 U.S. 

67, 83, 96 S. Ct. 1883, 48 L.Ed.2d 478 (1976), 

is appropriate here but contends that "under 

any standard," the interests asserted are 

sufficient to validate the citizenship require­

ment challenged in this proceeding. (Memoran­

dum of Law in Opposition To Plaintiff's Motion 

For A Preliminary Injunction at 12). Although 

we conclude that an "intermediate" standard of 

review is appropriate in this case, see e .g ., 

Petition for Naturalization of Antonio Olegario 

v. United States, 629 F.2d 204 (2d Cir. 1980); 

Mow Sun Wong v. Hampton, 435 F. Supp. 37 (N.D. 

Calif. 1977) (Hampton II), we hold that the 

"important" federal interests in providing an 
incentive for aliens to become naturalized and 

in providing Congress or the President with 

the ability to use eligibility for federal 

employment as a foreign policy tool, are "sub­

stantially furthered" by, and are thus suf­

ficient to uphold, the classification scheme 

established by § 699b.



A61

A. The Applicable Standard of Review 

We begin our analysis of plaintiff's 
equal protection claim with the recognition 

that although state classifications based on 

alienage are "inherently suspect" and subject 
to strict judicial scrutiny, see e.g., Nyquist 
v. Mauclet, 432 U.S. 1, 97 S. Ct. 2120, 53 

L.Ed.2d 63 (1977); Sugarman v. Dougall, 413 
U-S. 634, 93 S. Ct. 2842, 37 L.Ed.2d 853 

(1973); In re Griffiths, 413 U.S. 717, 93 S. 

Ct. 2851, 37 L .Ed.2d 910 (1973); Graham v. 

Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 

L.Ed.2d 534 (1971); but see, Ambach v. Nor­

wich, 441 U.S. 68, 99 S. Ct. 1589, 60 L.Ed.2d 

49 (1979); Foley v. Connelie, 435 U.S. 291,
98 S. Ct. 1067, 55 L.Ed.2d 287 (1978), "the 

Fourteenth Amendment's limits on state powers 

are substantially different from the consti­

tutional provisions applicable to the federal 

power over immigration and naturalization." 

Mathews v. Diaz, 426 U.S. at 87, 96 S. Ct. at

1895. Plaintiff is of course protected by the 

Fifth Amendment's implicit guarantee of equal



A 6 2

justice under the law. In the context of 

"selective federal legislation/" however, 

"there may be overriding national interests 

which justify [such] . . . legislation that 

would be unacceptable for an individual 

state." Hampton I, 426 U.S. at 100, 96 S. Ct. 

at 1904. Indeed, as a result of the "para­

mount federal power over immigration and 

naturalization", id,, courts have consistently 
applied a more relaxed standard when eval­

uating federal classifications based on 
39alienage. See e .g., Mathews V. Diaz, supra.

39. The rationale underlying the limited 
character of judicial review in this context 
was described in Mathews V. Diaz, 426 U.S. at 
81-82, 96 S. Ct. at 1892 (footnotes omitted): 

For reasons long recognized as 
valid, the responsibility for regula­
ting the relationship between the 
United States and our alien visitors 
has been committed to the political 
branches of the Federal Government.
Since decisions in these matters may 
implicate our relations with foreign 
powers, and since a wide variety of 
classifications must be defined in 
the light of changing political and 
economic circumstances, such decisions 
are frequently of a character more
Cfootnote continued on next page)



A6 3

(applying a "wholly irrational" standard 

and upholding a federal regulation denying 

certain Medicare benefits to aliens who had 

not been admitted for permanent residence in 

the United States and had not resided here for 

at least five years); Yassini v. Crosland,

618 F.2d 1356 (9th Cir. 1980) (recognizing 

the "limited" scope of judicial review and 

upholding a regulation revoking deferred 
departure dates previously granted to Iranian 

nationals); Narenji V. Civiletti, 617 F.2d

745 (D.C. Cir. 1979), cert, denied, __U.S.__,

100 S. Ct. 2928, 64 L.Ed.2d 815 (1980) 

(applying a rational basis standard and up­

holding a regulation applying only to Iranian 

nationals); Letourneau v. Califano, 453 F. 

Supp. 636 (S.D.N.Y. 1978) (3 Judge Court)

(footnote continued)
appropriate to either the Legislature 
or the Executive than to the Judiciary 
. . . The reasons that preclude ju­
dicial review of political questions 
also dictate a narrow standard of 
review of decisions made by the Con­
gress or the President in the area of 
immigration and naturalization.



A64

(applying a "minimum scrutiny" standard and 

upholding statutes granting certain social 

security benefits to citizens working for 

foreign governments or international organi­

zations but not to similarly situated permanent 

resident aliens), appeal dismissed, 444 U.S. 

805, 100 S. Ct. 26, 62 L.Ed.2d 18 (1979);

Lopez v. Bergland, 448 F. Supp. 1279 (N.D.

Calif. 1978) (3 Judge Court) (applying a
rational basis standard and upholding a 

federal statute limiting eligibility for 

federal farm operating loans to citizens).

See also, Olegario v. United States, supra, 

(applying an intermediate standard and up­

holding the constitutionality of the withdrawal 

in 1945 of a naturalization examiner from the 
Philippines.)

The exercise of the federal power over 
immigration and naturalization has thus 

traditionally been accorded minimum judicial 

scrutiny. See Hampton II at 43. Nevertheless,



A 6 5

Hampton I at least suggests that something 

more than mere rationality must be satisfied 

when federal action deprives an alien of a 

liberty interest. 426 U.S. at 102-103, 96 

S. Ct. at 1904-1905. Although the Court did 

not explicitly enunciate a standard of review, 

it noted that

"[W]hen the Federal Government 
asserts an overriding national 
interest as justification for a 
discriminatory rule which would 
violate the Equal Protection 
Clause if adopted by a State, due 
process requires that there be a 
legitimate basis for presuming 
that the rule was actually intended 
to serve that interest. If the 
agency which promulgates the rule 
has direct responsibility for fos­
tering or protecting that interest, 
it may reasonably be presumed that 
the asserted interest was the actual 
predicate for the rule. That pre­
sumption would, of course, be for­
tified by an appropriate statement 
of reasons identifying the relevant 
interest. Alternatively, if the 
rule were expressly mandated by 
the Congress or the President, we 
might presume that any interest which 
might rationally be served by the 
rule did in fact give rise to its 
adoption." Id.

The Court invalidated the CSC rule because 

it was neither mandated by the President or



A66

Congress nor predicated on any legitimate
40interest of the Commission, but the Court 

also assumed without deciding that the "nation­

al interest in providing an incentive for 

aliens to become naturalized, or possibly 

even [the interest in] . . . providing the

President with an expendable token for treaty 

negotiating purposes" would adequately support 

an explicit determination by Congress or the 

President to exclude all non-citizens from 

federal employment. Id. at 105, 116, 96 S. Ct. 

at 1904, 1905.
Three months after the decision in 

Hampton I, President Ford issued an Executive 
Order providing for the exclusion of aliens 

from the competitive Civil Service, thereby 
effectively reinstating the prior CSC regula­

tion. Exec. Order No. 11935, 5 C.F.R. § 7.4 

(1974). The constitutionality of that order 

was upheld on remand in Hampton II as well as 

in the face of similar equal protection

challenges by alien plaintiffs in Vergara v.
40. See footnotes 12-13 and accompanying 
text supra,



A67

Hampton, 581 F .2d 1281 (7th Cir. 1978), 

cert, denied 441 U.S. 905, 99 S. Ct. 1993,

60 L.Ed.2d 373 (1979), and Ramos v. Civil 

Service Commission, 430 F. Supp. 422 (D.P.R. 

1977) C3 Judge Court). Both Vergara and 

Ramos relied heavily on the "assumption" in 

Hampton I and applied what appears to be a 

mere rationality standard. Hampton II, 

however, rejected mere rationality and held 

that, after Hampton I, "when the federal 

government seeks to sustain a rule discrimina­

ting against noncitizens in a manner which 

would violate equal protection if adopted by 

a state, it must demonstrate that the rule 

substantially furthers important federal in­

terests in the regulation of immigration and 

naturalization." 435 F. Supp. at 44. The 
court upheld the Executive Order because it 

substantially furthers the federal government's 

"unique" interest in encouraging naturaliza­
tion in a manner which also furthered the 

government's interest in the efficiency of



A 6 8

of the civil service. In Jalil v. Campbell, 

590 F . 2d 1120, 1123 n.3 (D.C. Cir. 1978), the 

court explicitly indicated its "general agree­

ment with the reasoning and conclusion" of 
41Hampton II. We believe that Hampton II 

articulates the correct standard of review for 

the equal protection issue in this case.

Like Hampton I and in contrast to Mathews 

v. Diaz, supra, the government action chal­

lenged here deprives plaintiff and other 

similarly situated aliens of an interest in 

liberty. See Hampton I, 426 U.S. at 102-103, 

96 S. Ct. at 1904-1905 (characterizing ineli­

gibility for employment in a "major sector of 

the economy" as a deprivation of an interest 

in liberty); Hampton II at 43. The appro-

41. In Jalil, a naturalized citizen who had 
challenged the CSC ' s citizenship requirement 
while still an alien sought back pay and 
affirmative hiring relief.



A 6 9

priation act's eligibility requirements, 

moreover, are not directly related to the 

admission, exclusion or deportation of aliens. 
Under such circumstances, it is at least 

arguable that federal classifications affect­

ing aliens should be subjected to some greater 

degree of judicial scrutiny. See e.g., Ros- 

berg, "The Protection of Aliens From Dis­
criminatory Treatment By The National Govern­

ment, " 1977 Sup. Ct. Rev. 275, 324-336. But 

see, e.g., Mathews v. Diaz, supra. We thus 

turn to an analysis of the government interests 

asserted in light of the standards set forth 
in Hampton I and Hampton II.

B . The Equal Protection Analysis
The appropriation act limits eligibility 

for federal employment to aliens who are 

citizens of a specified group of foreign 

countries. The government contends that the 
statute, particularly the provision exempting 

nationals of countries "allied with the United 

States in the current defense effort," pro-



A7Q

vides the President with "a bargaining chip 

. . . in negotiating defense alliances . . .."

(Memorandum of Law In Opposition To Plaintiff's 

Motion For A Preliminary Injunction at 13) ,

See also, Hampton I, 426 U.S, at 105, 96 S. Ct. 

at 1906. In addition, although not raised by 

the government, the combination of a citizen­

ship requirement with specific exemptions also 

provides Congress with an expendable foreign 

policy token: under the statute, Congress may,

as it sees fit, bestow the benefit of eligi­
bility for federal employment upon, for example, 

citizens of friendly nations, or political 

refugees. We have little doubt that these 

foreign policy interests are "unique to the 
federal government and capable of supporting 
a degree of federal legislation beyond that 
permissible to the states." Hampton II at 45. 
Moreover, although there is no clear evidence 

that Congress acted in furtherance of these 
interests when it enacted either the citizen­

ship requirement or the specific exemptions,



A71

we may "presume that any interest which 

might rationally be served by the [Congress­

ional] rule did in fact give rise to its 

adoption." Hampton I, 426 U.S. at 103, 96 

S. Ct. at 1905. See also, Olegario v. United 

States, supra, at 232. Since it is not our 

role to question the wisdom of using employ­

ment eligibility to serve foreign policy goals, 

see Narenji v. Civiletti,617 F.2d at 748, the 

only remaining question is whether the "bar­

gaining chip" or "token" interests are "sub­

stantially furthered" by the eligibility 

scheme set forth in the appropriation act.

The appropriation act in its current 
form appears as if it was specifically

tailored for the "bargaining chip" and "token" 
42interests. More significantly, a rule of

42. Over the years, Congress has exempted 
specified groups of aliens from the act's 
citizenship and "owes allegiance" require­
ments. In 1943, "nationals of those countries 
allied with the United States in the prosecu­
tion of the war" were exempted. Independent 
Offices Appropriation Act, 1944, Pub, L. No,
Cfootnote continued on next page)



A72

law qualifying all aliens for federal employ­

ment would eliminate the ability of either 

Congress or the President to utilize eligibility

(footnote continued)
78-90, 57 Stat. 169, 196 (1943). This exemp­
tion was subsequently changed to read "nation­
als of those countries allied with the United 
States in the current defense effort." Supple­
mental Appropriation Act, 1952, Pub. L. No. 
82-253, 65 Stat. 736, 755 (1951). Permanently 
admitted aliens from the Baltic countries were 
exempted in 1953. Supplemental Appropriation 
Act, 1954, Pub. L. No. 83-207, 67 Stat. 418,
435 (1953). In 1961, aliens from Poland who 
were lawfully admitted to the United States 
for permanent residence were exempted. Gen­
eral Government Matters, Department of Commerce 
and Related Agencies Appropriation Act, 1962, 
Pub. L. No. 87-125, 75 Stat. 268, 282 (1961). 
Cuba was added to the list in 1973. Treasury, 
Postal Service, and General Government Appro­
priation Act, 1974, Pub. L. No. 93-143, 87 
Stat. 510, 524 (1973). At the request of the 
State Department, the employment of refugees 
from South Vietnam was permitted in 1975. 
Treasury, Postal Service, and General Govern­
ment Appropriation Act, 1976, Pub. L. No. 94- 
91, 89 Stat. 441, 458 (1975). Cambodian and 
Laotian refugees paroled into the United 
States were exempted in 1978. Treasury,
Postal Service, and General Government Appro­
priations Act, 1979, Pub. L. No. 95-429, 92 
Stat. 1001, 1015 (1978), Finally, in 1979, 
the appropriation act was altered so as not 
to be applicable to citizens of Israel. 
Treasury, Postal Service, and General Govern­
ment Appropriations Act 1980, Pub. L. No. 96- 
74, 93 Stat. 559, 574 (1979).



A73

for such employment as a foreign policy tool.

See e.g., Yassini v. Crosland, 618 F,2d at

1360 ("A rule of law that would inhibit the
flexibility of the political branches [in the

foreign policy area] should be adopted only

with the greatest caution . , .") While

Congress could perhaps have adopted a more

inclusive classification scheme which would

have preserved that ability without excluding

plaintiff and similarly situated aliens, we

decline to substitute our judgment for
Congress' in that regard.

The government also contends that § 699b

substantially furthers the federal interest

in encouraging naturalization. Within limits,

we agree that this interest too is important
enough to justify federal action regarding

aliens that would be impermissible to the 
43States. Hampton II, at 45. See also,

43. The kind of action the federal govern­
ment can take in furtherance of this 
interest is obviously limited by the due 
process clause.



A74

Hampton I, 426 U.S. at 116, 96 S. Ct. at 1911. 

We also agree with Chief Judge Peckham's 

conclusion in Hampton II that this interest 

is substantially furthered by an exclusion 

from federal employment of aliens eligible 

for citizenship, but that a blanket exclusion 

without regard to such eligibility furthers 

important federal interests only if we con­

sider the interest in administrative efficiency 
as well as the interest in encouraging natura­

lization. Id. at 45-46. In the context of 

this case, we note, finally, that Congress' 
decision, perhaps in furtherance of the 

foreign policy interests already discussed, 

to confer a benefit on some aliens/potential 
citizens but not on others, does not detract 

from the fact that the statute as drawn sub­

stantially furthers the federal interest in 
encouraging naturalization.

We conclude that the classification 
scheme established by Congress substantially 
furthers "sufficiently important" federal



A75

interests to satisfy; the appropriate consti-
44tutional standard of review.

Summary judgment in favor of the defen­
dants is granted.

So ordered.

44. The government also contends that "the 
preservation of employment opportunities for 
American citizens . . . [is] a valid basis 
for the statute at issue . . . "  and that 
"[a]s significant unemployment continues to 
prevail in the United States, it is plain 
that the citizenship requirement for federal 
employment is not wholly irrational." (Defen­
dant's Supplemental Memorandum at 12). The 
government has not stressed this point, how­
ever, and in view of our finding that the 
statute is supported by other federal in­
terests, we see no reason to address the 
question here.



RECORD PRESS, INC., 157 Chambers St., N.Y. 10007 (212) 243-5775