Agcaoili v. Gustafson

• Decision Date: 04 April 1988
• Docket Number: No. 86-5830,86-5830
• Citation: 844 F.2d 620
• Parties: Jaime Agustin AGCAOILI, et al., Plaintiffs-Appellants, v. Ernest E. GUSTAFSON, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 620

844 F.2d 620

Jaime Agustin AGCAOILI, et al., Plaintiffs-Appellants, v. Ernest E. GUSTAFSON, et al., Defendants-Appellees.

No. 86-5830.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 9, 1987.

Decided April 4, 1988.

Russell Marshak (Brian E. Schield, on brief), Popkin, Shamir & Golan, Los Angeles, Cal., for plaintiffs-appellants.

Ian Fan, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, Chief Judge, FLETCHER and POOLE, Circuit Judges.

FLETCHER, Circuit Judge:

Appellants, Filipinos who served in the United States Armed Forces during World War II, brought this mandamus action to compel the Immigration and Naturalization Service (INS) to process their applications for naturalization, to schedule them for preliminary examinations, to conduct investigations, to make recommendations to the district court concerning their eligibility for naturalization, and to schedule them for final hearings before the district court, in accordance with the Immigration and Nationality Act (INA). The district court denied both parties' motions for summary judgment, holding that the outcome would be determined by the final decision in Pangilinan v. INS, 796 F.2d 1091 (9th Cir.1986), reh'g denied, 809 F.2d 1449 (9th Cir.1987), cert. granted, --- U.S. ----, 108 S.Ct. 66, 98 L.Ed.2d 30 and stayed the action until a final decision in Pangilinan is rendered. At the time of the district court's order, the opinion in Pangilinan had not been filed. The applicants appeal on the ground that Pangilinan is not controlling, and assert that they are entitled to summary judgment in their favor.

FACTS

The appellants are 63 Filipinos who served in the United States Armed Forces during World War II. The majority of the appellants reside in the Philippines, although approximately 23 of them live in the United States. The appellants have applied for naturalization with the Los Angeles District Office of the INS, under the provisions of the Second War Powers Act of 1942, which amended the Nationality Act of 1940 by adding sections 701 and 702 to the Act. Nationality Act of 1940, Pub.L. No. 76-853, 54 Stat. 1137, as amended by the Second War Powers Act, section 1001, Pub.L. No. 77-507, 56 Stat. 182.

Sections 701 and 702 exempted non-citizens who served in the United States Armed Forces from customary naturalization requirements, such as five years of residence in the United States and proficiency in the English language. They were also excused from the requirement that they be naturalized by a court in the United States.

By its terms, the Second War Powers Act expired on December 31, 1946. However, after that date certain Filipino veterans have been found to be entitled to naturalization under its provisions. In In re Naturalization of 68 Filipino War Veterans, 406 F.Supp. 931 (N.D.Cal.1975), Judge Renfrew devised a classification system for analyzing the claims. Category I applicants include those veterans who took affirmative steps to be naturalized before the December 31, 1946, statutory cut-off date. Category II consists of veterans who were eligible for naturalization under the 1940 Act and were in the Philippines from October 1945 to August 1946, but who did not take affirmative steps to be naturalized before December 31, 1946. Category III veterans could not prove that they were eligible for naturalization under the 1940 Act. Judge Renfrew held that both Category I and Category II veterans were eligible for naturalization after the cut-off date.

The government has adopted a policy of granting all petitions of Category I veterans, Barretto v. United States, 694 F.2d 603, 608 n. 11 (9th Cir.1982), vacated on other grounds, INS v. Litonjua, 465 U.S. 1001, 104 S.Ct. 990, 79 L.Ed.2d 224 (1984), and of granting the petitions of Category II veterans that were filed before the government's withdrawal of its appeal in 68 Filipinos in November 1977. Id. at 608. When this appeal was filed, the issue of whether Category II veterans were entitled to naturalization was before our court in Pangilinan v. INS, No. 80-4543. A panel has since held that because the Attorney General acted beyond his authority in revoking the naturalization of the vice consul in the Philippines, Category II applicants were entitled to be naturalized under the federal court's equitable powers. Id., 796 F.2d 1091 (9th Cir.1986), reh'g denied, 809 F.2d 1449 (9th Cir.1987). Certiorari to the Supreme Court was granted Oct. 5, 1987. Contra Olegario v. United States, 629 F.2d 204 (2d Cir.1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981).

This action arose out of the INS's refusal to accept the Form N-400 applications of the appellants on the grounds that (1) the INS was not required to accept applications of foreign address applicants residing outside the jurisdiction of the Los Angeles District Office of the INS and (2) the appellants had not submitted evidence of their Category I status as required of foreign address applicants by INS policy.

Prior to filing suit, the applicants through their counsel attempted to resolve the dispute through written communication with the INS. When this failed, they petitioned ex parte the Clerk of the Court for the United States District Court, Central District of California, requesting that they be allowed to file petitions for naturalization directly with the court. Chief Judge Real issued an order permitting the filings. The INS, however, refused to schedule the appellants for preliminary examinations at the INS in Los Angeles and refused to make recommendations to the court concerning the eligibility of the petitioners. The INS moved to vacate Judge Real's order, on the ground that the district court lacked jurisdiction to entertain petitions for naturalization filed by foreign address applicants. The district court denied the government's motion. The government then filed a Notice of Appeal and requested a stay pending the appeal. The district court denied the government's request for a stay. A different district court judge, Judge Tashima, denied cross motions for summary judgment in this proceeding. The government six weeks later dropped its appeal of Judge Real's order.

After denying summary judgment, the district court on the INS's motion ordered these proceedings stayed pending the final decision in Pangilinan. The applicants appealed, maintaining that this court has jurisdiction under 28 U.S.C. Sec. 1292(a)(1). A motions panel of this court properly held that we have jurisdiction under Sec. 1292(a)(1) to hear the appeal.

DISCUSSION

Jurisdiction

Section 1292(a)(1) provides jurisdiction over "[i]nterlocutory orders of the district court of the United States ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court." The district court denied the applicants' motion for summary judgment and stayed the actions pending the final decision in Pangilinan.

Normally, an appellate court lacks jurisdiction over an order denying summary judgment, Switzerland Cheese Association v. E. Horne's Market, 385 U.S. 23, 25, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966), on the theory that the district court merely postponed its consideration of the merits of the claim, and could still grant injunctive relief. An order denying summary judgment may be reviewed under section 1292(a)(1), however, if the order has the practical effect of denying a permanent injunction. EEOC v. Pan American World Airways, Inc., 796 F.2d 314 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 874, 93 L.Ed.2d 829 (1987). Pan American applies the three-part test set out in Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981): (1) does the order have the practical effect of a grant or denial of an injunction? (2) does the order have serious, perhaps irreparable consequences? and (3) is the order one that can be challenged effectively only by immediate appeal? Pan American, 796 F.2d at 316.

The government asserts that a writ of mandamus is not equivalent to an injunction. This is incorrect. In Tagupa v. East-West Center, Inc., 642 F.2d 1127 (9th Cir.1981), we held that in construing appealability under section 1292(a)(1), we consider the "substantial effect" of the district court's order rather than its "terminology." Id. at 1129 (quoting United States v. Cities Service Co., 410 F.2d 662, 663 n. 1 (1st Cir.1969)). Therefore, a denial of a petition for a writ of mandamus may be appealed under the section where, had the petitioner succeeded, the district court properly could have issued a mandatory injunction to compel the federal agency defendants to carry out their duties. Cf. Fallini v. Hodel, 783 F.2d 1343 (9th Cir.1986) (where the effect of a mandatory injunction is the same as a writ of mandamus, it is governed by similar considerations).

We find persuasive the arguments in favor of exercising jurisdiction. The combination of the denial of summary judgment and an indefinite stay of proceedings may foreclose many of the veterans, who are now quite elderly, from ever realizing their right, if any, to naturalization. Further, the veterans assert a preliminary right to have their applications processed, a right not before the court in Pangilinan. Even if final approval of the Category II veterans' petitions must await the Supreme Court's decision in Pangilinan, the petitions at least would have been processed and ready for a district court's naturalization decision. Finally, some of the plaintiffs may be Category I veterans, whose claims are not affected by Pangilinan.

We must also determine whether the court has jurisdiction to consider whether the stay was proper. The stay is part and parcel of the district court's order denying injunctive relief. Altho...