Duncan, In re, 82-4322

• Decision Date: 19 August 1983
• Docket Number: No. 82-4322,82-4322
• Citation: 713 F.2d 538
• Parties: In re: Petition for Naturalization of Charles Peter DUNCAN. Charles Peter DUNCAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 538

713 F.2d 538

In re: Petition for Naturalization of Charles Peter DUNCAN.

Charles Peter DUNCAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 82-4322.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 1983.

Decided Aug. 19, 1983.

Edward V. Anderson, Pillsbury, Madison & Sutro, San Francisco, Cal., for petitioner-appellant.

Leonard A. Rosenberg, U.S. Dept. of Justice, Washington, D.C., George Christopher Stoll, Asst. U.S. Atty., San Francisco, Cal., for respondent-appellee.

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

Before ANDERSON, SKOPIL and NORRIS, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Duncan appeals from the denial of his petition for naturalization. The INS recommended denial because Duncan declined to answer four questions on the Application to File Petition for Naturalization dealing with prior criminal activity, membership in organizations, belief in Communism, and moral character. Duncan objected to the four questions on grounds they violated his First Amendment rights of free speech and association, and his Fifth Amendment due process and self-incrimination interests. We affirm on grounds of issue preclusion without reaching the constitutional questions.

I.

Duncan is a native of Great Britain and a physical oceanographer by profession. He became a lawful permanent resident of the United States on May 20, 1971, and married an American citizen in 1972. At the time of his application for citizenship in 1977, Duncan was a resident of Puerto Rico. He was interviewed by an INS officer, who, having found him qualified, submitted a petition on his behalf seeking an order of naturalization. Duncan subsequently moved to Washington, D.C. and his petition was transferred and set for hearing before the United States District Court for the Eastern District of Virginia.

Before the petition came on for hearing and adjudication, the INS presented Duncan with INS Form N445 seeking information on developments subsequent to the initial filing. Objecting to several of the questions on constitutional grounds, Duncan declined to provide the information called for by Form N445. On December 18, 1978, Duncan's petition was denied for refusal to complete the required forms and prosecute the petition. The district court in Virginia determined that Duncan's constitutional challenge was without merit. In its denial of Duncan's motion for reconsideration, the court explained that Duncan may at any time reapply for naturalization, so long as he answered all questions listed in Form N445.

In July 1979, Duncan moved to California and reapplied for citizenship in San Francisco. During the preliminary investigation and examination, Duncan refused to answer questions on Form N400, the Application to file Petition for Naturalization, dealing with prior criminal activity, membership in organizations, belief in Communism, and moral character. Duncan further refused to swear to the petition unless Averment 12 (attesting to non-membership in various organizations prohibited by the Act) was deleted. The form was processed by the INS but Duncan was advised that his refusals to answer and deletions would be bases for the INS' recommending his petition be denied.

The designated naturalization examiner found that the questions Duncan refused to answer were all subjects of proper inquiry to a petitioner for naturalization in that they "give effect" to the provisions of the naturalization statutes, within the meaning of 8 U.S.C. § 1443(c). Holding that Duncan had failed to meet his burden of proving naturalization eligibility in several respects, the designated examiner found it unnecessary to decide whether Duncan actually had constitutional justifications for his refusals to answer. He recommended Duncan's petition be denied. The district court adopted most of the designated examiner's findings of fact and conclusions of law and denied the petition.

II.

We begin with the effect of the Virginia court's order denying Duncan's original petition for naturalization. While the district court alluded to the preclusive effect of that order on this proceeding, it did not approach it directly in terms of the doctrine of issue preclusion. Instead, it characterized the Virginia proceeding as imposing on Duncan an order not to re-petition for naturalization unless he answered all questions on the application forms. The court based its denial of Duncan's petition, in part, on the determination that Duncan had violated the Virginia order by refusing to answer similar questions in California.

We characterize the Virginia order somewhat differently, although our result is the same. Our reading of the record indicates the Virginia court did not enjoin Duncan from re-petitioning for naturalization, nor did it formally order him to answer Form N445's questions if he did re-petition. It merely explained to him that he had the right to re-petition at any time, but that he must answer all questions on Form N445 because his constitutional challenge would not again be entertained. It is obvious the Virginia court intended its judgment to be conclusive on the issue of Duncan's constitutional right to refuse to answer questions on Form N445. Thus, the doctrine of issue preclusion is squarely raised by the record.

We can affirm on any basis presented by the record. M.O.S. Corp. v. John I. Haas Co., 375 F.2d 614, 617 (9th Cir.1967). Duncan suffers no prejudice from our analyzing the case in this manner since he devoted a portion of his briefs to issue preclusion. Moreover, we are directed to consider non-constitutional bases for disposition before proceeding to pass upon constitutional questions. Gulf Oil Co. v. Bernard, 452 U.S. 89, 99, 101 S.Ct. 2193, 2199, 68 L.Ed.2d 693, 702 (1981); Polar Shipping Limited v. Oriental Shipping Corp., 680 F.2d 627, 630 (9th Cir.1982).

III.

The doctrine of issue preclusion forecloses relitigation of those issues of fact or law that were actually litigated and necessarily decided by a valid and final judgment in a prior action between the parties. Segal v. American Telephone & Telegraph Co., 606 F.2d 842, 845 (9th Cir.1979). The doctrine encompasses both the principles of collateral and direct estoppel. Issue preclusion in a second action on the same claim is designated direct estoppel, while issue preclusion in a second action brought on a different claim is termed collateral estoppel. Restatement (Second) of Judgments § 27 comment b (1982); 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4402, at 9-10 (1981).

Initially, we must decide whether a naturalization case is appropriate for the application of litigation-foreclosure principles. The Supreme Court has said that "while a proceeding for the naturalization of an alien is, in a certain sense, a judicial proceeding, being conducted in a court of record and made a matter of record therein, yet it is not in any sense an adversary proceeding." Johannessen v. United States, 225 U.S. 227, 236-237, 32 S.Ct. 613, 614-615, 56 L.Ed. 1066, 1069-70 (1912). The Johannessen Court went on to explain that in the typical naturalization proceeding, the petitioner proceeds ex parte and is not required to make the government a party nor give it notice. Id. at 237, 32 S.Ct. at 615, 56 L.Ed. at 1070. For these reasons, the Court in Johannessen rejected the defendant's claim that a prior judgment of naturalization precluded the government from instituting denaturalization proceedings. Accord Maney v. United States, 278 U.S. 17, 49 S.Ct. 15, 73 L.Ed. 156 (1928). Later, in United States v. Ness, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321 (1917), the Court held that the initiation of denaturalization proceedings was not foreclosed even though the Immigration and Nationality Act allowed the government to participate as an adverse party in the original naturalization proceedings. The Ness Court relied on Congress' clear intent "to afford cumulative protection against fraudulent or illegal naturalization." Id. at 327, 38 S.Ct. at 121, 62 L.Ed.2d at 324. ¹

On the other hand, the Supreme Court has made clear that a naturalization proceeding is in every sense a "case" and a decree of naturalization is a "judgment." Tutun v. United States, 270 U.S. 568, 46 S.Ct. 425, 70 L.Ed. 738 (1926). That is so notwithstanding Congress' provision for the denaturalization of persons whose citizenship was fraudulently or otherwise illegally procured. Id. at 576, 46 S.Ct. at 426, 70 L.Ed. at 741. It is also true notwithstanding the petitioner's continuing right to reapply for naturalization. Id. We see no reason why constitutional issues decided by the district court in arriving at its judgment on a petition for naturalization should not be accorded the same preclusive effect they enjoy in other judicial processes.

In the instant case, the judgment of the Eastern District of Virginia to deny Duncan's petition was rendered only after considering his constitutional arguments. The INS contested Duncan's petition and recommended it be denied. Duncan presented arguments against that recommendation. The litigation was, beyond any doubt, adversarial. Duncan moved the court to reconsider its judgment but it declined. At that point, the order was appealable to the United States Court of Appeals for the Fourth Circuit, where Duncan could have raised precisely the constitutional arguments he raises here. Duncan chose not to appeal, but instead to reapply for naturalization and raise his constitutional argument anew in another federal district court. Under these circumstances, we will not hesitate to analyze this case in terms of issue preclusion.

IV.

Only a valid judgment will foreclose subsequent litigation. Davis v. Chevy Chase Financial Limited, 667 F.2d 160, 172 (D.C.Cir.1981). Duncan argues the Virginia court's judgment was invalid because that court lacked jurisdiction. Under...