Smith v. Pangilinan, 79-4437

• Decision Date: 01 October 1981
• Docket Number: No. 79-4437,79-4437
• Parties: William French SMITH, * successor to Benjamin R. Civiletti, Attorney General, Appellant, v. Eduardo P. PANGILINAN, et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1320

651 F.2d 1320

William French SMITH, ^* successor to Benjamin R.

Civiletti, Attorney General, Appellant, v. Eduardo P. PANGILINAN, et al., Appellees.

No. 79-4437.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 19, 1980.

Decided July 31, 1981.

As Amended on Denial of Rehearing and Rehearing En Banc Oct. 1, 1981.

Robert J. Erickson, Washington, D. C., for appellant.

Michael A. White, Saipan, Northern Mariana Islands, for appellees.

Appeal from the District Court for the Northern Mariana Islands.

Before MERRILL, DUNIWAY and TANG, Circuit Judges.

DUNIWAY, Circuit Judge:

The Attorney General of the United States appeals from the district court's denial of his motions to intervene brought under Rule 24(a) and Rule 24(b), F.R.Civ.P. We reverse.

I. Facts.

Since 1947, the United States has governed the Northern Mariana Islands, which are part of a larger area known as Micronesia, under the title "Trust Territory of the Pacific Islands." See Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, 61 Stat. 3301, T.I.A.S. No. 1665.

In 1975, the United States and the people of the Northern Mariana Islands entered into an agreement entitled "Covenant to Establish a Commonwealth of Northern Mariana Islands in Political Union with the United States of America." The Covenant was approved by the Congress, on March 26, 1976. See Pub.L. 94-241, 90 Stat. 263 (1976), reprinted in 48 U.S.C. § 1681 app., at 1409 (1976). The Covenant delineates the political relationship between the United States and the Northern Marianas government, and governs the latter's evolution from trusteeship status to commonwealth status.

Relevant here are the Covenant sections pertaining to nationality and citizenship. Article III, Section 301 of the Covenant provides that Trust Territory citizens and noncitizens meeting certain domicile requirements will become United States citizens in 1981. ¹ Prior to 1981, Article III, Section 304 of the Covenant confers some of the rights inhering in United States citizenship. Effective in 1978, ² Section 304 provides: "Citizens of the Northern Mariana Islands will be entitled to all privileges and immunities of citizens in the several States of the United States. ³

The Covenant provides, in Article II, section 201 that "(t)he people of the Northern Mariana Islands will formulate and approve a Constitution and may amend their Constitution pursuant to the procedures provided therein." Pub.L. 94-241, 90 Stat. at 265 (1976), reprinted in 48 U.S.C. § 1681 app., at 1409 (1976). The Constitution became effective on January 8, 1978, under the authority of a Presidential proclamation issued October 24, 1977. See Presidential Proclamation No. 4534, 42 Fed.Reg. 56,593 (1977), reprinted in 48 U.S.C. § 1681 app., at 1405 (Supp. I 1977). There is a Schedule of Transitional Matters in the Constitution, Section 8 of which contains an "Interim Definition of Citizenship" that is identical to the provisions of Article III, Section 301, of the Covenant. ⁴

In 1978, the "Certificate of Identity Act of 1978" was adopted by the Northern Marianas Commonwealth Legislature. The title of the Certificate of Identity Act states its purpose:

To establish a procedure for the issuance of a Certificate of Identity to all persons in the Northern Mariana Islands who will derive citizenship of the United States of America upon termination of the Trusteeship Agreement and who are entitled to all the privileges and immunities of citizens in the several states of the United States; ...

This purpose is more fully stated in Section 2 of the Act:

The purpose of this Act is to establish a procedure to identify those persons in the Northern Mariana Islands who are interim citizens of the United States pursuant to the provisions of the Constitution of the Northern Marianas, Schedule on Transitional Matters, Section 8, who are entitled to all privileges and immunities of citizens in the several states of the United States pursuant to Article III, Section 304, of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America; to provide for the issuance of a Certificate of Identity thereto Section 3 of the Act defines the persons who are to receive Certificates of Identity. ⁵ This section is substantially identical to Article III, section 301 of the Covenant and to Section 8 of the Schedule of Transitional Matters of the Constitution. The certificates identify the holder as a citizen of the Commonwealth of the Northern Mariana Islands in Political Union with the United States. The United States government gives certificate holders unrestricted access to the United States, and American consular protection.

On January 17, 1979, a class action was filed in the District Court for the Northern Mariana Islands against the Commonwealth Immigration Officer and the Governor of the Northern Mariana Islands. The plaintiffs, representing themselves and 120 similarly situated Filipinos, had previously been denied certificates of identity by the Northern Marianas government. The plaintiffs alleged that they had been continuously domiciled in the Northern Mariana Islands since January 1, 1974, and that they owed no allegiance to any foreign state. From these facts, the plaintiffs contended that they met all the requirements of section 8 of the Transitional Schedule of the Northern Mariana Constitution and were therefore entitled to certificates of identity as authorized under the Certificate of Identity Act. The defendants responded by denying the factual allegations underlying the plaintiffs' claim.

On February 28, 1979, the Attorney General moved on behalf of the United States to intervene as a party defendant. He argued that the United States has a special interest in contesting the plaintiffs' claim to certificates of identity which would be impaired if intervention was denied. The Attorney General moved alternatively for permissive intervention.

Following a hearing, the district court denied both intervention motions. Although the court agreed that the grant of United States citizenship was a matter of concern to the United States, it concluded that the litigation did not involve the issue of United States citizenship or the Covenant sections dealing with United States citizenship. The court concluded that intervention was not warranted, because the United States would not be adversely affected by the outcome of the case and its ability to protect its interest under Covenant Section 301 would not be impaired when the section became effective in 1981.

II. Intervention as of Right.

Rule 24(a) of the Federal Rules of Civil Procedure authorizes intervention as of right if an applicant satisfies a four-part test: (1) the applicant's motion must be timely; (2) the applicant must assert an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that without intervention the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; and (4) the applicant's interest must be inadequately represented by the other parties. F.R.Civ.P. 24(a)(2). See also County of Fresno v. Andrus, 9 Cir., 1980, 622 F.2d 436, 438.

The principal issue here is whether the Attorney General has an "interest" in the underlying action within the meaning of Rule 24(a). To meet this requirement, an applicant for intervention need not show that he has a legal or equitable interest in jeopardy. Id. at 438; Blake v. Pallan, 9 Cir., 1977, 554 F.2d 947, 952. An applicant, however, must show that he has a "protectable interest" in the outcome of the litigation of sufficient magnitude to warrant inclusion in the action. See Donaldson v. United States, 1971, 400 U.S. 517, 531, 91 S.Ct. 534, 542, 27 L.Ed.2d 580.

We hold that the Attorney General has such a protectable interest in this case. It is true that the case involves a Certificate of Identity to be issued by the Government of the Northern Marianas under an Act of the legislature of that government. If that were all that is involved, we would agree with the district court. But the case is not so simple.

As we have seen, the title of the Act states that its purpose is to establish a procedure "for the issuance of a Certificate of Identity to all persons in the Northern Mariana Islands who will derive citizenship of the United States of America upon termination of the Trusteeship Agreement...." That is what Article III, section 301 of the Covenant provides for. Section 2 of the Act, quoted, supra, enlarges upon the purpose and expressly ties the Certificate of Identity to Article III, Section 304 of the Covenant and Section 8 of the Schedule of Transitional Matters of the Constitution of the Northern Marianas.

The definition of persons who will derive their citizenship of the United States appears in Article III, Section 301 of the Covenant, in Section 8 of the Schedule of Transitional Matters of the Constitution of the Northern Marianas, and in Section 3 of the Certificate of Identity Act. These definitions are in substance, and almost verbatim, the same. Thus, the Certificate of Identity issued under the Act is designed, expressly, to identify those persons who will become citizens of the United States, and the definition in Section 3 of the Act was obviously derived from Section 301 of the Covenant and Section 8 of the Schedule of the Constitution. The three documents could not be more closely tied together. It seems obvious that an objective of the Act was to set up a mechanism to identify the new United States citizens before their U.S. citizenship becomes effective, thus facilitating their exercise of their rights as U.S. citizens, including their right to enter and remain in the United States. No doubt that is why, as the Attorney General tells us, the Immigration and Naturalization Service, by...