Wauchope v. U.S. Dept. of State

• Decision Date: 16 February 1993
• Docket Number: No. 91-15482,91-15482
• Citation: 985 F.2d 1407
• Parties: Valerie Isabelle WAUCHOPE; Ellen Mary Kinahan, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF STATE, Secretary of State, James Baker, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1407

985 F.2d 1407

Valerie Isabelle WAUCHOPE; Ellen Mary Kinahan, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF STATE, Secretary of State, James Baker, Defendants-Appellants.

No. 91-15482.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 12, 1992.

Decided Feb. 16, 1993.

John S. Koppel, U.S. Dept. of State, Washington, DC, for defendants-appellants.

Susanna Igleheart, James M. Byrne, Byrne, Igleheart & Byrne, San Francisco, CA, for plaintiffs-appellees.

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

Before FLETCHER, POOLE and T.G. NELSON, Circuit Judges.

FLETCHER, Circuit Judge:

The United States Department of State and the Secretary of State appeal the decision of the district court declaring two foreign-born offspring of United States citizen mothers to be citizens of the United States. We affirm.

I.

Valerie Wauchope was born in Canada, on July 11, 1931, to a United States citizen mother (Nora Greenaway Hunter, nee Armstrong, born in New York in 1904) and a Canadian citizen father. Both her parents are now deceased. On October 31, 1989, Wauchope applied for a United States passport in San Francisco, claiming that she was an American citizen by virtue of her mother's citizenship. Her application was denied on the grounds that the relevant statute, Section 1993 of the Revised Statutes of 1874, awards United States citizenship to the foreign-born offspring of United States citizen fathers but not to the foreign-born offspring of United States citizen mothers. ¹ Section 1993 was amended in 1934 to provide that any child "hereafter born" outside of the United States to either a United States citizen father or mother is also a United States citizen given the fulfillment of certain residency requirements. Act of May 24, 1934, ch. 344, § 1, 48 Stat. 797. By its terms, however, the amendment did not apply to individuals like Wauchope who were born prior to its enactment. "[W]hen, in 1934, Congress finally granted citizenship rights to the foreign-born children of citizen mothers, 48 Stat. 797, it not only specifically made the provision prospective, but further made clear its view that this was a reversal of prior law." Montana v. Kennedy, 366 U.S. 308, 312, 81 S.Ct. 1336, 1339, 6 L.Ed.2d 313 (1961).

After exhausting her administrative remedies, Wauchope commenced this action in district court against the United States Department of State and the Secretary of State in his official capacity (the United States). She claimed that, prior to its amendment in 1934, Section 1993 violated the equal protection rights of American citizen females like her mother because it conferred United States citizenship only on the foreign-born children of United States citizen males. Wauchope sought an order enjoining defendants from rejecting her passport application and declaring her to be a citizen of the United States.

The district court granted Wauchope's motion for summary judgment in a published opinion filed January 31, 1991. Wauchope v. United States Department of State, 756 F.Supp. 1277 (N.D.Cal.1991). The court rejected the United States' arguments that Wauchope lacks standing to vindicate her mother's equal protection rights and that the defense of laches bars her suit. On the merits, it held that the gender-based distinction embodied in Section 1993 does not survive even the most deferential scrutiny, and hence represents a violation of the equal protection component of the Fifth Amendment's due process clause. The court concluded that it enjoyed the authority to award Wauchope citizenship as a remedy for the violation.

The parties subsequently stipulated that Wauchope's complaint be amended to add a second plaintiff, Ellen Kinahan. Kinahan was born on April 20, 1925 in Ireland to an American citizen mother (Mary Punch, nee Hartnett, born in New York in 1896) and an Irish citizen father. Both her parents are now deceased. Kinahan applied for a United States passport on December 3, 1990 but her application was denied on the same grounds as Wauchope's. On March 7, 1991, the district court granted the motion to amend the complaint and declared its order awarding Wauchope summary judgment applicable to Kinahan. This appeal followed.

II.

The United States argued below that the plaintiffs lack standing to press the claim that Section 1993 violates the equal protection rights of their mothers. While the United States has abandoned this argument on appeal, we have an obligation to address it as it calls into question the propriety of the district court's exercise of jurisdiction. Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 954 n. 4, 104 S.Ct. 2839, 2845 n. 4, 81 L.Ed.2d 786 (1984).

There is no dispute that the instant action satisfies the "case or controversy" requirement of Article III of the United States Constitution. The plaintiffs have suffered a concrete injury as a result of the United States' interpretation and enforcement of Section 1993: they have been denied United States citizenship. This showing of injury suffices to meet constitutional standing concerns. Id. at 954-55, 104 S.Ct. at 2845-46.

Since the plaintiffs seek to vindicate not their own constitutional rights but those of their mothers, they must also demonstrate that the prudential limitations imposed by the courts on assertions of third party standing do not serve as a bar to their action. "[A] plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). "This fundamental restriction on our authority admits of certain, limited exceptions. We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must have suffered an 'injury-in-fact,' thus giving him or her a 'sufficiently concrete interest' in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party's ability to protect his or her own interests." Powers v. Ohio, --- U.S. ----, ---- - ----, 111 S.Ct. 1364, 1370-71, 113 L.Ed.2d 411 (1991) (quoting Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976) (citations omitted)). Here, as explained above, the plaintiffs have suffered a concrete injury. Moreover, their interests coincide with those of their mothers and are equally as intense. Finally, their mothers are deceased and can no longer press an equal protection claim on their own behalf. Thus, the district court correctly concluded that the plaintiffs have standing to challenge Section 1993.

III.

The United States argues that the defense of laches bars the plaintiffs' claims of citizenship. Plaintiff Kinahan, it notes, was born in 1925, while plaintiff Wauchope was born in 1931. Not until 1989, however, did either one seek a United States passport, and not until 1990 did they commence their efforts in court to have Section 1993 declared unconstitutional.

"Laches is an equitable time limitation on a party's right to bring suit." Boone v. Mechanical Specialties Co., 609 F.2d 956, 958 (9th Cir.1979). To successfully establish the defense, "a party must show (1) there was inexcusable delay in the assertion of a known right and (2) the party asserting laches has been prejudiced." Barona Group of the Capitan Grande Band of Mission Indians v. American Management & Amusement, Inc., 840 F.2d 1394, 1407 (9th Cir.1988), cert. dismissed, 487 U.S. 1247, 109 S.Ct. 7, 101 L.Ed.2d 958 (1988); see also Trustees for Alaska Laborers v. Ferrell, 812 F.2d 512, 518 (9th Cir.1987).

Here, the plaintiffs are not guilty of inexcusable delay in the assertion of a known right. It was not until 1989 that a court (the same district court that ruled on the plaintiffs' arguments below) found Section 1993 to violate the equal protection rights of United States citizen mothers. See Elias v. United States Department of State, 721 F.Supp. 243 (N.D.Cal.1989). Prior to that time, the Supreme Court, while not passing on the constitutionality of Section 1993, had unequivocally declared that as a matter of statutory construction the children of United States citizen mothers born outside of this country before 1934 were not entitled to United States citizenship. "[W]e hold that at the time of petitioner's birth [prior to 1934], R.S. § 1993 provided the sole source of inherited citizenship status for foreign-born children of American parents. That statute cannot avail this petitioner, who is the foreign-born child of an alien father." Kennedy, 366 U.S. at 312, 81 S.Ct. at 1339. As the district court noted, plaintiffs filed suit only months after its favorable decision in Elias was handed down. We conclude there was no inexcusable delay in bringing their action. See Mission Indians, 840 F.2d at 1407 ("AMA has failed to demonstrate inexcusable delay or prejudice. The Band filed this action six days after our decision in A.K. Management [Co. v. San Manuel Band of Mission Indians, 789 F.2d 785 (9th Cir.1986) ] established that tribal bingo management agreements are void without BIA approval.").

Furthermore, the United States has made no showing of prejudice arising from the plaintiffs' delay. For the purposes of a laches defense, prejudice typically refers to the fact that a defendant no longer has witnesses or evidence available to it as a result of the passage of time, or that it has altered its position in reliance on a plaintiff's inaction. " 'Common forms of prejudice to defendant are loss of evidence to meet the claim of plaintiff, change in situation induced by the delay, and change in the value of the subject-matter involved....' " TransWorld Airlines, Inc. v. American Coupon Exchange, Inc., 913 F.2d 676, 696 (9th Cir.1990) (quoting H....