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YUEN v. IRS

August 27, 1980

Veronica YUEN, Plaintiff,
v.
INTERNAL REVENUE SERVICE et al., Defendants



The opinion of the court was delivered by: SAND

Plaintiff is a permanent resident alien who claims that she sought and was unlawfully denied federal employment solely on account of her alienage. *fn1" Plaintiff first contends that she "owes allegiance" to the United States *fn2" and is therefore eligible for federal employment under 31 U.S.C. § 699b (Supp.1980), (referred to hereinafter as the "appropriation act" or "§ 699b"), which, with certain exceptions, effectively limits federal employment opportunities to citizens, aliens from specifically enumerated countries, and those who "owe allegiance" to the United States. *fn3" Alternatively, 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 aliens eligible to work and receive compensation and those aliens not eligible to work and receive compensation is unconstitutional and deprives 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 injunctive relief was denied. *fn4" 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 stipulated facts. *fn5" After considering a series of briefs submitted by each side, *fn6" 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 employment application (Standard Form 171) and at 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 employment." (Yuen Aff. p. 7). *fn7"

 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 employment commitment of which defendants were apparently aware (Yuen Aff. pp. 3, 4), Ms. Yuen telephoned Imbesi later in the day on 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 immediately rescinded the offer. *fn8" (Walker Aff. pp. 6, 7). Although the interval of time between the offer of employment and its withdrawal was thus no more than several hours, it was long enough for plaintiff to have obtained 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).

 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" provision of § 699b(5). *fn9" 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 States possessions such as Puerto Rico or the Philippines, from a newly imposed citizenship requirement, *fn10" 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 Court's decision in Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S. Ct. 1895, 48 L. Ed. 2d 495 (1976) (Hampton I.)

 Plaintiff applied for federal employment on April 6, 1980 and was offered, accepted and ultimately denied a Legal Research Assistant's position on May 29, 1980. Since her oath of allegiance, on which she relies exclusively to establish her statutory claim, *fn11" 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 interpretation 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 interpretation 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 Civil Service employment *fn12" and which was not mandated by either Congress or the President deprived aliens of liberty without due process of law. *fn13" Addressing the question whether the CSC regulation at issue was mandated by Congress, the Court examined, inter alia, the citizenship requirements contained in Appropriation Acts similar to the one currently before us. *fn14" 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 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 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 person who owes allegiance to the United States' in the appropriations act may include an alien" and that the principles of stare decisis bar a reconsideration of that issue by this Court. (Plaintiff's Response To Defendant's Memorandum of Law at 6; Plaintiff's Further Memorandum of Law at 5-7). The government 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 appropriations act." (Memorandum of Law In Opposition to Plaintiff's Motion For A Preliminary Injunction at 15; Defendants' Supplemental Memorandum at 16-17).

 Plaintiff's contention is not without initial appeal. Although the Court's suggestion 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 not foreclose an analysis of that question by this Court.

 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" provision, *fn15" , however, was not essential to the conclusion that the CSC rule was not mandated by Congress. Even if an oath alone cannot qualify aliens for federal employment under the appropriation acts, "the statutory category . . . is (still) plainly more flexible and expansive than the Commission rule." *fn16" 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 appropriate 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 Constitution of the United States. *fn17" 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 government 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 to a nation, sovereign or cause. *fn18" It is impossible, however, to assign meaning to a particular use of the term without understanding 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 . . . understood"), citing Koessler, " "Subject,' "Citizen', "National' and "Permanent Allegiance,' " 56 Yale L.J. 58, 67-69 (1946). *fn19" Unfortunately, the language of § 699b provides no guidance as to how Congress intended to define "allegiance" 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 meaningless the appropriation act's specific exceptions for aliens from the enumerated countries.

 
"(Having) 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 under other subsections of the statute." *fn20" (Memorandum of Law In Opposition To Plaintiff's Motion For A Preliminary Injunction at 17).
 
Plaintiff argues that acceptance of her interpretation of the statute would not undermine 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 Memorandum of Law at 18). *fn21"
 
While plaintiff's argument is not without merit, we are not convinced that Congress, by exempting specified aliens from a general citizenship requirement for federal employment, 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 intended to restrict federal employment to persons with a clearly demonstrable affinity to the United States, i. e., citizenship, "allegiance" or, under some circumstances, an intent to become a citizen, and to specified groups of aliens upon whom the benefit of eligibility for such employment is for one reason or another bestowed. *fn22" Plaintiff's interpretation of the "owes allegiance" provision 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 currently in the "service" *fn23" of the United States who are eligible for citizenship must 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 effectively 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. *fn24" During the House debate on the two appropriation bills, *fn25" an amendment restricting federal employment to citizens of the United States was offered by Congressman Starnes. *fn26" 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 institutions 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 ...

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