Appeal from a final judgment of the United States District Court for the Southern District of New York, Leonard B. Sand, Judge, 497 F. Supp. 1023, dismissing a complaint challenging the denial of federal employment to a resident alien under 31 U.S.C. § 699b. Affirmed.
Before Van Graafeiland and Kearse, Circuit Judges and Stewart,*fn* District Judge.
Plaintiff-appellant Veronica Yuen appeals from a final judgment of the United States District Court for the Southern District of New York, Leonard B. Sand, Judge, dismissing her complaint against the United States Internal Revenue Service ("IRS") and certain of its employees for denial of employment with IRS. IRS refused to employ Yuen on the ground that a statutory provision entitled "Citizenship requirement for federal employees compensated from appropriated funds," codified at 31 U.S.C. § 699b (Supp. III 1979) (hereinafter, together with its predecessor statutes, referred to as the "Appropriations Act" or the "Act"), prohibits employment by the federal government of persons other than United States citizens and certain groups of noncitizens that IRS contends do not include Yuen. Yuen contended that the proper construction of the Act does not, and could not constitutionally, exclude her from employment. The district court upheld IRS's interpretation of the Act and ruled that the Act, as construed, does not deprive Yuen of the equal protection of the law. We agree.
The case involves the interpretation and constitutionality of 31 U.S.C. § 699b which, in effect, prohibits the federal government from employing in the continental United States any person
unless such person (1) is a citizen of the United States, (2) is a person in the service of the United States on September 29, 1979, who, being eligible for citizenship, has filed a declaration of intention to become a citizen of the United States prior to such date and is actually residing in the United States, (3) is a person who owes allegiance to the United States, (4) is an alien from Cuba, Poland, South Vietnam, or the Baltic countries lawfully admitted to the United States for permanent residence, or (5) South Vietnamese, Cambodian and Laotian refugees paroled into the United States between January 1, 1975, and September 29, 1979*fn1
The relevant facts were stipulated and are set forth in greater detail in the district court's opinion, reported at 497 F. Supp. 1023, familiarity with which is assumed. Briefly, Yuen is a Chinese citizen, permanently residing in the United States, who in April 1980 applied for employment with the IRS. IRS offered Yuen a position, and she accepted the offer on the same day, after terminating other employment. Later that day, IRS realized that Yuen was a citizen of China rather than the United States (a fact disclosed on her written application). Believing that § 699b barred its employment of Yuen, IRS promptly informed her that citizenship was required for the position she had sought (a fact not disclosed in IRS's solicitation of applications), and that she was therefore not to report for work with IRS.
Yuen commenced the present action, alleging breach of contract and violation of her rights to equal protection and due process. The complaint sought $10,000 in damages and an injunction compelling IRS to hire Yuen.
After commencing the action, Yuen executed an affidavit which stated as follows:
I, VERONICA YUEN, do solemnly swear (or affirm) that I will support (and) defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same. So help me God.
Yuen contends, and IRS disputes, that on the basis of this affidavit she "is a person who owes allegiance to the United States" within the meaning of category (3) of § 699b.*fn2 In support of her position, Yuen pointed to the opinion of the Supreme Court in Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S. Ct. 1895, 48 L. Ed. 2d 495 (1976), in which, while ruling on the constitutionality of certain regulations of the United States Civil Service Commission ("CSC" or "Commission"), the Court stated as follows:
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). Yuen argued that she was entitled to judgment on the basis of this language, plus the provision in § 699b 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 " Alternatively, she argued that if the statute were construed to bar her employment, it impermissibly distinguished among aliens on the basis of their nationalities, in violation of the Equal Protection Clause of the Constitution.
In an able opinion, Judge Sand granted summary judgment dismissing the complaint. He held, first, that the dicta in Hampton did not foreclose inquiry into the meaning of § 699b(3), 497 F. Supp. at 1028; second, that the language and legislative history of that section, reinforced by the history of similar language in other statutory provisions, led to the conclusion that the phrase "a person who owes allegiance to the United States" was intended to mean a noncitizen national of the United States rather than a nonnational alien who merely executes an affidavit, id. at 1035-36; and finally, that Congress's ...