United States v. Breyer ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
11-14-1994
United States v. Breyer
Precedential or Non-Precedential:
Docket 94-1301
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
Recommended Citation
"United States v. Breyer" (1994). 1994 Decisions. Paper 184.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/184
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-1301
___________
UNITED STATES OF AMERICA
vs.
JOHANN BREYER, aka JOHN BREYER,
JOHANN PAUL BREUER, JAN PAVEL BREUER,
JAN PAVEL BREYER, HANS BREYER
Johann Breyer,
Appellant
___________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ No. 92-cv-02319)
___________
Argued
September 13, 1994
Before: SLOVITER, Chief Judge,
MANSMANN and ALARCON,* Circuit Judges.
(Filed November 14, 1994)
___________
Joseph V. Restifo, Esquire (Argued)
Suite 2525
12 South 12th Street
PSFS Building
Philadelphia, PA 19107
Counsel for Appellant
Eli M. Rosenbaum, Acting Director
Ronnie L. Edelman, Deputy Director
Denise Noonan Slavin, Sr. Trial Attorney
Michael D. Bergman, Trial Attorney (Argued)
Joseph J. Malcolm, Trial Attorney
Office of Special Investigations
Criminal Division
U.S. Department of Justice
1001 G Street, N.W., Suite 1000
Washington, DC 20530
Counsel for Appellee
* Honorable Arthur L. Alarcon of the United States Court
of Appeals for the Ninth Circuit, sitting by designation.
___________
OPINION OF THE COURT
__________
MANSMANN, Circuit Judge.
The United States commenced an action under the
Immigration and Nationality Act of 1952, as amended, U.S.C. §§
1101 et seq., against Johann Breyer, seeking his denaturalization
based on his service as an armed guard in Nazi concentration
camps during World War II. Breyer's naturalization was premised
on his 1952 entry into the United States as a displaced person
under the Displaced Persons Act of 1948, Pub. L. No. 80-774, 62
Stat. 1009, amended by Pub. L. No. 81-555, 64 Stat. 219 (1950).
Although Breyer essentially conceded that he was ineligible for
displaced persons status as a result of his wartime activities,
he challenged the government's right to denaturalize him,
asserting that in retrospect, he should be deemed to have entered
this country in 1952 lawfully as a United States citizen, having
derived citizenship through his mother. The district court
granted summary judgment in the government's favor, which served
to denaturalize Breyer. Nonetheless, the court determined that
the derivative citizenship statute in effect at the time of
Breyer's birth, which awarded citizenship only to persons born to
United States citizen fathers, was unconstitutional, but
abstained from declaring Breyer a United States citizen because
of a pending administrative proceeding he had initiated for this
purpose. The issues we address are whether Breyer was properly
denaturalized and whether the district court should have reached
Breyer's derivative citizenship claim.
I.
The material facts surrounding Breyer's entry into the
United States and subsequent naturalization are not in dispute.
Breyer was born on May 30, 1925, in Neuwalddorf, now known as
Nova Lesna in the Republic of Slovakia. As a young man, he
joined the Waffen SS, a Nazi paramilitary group, and ultimately
became a member of the SS Totenkopfsturmbanne (Death's Head)
Battalion. The SS Totenkopfsturmbanne was responsible for
guarding Nazi concentration camps, where people were forcibly
confined in inhumane conditions, subjected to unspeakable
atrocities and executed because of their race, religion, national
origin or political beliefs.
Breyer was initially assigned to the Buchenwald
concentration camp where he served in the SS Totenkopf guard unit
from February, 1943 to May, 1944. At Buchenwald, Breyer was
trained to use a rifle and guard prisoners. In uniform, Breyer
accompanied prisoners to and from work sites, and stood guard
with a loaded rifle at the perimeter of the camp, under orders to
shoot any prisoner trying to escape who failed to heed a warning
to stop. In May, 1944, Breyer was transferred to Auschwitz, a
death camp complex established in Nazi-occupied Poland. Again
uniformed as an SS Totenkopf guard and armed with a rifle, Breyer
patrolled the camp's perimeters and escorted prisoners to and
from work. In August, 1944, Breyer took a paid leave, never to
return to guard duty. While Breyer denied that he personally
engaged in any abuse of prisoners, he was aware that prisoners
were tortured and killed at Buchenwald and Auschwitz.
In May, 1951, Breyer applied to the United States
Displaced Persons Commission to be qualified as a displaced
person under the Displaced Persons Act for purposes of obtaining
a visa to immigrate to the United States. His application was
initially rejected because he had served in the Waffen SS.
Several months later, the criteria for eligibility under the Act
changed, so that membership in the Waffen SS was no longer a bar
to displaced person status. In an interview with the Commission,
Breyer disclosed that he was a member of the Waffen SS, but did
not disclose his membership in the SS Totenkopf. On March 28,
1952, the Commission certified Breyer as a displaced person
eligible for a visa.
Breyer then applied to immigrate to the United States
as an alien under the Act. He was granted an immigrant visa and
entered the United States in May, 1952. Thereafter, Breyer filed
a petition for naturalization and on November 7, 1957, the United
States District Court for the Eastern District of Pennsylvania
granted his petition and issued a certificate of naturalization.
On April 21, 1992, the government filed a five-count
complaint under section 1451(a) of the Immigration and
Nationality Act to revoke and set aside Breyer's naturalized
United States citizenship on the grounds that it was illegally
procured (Counts I, II, III, IV) or was procured by concealment
or willful misrepresentation (Count V).1 In an amendment to his
answer, Breyer set forth as an "affirmative defense" the
allegation that he was a derivative citizen of the United States.
Breyer asserted that his citizenship was derived from his mother,
who he alleged was born in Philadelphia, Pennsylvania.2
1
. Section 1451(a) states in pertinent part:
§ 1451. Revocation of naturalization
(a) Concealment of material evidence; refusal to
testify
It shall be the duty of the United States attorneys for
the respective districts, upon affidavit showing good
cause therefor, to institute proceedings in any
district court of the United States . . . for the
purpose of revoking and setting aside the order
admitting such person to citizenship and canceling the
certificate of naturalization on the ground that such
order and certificate of naturalization were illegally
procured or were procured by concealment of a material
fact or by willful misrepresentation . . . .
2
. United States citizenship is acquired under the United
States Constitution or by federal statute. Persons born in the
United States are automatically citizens under the Fourteenth
Amendment. Alternatively, a person may have a statutory right to
United States derivative citizenship through certain familial
relationships. The applicable statute has been revised over the
years. When Breyer was born, section 1993 of the Revised Statute
of 1874 granted United States citizenship to foreign-born
offspring of United States citizen fathers, but not of United
States citizen mothers. Section 1993 was amended in 1934 to make
it gender neutral, and thereafter, it was repealed and replaced.
Presently, derivative citizenship is granted to all foreign-born
children of either American citizen parent. 8 U.S.C. § 1401.
In October, 1994, Congress enacted legislation which
amends 8 U.S.C. § 1401 to eliminate retroactively the gender
distinction in section 1993. Under the amendment, persons born
abroad before noon May 24, 1934 to a United States citizen mother
obtain citizenship. Pub. L. No. 103-416, 108 Stat. 4305 (1994).
The amendment also provides that the retroactive application of
the amendment shall not confer citizenship upon any person who
was ineligible for admission into the United States under the
On October 30, 1992, pursuant to section 1452(a),
Breyer filed an Application for Certificate of Citizenship with
the Immigration and Naturalization Service, claiming derivative
citizenship through his mother,3 which is pending at the time of
this appeal.
In December, 1992, the government filed a motion for
summary judgment on Count I (Illegal Procurement of U.S.
Citizenship: Unlawful Admission under the Displaced Persons Act,
Assistance in Persecution) and Count II (Illegal Procurement of
U.S. Citizenship: Unlawful Admission under the Displaced Persons
Act, Membership In Hostile Movement). Attacking the lawfulness
of Breyer's 1952 entry, the government contended that Breyer was
excluded under the Displaced Persons Act from obtaining a visa
because of his SS Totenkopf guard service at Buchenwald and
Auschwitz. Since he was ineligible under the Act, the visa with
which he entered this country was invalid. Without a valid visa,
his entry was unlawful, and his naturalization, in turn, was
illegally procured.
Breyer's primary response to the government's motion
was his claim of derivative citizenship. According to Breyer,
(..continued)
Displaced Persons Act or affect the validity of a
denaturalization action against any such person. Id. Since this
legislation is not before us, we make no comment upon it.
3
. The Service is authorized to issue evidence of
derivative citizenship in the form of a Certificate of
Citizenship to persons who claim statutory derivative
citizenship. 8 U.S.C. § 1452(a); 8 C.F.R. § 341.1-.7 (1994).
The statutory procedure that persons with derivative citizenship
claims must follow is discussed on pp. 17-18, supra.
since he was a United States citizen through his mother at the
time of his 1952 entry, he entered the United States lawfully,
and thus, his naturalization was meaningless and not the means by
which he was entitled to citizenship.
On March 30, 1993, Breyer filed a motion to stay before
the district court, requesting that the government's
denaturalization action be stayed pending final resolution of his
derivative citizenship claim under consideration before the
Service. The court denied Breyer's motion on April 20, 1993.
On July 7, 1993, the district court issued an opinion
and order on the government's summary judgment motion in which it
analyzed the government's request for summary judgment and
Breyer's derivative citizenship defense separately. United
States v. Breyer, 829 F. Supp. 773 (E.D. Pa. 1993). The district
court found, as the government asserted, that Breyer's
concentration camp guard service was a bar to eligibility under
the Displaced Persons Act, rendering his visa invalid and his
entry unlawful, and concluded that Breyer's naturalization was
illegally procured.
The district court then turned to the merits of
Breyer's derivative citizenship claim, specifically whether
section 1993 of the Revised Statute of 1874 violated Breyer's
Fifth Amendment equal protection rights since at the time of
Breyer's birth, the statute awarded citizenship to foreign-born
offspring of United States citizen fathers but not of United
States citizen mothers. The district court found section 1993
unconstitutional as applied to Breyer, but deferred a ruling on
the appropriate remedy pending the outcome of a bench trial on
the disputed issue of Breyer's mother's birthplace. The district
court's July 7, 1993 order granted the government's motion for
summary judgment on Counts I and II, without prejudice to
Breyer's right to pursue the issue of derivative United States
citizenship as an affirmative defense. The government
subsequently withdrew the other counts of the complaint.
After a bench trial to determine Breyer's mother's
birthplace, the district court rendered a second opinion and
order on December 21, 1993. United States v. Breyer, 841 F.
Supp. 679 (E.D. Pa. 1993). The district court found that
Breyer's mother was indeed born in the United States, and
concluded that the remedy for the unconstitutionality of section
1993 is to include United States mothers under the statute
retroactively. Nonetheless, because the district court also
concluded that a party must exhaust administrative remedies
before a federal court could issue a declaration of citizenship,
it "abstained" from resolving the issue of Breyer's derivative
citizenship to enable him to pursue to conclusion the
administrative proceeding he had initiated before the Service.
Accordingly, in its December 21, 1993 order, because the
government had prevailed on summary judgment, the district court
declared that Breyer procured his certificate of naturalization
illegally,4 set aside the order admitting Breyer to United States
4
. Even though the government withdrew Counts III, IV and
V of the complaint, the district court also found that Breyer
procured his certificate of naturalization by "willful
concealment and misrepresentation of material facts". In a post-
citizenship, canceled his certificate of naturalization and
demanded its surrender, and declared that Breyer's right to
pursue his derivative citizenship claim through the appropriate
channels was not prejudiced.5
On December 29, 1993, Breyer filed a motion for relief
from judgment and a motion to alter or amend judgment, which
requested essentially that the district court vacate its prior
orders.6 Breyer's post-trial motions were denied on January 20,
(..continued)
trial motion, Breyer requested that these words be stricken from
the court's December 21, 1993 order. In a January 24, 1994
order, the district court granted Breyer's request, striking the
words from its prior order as "superfluous". On appeal, Breyer
contends that the district court should have stricken the
language as "incorrect". We interpret the district court's use
of the word "superfluous" in this context to mean unnecessary and
invalid, and to provide Breyer essentially with the relief he
sought. Thus, we find that the district court did not err in the
language it used to modify its December 21, 1993 order.
5
. Although the court used the term "abstain", its
December 21, 1993 order was conclusive and the case was closed on
December 23, 1993. Therefore, the district court's December 21,
1993 order was final for purposes of appeal under 28 U.S.C. §
1291.
6
. As Breyer's December 29, 1993 motions asked the
district court to vacate its prior orders, both will be viewed as
Rule 59(e) motions to alter or amend the judgment, even though
one was styled a Rule 60(b) motion for relief from judgment.
Fed. R. Civ. P. 59, 60; Sonnenblick-Goldman Corp. v. Nowalk, 420
F.2d 858, 859 (3d Cir. 1970). A timely appeal from a denial of a
Rule 59 motion "`brings up the underlying judgment for review.'"
Federal Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir.
1986), quoting Quality Prefabrication, Inc. v. Daniel J. Keating
Co., 675 F.2d 77, 78 (3d Cir. 1982). Therefore, our standard of
review for a denial of a Rule 59 motion varies with the
underlying judicial decision. Federal Kemper, 807 F.2d at 348.
Here, it is the underlying summary judgment in favor of the
government, upon which the revocation of Breyer's naturalized
citizenship was premised, that we review. Moreover, the issues
Breyer raises on appeal relate to those determined by the
district court's grant of summary judgment.
1994 and January 24, 1994 respectively.7 Breyer's timely appeal
followed.
II.
In our review of this case, we remain mindful of two
competing concerns. On the one hand, we acknowledge that "the
right to acquire United States citizenship is a precious one, and
that once citizenship has been acquired, its loss can have severe
and unsettling consequences." Fedorenko v. United States, 449
U.S. 490, 505 (1981). For this reason, the government "`carries
a heavy burden of proof in a proceeding to divest a naturalized
citizen of his citizenship'", Id., quoting Costello v. United
States, 365 U.S. 265, 269 (1961), and the evidence for revocation
must be "`clear, unequivocal, and convincing'" and not leave
"`the issue in doubt.'" Id., quoting Schneiderman v. United
States, 320 U.S. 118, 125 (1943) and Maxwell Land-Grant Case, 121
U.S. 325, 381 (1887). On the other hand, we recognize that there
must be "strict compliance" with all the congressionally imposed
prerequisites to naturalization, and failure to comply with any
of these terms renders the naturalization illegally procured and
subject to revocation under section 1451(a) of the Immigration
and Nationality Act. Fedorenko, 449 U.S. at 506. Even though
Breyer does not specifically challenge the district court's
conclusion that he was ineligible for a visa and entry into this
7
. Breyer's post-trial motions were denied, except that
the district court struck certain language from its December 21,
1993 order. See n. 4, supra.
country under the Displaced Persons Act, the importance of the
fundamental right that is at stake in a denaturalization
proceeding requires our in-depth examination of the record to
make certain that the government met its stringent burden.
A.
The Immigration and Nationality Act provides, inter
alia, that no person shall be naturalized unless the applicant
has resided continuously within the United States, after having
been lawfully admitted for permanent residence, for at least five
years. 8 U.S.C. § 1427(a)(1). Lawful admission requires entry
pursuant to a valid immigrant visa. Fedorenko, 449 U.S. at 515;
United States v. Kowalchuk, 773 F.2d 488, 492-93 (3d Cir. 1985),
cert. denied, 475 U.S. 1012 (1986).
The Displaced Persons Act was specially enacted in 1948
to accommodate the large number of refugees wishing to emigrate
to the United States following World War II. Under the Act,
those eligible as displaced persons were granted entrance visas.
In section 13 of the Act, however, there were notable exclusions
from eligibility for a visa, two of which the government alleged
and the district court found were applicable to Breyer. Section
13 states in pertinent part:
No visas shall be issued under the provisions
of this Act, as amended . . . to any person
who is or has been a member of or participant
in any movement which is or has been hostile
to the United States or the form of
government of the United States, or to any
person who advocated or assisted in the
persecution of any person because of race,
religion or national origin.
64 Stat. 219, 227.
Since Breyer entered the country with a visa obtained
under the Displaced Persons Act, the legality of Breyer's
naturalization ultimately turns on his eligibility under that
Act. Therefore, we begin with the district court's application
of the Act's exclusionary provisions to Breyer.
In Fedorenko v. United States, the Supreme Court
addressed the meaning of the Act's "assistance in persecution"
exclusion in a denaturalization case of an Nazi concentration
camp guard.8 The Court clarified that this exclusion does not
require willing and personal participation in atrocities, and
drew a continuum of conduct to guide the courts in deciding what
behavior it covers. Fedorenko, 449 U.S. at 512. According to
the Court, while at one extreme is the individual who cut a
female prisoner's hair before execution and should not be viewed
as having assisted in persecution, at the other extreme is the
8
. Fedorenko was decided under section 10 of the Act which
requires a misrepresentation of a material fact before
ineligibility may attach. By contrast, under section 13, a
person may be ineligible simply because he falls within an
excludable category of persons.
Under the Act in effect when Fedorenko applied for a
visa, section 2 incorporated by reference an "assistance in
persecution" exclusion found in the International Refugee
Organization Constitution. This exclusion denied eligibility to
those who "assisted the enemy in persecuting civil[ians]" or had
"voluntarily assisted the enemy forces . . . in their
operations. . . ." Fedorenko, 449 U.S. at 495, n.4. In 1950,
Congress amended section 13 to create an explicit bar within the
Act itself against those who assisted in persecution. 64 Stat.
219, 227 (June 16, 1950).
armed, uniformed, paid guard who having shot a fleeing prisoner
would fit within the exclusion. Id. at n.34. In light of this
standard, the Court held that Fedorenko's service as a guard on
the perimeters of the Nazi concentration camp at Treblinka in
Poland -- whether voluntary or involuntary -- constituted
"assistance in persecution" under the Displaced Persons Act. Id.
at 512.
In the wake of Fedorenko, other courts have determined
that concentration camp guard service in circumstances similar to
those presented here qualifies as assistance in persecution
within the meaning of the Act. United States v. Schmidt, 923
F.2d 1253, 1259 (7th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct.
331 (1991) (member of Death's Head Battalion who served as an
armed, uniformed guard at Sachsenhausen concentration camp
patrolling outside camp gates and escorting prisoners to and from
work sites with orders to shoot assisted in persecution under the
Act); United States v. Kairys, 782 F.2d 1374, 1377 n.3 (7th
Cir.), cert. denied, 476 U.S. 1153 (1986) (prisoner of war who
was recruited to serve as a camp guard at Treblinka assisted in
persecution); United States v. Demjanjuk, 518 F. Supp. 1362, 1382
n.43 (N.D. Ohio 1981), aff'd, 680 F.2d 32 (6th Cir.), cert.
denied, 459 U.S. 1036 (1982) (same).
B.
Given Fedorenko's guiding principles and upon our
careful examination of the record, we find that the district
court correctly concluded that Breyer assisted in the persecution
of persons as contemplated by section 13 of the Displaced Persons
Act. The undisputed facts of record establish that Nazi
concentration camps were places where suffering and harm was
inflicted upon tens of thousands of innocent persons and that
Breyer furthered Nazi military, political and social aims. The
record is uncontroverted that he was a trained, paid, uniformed
armed Nazi guard who patrolled the perimeters of two such camps
with orders to shoot those who tried to escape. The prisoners he
guarded and prevented from fleeing were oppressed, brutalized and
killed for no other reason than their race, national origin or
religion. It is therefore beyond dispute that Breyer assisted in
persecution within the meaning of section 13 and, therefore, was
excluded from the Act's intended scope.
We next consider whether Breyer's service as a member
of the SS Totenkopf constitutes membership or involvement in a
movement hostile to the United States under section 13 of the
Act, and are firmly persuaded that it does. Indeed, the
Displaced Persons Commission considered the SS Totenkopf to be
such a movement. See Interoffice Memorandum U.S. Displaced
Persons Commission Headquarters Frankfurt Instruction Memo No.
242, dated November 12, 1951. Significantly, at Auschwitz, the
SS Totenkopf committed atrocities against the Polish people who
were United States allies. Accordingly, we agree with the
district court that Breyer's affiliation with the SS Totenkopf
also excluded him from the benefits of the Act. See United
States v. Koziy, 728 F.2d 1314, 1319 (11th Cir.), cert. denied,
469 U.S. 835 (1984) (individual's membership in the Organization
of Ukrainian Nationalists during World War II constituted
membership in an organization hostile to the United States under
section 13 of the Displaced Persons Act inasmuch as the
Commission listed it as such and its members terrorized United
States allies).
As in Fedorenko, where the Court sustained the
revocation of the defendant's naturalization once it found that
he was ineligible under the Displaced Persons Act, 419 U.S. at
418-19, a determination that section 13 of the Act precluded
Breyer from obtaining a visa leads inexorably to the conclusion
that Breyer's naturalization was properly revoked. See also
Schmidt, 923 F.2d at 1253; Kairys, 782 F.2d at 1374, Demjanjuk,
680 F.2d at 32. When Breyer filed his petition for
naturalization, the Immigration and Nationality Act required
lawful admission to the United States, which in turn required a
valid visa. To gain admittance, Breyer used a visa obtained
under the Displaced Persons Act. Because of Breyer's wartime
activities, however, the Displaced Persons Act excluded him from
coverage. As the visa Breyer presented upon entry was invalid,
his admission into this country was unlawful. Therefore, his
naturalization was illegally procured under section 1451 as a
matter of law, and the district court did not err in granting
summary judgment and in ordering the cancellation of Breyer's
certificate of naturalization and its surrender.
III.
In contesting the district court's decision to grant
summary judgment to the government and thereby denaturalize him,
Breyer did not raise any fact dispute, or for that matter, take
issue with the district court's conclusions of law. Instead, he
advanced his entitlement to derivative citizenship as a complete
defense to the government's case. Breyer contended that the
district court erred in not declaring him a United States citizen
through his mother, and asserted that had his citizenship been
declared, the government's case would have necessarily failed for
failure to establish that he entered the United States
unlawfully. Breyer also asserted that his derivative citizenship
rendered the legality of his naturalization moot.
Acceptance of Breyer's mootness argument, however,
would relieve him of accountability for the illegality in an
essential element of the process that he chose to pursue for
naturalization. That Breyer may be a citizen of this country
through some other means does not alter his ineligibility under
the Displaced Persons Act or validate his visa and 1952 entry and
should not nullify the government's right under section 1451(a)
to require the surrender of a certificate of naturalization to
which Breyer is not entitled or negate the practical significance
of our determining whether he may continue to assert the status
of "naturalized United States citizen", a privilege he has
enjoyed for over thirty-five years.
More importantly, Congress has set forth the method by
which one asserting derivative citizenship may have it declared.
The Immigration and Nationality Act requires that a person with
such a claim initially apply to the Immigration and
Naturalization Service for a Certificate of Citizenship. 8
U.S.C. § 1452(a); 8 C.F.R. § 341.1-.7 (1994).9 If the applicant
is denied a certificate, he or she may then initiate a
declaratory judgment action in federal court under section
1503(a)10 requesting a judicial declaration of citizenship. As
9
. Section 1452 provides in pertinent part:
§ 1452. Certificates of citizenship or U.S. non-
citizen national status; procedure
(a) A person who claims to have derived
United States citizenship through the
naturalization of a parent or through the
naturalization or citizenship of a husband,
or who is a citizen of the United States by
virtue of the provisions of section 1993 of
the United States Revised Statutes . . . may
apply to the [Service] for a certificate of
citizenship. Upon proof to the satisfaction
of the [Service] that the applicant is a
citizen, and that the applicant's alleged
citizenship was derived as claimed, or
acquired, as the case may be, and upon taking
and subscribing before a member of the
Service within the United States to the oath
of allegiance required by this chapter of an
applicant for naturalization, such individual
shall be furnished by the [Service] with a
certificate of citizenship . . . .
10
. Section 1503(a) states in pertinent part:
§ 1503. Denial of rights and privileges as national
(a) If any person who is within the United States
claims a right or privilege as a national of the
United States and is denied such right or privilege
by any department or independent agency, or official
thereof, upon the ground that he is not a national of
the United States, such person may institute an
action under the provisions of section 2201 of Title
28 against the head of such department or independent
agency of a judgment declaring him to be a national
section 1503(a) expressly requires a "final administrative
denial" before any such action may be instituted, a federal
district court does not have jurisdiction to declare citizenship
absent exhaustion of an applicant's administrative remedies.
Whitehead v. Haig, 794 F.2d 115, 119 (3d Cir. 1986).
Breyer relies upon United States v. Schiffer, 798 F.
Supp. 1128 (E.D. Pa. 1992), aff'd without opinion, 31 F.3d 1175,
(3d Cir. 1994), to support his assertion that his derivative
citizenship claim was properly before the district court as a
complete defense to the government's case.11 We find, however,
that Schiffer is inapposite. There the government filed a
section 1451(a) complaint against Nickolas Schiffer in which it
admitted that Schiffer was born in Philadelphia, Pennsylvania.
This admission established that Schiffer was a United States
citizen under the Fourteenth Amendment of the United Sates
Constitution. Schiffer filed a motion to dismiss the
government's complaint, asserting that whether he had lost his
(..continued)
of the United States . . . . An action under this
subsection may be instituted only within five years
after the final administrative denial of such right or
privilege and shall be filed in the district court of
the United States. . . . (emphasis added).
11
. In Schiffer, we affirmed the district court by judgment
order. Thus, this case does not have precedential value, except
for the parties involved. Airco Indus. Gases, Inc. v. Teamsters
Health and Welfare Pension Fund, 850 F.2d 1028, 1030 & n.1 (3d
Cir. 1988); Internal Operating Procedures of the United States
Court of Appeals for the Third Circuit, Chapter 6.A.1.a (a
judgment order is entered "[w]hen the panel unanimously
determines . . . that a written opinion would have no
precedential or institutional value. . . .").
original United States birth citizenship pursuant to a
Certificate of Loss of Nationality that had previously been
issued ex parte by the Department of State was an issue in the
case. In these circumstances, where Schiffer's constitutional
right to United States citizenship had been admitted by the
government and the complaint sought to revoke a status
safeguarded by the Fourteenth Amendment and outside the reach of
Congress, the district court determined that the issue of
Schiffer's birth citizenship which had already been subject to
attack, should be heard. Schiffer, 798 F. Supp. at 1133.
Because Breyer, with allegations of statutory derivative
citizenship in a straightforward denaturalization action,
presents a far different case, Schiffer does not apply.
Alternatively, Breyer argues that had his derivative
citizenship been declared, the government's prima facie section
1451(a) case would have failed because the government could not
sustain its burden of proving that he entered the United States
in alien status. Section 1451(a), however, does not require such
proof. Even if it did, in his answer to the government's
complaint, Breyer admitted that he applied for immigration and
alien registration and entered the United States as a permanent
resident and refugee.
We conclude that the district court exceeded its
jurisdiction in considering the question of Breyer's derivative
citizenship. The district court had before it a narrow section
1451(a) case in which it was called upon only to decide whether
each step that Breyer took toward naturalization was proper.
Breyer's derivative citizenship claim was separate and distinct
from, and had no bearing on, the government's denaturalization
case. Significantly, in permitting Breyer to proceed with his
derivative citizenship claim, the district court reached a
constitutional issue that was unnecessary to its holding. In
doing so, the district court disregarded a fundamental and
longstanding principle of judicial restraint which requires that
courts "avoid reaching constitutional issues in advance of the
necessity of deciding them." Lyng v. Northwest Indian Cemetery
Protective Ass'n., 485 U.S. 439, 445-46 (1988). Accordingly,
Breyer's derivative citizenship claim should not have been
considered, and those orders of the district court which relate
to this issue will be vacated.
IV.
Lastly, Breyer raises as error the district court's
denial of his motion to stay the government's denaturalization
action until final resolution of his pending administrative
derivative citizenship proceeding. The power to stay is
incidental to the power inherent in every court to dispose of
cases so as to promote their fair and efficient adjudication.
Gold, 723 F.2d at 1077. Absent an abuse of discretion, a
district court's decision in this regard will not be overturned.
A stay is an extraordinary measure and Breyer failed to offer any
compelling reasons for its issuance. Therefore, we will uphold
the district court's decision denying Breyer a stay as within the
sound exercise of its discretion.
V.
For the foregoing reasons, we will affirm the district
court's grant of summary judgment on Counts I and II of the
complaint in the government's favor, and its orders revoking and
setting aside the order admitting Breyer to citizenship and
canceling and demanding the surrender of Breyer's certificate of
naturalization. We will vacate those portions of the district
court's orders relating to Breyer's derivative citizenship claim.