UNITED STATES OF AMERICA, PETITIONER V. SERGIO ELEJAR MENDOZA

   No. 82-849

   In the Supreme Court of the United States

   October Term, 1982

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes and regulation involved
   Statement
      A. The background of this case
      B. Prior Filipino veteran litigation
      C. Proceedings below
   Summary of argument
   Argument:
      The United States may not be collaterally estopped from
      litigating the legal question whether respondent is entitled
      to become a naturalized citizen by the judgment of a district
      court in a prior case involving different parties
      A. Collateral estoppel is inapplicable to an unmixed
          question of law arising upon the successive claims of
          different parties
      B. Collateral estoppel should not be applied against the
          government to preclude determination of recurring questions
          of public law
      C. The court of appeals' decision disregards other
          established limitations on the issue preclusion doctrine
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-21a) is reported
at 672 F.2d 1320.  The opinion of the district court (Pet. App.
22a-24a) is not officially reported.  The findings of fact,
conclusions of law and recommendations of the designated
naturalization examiner (Pet. App. 25a-33a) are likewise unreported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 34a) was entered on
April 2, 1982, and a timely petition for rehearing was denied on July
22, 1982 (Pet. App. 35a).  On October 13, 1982, Justice Rehnquist
extended the time in which to file a petition for a writ of certiorari
to and including November 19, 1982.  The petition was filed on the
latter date and was granted on January 24, 1983.  The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).

                   STATUTES AND REGULATION INVOLVED

   Sections 701, 702 and 705 of the Nationality Act of 1940, 8 U.S.C.
(Supp. V 1945) 1001, 1002 and 1005;  Section 310(e) of the Immigration
and Nationality Act of 1952, 8 U.S.C. 1421(e);  and 28 C.F.R. 0.20(b)
are reproduced in an appendix to this brief, infra, 1a-3a.

                          QUESTION PRESENTED

   Whether the United States may be collaterally estopped from
litigating a question of constitutional law of public importance by
the judgment of a district court in a prior case, involving different
parties, in which the question was resolved adversely to the United
States.

                               STATEMENT

   Respondent, a Filipino national, entered the United States in 1975
in a nonimmigrant status.  On May 10, 1978, after other legal avenues
intended to prolong his stay in the United States had been exhausted
or abandoned, respondent filed a petition for naturalization under
Section 701 of the Nationality Act of 1940.  Section 701, a provision
then no longer in force, had relaxed the normal naturalization
requirements for certain individuals who fought in the United States
armed forces in World War II.  Respondent claimed that he was entitled
to naturalization based upon his service during World War II in the
Army of the Commonwealth of the Philippines.  The designated
naturalization examiner recommended that the petition be denied,
noting that respondent was not eligible for naturalization under the
provisions of the Immigration and Nationality Act of 1952 then in
effect and that naturalization under Section 701 of the 1940 Act was
unavailable because petitioner had not filed for naturalization by
December 31, 1946, the date on which that provision expired.  The
examiner also rejected respondent's argument that naturalization was
necessary to remedy an alleged denial of due process in the
administration of Section 701 in the Philippines at the close of World
War II.

   The district court rejected the naturalization examiner's
recommendation and granted the petition without reaching "the
Constitutional issues or other merits of the petition" (Pet. App.
22a).  The district court concluded that the United States was
collaterally estopped to oppose respondent's naturalization petition
because the constitutional question presented by that petition had
been resolved adversely to the United States in a case involving the
naturalization petitions of different individuals, In re
Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931 (N.D.
Cal. 1975).  The court of appeals affirmed, like the district court
relying solely upon the doctrine of collateral estoppel.

                    A. The Background of this Case

   1. Respondent served as a physician with the Philippine
Commonwealth Army from December 1, 1941, until June 30, 1946.  During
that time, as the United States became involved in World War II, the
Commonwealth Army, which was ordinarily under the control of the
semi-autonomous Commonwealth government in peacetime, was incorporated
into the armed forces of the United States pursuant to the order of
President Roosevelt.  /1/ Respondent was held prisoner by Japanese
forces from April 1942 until February or March 1945.  Upon his release
respondent remained in the Commonwealth Army.  In the fall of 1945 the
United States Army sent respondent to Pennsylvania for approximately
six months of medical training.  Shortly after his return to the
Philippines, on June 30, 1946, respondent secured his discharge from
the Commonwealth Army.  Pet. App. 7a.

   2. The statute upon which respondent's petition for naturalization
rests is Section 701 et seq. of the Nationality Act of 1940, 8 U.S.C.
(Supp. V 1945) 1001 et seq., as added by the Second War Powers Act,
1942, ch. 199, Section 1001, 56 Stat. 182-183.  Section 701 exempted
from some of the usual requirements for naturalization (including
literacy in English and a period of residence in the United States)
certain alien servicemen who had served honorably in the United States
armed forces during World War II in locations beyond the continental
limits of the United States.  As amended by Section 202(c)(1) of the
Act of Dec. 28, 1945, ch. 590, 59 Stat. 658, the Act specified that
any petition thereunder was to be filed no later than December 31,
1946.

   Section 702 of the 1940 Act provided for the overseas
naturalization of persons actually serving in the United States armed
forces who were eligible for naturalization under Section 701 but who
were beyond the jurisdiction of the United States courts vested with
naturalization authority.  Representatives designated by the
Commissioner of Immigration and Naturalization were authorized to
receive petitions, conduct hearings, and grant naturalization outside
the United States.  Pursuant to Section 705 of the 1940 Act, the
Commissioner and the Attorney General implemented the provisions of
Sections 701 and 702.  Between 1943 and 1946 immigration officers
traveled on rotation through Great Britain, Ireland, North America and
the Pacific Islands, admitting thousands of foreign nationals serving
in the United States armed forces to citizenship.

   Naturalization of alien servicemen in the Philippines was, of
course, impossible during the Japanese occupation.  /2/ The liberation
of the Philippines by Allied forces began in February 1945.  After
resolution of some threshold questions respecting the application of
Section 701 to Filipino servicemen, /3/ the Immigration and
Naturalization Service, in early August 1945, designated George Ennis,
an American vice-consul in Manila, to naturalize aliens pursuant to
Section 702.  Almost immediately, the Philippine government expressed
its concern to the State Department about the possibility that large
numbers of young Filipino men, perhaps as many as 250,000 would be
naturalized and leave for America on the eve of the scheduled
Philippine independence (see page 3 note 1, supra).  On September 13,
1945, the Commissioner of Immigration and Naturalization recommended
to Attorney General Clark that the situation be handled by revoking
the authority previously granted to Ennis.  The Attorney General
approved the Commissioner's recommendation on September 26, 1945, and
Ennis' authority to naturalize alien servicemen was thereafter
revoked.  Naturalizations ceased by October 27, 1945.

   The INS subsequently reconsidered and abandoned its prior position
(see note 3, supra) that members of the Commonwealth Army were
eligible for citizenship under Section 701.  /4/ The revised
administrative interpretation substantially diminished the foreign
relations difficulties posed by the presence in the Philippines of a
United States official authorized to naturalize alien servicemen.
Accordingly, in August 1946, the Service once again designated a
naturalization representative for the Philippines.  The representative
remained on duty until December 1946 and naturalized many Philippine
Scouts (see page 5, note 3, supra) who were still on active duty at
that time and were still regarded as eligible under Section 702.  /5/

   3. Although respondent was present in the Philippines between
August and October 1945, when naturalization under Section 702 was
possible there, it is undisputed that he made no effort to take
advantage of that opportunity.  Nor did he make any effort to avail
himself of the substantive provisions of Section 701, which were
available to him without any need for recourse to the special overseas
naturalization provisions of Section 702, during the time he was
stationed in Pennsylvania.  /6/

   Respondent returned to the United States in 1975 in a nonimmigrant
status.  His right to remain was extended by the INS through June 9,
1976.  During this time respondent operated a restaurant and attempted
to start an export-import business.  On July 15, 1976, respondent
sought to change his status to that of a Treaty Investor.  This
application was denied by the INS District Director on August 29,
1977, because respondent had not complied with the conditions of his
nonimmigrant status.  Respondent took an administrative appeal from
that decision, but subsequently abandoned that appeal and filed the
petition for naturalization under Section 701 that gave rise to this
case.

                 B. Prior Filipino Veteran Litigation

   Because Section 701 required filing of a naturalization petition
prior to the close of 1946, its provisions did not give rise to
litigation in the ensuing years.  In the late 1960's, however, there
commenced a significant flow of litigation under Section 701 involving
novel arguments resting upon the manner in which Section 702 had been
administered in the Philippines during 1945 and 1946.  In every case,
the immigration petitioner, a Filipino veteran, asserted that
naturalization should be granted notwithstanding the expiration of
Section 701.  /7/

   1. In INS v. Hibi, 414 U.S. 5 (1973), this Court considered the
ramifications of the course of administration of Section 702 in the
Philippines upon facts strikingly similar to those of the present
case.  Hibi, a veteran of the Philippine Scouts, entered the United
States in 1964 and petitioned for naturalization under Section 701 in
1967.  He argued that despite 8 U.S.C. 1421(e), which expressly
precludes naturalization under provisions of law no longer in effect,
the United States was estopped from enforcing the statutory time limit
for filing a petition under Section 701.  Hibi claimed that an
estoppel arose from the alleged failure of government officials to
inform him of his opportunity for naturalization, and from the
revocation of Vice-Consul Ennis' naturalization authority in October
1945 and the failure to provide a substitute until August 1946.  The
district court granted Hibi's petition, adopting his estoppel
argument, and the court of appeals affirmed.  475 F.2d 7 (9th Cir.
1973).

   This Court summarily reversed, explaining that no estoppel could
lie against the government in these circumstances (414 U.S. at 8-9):

         It is well settled that the Government is not in a position
      identical to that of a private litigant with respect to its
      enforcement of laws enacted by Congress. * * * Here (the INS)
      has been charged by Congress with administering an Act which
      both made available benefits of naturalization to persons in
      (Hibi's) class and established a cutoff date for the claiming of
      such benefits.  (The INS), in enforcing the cutoff date
      established by Congress, * * * is enforcing public policy
      established by Congress.

         While the issue of whether "affirmative misconduct" on the
      part of the Government might estop it from denying citizenship
      was left open in Montana V. Kennedy, 366 U.S. 308, 314, 315
      (1961), no conduct of the sort there adverted to was involved
      here.  We do not think that the failure to fully publicize the
      rights which Congress accorded under the Act of 1940, or the
      failure to have stationed in the Philippine Islands during all
      of the time those rights were available an authorized
      naturalization representative, can give rise to an estoppel
      against the Government.

         (Hibi's) effort to claim naturalization under a statute which
      by its terms had expired more than 20 years before he had filed
      his lawsuit must therefore fail.

   2a. In In re Naturalization of 68 Filipino War Veterans, 406 F.
Supp. 931 (N.D. Cal. 1975) (hereinafter "68 Filipinos"), the district
court (Renfrew, J.) considered petitions for naturalization resting
upon Sections 701-705 of the Nationality Act of 1940 filed by 68
Filipino veterans who had served in the Commonwealth Army or the
Philippine Scouts during World War II.  /8/ Rejecting the
recommendations of the naturalization examiners, the district court
granted the petitions with certain exceptions.

   The district court first considered the claims of those who it
found to have filed timely preliminary applications for naturalization
that had not been acted upon.  406 F. Supp. at 937-940.  As to these
"Category I" veterans, the court held in the alternative that:  (1)
the failure to process the submitted applications was "affirmative
misconduct," which, notwithstanding INS v. Hibi, supra, "estopped (the
United States) from relying upon the expiration date of Sections
701-705 as grounds for denial of their petitions for naturalization"
(406 F. Supp. at 939;  footnote omitted), and (2) because they had
done all that was practical to avail themselves of the opportunity
provided by Section 701 at the proper time, they should be deemed to
have "constructively filed" formal petitions for naturalization within
the statutory time limit (id. at 940).

   The district court defined a second category to include 53 veterans
who, like respondent Mendoza, made no effort to secure naturalization
under Section 702 in a timely manner.  These "Category II" veterans
claimed that the absence from the Philippines during the period
October 1945 through August 1946 of an official empowered to effect
naturalizations denied them equal protection in violation of the Due
Process Clause of the Fifth Amendment, and that because of that
violation they were entitled to have their tardy naturalization
petitions granted.  In response the government argued that:  (1)
Filipinos were overseas aliens unprotected by the Due Process Clause
at the time in question because of the enactment, in 1934, of the
Philippine Independence Act;  (2) the veterans' claims were foreclosed
by INS v. Hibi, supra;  (3) because Attorney General Clark's decision
to withdraw naturalization authority from Vice-Consul Ennis responded
to the complaint of a foreign government and was based upon
considerations of foreign policy, the veterans' claims presented a
nonjusticiable political question;  and (4) the Attorney General's
action did not deny the veterans' due process.  /9/

   The district court rejected each of these contentions (406 F. Supp.
at 940-951).  The court acknowledged that "the actions of the
Commissioner of the INS were motivated by reasonable concern for the
maintenance of amicable relations between the United States and the
Philippine Islands" (id. at 951).  Nevertheless, the court, applying a
strict scrutiny standard, /10/ held that "the failure of the
Government to have stationed in the Philippine Islands a
representative of the INS authorized to naturalize members of the
American armed forces pursuant to Section 702 of the 1940 Act during
all of the time those statutory rights were available denied
petitioners due process of law" (406 F. Supp. at 951).  Thus, the
district court granted the naturalization petition of each of the
Category II veterans.  Only those ("Category III") veterans who were
unable to show that they had ever been eligible for naturalization
under Section 701 were denied naturalization (id. at 937, 951).  /11/

   b. Pursuant to authority delegated by the Attorney General to
determine whether an appeal should be taken from a judgment adverse to
the interests of the United States, see 28 C.F.R. 0.20(b), in March
1976 the Solicitor General authorized an appeal from the district
court's decision.  An appeal to the Ninth Circuit was docketed and the
case was briefed and readied for oral argument.

   In the interim, however, a new Administration had taken office.  By
memorandum dated September 21, 1977 (Pet. App. 36a-42a), newly
appointed INS Commissioner Castillo sought authorization to withdraw
the pending appeal (see id. at 30a).  Noting that "(t)he desire
expressed by the Philippine Government in 1945 to hold onto its young
manpower in the post-war period" was no longer an operative
consideration (id. at 41a), the INS Commissioner stressed that
acquiescence in the naturalization of the 68 Filipinos petitioners
"would be in keeping with the policy of the (new) Administration,"
described as "a course of compassion and amnesty" (id. at 42a).
Commissioner Castillo's request provoked considerable discussion, and
some dissent, within the Department of Justice.  The memoranda
prepared for the Solicitor General's consideration reflect the
conviction that the district court's legal conclusions were legally
erroneous, but that acquiescence in naturalization of the petitioners
would be an acceptable accommodation in light of the inequities
perceived by the officials vested by law with policy making authority,
and would not affect significant numbers of individuals or establish a
binding precedent.  In response to these recommendations, on November
14, 1977, the Solicitor General authorized withdrawal of the pending
appeal.  On November 30, 1977, the court of appeals granted the
government's motion to dismiss the appeal.

   c. In the aftermath of these events, Commissioner Castillo was
questioned during congressional oversight hearings about his
recommendation that the appeal in 68 Filipinos be dismissed.  /12/ The
government's position respecting Filipino veterans' naturalization
petitions under Section 701 was also reconsidered within the
Department of Justice.  The position ultimately adopted in 1978, after
thorough reexamination, was that the Department would not ordinarily
oppose naturalization of Filipino veterans who had actually attempted
to become naturalized United States citizens pursuant to Sections 701
and 702 while those provisions were in effect -- i.e., "Category I"
veterans.  Contrary to the position adopted in withdrawing the appeal
in 68 Filipinos, however, the Department instructed the INS thereafter
to oppose naturalization of all those who could not satisfy this
prerequisite, including "Category II" veterans.  See Pet. App. 30a;
Olegario v. United States, 629 F.2d 204, 214 (2d Cir. 1980), cert.
denied, 450 U.S. 980 (1981).  /13/

   3. The issues presented by the filing of tardy naturalization
petitions by Filipino veterans resting on Section 701 were next
considered by the Second Circuit in Olegario v. United States, supra.
Adopting Judge Renfrew's reasoning in 68 Filipinos, the district court
had granted Olegario's petition for naturalization, 473 F. Supp. 185
(S.D. N.Y. 1979), and the government appealed.  /14/ On appeal, the
Second Circuit considered the argument that under Parklane Hosiery Co.
v. Shore, 439 U.S. 322 (1979), the unappealed final judgment in 68
Filipinos should be given collateral estoppel effect, so as to
preclude denial of naturalization to any "Category II" Filipino
veteran.  The Second Circuit rejected this contention, observing that
"(i)n contrast to Parklane, the government is the defendant here, and
the case raises issues of national concern." 629 F.2d at 215.  The
court noted that the government's failure to appeal an adverse
decision may rest upon policy considerations, rather than acquiescence
in the decision's legal reasoning, and that the invocation of
collateral estoppel would compel the Solicitor General to authorize
appeal from adverse decisions in an uncritical manner (ibid.).  The
court also stressed that the United States has broad discretion
whether to pursue an appeal in a particular case and remains free to
change positions previously adopted whenever a prior position is
determined to have been ill-advised (id. at 216).  Turning to the
merits, the Second Circuit concluded that the absence of a
naturalization officer from the Philippines during part of the period
when naturalization under Section 701 was authorized did not violate
the statute itself or work a denial of due process or equal
protection.  629 F.2d at 223-233.  Accordingly, the Second Circuit
reversed the district court's decision and directed that Olegario's
petition be denied.

                         C. Proceedings Below

   1. Respondent filed his naturalization petition, invoking Section
701 of the 1940 Act, on May 10, 1978.  The designated naturalization
examiner recommended denial of the petition (Pet. App. 25a-33a).  The
examiner noted that respondent could not qualify for naturalization
under the current provision for naturalization of alien servicemen, 8
U.S.C. (& Supp. V) 1440 (see page 7 note 7, supra) and that 8 U.S.C.
1421(e) precludes naturalization under expired or superseded statutory
authority.  Because respondent had not claimed that he sought
naturalization under Section 701 in a timely manner, and because
respondent had actually been in Pennsylvania for much of the time
overseas naturalization under the extraordinary provisions of Section
702 was unavailable in the Philippines, the examiner concluded that
respondent could not be deemed constructively to have timely filed his
petition under the 1940 Act;  respondent's petition was therefore
barred by 8 U.S.C. 1421(e).  Similarly, given these facts, the
examiner found that Hibi barred relief on an estoppel theory and,
notwithstanding 68 Filipinos, that respondent had not suffered any
denial of due process.

   The district court granted respondent's petition without reaching
the merits of respondent's constitutional claim, treating the matter
as a routine application of the doctrine of offensive nonmutual
collateral estoppel governed by Parklane Hosiery Co. v. Shore, supra.
/15/ Although the naturalization examiner had noted (Pet. App. 31a)
that the effect of 8 U.S.C. 1421(e) had not been considered in 68
Filipinos, and that respondent, unlike the 68 Filipinos petitioners,
had been in Pennsylvania for most of the relevant time period, the
district court did not address the legal effect of these
circumstances.

   2. The Solicitor General authorized an appeal.  /16/ The government
once again argued that respondent's constitutional claim was
nonjusticiable, and in any event without merit.  Several arguments not
considered in 68 Filipinos were also advanced.  The government argued
that:  (1) respondent's constitutional claim was barred by laches;
(2) naturalization under Section 701 was barred by 8 U.S.C. 1421(e);
(3) the remedy awarded for the alleged constitutional violation --
naturalization -- was tantamount to an equitable estoppel, and thus
inconsistent with Hibi;  and (4) respondent lacked standing to
complain of the withdrawal of a naturalization officer from the
Philippines, and had suffered no personal deprivation of rights,
because he was in Pennsylvania for most of the period in question.
The court of appeals affirmed, reaching only the collateral estoppel
issue.  /17/

   The court of appeals concluded that, under Parklane Hosiery, the
district court did not abuse its discretion in applying collateral
estoppel to bar consideration of the government's arguments against
respondent's naturalization.  The court of appeals stated that none of
the circumstances listed by this Court in Parklane Hosiery (439 U.S.
at 329-331 & nn. 14 & 15) as factors precluding an estoppel was
present here.  The court also stressed the lack of record support for
the government's suggestion that the withdrawal of the appeal in 68
Filipinos was based in part upon a misapprehension of the practical
consequences of doing so, and it questioned whether the underlying
issue was of sufficient practical importance to warrant a fresh
determination of the legal issue (Pet. App. 12a-15a).  The court of
appeals acknowledged the conflicting decision of the Second Circuit in
Olegario, but it rejected the Second Circuit's analysis of the
collateral estoppel issue (id. at 18a) and held that the Second
Circuit's ruling on the underlying merits, although contrary to 68
Filipinos, was not sufficient reason to deny preclusive effect to 68
Filipinos (id. at 16a-18a).

   Finally, the court of appeals rejected the government's contention
that Parklane Hosiery is inapposite because of the special attributes
and interests of the United States as a litigant, and the purely legal
character of the questions presented here (Pet. App. 18a-20a).
Although it acknowledged that "the government is frequently involved
in cases raising issues of great public importance, and that in such
cases the public interest in permitting the government to relitigate
those issues may outweigh the public interest in avoiding needless
litigation" (id. at 18a), the court concluded that this is not such a
case because it found "no 'critical' need for redetermination" of the
issue and "no compelling public interest in opposing naturalization"
of persons such as respondent (id. at 19a, 20a).  On the contrary, the
court thought that the equities strongly supported preclusion (id. at
20a-21a).

                          SUMMARY OF ARGUMENT

   The decision of the court of appeals is without precedent.  To our
knowledge no other appellate court has ever held that the United
States may be estopped from litigating a pure question of law, much
less a question of constitutional law affecting the special
prerogatives of the Executive in the sphere of foreigh relations, by
the unappealed adverse decision of a trial level court rendered in a
different action involving a different opposing party.

   A. Contrary to the view of the court of appeals, Parklane Hosiery
Co. v. Shore, 439 U.S. 322 (1979), is not controlling here.  In
Parklane Hosiery, the issues upon which preclusion was upheld were
factual (see id. at 324);  here, the underlying issue in dispute is an
unmixed question of law, indeed a significant question of
constitutional law.  This Court has recognized that powerful
considerations militate against extension of the preclusion doctrine
to purely legal issues -- especially those of constitutional import --
even when the parties in the successive lawsuits are the same.
Montana v. United States, 440 U.S. 147, 162-163 (1979);  United States
v. Moser, 266 U.S. 236, 242 (1924).  Application of the preclusion
doctrine to a legal issue where there is no identity of parties is
especially inappropriate.

   B. In Montana v. United States, supra, 440 U.S. at 155, and
Parklane Hosiery Co. v. Shore, supra, 439 U.S. at 331, this Court
stressed that issue preclusion should not be applied in circumstances
where such application would be unfair to a litigant or contrary to
significant public policies.  The unique attributes and role of the
United States as a litigant constitute a special factor that warrants
such an exception.

   First, application of the issue preclusion doctrine in cases
involving the United States must take account of the public interest
in the uniform and rigorous enforcement of laws of general importance
and applicability.  See Standefer v. United States, 447 U.S. 10, 24-25
(1980);  INS v. Hibi, 414 U.S. 5, 8 (1973).  Here, as in Standefer,
this public interest outweighs the considerations that ordinarily
underlie the preclusion doctrine.

   Second, critical practical and legal considerations, applicable
whenever the United States is engaged in litigation on questions of
public law, argue strongly against the estoppel invoked by the court
of appeals.  The government is involved in far more litigation than
any other party.  Moreover, many legal issues of substantial public
importance arise only in government litigation.  There is a
substantial likelihood that, in litigating a recurring issue, the
government will at some point encounter an adverse decision.
Application of collateral estoppel to bar determination of a legal
question in such cases, which include the present one, would
substantially disrupt the existing process of development of the law
through resolution of conflicts by appeal, en banc review and
certiorari, by supplanting the more flexible doctrine of stare decisis
and the persuasive effect of decisions of coordinate courts with the
rigid doctrine of issue preclusion.

   Third, invocation of collateral estoppel against the government on
recurring legal issues is inappropriate because, through the Office of
the Solicitor General, the government, unlike any other litigant,
employs a formal and selective mechanism for determining whether to
take an appeal from or seek certiorari review of an adverse judgment.
The Solicitor General frequently decides against appeal or certiorari
even though the legal conclusions of the deciding court are believed
to be erroneous.  Such decisions rest upon factors including a
substantial measure of prosecutorial discretion, equitable and policy
considerations, the practical importance of the decision, the limited
resources of the government and sensitivity to crowded dockets of the
courts.  The decision not to pursue an appeal in 68 Filipinos was
based on several of these factors.

   The court of appeals' ruling, if sustained, would require the
United States to reconsider its practice of selective pursuit of
appeals and certiorari.  The existing practice benefits the public
interest and facilitates sound judicial management.  The alternative
-- an inflexible policy of appealing (and even seeking certiorari on)
the first adverse decision rendered on a legal issue -- would burden
the courts of appeals and this Court unnecessarily.  Judicial economy
-- the touchstone of the preclusion doctrine -- would be disserved.

   C. Even if, contrary to our submission, the special status of the
government does not warrant consideration in the application of
collateral estoppel, and Parklane Hosiery is controlling here, the
court of appeals erred in approving application of the issue
preclusion doctrine in the circumstances of this case.

   First, the district court's decision in 68 Filipinos given
preclusive effect is contrary to intervening decisions of a court of
appeals and numerous district courts.  Second, the court below
improperly precluded the United States from litigating not only the
issues decided in 68 Filipinos but also alternative contentions that
were never addressed in the earlier case.  Third, the facts of this
case are materially different from those considered in 68 Filipinos
because respondent was not prejudiced by the challenged government
actions.  Finally, the court of appeals overlooked the substantial
tension between the district court's decision in 68 Filipinos and this
Court's decision in INS v. Hibi, supra.  Due regard for the authority
of this Court's rulings required the court of appeals independently to
assess the merits of respondent's claim.

                               ARGUMENT

 THE UNITED STATES MAY NOT BE COLLATERALLY ESTOPPED FROM LITIGATING
THE LEGAL QUESTION WHETHER RESPONDENT IS ENTITLED TO BECOME A
NATURALIZED CITIZEN BY THE JUDGMENT OF A DISTRICT COURT IN A PRIOR
CASE INVOLVING DIFFERENT PARTIES

 A. Collateral Estoppel is Inapplicable to an Unmixed Question of Law
Arising upon the Successive Claims of Different Parties

   The court of appeals viewed this case as a routine application of
the doctrine of nonmutual offensive collateral estoppel, which this
Court sanctioned -- albeit conditionally -- in Parklane Hosiery Co. v.
Shore, 439 U.S. 322 (1979).  See Pet. App. 9a-11a.  The issue in
Parklane Hosiery, however, was whether the potential for unfairness
that infects the issue preclusion doctrine when a plaintiff seeks to
foreclose a defendant from litigating an issue that the defendant has
previously litigated unsuccessfully in an action with another party is
so pervasive that resort to the doctrine should be barred in all
cases.  429 U.S. at 324, 326 n.4, 331.  In providing a negative answer
to that question, the Court stressed that care must be taken to ensure
that collateral estoppel is not applied in circumstances where such
use would for any reason "be unfair to a defendant." Id. at 331.
Moreover, nothing in the Court's opinion dispenses with the
established limitations on the issue preclusion doctrine developed in
other cases.  The court of appeals erred in disregarding these
established exceptions to and limitations upon the rule of collateral
estoppel.

   For instance, the issue whose redetermination was barred in
Parklane Hosiery was, unlike the underlying issue in this case,
factual.  439 U.S. at 324.  This Court's focus in cautioning against
improper resort to collateral estoppel accordingly was upon
circumstances that would militate against precluding relitigation of
factual issues.  439 U.S. at 331.  See Standefer v. United States, 447
U.S. 10, 21 (1980).  Thus, it is hardly surprising that the court of
appeals was able to conclude (Pet. App. 11a-16a & n.11) that none of
the arguments against use of collateral estoppel specifically
mentioned in Parklane Hosiery is present here.  /18/ This case, by
contrast, is governed by the pre-existing exception to the rule of
collateral estoppel applicable to pure questions of law arising in
successive actions on substantially unrelated claims -- an exception
recognized in United States v. Moser, 266 U.S. 236, 242 (1924), and
recently acknowledged in Montana v. United States, 440 U.S. 147,
162-163 (1979).

   1. The Court defined the "unmixed questions of law" exception to
the rule of collateral estoppel in Montana v. United States, supra,
440 U.S. at 162, quoting United States v. Moser, supra, 266 U.S. at
242 (emphasis added by the Montana Court):

      Where * * * a court in deciding a case has enunciated a rule of
      law, the parties in a subsequent action upon a different demand
      are not estopped from insisting that the law is otherwise,
      merely because the parties are the same.

   See also Restatement (Second) of Judgments Section 28(2) & comments
b & c, Section 29(7) & comment i (1982).  This rule applies with
special force when the issues of law are of constitutional dimensions
(Montana v. United States, supra, 440 U.S. at 163):

      Unreflective invocation of collateral estoppel against parties
      with an ongoing interest in constitutional issues could freeze
      doctrine in areas of the law where responsiveness to changing
      patterns of conduct or social mores is critical.

   The question presented to the district court for decision in this
case -- whether the Attorney General violated the Due Process Clause
by failing to station an authorized naturalization representative in
the Philippine Islands throughout the time citizenship was available
under Section 701 -- is an unmixed question of law.  This Court
treated the closely related question presented in Hibi in terms of
equitable estoppel doctrine as purely legal.  414 U.S. at 8-9;
compare id. at 9-11 (Douglas, J., dissenting).  Similarly, the
district court in 68 Filipinos regarded the question decided there as
one of purely legal dimensions.  406 F. Supp. at 948-951.  The court
of appeals did not suggest that the issue presented in this case is
other than purely legal.  See Pet. App. 17a & n.14, 20a n.15, 21a
(estoppel applied to "the constitutional issues decided in 68
Filipinos");  see also Barretto v. United States, 694 F.2d 603, 607
(9th Cir. 1982).  /19/ Instead, the court below simply asserted (Pet.
App. 18a), in reliance on Montana, that "(i)t is by now well settled *
* * that collateral estoppel * * * may be invoked on * * * pure issues
of law."

   Contrary to the court of appeals' assertion, however, Montana v.
United States, supra, does not support this sweeping proposition.  It
is true that the Court there upheld the application of collateral
estoppel to preclude determination of a question of law.  But the
doctrine applied in Montana was, in practical effect, res judicata.
The Court applied the collateral estoppel label because the government
had undertaken the first round of litigation through a proxy (see page
23, infra).  440 U.S. at 154-155.  Moreover, the Court's decision in
Montana rests upon its conclusion that the case entailed an effort to
relitigate a claim not meaningfully distinguishable from that
previously adjudicated.  The Court explained (440 U.S. at 163):
"(T)he legal 'demands' of this litigation are closely aligned in time
and subject matter to those in (the prior case)." The Court's holding
thus rests upon the distinction, recognized in Moser itself, between
reconsideration of a "rule of law" announced in a prior case "upon a
different demand," and redetermination of "a fact, question or right
distinctly adjudged in the original action." Under Moser, as
reaffirmed in Montana, preclusion is impermissible in the former
situation, but permissible in the latter.  440 U.S. at 162-163,
quoting 266 U.S. at 242.

   The Court recognized in Montana (440 U.S. at 163) that "the scope
of the Moser exception may be difficult to delineate, particularly
where there is partial congruence in the subject matter of successive
disputes." But in the circumstances of this case there can be little
doubt that preclusion is improper, for respondent's claim of
eligibility to become a naturalized citizen presents, by definition, a
"different demand" from the separate naturalization petitions of the
individual petitioners in 68 Filipinos.  See Montana v. United States,
supra, 440 U.S. at 154.  The rights of respondent were in no sense
"distinctly adjudged" in the earlier litigation.

   Of course, in Montana itself the Court applied preclusion even
though the plaintiff, the United States, had not formally participated
as a named party in the prior adjudication.  440 U.S. at 155.  The
Court concluded that there was no reason to prevent the operation of
collateral estoppel simply because the causes of action in successive
cases against the same defendant were technically distinct, because in
the first action the government had litigated by proxy, financing and
controlling the earlier case.  Id. at 154-155.  Here, however,
respondent's claim was not presented vicariously or otherwise in the
prior action.  There is accordingly no reason to treat that claim as
indistinguishable for preclusion purposes from the individual claims
of the veterans that were before the district court in 68 Filipinos.

   Indeed, in so treating respondent's claim the court of appeals
retrospectively converted 68 Filipinos into a class action of sorts,
holding that the 68 Filipinos judgment binds the United States as
against any Filipino veteran who may hereafter seek naturalization
under Section 701.  But 68 Filipinos was not certified as a class
action and the government accordingly had no reason to expect that its
failure to prosecute the appeal in 68 Filipinos would bind it in all
future cases.  See Baxter v. Palmigiano, 425 U.S. 308, 311 n.1 (1976).
 Thus, by lending preclusive force to the legal holding of 68
Filipinos in litigation brought by unrelated claimants, the court of
appeals upset the reasonable expectations of the government as a
litigant.

   2. In treating the naturalization petitions of different
individuals as presenting a single "demand" for purposes of the
"unmixed question of law" exception to collateral estoppel, the court
of appeals also divorced collateral estoppel from the fundamental
purposes served by the preclusion doctrine:  "protecting litigants
from the burden of relitigating an identical issue with the same party
or his privy" and "promoting judicial economy." Parklane Hosiery v.
Shore, supra, 439 U.S. at 326.  Plainly the first of these purposes is
not served by preclusion on the legal issue in this case -- respondent
is not asked to bear the burden of relitigating any issue that he has
previously litigated.  In fact, respondent cannot fairly be said to
bear any untoward burden at all;  assuming that collateral estoppel
does not apply he will merely be required to establish his
qualifications for admission to United States citizenship.

   Judicial economy is likewise little served by preclusion in the
circumstances of this case, because no trial or other evidentiary
proceedings would have been required to decide respondent's legal
claim.  The underlying legal issues were fully briefed and argued to
the district court and the court of appeals.  To be sure, the courts
below were spared the labor of actually deciding the claim, but any
economy achieved is a false one.  As we explain below pages 30-34, if
collateral estoppel bars redetermination of legal issues such as that
presented here in subsequent unrelated cases, the government will be
obliged to pursue appeals in an uncritical manner, abandoning the
selective appeal policy currently in effect, and imposing substantial
burdens upon the courts of appeals and this Court.  In short, the
court of appeals' analysis will retard rather than advance the pursuit
of judicial economy.

   3. The underlying issue in this case -- whether respondent is
entitled to naturalization because of an alleged denial of due process
in the administration of Section 702 in the Philippines in 1945 and
1946 -- is, of course, one of constitutional law.  Because Congress
has no power to correct the decision in 68 Filipinos by legislation,
the effect of the court of appeals' decision is especially onerous.
And it is significant that the decision in 68 Filipinos, which is
effectively accorded the force of a decision of this Court by the
decision below, trenches upon the constitutional authority of the
Executive to conduct the foreign relations of the United States (Art.
II, Section 2) and the authority of Congress to "establish a uniform
Rule of Naturalization" (Art. I, Section 8, Cl. 4).  Accordingly, the
court's warning against "(u)nreflective invocation of collateral
estoppel against parties with an ongoing interest in constitutional
issues" (Montana v. United States, supra, 440 U.S. at 163) applies
with special force here.

 B. Collateral Estoppel Should Not Be Applied Against The Government
To Preclude Determination Of Recurring Questions Of Public Law

   Any ambiguity in the application of the Moser exception to the
issue preclusion doctrine is removed by consideration of the
additional circumstances that set this case apart from Parklane
Hosiery and Montana.  As the Court recognized in Montana, collateral
estoppel is inapplicable whenever "special circumstances warrant an
exception to the normal rules of preclusion." 440 U.S. at 155.  And in
Parklane Hosiery, the Court stated that courts should not apply
collateral estoppel whenever for the reasons there discussed or for
any "other reasons, the application of offensive (collateral) estoppel
would be unfair to a defendant." 439 U.S. at 331.  We submit that the
unique attributes and role of the United States as a litigant strongly
militate against application of the issue preclusion doctrine to the
government, particularly when it is engaged in the uniquely sovereign
function of enforcing the public law.

   1. This Court recognized these unique attributes in Standefer v.
United States, 447 U.S. 10 (1980), in declining to apply the rule of
nonmutual collateral estoppel announced in Parklane Hosiery and
Blonder-Tongue Laboratories, Inc. v. University of Illinois
Foundation, 402 U.S. 313 (1971), against the government in a criminal
case.  The Court stated, in terms that are fully applicable here (447
U.S. at 24-25):

         Finally, this case involves an ingredient not present in
      either Blonder-Tongue or Parklane Hosiery:  the important
      federal interest in the enforcement of the criminal law.
      Blonder-Tongue and Parklane Hosiery were disputes over private
      rights between private litigants.  In such cases, no significant
      harm flows from enforcing a rule that affords a litigant only
      one full and fair opportunity to litigate an issue, and there is
      no sound reason for burdening the courts with repetitive
      litigation.

         That is not so here.  The court of appeals put the point

         well:

        "(T)he purpose of a criminal court is not to provide a

       forum for the ascertainment of private rights.  Rather it

               is

      to vindicate the public interest in the enforcement of the

      criminal law while at the same time safeguarding the rights

       of the individual defendant.  The public interest in the

     accuracy and justice of criminal results is greater than the

     concern for judicial economy professed in civil cases and we

      are thus inclined to reject, at least as a general matter,

          a rule that would spread the effect of an erroneous

acquittal

        to all those who participated in a particular criminal

        transaction.  To plead crowded dockets as an excuse for

               not

       trying criminal defendants is in our view neither in the

       best interests of the courts, nor the public." 610 F.2d,

                               at 1093.

      In short, this criminal case involves "competing policy
      considerations" that outweigh the economy concerns that
      undergird the estoppel doctrine.

   The fact that this case is not a criminal prosecution does not
dilute the strength of the factors canvassed in Standefer.  Whenever
the government acts in its sovereign capacity to enforce the public
laws, public policy dictates the applicability of the Standefer
analysis.  This is especially so where, as here, the government acts
to ensure enforcement of the immigration and naturalization laws,
which this Court has recognized as "(a)n increasingly important
interest * * * of broad public concern." INS v. Miranda, No. 82-29
(Nov. 8, 1982), slip op. 5;  see also Fedorenko v. United States, 449
U.S. 490, 506-507 (1981).  As the Court recognized in INS v. Hibi,
supra, 414 U.S. at 8:  "(T)he Government is not in a position
identical to that of a private litigant with respect to its
enforcement of laws enacted by Congress. * * * (I)n enforcing the
cutoff date established by Congress (in Section 701, the INS) is
enforcing public policy established by Congress."

   Numerous practical and legal consideration, applicable in criminal
and non-criminal cases alike, also set the United States apart from
any other litigant and argue strongly against the estoppel invoked by
the court of appeals.  First, the government is involved in far more
litigation than any other party.  /20/ In 1982, for instance, the
Solicitor General acted upon recommendations respecting the
desirability of appellate, en banc or certiorari review of a decision
adverse to the government in over 2,100 cases.  Second, many of the
issues of greatest public importance, including constitutional issues,
arise only in litigation to which the government is a party;  others
are characteristically associated with government litigation.  See
American Medical International, Inc. v. Secretary of HEW, 677 F.2d
118, 121 n.24 (D.C. Cir. 1981).  Third, the government, unlike other
litigants, necessarily finds itself in litigation presenting a
particular legal issue in a host of jurisdictions -- indeed
potentially (and not uncommonly) in every district and circuit.  In
such cases, which include the present one, the potential unfairness of
invoking the preclusion doctrine absent mutuality (see Parklane
Hosiery Co. v. Shore, supra, 439 U.S. at 330 & n.14) is necessarily
present, for there is a substantial likelihood that in litigating a
recurring issue, the government will at some point encounter an
adverse decision.

   Because of these unique attributes of government litigation,
application of collateral estoppel in the circumstances of cases such
as the present one would substantially disrupt the existing process of
development of the public law.  In that system courts of coordinate
rank are not bound by each other's decisions on questions of law.
See, e.g., Frock v. United States Railroad Retirement Board, 685 F.2d
1041, 1046 (7th Cir. 1982) ("Federal appellate courts can, and do,
differ in their conclusions as to the law * * *" (footnote omitted)).
Instead, the courts apply the more flexible doctrine of stare decisis,
and give such persuasive effect as is due in a particular case to the
decisions of coordinate courts from other jurisdictions and the
decisions of inferior courts.  /21/ The law emerges through the
hierachical process of appeal, en banc review and, in proper cases,
certiorari.

   Issue preclusion in private litigation -- even if extended to legal
questions -- ordinarily does not unduly undermine this process of
development of the law because no single litigant is party to more
than a small fraction of factually unrelated cases presenting a common
legal question.  By contrast, the government is characteristically, if
not invariably, a party to litigation on public law questions.
Accordingly, application of collateral estoppel when the government
has unsuccessfully litigated a question of law in any court inferior
to this one would freeze the development of the law.  Yet this Court
has repeatedly recognized the value of allowing independent
consideration of legal issues by the various courts of appeals.  See,
e.g., Califano v. Yamasaki, 442 U.S. 682, 702 (1979);  E.I. duPont de
Nemours & Co. v. Train, 430 U.S. 112, 135 & n.26 (1977).  Of course,
that practice is a centerpiece of the Court's scheme for administering
its certiorari jurisdiction.  Sup. Ct. R. 17.1(a).  /22/

   Like the Second Circuit in Olegario (see pages 13-14, supra), the
courts of appeals have generally recognized that these considerations
preclude application of collateral estoppel to the government on
recurring legal issues.  American Medical International, Inc. v.
Secretary of HEW, supra, 677 F.2d at 121-124;  Western Oil & Gas Ass'n
v. EPA, 633 F.2d 803, 808 (9th Cir. 1980);  Divine v. Commissioner,
500 F.2d 1041 (2d Cir. 1974).  The American Law Institute also has
recognized that preclusion is inappropriate when

      The issue is one of law and treating it as conclusively
      determined would inappropriately foreclose opportunity for
      obtaining reconsideration of the legal rule upon which it was
      based * * *.

   Restatement (Second) of Judgments Section 29(7) (1980).  Thus, when
"the party against whom the rule of preclusion is to be applied is a
government agency responsible for continuing administration of a body
of law applicable to many similarly situated persons * * * the rule of
preclusion should ordinarily be superseded by the less limiting
principle of stare decisis." Id. at Section 29 comment i;  see also
id. at Section 28(2) & comment c.  /23/

   2. Furthermore, invocation of collateral estoppel against the
government on legal issues of public importance is inappropriate
because, through the Office of the Solicitor General, the government,
unlike any other litigant, employs a formal mechanism for determining
whether to take an appeal from or seek certiorari review of an adverse
judgment.  See 28 C.F.R. 0.20.  This process is rather selective,
particularly at the certiorari stage.  /24/ Moreover, to a degree not
approached by any private party, the government regularly takes into
account factors other than its narrow interest in prevailing in a
particular lawsuit in determining whether to seek further judicial
review.  As a result, the Solicitor General frequently decides against
appeal or certiorari, in cases where the legal conclusions of the
deciding court are believed to be erroneous.  /25/ Such decisions rest
upon a host of other factors, including:  a substantial measure of
prosecutorial discretion, equitable and policy considerations, the
perceived practical importance of the decision, recognition of the
limited resources of the government and sensitivity to crowded dockets
of the courts.  /26/ As we have explained above (pages 11-12 & note
12), the decision not to pursue an appeal in 68 Filipinos was just
such a decision.

   The fact that the Solicitor General authorized withdrawal of the
appeal in 68 Filipinos does not affect the proper analysis here.  The
United States, even as a litigant, does not abandon its role as the
government.  INS v. Hibi, supra, 414 U.S. at 8.  As this Court has
remarked, "(t)here is, of course, no rule of law to the effect that
the Government must be consistent in its stance in litigation over the
years.  It has changed positions before." Barrett v. United States,
423 U.S. 212, 222 n.6 (1976).  See also NLRB v. Iron Workers, 434 U.S.
335, 351 (1978);  Dixon v. United States, 381 U.S. 68, 70-75 (1965);
Automobile Club v. Commissioner, 353 U.S. 180, 183 (1957).  As this
case illustrates, the political process by which the United States
changes policies from time to time in a democratic society is itself a
powerful reason to preclude collateral estoppel against the government
on matters of public law.  Indeed, the decision of the court of
appeals permits one administration to bind its successors even on
questions of constitutional law.  Contrary to respondent's suggestion
(Br. in Opp.13), the government did not in any relevant sense
"concede() the validity of the district court's judgment" by
withdrawing the appeal in 68 Filipinos.  Of course, the government
thereby bound itself not to challenge the judgment itself (see
Federated Department Stores v. Moitie, 452 U.S. 394 (1981)) -- an
obligation the government has more than filfilled (see page 12 note
13, supra) -- but it did not acquiesce thereby in the correctness of
the district court's legal ruling.  /27/

   Nor is there any anomaly in the Department of Justice's
reconsideration of its legal position on naturalization of Filipino
veterans.  The present position of the United States is quite simply
that 68 Filipinos was wrongly decided;  the withdrawal of the earlier
appeal did not reflect any different view.  Respondent's suggestion
(Br. in Opp. 14), echoing the court of appeals (Pet. App. 12a, 13a,
15a), that the government has not adequately justified its change in
position assumes that the United States has an obligation to justify
its litigating conduct to the courts.  That assumption is inconsistent
with fundamental principles of our adversary system of justice, see
Hickman v. Taylor, 329 U.S. 495, 510-512 (1947);  cf. 5 U.S.C.
552(b)(5);  Fed. R. Civ. P. 26(b)(3), and raises serious questions of
separation of powers.

   The government's practice of selective pursuit of appellate review
benefits the public interest and facilitates sound judicial
management.  Adoption of the broad preclusion rule applied by the
court of appeals would compel the United States to reconsider this
salutary practice.  Instead, the government would be obliged to
consider an inflexible policy of appealing (and even seeking
certiorari on) the first adverse decision rendered on a legal issue
lest further review be foreclosed.  See Olegario v. United States,
supra, 629 F.2d at 215.  As a result, the courts of appeals and this
Court would be burdened prematurely and unnecessarily, and judicial
economy -- the touchstone of the preclusion doctrine -- would be
disserved.  /28/ Moreover, because of the limited docket of this
Court, and the proliferation of statutes and litigation in recent
years, constructions of the law that this Court might ultimately
determine to be erroneous would more often be given finality.  See
e.g., North Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982) (rejecting
the view of four courts of appeals);  United States v. Foster Lumber
Co., 429 U.S. 32 (1976) (rejecting the view of three courts of
appeals);  NLRB v. Enterprise Ass'n of Pipefitters, 429 U.S. 507
(1977) (rejecting the view of five courts of appeals).  Plainly, there
is no interest served by invocation of collateral estoppel in the
circumstances of this case that would justify these detrimental
consequences.  /29/

   3. Contrary to respondent's contention (Br. in Opp. 5-7) and the
view of the court of appeals (Pet. App. 18a), Montana v. United
States, supra, does not support the application of collateral estoppel
in the circumstances of this case.  As explained above (pages 21-25),
this case, unlike Montana itself, plainly calls for the application of
the "unmixed question of law" exception to the doctrine of issue
preclusion.  /30/ Montana is also distinguishable because the
circumstances presented there may essentially have called for
application of res judicata principles.

   More fundamentally, the policy and practical considerations we have
outlined above (pages 25-34) had little application in Montana, for
the issue presented in that case could arise in only two forums -- the
Montana state courts and the United States District Court for Montana.
 This consideration is especially significant because in Montana,
unlike here, the government had engaged in conduct that may implicate
the core concerns underlying the preclusion doctrine.  It had
litigated the issue to a conclusion in the Supreme Court of Montana,
noted an appeal to this Court, then dismissed the appeal and pursued
its parallel action in the federal court.  The federal action,
moreover, was filed just after the action in state court had been
filed, and was stayed upon the government's stipulation pending
resolution of the state court litigation.  Montana is further
distinguishable because the issue there was not one involving a body
of law applicable to a class of similarly situated persons, but one
affecting the proprietary interest of the United States.  Accordingly,
the government did not argue in Montana, as it does here, that
application of the preclusion doctrine was inappropriate in light of
its special attributes and responsibilities, and the Court's opinion
does not reflect any view respecting our present contentions.

   4. Both the court of appeals (Pet. App. 19a) and respondent (Br. in
Opp. 12, 16) appear to acknowledge that collateral estoppel should not
be applied against the government in some cases presenting legal
issues.  But because the court below saw no "'critical' need for
redetermination" of the underlying constitutional issue (Pet. App.
19a), saw no "compelling public interest in opposing the
naturalization" of persons such as respondent (id. at 20a) and
believed that the equities favored respondent (id. at 20a-21a), it
held that the government was precluded from relitigating the
constitutional issues presented here.  None of these considerations
justifies the court of appeals' decision.

   The court of appeals' necessarily subjective conclusions regarding
the "critical need for redetermination" and "compelling public
interest" provide no standard for accurate prediction of which legal
rulings, if not appealed by the government, would be given collateral
estoppel effect in the future.  Nor has respondent identified any
objective criterion that could guide the government in its litigating
decisions in the wake of the decision below.  Because it is too late
to reconsider whether to appeal by the time a court has decided in a
subsequent case that a prior decision is binding, the decision of the
court of appeals places the government in an unacceptable position.
The court of appeals has arrogated to itself a standardless discretion
to determine with the benefit of hindsight whether a fresh
determination of the merits of a particular legal issue is in the
public interest (see Pet. App. 20a).

   In any event, the court of appeals erred in concluding that
determination of the merits of the instant case is unwarranted.  As
explained above (page 27), the decisions of this Court, including
Hibi, reflect that the enforcement of the naturalization laws in every
individual case is of utmost public importance.  The district court's
holding in 68 Filipinos that the actions of an Attorney General, taken
for foreign policy reasons that the court acknowledged to be valid,
violated the Due Process Clause is necessarily significant, without
regard for the number of persons involved or the court of appeals'
assessment of the equities.  Moreover, while this Court's decision in
Hibi makes clear that the equitable considerations mentioned by the
court below are irrelevant to the merits of respondent's claim, it is
particularly clear that these equities have no place in the calculus
of decision where the issue is not whether respondent is entitled to
naturalization, but only whether the United States is foreclosed from
securing an adjudication of that question.

 C. The Court of Appeals' Decision Disregards Other Established
Limitations on the Issue Preclusion Doctrine

   We have explained thus far that, because of the unique role of the
government in enforcing the public law, nonmutual collateral estoppel
on issues of law should never be applied against the United States.
But even if that were not so generally, and Parklane Hosiery were
regarded as controlling in government litigation, the court of appeals
erred in approving application of that doctrine here.

   1. The Court emphasized in Parklane Hosiery that the doctrine of
nonmutual collateral estoppel must always be applied selectively and
cautiously.  439 U.S. at 329-331.  The Court mentioned, for example,
that issue preclusion would be inappropriate when "the judgment relied
upon as a basis for the estoppel is itself inconsistent with one or
more previous judgments in favor of the defendant." Id. at 330;
footnote omitted.  Here, as the court of appeals acknowledged (Pet.
App. 16a), Judge Renfrew's decision conflicts with the Second
Circuit's subsequent decision in Olegario.  See pages 13-14, supra.
In addition, decisions inconsistent with 68 Filipinos were rendered in
In re Kapili, 473 F. Supp. 600 (E.D. N.Y. 1979);  In re Naturalization
of Inton, No. SA-79-CA-284 (W.D. Tex. July 3, 1980);  Pangilinan v.
INS, Pet. No. 251849 (N.D. Cal. Sept. 24, 1980);  Barretto v. United
States, Pet. No. 248806 (N.D. Cal. Aug. 15, 1980), and Litonjua v.
INS, Pet. No. 23358-GT (S.D. Cal. Apr. 8, 1981).  In view of this
division of authority, the court of appeals should have taken an
independent look at the merits of respondent's constitutional claim.

   Of course, the district court decisions in the last three cases
mentioned above were reversed by the Ninth Circuit, in reliance upon
the decision in this case, citing stare decisis as the governing
principle.  Barretto v. United States, supra, 694 F.2d at 607.  /31/
But at the time the district court decisions in Pangilinan, Barretto,
and Litonjua were rendered, the Second Circuit's decision in Olegario
created a precedent in conflict with 68 Filipinos.  (By contrast,
Olegario had not been decided when the district court ruled in the
present case, although it had been decided prior to the time the court
of appeals rendered its own decision.) Although the Ninth Circuit in
Barretto refused to hold that the district courts' rejection of
collateral estoppel was erroneous (694 F.2d at 607 n.9), the court of
appeals, quite properly concerned about consistency of decision
between this case and Barretto, invoked stare decisis to achieve the
same result.  In extending the holding of this case by means of stare
decisis to cover cases first decided after Olegario, however, the
court of appeals highlighted its original error in invoking collateral
estoppel in this case.

   The dilemma faced by the court of appeals in Barretto was of its
own making.  Because the claim presented in this case arises under a
scheme of public law applicable to a class of persons, it was
foreseeable (if not inevitable) when the court decided this case that
cases such as Barretto would arise.  Rather then employing stare
decisis to extend the troublesome holding of this case to cover
circumstances where the application of collateral estoppel was
properly rejected by the district court, the court of appeals should
have recognized that the very policies of "consistency and fairness"
it invoked in Barretto (694 F.2d at 607) required it to reach the
merits in the present case, rather than relying upon the artifice of
collateral estoppel.

   2. Other factors also should have precluded any estoppel here.  As
we have noted (page 15 & note 17), the court of appeals rested its
decision entirely upon the preclusive effect of 68 Filipinos, even
though significant legal contentions not addressed by Judge Renfrew in
that case were presented by the government throughout the litigation
of respondent's claim.  The court of appeals thus effectively applied
the broader res judicata ("claim preclusion") doctrine, rather than
collateral estoppel, to bar all arguments the United States might
raise in answer to respondent's claim.  See Allen v. McCurry, 449 U.S.
90, 94 & n.5 (1980).  There can be no justification for the court of
appeals' refusal to consider legal arguments that might have been, but
were not, addressed in 68 Filipinos.

   Among the points the court of appeals simply did not address were
arguments that respondent's claim is expressly barred by 8 U.S.C.
1421(e) and by laches, and that respondent is not entitled to
naturalization because he suffered no prejudice, which is an essential
element of any due process claim.  The government also made additional
arguments, not considered in 68 Filipinos, that respondent's due
process claim cannot be reconciled with this Court's decision in Hibi.
 The issues raised by the government that the court of appeals ignored
are important ones, not previously litigated, that bear upon the
uniformity and stability of administration of our nation's
naturalization laws, the availability of judicial oversight of
executive action in the sensitive sphere of foreign relations, and the
stare decisis effect of this Court's rulings.  Accordingly, the court
of appeals' failure to limit the scope of collateral estoppel to those
issues actually litigated and determined in a prior action is
particularly troublesome.

   3a. An equally remarkable feature of the decision below is the
court's conclusion (Pet. App. 11a-12a n.8) that respondent's residence
in Pennsylvania during most of the time a naturalization examiner was
absent from the Philippines does not serve to distinguish him
sufficiently from the petitioners in 68 Filipinos to require an
independent determination of his right to naturalization.  It is
fundamental that collateral estoppel has no application where the
facts of successive cases are in material respects different.  Montana
v. United States, supra, 440 U.S. at 158-159;  Commissioner v. Sunnen,
supra, 333 U.S. at 601.

   While we question whether any person who made no effort to avail
himself of the opportunity for naturalization provided by Section 701
of the 1940 Nationality Act should be heard to complain of the
temporary absence of a naturalization official from the Philippines,
it is far clearer that persons such as respondent can make no such
claim.  And even if, as the court of appeals thought, the facts of
this case "implicate" respondent's due process rights (Pet. App. 12a
n.8;  emphasis added), there is no reason whatever to conclude that
the holding of 68 Filipinos, which takes no account of these facts,
precludes a determination whether those rights were actually violated.
 By invoking collateral estoppel, the court of appeals thus failed to
discharge its duty to determine whether, on the facts of this case,
respondent is entitled to naturalization under the laws of the United
States.  /32/

   b. Again the court of appeals' error is highlighted by its
subsequent decision in Barretto.  In that case individual petitioner
Barretto, unlike the 15 other naturalization petitioners whose claims
were considered, had filed his naturalization petition prior to
withdrawal of the appeal in 68 Filipinos.  He thus arguably fell
within the grandfather rule applied by the Solicitor General in cases
arising before that date (see page 12 note 13, supra).  Barretto's
naturalization petition was nevertheless opposed by the INS because he
could establish no prejudice resulting from the manner in which
Section 702 had been administered in the Philippines.  Barretto had
spent the period February 1945 through June 10, 1946, in the United
States undergoing flight training, and had actually filed a
preliminary application for naturalization under the 1940 Act while in
the United States.  That application had evidently been rejected
because it lacked the necessary signature of his commanding officer.
Twenty days after his return to the Philippines, Barretto was
discharged from the United States armed forces and became ineligible
for overseas naturalization under Section 702 of the 1940 Act.  He
thus was stationed in the Philippines for only 20 days when
naturalization there under Section 702 was impossible because of the
absence of a naturalization official.

   The court of appeals nevertheless held that Barretto's situation
was indistinguishable from that of other Category II veterans who
filed their petitions in time to avail themselves of the "grandfather
rule," and that Mendoza required that Barretto's petition be granted.
694 F.2d at 608-609.  The court explained (id. at 608;  emphasis
added):

      In Mendoza we found that Dr. Mendoza's presence in the
      Philippines for as much as three months, after having been in
      the United States for several months, was sufficient to
      implicate Dr. Mendoza's due process rights, 672 F.2d at 1326
      n.8;  we know of no principled basis -- and the government
      offers none -- for drawing a line between three months in Dr.
      Mendoza's case and three weeks in this case.  If the
      government's conduct violated the constitutional rights of
      Filipinos serving in the United States armed forces in the
      Philippines, it violated their rights whether they were in the
      Philippines for nine months or nine days.

   The court of appeals' holding that neither respondent nor Barretto
is situated sufficiently differently from the Category II veterans in
68 Filipinos to warrant an individualized determination of his rights
is nothing short of bizarre.  Barretto was deprived of the opportunity
for overseas naturalization for only 20 days, had ample opportunity
for naturalization in the United States, and actually made such an
application.  Despite these material distinctions from 68 Filipinos,
the court of appeals ordered the government to grant Barretto's
naturalization petition, even though the district court had found,
after reaching the merits, that he was not entitled to that benefit.
The court of appeals' decision in this case thus indicates that all
Filipino veterans are entitled to naturalization notwithstanding the
absence of any showing of prejudice in a particular case.  That result
squarely conflicts with this Court's teaching that a showing of
prejudice is a necessary element of a due process claim.  See United
States v. Valenzuela-Bernal, No. 81-450 (July 2, 1982), slip op. 10.

   4. A final factor that should have caused the courts below to
eschew reliance upon collateral estoppel and to make a fresh
determination of the merits is the substantial tension between the
holding of 68 Filipinos and this Court's decision in Hibi.  In Hibi
this Court confronted a claim identical to respondent's in all
respects, except one -- the label attached to the legal theory
employed, which has now been changed from "estoppel" to "denial of due
process".  But the Court's conclusion in Hibi, stated without
qualification, was that Hibi's "effort to claim naturalization under a
statute which by its terms had expired more than 20 years before he
filed his lawsuit must * * * fail." 414 U.S. at 9.  Moreover, neither
the Court's opinion nor the argument of Hibi's counsel was dependent
upon the technical elements of equitable estoppel doctrine.  On the
contrary, the argument advanced by Hibi and rejected by this Court is
not meaningfully distinguishable from the arguments later adopted in
68 Filipinos.  /33/

   It is difficult to reconcile Judge Renfrew's conclusion in 68
Filipinos that Attorney General Clark's actions denied due process of
law to Filipino veterans with this Court's conclusion (414 U.S. at
8-9) that the very same actions did not constitute "affirmative
misconduct." For present purposes, however, we need not conclude that
Hibi is dispositive of the merits of respondent's claim.  It is enough
to conclude that due regard for the authority of this Court's
decisions required the district court and court of appeals in this
case to treat the decision in 68 Filipinos as one at least potentially
"inconsistent with * * * (a) previous judgment() in favor of" the
United States (Parklane Hosiery Co. v. Shore, supra, 439 U.S. at 330),
and thus to consider respondent's claim against the United States on
its merits.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   KENNETH S. GELLER

      Deputy Solicitor General

   JOSHUA I. SCHWARTZ

      Assistant to the Solicitor General

   MAY 1983

   /1/ Pursuant to Section 10(a) of the Philippine Independence Act of
1934, ch. 84, 48 Stat. 463, the Philippines were scheduled to become a
fully independent, self-governing nation on July 4, 1946.  Although
the Philippines was a United States possession prior to the latter
date, it enjoyed considerable autonomy under the terms of the
Independence Act.

   /2/ Between 1942 and 1945, however, approximately 7,000 Filipino
servicemembers were naturalized under Section 701 at locations outside
the occupied Philippines.

   /3/ One question was whether service in the Army of the
Commonwealth of the Philippines qualified as service in the military
forces of the United States for purposes of Section 701.  Doubt
existed because the Army of the Commonwealth, an instrumentality of
the Philippine government, was simply incorporated as a unit into the
United States armed forces by Presidential order.  By contrast, a
separate unit known as the Philippine Scouts was an integral unit of
the United States Army;  its members thus had individually enlisted in
the armed forces of the United States, and their status for this
purpose was comparatively free from doubt.  In 1945 the INS concluded
that members of both Philippine units were covered by Section 701 (but
see page 6 & note 4, infra).  A second question concerned the
eligibility for naturalization under Section 701 of Filipinos who had
never resided in the United States.  The Attorney General concluded
that prior residence in the Philippines, then an American possession,
satisfied the statute's requirements on that score.

   /4/ The agency's action was triggered by enactment of the First
Supplemental Surplus Appropriation Rescission Act, 1946, ch. 30, 60
Stat. 6, 14, which provided in part that service in the Army of the
Commonwealth of the Philippines was not to be deemed service in the
United States Armed Forces for purposes of any United States statute
conferring benefits on military veterans.  But see page 10 note 9,
infra.

   /5/ Neither the First Supplemental Surplus Appropriation Rescission
Act nor the altered administrative interpretation of Section 701
prompted by that Act (see note 4, supra) had any application to
members of the Philippine Scouts.

   /6/ The INS did not adopt its revised interpretation of Section
701, excluding members of the Commonwealth Army from the benefits of
that provision, until after the date of respondent's return to the
Philippines and his discharge from service.

   By the time naturalization was again available in the Philippines
under Section 702, respondent was doubly ineligible.  First, he was no
longer in service.  Second, the INS regarded service in the
Commonwealth Army as nonqualifying under Section 701.  In any event,
respondent made no application for naturalization at this time either.

   /7/ Section 329 of the Immigration and Nationality Act of 1952, 8
U.S.C. 1440, currently authorizes naturalization of aliens who fought
in this nation's armed forces during World War II.  Unlike its
predecessor, Section 701 of the 1940 Act, however, the benefits of
Section 329 are available only to those who either (1) enlisted or
were inducted in certain geographical areas (which do not include the
Philippines) or (2) are lawfully admitted to the United States for
permanent residence.  It is accordingly significantly more restrictive
than Section 701.  Respondent does not claim eligibility for
naturalization under the current provision.

   /8/ 68 Filipinos was not a class action.

   /9/ After the decision in In re Munoz, 156 F. Supp. 184 (N.D. Cal.
1957), the INS abandoned the argument that provisions of the First
Supplemental Surplus Appropriation Rescission Act, 1946, rendered the
benefits of Section 701 unavailable to veterans of the Commonwealth
Army, and did not otherwise argue thereafter that service in the
Commonwealth Army was nonqualifying for purposes of Section 701.
Compare pages 5-6 & notes 3-4, supra.

   /10/ In the district court's view, absence of a naturalization
officer from the Philippines constituted discrimination upon the basis
of race, alienage or nationality, and was accordingly subject to
strict scrutiny (406 F. Supp. at 950).

   /11/ Shortly after rendering its opinion, the district court issued
an addendum thereto, responding to the decision in Santiago v. INS,
526 F.2d 488 (9th Cir. 1975) (en banc), which apparently had given it
cause to reconsider its application of equitable estoppel to the
claims of Category I veterans.  In the addendum (406 F. Supp. at 951),
the district court reaffirmed its alternative holding that the
Category I veterans had constructively met the statutory time limit,
and observed that the court's due process ruling respecting Category
II veterans was applicable, as well, to the Category I veterans.

   /12/ Commissioner Castillo explained that his recommendation had
been based on equitable considerations "aside from the legal argument
of, was correct procedure of process used." Oversight of INS Programs
and Activities, Hearings Before the Subcomm. on Immigration,
Citizenship and International Law of the House Comm. on the Judiciary,
95th Cong., 2d Sess. 272 (1978).

   /13/ To mitigate any hardship that might otherwise result from this
change in policy, the Solicitor General adopted a "grandfather rule"
exception to this general rule, declining to authorize appeal from
orders granting naturalization to Category II Filipino veterans who
had filed naturalization petitions prior to the withdrawal of the
government's appeal in 68 Filipinos.  See Olegario v. United States,
supra, 629 F.2d at 214-215.  The grandfather exception was adopted
because there was reason to believe that processing of at least some
such petitions had been delayed by INS, either unilaterally or by
agreement with opposing counsel, in anticipation of securing a
definitive ruling upon appeal in 68 Filipinos.  It was further
recognized that absent that procedure some of the petitions involved
would have been granted at the time the government withdrew its 68
Filipinos appeal.  Because it was thought difficult to determine with
confidence which naturalization petitioners had relied to their
detriment upon such procedural understandings, the Solicitor General
authorized withdrawal of previously authorized appeals in all cases
falling within the "grandfather rule" and declined to authorize appeal
in other such cases.  Among the appeals withdrawn were those in In re
Nisperos, 471 F. Supp. 296 (C.D. Cal. 1979), and In re Colmenar, No.
308-P-22551 (S.D. Cal. Mar. 20, 1979).  See Pet. App. 8a.

   /14/ Olegario was a "Category II" veteran -- i.e., he had not made
a timely effort to avail himself of the benefits of Section 701.  Nor
was his petition filed in time to benefit from the "grandfather rule"
adopted by the Solicitor General (see page 12 note 13, supra).

   /15/ The district court's decision was rendered prior to the Second
Circuit's ruling in Olegario.

   /16/ Like Olegario, respondent is a "Category II" veteran and had
not filed his petition in time to benefit from the Solicitor General's
"grandfather rule" (see page 13 note 14, supra).

   /17/ The court of appeals stated that because respondent may have
been in the Philippines for as much as three months during which time
he was eligible for naturalization but no naturalization official was
present, "this is * * * sufficient * * * to implicate his due process
rights and place him in the same situation as (the) Category II
veterans" whose rights were litigated in 68 Filipinos (Pet. App. 12a
n.8).  The court did not address the remaining issues raised by the
government that had not been decided in 68 Filipinos.

   /18/ As explained below (pages 37-38), however, the court of
appeals' decision does not in fact comport with the Court's cautionary
warnings in Parklane Hosiery.

   /19/ The court of appeals' decision in Barretto, which reaffirms
and extends its decision in this case, is reproduced in the appendix
to the government's reply brief of the petition in this case.

   /20/ In 1982, the United States was a party to 75,773 civil cases
filed in the United States District Courts, out of a total of 206, 193
filings.  Administrative Office of the United States Courts, Annual
Report of the Director 98 (1982).  In the same year the United States
was a party to 5,517 of 18,784 civil cases appealed from the district
courts to the courts of appeals as well as 4,767 criminal appeals and
3,118 original actions to review the decision of an administrative
agency.  Id. at 79, 82.

   /21/ The court of appeals' suggestion (Pet. App. 17a) that the
considerations we have canvassed might be more weighty when an issue
arises in two different circuits simply illustrates the court's
failure to recognize the difference between collateral estoppel and
stare decisis.  Under the court of appeals' analysis the decision of a
single district court may be binding upon a court of appeals, while
the authority of decisions of one or more courts of appeals, even
those rendered en banc, may be regarded as merely persuasive.

   /22/ On those rare occasions when Congress has wished to make the
decision of a single court of appeals respecting a particular issue
final save only for review by this Court, it has done so explicitly,
by designating a single forum for litigation of questions of
nationwide importance.  See, e.g., Section 211(b)(1) of the Economic
Stabilization Act of 1970, 12 U.S.C. 1904 note;  Section 307(b)(1) of
the Clean Air Act, 42 U.S.C. (Supp. IV) 7607(b)(1).

   /23/ The Restatement also cautions against use of collateral
estoppel "when the issue was determined in the first action by a trial
court and in the second action will probably be taken to an appellate
court," and when "the issue is of general interest and has not been
resolved by the highest appellate court that can resolve it."
Restatement (Second) of Judgments, Section 29 comment i.  The decision
of the court of appeals disregards these strictures as well.

   /24/ In 1982 the Solicitor General decided against appeal to a
court of appeals from an adverse district court judgment in 621 of the
1,118 cases submitted for his consideration.  Moreover,
notwithstanding the substantial volume of appellate litigation in
which the government is engaged (see page 28 note 20, supra), the
Solicitor General authorized filing of a petition for a writ of
certiorari in only 64 of the 579 cases in which formal consideration
was given to seeking such review in 1982.

   /25/ The Solicitor General often acquiesces in the grant of a
petition for a writ of certiorari to review a judgment favorable to
the United States where a conflict between the circuits has developed.
 In many such instances, the conflicting decision adverse to the
government is one that, although regarded as (and later held by this
Court to be) erroneous, did not provoke the filing of a petition for a
writ of certiorari.  See, e.g., Howe v. Smith, 452 U.S. 473, 479
(1981);  Steadman v. SEC, 450 U.S. 91, 95 (1981);  Lewis v. United
States, 445 U.S. 55, 58 & n.4 (1980).  See also Tuten v. United
States, No. 81-6756 (Mar. 30, 1983), slip op. 3 n.3.

   /26/ See, e.g., Note, The Solicitor General and Intragovernmental
Conflict, 76 Mich. L. Rev. 324, 324-330 (1977);  Carrington, United
States Appeals in Civil Cases, 11 Hous. L. Rev. 1101, 1101-1105
(1974);  Bork, The Problems and Pleasures of Being Solicitor General,
42 A.B.A. Antitrust L. J. 701 (1973);  Note, Government Litigation in
the Supreme Court:  The Roles of the Solicitor General, 78 Yale L. J.
1442, 1453-1457 (1969);  Sobeloff, Attorney for the Government:  The
Work of the Solicitor General's Office, 41 A.B.A.J. 229 (1955).

   /27/ "The estoppel doctrine," as this Court noted in Standefer v.
United States, supra, 447 U.S. at 23 n.18, "is premised upon an
underlying confidence that the result achieved in the initial
litigation was substantially correct." As this case shows, the
government's failure to seek appellate review is not an accurate
indicator that the adverse decision was correctly decided.  See also
page 31 & note 25, supra.

   /28/ United States v. Stauffer Chemical Co., 684 F.2d 1174 (6th
Cir. 1982) ("Stauffer II"), cert. granted, No. 82-1448 (Apr. 18,
1983), well illustrates these considerations.  There the court of
appeals held that the government was collaterally estopped on a
question of interpretation of a provision of the Clean Air Act by the
decision of the Tenth Circuit on the same issue in Stauffer Chemical
Co. v. United States, 647 F.2d 1075 (1981), aff'g 14 Env't Rep. Cases
1737 (D. Wyo. 1980) ("Stauffer I"), notwithstanding the contrary
decision of the Ninth Circuit on that same issue in Bunker Hill Co. v.
EPA, 658 F.2d 1280 (1981), aff'g Civ. No. 80-2087 (D. Idaho Oct. 15,
1980).  The Sixth Circuit commented (684 F.2d at 1181):

      If EPA really believed that the decision of the Tenth Circuit in
      Stauffer I was wrong, it could have petitioned the Supreme Court
      for certiorari, but it did not avail itself of that remedy, and
      it is too late to do so now.  EPA cannot collaterally attack the
      Tenth Circuit decision in the present case.

   It is true that the government did not seek certiorari in Stauffer
I.  But at the time the case was decided there was no conflicting
decision of any court of appeals.  Moreover, the pendency in the Ninth
Circuit of Bunker Hill -- an appeal from a district court decision
favorable to the government on the statutory question -- together with
the pendency in the Sixth Circuit of Stauffer's appeal from the
district court decision in Stauffer II that also favored the
government necessarily counseled against application to this Court for
further review in Stauffer I.  Any other course would have disserved
both the Court and those litigants who compete for a spot on its
limited docket.

   /29/ At a minimum there is no basis for the court of appeals'
assertion (Pet. App. 15a) that "(i)t should have come as no surprise
to the government" that Judge Renfrew's decision in 68 Filipinos would
reach the claim of every Filipino veteran.  As noted above, 68
Filipinos was not a class action.  Moreover, Parklane Hosiery had not
been decided at the time the 68 Filipinos appeal was withdrawn.

   /30/ As explained below (pages 39-42), the applicability of the
Moser exception is especially clear here for the additional reason
that the facts of this case are materially different from those
addressed in 68 Filipinos.

   /31/ In Barretto the court of appeals considered the naturalization
applications of 16 Filipino "Category II" war veterans resting, like
respondent Mendoza's, upon Sections 701-705 of the 1940 Act and the
due process theory endorsed by the district court in 68 Filipinos.
The facts and proceedings in Barretto are described in detail in our
reply brief in support of the petition in this case (at 2-5).

   /32/ Because of the differences between the facts of this case and
those considered in 68 Filipinos, this case, unlike Montana v. United
States, supra, 440 U.S. at 163, plainly calls for application of the
"unmixed question of law" exception to the doctrine of issue
preclusion.  See pages 20-25, supra.

   /33/ In this Court Hibi argued that under Section 701 the INS had
an absolute duty to make naturalization possible for servicemen
eligible under Section 701 except where wartime conditions made that
impractical (Memo. in Opp. at 3-5, INS v. Hibi, No. 72-1652 (1973
Term));  that the Attorney General impermissibly "single(d) out
Filipino soldiers in the Philippines * * * to deny to all of them the
opportunity to accept the offer of citizenship tendered them by
Congress" (id. at 6;  emphasis added);  that the Executive's action
violated the principle of separation of powers;  and that the
Executive "failed to obey his constitutional mandate to enforce the
laws" (ibid.; emphasis added).  Hibi also disavowed any narrow or
technical construction of his "equitable estoppel" claim, arguing that
"(e) quitable estoppel is only the name for a legal principle employed
by the courts below to enforce (the) promise" to alien servicemen said
to be contained in Section 701 (Mem. in Opp. at 12).

   Appendix Omitted