1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-14-1994

United States v. Breyer

Precedential or Non-Precedential:

Docket 94-1301

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Recommended Citation

"United States v. Breyer" (1994). 1994 Decisions. Paper 184.

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 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. noncitizen 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.