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January 30, 1991


Robert F. Peckham, United States District Judge.

The opinion of the court was delivered by: PECKHAM



 Prior to 1934, the citizenship laws of the United States had this effect:

Suppose that a United States sister and brother both marry abroad, as many do, and that each has a family of children by marriage. The brother, in either peace or war time, may pick up his children and bring the family into the United States as American citizens. The sister cannot do this.

 S. Rep. No. 865, 73d Cong., 2d Sess. 2 (1934). In 1934, the citizenship laws were amended to eliminate this discrimination.

 This case concerns the continuing discriminatory effect of that statute. The statute, Section 1993 of the Revised Statutes of 1874, granted citizenship to the foreign-born offspring of male American citizens but denied citizenship to the foreign-born offspring of female American citizens.

 Plaintiff, whose mother was a United States citizen, was born in Canada. Defendants have denied plaintiff a United States passport on the ground that, according to the statute, she is not a United States citizen. She argues that Section 1993, which conditions the grant of citizenship on the gender of the citizen-parent, violates the constitutional guarantee of equal protection. In an earlier case, Elias v. U.S. Dep't of State, 721 F. Supp. 243 (N.D.Cal. 1989), this court found the statute unconstitutional on identical grounds. The instant case was referred to this court as a related matter under Local Rule 205-2.

 There is no dispute as to the facts. Defendant has filed a motion to dismiss; plaintiff has filed a cross-motion for summary judgment.


 Plaintiff's mother, Nora Greenaway Hunter, was born a United States citizen in New York in 1904. Plaintiff's mother married Frederick Hunter, a Canadian citizen, in 1929. The plaintiff was born in Canada in 1931. Plaintiff's mother died in the late 1950's.

 On October 31, 1989, shortly after this court's ruling in Elias, plaintiff applied for a United States passport. The State Department denied her request on the ground that she is not a United States citizen under the terms of Section 1993. Section 1993 provides that

all children heretofore born or thereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.

 Because plaintiff's father was not a citizen -- although her mother was a citizen -- the Department concluded that she had no rights under § 1993. Plaintiff exhausted her administrative remedies and commenced this action. She challenges § 1993 under the equal protection component of the Due Process Clause of the Fifth Amendment.


 Defendant's motion to dismiss is based on four separate grounds: (1) that plaintiff lacks standing; (2) that plaintiff's claim is barred by laches; (3) that Section 1993 satisfies the "facially legitimate or bona fide reason" test for citizenship legislation by decreasing the incidence of dual citizenship; and (4) that the courts lack power to grant citizenship even if the statute is found unconstitutional.

 Plaintiff's cross-motion for summary judgment is based on her contention that this case is controlled by Elias -- either because the government is barred under collateral estoppel or because the government has raised no arguments that were not already decided in that case.

 Before we address the above arguments, it will be useful to explore the role of our earlier decision in Elias in the current litigation.

 A. The Elias Decision

 The facts in Elias are quite similar to the facts presented here. In Elias, plaintiff's mother, an American citizen, moved to Canada and married a Canadian citizen. Plaintiff was then born in Canada to an American mother and a Canadian father. Plaintiff's application for a United States passport was denied, and she subsequently filed suit in this court alleging that the Department's interpretation of § 1993 was in violation of her right to equal protection under the laws. In the opinion, we analyzed several of the arguments now offered by the government. At that time, however, the government did not offer any reason, let alone a "facially legitimate or bona fide" one, to justify § 1993. Elias, 721 F. Supp. at 249 ("in the instant situation, the government has offered no rationale at all").

 Plaintiff urges us to apply collateral estoppel and res judicata to bar the government from re-litigating the issues in Elias. Plaintiff concedes that offensive non-mutual collateral estoppel may not be used by private litigants against the government, see, e.g., United States v. Mendoza, 464 U.S. 154, 78 L. Ed. 2d 379, 104 S. Ct. 568 (1984), but asserts that her use of estoppel principles ought not be deemed "non-mutual" because she was a party to the prior action. It is quite clear, however, that Ms. Wauchope was not a party to Elias ; she was neither named in the complaint nor was a class ever certified. The final order directed relief only for Ms. Elias herself. Consequently, this case will not be controlled by Elias, although that decision is persuasive on many of the disputed issues we face.

 In addition, the government raises several arguments not presented in the earlier case. Those will be ...

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