Full opinion text
TENNEY, District Judge: The historical and political events giving rise to this appeal began almost four decades ago at the beginning of the United States’ involvement in World War II. In response to the deteriorating situation in the Pacific, President Roosevelt issued an order on July 26, 1941 calling all organized military units of the Commonwealth of the Philippines into the armed forces of the United States. On March 27, 1942, Congress amended the Nationality Act of 1940, Pub.L. No. 76-853, 54 Stat. 1137 (“the 1940 Act”), to provide for the naturalization of non-citizens who served in the United States armed forces, Second War Powers Act, Pub.L. No. 77-507, § 1001, 56 Stat. 182. Section 701 exempted certain noncitizen servicemen who served outside the continental United States from some of the usual naturalization requirements, such as a period of residence in this country and literacy in English. Section 702 provided for the overseas naturalization of persons eligible under section 701 who were in active service in the United States military and were not within the jurisdiction of any court authorized to naturalize aliens. Section 705 directed the Commissioner of Immigration and Naturalization (“Commissioner”), with the approval of the Attorney General, to prescribe and furnish forms and make such rules and regulations as were necessary to implement the Act. As amended by subsequent statutes, the 1940 Act ultimately specified that all naturalization petitions filed under section 701 had to be submitted by December 31,1946. Act of Dec. 28, 1945, Pub.L. No. 79-270, § 202(c)(1), 59 Stat. 658. Pursuant to the Act, Immigration and Naturalization Service (INS) officers were sent to overseas military posts to naturalize noncitizen members of the United States armed forces. Between 1943 and 1946, these officers traveled from post to post through England, Iceland, North Africa, and the Pacific naturalizing thousands of foreigners. Matter of Naturalization of 68 Filipino War Veterans, 406 F.Supp. 931, 935 (N.D.Cal.1975) (hereinafter cited as 68 Veterans). Although the Act could not be effectuated in the Philippines during the Japanese occupation, from 1942 to 1945, approximately 7,000 Filipinos were naturalized in the United States or at military posts outside the Philippines. Memorandum for the Attorney General from Assistant Solicitor General Hugh B. Cox, dated June 23, 1945 (“Cox Memorandum”), at 2. Implementation of the Act commenced there following the liberation of the Philippines and the resolution of statutory interpretation questions concerning the eligibility of Filipino servicemen under section 701-702. In August 1945, George H. Ennis, Vice Consul of the United States at Manila, was designated to naturalize aliens under the Act and naturalizations in the Philippines began. The Philippines were scheduled to become an independent, self-governing country on July 4, 1946, less than one year after Vice Consul Ennis began naturalizing eligible Filipinos. See Philippine Independence Act of 1934, Pub.L. No. 73-127, § 10(a), 48 Stat. 463. Apparently, the Philippine government feared that a mass emigration of newly naturalized Filipinos to the United States would drain the country of much needed manpower and thwart post-war reconstructive efforts. See Memorandum to Ugo Carusi, INS Commissioner, from Edward J. Shaughnessy, Special Assistant to the Commissioner, dated October 19,1945 (“Shaughnessy Memorandum I”), at 1. This concern was conveyed to the United States Department of State which passed the information on to the Commissioner. On September 13, 1945, the Commissioner wrote to the Attorney General: The Philippine Government again has expressed to the Department of State its concern because Filipino members of the armed forces of the United States are being naturalized even though they have always been domiciled in the Philippine Islands. ... In view of the concern expressed by the Philippine Government, it is my belief that the situation might best be handled by revoking the authority previously granted to Mr. Ennis and by omitting to designate any representative authorized to confer citizenship in the Philippine Islands. This course would eliminate a source of possible embarrassment in our dealings with the Philippine people, who probably will be awarded independence in the near future. Memorandum to Tom C. Clark, Attorney General, from Ugo Carusi, INS Commissioner, dated September 13, 1945 (“Carusi Memorandum”), at 2. The Attorney General adopted the Commissioner’s recommendation on September 26, 1945 and revoked Vice Consul Ennis’s naturalization authority. Notice of the revocation did not reach him for several weeks, however, and Ennis continued to naturalize aliens until October 26, 1945. 68 Veterans, supra, 406 F.Supp. at 936. As succinctly stated in an internal INS memorandum, the revocation of the Vice Consul’s naturalization authority created “the rather anomalous situation that while we recognize in law the legal right of these persons to the benefits under the Act we have, from an administrative standpoint, made it impossible for such persons to acquire these benefits.” Shaughnessy Memorandum I, at 1. Several months after the Philippines lost its naturalization representative, Congress enacted a statute that appropriated funds for the Philippine Army and provided that service in that Army, pursuant to President Roosevelt’s 1941 order, was not to be deemed service in the United States armed forces. First Supplemental Surplus Appropriation Rescission Act of February 18, 1946, Pub.L. No. 79-301, 60 Stat. 14. The INS had previously concluded that service in the Philippine Army satisfied the section 701 naturalization requirement of active service in the United States armed forces. In response to this new piece of legislation, the INS reversed its earlier position and adopted the view that Filipinos inducted into the Commonwealth Army under the President’s military order were not eligible for naturalization under the 1940 Act because they had not served in the United States military. Memorandum to T. B. Shoemaker, Acting INS Commissioner, from L. Paul Winings, General Counsel, dated July 10,1946. This statute presumably did not affect the eligibility of Filipinos who individually joined the United States military subsequent to the “mass enrollment” provoked by the President’s order. See Memorandum to Ugo Carusi, INS Commissioner, from L. Paul Winings, General Counsel, dated February 5, 1945 (discussing eligibility of each group of servicemen prior to enactment of the appropriations statute). However, the INS’s interpretation of this provision greatly reduced the number of Filipino servicemen who could qualify for citizenship under sections 701-702. Government’s Brief at 8. The INS appointed a new naturalization representative for the Philippines, P. J. Phillips, who began processing petitions in August 1946. From that time until the Act expired (December 31, 1946), Phillips naturalized approximately 4,000 Filipinos pursuant to section 702. 68 Veterans, supra, 406 F.Supp. at 936. No INS official was present in the Philippines to implement the Act during the nine month period after Ennis’s naturalization authority was revoked and before Phillips was appointed. Petitioner Antonio Olegario, a sixty-one year old Philippine citizen, served in the Army of the Commonwealth of the Philippines from December 20, 1941 to December 2, 1945. Although Olegario was eligible to apply for naturalization during the brief two to three month period that Ennis served as an INS representative in the Philippines, he did not take any action in this matter. Of course, his inaction is not surprising since many Filipino soldiers, isolated and imprisoned during the Japanese occupation, were unaware of the opportunity to apply for naturalization. See In Re Petition for Naturalization of Neria, No. 67485, slip op. at 25-26 (Aug. 29, 1979) (hereinafter, Petition of Neria). Ennis’s naturalization authority was effectively revoked on October 26, 1945. The petitioner remained eligible for naturalization under the 1940 Act until December 2,1945 when his service in the Philippine Army ended. Therefore, for about five weeks from October 26th to December 2d, Olegario apparently qualified for United States citizenship, but no INS representative was present in the Philippines to accept his petition. Olegario concedes that he neither filed a timely naturalization petition nor made any attempt to do so. He contends, however, that his constitutional rights were violated by “the arbitrary action of the Commissioner . . ., with the approval of the Attorney General, which resulted in the removal of the Vice Consul from the Philippines during 1945-46 . . . and precluded petitioner, and Filipino servicemen similarly situated, from exercising the opportunity to become naturalized pursuant to Sections 701-702 of the [Act].” Brief of Petitioner-Appellee (“Petitioner’s Brief”), at 25. The district court agreed with this contention and, reversing a decision rendered by an INS naturalization examiner, granted Olegario’s naturalization petition. Relying on Judge Renfrew’s comprehensive opinion in the 68 Veterans case, supra, Judge Knapp concluded that the petitioner “had been denied due process of law in a manner which could only be remedied by now admitting [him] to citizenship.” While recognizing the import of Judge Renfrew’s discussion, and the substantial arguments made by the petitioner and amicus on appeal, we are constrained to disagree with that result. Several preliminary issues and arguments must be addressed before the constitutional question presented by this appeal can be fully examined. These issues, in turn, require some further background discussion of legislative history and prior cases involving Filipino veterans seeking United States citizenship. Statutory and Case Law Background In 1952, Congress enacted a new Immigration and Nationality Act that appeared to extinguish some of the naturalization rights granted to alien servicemen under the 1940 Act. Immigration and Nationality Act of 1952, 66 Stat. 242, codified at 8 U.S.C. §§ 1427 et seq. (“1952 Act”). Specifically, the 1952 Act required that the applicant had either enlisted in the military while located in a qualifying geographic area that did not include the Philippines, or been lawfully admitted to the United States for permanent residence. 8 U.S.C. § 1440(a). Yet the 1952 Act also included a savings clause that was relied upon by aliens who claimed that their rights under the 1940 Act had been preserved. This argument was accepted by the courts, and citizenship was granted to certain aliens who would otherwise have been ineligible under the 1952 Act. See, e. g., United States v. Menasche, 348 U.S. 528, 75 S.Ct. 513, 99 L.Ed. 615 (1955); Medalion v. United States, 279 F.2d 162 (2d Cir. 1960); United States v. Wolff, 270 F.2d 422 (3d Cir.), cert. denied, 362 U.S. 928, 80 S.Ct. 753, 4 L.Ed.2d 746 (1960). Congress, however, disagreed with the courts’ interpretation of the statute. In 1961 Congress amended the 1952 Act to provide: Notwithstanding the provisions of Section 405(a) [the savings clause], any petition for naturalization filed on or after September 26, 1961 shall be heard and determined in accordance with the requirements of this subchapter. Act of September 26, 1961, 75 Stat. 650, codified at 8 U.S.C. § 1421(e). The House Judiciary Committee’s Report on the .amendment clearly explains Congress’s intent in enacting this measure. The purpose of this amendment is to overcome interpretations placed upon the savings clause (sec. 405) of the Immigration and Nationality Act (United States v. Menasche, [supra], United States v. Wolff, [supra], Medalion v. United States, [supra]), holding in effect, that residence in the United States before December 24, 1952, was sufficient to confer naturalization rights under the Nationality Act of 1940, as amended, notwithstanding its repeal on that date by the Immigration and Nationality Act. As a consequence, petitioners of this class are being considered eligible, 9 years after its repeal, for naturalization under the 1940 law, and, if more favorable to the circumstances in their cases, they may elect to claim the benefits of the Immigration and Nationality Act. This, notwithstanding the fact that the petition for naturalization was not filed until after December 24, 1952, when the Immigration and Nationality Act became effective. In the opinion of the committee, such interpretations are contrary to the intent of Congress clearly indicated in the basic Immigration and Nationality Act. The administration of two nationality laws simultaneously is cumbersome, inefficient, and unfair to other applicants for naturalization. In accordance with the original purpose of the Immigration and Nationality Act, this clarifying amendment will make it amply apparent that from and after its enactment the requirements and provisions' of the Immigration and Nationality Act will be uniform and will apply to all petitioners for naturalization. [1961] U.S.Code Cong. & Ad. News, pp. 2981-82. After this explicit statement of congressional intent regarding the 1952 Act’s savings clause, petitioners seeking naturalization under the 1940 Act presented the courts with more creative arguments. In INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973), a Filipino who had served in the United States armed forces applied for naturalization under the 1940 Act in September 1967. Hibi argued that the government was estopped from relying on the statute’s expiration date and time limit because it had failed to advise him of his rights under the Act during the time he could have applied and had failed to provide an INS representative in the Philippines during the entire time he was eligible for naturalization. The district court agreed with Hibi’s contentions, and its decision was upheld by the Court of Appeals for the Ninth Circuit. Without hearing oral argument in the case, the Supreme Court summarily reversed the Ninth Circuit in a brief per curiam opinion from which three justices dissented. The Court held that although Montana v. Kennedy, 366 U.S. 308, 81 S.Ct. 1336, 6 L.Ed.2d 313 (1961), left open the question whether the government’s “affirmative misconduct” could estop it from denying citizenship, “no conduct of the sort there adverted to was involved here.” 414 U.S. at 8, 94 S.Ct. at 22. Affirmative misconduct, as well as constitutional violations, were found by the district court in 68 Veterans, supra, which involved a similar challenge to the withdrawal of naturalization authority from the Philippines. The petitioners in that case were sixty-eight Filipinos who had served in the United States armed forces during World War II and were seeking naturalization pursuant to section 702 of the 1940 Act. Judge Renfrew divided the petitioners into three categories. Category I included those who had taken affirmative action amounting to “constructive filing” of a naturalization petition prior to December 31, 1946. Category II consisted of those veterans who were eligible for citizenship under the 1940 Act but made no efforts to file a petition before the Act expired. Category III included those petitioners who were in the same position as those in Category II except that they had no proof that they served in the United States military as required by Section 701. Judge Renfrew held that the Category I petitioners should be granted citizenship because, unlike Hibi, they had presented evidence of affirmative misconduct by the government and had taken steps amounting to the “constructive filing” of naturalization petitions. With respect to Category II, the judge ruled 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 Nationality Act of 1940 during all of the times those statutory rights were available denied petitioners due process of law.” 406 F.Supp. at 951. Category III petitioners were granted ninety days before their petitions would be dismissed to provide proof of service in the American armed forces. Judge Renfrew’s constitutional analysis began with the determination that these petitioners, although not citizens, were protected by the due process clause of the Fifth Amendment during the time that the INS representative was withdrawn from the Philippines. Upon reviewing the Philippine Independence Act and various definitions in the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(3), (22), (31), he concluded that Filipinos were nationals of the United States until July 4, 1946 when the country became fully independent. Furthermore, the Philippine Independence Act “evidence[d] an unmistakable Congressional intent to preserve for Filipinos basic civil rights.” Id. at 942. Judge Renfrew stated that while the petitioners were United States nationals, their constitutional rights were the same as those of noncitizen residents of the United States. Id. at 949-50. In his view, the government had to show a compelling interest to justify its decision to withdraw the naturalization officer from the Philippines because the action had discriminated against Filipinos, an inherently suspect class. Id. at 950. The court ruled that the government failed to carry this heavy burden. Although the Court has no doubt 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, that concern alone, when considered in light of the suspect nature of the classification herein, and the strictness of the applicable constitutional standard, is insufficient justification for violating petitioners’ rights. Id. at 951. The government appealed the decision in 68 Veterans. However, the Department of Justice subsequently moved to dismiss the appeal on the basis of a recommendation by the Commissioner. On November 30, 1977, an order dismissing the Ninth Circuit appeal was entered. After the appeal was dismissed, the government reevaluated its policy regarding Category I and Category II petitioners. The government has now adopted Judge Renfrew’s view with respect to Category I cases and will not oppose these petitions because it is conceded that these aliens were prejudiced by the government’s failure to process their applications in 1945 and 1946. However, the government strongly disagrees with Judge Renfrew’s decision that Category II petitioners should be granted citizenship because they were previously denied due process of law. In Category II cases, the government will not oppose naturalization only if the application was filed before the appeal in 68 Veterans was withdrawn. The reason offered to support this differentiation among Category II cases is that “the failure of these applicants to press their cases to judgment could have resulted from their expectation that they would receive the same treatment as the aliens in [68 Veterans].” Brief of Respondent-Appellant (“Government’s Brief”) at 14. Pursuant to this policy, several other appeals have been withdrawn. This case has been pursued, however, because Olegario filed his naturalization petition after November 30, 1977. Collateral Estoppel and Failure to Appeal The Association of Immigration and Nationality Lawyers (“Association”), which has submitted an amicus brief supporting the petitioner, argues that the collateral estoppel effect of the decision in 68 Veterans precludes the government from contesting the decision of the district court in this case. According to the Association, 68 Veterans resolved the precise issue raised in this case, and “having failed to prosecute its appeal . . ., [the government] should be prohibited, on the principle of collateral estoppel, from litigating the same issue all over again.” Brief of Association of Immigration and Nationality Lawyers, Amicus Curiae (“Amicus Brief”) at 10. The Association’s argument relies on the Supreme Court’s decision in Parklane Hosiery Co., v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), which approved the use of “offensive” collateral estoppel under certain circumstances. While the government agrees that Parklane is critical to this determination, it disagrees with the Association’s application of the case and contends that collateral estoppel should not be applied here. The court concurs. The Parklane Court upheld the “offensive use of collateral estoppel,” which it defined as “a plaintiff . . . seeking to estop a defendant from relitigating the issues which the defendant previously litigated and lost against another plaintiff.” Id. at 329, 99 S.Ct. at 650. Noting that courts have “broad discretion” in applying the doctrine, the Court ruled that collateral estoppel should not be applied when the plaintiff could have easily joined the prior action or when it would be unfair to the defendant. Neither circumstance was present in that case, which involved a stockholders’ class action for securities fraud that was instituted after a successful SEC action challenging the defendants’ conduct. In contrast to Parklane, the government is the defendant here, and the case raises important issues of national concern. As stated by the government “a determination to forego further judicial review of an adverse decision, as in [68 Veterans], may result from a variety of factors — scarcity of resources, potential impact, public interest — which are unrelated to the legal issues in the case.” Reply Brief of Respondent-Appellant (“Government’s Reply Brief”) at 3-4. If each adverse decision were accorded the collateral estoppel effect urged by the Association, the Solicitor General would be forced to seek review of cases that would not otherwise be appealed. “While the Solicitor General apparently thought the problem of Filipino War Veterans would end with [68 Veternas], the ease has spurred litigation rather than settled the issue.” Id. at 4-5. None of these subsequent cases was decided on the grounds that the 68 Veterans decision collaterally estopped the government from contesting the naturalization petition. Nor will we resolve the ease at bar by relying on the collateral estoppel doctrine. The Association also contends that denial of Olegario’s petition would constitute a due process violation because the government failed to contest the naturalization of similarly situated petitioners in the 68 Veterans case and other applicants who filed their petitions before November 30, 1977, when the 68 Veterans appeal was withdrawn. In the Association’s view, the government offers “no rational basis” for distinguishing between the two groups of petitions and the “arbitrary cutoff date has no bearing whatever to one applicant’s eligibility over another’s.” Amicus Brief at 13. The government, in turn, contends that it had an affirmative duty to review its decision to withdraw the appeal once it became evident that the impact and practical consequences of the 68 Veterans decision were much more substantial than had originally been anticipated. See Bentex Pharmaceuticals, Inc. v. Richardson, 463 F.2d 363, 368 n.17 (4th Cir. 1972), rev’d on other grounds sub nom. Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235 (1973). The government describes its policy of not contesting any petitions that were filed before the appeal was withdrawn as “an attempt to draw the line on the claims of Filipino war veterans while at the same time according those who had not adopted a ‘wait and see’ attitude the benefits obtained by the aliens in [68 Veterans ].” Government’s Reply Brief at 5. While the court agrees that the government’s cutoff date is unrelated to an applicant’s eligibility, this observation is also besides the point. The government was entitled to reassess its initial view of the decision and to reverse its position on the case. Even after the appeal was dropped, the government apparently could have challenged other petitions filed before withdrawal of the appeal. The cutoff date, although somewhat confusing, thus appears to benefit petitioners who would otherwise be subject to the same government challenge asserted here. The government’s failure to appeal the 68 Veterans decision may have suggested to some applicants that they could not successfully seek naturalization under the 1940 Act despite Congress’s restrictive interpretation of the savings clause and the Supreme Court’s opinion in Hibi. However, neither the petitioner nor amicus allege that any authorized government official discouraged applicants from filing petitions while the appeal was pending or affirmatively represented that naturalization rights under the 1940 Act were now secure. This case, therefore, does not involve “a serious injustice” created by the government’s “wrongful conduct” that would justify estopping the government from adopting its current position in this case. See Union Oil Co. v. Morton, 512 F.2d 743, 748 n.2 (9th Cir. 1975); United States v. Lazy FC Ranch, 481 F.2d 985, 989 (9th Cir. 1973); Lau, Wun Man v. INS, 426 F.2d 689, 690 (3d Cir. 1970). Furthermore, judicial and administrative officers are generally allowed wide discretion and considerable latitude in determining when to file cases or pursue appeals. See United States v. Swanson, 509 F.2d 1205, 1208 (8th Cir. 1975); Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 379-82 (2d Cir. 1973); Terminal Freight Handling Co. v. Solien, 444 F.2d 699, 708 (8th Cir. 1972), cert. denied, 405 U.S. 996, 92 S.Ct. 1246, 31 L.Ed.2d 465 (1972). Despite “mistaken action or lack of action on the part of public officials,” a government agency may reverse its position and apply a new policy to the parties before it. Maxwell Co. v. NLRB, 414 F.2d 477, 479 (6th Cir. 1969), quoting NLRB v. Baltimore Transit Co., 140 F.2d 51, 54-55 (4th Cir.), cert. denied, 321 U.S. 795, 64 S.Ct. 848, 88 L.Ed. 1084 (1944); see Sierra Club v. Leslie Salt Co., 412 F.Supp. 1096, 1103-04 (N.D. Cal.1976). The government’s decision to pursue this appeal while not contesting the petitions of other similarly situated applicants does not deprive Olegario of due process of law. The Political Question Doctrine The government contends that the court should not entertain Olegario’s claim because it involves a nonjusticiable political question. According to the government, to affirm the district court’s decision in this case, “this Court must find that petitioner, if he had sued in 1945, could have persuaded a court of the United States to order the Vice Consul to remain in the Philippines despite the objections of the Philippine Government.” Government’s Brief at 20. Asserting that “the Constitution commits such foreign policy questions to the Executive branch,” the government argues that the issues raised by this case are clearly nonreviewable. Id.. The court, however, disagrees with this characterization. To resolve the political question issue posed by this case, we need not assume a historical perspective and determine whether Olegario’s claim would have been either entertained or granted in 1945 when the allegedly unconstitutional action occurred. Instead, as the government apparently recognizes, the court must examine the issues currently raised by the case in light of the political question criteria delineated by the Supreme Court in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1961). On the basis of this examination, the court concludes that Olegario’s claim is justiciable. Writing for the Baker Court, Justice Brennan described the fundamental attributes of the political question doctrine. It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question’s presence. The doctrine of which we treat is one of “political questions,” not one of “political cases.” The courts cannot reject as “no law suit” a bona fide controversy as to whether some action denominated “political” exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing. Id. at 217, 82 S.Ct. at 710; see Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Sneaker Circus Inc. v. Carter, 566 F.2d 396 (2d Cir. 1977); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 (1974); Orlando v. Laird, 443 F.2d 1039 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 94, 30 L.Ed.2d 113 (1971). None of the “formulations” described above is “inextricable” from the case at hand. While the Constitution commits the responsibility for foreign affairs to the executive and legislative branches, see Art. I, § 8; Art. 2, § 2, this grant of authority is not dispositive. As stated in Baker, “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” 369 U.S. at 211, 82 S.Ct. at 707. Furthermore, this case concerns naturalization, a matter involving both foreign and domestic affairs, and the power to establish policy in this area is expressly delegated to Congress. . Art. I, § 8, cl. 4 (“The Congress shall have Power . To establish an uniform Rule of Naturalization”). Indeed, one of the petitioner’s principle contentions is that Congress’s intent to grant citizenship to Filipinos like himself was thwarted by the actions of executive officers. The precise “issue” in this case involves the due process constraints on the executive’s authority. This question — in contrast to the wisdom of a foreign policy decision— is not textually committed exclusively to the political branches. Finally, it has been suggested that the “constitutional commitment” criteria should be deemphasized in foreign affairs cases because such cases are clearly not automatically immune from judicial review even though the Constitution vests foreign affairs authority in the political branches. See 68 Veterans, supra, 406 F.Supp. at 945-46; Atlee v. Laird, 347 F.Supp. 689, 703 (E.D.Pa.1972) (three judge court), aff’d summarily, 411 U.S. 911, 93 S.Ct. 1545, 36 L.Ed.2d 304 (1973). Adopting this view, we now turn to the remaining political question formulations described in Baker. The government contends that there is a lack of “judicially discoverable and manageable standards” for deciding this case. According to the government, this case turns on whether the executive’s withdrawal of naturalization authority from the Philippines contravened an act of Congress and occurred without congressional approval or authority. Relying on Orlando v. Laird, 443 F.2d 1039 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 94, 30 L.Ed.2d 113 (1971), the government argues that this inquiry into the “mutual participation,” id. at 1042-43, between the executive and the legislature constitutes a nonjusticiable political question. Orlando, however, does not govern the case at bar. The plaintiffs in Orlando charged that the Vietnam War was unconstitutional because Congress had not expressly declared war on that country. This court rejected the government’s argument that the claim was not justiciable. Because “the constitutional delegation of the war-declaring power to the Congress maintains a discoverable and manageable standard imposing on the Congress a duty of mutual participation in the prosecution of war [, jjudicial scrutiny of that duty ... is not foreclosed by the political doctrine.” Id. at 1042. The court concluded, however, that the constitutional propriety of the means chosen by Congress to ratify the military action was a political question. This choice was “committed to the discretion” of Congress, and no “objectively manageable standards” existed by which to judge such action. Id. at 1043-44. In contrast to Orlando, this action does not involve a constitutionally imposed duty of “mutual participation in the prosecution of war.” Id. at 1042. Although the naturalization statute at issue here was enacted and implemented during World War II, it was not a military measure and did not directly concern the war effort. Orlando, unlike the instant action, arose at a time of intense national debate over the manner in which the war was being conducted. Given some evidence of congressional participation (/. e., the Tonkin Gulf Resolution and appropriation statutes), the Court refused to prescribe the exact manner in which Congress had to signal its agreement or approval. Olegario is neither seeking such a directive nor asking the court to resolve a case for which no manageable standards exist. His claim that his due process rights were violated by the executive’s allegedly unauthorized acts can be resolved according to established constitutional principles. See 68 Veterans, supra, 406 F.Supp. at 946. This court can render a decision in this case without making an “initial policy determination of a kind clearly for non judicial discretion.” Baker v. Carr, supra, 369 U.S. at 217, 82 S.Ct. at 710. The government does not contest this point. While the court is not equipped to judge the merits of naturalization laws or the wisdom with which they are implemented, it can determine whether the government’s actions were arbitrary, unauthorized, and unconstitutional. Resolution of this action would not reflect any greater “lack of respect due coordinate branches of government” than other judicial inquiries into the constitutionality of executive action. See 68 Veterans, supra, 406 F.Supp. at 947. The government contends that both political branches endorsed the action challenged here and cautions the court against unwarranted intervention in foreign affairs. But, as declared in Baker, foreign affairs cases, which often involve joint legislative and executive action, are not automatically immune from judicial review. Furthermore, the petitioner argues that the executive’s actions contravened Congress’s intent, and the question of congressional approval is a hotly debated issue in this case. Adjudication of Olegario’s claim would not express undue disrespect towards the other branches of government. This case does not present “an unusual need for unquestioning adherence to a political decision already made.” Id. The government argues that “[t]he decision of the court below and in [68 Veterans ] open a pandora’s box of problems in administering the 1952 Act and in accommodating the large numbers of eligible veterans who may seek to qualify under the 1940 Act.” Government’s Brief at 29. The multifarious problems anticipated by the government include difficulties in proving eligibility, potential for fraud, administrative confusion, and the inherent hardships in assimilating the large numbers of veterans and their families who would likely come to the United States pursuant to the Act. While we are sympathetic to the government’s concerns, they do not render the case nonjusticiable. First, the government has agreed to grant citizenship to the petitioners in 68 Veterans and to others who filed their petitions before the appeal was withdrawn. Second, the parties appear to disagree as to the number of persons now likely to seek citizenship under the 1940 Act, and the court is uncertain about the actual impact of a decision affirming the order below. Finally, and most important, as stated by Judge Renfrew: Surely the Court should not conclude that there exists a need for unquestioning adherence to a prior political decision on the grounds that other Filipino ex-servicemen, including those presently in the Philippines, would logically be entitled to claim the benefits of a decision finding that these petitioners were denied their constitutional rights. The Government has alluded to thousands of Filipinos who would be so entitled, while petitioners maintain that the number is much smaller. The actual number is irrelevant, for no decision delineating fundamental constitutional rights should turn on the number of persons who may be affected thereby. Moreover, no danger exists that American-Filipino relations would be harmed by a decision of the Court entitling some present residents of the Philippines to claim the right to naturalization pursuant to Section 702. As a sovereign independent state, the Philippine Islands is fully capable of instituting domestic policies in response to such a decision which would safeguard what it perceives to be its interests. Thus, for example, unlike 1945, the Philippine Government need not fear the loss of many of its citizens by emigration to the United States, for if it chose it could easily restrict or control their exit from the Philippines. The Court does not believe that the preservation of amicable relations between the United States and the Philippine Islands necessitates that it adhere unquestionably to the earlier executive decision. 68 Veterans, supra, 406 F.Supp. at 947 n.24. Finally, the court concludes that resolution of this case would not create the “potentiality of embarrassment” from divergent governmental statements feared by the Baker Court. 369 U.S. at 217, 82 S.Ct. at 710. The government contends that “[t]he prospect that a court . . . could reverse a considered policy decision . can be expected to chill future American initiatives in the international arena.” Government’s Brief at 31. This sweeping assertion, however, overstates the government’s case. The executive action challenged here occurred almost thirty-five years ago and has not been the subject of extensive political debate. Neither the historical nor political events giving rise to this action reflect the usual state of foreign affairs and the case is easily confined to its facts. Attempting to magnify the impact of a decision in this area, the government argues that 68 Veterans established that “an American court had the authority to order the naturalization of foreign nationals at the United States Embassy in their country despite the objections of the foreign government.” Id. We disagree with this reading of the case and are confident that other nations will not be so misled. Olegario’s claim is thus not foreclosed by the political question doctrine under any of the standards described in Baker v. Carr, supra. Section 810(e) Section 310(e) of the 1952 Act, 75 Stat. 656, 8 U.S.C. § 1421(e), was enacted in 1961 to countermand several decisions broadly construing the 1952 Act’s savings clause as preserving rights established by the 1940 Act. See discussion supra. The section provides that any petition filed after September 26,1961 will be governed by the 1952 Act requirements then in effect. The naturalization examiner who originally denied the petition in this case ruled that section 310(e) barred Olegario from relying on the 1940 Act’s eligibility requirements. The government, relying on United States v. Pasion, 524 F.2d 249 (9th Cir. 1975), contends that a decision in Olegario’s favor would lead to the “administration of two nationality laws simultaneously,” a result that Congress expressly sought to prevent by enacting the amendment. See [1961] U.S.Code Cong. & Admin.News, pp. 2981-82, quoted supra. Pasión, however, is distinguishable from the case at bar. And although the court recognizes Congress’s intent to apply a uniform policy to all naturalization petitions, the statutory amendment cannot negate the due process rights of a petitioner who alleges that he was unconstitutionally denied the opportunity to apply for a benefit decreed by Congress. The petitioner in Pasión was a Philippine citizen who had served in the United States armed forces from 1945 until 1949. More than thirty years later, he came to the United States and applied for citizenship. Pasión conceded that he had to satisfy the 1952 Act naturalization standards currently in effect, which required that he be admitted to the United States for permanent residence. Although Pasión did not have permanent resident status, he argued that his military service satisfied this requirement by virtue of section 2 of the 1940 Act, 54 Stat. 788, which provided in part that “service in the Regular Army honorably terminated shall be credited for purposes of legal residence under the naturalization laws.” The Ninth Circuit Court of Appeals held that even assuming arguendo that section 2 applied to Filipinos after June 30, 1943 and that it was not repealed by implication by inconsistent provisions in later acts, section 310(e) required that all petitions meet the current standards. Pasion’s “arguably implied status survivefd] only by operation of [the 1952 Act’s savings clause],” and section 310(e) “foreclose[d] reliance on that implied status to meet the requirements of [the Act].” 524 F.2d at 251. The court stated that if Pasion’s arguments were accepted, all noncitizens who served in the armed forces before 1952 would be entitled to naturalization solely on the basis of their military service because, under section 2, this service would satisfy the permanent residence requirement. Id. at 252. The petitioner in the instant action is not relying on an implied status arguably preserved by the 1952 Act’s savings clause. Olegario contends that his naturalization petition should be granted to remedy the due process violation allegedly committed by the government. The Pasión court did not consider the question whether section 310(e) should be applied to deny a constitutional remedy, and the Ninth Circuit’s ruling is inapplicable to the case at bar. While Congress may repeal a statute, or amend it in response to judicial interpretations, such legislation does not automatically cut off the rights of those persons who were unconstitutionally deprived of statutory benefits to which they were previously entitled. Judge Knapp, reversing the naturalization examiner’s decision in this case, stated that nothing in the legislative history of section 310(e) indicated that Congress was addressing the situation of those Filipino veterans such as the petitioner who had been unable to exercise their rights under the 1940 Act in 1946. Similarly, in Petition of Neria, supra, slip op. at 16-18, 27, section 310(e) did not prevent the court from granting citizenship to a petitioner who alleged that the government’s failure to advise him of his naturalization rights under the 1940 Act denied him due process of law. In Hibi, supra, the Supreme Court rejected the petitioner’s claim that the government should be estopped from relying on the 1940 Act’s expiration date because it had failed to publicize the naturalization opportunities available under the Act and had failed to assign an INS representative to the Philippines during the entire time the Act was in effect. As noted above, the Court held that such action, or inaction, did not constitute the kind of “affirmative misconduct” that could give rise to an estoppel against the government. The Court did not, however, rule that Hibi was barred from asserting a claim under the 1940 Act by the section 310(e) requirement that all petitions be judged by the stricter 1952 Act standards now in effect. Nor will this court apply that provision to bar Olegario from challenging the constitutionality of executive action that allegedly denied him the opportunity to apply for a benefit granted by Congress. Of course, as in Hibi, the merits of the petitioner’s claim raise very different concerns than his right to pursue the action. The Hibi Decision and Laches The government contends that the district court erred in granting Olegario’s naturalization petition because such equitable relief is foreclosed by the Supreme Court’s decision in Hibi. In the government’s view, since the petitioner concedes he is not eligible under the 1952 Act requirements, the only available remedy is to estop the government from relying on the requirements now in effect. Such estoppel, according to the government, would not reflect the merits of Olegario’s claim or the manner in which it was presented, but would presume some type of governmental misconduct that justifies barring the government from refusing to grant Olegario the citizenship for which he is otherwise ineligible. The government argues that Hibi clearly precludes this result because the Court there ruled that the executive action challenged did not give rise to an estoppel against the government. The government’s argument, however, relies on an overly broad reading of the Hibi decision which we reject. Hibi was a split decision that summarily reversed the Ninth Circuit in a per curiam opinion rendered on the basis of a petition for certiorari without full briefs and oral argument. The Supreme Court issued a narrow ruling based solely on estoppel and “affirmative misconduct”; the constitutional issue raised here was neither presented nor considered in that case. While Hibi argued that the doctrine of equitable estoppel should bar the government from denying his petition, Olegario contends that naturalization is the appropriate remedy if a constitutional violation is established. The Supreme Court’s decision rejecting Hibi’s legal theory and denying him relief on those grounds does not foreclose this court’s consideration of Olegario’s quite distinct due process claim. See 68 Veterans, supra, 406 F.Supp. at 942-43. The constitutional issue remains unresolved and, if a violation is found, this court is free to order the appropriate relief. See Swann v. Board of Education, 402 U.S. 1,12, 91 S.Ct. 1267, 1274, 28 L.Ed.2d 554 (1970) (“Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent equitable remedies.”); United States v. Vincent, 524 F.2d 153, 160-61 (2d Cir. 1975) (accord). The government also argues that the relief sought by Olegario is barred by the equitable doctrine of laches. To invoke the doctrine successfully, the government must establish that its interests were prejudiced by Olegario's lack of diligence in pursuing this claim. Ernie Industries, Inc. v. Glen Raven Mills, Inc., 478 F.2d 562, 574 (2d Cir. 1973); Trafalgar Shipping Co. v. International Milling Co., 401 F.2d 568, 571 (2d Cir. 1968). The government purports to find support for its laches defense in the Supreme Court’s Hibi decision. The Court there stated 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 therefore fail.” 414 U.S. at 9,94 S.Ct. at 22. According to the government, “[although the Court did not use the word laches, that principle obviously was what the Court had in mind.” Government’s Brief at 43. This court, however, is less confident about its mind-reading ability, and the government’s hypothesis appears unfounded. The sentence quoted above, which was the final statement preceding the Court’s order, merely reiterated the Court’s conclusions and the result in the case. After finding that the government’s alleged misconduct did not constitute grounds for estoppel, it is highly unlikely that the Court would then rule that Hibi’s claim was barred by laches. If the Court had so ruled, the doctrine would probably have been expressly applied as an alternative ground for the decision. Nothing in the Supreme Court’s or Ninth Circuit’s opinion in the case suggests that laches was asserted or considered as a defense to Hibi’s suit. The government has not established that the petitioner has “slept upon his rights.” Wagner v. Baird, 48 U.S. (7 How.) 234, 258, 12 L.Ed. 681 (1849). The government contends that for over thirty years Olegario made no effort to enforce his claim, although he was apprised of his rights under the 1940 Act and that “he surreptitiously entered this country and then sought naturalization only after his authorized stay expired.” Government’s Brief at 44. Olegario, not surprisingly, vigorously disputes the government’s description of his activities in the United States. See Petitioner’s Brief at 3-4. Even adopting the government’s view of the facts, Olegario does not seem to have unreasonably delayed pursuit of his claim. Olegario testified that he did not apply for citizenship while he was in the Philippines because he had learned from several different friends, who were identified at trial, that no INS representative was stationed at the Consulate to process applications. Tr. at 3-6. His failure to act at that time appears reasonable in light of the information he received and the poor condition of the communication and transportation systems then in operation. Id. at 7. Practically, Olegario could not have brought the instant action until he came to the United States in 1977, and he initiated naturalization proceedings less than one year later. See Joint Appendix, A-l (Application to File Petition for Naturalization, dated April 20, 1978). Laches demands more than just delay; it requires lack of diligence. City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975); American Marine Corp. v. Citizens Cas. Co., 447 F.2d 1328 (5th Cir. 1971). While pursuit of this claim has certainly been delayed, Olegario’s conduct, or failure to act, does not constitute unreasonable procrastination. The government argues that it was prejudiced by the petitioner’s delay in asserting his claim because “[ajgainst the explicit intentions of Congress, it is forced to administer two naturalization laws simultaneously and to defend against recent claims relating to occurrences over thirty years ago.” Government’s Brief at 44. Yet the government has already agreed to the simultaneous administration of two naturalization laws pursuant to its policy of not opposing Category I petitions relying on the 1940 Act and Category II cases filed before November 30, 1977. The INS, therefore, will be reviewing petitions and making recommendations in cases just like the one at bar. While the government is rightfully concerned about fraudulent claims, it need not grant citizenship to any alien who cannot establish his eligibility. The court in 68 Veterans, for example, held that Category III petitioners, who failed to provide adequate proof of military service, would be denied relief unless the necessary proof were supplied to the INS within ninety days. In this case, the government concedes that the petitioner satisfies the eligibility requirements of the 1940 Act, and the only disputed factual issue — the date that Olegario was discharged from the army— was resolved in the government’s favor by the district court. The government’s decision to process and grant other 1940 Act petitions indicates that the proceedings could go forward without undue hardship. In short, the government has failed to establish that it will be unfairly prejudiced by Olegario’s delay in instituting this action. Neither the Supreme Court’s Hibi decision nor the equitable doctrine of laches bars Olegario from pursuing this claim. Olegario’s Constitutional Claim We agree with Judge Renfrew’s conclusion in 68 Veterans that Filipinos like the petitioner were United States nationals protected by the Constitution until the Philippines became an independent country on July 4, 1946. See Johnson v. Eisentrager, 339 U.S. 763, 771, 780, 70 S.Ct. 936, 940-944, 94 L.Ed. 1255 (1950); Balzac v. Porto Rico, 258 U.S. 298, 312-13, 42 S.Ct. 343, 348, 66 L.Ed. 622 (1922); Dorr v. United States, 195 U.S. 138, 146-47, 24 S.Ct. 808, 811-812, 49 L.Ed. 128 (1904); Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901). The government does not contest this point. All the parties thus agree that Olegario can assert a claim based on the Due Process Clause of the Fifth Amendment and the Equal Protection rights derived from that provision. See Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 96 S.Ct. 1895, 1903, 48 L.Ed.2d 495 (1976); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954). The litigants part company, however, when it comes to defining the constitutional interest at stake and selecting the proper standard to apply in evaluating the executive action challenged here. The parties also disagree over whether the withdrawal of the naturalization examiner from the Philippines contravened a statutory mandate and frustrated Congress’s intent in enacting sections 701-705 of the 1940 Act. The Fifth Amendment prohibits the government from depriving an individual of “life, liberty, or property, without due process of law.” U.S.Const. amend. V. To invoke the procedural protections of the Constitution, a litigant must establish that the individual interest asserted is encompassed within the right to “life, liberty, or property” protected by the amendment. See Ingraham v. Wright, 430 U.S. 651, 672, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1976); Board of Regents v. Roth, 408 U.S. 564, 569-72, 92 S.Ct. 2701, 2705-2706, 33 L.Ed.2d 548 (1972). Olegario alleges that he was “arbitrarily precluded from exercising a ‘liberty’ right, created by a congressional act, to apply for naturalization.” Petitioner’s Brief at 26. According to the petitioner, “[s]ince this right was created by virtue of legislation, it was neither inchoate, contingent, or a mere expectancy, but rather a vested one in which petitioner ‘[had] a legitimate claim to entitlement.’ ” Id., quoting Board of Regents v. Roth, supra, 408 U.S. at 564, 92 S.Ct. at 2701. Naturalization proceedings began in the Philippines in August 1945 and were terminated on October 26, 1945. Olegario remained eligible for naturalization under section 702 until December 2, 1945 when he was discharged from the army. He argues that any deprivation of the opportunity to apply for naturalization — no matter how brief — is constitutionally significant. As amicus points out, Filipino servicemen could not have known about the naturalization law prior to the liberation of the Philippines and they never received any official notification afterwards. See Petition of Neria, supra. Naturalizations began as the war was drawing to a close and many Filipinos were soon discharged from the army and ineligible for citizenship. The Association asserts that “the halting of naturalization . had the effect of preventing news of the law from reaching qualified veterans in the only way it could — by word of mouth.” Amicus Brief at 40. The petitioner and amicus thus argue that because the government’s alleged misconduct significantly affected Olegario’s legal rights, he is entitled to relief without proving that word would have reached him or that he would definitely have been naturalized if the Vice Consul’s authority had not been revoked. The court agrees that this case does not turn on whether Olegario can prove that he would have been naturalized but for the Attorney General’s decision to withdraw the naturalization examiner from the Philippines. This inquiry addresses Olegario’s standing to bring this action which is neither challenged by the government, see Government’s Brief at 16, nor questioned by the court. The petitioner has demonstrated “an injury to himself that is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976), and has shown a “ ‘fairly traceable’ causal connection between the claimed injury and the challenged conduct.” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978), quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977). Contrary to Olegario’s assertions, however, a constitutionally protected “legitimate claim [of] entitlement” to American citizenship was not at stake in this ease. The 1940 Act did not grant Filipinos such as the petitioner a vested right to citizenship; it liberalized the requirements and established a mechanism, to be implemented by the Commissioner and the Attorney General, to enable soldiers overseas to apply for naturalization. See Greenholtz v. Inmates of Nebraska Penal & Correctional Facility, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Arnett v. Kennedy, 416 U.S. 134, 153-55, 94 S.Ct. 1633, 1643-1644, 40 L.Ed.2d 15 (1974) (plurality opinion). At most, the statute provided Olegario with an opportunity to become a citizen. Accordingly, this is not a case in which the traditional procedural due process analysis regarding entitlement, deprivation, and procedural requirements is appropriate. The petitioner is not claiming that he was wrongfully deprived of a benefit as a result of inadequate factfinding or improperly applied standards. Rather, his complaint is that the Commissioner and the Attorney General exceeded their authority in violation of a legislative enactment, therefore depriving him of that opportunity. We will thus consider this aspect of his claim simply as a statutory .interpretation question inquiring whether the executive’s actions clearly contravened a congressional mandate. Petitioner’s equal protection claim charging that these actions unjustifiably discriminated against a protected class does, of course, raise a constitutional issue, see Hampton v. Mow Sun Wong, supra, 426 U.S. at 102-03, 96 S.Ct. at 1904-1905; it will be analyzed as such under the appropriate standards. We first turn to the statutory issue. 1. Executive Authority and Congressional Intent Absent a congressional grant of statutory authority, the authority of the executive branch is limited to the express and implied powers of Article II of the Constitution, insofar as those powers are not inconsistent with Congress’s legislative authority as defined in Article I. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38, 72 S.Ct. 863, 870-871, 96 L.Ed. 1153 (1952) (Jackson, J., concurring); In re Grand Jury Investigation of Ven-Fuel, 441 F.Supp. 1299, 1306 (M.D.Fla.1977). The Constitution thus provides a rough guide to the proper allocation of authority between the political branches, see Kennedy v. Sampson, 511 F.2d 430, 434 (D.C. Cir. 1974), and the executive cannot act as a lawmaker without a delegation of authority or mandate from Congress. See Commissioner v. Acker, 361 U.S. 87, 92, 80 S.Ct. 144, 147, 4 L.Ed.2d 127 (1959); Independent Meat Packers Ass’n v. Butz, 526 F.2d 228, 235 (8th Cir. 1975), cert. denied, 424 U.S. 966, 96 S.Ct. 1461, 47 L.Ed.2d 733 (1976). The Constitution’s grant of executive authority does not include the right to nullify legislative acts or ignore statutory directives. See Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411-13, 91 S.Ct. 814, 821-822, 28 L.Ed.2d 136 (1970); Zieske v. Butz, 412 F.S