Jaime Agustin Agcaoili v. Ernest E. Gustafson

844 F.2d 620 Jaime Agustin AGCAOILI, et al., Plaintiffs-Appellants, v. Ernest E. GUSTAFSON, et al., Defendants-Appellees. No. 86-5830. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 9, 1987. Decided April 4, 1988. Russell Marshak (Brian E. Schield, on brief), Popkin, Shamir & Golan, Los Angeles, Cal., for plaintiffs-appellants. Ian Fan, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees. Appeal from the United States District Court for the Central District of California. Before BROWNING, Chief Judge, FLETCHER and POOLE, Circuit Judges. FLETCHER, Circuit Judge: 1 Appellants, Filipinos who served in the United States Armed Forces during World War II, brought this mandamus action to compel the Immigration and Naturalization Service (INS) to process their applications for naturalization, to schedule them for preliminary examinations, to conduct investigations, to make recommendations to the district court concerning their eligibility for naturalization, and to schedule them for final hearings before the district court, in accordance with the Immigration and Nationality Act (INA). The district court denied both parties' motions for summary…

Appellants, Filipinos who served in the United States Armed Forces during World War II, brought this mandamus action to compel the Immigration and Naturalization Service (INS) to process their applications for naturalization, to schedule them for preliminary examinations, to conduct investigations, to make recommendations to the district court concerning their eligibility for naturalization, and to schedule them for final hearings before the district court, in accordance with the Immigration and Nationality Act (INA). The district court denied both parties’ motions for summary judgment, holding that the outcome would be determined by the final decision in Pangilinan v. INS, 796 F.2d 1091 (9th Cir.1986), re h’g denied, 809 F.2d 1449 (9th Cir.1987), cert. granted, — U.S. —, 108 S.Ct. 66 , 98 L.Ed.2d 30 and stayed the action until a final decision in Pangilinan is rendered. At the time of the district court’s order, the opinion in Pangilinan had not been filed. The applicants appeal on the ground that Pangilinan is not controlling, and assert that they are entitled to summary judgment in their favor.

FACTS

The appellants are 63 Filipinos who served in the United States Armed Forces…

dissenting.

I believe it to be altogether unseemly for this court to rush into an opinion with full knowledge that the progenitor case upon which we rely for our authority, Pangilinan v. INS, 796 F.2d 1091 (9th Cir.1986), reh’g denied, 809 F.2d 1449 (9th Cir.1987), is about to be decided by the United States Supreme Court. Certiorari was granted in our Pangilinan case on October 5, 1987, and a decision therein is unquestionably near. See — U.S. —, 108 S.Ct. 66 , 98 L.Ed.2d 30 (1987). I would defer deciding Agcaoili out of prudence and deference; the majority is venturesome indeed in refusing to do so. In granting certiorari, the Supreme Court ordered it consolidated with the appeal from another decision of this circuit, Manzano v. INS, No. 84-6031 (9th Cir. Sept. 26, 1986) (unpublished), which was based on Pangilinan.

The above consolidated appeals were argued in the Supreme Court on February 24, 1988. 28 S.CtBull. 8103 (3/21/88). It is a reasonable expectation that both cases will be decided in the near future; surely in this term. The legal foundation upon which Pangilinan and Manzano rest are of uncertain duration. While the mere grant of certiorari is no certain predictor of…