KAY, District Judge.
On December 30, 1999, this Court filed an order holding Servillano Antonio Jacob's ("Plaintiff") appeal in abeyance and requiring the Government to seek to obtain authenticated records and submit any such records to the U.S. Department of the Army. On February 18, 2000, the Government filed a motion for reconsideration. Plaintiff did not file an opposition brief. The Government's motion is untimely under Local Rule 60.1(c). However, because the Court concludes that the Government has presented valid reasons for its delay, it will entertain the motion.
The original motion in this case came before the Court as an appeal from the Immigration and Naturalization Service's
On July 28, 1993, while in the Philippines, Plaintiff submitted his application for naturalization; he submitted an additional application for naturalization on December 22, 1998. Plaintiff bases his application for naturalization on his claim that he performed active duty military service during World War II on behalf of the United States in the Guerilla Unit of the Philippine Army, which was under the command of the United States Armed Forces. Plaintiff claims that he was inducted into the Guerilla Unit of the Philippine Army on September 24, 1944 at the Municipality of Urdaneta, Province of Pangasinan, Philippines, and was assigned Army serial number 410155. Plaintiff further claims that he was processed by the R.P.D. Team No. 27 at the Municipality of Naguillian, Province of La Union, Philippines on February 7, 1946, and that he was honorably discharged on February 20, 1946 pursuant to Special Order No. 42.
In 1990, the INS amended the Code of Federal Regulations to provide for "Natives of the Philippines with active duty service during World War II." 8 C.F.R. § 329.5. Section 329.5(a) provides:
Id. The regulations also provide that proof of military service "shall be provided solely by the duly authenticated records of the United States Army Reserve Personnel Records, St. Louis, Missouri, or the National Personnel Records Center, St. Louis, Missouri." Id. § 329.5(g).
On January 26, 1999, the District Director of the INS denied Plaintiff's application for lack of the required proof of qualifying active duty service. See Government's Response, July 13, 1999, at Exh. C. The INS based its denial of Plaintiff's application on the fact that the United States Army Personnel Records Center in St. Louis, Missouri could not verify his claimed military service. On February 3, 1999, Plaintiff filed a request for a hearing on the denial and submitted additional documentation. This additional evidence was forwarded to the appropriate records center for verification. Once again the Government was unable to find any record of his claimed military service, and the original decision denying naturalization was affirmed for lack of the required evidence on May 24, 1999.
On June 15, 1999, Plaintiff sought federal court review of the denial of his application. Plaintiff asserts that there was a typo in the discharge form that he signed on February 20, 1946. Plaintiff emphasizes that his name was mistyped on the discharge form — rather than listing "Servillano Antonio Jacob" (Plaintiff's name), the discharge form reversed his first and middle names to read "Antonio Servillano Jacob." Plaintiff states that he did not notice the mistake at the time because he did not look at the document carefully given that there were many soldiers who were being processed for discharge that day.
In support of his appeal, Plaintiff attached a joint affidavit from Tomas Blanco (serial number 410148) and Aquilino Jacob (serial number 410154), who were inducted into the Guerilla Unit of the Philippine Army and who aver that they served in the same unit with Plaintiff. Plaintiff also attached a February 7, 1946 Affidavit for
The Government filed its Response to Request for Review of Denial of Naturalization Application on July 13, 1999. The Government argued that the INS did search for all possible permutations of Plaintiff's name, but nonetheless found no record of military service for Plaintiff. Thus, the Government argued that Plaintiff's application for naturalization must be denied as a matter of law because neither the United States Army Reserve Personnel Records center nor the National Personnel Records Center possess any records of Plaintiff's military service.
The Court held a hearing on the matter on November 1, 1999. Relying on the Ninth Circuit's decision in Almero v. INS, 18 F.3d 757, 758, 760 (9th Cir.1994), which held that Philippine veterans seeking naturalization could prove their military service through authentic Philippine documents (in addition to U.S. Army documents in St. Louis), the Court and the parties agreed that the Government would ask the United States consulate in Manila to authenticate Plaintiff's military records. On November 2, 1999, the Court issued an order holding Plaintiff's appeal in abeyance pending verification of his military records.
On November 12, 1999, the Government filed a supplemental response in which it initially asserted that it still had not been properly served.
On December 17, 1999, the Government filed its second supplemental response in which it stated that further inquiry to the U.S. Army records centers in St. Louis had produced a negative response. On December 16, 1999, the INS District Director received a letter dated November 29, 1999 from the National Personnel Records Center in St. Louis stating:
Government's Second Supplemental Response, Dec. 17, 1999, Exh. A. Thus, the Government contends that the administrative denial of Plaintiff's application for naturalization must be affirmed as a matter of law.
The Court rejected the Government's contention that the denial of Plaintiff's application
Order Holding Plaintiff's Appeal in Abeyance (filed Dec. 30, 1999).
The instant motion for reconsideration now raises the same legal issue. The Government reiterates its contention that Pub.L. 105-119 (which amended 8 U.S.C. § 1440 Note) "states that only those former guerillas listed on a United States Army final roster are eligible for naturalization." Mot. Recon. at 1. The Government argues that this "final list cannot be changed or supplemented." Id. at 7. Finally, the Government contends that the records from the Philippine Army which this Court ordered it to seek are irrelevant to a naturalization decision under 8 U.S.C. § 1440 Note, and therefore, this Court should vacate its December 30, 1999 Order.
STANDARD OF REVIEW
In the Ninth Circuit a successful motion for reconsideration must accomplish two goals. First, a motion for reconsideration must demonstrate some reason why the Court should reconsider its prior decision. Second, the motion must set forth facts or law of a "strongly convincing" nature to induce the court to reverse its prior decision. Decker Coal Co. v. Hartman, 706 F.Supp. 745, 750 (D.Mont. 1988) (citing All Hawaii Tours v. Polynesian Cultural Center, 116 F.R.D. 645, 649 (D.Haw.1987), partially rev'd on other grounds, 855 F.2d 860, 1988 WL 86203 (9th Cir.1988)). Courts have established three grounds justifying reconsideration: (i) an intervening change in controlling law, (ii) the availability of new evidence, and (iii) the need to correct clear error or prevent manifest injustice. Decker Coal, 706 F.Supp. at 750; All Hawaii Tours, 116 F.R.D. at 646; Local Rule 60.1.
Finally, a court must defer to an administrative agency's interpretation regarding an issue about which the statute is silent or ambiguous. See Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
The instant motion for reconsideration argues that the Court should reconsider its prior decisions because Plaintiff is ineligible for naturalization as a matter of law pursuant to 8 U.S.C. § 1440 Note. The Government has not argued that there has been an intervening change in controlling law or availability of new evidence. The Court presumes that the Government bases its motion on the need to correct clear error.
The Court finds that the Government is correct and that the November 2, 1999 Order (whereby the Government agreed to
Plaintiff seeks naturalization under 8 U.S.C. § 1440 Note as a former member of a guerilla unit of the Philippine Army. Section 405 of the Immigration Act of 1990 modified § 1440 by adding a Note to the section entitled "Naturalization of Natives of the Philippines Through Certain Active Duty Service During World War II." See Pub.L. 101-649, § 405; 8 U.S.C. § 1440 Note.
In the original version of § 405, eligibility for naturalization was based, inter alia,
Evidently, following Almero, the INS perceived a pattern of abuse and was able to convince Congress to narrow eligibility under § 405. Section 405 was amended in 1997 with the passage of Pub.L. 105-119. Subparagraph (a)(1)(B) was struck and replaced with language that limited eligibility for naturalization on the basis that Plaintiff is asserting (namely, having served on behalf of the United States in a guerilla unit of the Philippine Army) to applicants who,
See Pub.L. 105-119, § 112(b)(1); Pub.L. 101-649, § 405(a)(1)(B)(ii), as amended by Pub.L. 105-119; 8 U.S.C. § 1440 Note (emphasis added). Under the amended language of § 1440 Note "the executive department under which a person served," for a person who was in a recognized guerilla unit (and therefore, the entity with authority to determine whether that person served honorably in active-duty status and was separated from service under honorable conditions) is the United States Department of the Army. See Pub.L. 105-119, § 112(b)(2); Pub.L. 101-649, § 405(a)(3)(A)(ii) & § 405(a)(3)(B), as amended by Pub.L. 105-119; 8 U.S.C. § 1440 Note; compare Almero, supra (allowing the executive department under which such a person served to be the Philippine Army). These changes were imposed retroactively to applications filed prior to February 3, 1995. See Pub.L. 105-119, § 112(d)(1); 8 U.S.C. § 1440 Note.
A diligent search of the legislative history surrounding the passage of Pub.L. 105-119 did not show anything to the contrary. The only legislative history available discussing the amendment (as opposed to merely restating it) is Senator Inouye's speech presenting the amendment to the Senate. Senator Inouye explained that an amendment to § 405 was necessary because "the authority to naturalize applicants in the Philippines has now expired." 143 Cong. Rec. S379-01, *S497 (Jan. 21, 1997). He stated that his proposed legislation
Id. (footnote added). Senator Inouye explained, however, that the amendment to § 405 "makes clear that naturalization is available only to those applicants who were found by the Recovered Personnel Division of the U.S. Army and the Guerrilla Affairs Division of the U.S. Army to deserve benefits from the U.S. Government." Id. Thus, although the 1997 amendment extended the time frame for applications to be processed, it limited the ways in which an applicant could prove his eligibility for naturalization.
The Court concludes that the only permissible inquiry is whether or not Plaintiff's name is listed on the "final roster."
For the foregoing reasons, the Court GRANTS the Government's motion for reconsideration, VACATES the November 2, 1999 and December 30, 1999 Orders, and DENIES Plaintiff's appeal.
IT IS SO ORDERED.
Id. at *1 (finding Filipino applicant who claimed service in a guerilla unit in World War II ineligible for naturalization under § 1440 Note because his name did not appear on the "final roster") (footnotes omitted) (brackets in original). Thus, Cano holds that the final lists of the U.S. Army can no longer be supplemented by authentication of Philippine authorities as ruled in Almero.