(1971), where the Supreme Court applied the rational basis test in upholding Section 301(b) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1401(b) (1970), which provided that persons born abroad to an American citizen and to an alien could not retain the citizenship they received at birth unless they spent at least five successive years in the United States between the ages of 14 and 28. Although the statute in Bellei clearly imposed a greater burden on one type of citizenship on the basis of parentage and place of birth than on others, we do not think the Court's reasoning or holding is apposite here.
First of all, the statute in Bellei dealt with the narrow category of citizens outside the protection of the Fourteenth Amendment, 401 U.S. at 827-831, and thus not subject to the rule of Afroyim v. Rusk, 387 U.S. 253, 18 L. Ed. 2d 757, 87 S. Ct. 1660 (1967), that citizens born in the United States or naturalized in the United States could not be divested of their citizenship except by their own assent. Id. at 257. This distinction obviously has no place here, since Faruki was naturalized in the United States and thus is entitled to full Fourteenth Amendment protection. Second, and more important, the statute challenged in Bellei was part and parcel of the immigration and naturalization process, the substantive and procedural rules by which the Government regulates the entry and expulsion of aliens and admission to citizenship. Mr. Justice Blackmun, the author of Bellei, indicated clearly that this power was at issue when he argued that the condition subsequent attached to citizenship by the statute was little different, functionally, from withholding citizenship altogether until the residency requirement was met. 401 U.S. at 834-835; see also id. at 831. Traditionally, the Government has been accorded considerable leeway in its choice of rules governing the entry and expulsion of aliens and the naturalization process. See Harisiades v. Shaughnessy, 342 U.S. 580, 586-588, 96 L. Ed. 586, 72 S. Ct. 512 (1952); Fong Yue Ting v. United States, 149 U.S. 698, 724-728, 37 L. Ed. 905, 13 S. Ct. 1016 (1893); The Chinese Exclusion Case, 130 U.S. 581, 606, 9 S. Ct. 623, 32 L. Ed. 1068 (1889). But Section 515, it should be clear, has not even a remote connection with either the naturalization process or the Government's power to permit aliens on American soil. Rather, the durational citizenship requirement relates to a wholly different function -- the power to recruit persons who have passed through the naturalization process and are indisputably citizens to assist the Executive in the conduct of foreign policy. Thus it is simply wrong to argue that Bellei compels a rational basis standard of review here or otherwise controls the outcome of the case.
But even if we assume the Government is correct in arguing for a milder standard of review, I believe the statute is still defective. I believe Section 515 fails to meet even the rational basis test utilized in the broad run of equal protection challenges. See, e.g., Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 31 L. Ed. 2d 768, 92 S. Ct. 1400 (1972); Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972); Reed v. Reed, supra. In applying this test, we must ask whether the statutory preference in favor of native-born citizens, whatever their length of residence in the United States, over citizens naturalized for less than 10 years has a "fair and substantial relation to the object of the legislation." Reed v. Reed, supra, 404 U.S. at 76, quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 64 L. Ed. 989, 40 S. Ct. 560 (1920). See also Eisenstadt v. Baird, supra, 405 U.S. at 446-447 & n. 7.
At first blush, it might seem that Section 515 is at least "rationally related" to the objective of ensuring that Foreign Service officers are sufficiently knowledgeable about American life to serve as adequate representatives of our country. It might well be reasonable to assume that many just-naturalized citizens lack the requisite familiarity with the United States to serve her abroad and at home in intricate matters of foreign policy. The fact that a sweeping employment qualification may have some support in the broad run of cases is often sufficient to uphold it across the board. See Ferguson v. Skrupa, 372 U.S. 726, 732-733, 10 L. Ed. 2d 93, 83 S. Ct. 1028 (1963). However, it is impossible to ignore the contrary intimations of Reed v. Reed, supra, a case involving Idaho's automatic preference for men over women as executors of intestates' estates. There, in applying the restrained standard of equal protection review, 404 U.S. at 76, Mr. Chief Justice Burger's opinion for a unanimous Supreme Court indicated that automatic preferences for state-granted kinds of employment could not be based purely on a feature over which a person has had no control. Id. at 76-77. I find this logic equally compelling here where, as in Reed, there is no proffered factual basis, except apparently blind assumption, supporting the exclusionary classification at issue.
Moreover, in my view it is simply unrealistic to look at the statute as if it stood isolated in some sort of vacuum. As pointed out earlier, Section 515 must be read in the context of a broader statutory scheme of regulating entry into the diplomatic corps. The centerpiece of this scheme is the provision for a system of competitive written and oral examinations. 22 U.S.C. §§ 911, 912 (1970). Without this finely tuned examination system, we are safe in assuming, Foreign Service officer recruitment would very possibly degenerate into a system giving undue preference to the rich and well connected and producing a less skilled Foreign Service. Multiple competitive examinations seem indispensable to assure fairness and the best possible Foreign Service. Thus the only sensible way to evaluate Section 515 is to ask whether it is a reasonable supplement to the examination system to which it is related.
When viewed in this light, I must conclude that it is not. At no point does the Government argue -- nor have I found a scintilla of evidence in the legislative history -- that Section 515 is needed as a screening device to avoid errors in the selection process based on the written and oral examinations. Certainly a different case might be presented if only written examinations were utilized. I can easily imagine that more than book learning is required for a Foreign Service officer to respond with intelligence and speed when confronted with a situation calling on him to discuss the subtleties of American life. But these qualities are adequately tested by the oral examinations, and the Government does not argue otherwise. Thus I conclude that Section 515 is most fairly characterized as a resource-saving device -- a means of eliminating additional tests and time spent by interviewers and graders. But the possibility of administrative efficiency through an indeterminate saving of state resources, a rationale which the Government did not even raise, is hardly a rational basis on which to justify Section 515. See Reed v. Reed, supra, 404 U.S. at 76; Rinaldi v. Yeager, 384 U.S. 305, 309-310, 16 L. Ed. 2d 577, 86 S. Ct. 1497 (1966).
It is conceivable, on the other hand, that Congress may have felt that written and oral examinations were not foolproof means to ensure that applicants would have the necessary information on and associations with America to represent her adequately abroad. This concern is evident in another part of the Foreign Service Act, Section 572, which provides that at least three of a Foreign Service officer's first 15 years shall be spent in the United States, 22 U.S.C. § 962 (1970), to safeguard against losing "touch with the American way of life." H.R. Rep. No. 2508, 79th Cong., 2d Sess., 77 (1946). With respect to applicants, some sort of durational requirement ensuring sufficient exposure to American culture and society seems comprehensible on similar grounds. But in my judgment, singling out naturalized citizens for a durational citizenship requirement that does not even require them to reside in the United States after they have become citizens is simply irrational. The extremely tenuous relation between the distinction drawn by Section 515 and its rationale is underscored by the law's inapplicability to persons who are citizens at birth and the absence of any requirement that members of this group reside in America for any period of time before becoming eligible for the Foreign Service examinations. There is nothing in the legislative history indicating that Congress was given any grounds to believe that citizens at birth who have spent their youths abroad and upon reaching adulthood became eligible for membership in the Foreign Service warranted an automatic, flat preference over foreign-born naturalized citizens who, in order to become citizens, have spent at least five years here. Nor is it easy to presume the existence of facts supporting a bright-line exclusion of this sort. See Reed v. Reed, supra, 404 U.S. at 77; Cf. Weber v. Aetna Casualty & Surety Co., supra, 406 U.S. at 173-174. This factor, when coupled with a total lack of argument that the testing program might be inadequate, further supports the conclusion that the statute's distinction is not even remotely "fair and substantial." Reed v. Reed, supra.
It is, therefore, ORDERED that the plaintiff's motion for summary judgment be, and it is hereby, granted; and it is Further Ordered that the defendants' motion for summary judgment be, and it is hereby, denied; and it is Adjudged and Declared that 22 U.S.C. § 910 (1970) and the regulations adopted thereunder violate the Fifth Amendment to the Constitution of the United States; and it is Ordered that the defendants, their agents, and their successors in office are hereby enjoined from denying the plaintiff the opportunity to take the Foreign Service officer qualifying examinations by reason of his failure to meet a durational citizenship requirement.
FLANNERY, D.J.: Concurs in the result and in Parts I, II, III, IV, V and VII of the court's opinion.