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SAYEED FARUKI v. ROGERS

October 6, 1972

John Sayeed Faruki, Plaintiff
v.
William P. Rogers et al., Defendants


Wright, Circuit Judge, Hart, District Judge, and Flannery, District Judge. Flannery, D.J.: Concurs in the result and in Parts I, II, III, IV, V and VII of the court's opinion. Hart, D.J., dissenting.


The opinion of the court was delivered by: WRIGHT

This case involves the constitutionality of Section 515 of the Foreign Service Act of 1946, 22 U.S.C. § 910 (1970). The statute provides:

 
"No person shall be eligible for appointment as a Foreign Service officer unless he is a citizen of the United States and has been such for at least ten years."

 In our view, this eligibility requirement violates the equal protection guarantee applicable to the federal government through the due process clause of the Fifth Amendment. *fn1" The statute clearly discriminates in favor of persons receiving their citizenship at birth and against those who came to America as aliens and were naturalized. As such, it must bear close judicial scrutiny to determine whether it is necessary to further a compelling governmental interest. We find that it is not. Moreover, when viewed in light of the statutory scheme of which it is only a part, *fn2" I would find that Section 515 fails even the less demanding "rational basis" test. Thus we are compelled to enjoin its enforcement and to order the defendants to administer the Foreign Service entrance examinations to plaintiff Faruki.

 I

 The facts and procedural posture of this case, about which there is no dispute, can be quickly summarized. John Sayeed Faruki was born in India in 1935 and became a citizen of Pakistan in 1954. He took his undergraduate degree in economics, political science and English literature at Sind University in Pakistan in 1955. Two years later Sind University granted him a master's degree in English literature. He emigrated to this country in 1959 and became a naturalized citizen in 1966. While he was still an alien, in 1964, the State Department hired him as an instructor in the School of Language Studies, Department of Near East and African Languages, at the Foreign Service Institute which, incidentally, provides courses for the officer corps presently closed to Faruki. *fn3" In December 1967 Faruki left the Foreign Service Institute. He is currently employed as a transportation specialist in Washington, D.C.

 On October 20, 1971, Faruki applied to the State Department to take the written examination for the Foreign Service scheduled to be administered on December 4, 1971. He was informed that he could not take the examination because he did not meet the durational citizenship requirements adopted by the State Department pursuant to Section 515. 22 C.F.R. §§ 11.2(b), 501.6(b) (1972) provide that only citizens of at least seven and a half years duration may be administered the examinations. Faruki then brought an action for declaratory and injunctive relief against enforcement of the statute and the regulations adopted thereunder. Since Faruki sought injunctive and not merely declaratory relief, District Judge Hart properly requested the convening of this three-judge court under 28 U.S.C. §§ 2282, 2284 (1970). *fn4"

 II

 Since Section 515 is said to violate the equal protection guarantee, we must be clear at the outset as to the nature of the discrimination alleged. *fn5" Equal protection requires scrutiny of the standards by which persons are classified by law. The guarantee ensures that a minimal standard of equity and reasonableness constrains the process by which government regulation allocates burdens and benefits. Compare Powell v. Pennsylvania, 127 U.S. 678, 687, 32 L. Ed. 253, 8 S. Ct. 992 (1888), with McLaughlin v. Florida, 379 U.S. 184, 191, 13 L. Ed. 2d 222, 85 S. Ct. 283 (1964).

 Both parties here agree that the obvious and inescapable effect of Section 515 is to make it more difficult for naturalized citizens born abroad like Faruki to join the Foreign Service than it is for native-born citizens. The discrimination occurs in the following way. Persons born in the United States are citizens at birth, as are persons born abroad to parents of American citizenship. 8 U.S.C. § 1401(a) (1970). *fn6" Since Department of State regulations provide that only citizens above the age of 21 or college graduates above the age of 20 are eligible for appointment as Foreign Service officers, 22 C.F.R. § 11.2 (b) (1972), the 10-year statutory durational citizenship requirement is no barrier to them. With respect to naturalized citizens who achieve citizenship after they come to this country, the situation is obviously different. In particular, those who become citizens after the age of 11, whether through their own initiative as in Faruki's case, through the naturalization of their parents, *fn7" through adoption, *fn8" or by marriage, *fn9" do not have the opportunity to join the Foreign Service at the same time as native-born citizens. They must wait until they meet the 10-year citizenship requirement.

 Facing a period of delay, to be sure, is a milder burden than a total disqualification from eligibility. But it is hardly a trivial disadvantage. It means that many foreign-born citizens who wish to join the Foreign Service and have confidence in their abilities to pass the State Department's rigorous battery of examinations must mark time waiting for a career opportunity freely open to the native born. More than this, we must take notice of the probability that this delay, whether it is long or short, will have a deleterious effect on naturalized citizens' opportunity for advancement in the Service because of the weight that is inevitably given to seniority. See 22 U.S.C. §§ 902, 912, 923 (1970). This disadvantage appears particularly relevant in Faruki's own case. Currently 37 years old, he must wait until he is 41 to be eligible under the statute. Is there any question that his career opportunities, already cut short by his failure to become a citizen until he was 31, will probably suffer further?

 Finally, we cannot escape noticing that the basis of the delay to which naturalized citizens are subject is, in many cases, largely adventitious. While some foreigners might be able to make a conscious, informed choice as to the date of their immigration to America and, thus, a rough prediction as to when they will become citizens and when they will be eligible for jobs with durational citizenship requirements, others, especially children, have this choice made for them by parents who may know little if anything about employment barriers that stand in naturalized citizens' way and, in any event, are not likely to base their decisions on when to emigrate on the existence of such laws. Moreover, it seems at least questionable to us whether any immigrants do -- or should -- calculate that they will face employment barriers based wholly on their acquisition of citizenship later than native-born Americans.

 III

 Understanding the nature and effect of a statutory classification is, of course, only the beginning of the constitutional inquiry into the applicability of the equal protection guarantee. Guided by a proliferation of Supreme Court decisions in recent years, we must decide the appropriate standard of review for the challenged classification. In this case, we have little doubt that Section 515 must be "measured by a strict equal protection test." Dunn v. Blumstein, 405 U.S. 330, 342, 31 L. Ed. 2d 274, 92 S. Ct. 995 (1972). By this we mean that the Government has the burden of showing "a substantial and compelling reason" for imposing the durational citizenship requirement. Id. at 335. This test also requires that the statute must be drawn with precision to achieve its objectives. Id. at 342-343. On the one hand, the statute must not sweep too narrowly, affecting some, but not all, persons who logically should be covered by its purported rationale. See Shapiro v. Thompson, 394 U.S. 618, 635, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969). One would think that if government's interest in a given statutory scheme were, in fact, seriously compelling, the regulation would not have obvious holes in its coverage. On the other hand, the statute must not sweep too broadly lest it burden persons who appear to stand beyond the scope of its rationale. See Dunn v. Blumstein, supra, 405 U.S. at 343; McLaughlin v. Florida, supra, 379 U.S. at 197 (Mr. Justice Harlan, concurring); cf. United States v. O'Brien, 391 U.S. 367, ...


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