Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-14-1994

United States v. Breyer
Precedential or Non-Precedential:

Docket 94-1301




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                          No. 94-1301
                          ___________

          UNITED STATES OF AMERICA

                         vs.

          JOHANN BREYER, aka JOHN BREYER,
          JOHANN PAUL BREUER, JAN PAVEL BREUER,
          JAN PAVEL BREYER, HANS BREYER

                         Johann Breyer,
                                     Appellant
                           ___________

          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                   (D.C. Civ No. 92-cv-02319)
                           ___________

                             Argued
                       September 13, 1994
                Before: SLOVITER, Chief Judge,
             MANSMANN and ALARCON,* Circuit Judges.
                    (Filed November 14, 1994)
                           ___________

Joseph V. Restifo, Esquire (Argued)
Suite 2525
12 South 12th Street
PSFS Building
Philadelphia, PA 19107

          Counsel for Appellant

Eli M. Rosenbaum, Acting Director
Ronnie L. Edelman, Deputy Director
Denise Noonan Slavin, Sr. Trial Attorney
Michael D. Bergman, Trial Attorney (Argued)
Joseph J. Malcolm, Trial Attorney
Office of Special Investigations
Criminal Division
U.S. Department of Justice
1001 G Street, N.W., Suite 1000
Washington, DC 20530
            Counsel for Appellee

*         Honorable Arthur L. Alarcon of the United States Court
of Appeals for the Ninth Circuit, sitting by designation.
                           ___________

                        OPINION OF THE COURT
                             __________


MANSMANN,   Circuit Judge.
            The United States commenced an action under the

Immigration and Nationality Act of 1952, as amended, U.S.C. §§

1101 et seq., against Johann Breyer, seeking his denaturalization

based on his service as an armed guard in Nazi concentration

camps during World War II.   Breyer's naturalization was premised

on his 1952 entry into the United States as a displaced person

under the Displaced Persons Act of 1948, Pub. L. No. 80-774, 62

Stat. 1009, amended by Pub. L. No. 81-555, 64 Stat. 219 (1950).

Although Breyer essentially conceded that he was ineligible for

displaced persons status as a result of his wartime activities,

he challenged the government's right to denaturalize him,

asserting that in retrospect, he should be deemed to have entered
this country in 1952 lawfully as a United States citizen, having

derived citizenship through his mother.   The district court

granted summary judgment in the government's favor, which served

to denaturalize Breyer.    Nonetheless, the court determined that

the derivative citizenship statute in effect at the time of

Breyer's birth, which awarded citizenship only to persons born to

United States citizen fathers, was unconstitutional, but

abstained from declaring Breyer a United States citizen because

of a pending administrative proceeding he had initiated for this
purpose.   The issues we address are whether Breyer was properly

denaturalized and whether the district court should have reached

Breyer's derivative citizenship claim.



                                  I.

             The material facts surrounding Breyer's entry into the

United States and subsequent naturalization are not in dispute.

Breyer was born on May 30, 1925, in Neuwalddorf, now known as

Nova Lesna in the Republic of Slovakia.     As a young man, he

joined the Waffen SS, a Nazi paramilitary group, and ultimately

became a member of the SS Totenkopfsturmbanne (Death's Head)

Battalion.    The SS Totenkopfsturmbanne was responsible for

guarding Nazi concentration camps, where people were forcibly

confined in inhumane conditions, subjected to unspeakable

atrocities and executed because of their race, religion, national

origin or political beliefs.

           Breyer was initially assigned to the Buchenwald

concentration camp where he served in the SS Totenkopf guard unit

from February, 1943 to May, 1944.      At Buchenwald, Breyer was

trained to use a rifle and guard prisoners.     In uniform, Breyer

accompanied prisoners to and from work sites, and stood guard

with a loaded rifle at the perimeter of the camp, under orders to

shoot any prisoner trying to escape who failed to heed a warning

to stop.   In May, 1944, Breyer was transferred to Auschwitz, a

death camp complex established in Nazi-occupied Poland.      Again

uniformed as an SS Totenkopf guard and armed with a rifle, Breyer
patrolled the camp's perimeters and escorted prisoners to and
from work.     In August, 1944, Breyer took a paid leave, never to

return to guard duty.     While Breyer denied that he personally

engaged in any abuse of prisoners, he was aware that prisoners

were tortured and killed at Buchenwald and Auschwitz.

             In May, 1951, Breyer applied to the United States

Displaced Persons Commission to be qualified as a displaced

person under the Displaced Persons Act for purposes of obtaining

a visa to immigrate to the United States.     His application was

initially rejected because he had served in the Waffen SS.

Several months later, the criteria for eligibility under the Act

changed, so that membership in the Waffen SS was no longer a bar

to displaced person status.     In an interview with the Commission,

Breyer disclosed that he was a member of the Waffen SS, but did

not disclose his membership in the SS Totenkopf.    On March 28,

1952, the Commission certified Breyer as a displaced person

eligible for a visa.

          Breyer then applied to immigrate to the United States

as an alien under the Act.    He was granted an immigrant visa and

entered the United States in May, 1952.     Thereafter, Breyer filed

a petition for naturalization and on November 7, 1957, the United

States District Court for the Eastern District of Pennsylvania

granted his petition and issued a certificate of naturalization.

          On April 21, 1992, the government filed a five-count

complaint under section 1451(a) of the Immigration and

Nationality Act to revoke and set aside Breyer's naturalized

United States citizenship on the grounds that it was illegally

procured (Counts I, II, III, IV) or was procured by concealment
or willful misrepresentation (Count V).1   In an amendment to his

answer, Breyer set forth as an "affirmative defense" the

allegation that he was a derivative citizen of the United States.

Breyer asserted that his citizenship was derived from his mother,

who he alleged was born in Philadelphia, Pennsylvania.2
1
.         Section 1451(a) states in pertinent part:

          § 1451. Revocation of naturalization

          (a) Concealment of material evidence; refusal to
          testify

          It shall be the duty of the United States attorneys for
          the respective districts, upon affidavit showing good
          cause therefor, to institute proceedings in any
          district court of the United States . . . for the
          purpose of revoking and setting aside the order
          admitting such person to citizenship and canceling the
          certificate of naturalization on the ground that such
          order and certificate of naturalization were illegally
          procured or were procured by concealment of a material
          fact or by willful misrepresentation . . . .
2
 .        United States citizenship is acquired under the United
States Constitution or by federal statute. Persons born in the
United States are automatically citizens under the Fourteenth
Amendment. Alternatively, a person may have a statutory right to
United States derivative citizenship through certain familial
relationships. The applicable statute has been revised over the
years. When Breyer was born, section 1993 of the Revised Statute
of 1874 granted United States citizenship to foreign-born
offspring of United States citizen fathers, but not of United
States citizen mothers. Section 1993 was amended in 1934 to make
it gender neutral, and thereafter, it was repealed and replaced.
Presently, derivative citizenship is granted to all foreign-born
children of either American citizen parent. 8 U.S.C. § 1401.

          In October, 1994, Congress enacted legislation which
amends 8 U.S.C. § 1401 to eliminate retroactively the gender
distinction in section 1993. Under the amendment, persons born
abroad before noon May 24, 1934 to a United States citizen mother
obtain citizenship. Pub. L. No. 103-416, 108 Stat. 4305 (1994).
The amendment also provides that the retroactive application of
the amendment shall not confer citizenship upon any person who
was ineligible for admission into the United States under the
             On October 30, 1992, pursuant to section 1452(a),

Breyer filed an Application for Certificate of Citizenship with

the Immigration and Naturalization Service, claiming derivative

citizenship through his mother,3 which is pending at the time of

this appeal.

          In December, 1992, the government filed a motion for

summary judgment on Count I (Illegal Procurement of U.S.

Citizenship: Unlawful Admission under the Displaced Persons Act,

Assistance in Persecution) and Count II (Illegal Procurement of

U.S. Citizenship: Unlawful Admission under the Displaced Persons

Act, Membership In Hostile Movement).     Attacking the lawfulness

of Breyer's 1952 entry, the government contended that Breyer was

excluded under the Displaced Persons Act from obtaining a visa

because of his SS Totenkopf guard service at Buchenwald and

Auschwitz.     Since he was ineligible under the Act, the visa with

which he entered this country was invalid.     Without a valid visa,

his entry was unlawful, and his naturalization, in turn, was

illegally procured.

          Breyer's primary response to the government's motion

was his claim of derivative citizenship.     According to Breyer,

(..continued)
Displaced Persons Act or affect the validity of a
denaturalization action against any such person. 

legislation is not before us, we make no comment upon it.
3
 .        The Service is authorized to issue evidence of
derivative citizenship in the form of a Certificate of
Citizenship to persons who claim statutory derivative
citizenship. 8 U.S.C. § 1452(a); 8 C.F.R. § 341.1-.7 (1994).
The statutory procedure that persons with derivative citizenship
claims must follow is discussed on pp. 

.
since he was a United States citizen through his mother at the

time of his 1952 entry, he entered the United States lawfully,

and thus, his naturalization was meaningless and not the means by

which he was entitled to citizenship.

           On March 30, 1993, Breyer filed a motion to stay before

the district court, requesting that the government's

denaturalization action be stayed pending final resolution of his

derivative citizenship claim under consideration before the

Service.   The court denied Breyer's motion on April 20, 1993.

           On July 7, 1993, the district court issued an opinion

and order on the government's summary judgment motion in which it

analyzed the government's request for summary judgment and

Breyer's derivative citizenship defense separately.    United

States v. Breyer, 

(E.D. Pa. 1993).    The district

court found, as the government asserted, that Breyer's

concentration camp guard service was a bar to eligibility under

the Displaced Persons Act, rendering his visa invalid and his

entry unlawful, and concluded that Breyer's naturalization was

illegally procured.

           The district court then turned to the merits of

Breyer's derivative citizenship claim, specifically whether

section 1993 of the Revised Statute of 1874 violated Breyer's

Fifth Amendment equal protection rights since at the time of

Breyer's birth, the statute awarded citizenship to foreign-born

offspring of United States citizen fathers but not of United

States citizen mothers.   The district court found section 1993

unconstitutional as applied to Breyer, but deferred a ruling on
the appropriate remedy pending the outcome of a bench trial on

the disputed issue of Breyer's mother's birthplace.    The district

court's July 7, 1993 order granted the government's motion for

summary judgment on Counts I and II, without prejudice to

Breyer's right to pursue the issue of derivative United States

citizenship as an affirmative defense.    The government

subsequently withdrew the other counts of the complaint.

          After a bench trial to determine Breyer's mother's

birthplace, the district court rendered a second opinion and

order on December 21, 1993.    United States v. Breyer, 841 F.

Supp. 679 (E.D. Pa. 1993).    The district court found that

Breyer's mother was indeed born in the United States, and

concluded that the remedy for the unconstitutionality of section

1993 is to include United States mothers under the statute

retroactively.   Nonetheless, because the district court also

concluded that a party must exhaust administrative remedies

before a federal court could issue a declaration of citizenship,

it "abstained" from resolving the issue of Breyer's derivative

citizenship to enable him to pursue to conclusion the

administrative proceeding he had initiated before the Service.

Accordingly, in its December 21, 1993 order, because the

government had prevailed on summary judgment, the district court

declared that Breyer procured his certificate of naturalization

illegally,4 set aside the order admitting Breyer to United States

4
 .        Even though the government withdrew Counts III, IV and
V of the complaint, the district court also found that Breyer
procured his certificate of naturalization by "willful
concealment and misrepresentation of material facts". In a post-
citizenship, canceled his certificate of naturalization and

demanded its surrender, and declared that Breyer's right to

pursue his derivative citizenship claim through the appropriate

channels was not prejudiced.5

          On December 29, 1993, Breyer filed a motion for relief

from judgment and a motion to alter or amend judgment, which

requested essentially that the district court vacate its prior

orders.6 Breyer's post-trial motions were denied on January 20,
(..continued)
trial motion, Breyer requested that these words be stricken from
the court's December 21, 1993 order. In a January 24, 1994
order, the district court granted Breyer's request, striking the
words from its prior order as "superfluous". On appeal, Breyer
contends that the district court should have stricken the
language as "incorrect". We interpret the district court's use
of the word "superfluous" in this context to mean unnecessary and
invalid, and to provide Breyer essentially with the relief he
sought. Thus, we find that the district court did not err in the
language it used to modify its December 21, 1993 order.
5
 .        Although the court used the term "abstain", its
December 21, 1993 order was conclusive and the case was closed on
December 23, 1993. Therefore, the district court's December 21,
1993 order was final for purposes of appeal under 28 U.S.C. §
1291.
6
 .        As Breyer's December 29, 1993 motions asked the
district court to vacate its prior orders, both will be viewed as
Rule 59(e) motions to alter or amend the judgment, even though
one was styled a Rule 60(b) motion for relief from judgment.
Fed. R. Civ. P. 59, 60; Sonnenblick-Goldman Corp. v. Nowalk, 

, 859 (3d Cir. 1970). A timely appeal from a denial of a
Rule 59 motion "`brings up the underlying judgment for review.'"
Federal Kemper Ins. Co. v. Rauscher, 

, 348 (3d Cir.
1986), quoting Quality Prefabrication, Inc. v. Daniel J. Keating
Co., 

, 78 (3d Cir. 1982). Therefore, our standard of
review for a denial of a Rule 59 motion varies with the
underlying judicial decision. Federal 

.
Here, it is the underlying summary judgment in favor of the
government, upon which the revocation of Breyer's naturalized
citizenship was premised, that we review. Moreover, the issues
Breyer raises on appeal relate to those determined by the
district court's grant of summary judgment.
1994 and January 24, 1994 respectively.7    Breyer's timely appeal

followed.



                                 II.

            In our review of this case, we remain mindful of two

competing concerns.    On the one hand, we acknowledge that "the

right to acquire United States citizenship is a precious one, and

that once citizenship has been acquired, its loss can have severe

and unsettling consequences."    Fedorenko v. United States, 

, 505 (1981).     For this reason, the government "`carries

a heavy burden of proof in a proceeding to divest a naturalized

citizen of his citizenship'", 

v. United

States, 

, 269 (1961), and the evidence for revocation

must be "`clear, unequivocal, and convincing'" and not leave

"`the issue in doubt.'"    

v. United

States, 

, 125 (1943) and Maxwell Land-Grant Case, 

, 381 (1887).     On the other hand, we recognize that there

must be "strict compliance" with all the congressionally imposed

prerequisites to naturalization, and failure to comply with any

of these terms renders the naturalization illegally procured and

subject to revocation under section 1451(a) of the Immigration

and Nationality Act.    

.   Even though

Breyer does not specifically challenge the district court's

conclusion that he was ineligible for a visa and entry into this

7
 .        Breyer's post-trial motions were denied, except that
the district court struck certain language from its December 21,
1993 order. See n. 

.
country under the Displaced Persons Act, the importance of the

fundamental right that is at stake in a denaturalization

proceeding requires our in-depth examination of the record to

make certain that the government met its stringent burden.



                                  A.

          The Immigration and Nationality Act provides, inter

alia, that no person shall be naturalized unless the applicant

has resided continuously within the United States, after having

been lawfully admitted for permanent residence, for at least five

years.   8 U.S.C. § 1427(a)(1).   Lawful admission requires entry

pursuant to a valid immigrant visa.    

;

United States v. Kowalchuk, 

, 492-93 (3d Cir. 1985),

cert. denied, 

(1986).

          The Displaced Persons Act was specially enacted in 1948

to accommodate the large number of refugees wishing to emigrate

to the United States following World War II.    Under the Act,

those eligible as displaced persons were granted entrance visas.

In section 13 of the Act, however, there were notable exclusions

from eligibility for a visa, two of which the government alleged

and the district court found were applicable to Breyer.    Section

13 states in pertinent part:
          No visas shall be issued under the provisions
          of this Act, as amended . . . to any person
          who is or has been a member of or participant
          in any movement which is or has been hostile
          to the United States or the form of
          government of the United States, or to any
          person who advocated or assisted in the
          persecution of any person because of race,
          religion or national origin.
64 Stat. 219, 227.


           Since Breyer entered the country with a visa obtained

under the Displaced Persons Act, the legality of Breyer's

naturalization ultimately turns on his eligibility under that

Act.   Therefore, we begin with the district court's application

of the Act's exclusionary provisions to Breyer.

           In Fedorenko v. United States, the Supreme Court
addressed the meaning of the Act's "assistance in persecution"

exclusion in a denaturalization case of an Nazi concentration

camp guard.8   The Court clarified that this exclusion does not

require willing and personal participation in atrocities, and

drew a continuum of conduct to guide the courts in deciding what

behavior it covers.   

.   According to

the Court, while at one extreme is the individual who cut a

female prisoner's hair before execution and should not be viewed

as having assisted in persecution, at the other extreme is the


8
 .        Fedorenko was decided under section 10 of the Act which
requires a misrepresentation of a material fact before
ineligibility may attach. By contrast, under section 13, a
person may be ineligible simply because he falls within an
excludable category of persons.

          Under the Act in effect when Fedorenko applied for a
visa, section 2 incorporated by reference an "assistance in
persecution" exclusion found in the International Refugee
Organization Constitution. This exclusion denied eligibility to
those who "assisted the enemy in persecuting civil[ians]" or had
"voluntarily assisted the enemy forces . . . in their
operations. . . ." 

, n.4. In 1950,
Congress amended section 13 to create an explicit bar within the
Act itself against those who assisted in persecution. 64 Stat.
219, 227 (June 16, 1950).
armed, uniformed, paid guard who having shot a fleeing prisoner

would fit within the exclusion.    

  In light of this

standard, the Court held that Fedorenko's service as a guard on

the perimeters of the Nazi concentration camp at Treblinka in

Poland -- whether voluntary or involuntary -- constituted

"assistance in persecution" under the Displaced Persons Act.      

          In the wake of Fedorenko, other courts have determined

that concentration camp guard service in circumstances similar to

those presented here qualifies as assistance in persecution

within the meaning of the Act.    United States v. Schmidt, 

, 1259 (7th Cir.), cert. denied, ___ U.S. ___, 

(1991) (member of Death's Head Battalion who served as an

armed, uniformed guard at Sachsenhausen concentration camp

patrolling outside camp gates and escorting prisoners to and from

work sites with orders to shoot assisted in persecution under the

Act); United States v. Kairys, 

, 1377 n.3 (7th

Cir.), cert. denied, 

(1986) (prisoner of war who

was recruited to serve as a camp guard at Treblinka assisted in

persecution); United States v. Demjanjuk, 

, 1382
n.43 (N.D. Ohio 1981), aff'd, 

(6th Cir.), cert.

denied, 

(1982) (same).



                                  B.

            Given Fedorenko's guiding principles and upon our

careful examination of the record, we find that the district

court correctly concluded that Breyer assisted in the persecution
of persons as contemplated by section 13 of the Displaced Persons

Act.   The undisputed facts of record establish that Nazi

concentration camps were places where suffering and harm was

inflicted upon tens of thousands of innocent persons and that

Breyer furthered Nazi military, political and social aims.      The

record is uncontroverted that he was a trained, paid, uniformed

armed Nazi guard who patrolled the perimeters of two such camps

with orders to shoot those who tried to escape.    The prisoners he

guarded and prevented from fleeing were oppressed, brutalized and

killed for no other reason than their race, national origin or

religion.   It is therefore beyond dispute that Breyer assisted in

persecution within the meaning of section 13 and, therefore, was

excluded from the Act's intended scope.

            We next consider whether Breyer's service as a member

of the SS Totenkopf constitutes membership or involvement in a

movement hostile to the United States under section 13 of the

Act, and are firmly persuaded that it does.    Indeed, the

Displaced Persons Commission considered the SS Totenkopf to be

such a movement.    See Interoffice Memorandum U.S. Displaced
Persons Commission Headquarters Frankfurt Instruction Memo No.

242, dated November 12, 1951.    Significantly, at Auschwitz, the

SS Totenkopf committed atrocities against the Polish people who

were United States allies.   Accordingly, we agree with the

district court that Breyer's affiliation with the SS Totenkopf

also excluded him from the benefits of the Act.    See United
States v. Koziy, 

, 1319 (11th Cir.), cert. denied,

(1984) (individual's membership in the Organization
of Ukrainian Nationalists during World War II constituted

membership in an organization hostile to the United States under

section 13 of the Displaced Persons Act inasmuch as the

Commission listed it as such and its members terrorized United

States allies).

            As in Fedorenko, where the Court sustained the

revocation of the defendant's naturalization once it found that

he was ineligible under the Displaced Persons 

, a determination that section 13 of the Act precluded

Breyer from obtaining a visa leads inexorably to the conclusion

that Breyer's naturalization was properly revoked.      See also

; 

, 

.    When Breyer filed his petition for

naturalization, the Immigration and Nationality Act required

lawful admission to the United States, which in turn required a

valid visa.    To gain admittance, Breyer used a visa obtained

under the Displaced Persons Act.   Because of Breyer's wartime

activities, however, the Displaced Persons Act excluded him from

coverage.    As the visa Breyer presented upon entry was invalid,

his admission into this country was unlawful.    Therefore, his

naturalization was illegally procured under section 1451 as a

matter of law, and the district court did not err in granting

summary judgment and in ordering the cancellation of Breyer's

certificate of naturalization and its surrender.



                                III.
          In contesting the district court's decision to grant

summary judgment to the government and thereby denaturalize him,

Breyer did not raise any fact dispute, or for that matter, take

issue with the district court's conclusions of law.   Instead, he

advanced his entitlement to derivative citizenship as a complete

defense to the government's case.   Breyer contended that the

district court erred in not declaring him a United States citizen

through his mother, and asserted that had his citizenship been

declared, the government's case would have necessarily failed for

failure to establish that he entered the United States

unlawfully.   Breyer also asserted that his derivative citizenship

rendered the legality of his naturalization moot.

          Acceptance of Breyer's mootness argument, however,

would relieve him of accountability for the illegality in an

essential element of the process that he chose to pursue for

naturalization.   That Breyer may be a citizen of this country

through some other means does not alter his ineligibility under

the Displaced Persons Act or validate his visa and 1952 entry and

should not nullify the government's right under section 1451(a)

to require the surrender of a certificate of naturalization to

which Breyer is not entitled or negate the practical significance

of our determining whether he may continue to assert the status

of "naturalized United States citizen", a privilege he has

enjoyed for over thirty-five years.

          More importantly, Congress has set forth the method by

which one asserting derivative citizenship may have it declared.

The Immigration and Nationality Act requires that a person with
such a claim initially apply to the Immigration and

Naturalization Service for a Certificate of Citizenship.     8

U.S.C. § 1452(a); 8 C.F.R. § 341.1-.7 (1994).9   If the applicant

is denied a certificate, he or she may then initiate a

declaratory judgment action in federal court under section

1503(a)10 requesting a judicial declaration of citizenship.      As

9
.         Section 1452 provides in pertinent part:

          § 1452. Certificates of citizenship or U.S. non-
          citizen national status; procedure

          (a) A person who claims to have derived
          United States citizenship through the
          naturalization of a parent or through the
          naturalization or citizenship of a husband,
          or who is a citizen of the United States by
          virtue of the provisions of section 1993 of
          the United States Revised Statutes . . . may
          apply to the [Service] for a certificate of
          citizenship. Upon proof to the satisfaction
          of the [Service] that the applicant is a
          citizen, and that the applicant's alleged
          citizenship was derived as claimed, or
          acquired, as the case may be, and upon taking
          and subscribing before a member of the
          Service within the United States to the oath
          of allegiance required by this chapter of an
          applicant for naturalization, such individual
          shall be furnished by the [Service] with a
          certificate of citizenship . . . .
10
    .     Section 1503(a) states in pertinent part:

          § 1503.   Denial of rights and privileges as national

          (a) If any person who is within the United States
          claims a right or privilege as a national of the
          United States and is denied such right or privilege
          by any department or independent agency, or official
          thereof, upon the ground that he is not a national of
          the United States, such person may institute an
          action under the provisions of section 2201 of Title
          28 against the head of such department or independent
          agency of a judgment declaring him to be a national
section 1503(a) expressly requires a "final administrative

denial" before any such action may be instituted, a federal

district court does not have jurisdiction to declare citizenship

absent exhaustion of an applicant's administrative remedies.

Whitehead v. Haig, 

, 119 (3d Cir. 1986).

          Breyer relies upon United States v. Schiffer, 798 F.

Supp. 1128 (E.D. Pa. 1992), aff'd without opinion, 

,

(3d Cir. 1994), to support his assertion that his derivative

citizenship claim was properly before the district court as a

complete defense to the government's case.11   We find, however,

that Schiffer is inapposite.   There the government filed a

section 1451(a) complaint against Nickolas Schiffer in which it

admitted that Schiffer was born in Philadelphia, Pennsylvania.

This admission established that Schiffer was a United States

citizen under the Fourteenth Amendment of the United Sates

Constitution.   Schiffer filed a motion to dismiss the

government's complaint, asserting that whether he had lost his


(..continued)
          of the United States . . . . An action under this
          subsection may be instituted only within five years
          after the final administrative denial of such right or
          privilege and shall be filed in the district court of
          the United States. . . . (emphasis added).
11
 .        In Schiffer, we affirmed the district court by judgment
order. Thus, this case does not have precedential value, except
for the parties involved. Airco Indus. Gases, Inc. v. Teamsters
Health and Welfare Pension Fund, 

, 1030 & n.1 (3d
Cir. 1988); Internal Operating Procedures of the United States
Court of Appeals for the Third Circuit, Chapter 6.A.1.a (a
judgment order is entered "[w]hen the panel unanimously
determines . . . that a written opinion would have no
precedential or institutional value. . . .").
original United States birth citizenship pursuant to a

Certificate of Loss of Nationality that had previously been

issued ex parte by the Department of State was an issue in the

case.    In these circumstances, where Schiffer's constitutional

right to United States citizenship had been admitted by the

government and the complaint sought to revoke a status

safeguarded by the Fourteenth Amendment and outside the reach of

Congress, the district court determined that the issue of

Schiffer's birth citizenship which had already been subject to

attack, should be heard.   

.

Because Breyer, with allegations of statutory derivative

citizenship in a straightforward denaturalization action,

presents a far different case, Schiffer does not apply.

            Alternatively, Breyer argues that had his derivative

citizenship been declared, the government's prima facie section

1451(a) case would have failed because the government could not

sustain its burden of proving that he entered the United States

in alien status.    Section 1451(a), however, does not require such

proof.    Even if it did, in his answer to the government's

complaint, Breyer admitted that he applied for immigration and

alien registration and entered the United States as a permanent

resident and refugee.

            We conclude that the district court exceeded its

jurisdiction in considering the question of Breyer's derivative

citizenship.    The district court had before it a narrow section

1451(a) case in which it was called upon only to decide whether

each step that Breyer took toward naturalization was proper.
Breyer's derivative citizenship claim was separate and distinct

from, and had no bearing on, the government's denaturalization

case.   Significantly, in permitting Breyer to proceed with his

derivative citizenship claim, the district court reached a

constitutional issue that was unnecessary to its holding.     In

doing so, the district court disregarded a fundamental and

longstanding principle of judicial restraint which requires that

courts "avoid reaching constitutional issues in advance of the

necessity of deciding them."   Lyng v. Northwest Indian Cemetery

Protective Ass'n., 

, 445-46 (1988).    Accordingly,

Breyer's derivative citizenship claim should not have been

considered, and those orders of the district court which relate

to this issue will be vacated.



                                 IV.

           Lastly, Breyer raises as error the district court's

denial of his motion to stay the government's denaturalization

action until final resolution of his pending administrative

derivative citizenship proceeding.     The power to stay is

incidental to the power inherent in every court to dispose of

cases so as to promote their fair and efficient adjudication.

.   Absent an abuse of discretion, a

district court's decision in this regard will not be overturned.

A stay is an extraordinary measure and Breyer failed to offer any

compelling reasons for its issuance.     Therefore, we will uphold

the district court's decision denying Breyer a stay as within the

sound exercise of its discretion.
                                V.

          For the foregoing reasons, we will affirm the district

court's grant of summary judgment on Counts I and II of the

complaint in the government's favor, and its orders revoking and

setting aside the order admitting Breyer to citizenship and

canceling and demanding the surrender of Breyer's certificate of

naturalization.   We will vacate those portions of the district

court's orders relating to Breyer's derivative citizenship claim.