859 F.2d 929 (D.C. Cir. 1988), 87-5053, Committee of U.S. Citizens Living in Nicaragua v. Reagan

Docket Nº:87-5053.
Citation:859 F.2d 929
Party Name:COMMITTEE OF UNITED STATES CITIZENS LIVING IN NICARAGUA, et al., Appellants, v. Ronald Wilson REAGAN, President of the United States, et al.
Case Date:October 14, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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859 F.2d 929 (D.C. Cir. 1988)


al., Appellants,


Ronald Wilson REAGAN, President of the United States, et al.

No. 87-5053.

United States Court of Appeals, District of Columbia Circuit.

October 14, 1988

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[Copyrighted Material Omitted]

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As Amended Dec. 16, 1988.

Argued Nov. 13, 1987.

Jules Lobel, David Cole, Washington, D.C., Michael Ratner, Springfield, Mass., and Jim Klimaski were on the brief for appellants. Lynn I. Miller, Washington, D.C., also entered an appearance for appellants.

Mark B. Stern, Atty., Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees. Robert E. Kopp, Alfred R. Mollin, and Douglas N. Letter, Attys., Dept. of Justice, Washington, D.C., also entered appearances for appellees.

Michael Maggio, Washington, D.C., entered an appearance for amicus curiae. Unitarian Universalist Association, et al.

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Before ROBINSON and MIKVA, Circuit Judges and GORDON, [*] Senior District Judge.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Appellants, comprising organizations and individuals who oppose United States policy in Central America, claim to have suffered physical, economic and other injuries from the war in Nicaragua. These facts form the backdrop to this lawsuit.

The suit finds its genesis, however, in a 1986 decision by the International Court of Justice (ICJ), which held that America's support of military actions by the so-called "Contras" against the government of Nicaragua violated both customary international law and a treaty between the United States and Nicaragua. The ICJ concluded that the United States "is under a duty immediately to cease and to refrain from all such acts as may constitute breaches of the foregoing legal obligations." 1986 I.C.J. 14, 149. Included among those acts were the "training, arming, equiping, financing and supplying [of] the contra forces." Id. at 146.

Prior to the ICJ's decision, the United States withdrew from the merits phase of the court's proceedings, contending that the court lacked jurisdiction over Nicaragua's application. Since the decision, the President has requested and Congress has approved continued funding for the Contras of the sort that the ICJ found illegal. In addition, the U.S. used its veto power in the United Nations (U.N.) Security Council to block consideration of a resolution enforcing the ICJ decision.

Unhappy with their government's failure to abide by the ICJ decision and believing that continued funding of the Contras injures their own interests, appellants filed suit in the United States District Court for the District of Columbia. The suit sought injunctive and declaratory relief against the funding of the Contras on grounds that such funding violates the Administrative Procedure Act, the first and fifth amendments of the United States Constitution, Article 94 of the U.N. Charter, and customary international law.

In their presentation to this court, appellants make no argument on behalf of their first amendment claim, nor do the facts that they have pleaded suggest first amendment violations. Thus, the only constitutional claim we need consider is the alleged violation of fifth amendment rights. All of the remaining nonconstitutional claims rest upon one central contention: that the United States has contravened the ICJ judgment. Failure to adhere to that judgment allegedly violates three separate legal norms: customary international law, Article 94 of the U.N. Charter (which enjoins obedience to ICJ judgments), and the Administrative Procedure Act (which grants relief to persons "aggrieved" by agency actions that are "not in accordance with law").

The district court dismissed appellants' entire complaint on the ground that it involved nonjusticiable political questions. We believe the trial court's reliance on the political question doctrine was misplaced, particularly to the extent that appellants seek to vindicate personal rights rather than to conform America's foreign policy to international legal norms. Like the trial court, however, we find that the complaint warrants dismissal. Although we conclude that the complaint is justiciable, we believe that it fails to state a claim on which relief can be granted. Pursuant to Fed.R.Civ.P. 12(b)(6), we therefore dismiss the case.


    Several differently situated plaintiffs join forces in bringing this suit. Although they are united in the relief that they request, the interests they seek to vindicate are of three different sorts. To begin with, two of the plaintiff organizations seek to strengthen the influence of--and respect for--the United Nations. They claim that continued United States support for the Contras frustrates that objective by undermining respect for the ICJ, which functions

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    as the judicial arm of the United Nations. A second group of plaintiffs claims a different sort of organizational injury. This group comprises three organizations (one of which is now defunct) that send economic aid and volunteers to Nicaragua in order to improve the standard of living in that country. They allege that funding for the Contras hinders their work because the violent conflict dissuades potential volunteers from going to Nicaragua and because projects that plaintiffs have aided in Nicaragua (e.g., health clinics) have been attacked or destroyed by the Contras.

    Plaintiffs in the remaining category allege that American support for the Contras threatens their safety and property, directly infringing their personal rights under international law and the fifth amendment. These plaintiffs include five named individuals living in Nicaragua. One of these has been killed--allegedly by the Contras--since this suit was filed; another claims to have been repeatedly "detained, threatened and deprived of her liberty" by Contra forces. Complaint at p 4(d). Yet another allegedly has been "detained several times by the contras." Id. at p 4(g). In addition to the individual plaintiffs, two organizations advance similar claims in their representative capacity. The Committee of United States Citizens Living in Nicaragua represents over 100 Americans living in that country and alleges that its members are placed in danger of physical harm by Contra military activities. Similarly, one of the organizations that supports social welfare projects in Nicaragua alleges that its volunteers are endangered by Contra attacks on those projects.

    These claims of physical harm and the threat of harm from Contra activities rest in part on a generalized fear of the recurring violence in Nicaragua. But appellants also aver that Americans are among the Contras' specific targets. Contra leaders, according to the complaint, have declared that "all ... foreigners, known as internationalists, would be considered enemy targets" and have "described the internationalists as 'part of the enemy.' " Complaint at p 17. The complaint further alleges that, since the Contras announced the targeting of "internationalists," numerous foreigners working in various social projects in Nicaragua have in fact been victims of Contra military operations. In the present posture of the case, we must accept all plausible allegations in the complaint as true.


    1. The Political Question Doctrine

      "No branch of the law of justiciability is in such disarray as the doctrine of the 'political question.' " C. Wright, The Law of Federal Courts 74 (4th ed. 1983). Professor Wright concludes that "there is no workable definition of characteristics that distinguish political questions from justiciable questions, and ... the category of political questions is 'more amenable to description by infinite itemization than by generalization.' " Id. at 75 (footnote omitted). The Supreme Court has voiced a similar sentiment, warning us that "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance." Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962). Given the care with which the political question doctrine should be applied and given the variety of claims encompassed by the present case, we find the trial court's blanket invocation of the political question doctrine to be inappropriate.

      To the extent that political question cases contain factors that make them genuinely nonjusticiable, some of those elements can be found here. For example, judicial refusal to resolve political questions "is founded primarily on the doctrine of separation of powers." C. Wright, supra, at 75. Courts often underscore this factor by pointing to "a textually demonstrable constitutional commitment of the issue to a coordinate branch of government." Baker v. Carr, 369 U.S. at 217, 82 S.Ct. at 710; see also L. Tribe, American Constitutional Law 96 (2d ed. 1988) (distinguishing the textual commitment rationale as the "classical" version of the political question doctrine). As the trial court noted in this case, foreign policy decisions

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      are the subject of just such a textual commitment. "The conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative--'the political'--Departments." Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 310, 62 L.Ed. 726 (1918). Together, those departments possess the sole power to enter into treaties and subsequently to alter them. See Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 458, 31 L.Ed. 386 (1887) ("Congress may modify [treaty] provisions, so far as they bind the United States"). Similarly, only the political...

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