American Jewish Congress v. Vance

• Decision Date: 21 April 1978
• Docket Number: No. 76-1983,76-1983
• Citation: American Jewish Congress v. Vance, 575 F.2d 939, 188 U.S.App.D.C. 58 (D.C. Cir. 1978)
• Parties: AMERICAN JEWISH CONGRESS et al., Appellants, v. Cyrus R. VANCE et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 939

575 F.2d 939

188 U.S.App.D.C. 58

AMERICAN JEWISH CONGRESS et al., Appellants, v. Cyrus R. VANCE et al.

No. 76-1983.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 25, 1977.

Decided April 21, 1978.

Joel H. Levy, Washington, D. C., with whom Dorothy Sellers, Washington, D. C., was on the brief, for appellants.

Catherine A. Ribnick, Atty., Dept. of Justice, of the bar of District of Columbia Court of Appeals, Washington, D. C., pro hac vice, by special leave of court for appellee. Irving Jaffe, Acting Asst. Atty. Gen., Leonard Schaitman, David J. Anderson, John T. Baese, Attys., Dept. of Justice, and Earl J. Silbert, U. S. Atty., Washington, D. C., were on the brief, for appellees.

Before McGOWAN, TAMM and ROBINSON, Circuit Judges.

Opinion filed by TAMM, Circuit Judge.

Opinion filed by McGOWAN, Circuit Judge, concurring separately.

Opinion filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge, dissenting in part.

TAMM, Circuit Judge:

Appellants, the American Jewish Congress and certain individual officials and members thereof, brought suit in the United States District Court for the District of Columbia on their own behalf and as representatives of all other American citizens of the Jewish religion, ancestry, and identity, seeking declaratory, injunctive, and mandamus relief against appellees, certain cabinet officers and subordinate officials of the United States government. The complaint alleges that appellees' cooperation in programs with the government of Saudi Arabia that directly or indirectly discriminate against American Jews violates the first and fifth amendments and article VI of the Constitution. ¹ The district court granted appellees' motion to dismiss, finding that the case presented a non-justiciable political question, ² and thereafter denied appellants' motion to vacate the order. ³ For the reasons stated below, which differ from those of the district court, we affirm the dismissal of the complaint.

I

In early June of 1974, Prince Fahd bin Abd al Aziz, then Second Deputy Prime Minister and Minister of Interior of Saudi Arabia, visited the United States for discussions with President Nixon and Secretary of State Kissinger. On June 8, Prince Fahd and Secretary Kissinger issued a Joint Statement on Saudi Arabian-United States Cooperation (Joint Statement), ⁴ which provides in part, for the establishment of a Joint Commission on Economic Cooperation, headed by United States and Saudi Arabian government officials, "to promote programs of industrialization, trade, manpower training, agriculture, and science and technology" in Saudi Arabia. ⁵ In pursuance of the Joint Statement, further agreements have been reached and programs undertaken which specifically provide for advisors, technicians, and scientists from both the private and the public sectors of the United States to be sent to Saudi Arabia to implement various cooperative projects. ⁶

Although the Saudi government has stated that its boycott of Israel is not based on racial or religious discrimination or discrimination based on national origin and is not intended against the United States, ⁷ it is nevertheless the established policy of Saudi Arabia to exclude those of Jewish religion, ancestry, or identity from its boundaries by denominating them "undesirable persons" and denying them visas. ⁸ Recognizing this practice and similar practices in other nations, President Ford issued a directive in 1975, prohibiting all federal agencies and departments and all federal contractors and subcontractors from cooperating or acquiescing in visa or admission discrimination by any nation when selecting or hiring persons for foreign assignments or contracts. Furthermore, in the event of visa rejection, the State Department is to attempt to gain entry for any individual subjected to such exclusionary policies. ⁹ Regardless of this executive action and Saudi Arabia's statements of lack of discrimination, appellants have alleged that appellees' implementation of the Joint Statement so involves them in Saudi Arabia's exclusionary policies as to constitute illegal conduct in violation of the first and fifth amendments and article VI of the Constitution. ¹⁰

As stated earlier, appellants (hereinafter referred to as plaintiffs) are the American Jewish Congress, a not-for-profit membership corporation of American Jews, and six of its officials and members, each individual plaintiff also being a United States citizen and taxpayer. They allege generally that the promotion of the Joint Statement by appellees (hereinafter referred to as defendants), with full awareness of Saudi Arabian discriminatory practices, has the purpose and effect of discouraging American Jews from participating in the economic opportunities arising therefrom. ¹¹ Specifically, plaintiff Louis Kaplan alleges that the applied to the Midwest Universities Consortium for International Activities for a position as an advisor to a university in Saudi Arabia and that he believes his rejection was based solely on his Jewish religion, ancestry, and identity. ¹² Plaintiff Martin Watkins alleges that he was deterred from applying for a job in Saudi Arabia, advertised by a Maryland corporation, because the completed application would have revealed that he was Jewish and therefore subject to Saudi Arabian exclusionary policies. ¹³

The remedy sought by plaintiffs from the district court includes a declaration that defendants' effectuation of the Joint Statement is unconstitutional and equitable relief against defendants' further implementation of that Statement or "any program or activity involving the Government of Saudi Arabia which directly or indirectly discriminates against American citizens by reason of their Jewish religion, ancestry or identity." ¹⁴ The district court did not reach the merits of the case or the scope of the relief requested. Finding that international agreements such as the Joint Statement are wholly entrusted to the legislative and executive branches of government, it dismissed the complaint on the basis of the non-justiciability of the political question it presented. ¹⁵

The concepts of standing and political question are separate aspects of justiciability, and either the absence of standing or the presence of a political question precludes a federal court, under article III of the Constitution, from hearing or deciding the case presented. Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); accord, Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974). There is at present no fixed rule as to the order of analysis of these elements of justiciability. Id. at 215 n.5, 94 S.Ct. 2925. ¹⁶ However, we believe that when both standing and political question issues are before the court and neither has been resolved definitively in a context readily applicable to the case presented, the court should determine the question of standing first. An analysis of standing requires inquiry only into limitations placed on federal judicial power by article III. The political question issue, on the other hand, requires not only a determination of article III limitations, but also an analysis of the separation of powers doctrine which inevitably carries the inquiry into other articles of the Constitution. See Flast v. Cohen, 392 U.S. at 100-01, 88 S.Ct. 1942; Baker v. Carr, 369 U.S. 186, 210-11, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). ¹⁷ We therefore believe that in this case it is more prudent initially to determine the issue of the standing of those who are seeking to invoke the jurisdiction of the federal court.

II

At the outset, we note that the standing of plaintiff American Jewish Congress in this case depends upon the ability of its individual members to bring suit. Although the complaint states that the American Jewish Congress is a corporation organized "for the purpose of protecting the civil, political, religious and economic rights of American Jews and working to preserve American democratic and constitutional values of freedom, justice and equality for persons of all races and religions," ¹⁸ sheer motivation and commitment to the subject matter of a suit, no matter how strong, cannot substitute for judicially cognizable injury. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. at 226, 94 S.Ct. 2925; Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Because the American Jewish Congress has alleged no injury to itself as an organization, it can establish standing in this suit "only as (the) representative ( ) of those of (its) members who have been injured in fact, and thus could have brought suit in their own right." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 40, 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976) (citing Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)).

The complaint also states that the plaintiffs are suing as representatives of the class of all other American Jews and such other American Jews who are denied economic opportunities in Saudi Arabia solely because they are Jewish. ¹⁹ Again, however, the members of the class purportedly represented by the plaintiffs, even if they have suffered injury in fact, may not seek relief in the federal courts through a class action unless the named plaintiffs can establish their own standing. See O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Likewise, the possibility that other members of the class might have had standing had they brought suit does not thereby confer standing on the named representatives; the actual plaintiffs must show that they have personally suffered an injury redressable by the courts. Warth v. Seldin, 422 U.S. at 502, 95 S.Ct. 2197; see Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. at 38, 40 n.20, 96 S.Ct. 1917.

We now turn to the pivotal issue of the...