Cardenas v. Smith, 82-2504

• Decision Date: 17 April 1984
• Docket Number: No. 82-2504,82-2504
• Citation: 733 F.2d 909,236 U.S.App.D.C. 78
• Parties: Amparo CARDENAS, Appellant v. William French SMITH, Attorney General of the United States.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 909

733 F.2d 909

236 U.S.App.D.C. 78

Amparo CARDENAS, Appellant v. William French SMITH, Attorney General of the United States.

No. 82-2504.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 19, 1983.

Decided April 17, 1984.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-01952).

William A. Cerillo, Washington, D.C., with whom Charles Emmet Lucey, Washington, D.C., was on the brief, for appellant. Charles R. Work, Washington, D.C., also entered an appearance for appellant.

Rebecca L. Ross, Asst. U.S. Atty., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, Royce C. Lamberth, R. Craig Lawrence, Asst. U.S. Attys., and Mary Jo Grotenrath, Atty. Dept. of Justice, Washington, D.C., were on the brief, for appellee.

Before MIKVA and GINSBURG, Circuit Judges, and BAZELON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

The primary issue we address in this appeal is the ability of a nonresident alien to seek redress in American courts for wrongs allegedly committed by the Attorney General of the United States. Prior to discovery, the district court granted summary judgment for the government and dismissed the complaint. Cardenas v. Smith, 555 F.Supp. 539 (D.D.C.1982). Because greater development of the facts is necessary to evaluate certain of appellant's claims, we conclude that the district court's dismissal was premature. Accordingly, we reverse the district court's decision in part and remand for further proceedings.

I. BACKGROUND

In 1973, the United States of America signed the Treaty Between the United States of America and the Swiss Confederation on Mutual Assistance in Criminal Matters (the Treaty). The Treaty creates a structure under which the American and Swiss governments can obtain information and evidence needed for criminal investigations and prosecutions. Treaty Article I. In general:

The Treaty provides for broad assistance between the United States and Switzerland in locating witnesses, production, and authentication of judicial and business records, and service of judicial or administrative documents. Special assistance is required where organized crime is involved. The Treaty is invoked by a United States request for assistance addressed to Switzerland or a Swiss request for assistance addressed to the United States.

Technical Analysis of the Treaty Between the United States and Switzerland on Mutual Assistance in Criminal Matters (reprinted in Message from the President transmitting the Treaty with the Swiss Confederation on Mutual Assistance in Criminal Matters, 94th Cong., 2d Sess. 34 (1976)) (Technical Analysis, all page notations refer to the President's Message). The country from which information or action is requested has the discretion to refuse assistance. Treaty Article 31. See also Treaty Article 8.

The present litigation traces to April 1982 when, pursuant to the Treaty, appropriate authorities within the Justice Department requested assistance from their Swiss counterparts. Shortly after this communication, the Swiss seized at least one bank account in Switzerland in which Amparo Cardenas, the appellant, had an interest. At that time, Amparo Cardenas, a citizen and resident of Colombia, was neither the subject of investigation nor under indictment. Charges, however, were pending against her brother for alleged violations of American narcotics laws. Allegedly, these charges were the catalyst for the American decision to contact the Swiss. We do not know, however, the substance of the communications between the two governments. Appellant Cardenas alleges that the Justice Department directed, ordered, requested, or advised the Swiss to confiscate her assets. The government, in an affidavit filed with its motion for summary judgment, avers that the Department of Justice merely requested "assistance in obtaining certain information relative to one or more bank accounts in the name of [Cardenas' brother]." The government admits that, in addition to seeking information, its request

contained the additional suggestion that any assets located as a result of our request be frozen under Swiss law until such time as a Swiss court could determine whether, in accordance with Swiss law, the assets should be forfeited to the Swiss canton in which they were located. (emphasis added).

Affidavit of Michael E. Abbell. Finally, the government contends that it learned of Amparo Cardenas' existence only when it reviewed the documents furnished by the Swiss and discovered her name on one of the accounts. Id.

When notified that the Swiss had confiscated the account, Cardenas filed the instant action, alleging that the Attorney General violated the Fifth Amendment, the Fourth Amendment, the Administrative Procedure Act (APA), 5 U.S.C. Sec. 706(2)(A) (1982), and the requirements imposed by the Treaty. In each count, Cardenas seeks declaratory and injunctive relief, requests the district court to declare defendant's actions unlawful, and seeks an order directing the "defendant to take all necessary action to revoke his order to the Swiss authorities and to restore to plaintiff her property." Cardenas also seeks compensatory damages for the alleged Fourth Amendment violation. Moreover, we are informed that Cardenas has filed suit in Switzerland challenging the Swiss action and seeking to prevent the forfeiture of her funds to the Swiss government.

The district court, prior to discovery, granted summary judgment for the government and dismissed the complaint. Explaining that it had "no basis for attempting to apply constitutional standards on behalf of a nonresident alien with respect to a res which is not subject to the court's control," the district court dismissed the constitutional claims. In reaching this conclusion, the district court discounted the significance of the dispute over the content of the Justice Department's communication with the Swiss: "Whether defendant inquired of the Swiss about plaintiff directly or about [her brother] is irrelevant to this case." As to the counts under the APA, and apparently as to the count directly under the Treaty, the court concluded that the Treaty precluded judicial review by American courts.

II. DISCUSSION

In reviewing the district court's decision to dismiss Cardenas' complaint, we need address three issues, all of which go to Cardenas' ability to maintain the present action. The first is whether Cardenas, as a nonresident alien, has standing to assert her constitutional claims. Second is whether Cardenas has a cause of action directly under the Treaty. And third is whether the Treaty precludes judicial review of Cardenas' statutory and constitutional claims.

A. Standing of a nonresident alien to assert constitutional claims.

The district court dismissed Cardenas' constitutional claims, reasoning:

This court has no basis for attempting to apply constitutional standards on behalf of a nonresident alien with respect to a res which is not subject to the court's control .... The res at issue here is the Swiss account in Switzerland. The court can take no action that would affect the status of the frozen accounts belonging to the plaintiff and damages are precluded absent compliance with the Federal Tort Claims Act.

Cardenas v. Smith, 555 F.Supp. at 540. At first blush, the district court's analysis could be interpreted as an application of the "local action" doctrine. Under that judge-made doctrine, " 'local actions' must be brought in the district where the res that is the subject matter of the action is located." See C. WRIGHT, FEDERAL COURTS Sec. 42, at 249 (4th ed. 1983). Wright notes that although the local action doctrine is usually discussed as a matter of venue, some courts have treated this concept as running to the court's jurisdiction. In any event, had the district court intended the local action concept to apply, it first would have had to consider whether the action here was local or transitory. Because it did not so consider, we must conclude that this doctrine was not the basis for its decision.

Instead, we read the court's opinion as holding that the plaintiff lacked standing to raise the tendered constitutional claims. This interpretation of the district court's holding is buttressed by the fact that the court observed that it could not redress the alleged injury, an observation that suggests that standing was the focal point of its analysis. Moreover, the district court dismissed the complaint, the proper result if a plaintiff lacks standing.

Before a federal court is empowered to conclude that a party has standing, that party must satisfy the constitutional requirements that devolve from the Article III rule that federal courts decide only "cases or controversies." The essential requirements of constitutional standing are " 'some actual or threatened injury [suffered] as a result of the putatively illegal conduct of the defendant,' and an injury that 'fairly can be traced to the challenged action' and 'is likely to be redressed by a favorable decision.' " Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omitted) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1979)). The injury in fact requirement assures that the plaintiff has a personal stake in the outcome of the controversy. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975).

Ms. Cardenas clearly suffered an injury in fact. Having received no notice, she found herself without access to her property, namely, that money which she allegedly had deposited in her Swiss bank account. It is beyond...