Ramirez de Arellano v. Weinberger, 83-1950

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation724 F.2d 143
Docket NumberNo. 83-1950,83-1950
PartiesTemistocles RAMIREZ de ARELLANO, et al., Appellant v. Caspar W. WEINBERGER, Secretary of Defense, et al.
Decision Date23 February 1984

Page 143

724 F.2d 143
233 U.S.App.D.C. 11
Temistocles RAMIREZ de ARELLANO, et al., Appellant
Caspar W. WEINBERGER, Secretary of Defense, et al.
No. 83-1950.
United States Court of Appeals,
District of Columbia Circuit.
Argued Oct. 13, 1983.
Decided Dec. 22, 1983.
Rehearing En Banc Granted Feb. 23, 1984. *

Page 145

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 83-02002).

Mark R. Joelson, Washington, D.C., with whom Donald H. Green, Greer S. Goldman and Lucy F. Reed, Washington, D.C., were on brief, for appellants. Mark N. Bravin and John F. Daly, Washington, D.C., also entered appearances for appellants.

John M. Rogers, Atty., Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., and Michael F. Hertz, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellees. R. Craig Lawrence, Stuart H. Newberger, Asst. U.S. Attys., and Marc Johnston, Atty., Dept. of Justice, Washington, D.C., also entered appearances for appellees.

Before WILKEY and SCALIA, Circuit Judges, and LUMBARD, * Senior Circuit Judge for the United States Court of Appeals for the Second Circuit.

Opinion for the Court filed by Circuit Judge SCALIA.

Dissenting opinion filed by Circuit Judge WILKEY.

SCALIA, Circuit Judge:

This is an appeal by plaintiffs Ramirez, two Puerto Rican corporations, and four Honduran corporations from dismissal of their suit against the Secretary of Defense claiming wrongful occupation of their property in Honduras for use as a training facility for Salvadoran soldiers. The district

Page 146

court granted defendants' motion to dismiss, on the ground that the case presented a nonjusticiable political question. We disagree with that basis of dismissal but affirm because in other respects the plaintiffs have failed to present a claim upon which injunctive or other relief can be granted.

Accepting as true the allegations contained in plaintiffs' pleadings and affidavits, 1 the facts of the case are as follows: One of the plaintiff Honduran corporations owns a large tract of land in the northern portion of Honduras, on which the two other Honduran corporations conduct, respectively, a cattle ranching and shrimp packing business. These three Honduran corporations are owned by the fourth Honduran corporation, which is in turn owned by one of the plaintiff Puerto Rican corporations, which, finally, is owned by the second Puerto Rican corporation (owned by plaintiff Ramirez) and by Ramirez, an American citizen. The plaintiffs' total investment in the property is approximately $13,000,000.

Still accepting the plaintiffs' view of the facts: In late March 1983, the Defense Department decided to establish in Honduras a Regional Military Training Center at which American military specialists would train Salvadoran soldiers. The Defense Department selected the site, which turned out to be the plaintiffs' ranch. While the fact of its private ownership may not have been known initially, after that came to light the Department still refused to change its plans, and proceeded with construction. The base was originally to be located on 1,500-2,000 acres, but it has expanded onto an additional 5,300 acres, so that it occupies about half of the total ranch and about 90% of the year-round grazing land. Permanent facilities include a tent camp, buildings, ammunition storage areas, and a firing range. About one hundred Green Berets and 1,000 other soldiers, including Honduran troops who are participating in the exercises, are now living and training on the land. As a consequence of the construction of the base and the conduct of its activities, prime grazing land and fences have been bulldozed, the flow of water to the meat packing plant has been interrupted, cattle have been shot by stray bullets, the animals in the occupied area have become undernourished, and ranch employees have refused to work in areas where the training is taking place. No eminent domain proceedings, Honduran or American, have been conducted, and no compensation paid plaintiffs, although Honduran proceedings have been discussed with plaintiff Ramirez by Honduran officials. 2

The plaintiffs filed a complaint in the United States District Court for the District of Columbia. They alleged that their property had been seized and damaged without statutory or constitutional authority, that they had been deprived of property without due process of law, and that a tort had been

Page 147

committed against the Honduran corporations giving rise to a claim under the Alien Tort Statute, 28 U.S.C. Sec. 1350 (1976). They requested an injunction, a declaratory judgment and such other relief as the court deems just and proper.

The district court found that these allegations presented a nonjusticiable political question, because, to repeat the most salient concrete points, (1) " 'it is not the function of the Judiciary to entertain private litigation--even by a citizen--which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region,' " Mem.Op. at 9-10, quoting Johnson v. Eisentrager, 339 U.S. 763, 789, 70 S.Ct. 936, 949, 94 L.Ed. 1255 (1950); (2) adjudication of the matter would "necessarily involve sensitive and confidential communications between the highest members of the Executive branch and officials of a foreign power that are not judicially discoverable," Mem.Op. at 6; and (3) judicial intervention would interfere with the conduct of our foreign affairs in Central America, id. at 5-6, 9. We do not agree with this basis of dismissal.

The plaintiffs do not seek adjudication of the propriety of the American military presence in Honduras, but of a narrower issue: whether United States officials have, by their actions, unlawfully deprived them of the use of their land. Unlike the issue to which the Court's statements in Eisentrager were addressed--the constitutionality of the presence of United States armed forces in China--this is the kind of question that is highly appropriate for judicial resolution. Adjudication of land disputes is perhaps the primeval function of common-law courts, and from the earliest times federal courts in this country have not shrunk from the task, even where ownership of a fort occupied by the United States was at issue. See Meigs v. M'Clung's Lessee, 13 U.S. (9 Cranch) 11, 3 L.Ed. 639 (1815); see also Grisar v. McDowell, 73 U.S. (6 Wall.) 363, 18 L.Ed. 863 (1868). To be sure, because this case involves land in Central America, and because United States military activities in that region are currently the subject of national interest and debate, the issue is presented in a more politically charged context. That may make it, in a sense, a political case--but as the Court noted in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), "[t]he doctrine ... is one of 'political questions,' not one of 'political cases.' "

As to the problem of "sensitive and confidential communications between the highest members of the Executive branch and officials of a foreign power": On the basis of a bare complaint, a motion to dismiss and related affidavits, we cannot say that resolution of this question will require discovery of such materials. The existence of the base is no secret, and we see no reason why communications that sustain the Department's defense of Honduran approval and control would necessarily be sensitive. If and when Executive privilege is asserted and it develops that essential evidence is therefore undiscoverable, there will be time enough to dismiss. See Halkin v. Helms, 690 F.2d 977 (D.C.Cir.1982); Halkin v. Helms, 598 F.2d 1 (D.C.Cir.1978) (prior disposition of connected case).

The district court's concern about interfering with our foreign policy of providing assistance to threatened governments of Central America is a valid one. Such damage would arise, however, not from our mere resolution of the issue whether United States forces are in possession of the plaintiffs' land, but from injunctive relief, should we choose to provide it, which would bring the present operation to a halt. It is relevant, as we shall discuss below, to the nature of the remedy which plaintiffs can obtain--but not to the "political" character of the question we have been asked to resolve.


A federal appellate court may affirm the judgment appealed from on grounds different from those offered by the rendering court. Langnes v. Green, 282

Page 148

U.S. 531, 538-39, 51 S.Ct. 243, 246, 75 L.Ed. 520 (1931). Although we find dismissal was not warranted on the ground that this case presents a political question, we nonetheless affirm the district court's order because for other reasons the plaintiffs have failed to state a claim upon which relief can be granted.

The first remedy plaintiffs have requested is an injunction. General principles of equity, preserved in actions under the Administrative Procedure Act, see 5 U.S.C. Sec. 702 (1982), would preclude the grant of injunctive relief here. The issuance of an injunction is discretionary, and where that remedy will intrude into the conduct of foreign affairs it should be granted only on an extraordinarily strong showing. Cf. Adams v. Vance, 570 F.2d 950 (D.C.Cir.1977). It can hardly be thought that requiring disbanding of a training camp for troops of a friendly country (El Salvador) that is now engaged in substantial defensive military operations does not intrude on the conduct of foreign affairs. And we cannot even be certain that no more than training is involved. It is not far-fetched to speculate, for example, on what the effect of the injunction here sought would have been if it had issued a few months back, and if this base were then being used as a staging area for our recent military operations in Grenada. Nor can we expect or require the Executive to take us...

To continue reading

Request your trial
5 cases
  • Ramirez de Arellano v. Weinberger, 83-1950
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 5, 1984
    ...described at length in my vacated panel opinion and will not trouble to repeat here, I think it is. See Ramirez de Arellano v. Weinberger, 724 F.2d 143, 150-53 (D.C.Cir.1983). As suggested earlier, the question whether a government officer was acting sufficiently within his authorized power......
  • Del-Rio Drilling Programs, Inc. v. U.S., DEL-RIO
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • June 18, 1998
    ...or not they are tortious under general law"). As Judge (now Justice) Scalia explained for the panel in Ramirez de Arellano v. Weinberger, 724 F.2d 143, 151 (D.C.Cir.1983), rev'd, 745 F.2d 1500 (D.C.Cir.1984) (in banc), vacated on other grounds, 471 U.S. 1113, 105 S.Ct. 2353, 86 L.Ed.2d 255 ......
  • Americopters LLC v. The United States, 08-676
    • United States
    • Court of Federal Claims
    • October 28, 2010
    ...authorization if they act within the general scope of their duties." Id; id. at 1362-63 (quoting Ramirez de Arellano v. Weinberger, 724 F.2d 143, 151 (D.C. Cir. 1983) (subsequent history omitted)) ("A Tucker Act remedy lies if a taking occurs while thePage 11government officer 'is acting wi......
  • The Honorable John Tower Chairman, B-215491
    • United States
    • Comptroller General of the United States
    • June 13, 1984
    ...Circuit in a recent decision rejecting a suit by Mr. Ramirez for injunctive and declaratory relied against DOD. See Ramirez v. Weinberger, 724 F.2d 143, 150-54 (D.C. Cir. 1983). Claims (now the Claims Court). See, e.g. Seery v. United States, 127 F.Supp. 601, 603 (Ct. C1. 1955) U.S. may be ......
  • Request a trial to view additional results
1 books & journal articles
  • Justice Antonin Scalia, Constitutional Discourse, and the Legalistic State
    • United States
    • Political Research Quarterly No. 44-4, December 1991
    • December 1, 1991
    ...107 S. Ct. 1918 ( 1987).Radiofone v. Federal Communications Commission, 759 F.2d 936 (D.C. Cir. 1985).Ramirez de Arellano v. Winberger I, 724 F.2d 143 (D.C. Cir. 1983).Ramirez de Arellano v. Weinberger II, 745 F.2d 1500 (D.C. Cir. 1984).Rankin v. McPherson, 107 S. Ct. 2891 Reynolds Metals v......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT