Sanchez-Espinoza v. Reagan

• Citation: 770 F.2d 202
• Decision Date: 13 August 1985
• Docket Number: SANCHEZ-ESPINOZA,No. 83-1997,83-1997
• Parties: Javier, et al., Appellants, v. Ronald Wilson REAGAN, President of the United States, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 202

770 F.2d 202

248 U.S.App.D.C. 146

Javier SANCHEZ-ESPINOZA, et al., Appellants, v. Ronald Wilson REAGAN, President of the United States, et al.

No. 83-1997.

United States Court of Appeals, District of Columbia Circuit.

Argued May 24, 1984.

Decided Aug. 13, 1985.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-03395).

Peter Weiss, New York City, of the Bar of the Supreme Court of New York, pro hac vice by special leave of the Court and Michael D. Ratner, Washington, D.C., with whom William Schaap, Washington, D.C., was on brief, for appellants.

John M. Rogers, Atty. Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Michael F. Hertz, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellees Reagan, et al.

Peter W. Homer, Miami, Fla., with whom Gregory W. Homer, Washington, D.C., was on brief, for appellee Vargas.

David Carliner and Steven M. Schneebaum, Washington, D.C., was on brief for amicus curiae The Intern. Human Rights Law Group, urging reversal.

Daniel J. Popeo and Paul D. Kamenar, Washington, D.C., were on brief for amici curiae Senator Steven Symms, et al., urging affirmance.

Before TAMM, GINSBURG and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

Concurring statement filed by Circuit Judge GINSBURG.

SCALIA, Circuit Judge:

The complaint at issue in this appeal recites various causes of action arising out of appellees' alleged support of forces bearing arms against the government of Nicaragua (so-called "Contra" forces). The United States District Court for the District of Columbia granted a motion to dismiss, primarily on the ground that the case presented a nonjusticiable political question. The issues presented by the appeal include whether the Alien Tort Statute, 28 U.S.C. Sec. 1350 (1982), confers jurisdiction over suits against officers of the United States alleging violation of international law by this country; whether the nonresident alien appellants can maintain an action for damages to vindicate their asserted rights under the fourth and fifth amendments to the United States Constitution or under any of several statutes relating to United States foreign and military affairs; whether those appellants who are members of Congress can obtain judicial relief for the Executive Branch's alleged violation of the constitutional provision reserving to Congress the power to declare war; and whether, in the circumstances of this case discretionary judicial remedies can properly be invoked.

I

The appellants can be divided into three groups: First, twelve citizens of Nicaragua, nine of whom reside there, two of whom reside in Germany, and one in France (the "Nicaraguan appellants"), who sue for redress of tortious injuries to themselves or their families at the hands of the Contras in Nicaragua. Second, twelve members of the United States House of Representatives (the "congressional appellants"), who sue to end appellees' alleged disregard of Congress's right to declare war and of a prohibition against supporting the Contras imposed by Congress through statute. Third, two residents of Dade County, Florida, who sue to enjoin an alleged nuisance created by the maintenance and operation of paramilitary camps at that location.

The appellees can also be divided into three groups: First, nine present or former United States executive officials (the "federal appellees"), most of whom are sued both individually and in their official capacities. ¹ Second, two organizations--Alpha 66, Inc., and Bay of Pigs Veterans Association, Brigade 2506, Inc.--which are alleged to operate paramilitary training camps in the United States. Third, Max Vargas, a Nicaraguan exile and resident of the State of Florida, who is alleged to be leader of the Nicaraguan Democratic Union-Revolutionary Armed Forces of Nicaragua, which operates paramilitary camps in Nicaragua and elsewhere. ²

For purposes of this appeal from a pretrial dismissal, we must accept as true the factual assertions made in the complaint, though of course many of them might be contested at trial. The principal assertions, in addition to those alluded to above, are as follows: That the federal appellees, "acting in concert and conspiracy with the other defendants and others unknown, have authorized, financed, trained, directed and knowingly provided substantial assistance for the performance of activities which terrorize and otherwise injure the civilian population of the Republic of Nicaragua." Amended Complaint p 31. That in November 1981 President Reagan, various members of the National Security Council, and others approved a plan submitted by the CIA for covert activities to destabilize and overthrow the government of Nicaragua. That pursuant to that plan, the United States has provided financial assistance of at least $19 million, training by mobile teams of United States military personnel, and other forms of support to paramilitary groups in their operations against Nicaragua. That the federal appellees "are providing financial, technical, and other support to anti-Nicaraguan terrorist groups operating military training camps in the United States, Honduras, Costa Rica, and Nicaragua." Id. p 54. And that as a result of this assistance the Contras have carried out "scores of attacks upon innocent Nicaraguan civilians" which have "resulted in summary execution, murder, abduction, torture, rape, wounding, and the destruction of private property and public facilities." Id. p 81. The complaint recounts the specific instances of attacks on Nicaraguan towns and villages that caused harm to the Nicaraguan appellants, and alleges that the "raids are continuing on a regular basis." Id. p 117.

The complaint lists six federal causes of action, and one pendent state claim under the law of Florida. ³ The relief sought is compensatory and punitive damages, declaratory relief, mandamus, injunction, attorneys' fees, and any other just and proper relief.

The District Court dismissed all the federal claims on the ground that their resolution would require the court to address a nonjusticiable political question, citing our decision in Eminente v. Johnson, 361 F.2d 73 (D.C.Cir.), cert. denied, 385 U.S. 929, 87 S.Ct. 287, 17 L.Ed.2d 211 (1966). It dismissed the claims of the congressional appellants on the additional ground of "equitable or remedial discretion," citing our decision in Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C.Cir.), cert. denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616 (1981). And it dismissed the remaining state claim for lack of pendent federal jurisdiction. Sanchez-Espinoza v. Reagan, 568 F.Supp. 596 (D.D.C.1983).

Without necessarily disapproving the District Court's conclusion that all aspects of the present case present a nonjusticiable political question, we choose not to resort to that doctrine for most of the claims. Since we find other bases for dismissing the suit--and bases which do not expand our jurisdiction by resolving the assertedly political question on its merits--we prefer to rest our affirmance of the District Court's judgment in most respects on different grounds. See Proctor v. State Farm Mutual Automobile Insurance Co., 675 F.2d 308, 326 (D.C.Cir.), cert. denied, 459 U.S. 839, 103 S.Ct. 86, 74 L.Ed.2d 81 (1982). We proceed to discussion of appellants' seven causes of action in the five separate categories of analysis into which they fall.

II

The Nicaraguan appellants allege three causes of action assertedly coming within the Alien Tort Statute, 28 U.S.C. Sec. 1350 (1982). They state that the acts of the appellees "constitute torts in violation of the law of nations as evinced by [a number of international declarations and agreements]," "constitute violations of the tort law of Nicaragua, several States, and the District of Columbia," and "constitute violations of international law." Amended Complaint paragraphs 128, 130, 140.

The Alien Tort Statute provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." This obscure section of the Judiciary Act of 1789, ch. 20, Sec. 9, 1 Stat. 73, 77 (Judge Friendly has called it "a kind of legal Lohengrin; ... no one seems to know whence it came," ITT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir.1975)) may conceivably have been meant to cover only private, nongovernmental acts that are contrary to treaty or the law of nations--the most prominent examples being piracy and assaults upon ambassadors. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 813-15 (D.C.Cir.1984) (Bork, J., concurring), cert. denied, --- U.S. ----, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985). We are aware of no treaty that purports to make the activities at issue here unlawful when conducted by private individuals. As for the law of nations--so-called "customary international law," arising from "the customs and usages of civilized nations," The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 299, 44 L.Ed. 320 (1900)--we conclude that this also does not reach private, non- state conduct of this sort for the reasons stated by Judge Edwards in Tel-Oren v. Libyan Arab Republic, 726 F.2d at 791-96 (Edwards, J., concurring); see also id. at 807 (Bork, J., concurring). Assuming, however, that the Alien Tort Statute covers state acts as well, then it embraces this suit only insofar as the federal appellees ⁴ are sued in their official, as opposed to their personal, capacities--i.e., to the extent that appellants are seeking to hold them to account for, or to prevent them from implementing in the future, actions of the United States. It would make a mockery of the doctrine of sovereign immunity if federal courts were authorized to sanction or enjoin, by judgments nominally against...