Smith v. Reagan, 87-1661

• Decision Date: 18 May 1988
• Docket Number: No. 87-1661,87-1661
• Citation: 844 F.2d 195
• Parties: Mark A. SMITH, Former United States Prisoner of War; Melvin C. McIntire, Sergeant First Class, United States Army; Anne M. Hart, Wife of service member listed as missing in action; Dorothy M. Shelton, Wife of existing Prisoner of War; Kathryn Fanning, Wife of service member listed as missing in action; Jerry L. Dennis, Brother of service member lost in Southeast Asia, Plaintiffs- Appellees, v. Ronald REAGAN, President of the United States; Caspar Weinberger, United States Secretary of Defense; George Schultz, United States Secretary of State; James A. Williams, General, Director of the United States Defense Intelligence Agency; and each of their respective predecessors and successors, in their official capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 195

844 F.2d 195

56 USLW 2608

Mark A. SMITH, Former United States Prisoner of War; Melvin C. McIntire, Sergeant First Class, United States Army; Anne M. Hart, Wife of service member listed as missing in action Dorothy M. Shelton, Wife of existing Prisoner of War Kathryn Fanning, Wife of service member listed as missing in action; Jerry L. Dennis, Brother of service member lost in Southeast Asia, Plaintiffs- Appellees, v. Ronald REAGAN, President of the United States; Caspar Weinberger, United States Secretary of Defense; George Schultz, United States Secretary of State; James A Williams, General, Director of the United States Defense Intelligence Agency; and each of their respective predecessors and successors, in their official capacity Defendants-Appellants.

No. 87-1661.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 2, 1988.

Decided April 18, 1988.

Rehearing and Rehearing En Banc Denied May 18, 1988.

Mark Bernard Stern, Appellate Staff, Civil Div., Dept. of Justice (Richard K. Willard, Asst. Atty. Gen., Samuel T. Curran, U.S. Atty., Michael Jay Singer, Appellate Staff, Civil Div., Dept. of Justice, on brief), for defendants-appellants.

Mark Louis Waple (Hutchens & Waple, on brief), for plaintiffs-appellees.

Before WILKINSON, Circuit Judge, BUTZNER, Senior Circuit Judge, and ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation.

WILKINSON, Circuit Judge:

This suit was brought under what has come to be known as the Hostage Act, 22 U.S.C. Sec. 1732 (1982). Plaintiffs sought a declaration that American prisoners of the Vietnam War continue to be held in captivity by the governments of Vietnam, Laos, and Cambodia, that those prisoners "enjoy the full protection and benefit" of the Hostage Act, and "that the Defendants shall comply" with the Act's requirements. They also sought a writ of mandamus compelling the President to comply with the Hostage Act.

Defendants moved to dismiss the case for lack of subject matter jurisdiction, contending that the suit raises a nonjusticiable political question. The district court granted the motion with respect to the claim for mandamus, but denied it with respect to the claim for declaratory relief. It then granted defendants' motion for an interlocutory appeal. Because the suit raises a nonjusticiable political question, and because the Hostage Act does not create a private right of action, we reverse and remand with instructions to the district court to dismiss this suit.

I.

In January, 1973, the United States entered into an agreement, generally known as the Paris Accords, on ending the Vietnam War. This agreement provided for the return of service personnel held captive by all parties to the conflict. The Paris Accords also called for the parties to assist each other in obtaining a full accounting of personnel missing in action.

Despite the formal end of the hostilities, however, and despite the signing of the Paris Accords, the families of American service personnel still listed as missing in action after the Vietnam War (MIAs) continue to live with the possibility that these men remain alive and in captivity in a foreign land. The families of some men listed as killed in action have likewise been haunted by reports that loved ones whom they thought dead remain alive and captive.

These families have labored for years to obtain an accounting of missing servicemen and the release of any who may remain captive. The National League of Families has monitored negotiations on this issue between the United States and the governments of southeast Asia. It has endeavored to focus public attention on the problem and, in some cases, has worked with the various governments in attempting to resolve it.

The efforts of the United States government to obtain an accounting began prior to the fall of South Vietnam in 1975 and have continued since then. Those efforts have been extensive. The POW/MIA Interagency Group, whose members include State and Defense Department personnel, staff members of the National Security Council, representatives of the Joint Chiefs of Staff, staff members of the House and Senate Foreign Affairs and Foreign Relations Committees, and members of the National League of Families, coordinates U.S. efforts to secure an accounting of missing personnel and the release of any personnel still in captivity. Congressional delegations and missions from the Departments of Defense and State have met with the Vietnamese on this issue. The United States Defense Intelligence Agency (DIA) evaluates reports of POW/MIA sightings. Congress also oversees attempts to account for U.S. personnel, both through committee hearings and through the efforts of the House Task Force on American Prisoners & Missing in Southeast Asia.

The Hostage Act states, in pertinent part:

Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release ...

22 U.S.C. Sec. 1732.

This suit was brought under the Act by a former Army prisoner of the Vietnam War and an active Army Sergeant, who were joined and ultimately replaced as plaintiffs by relatives of American personnel lost or missing in southeast Asia. It was brought on behalf of a class of "all living American Prisoners of the [Vietnam War] currently being held in captivity by the foreign governments of Vietnam, Cambodia, Laos or other foreign government" against the President, the Secretaries of Defense and State, and the Director of the DIA. Plaintiffs sought a writ of mandamus compelling defendants to comply with the terms of the Hostage Act, and a declaration that the plaintiff class exists and enjoys the protection of the Hostage Act.

Defendants argued that the suit poses a nonjusticiable political question and moved to dismiss for lack of subject matter jurisdiction. The district court granted the motion with respect to the mandamus claim, ruling that the claim "directly involves foreign policy decisions and falls squarely under the category of political questions ... which involve 'potential judicial interference with executive discretion in the foreign affairs field' and which 'seek to dictate foreign policy.' " Smith v. Reagan, 637 F.Supp. 964, 967 (E.D.N.C.1986).

The district court denied appellants' motion to dismiss the declaratory judgment claim. The court held that the question whether the plaintiff class exists, and whether its members are protected by the Constitution and the Hostage Act, did not raise a nonjusticiable political question, but only a question of fact "arising out of rights derived from the United States Constitution and law." Id. at 968. When defendants moved the court to reconsider its judgment, the court affirmed its earlier ruling, but granted defendants' motion to certify the court's order for interlocutory appeal. Smith v. Reagan, 663 F.Supp. 692 (E.D.N.C.1987).

II.

Plaintiffs would have this court declare that they "enjoy the full protection and benefit of [the Hostage Act] and further that the Defendants shall comply with such statutory provisions." They thus ask the courts to determine whether American service personnel remain in captivity in southeast Asia and to assess the adequacy of the executive's efforts to secure the release of any who do. Either course of action is fraught with peril for the judiciary. In order to grant the relief requested, the courts would be asked to intrude in the conduct of sensitive diplomatic negotiations. Furthermore, they would be asked to make determinations of fact in an area where the judiciary lacks power to obtain information, and in which it has neither expertise to evaluate the information brought before it nor standards to guide its review. Finally, as different courts address these issues, the judiciary may speak with multiple voices in an area where it is imperative that the nation speak as one. These difficulties lead us to conclude that this suit presents a nonjusticiable political question.

"In determining whether a question falls within [the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations." Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962) (quoting Coleman v. Miller, 307 U.S. 433, 454-55, 59 S.Ct. 972, 982, 83 L.Ed. 1385 (1939)). The boundaries of the political question doctrine have never been marked with precision, but the Supreme Court's discussion of the doctrine in Baker v. Carr has provided much useful guidance. In Baker, the Court listed several factors, the presence of any one of which may render an issue a nonjusticiable political question. This case presents a textbook example of at least two of those factors, a "textually demonstrable constitutional commitment of the issue to a coordinate political department" and "a lack of judicially discoverable and manageable standards for resolving it." Baker, 369 U.S. at 217, 82 S.Ct. at 710.

A.

Plaintiffs seek in this suit to investigate and evaluate the executive branch's conduct of foreign policy, an area traditionally reserved to the political branches and removed from judicial review. In Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568 (1948), the Supreme Court stat...