590 F.Supp.3d 287
D.D.C.2022Background
- In 2014 the U.S. and France executed an executive Agreement creating a $60 million Fund to compensate certain Holocaust-related deportation victims not covered by French programs; the U.S. has "sole discretion" to administer the Fund.
- The Agreement excludes four categories of ineligible claimants and requires claimants to sign a sworn Form providing nationality documentation; the U.S. is to rely on those sworn statements to determine eligibility.
- Faktor filed a claim on behalf of her deceased father's estate, alleging he was "stateless" when he died in France in 1980; she submitted two sworn affidavits attesting to statelessness and that no death certificate existed.
- The State Department rejected her claim for lack of documentary proof of statelessness and a death certificate; Faktor sued under the Administrative Procedure Act (APA) and for declaratory relief, alleging the denial was arbitrary and capricious.
- The Court previously dismissed an FTCA claim, allowed an amended APA complaint, and now grants the government's motion to dismiss the Amended Complaint for lack of a private right of action and because the Agreement precludes judicial review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Political-question / justiciability | Challenge is a domestic, procedural misapplication and not a political question | Review would improperly second-guess executive implementation of an international agreement | Court avoided the political-question test and resolved the case on other grounds (cause-of-action and preclusion) |
| Whether the Agreement creates a private right of action (APA § 702) | Claim arises under the APA for an agency "domestic wrong," not directly suing under the Agreement | The Agreement does not create judicially enforceable private rights; international agreements presumptively do not create private causes of action | Court: Agreement does not create a private right; Faktor cannot state an APA claim based on alleged violation of the Agreement |
| Whether the Agreement’s consultation-only dispute-resolution clause precludes judicial review (APA § 701(a)(1)) | Denial challenges agency processing, not interpretation of the Agreement, so judicial review remains available | The Agreement’s exclusive "consultation" remedy between the U.S. and France forecloses judicial adjudication | Court: The consultation-only clause operates to preclude judicial review under § 701(a)(1) |
| Availability of declaratory relief | Seeks declaratory judgment that denial was arbitrary and payment is owed | Without a cognizable APA claim, there is no independent jurisdictional basis for declaratory relief | Court: Declaratory relief unavailable absent a viable APA claim; claim dismissed |
Key Cases Cited
- Medellín v. Texas, 552 U.S. 491 (2008) (international agreements presumptively do not create private rights enforceable in U.S. courts)
- McKesson Corp. v. Islamic Republic of Iran, 539 F.3d 485 (D.C. Cir. 2008) (foreign agreements enforceable through bilateral state-to-state mechanisms absent private-right text)
- United States v. Moloney (In re Price), 685 F.3d 1 (1st Cir. 2012) (treaties or agreements can preclude judicial review when they provide alternative dispute resolution)
- Owner-Operator Indep. Drivers Ass'n v. Dep't of Transp., 724 F.3d 230 (D.C. Cir. 2013) (executive agreements carry the force of law as exercise of foreign-policy power)
- Block v. Comty. Nutrition Inst., 467 U.S. 340 (1984) (courts determine whether a statute or contract precludes judicial review by reference to text, structure, objectives, and history)
- Harbury v. Hayden, 522 F.3d 413 (D.C. Cir. 2008) (D.C. Circuit prefers resolving whether a cause of action exists rather than invoking the political-question doctrine)
- Baker v. Carr, 369 U.S. 186 (1962) (political-question doctrine framework)
- Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011) (Declaratory Judgment Act does not create an independent basis for federal jurisdiction)