Nora Ali MOBAREZ, et al., Plaintiffs, v. John KERRY, Secretary, United States Department of State, in his official capacity, and Ashton Carter, Secretary, United States Department of Defense, in his official capacity, Defendants.
Civil Action No. 15-cv-516 (KBJ)
United States District Court, District of Columbia.
Signed May 17, 2016
187 F. Supp. 3d 85
KETANJI BROWN JACKSON, United States District Judge
Sam M. Singer, Vesper Mei, U.S. Department of Justice, Washington, DC, for Defendants.
MEMORANDUM OPINION
KETANJI BROWN JACKSON, United States District Judge
Plaintiff Nora Ali Mobarez, a United States citizen, is currently residing in the
Before this Court at present is Defendants Motion to Dismiss the instant complaint. (See Defs. Mot. to Dismiss ( Defs. Mot. ), ECF No. 8.) Defendants contend that Plaintiffs are wrong about the existence of any duty to evacuate them. (See Defs. Reply in Supp. of Defs. Mot. ( Reply ), ECF No. 12, at 6-8.)1 Furthermore, as a threshold matter, Defendants insist that legal claims such as the ones Plaintiffs bring here require the judiciary to second-guess the discretionary foreign-policy decisions of the Executive Branch, and thus, are nonjusticiable under the political-question doctrine. (See Defs. Mem. in Supp. of Defs. Mot. ( Defs. Mem. ), ECF No. 8-1, at 12-14.)
On March 31, 2016, this Court issued an order GRANTING Defendants Motion to Dismiss Plaintiffs complaint. (See Order, ECF No. 13.) The instant Memorandum Opinion explains the Court s reasons for that order. In short, the Court agrees with Defendants justiciability argument, and has therefore concluded that it lacks jurisdiction to entertain Plaintiffs complaint.
I. BACKGROUND
A. Factual Allegations
Plaintiffs make several alarming allegations regarding the state of civil unrest in Yemen and Defendants alleged failure to provide for the evacuation of American citizens and residents. For example, according to the complaint, an ongoing conflict in Yemen has led to widespread chaos and danger for the inhabitants of that country (Compl. ¶¶ 29, 39-51), and United States citizens are being subjected to trauma, both physical and mental [, given that] many have witnessed fellow family members or relatives being killed or seriously injured (id. ¶ 64). In addition, Plaintiffs assert that the United States government had notice and/or knowledge of the imminent military action, armed conflict, and civil war in Yemen as of January 2015, and that it has not only evacuated its embassy staff, it also re-
Most importantly for present purposes, Plaintiffs say that the U.S. government has already publicly acknowledged the danger to U.S. citizens in Yemen. On the same day the embassy staff left that country, the Department of State allegedly issued a travel warning on the Department of State website (id. ¶ 37); however, according to Plaintiffs, that same statement also specifically asserted that the United States government has no plans to evacuate United States citizens from Yemen (id.). Indeed, Plaintiffs allege that, notwithstanding the grave danger to American citizens, State and DOD have not provided any evacuation efforts to non-Embassy staff and/or United States Citizens in Yemen. (Id. ¶ 52.) And Plaintiffs maintain that no such efforts are forthcoming; although a Pentagon spokesperson has purportedly remarked that the United States has assets in place to evacuate Americans (id. ¶ 72 (citation omitted)), a State Department spokeswoman has also addressed the matter, and, according to Plaintiffs, has stated unequivocally that there are no plans for U.S. assets to be used for evacuations (id. ¶ 77 (citation omitted)).
B. Procedural History
On April 9, 2015, Plaintiffs filed the instant two-count complaint in this Court. Count One asserts that Defendants violated the APA by fail[ing] to provide through direct military assistance or contracting with commercial entitiеs the necessary equipment, ships, airplanes, and other items that are available to Defendants to [e]nsure the security, safety, and well-being of United States citizens. (Id. ¶ 81.) This failure, Plaintiffs charge, has unlawfully deprived them of a swift, accommodating, and reasonable evacuation from Yemen. (Id. ¶ 82.) Count Two, which essentially duplicates Count One, is entitled Injunctive Relief and states that Defendants must be compelled to evacuate United State[s] Citizens in Yemen. (Id. ¶ 93.)2
On June 15, 2015, Defendants filed their motion to dismiss Plaintiffs complaint. (See generally Defs. Mot.) In the motion, Defendants assert two independent grounds for dismissal: (1) that Plaintiffs
Defendants motion to dismiss became ripe for decision on September 18, 2015, after Defendants filed their reply (see generally Reply); and, as mentioned, this Court granted the motion on March 31, 2016.
II. MOTIONS TO DISMISS UNDER RULE 12
The D.C. Circuit has consistently treated the political-question doctrine as bearing on subject-matter jurisdiction. See Hourani v. Mirtchev, 796 F.3d 1, 8 (D.C. Cir. 2015); Lin v. United States, 561 F.3d 502, 504 (D.C. Cir. 2009). Thus, although Defendants here have invoked Federal Rule of Civil Procedure 12 generally (without specifying a subsection) in support of their motion to dismiss, this Court construes Defendants political-question arguments as procеeding under Rule 12(b)(1).
When a motion to dismiss a complaint under Rule 12(b)(1) is filed, a federal court is required to ensure that it has the statutory or constitutional power to adjudicate [the] case[.] Morrow v. United States, 723 F. Supp. 2d 71, 77 (D.D.C. 2010) (emphasis omitted) (quoting Steel Co. v. Citizens for a Better Env t, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). As always, the burden of showing that subject-matter jurisdiction exists is borne by the plaintiff. See Delta Air Lines, Inc. v. Export-Import Bank of U.S., 85 F. Supp. 3d 250, 259 (D.D.C. 2015) (citing, inter alia, Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). And if subject-matter jurisdiction is lacking, the court must dismiss the complaint in its entirety. Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (citation omitted). Notably, in evaluating whether or not there is subject-matter jurisdiction with respect to a plaintiff s case, the court will treat the complaint s factual allegations as true and afford the plaintiff the benefit of all inferences that can be derived from the facts alleged. Delta Air Lines, 85 F. Supp. 3d at 259 (internal quotation marks and citation omitted). However, those factual allegations receive closer scrutiny than they would in the Rule 12(b)(6) context. Id. (internal quotation marks and citations omitted). Moreover, when necessary, a court resolving a Rule 12(b)(1) motion may consider materiаls outside the pleadings[.] Id. (internal quotation marks and citations omitted).
Because Defendants here have also asserted that the complaint should be dismissed on the grounds that Plaintiffs fail to state a claim under the APA, the pending motion to dismiss also implicates Rule 12(b)(6). See
III. ANALYSIS
Plaintiffs have asked this Court, in no uncertain terms, to issue an order that compels the Executive Branch to conduct an evacuation of American citizens in Yemen. Not surprisingly, Defendants insist that any such order would impermissibly encroach upon the discretion that the Constitution affords to the political branches to conduct foreign affairs; therefore, prior to considering Defendants contention that Plaintiffs complaint fails to state a claim under the APA, this Court must first determine whether or not it has the authority to traverse the thicket of thorny foreign-policy issues that encompasses Plaintiffs allegations. Precedent in this area makes it crystal clear that federal courts cannot answer political questions that are presented to them in the guise of legal issues, see infra Part III.A., but identifying which claims qualify as nonjusticiable political questions—and which do not—can sometimes be a substantially less lucid endeavor. Not so here: as explained below, after considering the parties arguments and the applicable law regarding the boundaries of the political-question doctrine, this Court is confident that Plaintiffs claims fit well within the scope of the nonjusticiability principles that the Supreme Court and D.C. Circuit have long articulated. Accordingly, in its Order of March 31, 2016, the Court granted Defendants motion and dismissed Plaintiffs case.
A. The Political-Question Doctrine
The political-question doctrine is, in essence, a function of the separation of powers, insofar as it recognizes that some [q]uestions, in their nature political, are beyond the power of the courts to resolve[.] El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 840 (D.C. Cir. 2010) (en banc) (first alteration in original) (internal quotation marks and citations omitted). The Supreme Court has said that the doctrine aims to restrain the Judiciary from inappropriate interference in the business of the other branches of Government[.] United States v. Munoz-Flores, 495 U.S. 385, 394, 110 S.Ct. 1964, 109 L.Ed.2d 384 (1990). As such, it excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch[.] El-Shifa, 607 F.3d at 840 (internal quotation marks and citations omitted).
That said, it is important to note that the political-question doctrine is a narrow exception to the rule that the Judiciary has a responsibility to decide cases properly before it, Zivotofsky v. Clinton, 566 U.S. 189, 132 S.Ct. 1421, 1427, 182 L.Ed.2d 423 (2012) (citations omitted); moreover, the doctrine is also notorious for its imprecision, Harbury v. Hayden, 522 F.3d 413, 418 (D.C. Cir. 2008). This means that courts have often struggled to ascertain whether, and under what circum-
Fortunately, some guideposts do exist. The D.C. Circuit has announced that a court identifies a nonjusticiable political question by [c]onducting [a] discriminating analysis of the particular question posed by the claims the plaintiffs press[.] El-Shifa, 607 F.3d at 844 (internal quotation marks and citation omitted); see also id. at 842 ( [T]he presence of a political question in these cases turns not on the nature of the government conduct under review but more precisely on the question the plaintiff raises about the challenged action. (citation omitted)). This probing analysis of a plaintiff s claims historically has centered on ascertaining whether any one of the several factors that the Supreme Court first laid out in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), are present. See El-Shifa, 607 F.3d at 841. Under settled Supreme Court precedent,
a claim presents a political question if it involves: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Id. (internal quotation marks omitted) (quoting Baker, 369 U.S. at 217); see also Simon v. Republic of Hungary, 812 F.3d 127, 149-50 (D.C. Cir. 2016). Notably, these factors are disjunctive, and when any one of them is [p]rominent on the surface of a case, the case involves a nonjusticiable political question and the court cannot proceed. Baker, 369 U.S. at 217.
Given these touchstones, it is easy to see why [d]isputes involving foreign relations often raise nonjusticiable political questions. El-Shifa, 607 F.3d at 841 (noting that claims regarding foreign-policy matters raise issues that frequently turn on standards that defy judicial application or involve the exercise of a discretion demonstrably committed to the executive or legislature (internal quotation marks and citation omitted)). Indeed, the President has plenary and exclusive pоwer in the international arena and acts as the sole organ of the federal government in the field of international relations[,] Schneider v. Kissinger, 412 F.3d 190, 195 (D.C. Cir. 2005) (quoting United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320, 57 S.Ct. 216, 81 L.Ed. 255 (1936)); consequently, courts have found that controversies that are intimately related to foreign policy are rarely proper subjects for judicial intervention, El-Shifa, 607 F.3d at 841 (internal quotation marks and citation omitted).
But there is no per se foreign policy rule—i.e., a claim is not nonjusticiable simply and solely because it implicates foreign relations. Id. (citation omitted). And drawing the line between nonjusticiable and justiciable claims, at least in foreign-relations cases, involves identifying those claims that require the court to opine on the wisdom of discretionary decisions made by the political branches in the realm of foreign policy[,] as distinguished from claims that [p]resent[] purely legal issues such as whether the government had legal authority to act. Id. at 842 (second alteration in original) (internal quotation marks and citation omitted).
In this regard, then, El-Shifa s dichotomy between claims presenting purely legal questions, on the one hand, and claims requiring the reconsideration of discretionary foreign-policy decisions, on the other, helpfully directs a court s attention to its own role in determining the issue presented when deciding a case with foreign-policy implications. When deciding the claim merely requires the court to engage in garden-variety statutory analysis and constitutional reasoning, it has authority to do so (i.e., the claim is justiciable), but a claim that goes beyond those classically judicial functions to request that a court override discretionary foreign-policy decisions that the political branches have made—however framed—falls within the heartland of the political-question doctrine. See Ali Jaber v. United States, 155 F. Supp. 3d 70, 78 (D.D.C. 2016) ( If plaintiffs claims, regardless of how they are styled, call into question the prudence of the political branches in matters of foreign policy or national security, then they must be dismissed. (emphasis in original) (quoting El-Shifa, 607 F.3d at 841)). In other words, the political-question doctrine demands that a court assiduously avoid assessing the merits of the President s [discretionary] decision[s] regarding foreign-policy matters, El-Shifa, 607 F.3d at 844, by declin[ing] to adjudicate claims seeking only a determination[ ] whether the alleged conduct should have occurred[ ] id. at 842 (second alteration in original) (emphasis in original) (quoting Harbury, 522 F.3d at 420).
B. Plaintiffs Claims Require This Court To Determine Whether The Executive Branch Should Have Decided To Conduct Complex Overseas Operations, Which Is A Quintessential Political Question
Plaintiffs APA claims—as elucidated in the complaint—rest fundamentally on the contention that the failure of State and DOD to provide а swift, accommodating, and reasonable evacuation from Yemen (Compl. ¶ 82) constitutes agency action that is arbitrary[,] capricious[,] an abuse of discretion[, or otherwise] not in accordance with law[,] in violation of the APA. (Id. ¶ 81 (citing
First of all, Plaintiffs APA claim involves a textually demonstrable constitutional commitment of the issue to a coordi-
Plaintiffs suggestion that the court-ordered remedy they seek could very well stop short of a direct mandate for military intervention (see Pls. Opp n at 15 (asserting that [t]his Court can order Defendants to [effectuate the evacuation] by simply directing the evacuation to happen and leaving it to Defendants to determine the means )) makes no difference, as far as the political-question doctrine is concerned. Regardless, the clear basis for the complaint s assertion that Plaintiffs are entitled to any relief at all is the contention that the Executive Branch has abused its discretion—in APA terms—in refusing to evacuate U.S. citizens from Yemen thus far (see, e.g., Compl. ¶ 81), and the Court s
The bottom line is this: while the mere fact that a case touches upon foreign relations does not render a claim nonjusticiable, the claims Plaintiffs bring in this case
C. Plaintiffs Argument That Their Claims Are Justiciable Because State And DOD Have A Non-Discretionary Duty To Evacuate Endangered American Citizens Is Unavailing
The foregoing analysis of the facial nonjusticiability of the complaint s arbitrary-and-capricious claims under the po-
The statute that Plaintiffs point to as a basis for their contention that State and DOD have no choice but to evacuate them (see Pls. Opp n at 5) is subtitled [o]verseas evacuations and states:
The Secretary of State shall develop and implement policies and programs to provide for the safe and efficient evacuation of United States Government personnel, dependents, and private United States citizens when their lives are endangered. Such policies shall include measures to identify high risk areas where evacuation may be necessary and, where appropriate, providing staff to United States Government missions abroad to assist in those evacuations.
it is the policy of the United States Government ... to: 1. Protect U.S. citizens and nationals and designated other persons, to include, when necessary and feasible, their evacuation to and welfare in relatively safe areas[;] 2. Reduce to a minimum the number of U.S. citizens and nationals and designated other persons subject to the risk of death and/or seizure as hostages[; and] 3. Reduce to a minimum the number of U.S. citizens and nationals and designated other persons in probable or actual combat areas so
that combat effectiveness of U.S. and allied forces is not impaired.
(Mem. of Agreement, Ex. 3 to Defs. Mot., ECF No. 8-4, at 2.)
Significantly for present purposes, Plaintiffs belated insistence that the Executive Branch has a non-discretionary duty to evacuate American citizens from Yemen by virtue of these legal provisions is an obvious attempt to establish that their APA claim presents a purely legal issue[ ] that a federal court is competent to decide, El-Shifa, 607 F.3d at 842 (internal quotation marks and citation omitted), because showing the existence of such a duty under law would make it plain that evacuation is a discrete agency action that [Defendants are] required to take[,] Anglers Conservation Network v. Pritzker, 809 F.3d 664, 670 (D.C. Cir. 2016) (emphasis in original) (internal quotation marks and citation omitted) (examining
The facts of the Supreme Court s Zivotofsky case illustrate the point. In that case, the Justices considered a federal statute that directеd the Secretary of State to record the place of birth of Americans born in Jerusalem as Israel on their
In the instant cаse, Plaintiffs argue that the statute, executive order, and memorandum of agreement they rely on collectively establish a non-discretionary duty on the part of the Executive to evacuate American citizens abroad when they are at immediate risk of death or seizure as hostages in a combat zone (Pls. Opp n at 8 (citation omitted)), and, similar to the arguments about the significance of the statutory right in Zivotofsky, Plaintiffs here maintain that these evacuation-related provisions render their APA claims judicially enforceable. (See id. at 7 ( Once an evacuation is necessary or appropriate, ... the Secretary of State does not have discretion to not implement [an] evacuation[.] ); see also id. ( [The provisions] contain clear and unambiguous language that the Secretary of State shall provide for the safe and efficient evacuation of U.S. Citizens when their lives are endangered[.] (emphasis in original)).) This line of argument fails for several reasons—only one of which warrants substantial discussion here. That is, even assuming arguendo that the provisions to which Plaintiffs point mandate the implementation of evacuation procedures under the circumstances prescribed,4 it is clear to this Court that none of these provisions solves Plaintiffs political-question problem, because none sets forth the kind of stark, obligatory action—entirely devoid of discretion—that was the subject of the Zivotofsky case, and Plaintiffs breach-of-duty claim goes beyond requesting this Court s resolution of a debate about the meaning or constitutionality of the provisions at issue; rather, Plaintiffs seek judicial review of the agencies con-
To be specific, a careful examination of the provisions that Plaintiffs say create a non-discretionary duty to evacuate U.S. citizens reveals that these provisions are replete with conditional language, such as: evacuation when necessary and feasible (Mem. of Agreement at 2); safe and efficient evacuation when lives are endangered[,]
To understand why this is so, consider the statute s purported pronouncement that the U.S. government should arrange for the evacuation of American citizens from high risk areas where evacuation may be necessary and should provide safe and efficient evacuation of U.S. citizens overseas when their lives are endangered.
It is also quite clear—for many of the same reasons—that there are no judicially discoverable or manageable standards for this Court to apply when considering the extent to which the agencies have breached the duty of evacuation that the statute, executive order, and memorandum purportedly establish. See El-Shifa, 607 F.3d at 841 (stating Baker factor two); see also Nixon v. United States, 506 U.S. 224, 228-29, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (noting the partial conceptual overlap of Baker factors one and two). That is, in order to determine whether State and
In the final analysis, then, this Court concludes that Plaintiffs claims would necessarily require the Court to supplant a foreign policy decision of the political branches with [this Court s] own unmoored determination of whether the situation calls for evacuation in a manner that renders Plaintiffs claims nonjusticiable under the political question doctrine. Zivotofsky, 132 S.Ct. at 1427. This conclusion is strikingly obvious, all things considered, and if any doubts remain, thе D.C. Circuit s consistent construction of
So it is here. Even if the statute, executive order, and memorandum require safe and efficient evacuation when nеcessary or appropriate or when American lives are endangered (Pls. Opp n at 7), the existence of any or all of these factual predicates is a foreign-policy judgment that is constitutionally committed to the political branches, not the judiciary. And with respect to the facts on the ground in Yemen, State and DOD apparently have determined that the evacuation of American citizens is not, in fact, necessary, feasible, or safe. Under the political-question doctrine, this Court lacks the power, and the tools, to say otherwise.
IV. CONCLUSION
As explained above, the strategic choices directing the nation s foreign affairs are constitutionally committed to the political branches[,] and once it becomes clear that a plaintiff wishes the courts to reconsider the wisdom of discretionary foreign policy decisions[,] the judicial inquiry must end. El-Shifa, 607 F.3d at 843-44; see also Zivotofsky, 132 S.Ct. at 1427. For this reason, and as rеflected in its prior Order, the Court cannot consider Plaintiffs claims or order the relief that Plaintiffs seek.
KETANJI BROWN JACKSON
United States District Judge