*1 nоnproduc- all nonetheless exclude unsup- should case, District Court’s In this under Blum the time and reconsider riskiness tive ported conclusions adjustment upward nature of an prolonged appropriateness of litigation and the upward adjustment fee, costs. litigation justified as well as of the lodestar Supreme under the pass muster do not It so ordered. First, does in it decision Blum. Court’s litigation involved that this appear not issues, although complex novel highly and involved cumbersome litigation was Thus, upward adjust- an issues.
numerous the risk factor based on
ment of award Blum,
would, appear unwarranted. under litigation was
Second, the fact provides no consuming lengthy and time ARELLANO, Temistocles RAMIREZ de adjustment un- upward justification an al., Appellants, et Mr. Blum; hourly awarded rate der rates, rather present on was based Lesar compen- rates, adequately past than WEINBERGER, Secretary Caspar W. litigation. spent on this him for time sates Defense, et al.
Further, delay was not much of No. 83-1950. Similarly, we do fault of Government. pre- Lesar was that whether Mr. think Appeals, Court of as a taking on other cases vented from District of Circuit. Columbia a factor litigation of this can be result Argued April analysis. adjustment See the lodestar NACV, (listing supra, F.2d at 1328-29 Decided 5 October 1984. factors). 5, 1984. As Amended Oct. sum, District on remand Court upward adjustment should reconsider light this court’s deci
of the lodestar Marshall, Copeland v. in NACV and
sions (D.C.Cir.1980)(en banc) and
IV reasons, we foregoing affirm
For-the grant summary judg-
District Court’s adequacy Department
ment search, propriety of its use
exemptions, and absence a consul- arrangement. We vacate
tancy fee of the award of
remand for reconsideration fees, specific
attorneys’ directions appellant sub-
the court whether consider enti-
stantially prevailed and whether he is the court
tled to an award of fees. Should appropriate, award is
conclude costs, regard telephone obvi- sive the District Court calls. District should With however, total, well. ously element as should reconsider reconsider the award of costs in properly any We exclud- particular note that the District Court view deductions from copying excessively lengthy affida- ed costs for nonproductive fee award for time. expended exces- vits deducted amounts *5 Joelson, D.C., Washington,
Mark R. with Anker, Goldman, Jerry whom D. Greer S. Wallace, Jr., Bravin Mark N. and Don D.C., brief, Washington, for were on the F. appellants. Donald H. Green and John D.C., Daly, Washington, ap- also entered pearances appellants. for Justice, Atty., Dept, of Rogers, M. Page John Application Obstacles B. Legal the Act of D.C., whom Richard K. Washington’, State Doctrine...............................................1539 Gen., Willard, E. Atty. Joseph Acting Asst. VII. Conclusion...........................................................1543 Ranter, diGenova, Atty., William WILREY, Judge: Circuit Justice, Asher, Steven Dept, of and Atty., alleged occupation, This case involves State, D.C., Washington, Atty., Dept, of amounting to an effective seizure and de brief, Michael appellees. for on the were struction, pri of a United citizen’s States Johnston, Hertz, Attys., Dept, of Jus- Marc vately owned cattle ranch in Honduras tice, H. Craig Lawrence and Stuart R. government. officials Attys., Washington, Newberger, Asst. U.S. (Ra Temistocles Ramirez de Arellano D.C., appel- appearances also entered mirez), citizen, a United States claims that lees. the Secretaries of State and Defense are operating large military facility train ROBINSON, Judge, and Chief Before ing private Salvadoran soldiers on his WILREY, MIRVA, TAMM, WRIGHT, ED- permission ranch without or lawful authori BORR, GINSBURG, WARDS, SCALIA ty, in violation of the Constitution. Ra STARR, Judges. Circuit and essence, alleges, mirez that a United sponsored and controlled filed Circuit for the court Opinion land, occupying destroying center is his his WILREY. Judge work, exposing family life’s his employees threatening to life conditions. Judge Dissenting opinion filed Circuit complaint filed in the United States TAMM. District for the District of Columbia Judge Dissenting opinion filed Circuit requests declaratory injunctive SCALIA, Judges in which BORR Circuit occupation alleged for the and destruction concur. and STARR private property without constitutional statutory authority deprivation and for a Judge Dissenting opinion filed Circuit enjoyment with use STARR, Judge SCALIA concurs. which Circuit process of law. The out due district OUTLINE complaint prior dis dismissed *6 findings ground covery or of fact on the III. IV. Standing.............................................................1515 VI. II. The V. I Justiciability........................................................ A. B. C. Background......................................................... A. Relief A. B. C. Act The Plaintiffs’ Subsequent Procedural Equitable The Factual Declaratory Relief........................................ Relief Doctrine Plaintiffs’ for State....................................................... a. d. b. Balancing erations Adequacy c. for Separation Compliance Honduran Location Discretion the Due History......................................... Stated Claims..........................................1510 ................................................... Developments...............................1509 Basis This Set of of the equities and Appeal................................1534 law.................................... Claims...............................1521 and Process remedy at law................ powers......................... Applying the Act of Facts............................1506 the District land........................... monitoring.................. Claims.................. prudential consid- Court.......1521 State [15061506] [1508] [1529] [1511] [1528] [1522] within the tiffs’ vanced in an effort the defendants ingenious determine at the complaint was cern. cal complex issues of ed a In so district court’s dismissal of the not now question.1 merits for one of the case is before us on an justiciable claim for relief case. We doing, we We threshold of plaintiffs’ dispute being emphasize, whether the but jurisdiction II.III.IV.V.VI.We precipitous. asked spurious address was a claims find the dismissal of the have conceived reverse. core litigation, to enter however, of the district court. nonjusticiable wipe present constitutional the assortment of arguments parties. out appeal of the we need judgment that we which falls varied and have stat- complaint Because which politi plain- only con- ad- on (D.D.C.1983). 1. 568 F.Supp. manager, and the chief execu- general rule proceed under the settled
We
large agricultural-industri-
propriety of dismissal
tive officer of
assessing the
12(b)
region
complex
of the Federal Rules
al
in the northern
of Hon-
Rule
under
disposi
Many potentially
Procedure.
Plaintiff Ramirez is a businessman
Civil
duras.
by the
intensely disputed
founding
tive facts are
of the
and was a
member
Lion’s
of the Honduran
parties,
Honduras,
such as the role
as well as the
Trujillo,
Club of
mili
the United States
armed forces and
of the Association for the Defense
founder
Military
Regional
tary
operating
in
Juan,
Enterprise System in
of the Free
San
(RMTC),
and the extent
Training Center
in
engaged
Rico. Ramirez has
nu-
Puerto
occupied and used for
land
community
civic and
in
merous
services
neither fact-
Becаuse there has been
base.
America,
and in
includ-
Puerto Rico
Central
stipulation
court nor
finding by the district
ing assisting the United States
parties, we must
undisputed facts
program
for Puerto
a meat distribution
allega
the material
accept as true all of
oper-
Rico. Ramirez conducts his business
plaintiffs’ complaint. Dismiss
tions
through
corporations which he
ations
six
relief is
state a claim for
al for failure to
corporate
and controls. Two of these
owns
only
appears beyond
when “it
doubt
proper
plaintiffs are United States nationals and
prove
plaintiff
can
no set
of facts
incorporated in
To-
four are
Honduras.
entitle
support
of his claim which would
through
gether they form a chain of title
All factual doubts must be
him to relief.”2
plaintiff Ramirez holds his interest
in favor
and all inferences made
resolved
in the land and
at issue.4
alle
plaintiffs.3 Defendants’ factual
acquired
large
Ramirez
his
tract
Plaintiff
agreement
plaintiffs’,
if in
with
gations,
years
in Honduras more than 20
of land
case;
plaintiffs’
if in disa
only reinforce
raw,
ago,
undeveloped jungle.
when was
Thus,
they
ignored.
greement,
must be
he
transformed the land into
Since then
stage
proceedings, the
rele
ranch,
14,000-acre
op
meat-packing
cattle
allegations
plaintiffs’.
are the
vant factual
shrimp-packing plant.
eration and
Accord
filed
ing to Ramirez’s sworn declaration
Background
I.
court,
“supervised
clearing
he
with the
A. The
Set
Facts
Plaintiffs’
land,
grass,
planting
of this
feed
construct
plaintiffs’
facts are detailed
set of
fences, farmroads,
pens,
cattle
cattle
ing
complaint
filed
Ramirez and
the verified
facilities,
treatment
warehouses and nu
corporate plaintiffs,
six
eleven sworn
buildings,
ponds merous other
water
court,
filed
the district
declarations
reservoirs,
housing
employees
for [his]
reports ap-
newspaper
and in numerous
opera
and their families.”5 The business
pended
pleadings
employs approximately 500 workers
tion
must, the
Assuming,
memoranda.
as we
single largest employer in the
and is the
*7
plaintiffs’
allegations,
material
truth of the
Colon,
Department
of
Honduras.
the facts are as follows.
plaintiffs’
initial
total
investment
in the
property
approximately
increased from
the Unit-
has
Plaintiff Ramirez is a citizen of
owner,
$700,000
$13,000,000.6
more than
ed States. He is the sole beneficial
605,
States,
plaint
United
states that Ramirez owns two
2.
v.
Schuler
United
Gibson,
(D.C.Cir.1979)
corporations
(quoting Conley
which in turn own four
States
41,
99, 101-102,
45-46,
corporations.
corporate
Honduran
“The six
L.Ed.2d 80
added).
(1957))
(emphasis
are and at all material
times have
...
by Mr. Ramirez.”
been owned and controlled
5,
Complaint
1251,
A. at 6.
Ass’n, 606 F.2d
Shear v. National
3.
Rifle
States,
(D.C.Cir.1979); Schuler v. United
4,
Declaration ¶
(D.C.Cir.1979).
A. at 22.
5. Ramirez
placeable. Land in other areas of Hondu- arid, History
ras is either too too mountainous or B. Procedural integrated agro-in- too inaccessible for the July plaintiff Ramirez and the enterprise. dustrial other land in corporate plaintiffs wholly six which he ranching Honduras suitable for cattle Caspar owns and controls sued W. Wein- neighboring property, privately which is Defense, berger, Secretary George P. owned.15 Shultz, State, Secretary of and Lt. Gen. 1983, Bratton, plaintiffs allege May Joseph Engineers K. Chief reported Army Corps an an- Washington Engi- Post the United States Depart- neers, nouncement officials of the in the United District pertaining ments of plain- State and Defense to for the District of Columbia. The complaint charges the establishment of the RMTC. One tiffs’ the named officials later, Congress month the National Hon- causing of the United States with the con- operation large military duras entered decree which authorized struction and training camp “the admission of plaintiffs’ private instructors and on the students, coming friendly from alleges countries” Honduras. It Military Training occupation Center.16 Accord- defendants’ and destruction of Ramirez, however, ing plaintiffs’ property “the site for the is unconstitutional 33, 12. Ramirez Declaration 17. Ramirez Supplemental A. at 34. ¶ Declaration A. at U 65. Declaration ¶ Reyes 13. A. at 94-95. 8-10; Complaint 8; A. at Ramirez Declaration ¶ Complaint Sup A. at Ramirez Third ¶ ¶ A. at 25-28. plemental ¶ Declaration A. at 115. ¶ 15. Ramirez Declaration A. at 22-23. ¶ Declaration ¶ 36, 19. Ramirez A. at 36-37. Declaration, 16. Ramirez Supplemental Attach- 1; Appellees, ment # Brief A. Addendum
J5Q9 Republic by any of the of it is not authorized federal President Honduras had because provision of It or the Constitution. “expropriation statute decree” in issued Novem de- charges that the defendants further pertaining plaintiffs’ ber land.23 enjoy- use plaintiffs the and prived The decree identifies certain land in the process without due property ment of their Colon, Department of Honduras on which complaint declaratory seeks The law. Military Regional Training the Center is injunctive relief and such other and located, prop and states that the described just proper.20 as the court deems erty expropriated.” provides “shall be It filed, Shortly complaint was after legal procedures ap that “established shall stipulate materi- parties met in an effort to appraisal ply they When failed to reach an al facts. compensation.” payment The decree agreement, sought permis- plaintiffs signed Secretary State begin discovery sion the district court Security National Defense Public facts. The district court denied their and is dated 4 1983.24 Honduras November request.21 In response to this submission to the de- July On 20 the United States defendants, plaintiffs sub complaint to dismiss fendants moved stating a letter to the court mitted presented a grounds action signing expropriation of such an decree political question and that nonjusticiable merely begins process expropriation had failed to state a claim for plaintiffs and is itself Honduras an act of complaint relief. No answer to the was plain a expropriation or claim of title. The filed, motion to dismiss but defendants’ tiffs directed the court’s attention disput- supported by five declarations was legal opinions they had uncontroverted al ing the factual claims con- court, ready submitted to the district which actually was a tending that the RMTC expro that a advise Presidential decree of government. The project of the Honduran priation only the step in Honduras is first motion to dismiss plaintiffs opposed the may may process in a not result in additional declarations of and submitted August expropriation.25 other exhibits. On 24 fact and dismissed the com- the district court also to the court submitted presented case a plaint, holding that the copy a of a letter dated 18 November 1983 question. dis- nonjusticiable political from Ramirez to the United States Ambas- summary judg- court indicated that trict sador to This letter describes Honduras. time, appropriate at that ment was not alleged, subsequent developments on the material were in because crucial facts ranch which are similar to those outlined in Accordingly the com- dispute. it dismissed complaint. The letter verified reads: 12(b) plaint under Rule of the Federal Mr. Dear Ambassador: appeal of Civil Procedure.22 This Rules urgency informing the utmost I am With ensued. you by hand courier that United States Subsequent Developments C. Tanks Armed Personnel with have invad- court, ed our Plant Premises at Puerto Castilla appeal panel On this before afternoon____ informed the court that the the defendants case.”); putes as to the material facts 20. A. at 5-14. F.Supp. at n. 1. July Transcript 21. of 15 1983 at 36. See Appellees, Brief Addendum C. 23. See Transcript July 11-12 22. of 26 See (The judgment "Summary ais tech- Court said: c-5, c-7, c-8. Id. disputes of law nique to as matter resolve fact, dispute to a material when there is no Appendix Reply Appellants, here, A. See Brief parties quite I think both and it obvious question of fact. We law is agree, note that there arc some essential dis- *10 1510 occupation dictating plaintiffs’ I am and destruction of the
At 15.40 hours CST when deprivation plain- reports property, that there are and the of the this letter we have enjoyment property supporting inside with infan- tiffs’ use and of the four Tanks express implied beyond The came to “are defendants’ trymen. Tank Commander yard authority inside the and de- under the laws and treaties of our Office Gate gates keys to the of all other the United States and manded the to leave and that no He was told Constitution.” areas. given to him. He then keys were to be This count states a claim. It is company proceed to his gave order power settled law that the Executive’s At time go property. thru our and private property take the of United States from our ranch. reports have no
we
Congress
from an
citizens must stem
act of
had
Inasmuch as the U.S. Government
or from the Constitution itself.28 When
go
and foretold not to
been forewarned
there is no authorization
an act of Con
my properties
Diplomatic
and its
and
into
gress or the Constitution for
Executive
Military Representatives had assured no
private property,
to take
an effective tak
my rights
Troops would violate
and
U.S.
ing
the Executive is unlawful because it
property
hereby
you that we
I
advise
usurps Congress’s constitutionally granted
Legally
responsible
all those
hold
powers
lawmaking
appropriation.
Morally Liable.
Youngstown Sheet & Tube Co. v. Saw
Sincerely
yer
leading authority
is a
for the cause of
/s/
plaintiffs’
action stated
first count.
de Arellano26
Temistocles Ramirez
Supreme
adjudicated a
There the
challenge
power
to seize
Executive’s
II. The Plaintiffs’
Claims
privately
during
owned steel mills
the Ko
plaintiffs’
gives
The
set of facts
rise to rean conflict. The Court held that
cognizable
causes of action
the President’s seizure of the steel mills was
plain-
named defendants. Count I of the
unconstitutional because no statute autho
taking
authority
complaint charges
tiffs’
that the defend-
rized the
to take the
powers
Regional
implicit
grant
Mili- mills was not
ants’ establishment
land,
Constitution,
Camp
tary Training
on
ed
Executive
point
distant
in the United
where a seized
Id.
located,
greater
mill was
or at no
distance to the
16,
Complaint ¶
A. at 11.
country,
neighboring
South in a
the location of
enjoined activity
the mark. As the
misses
Youngstown
Sawyer,
Co. v.
28. See
Sheet & Tube
injunction running
Secretary
of Com-
863,
(1952);
U.S.
72 S.Ct.
ble
volve
of the Executive’s
Congress,
for resolution to
Judici-
powers
constitutional
manage foreign
gives
ary, because the Constitution
Con- affairs.
gress
power
the exclusive
to determine
analysis
A
careful
particular
whether
state
case shows that their claims are not exclu
addition,
recognized.35
should
be
certain
sively committed for
polit
resolution to the
disputes
procedures
over internal
in Con-
ical branches. Unlike the claim addressed
gress may
textually
committed for reso-
the Court
Eisentrager,
Johnson v.
I,
Congress by
lution to
article
section
do not
adjudicate
seek to
provides
“[ejach
clause which
House
*12
lawfulness of the United
military
States
may determine the Rules of its Proceed-
Instead,
presence
they
abroad.
adju
seek
ings.”
dication of the narrow issue whether the
affairs,
foreign
In the area of
some
may
United States defendants
military
run
challenges
broad
to the Executive’s con-
throughout
plaintiff’s private
exercises
ducting
foreign
relations have been
pastures when their land has not been law
nonjusticiable
found
because formulation
fully expropriated. They do not challenge
foreign policy constitutionally
is
commit-
military presence
the United States
in Hon
political
ted to the
branches.
In Johnson
America,
duras or in
they
Central
nor do
Eisentrager,
example,
Supreme
v.
for
object
sponsorship
to United States
adjudicate
refused
by
Court
claims
ene-
Regional Military Training
Center Hon
my
violating
aliens who were convicted of
claim,
duras.
properly
Plaintiffs’
under
laws of
Germany
war
China after
had
stood,
narrowly
is
focused on the lawful
surrendered. The aliens’ claims were
ness of the United States defendants’ occu
found to be committed to resolution
pation and
use of the
cattle
political
they
branches because
fundamen-
ranch.
tally challenged
propriety
of United
military
There,
activities in China.
paradigmatic
This is a
issue for resolu
the Court stated:
not
is
the function
“[I]t
Judiciary.
tion
The federal courts
Judiciary
of the
private litiga-
to entertain
historically
disputes
have resolved
over
tion
challenges
legality,
... which
land, even when the
military
wisdom,
propriety
or the
of the Command-
occupying
property
at issue.39 Fur
in sending
er-in-Chief
our armed forces
,
thermore,
disputes
certain
over
any particular
abroad or to
region.”
rights to land located abroad are appropri
ately
courts,40
every
resolved
the federal
foreign
Not
issue related to
rela-
tions, however,
property disputes
are
involving
constitutionally
the Execu
commit-
tive
ted for resolution
Branch and
Executive. Baker
affairs.
Youngstown,
v.
suppose
example,
Carr states that “it is error to
every
adjudicated
controversy
case or
which
the claim that the Presi
beyond judi-
touches
dent
unlawfully
relations lies
had
seized most of the
cognizance.”38
mills,
cial
Issues which
though
are not nation’s steel
even
the case
sweeping challenges
at base
to the Execu-
arose in the context of the
nation’s
foreign policy
tive’s
typically
adjudicat-
involvement in Korea.'41 The
issues
See,
Borden,
(7
e.g.,
How.)
See, e.g.,
Lessee,
35.
Meigs
(9
Luther v.
48 U.S.
McClung’s
39.
v.
1,
(1849).
Cranch)
(1815).
ecutive’s relations limitation;55 subject constitutional no Standing IV. country agreement can con prompting by panel After the vacated upon power Executive Branch fer case, opinion in this the defendants for the by the greater than those bounded Constit pressed argument first time that Ra- recognize that review ution.56 We mirez, citizen, a United States and his two Judiciary always appropriate. may not be wholly corporations owned United States govern But unlike Curtiss- Wright57 sue standing lack for the defendants legislative specific ment has relied on a alleged constitutional violations here. The authority to conduct chal grant theory plaintiff that because Ramirez Moreover, this is not a lenged activities. wholly two his owned United States Airlines, Chicago & Southern like case corporations own and control the land Steamship Corp.58 Inc. Waterman question by legal means title held plaintiffs, were denied re which the who corporations, wholly their owned Honduran order, were least view an Executive the three United States do not through which granted process their some protected constitutionally property have a prior to the Ex could be heard contention interest in the land and for the Indeed, if the dissent’s ecutive decision. purposes claims. asserted judicial adopted by all fo approach were rums, ordinary all process at could then no proposition embodies a most ex- This most offered.59 We must be reluctant thinking. treme form of fanciful It is bi- scrutiny in these cir judicial to withhold posit zarre claimed seizure and cumstances. destruction of investment, businesses, multi-million dollar
Every
having
Executive
act taken
*15
assets,
injury
land is not an
country’s
property,
and
beyond
an
this
borders
effect
property
sug-
a
interest. The
political,
poten-
protected
as
with a
to
may be described
impact
gestion
a
States citizen who is
on our
rela-
that United
tial
aсtual
theory
imper-
(denying
on
S.Ct. at 220.
review alternative
55. Id. at
57
plain-
inquiry into
affairs when
missible
unavoidably predicated
Covert,
upon a
tiff’s claim was
56. Reid v.
(1957).
challenge
manner in
to the intrusive
which the
foreign policy).
its
United States conducted
apparent assumption
Judge
that a rem-
Tamm's
81 L.Ed.
edy
exist in
Claims Court under the
would
may
Dissenting Opin-
Act
be
Tucker
ion of
incorrect.
J.,
course,
Tamm,
Of
at 1550.
1519 Applying approach that consistently re cumstances.”73 to Supreme has Court case, Ramirez, it is clear that corporate formalities the instant to allow mere fused suing party in fact dictate whether the sole individual owner and controller of to personal stake in claim and a property a valid corporations, has has a interest in Bangor In Pun of the case. the outcome corporate pro- assets that is real and Aroos Bangor Inc. v. & Operations, ta purposes for the tected claims al- Railroad, Supreme square Court took leged the instant case.74 that the Court rejected argument ly corporate entity may not “look behind Secondly, in addition to his benefi of the claims and the true substance shareholder, property cial interest as Ra when it evaluates a beneficiaries” actual cognizable possessory has a mirez interest case, In that standing to sue.71 party’s seized, allegedly virtue corporation that a should Court determined possession continuous of his ranch of his separate a distinct and not be treated as twenty years. Supreme than for more standing purposes when entity for 99% Regents Court stated Board v. Roth by a corporation’s stock was owned that the Court “has ... made clear that the the facts of single Because shareholder. protected by procedural property interests shareholder both case showed that the that beyond process due extend well actual own corporation, and controlled owned estate, chattels, money.”75 ership of real the shareholder would be found that applied the Court Fuentes Shevin any recovery by beneficiary of actual principle purchaser and held that a Thus, the Court disre corporation. goods under a conditional household sales ownership in form of corporate garded possessory interest in the contract had a pro the suit could determining whether give to a goods sufficient to rise constitu Similarly, in the recent case of First ceed. process of due tional claim for a violation Para El City v. Banco Bank National attempted repossess when a noteholder Cuba, the Court re de Exterior Comercio Despite purchaser’s lack of le ion.76 to the act of give conclusive status fused to title, purchaser gal the Court held that the determining the status of incorporation cognizable property interest in the had a the Court.72 corporate party before goods. possession use and continued incorporat that “an stated There the Court alleged by Ramirez in his com- The facts regarded entity ... is not be ed possessory analogous plaint give rise to an in all cir- separate from its owners legally 2578, 2584, 703, 713, possessory interest in the ranch as a resident 41 his S.Ct. U.S. 94 71. (1974). (Dissenting Opinion of under Honduran law. L.Ed.2d 1556). J., question the internal Scalia, We L.Ed.2d 46 72. por- consistency with those concession (1983). assert, incorrectly, the dissent which tions of scope define the law must that Honduran omitted). (footnotes at 2601 73. Id. rights constitutional Ramirez’s circum- under what need not consider 74. We knowl- has disclaimed real since the dissent deemed to have should be a shareholder stances explained edge has Honduran law and corporation right sue to the his ceded virtue of local possessory interest un- the "lawful existence of that a to note law. It is sufficient by citing a decision der Honduran law” to have ceded be deemed will not shareholder constitutional that as it Court. Be the United States corporation an alien claims to standing may, that the concession of it seems bringing precluded from be which itself encompass properties all here read to must be Further- shareholders. of its suit on behalf not dispute, especially the dissent has since more, rights in which the not a case anything would indicate cited adversely might affected other shareholders possessory owned interest own Ramirez’s sue, single be- by permitting a shareholder intermediary, corporate as is the rest through a alleged the sole that he is Ramirez cause the ranch. owner. ultimate beneficial L.Ed.2d 556 Judge Scalia's dissent L.Ed.2d 548 agrees standing to vindicate Ramirez has *19 complaint, gested rights Ra- that the constitutional According to the interest. citizen-investors, United States in this case personally controlled and man- mirez has against by unconstitutional seizures property for aged over his Honduran officials, any way States were lessened developed time he years, during which by corporate the mere utilization of such business jungle raw into viable land from Furthermore, the defendants’ vehicles. spent He much of his life operations. contrary policy contention is to the allegedly seized. Prior on the land the United maintains world-wide States alleged invasion of this cattle defendants’ respect to the confiscation abroad of with ranch, posses- Ramirez had full control and directly indirectly by owned assets Unit- pastures and business of the ranch’s sion citizens; the United ed States States insists he claims to have been operations. Now by upon compensation confiscating full portions he once ejected from of the land as a condition of United for- nation States possessory interest possessed. Ramirez’s astonishing assistance.78 It is eign for pur- constitutionally protected for the argue that United States defendants poses of the claims stated here.77 corporate dep- assets is a confiscation of rivation investors For decades United States prop- United States investors’ privilege have utilized the of incor- abroad erty by foreign govern- when executed country put in the in order to poration host unrecognizable it ment but that parity indigenous on a cor- themselves injury to United States shareholders by porations and other investors when it is carried out the United taxation, law, other States itself. regard imagine labor It is hard to a more sug- disingenuous It has matters. hitherto never been contention.79 provisions protecting fully integrated uniquely in our nation’s federal 77. That constitutional property property judicial system usually subject extend to interests not se- and are to review legal by by cured actual title was likewise made Court. But heretofore we never States, Armstrong thought party v. United clear in that a United be States could 4 L.Ed.2d In that banished to the final and unreviewable forum case, plaintiffs adjudication held had a that nation for a conclusive property protected by the fifth amend- party’s rights interest under United law. of that just compensation clause when the value ment’s above, As indicated in the text to allow this they of liens which held on boats and materials argument legal prevail would undermine the destroyed by government. And in Men- was position corpora- of American multi-national Adams, nonite Board Missions v. world, tions around the as well as that of the (1983), the Court government when it comes to mortgagee possesses a held that a “substantial corporate For if the form their defense. mortgaged property interest” adopted negate can an American investor's protected by process the due clause. which is officials, rights against American fortiori adoption corporate might a local form be See, (1982); 2370(e)(1) e.g., 22 U.S.C. § 78. infra interpreted negate rights his under interna- *20 equitable discretion if it ordered abuse its plaintiffs’ ate distortions of the case. declaratory injunctive or re- any form of express weight While we no view on the or Accordingly, argue lief. defendants plaintiffs’ substance of factual case as complaint that dismissal of the should be might developed, we roundly reject upheld ground plaintiffs on the that the the defendants’ efforts to involve this court Ap- failed to state a claim for relief. improper fact-finding of controverted propriate plaintiffs’ remedies for appeal material issues on of a dismissal claims, however, be determined in the must 12(b)(6). under Rule court, on the first instance the district particular findings of of fact as well basis any proved the nature of unlawful con- Equitable A. Discretion the District of equitable duct. The doctrine of discretion Court plaintiffs’ compel not dismissal of the does equitable The doctrine of dis complaint litigation. at the of The outset might permit cretion the district court to
plaintiffs have stated a claim for relief grant
injunctive
some form of
relief for the
to withstand dismissal under
sufficient
equitable
stated claims. A trial court’s
re
12(b)(6),
Rule
and that
is all that is now
powers
great.81
Supreme
medial
required.
has stated that “in shaping equity
Court
decrees,
emphasize again
procedural
the trial court
We
is vested with broad
posture
prevents
rely- discretionary power.”82
duty
of this case
us from
disputed
ing on the defendants’ version of
trial court is to decree relief that corrects
repeatedly
offending
facts. The defendants have
ar-
the condition
the Constitution or
gued
exercising
equita
their version of the facts
their
laws.83 In
its broad
granted
powers,
that relief cannot be
effort to show
ble
a trial court must balance the
They
proved
for the stated claims.
have contend- nature of the
violation
See,
e.g.,
Charlotte-Mecklenburg
States defendants must be tested
Swann v.
Bd.
Educ.,
1, 15,
1267, 1275,
law in a United States court.
States
402 U.S.
rights
are,
course,
All we decide here are the
of a United
(1971).
L.Ed.2d
more
Courts
citizen, Ramirez,
and his 100% owned
equitable powers
reluctant
to utilize their
for
pronounce
corporations. We do not
on the
plaintiffs
yet
interim orders —when the
have not
rights
owning
of a United States citizen
.0001%
proved
they
grant eq-
their claims —than
are to
corporation.
of the shares in Honduran
Most
proved
uitable remedies for the correction of
discussion,
Judge
standing
resting
Scalia’s
Vance,
unlawful conduct.
In Adams v.
analysis
rights,
is
his
shareholders’
thus be-
(D.C.Cir.1978),
example,
the court re-
point.
side the
quired
extraordinarily
to make an
note, however,
analysis
We do
that his
strong showing
justify
highly
in order to
intru-
permit
apparently
the United States Executive
injunction against
preliminary
sive
Execu-
literally
anything
Branch
to do
tive,
yet
when no
had
constitutional violation
and livelihood of a United States citizen over-
proved.
been
seas,
conduct-
if the United States citizen were
ing
operations
in the form of a
his business
Kurtzman,
192, 200,
82. Lemon v.
foreign subsidiary corporation, without
re-
1527
unnecessary
damages
since
relief was
pursuant
to an
taken
action
governmental
through the
remedy
available
Tucker
was
constitutionally valid statute
otherwise
Act;
instead,
held that even if
Court
although within
wrongfully,
acting
officers
available,
remedy were
“seizure and
autho-
such a
authority, could be
scope of their
going
these
operation
governmental
unclear
remedy
law was
at
when
rized
many
to result
in
equity
were bound
businesses
inadequate:
grossly
or
“[A]
damages
such
present and future
nature
caution,
a clear
only upon
acts
difficult,
incapable,
if not
of meas-
necessary
as to be
showing that
its intervention
117
since Lar-
inju-
urement.”
Other decisions
irreparable
prevent an
in order
114
explicitly
implicitly
or
son assume
either
inappli-
that relief
found
ry.”
adequacy
of the Tucker Act reme-
that
showing was not
since
sufficient
cable
issue;
gross
that
inade-
dy is an
made.115
damages
justify in-
quacy
money
could
therefore,
clear,
that when
It
money
relief when
alone would not
junctive
available
monetary
compensation
just compensation.118
constitute
remedy
inade
Act
is so
through the Tucker
times,
From the earliest
courts
justly
plaintiff would not be
quate that the
injury
an
to real
equity
have considered
property
of his
for the seizure
compensated
States,
property to
irremediable at law.119 The
injunctive remedy
be
an
by the United
typically
immunity.116 uniqueness of land
makes dam
sovereign
is not barred
Equity
Tube
ages
inadequate remedy.
will
example, Youngstown
Sheet &
For
accept
enjoin
an unconstitutional
not hesitate
Sawyer,
v.Co.
the Court declined
taking
repeated trespass
and even a
injunctive
contention
government’s
704,
3,
(citations
(emphаsis
337 U.S. at
added).
69 S.Ct.
1468-1469
at 269 n. 3
Id. at 104 n.
52 S.Ct.
114.
Thus,
challenged
omitted).
be
a statute
issued,
unconstitutional,
injunction
and an
Id.
115.
compensation available under the
when the
just
would not rise to the level of
Tucker Act
remedies,
fashioning equitable
the issue
116.
required by
compensation
the fifth amendment.
compensate
damages
adequately
will
whether
of
plaintiffs
excep-
fall within Larson’s
Such a claim would
seizure
unconstitutional
for a claimed
permitting injunctive
if “the exercise
tion
relief
government
property
private
unauthorized
particular
statutory powers]
case
...
[of
equivalent to the fifth amend-
is not
officials
702,
constitutionally
Id. at
69 S.Ct. at
void.”
[is]
lawfully
provision that the
ment's
may expropriate
1467.
just compensa-
for
requirement of
amendment's
tion. The fifth
585,
117.
the United
against him.
cree
grant equitable relief
to
has not hesitated
suffering
injury
regard
both
to the situation of the
similar
Without
individuals
to
subject-matter,
courts consider the
such
due to constitutional
and abroad
at home
equities
parties, and
between the
decree
officials.124
by government
violations
personam____126
The local action rule of common law as
of the Land
a. Location
complaints seeking money
applied to
dam-
plaintiffs’
of the
The location
bearing
ages
trespass
to land has no
prevent
foreign country does not
in a
land
this ease.
granting
from
relief.
court
the district
Second,
specially willing
courts are
to
de
properly
equitable
issue
Courts often
grant equitable
involving property
relief
juris
outside the
involving property
crees
jurisdiction
the court’s
when the
outside
Where,
here,
the court.125
diction of
jurisdiction governs
the court’s
law of
per
controversy has
adjudicating the
controversy instead of the law of the si-
defendants, the
jurisdiction over
sonal
plaintiffs’
tus.127 Here
causes of action
in
property
of the
extraterritorial nature
against the United States officials named
equita
is no bar to
litigation
in the
volved
as defendants arise under United States
circumstances,
such
relief. Under
ble
laws
the United
States Constitution.
such,
equity
provides
not hesitate to order
the rules of
do
As
federal law
courts
If
defendants,
plaintiffs’
decision for
claim. Honduran
present
before
who
dispute,
law becomes relevant to the
it
doing some
court,
refrain from
to do or
operate of its own force in this
cannot
involving foreign property.
thing directly
apply only
controversy but must
to the
Phelps
stated
As the
adopts
federal law
it or deems it
extent the
McDonald:
equi-
deference in
relevant. The occasional
necessary parties are before
Where the
ty to the courts of the situs state
actions
equity, it is immaterial that the
court of
involving trespass brought under the situs
controversy, whether it be real
res
inapposite
law is
here.
state’s
beyond the ter-
property, is
personal
tribunal.
It
jurisdiction of the
Third,
ritorial
courts will not hesitate to
power
compel the defendant to
involving foreign
has the
equitable decrees
issue
according
things necessary,
compelling
no
reason to
do all
land when there is
sitae,
require
sought
relief
in the territo-
he could do
rei
lex loci
116,
Dulles,
long
See,
governmentál fist?” As
as the
e.g.,
U.S.
129-
Kent v.
alleges
complaint plausibly
unconstitutional or
possibility does judgment be court’s should affirmed on the requested authority grant court of state ground the act of doctrine com- Declaratory improper relief is relief.140 plaintiffs’ pels complaint. dismissal of the pre plaintiffs’ if the action is a mere only Although plaintiffs’ chal- complaint jurisdiction to avoid the exclusive text lenges the actions of United States Inc. v. Megapulse, the Claims Court.141 only against relief officials seeks declaratory held Lewis defendants, named United the de- granted in the district court fendants that two resolutions of contend regardless government activities unlawful the Honduran are acts of state might be avail damages whether also which bar relief for constitu- Plaintiffs’ Court.142 able the Claims veracity claims. accepting tional Even jurisdic claim within the complaint states a resolutions, however, they of these do little is neither court that tion district suggest than might more Honduras frivolous. As such the insubstantial nor *31 expropriate the at some jurisdiction of the court must take district pieces paper two do date. These of claim. future deprive plaintiffs opportunity of not the the Due Claims C. the Process prove support to facts in of their stated Relief for claims. Furthermore, it cannot concluded now be in the district
that relief would be barred pre act of state doctrine proved plain- court violation judicial for certain claims that vents rights process of law. tiffs’ to due require pass court to on the the would, remedy of appropriate of an nature foreign validity of acts of a state. The course, practicabilities turn on the of of state traditional formulation the act of reasonable, depending might It case. be Hernandez, inis v. de doctrine Underhill facts, order the to defendants on in 1897: cided intentions, of their as apprise day Every sovereign to re- not to from State bound plaintiffs claim know place spect independence every on other day will take what activities sovereign State, Secondly, the and the courts of one peculiarities land. their court, Martin, September panel Laguna Corp. 143. On 28 of this See Hermosa (9th Cir.1981) (district supplemental by sponte, requested F.2d does declaratory sua briefs jurisdiction simply its because parties applicability lose of act of state doc- judgment become the ba- later to the this case—an issue which trine facts of judgment). monetary sis for a by parties previously or had not been raised the district court. Sugar Bergland, Amalgamated Co. v. See (10th Cir.1981). F.2d 823-24 (D.C.Cir.1982). 142. 672 F.2d 966-69 foreign
country
judgment
will
act and to
judi
not sit
on the
determine whether
required
acts
cial abstention
of another done
in order to avoid
territory.
political
within its own
Redress
interference with
branches’
grievances by
reason
of such acts must
conduct
relations.149 A success
through
open
be obtained
the means
to ful act of state defense must rest on a
powers
be
sovereign
availed of
as
showing that an
factual
act of state has
occurred,
between themselves.144
coupled
legal showing
with a
applicable
to the
no bar
doctrine is
under
In Banco Nacional de Cuba v. Sabbatino
the factual
We
circumstances.
consider
Court reaffirmed the act of
each
turn.
by refusing
probe
state doctrine
validity
act.145 Sabbatino held
A. The Factual
Applying
Basis
legal
that full
given
effect must be
Act
Appeal
State Doctrine on this
expropriation
Cuba’s
sugar
Cuban
com-
panies
owned United States nationals in
We cannot consider the act of state
involving dispute
case
over the confis- doctrine in a factual
procedural vacuum;
sugar
cated
here,
between a Cuban bank and a
always,
applied
must
commodity
Separa-
broker.
procedural
facts in the
posture of the case.
powers
tion of
underpin-
concerns are the
When the defense is
raised
connection
nings of
doctrine;
the act of state
the with a motion to dismiss under Rule
adjudication
defense bars
appears
12(b)(6),
when it
the court must be satisfied that
that relief “would interfere with delicate
there is no set of facts favorable to the
foreign relations
political plaintiffs
conducted
suggested by
complaint
branches.”
which could fail to establish the occurrence
of an act of state. To the extent crucial
Sabbatino,
Since
scope
of the act of
facts pertaining
disput
to the defense are
state doctrine has been
narrowed
stat-
ed,
fully developed
or not
complete
in a
judicial
ute and
fiat. The Second Hicken-
record, the reviewing court must be certain
looper Amendment statutorily reversed the
that it
leap
does not
argua
to conclusions
holding
prohibiting
Sabbatino
ble under the
pleadings
unelaborated
but
application of the act of state defense to
which could-
through
be refuted
the ordi
foreign confiscations in violation of interna-
nary process
discovery
factfinding
tional law.147 In
London,
Alfred Dunhill of
in the district court. To do otherwise is to
Republic
Cuba,148
Inc. v. The
the Su-
deny the claimant an opportunity
prove
preme Court held that
the interventors
his case.
(those
possess
named to
occupy
businesses)
seized
prove
had failed to
Interpreting the resolutions
repay
their refusal to
funds constituted an
*32
light
plaintiffs’
facts,
of the
set of
it cannot
act of state. Four of the
(Burger,
Justices
be
qualification
said without
that the Hon
White,
JJ.)
C.J. and
Powell
Rehnquist,
and
government
duran
has
exercised
act of
opinion
were also of the
that the act of
state which could bar
Certainly,
relief.
the
state
apply
purely
doctrine does not
com-
two Honduran resolutions submitted to this
foreign
mercial acts of a
state.
court do
plaintiffs’
not fell the
prior
claims
The act of state defense re
factfinding by
the district court. The
quires
analyze
the court to
the nature of
first resolution
by
submitted
the defend
plaintiff’s
claims and the facts of the
ants has nothing to
with expropriation
do
250, 252,
83, 84,
144. 168 U.S.
18 S.Ct.
42 L.Ed.
147. 22 U.S.C. §
2370(e)(2) (1982).
(1897).
148. 425 U.S.
96 S.Ct.
1537
recognize
A few decisions
the conversion
ap-
time on
allegations
first
raised for the
appeal,
on
for the first time
but
cases
these
may
peal.160
suggest
While certain cases
usually
trial
affirm the
court’s considera-
appellate
that an
court can consider new
tion of the issue after
trial court admit-
a
for summary
issues on converted motion
tedly
extra-pleading filings
relied on
with-
permitted
judgment,
this has never been
disposition
identifying
out
its
as a summa-
when it
contravene
standards set
ry judgment
12(b).159
grounded in
Rule
12(b).
up
Advisory
in Rule
*35
summary judgment is not au-
judgment, a
In Foun-
one.
high
is a
The standard
disputed
there are no
issues
unless
thorized
previ-
Supreme Court
the
v. Filson164
tain
Supreme
facts.166 The
Court
of material
when it at-
this court
admonished
ously
consistently
reviewing
held
in
entirely
an
resolve
raise and
tempted to
infer-
appeal,
on
all
summary judgments
ap-
summary judgment on
by
issue
new
light
in
most fa-
made
the
ences must be
ruled
the
Although
peal.
opposing party.167
the
vorable to
plead-
record
the
was extant on
issue
reversed, since
ings, the
conception
Here,
of dismissal un-
by its
opposing
for the
opportunity
was no
there
ignored
the dissent has
the
der Rule
applicability of the
the
party to contest
disputed
improperly
facts
existence
upon.
legal
relied
the
issues
facts to
toward the
slanted the factual statements
posture.
same
litigation is in the
This
speculation
Only
favorable to
defendants.
said to be
of state defense—now
The act
the defendants allows the conclusion
under consideration
dispositive
never
—was
troops
participating
Honduran
now
potential applica-
by the court.
Its
below
activity
all,
to
training
the
at
let alone
such
parties.
bility
not even
was
hinted
government
an extent that
Honduran
certainly
pleadings
did
themselves
have
the ranch.
could be said to
seized
state;
specter
the com-
of act
raise
Only
supportive
conjecture
defend-
deprivation
alleges
plaint
destruction
that the ranch
ants allows
conclusion
defendants, not the Hon-
expropriated by
will
has been or ever
be
it
said
government. Thus
cannot be
duran
government. The
the Honduran
dissent’s
recognized that
plaintiff must have
unproved, disputed
of these
is-
resolution
triggered
filed
the court
the motions
before
sues of
flies in the face of the district
fact
act of state defense.
summary judg-
own statement that
court’s
Moreover, the
fact now said to
crucial
inappropriate
there
ment was
because
were
an act
the issue of whether
of state
resolve
disputes as to
material
“essential
facts
expropriatory decree
has occurred—the
Summary judgment
is
case.”168
Honduran
not issued
—was
clearly impermissible
circum-
under these
after the case was submitted to
until
stances.
parties
had
panel
appeal.
on
first
factual affidаvits
opportunity
no
to submit
weight
we take no
While
view on
to
ex-
the extent which
announced
on
plaintiffs’
substance of the
factual case as
completed.
have been
propriation
might
developed,
unique
mode of
judgment
Rushing to
based
an incom-
analysis
to
offered
dissent
dismiss
anticipation
of oth-
plete
compiled
record
complaint
12(b)(6)
under Rule
only deprive
can
er unrelated issues
disturbing.
deeply
nothing
other
It is
opportunity
plaintiff
meaningful
factfinding
than improper
of controverted
12(b)
Rule
neither con-
present its case.
appellate
an
court on
material issues
appellate
sum-
templates nor authorizes
review of a district court’s dismissal for
mary judgment under those circumstanc-
such,
jurisdiction.
lack of
As
it would visit
es.165
great
unfairness on these
de-
proce-
priving them of
substantive and
proper
if
Even
it were
convert
dural
rights
they
are entitled
summary
into one for
district court’s order
164.
167.
Diebold, Inc.,
when action the federal President is derelict in *36 statutory duty courts. his to terminate all assist- government ance to the of Honduras. Con- Application sequently, B. Obstacles the while Legal appel- the United States of of delighted Act Doctrine lees are no Judge the State doubt to record of dissent, are they probably appalled Starr’s haste to the of an their find existence at the doctrine on he pitched which it. barring any judicial act of state further By refusing permit any to further factual claim, appellees review of development plaintiffs’ suit, the dis- dissent Judge Starr his fail to con- sent present ascribes Administration any front several established limitations willingness operations to shield its abroad on the which caution its doctrine by egregious abrogation specifi- of statutes invocation. Not least these restric- cally designed protect United States citi- Hickenlooper tions is so-called First expropriation zens from such pur- as that Amendment, which Unit- sets limitations on here, portedly occurring a situation found ed States assistance to countries by the dissent to “manifestly be and indis- expropriating property of putably present.”170 compensation. citizens without this Under Congress statute has directed recognize We are any govern- loathe to “[t]he suspend shall predisposition President assistance to the mental to such conduct. We country any that, ... prefer which has to believe to the extent the expropriated ownership ... or or government seized past has information on the property by control of owned any United and current plain- state of activities on the citizen,” seizing country ranch, when the government’s tiffs’ analysis own appropriate steps compen- fails to take would indicate that there has not been by sate the citizen within six government, months of seizure the Honduran seizure.169 therefore the Administration is not fla- grant violation of Hickenlooper the First dissenting opinion Judge If the Starr Amendment, analysis where the dissent’s finding correct its factual that Hondu- course, puts them. Of resolution of the ran troops occupied have seized and extent of Honduran involvement can plaintiffs’ ranch, expropriation then an completed be through proceedings further ownership seizure of within the First Hick- before district court. enlooper surely Amendment has occurred. compensatory steps Because no Beyond have since Hickenlooper the First Amend- by ment, been government, taken the Honduran potential several other legal barriers reasoning under the advanced dis- must be resolved before the act state 2370(e)(1) (1982). corporations 22 U.S.C. § 169. See that the Honduran are 100% bene- ficially owned citizens. Starr, J., Dissenting Opinion at 1567. significant expropriatory Neither is it that an respect professed With all to the dissent’s as- may stipu- decree issued. The statute itself tonishment, Judge Starr’s assertion that ”[i]t compensatory payment the time lates limits for seriously argued cannot be that a cut-off of must which be met avoid the mandate to required” financial assistance is the is answered freeze aid. simple, unambiguous, and detailed terms of Finally, objection the dissent answers its own purpose the statute—and the which whole scarcely retaliatory ”[t]his Cuba-like the statute was enacted. seizure American him- assets”: President provision no The dissent adverts to may self waive strict standards inapplicable. would render the consequential nical[ly]” is in- statute It Amendment after a determination and certifica- may "hypertech- that the land be Congress important tion to that waiver is corporate owned the Honduran the national interests of United States. Dis- (not plaintiffs, since the full statute cited in Starr, J., senting Opinion of at & n. 8. We 169) supra prohibits foreign at text note assist- invoked, expect provision would to be rath- corporation ance when the whose assets ignored, beneficially er than if United States per interests seized is owned least "50 centum jeopardized by U.S.C. be an aid cutoff. States citizens.” 22 Here, 2370(e)(1)(A) (1982). undisputed § it is case, only that the we decide Judicial Analysis these this applied. doctrine validity inevitably by the relevant will not examine affected Branch issues is dication of reduced. foreign tenets tended careful sponsibilities for cial interference with the Executive’s ciples in a exceptions to the would es eign or when there are these issues. consensus on ed States ence in the foreign affairs. with been made factual may raised. concerned with no, controversy.171 al state. propriation, adequately to For treaty dissenting opinion of the act of policymaking by the occur instance, of international law When, treaties with to to circumstances act,172 specified Until the foreign relations law or United governs apply distinguish apply. when there is of an actual treaty political there is no however, the national interest Unit- explain We Sabbatino state doctrine is minimizingjudicial interfer- the doctrine was when As validity foreign danger pause threshold Improper enunciated in act of state doctrine controlling legal prin- between branches’ why in which legal generally accepted confiscation or foreign applicable no codification or affairs is only to note Judge Starr fails political need to resolve the Court was several of political concerning the foreign improper judi- merits showing has judicial interference foreign the claim is conduct of principally sovereign never in- branches Sabbati- in branch- greatly bilater- sover- these adju- act ex- re- ran act of fendants, and Honduras between the United States Honduran act of requires “the trict court has not been tionals and ship, Commerce and Consular istry uments submitted Ramirez’s pensation ment of taken Honorable State, of and effective States.” ment believes Thus, ment ciples the time of taking ry by a extant treaty expropriation the defendants adjudicating the facts as now states regarding treaties between [175] A letter filed with the Court just, adequate and effective com- *37 ____173 Economy and the Honduran or other expropriation. the “General applies property George P. foreign sovereign government, recognized by compensation companies of may provide clear standards provision suit, of expropriation, alleged, to from the Honduran to this court controlling legal the Honduran property validity unambiguous agree in the absence within any expropriation of Shultz, Secretary government.176 Commerce Treaty of Friend- required of there has been no the United States Treaty’s require- According to doc- may in its just, adequate of owned all own territo and the dis- Rights” country by be under- Honduras instances to evalu- govern- Hondu- the de- to The by prin aof Min- na- On ate the extent of Honduran involvement on adjudica- no when there are standards disputed property or to construe in which United tion from those cases provide treaty light the facts. But if or international law terms States treaties guidance Judiciary par- in a find that a Hon- specific to the the district court were to area of relations. There expropriation ticular duran has occurred without Court stated: payment, calling being applicability into stage treaty, appears of this to us at this reaffirming
[Rjather
laying
than
down or
pre-
treaty
this
all-encompassing
rule
that a violation of
an inflexible
Appellees,
175. See Brief of
E at e-2.
171. See
Spice
Co. v. Pro
Addendum
Extraction
Kalamazoo
"Just,
Military
adequate,
compensation”
Socialist Ethio
visional
Government
and effective
is
(6th
1984);
Int'l
pia,
CIr.
American
Hickenlooper
Amend-
the standard of
ment,
First
Iran,
Group,
Republic
Inc. v. Islamic
supra, note 169.
(D.D.C.1980).
F.Supp. 522
Appellees, Addendum E at e-2.
176. See Brief of
Sabbatino,
172. See Banco National de
Cuba v.
possible
may
fact
Of course it is
this
n.
S.Ct. at 941 n. 34.
vent the defendants from
United States shall del-
[N]o
ground
cine on the
of the federal act of
in this case.177
state defense
state
to
doctrine
make a determination
treaty
these
Apparently because it deems
giving
on the
princi-
merits
effect
to be
than a trouble-
obligations
no more
ples of international
law in a ease in
nuisance, Judge Starr’s dissent would
some
which a claim of title
right
or other
Instead,
question.
never
this
what
reach
any party
is asserted
includ-
irony
as an
can
be characterized
ing
(or
state
upon
... based
goes
great
lengths
justice,
the dissent
through)
traced
confiscation
other
uncompensated taking
oc-
find that an
taking
an act
...
of that
state in
premature
curred,
principles
but then holds that it
violation of the
of international
law, including the principles
compen-
treaty
into
inquire
obliga-
whether
sation and the other
set
standards
out in
accepted
tions or
tenets of international
subsection____178
no fur-
Because
law have been violated.
statutory
standards which the
ther
review
contemplated,
dissent
for
eign state must
a court
meet—before
effectively
treaty
denies the existence of a
apply the act
state doctrine —include
exception
the act of state defense.
*38
We
speedy compensation equivalent
to the
implication
reject
this
and the concomitant
value
economic int
full
of
confiscated
opportunity
denial of an
to the
to
erest.179
argue
point
trial
before the
court on
accomplished,
An
uncompensated confis-
presumed by the
the new facts
dissent.
cation of the
by
ranch
the Hon-
This
dissent also fails to deal
same
with
government
duran
squarely bring
Amendment,
Hickenlooper
Second
play, foreclosing
this statute
any
into
def-
specifically
which
the use of the
addresses
erence based on the act of state doctrine.
involving
act of state defense
cases
a
prefers
The
ignore
dissent
to
this clear
foreign
private prop-
state’s confiscation
congressional
mandate without
serious
erty:
discussion of its terms.180
denied,
Cir.1982),
supra note 172.
177. See
cert.
460 U.S.
(1983) (relying solely
on
2370(e)(2) (1982).
§
178. 22 U.S.C.
Cuba). By
legal
Banco
de
Nacional
no twist of
imagination
(of
Supreme
can the
Court’s reversal
provides
the act of state
statute
general holding
the Second Circuit’s
that the
may
apply
doctrine
not
if a
case)
act of state doctrine controlled the
consti
government
country,
agency, or
approval
reasoning
tute
on
relied
fails
reasonable
subdivision
within a
time
appeals
respect
meaning
court of
with
(not
than six
after
more
months
such action
Hickenlooper
the Second
Amendment. The
...)
steps,
appropriate
may
take
which
to
consistently
congres
statute
read
must be
arbitration,
discharge
obliga-
include
to
its
intent,
might
every
apply
sional
propriation
not
to
ex
toward
tions under international
law
such
foreign property
Unit
owned
entity,
speedy
including
compensa-
citizen or
primary
ed States citizens.
It
be
property
such
tion for
exchange,
in convertible
purpose
prevent
of the statute was to
invocation
thereof,
equivalent
to the full value
property expro
of the act of state doctrine when
law____
required
international
priated
foreign country subsequently
in a
makes
2370(e)(1).
Id. §
States,
way
its
into the United
but this was not
suggestion
reject
180. We
the dissent’s
the sole
in which
situation
the amendment was
"property"
invariably
word
in the
must
statute
to be activated. There was some concern in
expropriated personal property
Congress
be limited to
that the amendment
be read
could
to
new,
expanded right
is based
located in the
States. It
on
create a
of action to chal
authority
lenge
foreign expropriations
which has been overturned in the Su
all
in United States
courts,
preme
juris
See
de
Court.
Banco Nacional
Cuba v.
even when the
traditional basis
Bank,
(2d
City
Nat'l
431 F.2d
399-402
First
diction—attachable
located in the Unit
remanded,
Cir.1970),
present. Any
ed
vacated
States—was not
statement
(1971),
legislative history
91
remand,
suggesting
S.Ct.
L.Ed.2d 630
aff’d on
(2d Cir.1971),
applied only
personal property
ty for the tribunals, judicial rights which by the have been invaded officers judicial While the Constitution the government, professing to act in its department recognized as one of the There remains to him but the name. great among three branches which all resistance, alternative of powers govern- and functions of the position amount to crime. The assumed distributed, inherently ment are it is that, rights, clear no here is however his weakest of them all. remedy can be afforded to him when it is Dependent as its courts are for the opponent seen that his is an officer of judgments upon enforcement of their of- States, claiming to act under the United appointed by ficers the executive and for, authority; as Mr. its Chief Justice pleasure, pa- removable at his with no says, to examine whether this Marshall tronage purse and no control of the authority rightfully assumed is the sword, power their and influence rest jurisdiction, exercise of and must lead to solely upon public sense of the neces- question. the decision of the merits of the sity for the existence of a tribunal to plaintiffs in objection error *41 which may appeal all for the assertion any inquiry necessarily forbids into protection rights guaranteed of by assumption parties truth of the Constitution and the laws of the setting up authority lawfully such land, and on the it; reposed confidence in possessed argument for the is suggestion the formal of the existence of the soundness of their decisions and the authority any inquiry into purity such forbids of their motives. suggestion.
the truth of the From such a tribunal no well-founded injustice
fear can be entertained of to the Scalia, J., Dissenting Opinion Madison, (5 189. Marbury Dall.) at 190. 1566. L.Ed. purpose present of a to or obstruct idle facts at the time. The government, district proceed accordingly. court should just authority.191 or diminish its light In of the district court’s treatment equally today, principles are valid These dismiss, a of the case on motion to we hold recognized in Justice Frankfurter justiciable; case is that the United Sawyer: & Tube Co. v. Youngstown Sheet plaintiffs standing States bring to ought an equity to issue [A] claims; their constitutional and that injunction, though plaintiff even a other plaintiffs have stated a claim it, a if plain wise makes out case for relief. judgment The of the district right injunction tiffs to overborne court is reversed and case is remanded commanding public interest proceedings for further consistent with this large epi it. One need not resort to a opinion. grammatic generalization that the evils So ordered. pre of industrial are to be dislocation allowing illegality go
ferred to
un
to
TAMM,
Judge, dissenting:
Circuit
deny inquiry
checked. To
into the
this,
power
President’s
in a case like
enjoin,
Plaintiffs
this case seek to
or
damage
public
because
unlawful,
have declared
the construction
to be
its
upsetting
interest
operation
training center
feared from
him,
always
exercise
would in
plain-
on their land in Honduras. Because
effect
preclude inquiry
challenged pow
into
requested
requires
judi-
tiffs’
direct
er,
presumably only
avowed cial
interference with a
policy deci-
public
brings
great
interest
into action.
branch,
sion
the executive
I believe the
so,
unwillingness,
And
with the utmost
controversy
nonjusticiable.
Accordingly,
every
judicial
in
with
desire
avoid
I would affirm the
judge’s
district
dismiss-
powers
quiry into the
and duties
al of the action.
government,
two
I
other
branches
escape
cannot
consideration
the le
gality
challenged] Executive Order
[the
I. Facts
..
..192
Plaintiff Ramirez is
opera-
the owner and
tor,
an opportu-
are entitled to
through six
corporate
named
plaintiffs,
prove
nity
large
discover and
the factual
agricultural
alle-
industrial complex in
gations supporting their claims. Over a
northern Honduras.1
complex
consists
passed
14,000-acre
year since the district court
ranch,
cattle
a meat and
and,
complaint
judging
shrimp
dismissed the
packing operation,
fishing
and a
court,
parties’
submissions to this
new
In early
fleet.
in order to further
developments
factual
continue
occur. United
policy
America,
in Central
Discovery
sharpen
Departments
is essential
order to
of Defense and State de-
legal
properly
issues
evaluate
cided to
Regional
construct a
Military
plaintiffs’
(RMTC
claims.
Training
merits
Liberal
Center)
Center
in Hon-
pleadings
amendments to the
also be
duras
training Salvadoran soldiers.
necessary
bring
complaint
Declaration,
order
Ramirez
15, Appendix (A.)
H
conformity
view of
26.2 May
into
Ramirez learned that
218-23, 1
complaint
191.
1547
my
guides
analy
legislature,
or
single-voiced
of
demand a
branches
of
foreign
The
of
statement
in this case.
conduct
Government’s views.
sis
Carr,
186, 211,
Baker v.
disposition of
369
proper
and the
mili
U.S.
82 S.Ct.
affairs
691, 706,
7 L.Ed.2d
are,
question, subjects
nonjus
663
The
tary power
without
affairs,
ticiability
involving
cases
authority
foreign
of
to the exclusive
of the
committed
however,
a
“primarily
function of the
political
government.
of
U.S.
branches
Const,
Baker,
separation
powers.”
§
§
of
369
at
Oetjen
id. art.
I,
8;
2,
U.S.
v.
art.
2.
210,
Co.,
at
297,
82 S.Ct.
706. This fundamental
302,
Leather
Central
246 U.S.
38
principle,
very
309,
which constitutes the
basis
311,
(1918) (“[t]he
L.Ed.
62
726
S.Ct.
system
government,
of our
requires
foreign
conduct of the
relations of our
infringing
courts to refrain from
on the
is committed
the Constitu
Government
powers
legislative
reserved
and exec
Legislative
to the Executive and
tion
—‘the
Indeed,
government.
ju
utive branches
____”).
See John
political’ Departments
—
power
dicial
“only
adjudication
exists
when
763, 788-89,
v. Eisentrager,
son
339 U.S.
system
is ‘consistent with a
separated
936, 948-949,
(1950);
70
A
affairs,
is to scrutinize the claims
acknowledged
not only
Court has
in terms of their historical man-
involving foreign
agement
political
that cases
are
affairs
of-
their
branches and
nonjusticiable.
frequently
susceptibility
judicial
ten
Such eases
handling, but also
possible consequences
defy judicial applica-
on
turn
standards
terms
“of
”
Baker,
judicial
tion,
action.
involve the exercise of a discretion
211-
U.S. at
demonstrably
added).5
(emphasis
committed to the executive
S.Ct.
706-707
Carr,
dispute infringes
Baker v.
on the executive’s conduct of
(1962),
primarily
L.Ed.2d 663
Court was
policy.
Libyan
See
Tel-Oren
Arab
outlining
the characteristics
concerned
Republic,
(D.C.Cir.1984)
nonjusticiable
ques-
cert,
political
issues
under
J.,
(Bork,
concurring), petition
filed, 52
doctrine,
political question
doctrine. The
tion
(U.S.
1984) (No.
U.S.L.W.
June
83-
sense, may pertain only
in the strict
2052).
aas
refrain
Just
must
from resolv-
presented,
question
and not to the
nature
ing question
political,
whose nature is
so must
granting
requested.
effect
relief
adjudicating
refrain from
claim
where
separation
powers
give
same
concerns
sought
independ-
intrude
doctrine, however,
political question
rise
political
ence of the
branches.
implicated
resolving where the effect of
*44
essentially
alternatives would
dictate
assessing the
these
in
important element
An
is,
proper
the
situs or
to the executive branch
judicial action
consequences of
military
scope of a
American
train-
Central
the relief
course,
granting
the effect of
severely
the
ing facility and
restrict
execu-
Morgan, Gilligan v.
sought.
In
authority to determine the use and
tive’s
2443-2445,
37 L.Ed.2d
5-10, 93 S.Ct.
military operations.
disposition of
Supreme Court
(1973),
example, the
for
nonjusticiable
controversy at bar
held the
judicial ruling may also hinder the
A
injunctive
the
relief
part
in
least
because
foreign
affairs
executive’s conduct of
power commit-
intruded into the
requested
detrimentally affecting
relations with
our
Similarly, in
political branches.
ted to the
declara-
The
own
Honduras.
case,
relief
intrusive nature of the
the
this
at least that Honduran offi-
tions indicate
me
conclude this contro-
leads
requested
about,
in,
acquiesced
the
knew
cials
nonjusticiable.
versy is
operation
training
construction
are involved in the
center.
If Hondurans
B
activity
any way,
only
in
even if
challenged
they
knowledge of
complaint
is not
to the extent that
have
here
recognize
I
activities, any injunctive or
challenge
the execu-
States-
styled as a facial
declaratory
implicitly questions
relief
Hon-
to locate a
foreign policy decision
tive’s
potential
dis-
sovereignty.
duran
The
training
in Honduras.
military
center
ruption
relations with Honduras is
only that
the United
of our
alleges
stated claim
fact that
the action is
may
lawfully
run a
not altered
defendants
States
brought only against the United
of-
operation
plaintiffs’ land when
military
on
up
expropriated.
ficials. The court could end
embroiled
has not been
As
land
it, therefore,
diplomatic
in sensitive
matters.
majority characterizes
simple dispute over land-—-an issue
case is a
course,
say,
This
not to
that all
is
traditionally subject
judicial re-
touching
foreign
claims
on
affairs which
only
issue
focus
on the narrow
view. To
injunctive
sought
nonjusticia-
relief
review,
immediately presented for
how-
Youngstown
Sheet & Tube Co.
In
ble.
ever,
the serious intrusion on the
overlooks
579, 72
Sawyer, policy
foreign
that will result
conduct of
(1952),
af-
L.Ed. 1153
Court
requested relief. A
granting the
from
enjoining
firmed a district court order
challenge
purport
a
complaint need not
privately
steel
seizure of
owned domestic
im-
policy to
fundamental executive branch
mills. The President ordered the seizure to
powers concerns.6
plicate separation a
strike that he believed would
avoid labor
jeopardize
during
national defense
the Ko-
Injunctive
might
take two forms
First,
Regional
concluded that
scope
rean War.
case.
private property
Training
could be
seizure of
to avoid
Military
Center
restricted
dispute
designated
acres to which
domestic labor
was not authorized
1500-2000
Second,
military
the President’s
originally agreed.
as an exercise of
Ramirez
587-89,
operation
power.
of the center on
The circumstances differ the executive’s conduct of for- significantly from those the instant case. eign affairs. Youngstown
Although
the seizure in
case,
injunctive
In this
relief sought
military operations
related to
been
directly
limit the executive’s discre-
abroad,
domestic,
primary
its
effect was on
conducting
tion
dip-
affairs and
foreign,
and not
affairs. As Justice Jack-
*45
lomatic relations in
In
Honduras.
contrast
recognized,
important
is an
son
there
dis-
setting
to the domestic
in
seizure
“largely
tinction between the President’s
Youngstown,
dispute
here arises out of
power
foreign
uncontrolled”
to conduct
af-
operation
base,
of military
located
power
fairs and his more limited
to master
nation,
foreign
within the borders of a
cre-
affairs,
domestic
even when those domestic
yet
foreign
ated to train
another
nation’s
foreign
affairs
affect a
venture. 343
soldiers. Judicial action here would
tan-
2, 642, 644-45,
n.
U.S.
635-36
72 S.Ct. at
oversight
tamount to
of the executive’s mil-
2, 873,
(Jackson, J.,
870-871 n.
874-875
itary
diplomatic policy
decisions in a
concurring).
long
empha-
Court has
foreign country.
Separation
powers
sized that the executive’s discretion to man-
principles
judi-
bar such an intrusion
age foreign
considerably greater
affairs is
ciary
controversy
and render this
nonjusti-
power
than his
to control domestic matters.
ciable.8
power
Not
...
is the federal
over
origin
in
external affairs
and essential
C
character different from that over inter-
controversy
nonjusticiable
This
is also
affairs,
participation
nal
but
in the exer-
respect
plaintiffs’ request
with
to
for a
power
significantly
is
cise
limited.
declaratory judgment. Declaratory relief
realm,
In this vast external
with its im-
usurpation
could lead to
of Court of Claims
delicate,
portant, complicated,
and mani-
jurisdiction
implicates
similar concerns
problems,
fold
the President alone has
by injunctive
to those raised
relief.
power
speak
repre-
to
or listen as a
sentative of the nation.
declaratory judgment
A
can be enforced
Curtiss-Wright Export
United States v.
grant
through
compensatory
injunc-
216, 220,
Corp.,
§
299 U.S.
57 S.Ct.
(1982).
tive relief. 28
U.S.C.
Be-
The Court
was therefore
only money damages
could seek
for their
injunctive
concerned with whether
relief
alleged injury. Such an award would com-
may appropriately
to
issue
restrain the ex-
pensate plaintiffs
what is in essence a
respect
ecutive’s
action with
unlawful
to
however,
taking
Congress,
violation.
prob-
domestic affairs where the domestic
might
secondary
lem
have a
effect
vested the Court of Claims with exclusive
on for-
Youngstown
eign
jurisdiction
imply
affairs.
does not
for such claims. To allow the
judicial
appropriate
action
govern-
where
district court
to determine the
controversy
directly
resolution of a
will
liability
respect
taking
ment’s
with
to a
majority
"long
judicial
way impeded
8. The
states that there
ais
line”
action in no
the exercise
permitting judicial
of cases
respect
relief for unlawful
of executive discretion with
to
affairs,
action
United States officials in the context
e.g.,
(Philippines),
United States v. Caltex
military
Maj. op.
affairs.
at 1530.
Inc.,
149,
200,
344 U.S.
73 S.Ct.
I555
any
upon trespass
whether there was
limita
simply asked
limitation
or unlawful taking
upon the Park
officer’s author
tion
Service
in the process.8
ity
occupy real estate. The mere fact
to
however,
Ultimately,
majority’s
the
re-
occupation
holding
the
or the
was “a
sponse on the Tucker Act authorization is-
Larson,
693,
supra, 337 U.S. at
tort,”
sue is not
elegant agnos-
contradiction but
“
1463,
‘illegal’
or
as a matter of
impossible
ticism. That issue “is
for this
Malone,
supra, 369 U.S. at
law,”
general
stage
court at this
the
of
case to deter-
983,
647, 82 S.Ct. at
and that there was no
mine,”
told,
we are
availability
because the
specific authorization for such “tortious”
aof
claim for relief under the Tucker Act
action,
or “unlawful”
did not establish the
“depends upon
yet
facts not
ascertained
necessary
in
authority
permit
lack of
to
congressional
and the nature of the
junction.
equivalent
The
here is not wheth
grants
power
constitutional
to these de-
er
these defendants
are authorized to
fendants.” Maj. op.
military acquisitions,”
at 1524.
“make
but whether
But as
latter,
the
I
military
to
have understood it
they are authorized to conduct
to be
,7
training
specific
precisely
with no
exercises
the function of this court to deter-
abroad
10,469
majority opinion
Fed.Reg.
asserts that I "never con-
Executive
Order No.
statutory
(1961),
whether there exists
autho-
reprinted
]
sider[
rization
occurred here."
as amended in 3 C.F.R. 318
taking alleged
for the kind of
to have
(1969),
delegates authority
provi-
under these
Maj. op.
at 1524 n. 95. I take
to,
others,
among
Secretary
sions
the
of State
provide
I
that criticism to mean that
fail to
Secretary
and the
of Defense.
statutory
satisfy
authorization that will
sort
majority’s
the Larson
distortion of
"authori-
general scope
8. Once action within the
requirement
zation”
discussed above.
I shall
established,
upon
officer’s duties is
it devolves
that;
just
majority
not do
but
in case the
in-
plaintiff
who asserts that the officer "[is]
tends,
addition,
point
to contest the obvious
exceeding
delegated powers
occupying
his
...
State,
Secretary
Secretary
question”
complaint
the land in
to "set out in his
Army Corps
Engineers
Defense and the
statutory
limitation on which he relies.”
military training
to conduct
exercis-
authorized
Bowdoin, supra,
Malone v.
369 U.S. at
& n.
abroad,
troops
friendly foreign
nations
es for
9,
justify attributing it to the United States.
standing to sue on two
I do not
bases.
simple question (though
This
not be a
them,
quarrel
applies
with one of
which
is),
difficulty
I
nothing
think it
but its
plaintiff
complaint
Ramirez: The
to do with a lack of facts.
assert
affidavits
that Ramirez resides
plaintiffs
It is understandable that the
in on the ranch and has done so for more than
this suit have never
contended
mone-
believe,
twenty years which, I
demon-
—
tary relief under the Tucker Act is unavail-
that he
possessory
strates
has a lawful
well,
sympathize,
able. One can
with interest under Honduran law in at least
majority’s
point;
desire to finesse the
some of the
seized. He thus has
surely
deprive
land,
be unkind to
cognizable property
interest in that
plaintiffs
monetary
interest,
relief to
which which
since he is an American
entitled,
they
citizen,
keep
in order to
alive the
protected by
the Constitution.
equitable
Shevin,
67, 86-87,
possibility of the
relief to which See Fuentes v.
1983, 1997-1998,
they
jurisdic-
are not. Since the issue is
jurisdiction
ferring
9. The district court has Tucker Act
the case to the Claims Court under 28
$10,000,
(Supp.1984)
light
over claims for less than
28 U.S.C.
§
U.S.C.A.
of the fact
1346(a)(2) (1982),
jurisdictional
§
but that
limit
sought
specifically
have not
acknowledged
is exceeded
value of the
monetary
impending
relief and there is no
time
taking
complaint
full relief.
seeks
prevent
refiling
bar that would
their
adopt
I would not
the alternate course of trans-
*52
however,
(1972).10
ground,
concluding
plaintiffs
The other
then
here
applies to
Ramirez and the
both
must have one as well.
proper
The
method
“
corporations,
is
Puerto Rican
fundamental-
inquiry
quite
‘Property
different:
requires response.11 The ma-
ly wrong and
interests
... are not created
the Consti-
Ramirez,
who is sole own-
jority holds
Rather,
they
tution.
are created and their
which in
corporation,
er of a Puerto Rican
by existing
dimensions are defined
rules or
is co-owner with Ramirez of a second
turn
understandings
indepen-
that stem from an
corporation,
Rican
which owns a
Puerto
”
dent source such as state law.’ Ruckel-
corporation, which
three
Honduran
owns
Co., supra,
shaus v. Monsanto
at
corporations,
Honduran
one of which
other
2872, quoting Webb’s Fabulous Pharma-
issue, and the
owns the land at
other two
cies,
Beckwith,
155, 161,
Inc. v.
ranching
ship-
the cattle
of which own
446, 450,
(1980),
101 S.Ct.
land,
ping businesses conducted on the
Roth,
quoting
Regents
Board
standing
injury
to sue for
to his interest
564, 577,
2701, 2709,
shareholder;
the land and business
as
(1972). Therefore,
L.Ed.2d 548
at least
corporations
and that
the Puerto Rican
the absence of a federal
statute
to the
standing
Maj. op.
have
on the same basis.
contrary,
appropriate
source for deter-
at 1518-1519.
mining whether Ramirez and the Puerto
majority properly
states that
the in-
corporations’
Rican
interests
the land are
quiry concerning standing “must focus on
“cognizable property” rights
surely
would
cognizable
whether
have a
the law of
Honduras where the land is
property interest
in the assets in Honduras
located,
probability
where title is in all
re-
purposes
for the
of the constitutional viola-
corded,
legal
where
owners of the land
It
Maj. op. at
here.”
tions claimed
incorporated,
and businesses are
where the
inquiry
though
solely
resolves that
it is
conducted,
being
businesses are
and where
lаw, pointing
federal
a matter of
to instanc-
alleged trespass
See
occurred.
Re-
es in which federal
courts have found
(Second)
statement
of Conflict
of Laws
shareholders and other beneficial owners to
§§ 147, 235,
interest,”
If
“cognizable property
ei-
Honduras con-
standing
purposes,
upon
ther
for
or other
fers
twice-removed shareholders
like
promises
pay money
goods
Claims Court after dismissal.
Eccles v. Unit-
such as
services,
or
Cf.
States,
(D.N.D.1975).
F.Supp.
battery
person
ed
796-97
or
or conver-
goods,
liability
sion of
courts would assume a
asserts,
nothing
contrary
n.
op.
ap-
at 1519
if
majority
to exist
peared
Maj.
10. ____
likely
impose
proposition
Such matters are
accept
that it is inconsistent to
obligation
possession
in all civilized countries.
that under Honduran law Ramirez’s
however,
wrong,
my
(fairly
nothing
approval
If I am
error is as
land with
of the title-holder
gives
legally
compared
majority’s holding
pleadings)
with the
on the
established
him a
point
rights which,
cognizable right
preserve
possession
properly
of shareholder
if
—
law,
strangers,
similarly accepting
while not
based in
assumes to be Honduran law what
(if
all)
proposition
uniformly accepted
accepted
law Ra-
under Honduran
is not
ownership
corporate
gives
among
country,
him
mirez’s
stock
the states of this
much less "in
cognizable right
corporation’s
legally
civilized
all
countries.”
proposi-
land.
It seems to me that the former
reasonably
majori-
11. The mind reels backward before the
within
fact that
tion is
embraced
ty’s
Maj.
recognizes
ownership
complaint,
op.
private
Honduras
of land
at 1516 n.
that I
since,
power
permit
upon
owner
or
should not enter
and the
its
forbid
discussion
having agreed
standing
use
others—all of which was shown
its
that Ramirez has
as an
Indeed,
individual,
allegations
uncontested
here.
even
I have conceded the
issue that
support
proposition
ex-
without such
is an
need be resolved. That is true. Just as true as
example
treme
of what the
Court de-
majority
the fact that when the
found that Ra-
Crosby,
individual,
scribed in Cuba R.R. v.
Maj.
standing
op.
had
as an
mirez
(1912),
L.Ed.2d 274
only issue that
decided the
need
criticized,
generally
a statement which has been
majority
Apparently, the
to be
be resolved.
which,
valid,
be valid here:
but
if ever
unnecessary
holdings,
forth
alternate
free to set
dissenters,
judicial
regard
rudimentary
dealing
to which
out of
with
It
be that in
abroad,
economy,
reply.
restraint and
should
contracts or torts made or committed
corpo- by
Ramirez and one of the Puerto Rican
individual shareholders whenever in
rations,
process
upon
requirements
a once-removed sharehold-
their view due
corporation,
regard
corporate property
like the other Puerto Rican
er
have been
*53
ignored. The
property
regime
interests whose “dimensions are
inconvenience of this
government
to include the
for the
only by
defined” in such fashion as
is exceeded
its
trespass
prevent
alleged
corporate
an
of this
destructiveness to the
right to
form it
sort,
standing
bring
effectively
there is
to
this
self.
It
supplants,
then
in Fifth
not,
cases,
standing.
there
no
general principle
If
then
Amendment
suit.
corporate
only management,
law that
or
enough Honduran
to
not know
law
I do
the shareholders
derivative actions with
question,
this
and I sus-
to answer
be able
ace°hipanying safeguards,
may sue
majority does not either. The
pect the
regarding injury
corporate
to
assets. See
no averments and
made
intro-
Bresler,
Cowin
F.2d 410 at 414-415
point;
on the
since it is
no affidavits
duced
(D.C.Cir.1984).
pro
That would
tanto elim
allege
facts sufficient to
their burden
generated by
inats the efficiencies
sep
since
standing,
show
and
law is a
ownership
aration of
and control which ac
fact,
ground might
question of
suffice
populari
count for much of the success and
for dismissal of the shareholder claims. In
ty
corporate
(Of
form.
course multi
fairness, however, they were not chal-
ownership
any property,
joined
when
P^e
W1th
lenged
point,
given
and should be
an
on the
control,
entering
raises the cost of
opportunity to make additional submis-
any
regarding
proper
into
transaction
quite
But that
a bit less
sions.
than
ty.)
merely
standing,
pronouncing
major-
as the
ity
incorrectly
has
done.
earlier, however,
As stated
the main
problem
majority
is not that the
has creat-
Even if it were the function of the feder-
unsatisfactory system
ed an
of shareholder
system
al courts to create
of shareholder
rights,
presumed
but that it
to create a
rights
purposes,
for Fifth Amendment
system
rights
of shareholder
at all. The
produced
system
majority
has
is either
corporate
shareholder’s
interest
assets
analytic
or
practical
disaster
monstros-
property
should
treated
right
as
ity. Nothing
majority opinion
in the
limits
purposes,
constitutional
and he should be
property rights
shareholder
to sole share-
bring
protect
able to
against
suit to
fed-
upon
majori-
holders. The cases
which the
value,
eral
affecting
action
its
ty purports
rely
for its new creation do
exactly to the extent that he is able to
limitation,
support
not
such a
and one of
bring
against
private
suit
similar
action
corporations
the Puerto Rican
in the
place
under
the domestic law
present
standing
case would not have
if
incorporation.
governs
That
law
applied.
any
a limitation
such
Nor is there
terms of the deal
of,
between shareholders and
suggestion
for,
rational basis
management,
among
the shareholders
limiting
principle
the new
to shareholders
themselves, regarding
rights
(which
corpo-
their
foreign corporations
Ramirez
nоt).
rate assets.
It
defines
shareholder’s
himself is
Or to the shareholders of
rights
management
vis-a-vis
corporations which themselves are unable
shareholders,
other
but also vis-a-vis third
bring
suit—both because that limitation
parties
corporation’s
eontrac-
also would come from nowhere and be-
—whether
majority
explicitly
partners
Any
tual
other
cause the
reserved
or tortfeasors.
primarj corporations
approach
consequences
corpo-
the issue whether the
makes the
sue,
present
Maj. op.
itself,
ra the
can
ownership,
corporation
case
rate
for the
forward, then,
shareholders,
1516. One can look
to suits
its
and those who deal with
it,
unpredictable.12
the United States and its officers
found,
majority's
thing
impassioned
12. reference to
cannot be lost until it is first
see,
"stripped” rights,
e.g., Maj. op.
impossible
"lost" or
the related maxim
to doff
that it is
rights
what has not been
disregards
principle
donned. Shareholder
1517 n.
that some-
majority
sup-
The cases the
cites do not
in a New York bank.
refugees,
Cuban
who
port
opposite
point.
conclusion on this
its
owned 750 of the 1000 shares of
corpo-
Secretary
Treasury,
Nielsen v.
F.2d ration and because of their refugee status
(D.C.Cir.1970),
is said to stand for were not considered nationals of Cuba un-
proposition
“that shareholders have a
regulations,
der
statute and
31 C.F.R.
property
corpora-
interest in assets of a
§ 515.302(a)(1969),brought suit
enjoin
tion,”
blocking
corpora-
“that the
blocking
applied
they
what
tion’s assets
United States could
proportionate
claimed was their
share of
deprivation
constitute a
of the sharehold-
They
the assets.
claimed
blocking
ers’ property,” Maj. op. at 1518.
It
deprived
them of
pro-
without due
thing.
passage
does no such
In the
re-
cess of law.
they legal Defining are found within framework creat- under local law. the contours of con- structure, ing defining corporate stitutionally cognizable property interests incorpora- peculiar place is erected the law of the reference to Honduran law is no more though doing majority tion. The writes as I would than so reference to the law of Indi- v. Ad- hold that no American shareholder in a ana. See Mennonite Board Missions ams, 791,_, corporation rights corporate could have protected by assets the Constitution. Not so. L.Ed.2d (1974), governing relationships. rules their L.Ed.2d 418 and First incorpora- place choice of law of the City National Bank v. Banco Para El tion has merit terms of reasonableness Cuba, Comercio Exterior de ground maximizing common of inter- (1983), understanding. national apposite. majority even less cites proposition
these cases for the
that “[t]he
govern-
consistently
if
Court has
recapitulate,
To
even
our
refused to
unilaterally vested
corporate
ment had
the assets
allow mere
formalities to dictate
case, any
by plain-
claims
involved in this
suing party
whether the
in fact has a valid
illegality
assertion
resting
tiff
оn an
personal
claim and a
stake in the outcome
problems,
encounter substantial
Instead,
Maj. op.
of the case.”
at 1519.
starting
proposition
that our
they
what
stand for is that on some occa-
government may
accept
well be able to
(not “consistently”),
indepen-
sions
when an
incorporation
country
as establish- dent source of law indicates that this is the
ing
nationality
corporation
hav-
action,
proper
pre-
course of
a court will
ing
within our borders without
assets
corporation
vent a
pressing
from
a claim
being required
pierce
corporate
party
a third
which would inure to
veil.
of an
benefit
individual shareholder
Secretary
Treasury, supra,
Nielsen v.
who would himself be barred from
assert-
F.2d
ing
something
leap
it. It is
from this
*55
majority
likewise distorts
to the conclusion that shareholders have a
Kaufman
pour Participa-
v.
Internationale
Societe
property
Fifth Amendment
in
interest
cor-
Commerciales, S.A.,
tions Industrielles et
porate
City
assets. First National
Bank
156,
611,
343 U.S.
ble. requiring The set of difficulties other point most important injunctive pertains
The
denial of
setting up
direct court inter-
asking
government’s
for
role
Honduran
training camp, and the
military operation being
supervising
a
con-
and
ference with
it,
our
on the
majority puts
consequent effect of
decision
abroad. As the
ducted
prohibit
relations with Honduras.
the United
“[plaintiffs
not seek
States’
[did]
opinion amply demon-
Training
op-
Judge
As
Starr’s
Regional Military
Center from
strates,
Separation
on the
powers
basis
uncontroverted
another Branch.
con
legisla
facts it is clear
Honduran
injunctive
relief,
cerns do not bar
the ma
officially
ture has
endorsed
establish
asserts,
jority
“the foreign
because
affairs
camp, that
training
ment of a
the President
context of
action
Executive
cannot shield
signed
of Honduras has
decree commenc
judicial
unlawful conduct from
inquiry.”
ing
expropriation of the
land for Maj. op.
an utter non
This is
at 1530.
purpose,
and
Honduran
soldiers
sequitur.
ability
The
to decide a case has
participating
have been
in and supervising
nothing
the propriety
to do with
of grant
training camp
plain
the conduct of the
ing
extraordinary
discretionary
and
tiffs’ land. Whether or
this suffices to
remedy.
panel opinion
The
which this
doctrine,
invoke the act of state
it at least
rejected
vacated
the contention that
sought
makes clear that
the order
here
foreign
and military
affairs
ramifica
foreign policy
would have substantial
con
tions of
nonjusticiable
this suit rendered it
sequences. We
no additional
need
factfind
political
on the
question
basis of the
doc
ing to know that it will undermine Hondu
trine. Ramirez de Arellano v. Wein
ability
confidence
ran
in the
of the United
berger, supra, 724 F.2d at
quite
147. It is
speak
single
States to
and act with a
voice
however,
thing,
say
different
that inev
region,
upon
in the
cast doubt
the stead
itable, serious, adverse effects on our de
policies,
fastness of our commitment to our
foreign
fense and
policy
justify
will not
delegitimize
the Honduran authorities’
withholding
discretionary
and extraordi
participation
training
activities
nary
Contrary
relief.
majority's
eyes of the
Baker v.
people.
Honduran
Cf.
view,
Court has
indicated
Carr,
691, 710,
concerns,
justiciability
including
re
those
(1962) (courts
L.Ed.2d 663
should not enter
separation
powers,
lated to
“shade into
potentiality
decrees
create the
of em
determining
those
whether
complaint
pronounce
from
barrassment
multifarious
states a
equitable
sound
basis
relief”
departments
ques
ments
various
on one
and are relevant
purpose.
latter
tion);
Co.,
Steele v.
Bulova Watch
U.S.
Littleton,
O’Shea v.
488, 499,
280, 289,
252, 257,
S.Ct.
L.Ed. 319
669, 677,
S.Ct.
See
1563 doubt, however, ly doing so before yond they inconvenienced in a for- all enough injunction eign to make this an abuse court.
discretion. majority points “[cjourts The out that And are other factors as well. there properly equitable often issue decrees in- compli- Even affairs if volving jurisdiction property outside exist, requested cations did not Maj. op. the court.” at 1529. That is true so-called local action would contravene the respects in pertinent here—notably, rule, generally which courts will not under where the involved is personalty jurisdiction. enjoin trespass in another Phelps (which v. Mc- was the case Co., Chair Ellenwood v. Marietta Donald, Otto) (9 298, L.Ed. 473 771, 105, 771, L.Ed. 913 (1879), quoted majority, Maj. op. at (1895). Contrary majority's sugges- to the involved, Even when 1529). cer- realty represents tion rule no more than equitable tain decrees will issue as a mat- equity an “occasional deference course, e.g., requiring ter of decrees execu- state,” Maj. courts op. of the situs at deed, done, tion of which can be consistently great observed course, in the where the state decree is of this An- majority jurisdictions nation. rendered, regardless of where land is not., (1938); 42 A.L.R. AM.JuR.2d found. to enjoining But when it comes § (1969); Injunctions 92 C.J.S. Venue trespass jurisdiction, the great another § (1955); 38b (Second) Restatement of weight authority, great weight like the § 87 comment d Law Conflicts reason, supports the local action rule. Furthermore, even those few courts which A further to issuance obstacle the local action rule have abandoned vis-a- extraordinary remedy plaintiffs seek is the recognize validity vis states still its other effort, they fact made no have foreign country is con- where land in a none, expressed intent to make their Corp. v. Harri- Reasor-Hill See cerned. protection ordinary quarter to obtain son, Ark. 249 S.W.2d complain— trespass they from the of which part upon rule rests in 995-96 The July the courts of Honduras. 1983 Tr. still vibrant notion that a but ancient v. Weinberger, Ramirez de Arellano over the land within its nation’s control (D.D.C.). I find Civil No. 83-2002 it re- sovereign the most of its func- borders is plaintiffs, markable that these four of tions, which no other nation should with corporations which are Honduran and the interfere, 1 F. see Wharton, Conflict voluntarily rest of which have chosen § (3d 1905), partly ed. 278 at 636 Laws profit from the resources of Honduras upon practical more consideration conducting shrimp packing ranching and compliance to monitor with it is difficult operations through corpo- Honduran there lands. latter such faroff decrees rations, appeal initial should take concern, majority which the den- traditional country regard courts of this with to a igrates, not stem from the mistaken did dispute concerning Honduran land. See “[cjourts compli- ... monitor belief that v. M/V generally Alcoa S.S. Co. Nordic by personal, in- ance decrees on-site Maj. op. (2d Cir.1980) rather Regent, spections,” but 158-59 banc). (en only thing more remarkable the chief witnesses recognition from *58 though not constrained service, court, abroad, is that this beyond compulsory will be act, an to willing injunc- to enter willing testify will severe- should be and if to be even case, prompting Judge example, concurrence Vander present for the Bork’s the tion. If in O’Neill, (D.C.Cir.), foreign Jagt v. corporation F.2d 1182-85 majority to find that were cert, — —, denied, standing for a violation of the due had to sue abroad, (1983), Tamm dissent foreign cited in at 1550 process that the char- but L.Ed.2d clause expressed justifies have elsewhere corporation denial of n. with which I acter of a relief, my agreement, v. United States to basic see Moore equitable I would not feel constrained by going along Representatives, 733 F.2d 956-65 on House issue avoid the constitutional of J., (D.C.Cir. (Scalia, concurring). 1984) ground. That was situation equitable possession to regard consequence tive decree with That is not of the taking, land, intrude, foreign plaintiff’s use of to but acquiesce of refusal to with unforeseen and unforeseeable conse- it. It is hard to that all governmen- believe quences, upon presidential control of mili- tal property condemnation of can be avoid- affairs, tary plain- on behalf of simple expedient ed refusing request tiffs who this action as their first abandon it. rather than last resort. majority’s upon Youngs- reliance my view, In the above factors alone are Sawyer, town Sheet & Co. v. supra, Tube enough more than to sink the propriety equitable demonstrate the opinion, however, majority case. The loads with, relief surely misplaced. begin is To on additional It ballast. asserts the con- that was not a case where the normal rem- tinuing injunctive availability relief even edy monetary was relief available. In if, in foregoing, plain- addition to all the granting against injunction the Presi- monetary compensation tiffs can obtain mills, dent’s seizure of the steel the Court country. See Maj. op. courts of this at not did not assume that a suit for truly 1524. This is a startling assertion. lie, compensation but strongly would im- quote passage opinion To the same from an plied contrary, upon by of Justice Frankfurter relied at 865. Since the President had repeatedly majority opinion, Maj. op. at 1523 n. 90: sought Congress, denied, from and been remedy injunction] Familiar as power [of [the] to seize the steel mills if a labor is, extraordinary it remains an reme- dispute during emergency, arose an it is dy____ plaintiff A is not entitled to an unlikely most “authority” require-
injunction damages if money fairly would ment compensation could have been compensate him wrong may he Moreover, met. monetary if even relief have suffered. Youngstown, were available in it takes no high degree legal skill to observe the Youngstown Tube v. Sawyer, Sheet & Co. following distinguishing pertain- features supra, U.S. at S.Ct. at 889-890 ing injunction: (1) to the propriety an (Frankfurter, J., concurring). taking operation over the of steel man- The majority suggests that principle good ufacturing plants is a deal less mili- does apply not here because land is con- (and tary archetypieally presi- hence less unique law; sidered at common because dеntial) in than conducting character mili- plaintiff losing Ramirez his busi- tary training operations in and for the ness, which is life’s work his and would troops militarily allies; (2) threatened law; unique also be considered common component affairs of seiz- presence and because camp nil; ing (3) domestic steel mills personal his is a threat to his good is a deal for a easier security. Maj. op. at 1527-1528. The first compliance federal court to evaluate two considerations be sufficient injunction running Youngstown, justify specific against private indi- Ohio, Municipality than Trujillo, viduals, government. but Department Colon, truth, Honduras. grant power of eminent domain Youngstown’s only relevance to this case is government, to the national and the Lar- not always impermis- to establish that it is supra, pages son corollary, discussed 1550- enjoin sible to action assertedly Executive injunction is not available to proposition taken for reasons —a prevent taking by the United States— no one contests. apply takings both of which of land and principle clearly establish businesses — that B. Declaratory Judgment monetary compensation is the constitu- tionally prescribed The majority accommodation between claims that even if an in- unavailable, rights junction individual inappropriate and collective needs. As *59 for plaintiff security: might properly the risk district to Ramirez’s be able to
1565 objection injunction usurping have re- to here: the the other grant another Maj. op. functions of Branch. declaratory judgment. quested, a disagree. I 1532-1533. majority The states a declaration of provide rights “could the defendants with injunc like an declaratory judgment, A options compliance specific that a in- Brillhart tion, discretionary remedy. a is not,” might Maj. op. junctive order at 1532. Co., Insurance 316 U.S. v. Excess options majority suggests The the are “to 1173, 1175-1176, 86 L.Ed. 62 S.Ct. congressional seek authorization for their (1942). it have same would 1620 Where action, expropriation a or to cause lawful an it should negative injunction, as effects plaintiffs’ property, toor restrict activi- v. Mac See Samuels likewise be withheld. land, publicly ties to held or to settle with kell, 66, 69-74, 766- plaintiffs, or to appropriate take other (1971); Great Lakes 768, 27 L.Ed.2d action.” Id. briefly I examine these in 293, 63 S.Ct. v. Huffman, Co. turn: it must Since L.Ed. that officers of Executive be assumed congressional 1. “To seek authorization uphold their to Branch will honor oath majority really for their action.” Does laws of the United States —without mean all an officer Executive must do judgment would assumption declaratory comply in law is order to with the to seek rather than always political statement be a he amendment of the law while continues upon it a court takes judicial act —once Surely Secretary to break it? of De- actions pronounce to chal itself light in obliged, fense be of the would unlawful all lenged adverse here are proposes, declaratory majority order to injunction above ensue. effects of discussed operations halt on the lands v. Samuels in Supreme As the Court noted congressional while he seeks action. Mackell, supra, either the defendants will do precisely Which is what he could under declaratory judgment, in feel bound injunction. open to the same which case it would be n expropriation 2. “To cause lawful not, they injunction, or will objections as an plaintiffs’ property.” objec- The same “ no it will useful in which case ‘serve[ ] addition, applies. tion In since the word purpose a final determination implies merely a “expropriation” taking ” rights.’ U.S. at allegedly use as has land’s such v. quoting Public Service Commission here, title, legal acquisition of occurred but Wycoff Co., evidently our majority envisions “caus- The element L.Ed. expro- ing” of Honduras analysis equitable my earlier discre expression priate. sugges- mere The declaratory by the use of or tion affected why judges should not tion demonstrates place injunction one of the two der diplomacy. meddle rule: the court grounds the local action publicly restrict held “To activities compliance with not have to oversee would incomprehensible how dif- land." It is still (though it would be its order abroad required fers at from what all per pronouncing upon inappropriately injunction plaintiffs comply seek. sovereign’s another territo missible use of appropriate action.” Since “Other ry). specified, this is not it is difficult refute especially Court has been detail, light of the nature of the but declaratory judg- letting careful to avoid specified I been alternatives mechanisms for ments serve as substitute reject category think this residual it safe usurping means of state injunction as a a sociis. noscitur principle Mackell, supra; v. functions. See Samuels supra. Huffman, Lakes Co. Great jurisdictional disregard of scrutiny majority’s view, high degree of
my
the same
overriding
equitable con-
obstacles and
main
applied when the issue
must be
*60
STARR,
prompted,
ap-
both
Judge,
straints are
Circuit
with whom SCA-
pear, by
LIA,
an inflated notion of the function
Judge, joins, dissenting:
Circuit
court,
produces stirring
of
which
rheto-
this
my
view the act of state doctrine
prob-
poor
ric but
constitutional
law. The
action,
this
I
forecloses
and would there-
exemplified by
major-
lem
is best
one of
fore affirm
District Court’s dismissal
ity’s responses to the act of state issue
ground.1
on that
majority
The
concludes
Judge
sugges-
raised
Starr —the novel
only by
otherwise
its
insistence
a com-
applica-
tion that that doctrine
no
pleted expropriation provides the exclusive
against
tion in suits
the United States be-
manner
which actions of the Honduran
balancing
cause
of the
of the
roles
“[a]
government would rise to the level of an
produce
Judiciary may
Executive and the
a
state,”
“act
an unsupportably
of
narrow
different
in
in
outcome
those cases
which
view of
substance
purpose
of that
is
Judiciary
upon
called
to curb uncon-
The majority’s
doctrine.
cavalier
treat-
stitutional excesses of its own Executive
Branch.”
op. at
the foreign policy implications
ment of
Maj.
applied
1542. If
of
context,
fears,
litigation
majority
the doc-
further
in this matter invites the
“prevent
might
Judiciary
trine
from very
foreign
intrusion into
affairs and af-
exercising
tripartite system
role in the
its
foreign
a
government
front
to
which the
government
remedy injuries
of
to
to United
designed
act of
pre-
state doctrine was
to
States citizens caused
unconstitutional
vent.
I therefore dissent.
activities of
United
Executive
States
doctrine,
of
The act
state
first articulated
Id.
judiciary,
Branch.”
in other
Hernandez,
in Underhill v.
168 U.S.
special
words,
keep
has some
charter
83, 84,
(1897),
L.Ed.
line,
beyond
responsi-
Executive
its
proposition
rests on
bility
protect
against
individuals
unlaw-
“will
judgment
courts
not sit in
on the acts
Thus,
private
power
ful
judicial
action.
is
[country]
of another
at its zenith rather than its
when
nadir
its
territory.”
done
its
within
own
The Su-
sought against
assistance is
the President
preme Court’s decision in Banco Nacional
private persons.
and his
instead
officers
of
Sabbatino,
de
v.
398, 428,
Cuba
This
complete inversion of constitutional
appears
(1964),
doctrine
not
here but
other
L.Ed.2d
opinions
court,
perceive
this
sets forth
useful
description
the doc-
special
similar
keep
mission to
the Con-
particularly applicable
trine as
to the
line, see,
e.g., Moore v. United
gress in
present dispute:
Representatives,
States House
Judicial
Branch will
examine
[T]he
(D.C.Cir.1984);
id. at 963-64
(Scalia, J.,
validity
taking
with-
concurring). Whereas John Marshall was
territory by
in its own
sover-
prepared
a writ
issue
the Secre-
eign government,
recognized
extant
despite
tary
high pub-
of State
the latter’s
country
suit,
this
at the time of
Madison,
office,
Marburg
(1
lic
treaty
unambigu-
absence of a
or other
Cranch)
(1803),
2. This case comes Second, majority Honduran acts of state. granting motion to dismiss defendants’ order argues develop- Ff.d.R.Civ.P. 12(b)(6). procedur- that the absence of "factual pursuant to however, case, ment” before the District Court disables this posture does not restrict of the al ”find[ing] necessary court from the facts to set- those facts court to consideration this controversy.” tle the Id. at 1536. alleged pleadings filed in the District motion, argument Neither branch of this will wash. is because defendants’ Court. This claim, "procedural As to the unfairness” it is styled dismissal or the alternative as one for that, given inconceivable the location of the summary judgment, converted into a mo- was presence at issue and the of Honduran summary judgment the actions tion for troops, plaintiffs have not known from the out- Specifically, parties and the District Court. presents set that the act of state doctrine filing parties’ materials in addition to the Indeed, to their lawsuit. serious barrier decision to pleadings, and the District Court’s complaint skill with which their consummate materials, proffered accept and consider the drawn, artfully avoiding was the role of the 12(b)(6), under Rule worked this conversion government, strongly evidences Honduran according principles. Broo- to well-established understanding plaintiffs’ clear of this issue. States, (D.C.Cir. F.2d v. United kens Further, briefing original panel ordered the (D.C. 1980); Schuyler, v. 465 F.2d Irons issue, responded this and have since Seidel”, Cir.1972); Gager “Bob panel the entire court en both before the 1962). (D.C.Cir. of this conver- The effect “ clearly not been ’tak[en] banc. Plaintiffs have that, appeal, treat the on sion is ’’ by surprise,’ Maj. Op. (quot- ... at 1537 summary involving grant as one matter 12), ing Advisory to Rule with Committee note regardless judgment, of the characterization importance respect of the act of state disposition of the mat- of its the District Court ter, say majority now to doctrine. For extra-pleading may proceed to consider state here would of the act of consideration summary determining whether materials judgment" "depriving] constitute a ”[r]ush[ ] have, appropriate. there- judgment Id. I was meaningful opportunity plaintiff whole," fore, Gager, as a record ”[t]he canvassed case," verges Maj. Op. on the present its determining no supra, 300 F.2d at fundamentally, More for reasons whimsical. exists as to the genuine of material fact issue imagine I can no discussed infra doctrine to this applicability the act of state plain- development” of this case "factual case, District Court’s dismissal and that the occupa- physical tiffs which could transform be affirmed. should land, and the statements tion of the Op. Maj. at 1536- position, majority’s formally government’s intention Honduran expropriate case procedural posture of the land, something less than into is, act of state doctrine precludes invocation of the majority’s refusal to That an act of state. is, view, herring. my This merely a classic red allows case affirm dismissal of this plaintiffs bemoaning majority begins argument go futile at- forward with their by any not raised tempts "was discredit the the fact that the doctrine to minimize and otherwise pivotal cre- government’s court" role in the parties the district before Honduran claiming be visited ation of the RMTC. unfairness would Castro, Appen- goal Declaration of Nestor Joint Ion” with of “the improve- overall (J.A.) ment of the Honduran dix Armed Forces and training elements, the technical of military daily during past Almost three national as both well as natives of friendly weeks, I, my family and other workers countries.” As a result of the need for (Green American Be- seen soldiers “the technical services of rets), and Salvadoran Honduran sol- operation instructors” in the of the installa- Taya Crique, diers enter the section of tion, *62 Congress the National “authorize[d] that is located on the other side of the the admission military of [into Honduras] highway, right my across from house. students, instructors and coming from sizes, They groups enter in of various friendly Assembly’s countries.” The reso- up sometimes of to 70 or 100 soldiers. plainly lution unmistakably thus and indi- Reyes, of J.A. 94. Declaration Cesar extant; cates that the RMTC is I asked United Hondu- by RMTC was established not mutinous Military charge ran in Officials troops by Republic Honduras”; but “the Regional Military Training Center to carrying and that the Center is out func- ____ my Escort workers into the fields indisputably tions that are sovereign in na- Supplemental Third Declaration of Temisto- training improvement ture —the of the Arellano, (empha- Ramirez de 116 cles J.A. Honduran Armed Forces and those of oth- added). sis friendly er countries. Now it is true that There is no contention that these Hondu- speak this Resolution does not lan- troops acting ran ultra ma- vires or guage of lawyers real estate and property rauding plaintiffs’ onto land without sanc- surveyors. No metes and bounds are iden- responsible tion from Honduran officials. flight tified. In a fancy, might utter engage speculation But we need not in idle argued dotting of “i’s” and presence as to whether the of Honduran crossing of “t’s” reminiscent of old-fash- troops part on this of Honduran soil is an pleading ioned code requires us to consider sovereign. act of the For the Government possibility theoretical that the Center spoken clearly in Honduras has this re- of which complain is somehow at spect highest at the levels of its Executive wrong location—that the Honduran branches, Legislative as reflected in government’s sanctioning official of the two official documents. Center does not indisputably run to the appellants’ land. The first is a decree of the Honduran 23, Congress, adopted National on June surely But extraordinary require- decree, reprinted Appellees’ 1983. This fully satisfied, ment is even to the Doubt- a-3, translation), (English Brief at a-1 ing Thomases copy seized of the Republic states that “the of Honduras Rules, did by Federal the second official docu- Regional establish Center for government. ment of the Honduran That training, jurisdiction located in the of the document is a president decree of the Municipality Trujillo, Department Honduras, 4, of Co- issued November 1983.3 Re- 2436, (1983); evidencing 960, notice of "[J]udicial a document L.Ed.2d 1321 77 103 S.Ct. procedure act of state” is a sanctioned State Fair Texas v. U.S. Consumer Product Commission, 1324, Safety (5th F.2d 650 1328 Foreign Restatement oe (Revised) Relations Law Cir.), moot, 1026, ("Form g proof vacated as 428 comment § state”) (Tent. of an act of 560, (1981); Carleson, 4, Bryant 1983). v. No. Draft It is clear that cert, (9th Cir.), denied, 444 F.2d 357 may judicial 404 this court take notice for the first U.S. 30 L.Ed.2d govern- time of the contents of the Honduran documents, ment as U.S. translated De- Under the rule that a court consider partment Wright general public of State. See 21 C. & disposing K. Gra- "matters of record” in ham, dismiss, judicial § of a motion to notice of this Federal Practice and Procedure (1977) ("The course, appellate may, proper my analysis document is even if of the motion.”). case, judicial procedural posture supra take cord, noticе on own Ac- its of this note Warden, Prisons, Penitentiary, rejected. Phillips Green v. v. Bureau cert, (7th (D.C.Cir.1979). Cir.), denied, F.2d See also District c-2, Appellees’ plainly Brief at c-5 The acts of state evident printed in here are translation). “primeval grounded This decree its (English interest” of a sovereign formally expropria- disputes state to all terms commenced “resolv[e] land, right plaintiffs’ identified metes over use or to use of real tion of to eliminate doubt whatev- within its own domain.” Asociacion and bounds de er, States, [Regional Military Train- “on which the Reclamantes United Mexican (D.C.Cir.1984). ing Surely was established and is now 735 F.2d Center] occupation explains sovereign The decree no un- of land operating.” territory inter- certain terms the Honduran national within its own facility: military purposes satisfy in and control over that should the most est skeptic falling ardent within the ambit Regional Military The above-mentioned act of the of state doctrine. activity Training ... an Center Honduras, performs Armed Forces of however, majority, “[interpret- after obvious, important, very and direct light ing the resolutions providing security national function of say set of facts” concludes that it cannot State, purpose as its for the inasmuch qualification *63 “without that the Honduran duty of the Armed Forces perform to government has exercised an act of state Republic’s integ- territorial defend the to Maj.Op. at 1534. relief.” which could bar sovereignty in order to maintain rity and key majority’s devaluation of peace. apparently these documents is that the offi- cial actions to date of the Honduran documents, put These official it as government completed do not amount to a possible, evidence formal acts gently as expropriation passage of or other of title to which, taken the Honduran disputed property. Id. at alone, standing constitute an act of state.4 1535-1536. Thus, plaintiffs’ basis facts more, Legisla- “[o]n What is if official acts of and the two resolutions submitted to this powers of Honduras are tive and Executive court,” majority physical occupa- blithely ignored, to be say expropri- has plaintiffs’ property of also constitutes cannot Honduras tion presented here.5 or an act of state on the facts ated otherwise asserted claim of Indus., (D.D. Kirby Moxley, F.Supp. v. 471 779 in United States law. See Forest Columbia — States, —, —, C.1979). Department The State translation of Inc. v. United U.S. 104 2187, 2191, (1984): president merits S.Ct. the decree of the of Honduras public capable acquiring of record. United States is of treatment as matter [T]he summarily, by privately physical- owned land Cuba, London, Dunhill Inc. ly entering possession ousting Alfred into 1854, 1861, 48 L.Ed.2d case, right owner. In such a the owner has a (1976), specifically men- bring an "inverse suit condemnation" "statute[s], decree[s], order[s], or resolu- tioned recover the value of the land on the date of sovereign establishing of a an act of tion[s]” the intrusion the Government. (In Dunhill, counsel for Cuba failed to state. omitted). (Citations repudi- any had such evidence that "Cuba offer surely seriously It cannot be maintained that general obligations its in or class there- ated disputes Mr. Ramirez the official involvement sovereign it had as a matter deter- of or governmental authorities. In ad- of Honduran Id.) the contested sums. mined to confiscate" previously dition to the declarations discussed Accord, supra note text, Restatement (Revised), candidly appellants admitted such in the ("Act defined"). Reporters’ of state Note 3 § supplemental in their Honduran involvement brief filed in this court on October supra § note 5. See Restatement say appellants (Revised), is what themselves on the Here (act "possibly [ap- g state comment doctrine subject: occupation plicable] physical acts such as currently oper- in involved Defendants ... applica- the state's armed forces an estate ating expanding the RMTC in collabora- occupation policy"). in this state tion of Forces. tion with the Honduran Armed case, conjunction with the commencement Banc, Appen- Reprinted Appellants’ En Brief clearly expropriation proceedings, rises formal B, added). (emphasis See also id. at dix at 4 sovereign act. to the level of a "plaintiffs’ RMTC is n. 2: view [is] States, activity primarily of the United not governmental “taking” prior without for A added.) (Emphasis (or analogue compensation) Honduras." has a clear malities analysis plaintiffs’ property. proper A. under the act of state ownership to the doc- the Honduran trine. determination of whether matter, has government, as a factual act- nothing That there is talismanic about plaintiffs’ property must take the ed to procedures employed by formal or informal by the dis- made in the first instance sovereign government property to seize on the basis of evidence sub- trict court within its boundaries is made clear parties. Dismissal mitted “taking” definition of set forth in the Re- ground that complaint on the Foreign (Second) statement Relations defense bars relief can- the act of state (1965): Law the record at this time. justified not be Conduct attributable to a state that is (footnote (emphasis added) to, does,
Id. at 1536
effectively deprive
omit-
intended
ted).
substantially
an alien of
all the benefit of
property,
his
a tak-
interest
constitutes
analysis,
respect,
This
with all
misses
ing
property,
meaning
within
me,
majority,
mark. The
it seems to
§
[of
(Second),
Restatement
conveniently
concept
confused
“wrongful” takings
which defines
of al-
ex-
“taking”
property
with the formal
property],
though
ien
even
the state does
compensate
propriation procedures used to
deprive
legal
him his entire
in-
to effect a formal
owner and
property.
terest in the
of title to the state. But that will
transfer
§
added).6
(emphasis
Id.
single
scrap
not do. Not a
fact
beyond
alleged
in the
information
Applying the common-sense definition of
complaint
supporting
plaintiffs’ own
“taking”
developed
which has
in interna-
law,
declarations and those contained
abundantly
plain-
tional
clear that
*64
governmental
facts,
decrees is neces-
Honduran
alleged
tiffs have
which we must
by
sary
“taking”
the fact of a
accept
stage
litiga-
to establish
as true at this
of the
ques-
tion,
government.
the Honduran
It is the
taking
prop-
which describe a
of their
occurred,
taking
erty.
equally
taking
tion whether a
has
rather
clear
It is
that this
process
expropriation
than whether the
has was an act of state
the Honduran
completed,
government.7
which is relevant
to a
been
assets,
eventually
6. Tentative Draft No. 3 of the Restatement
which
led to the
(Re-
(1982) similarly
City
Court’s decision in First
Bank
Foreign
National
v.
of
Relations
Law
vised)
Cuba,
759,
adopts
analysis
"takings”
a
of alien
functional
Banco Nacional de
property,
focusing
1808,
(1972),
rather than
on the formali-
compen-
7. The case law makes clear that a Dunhill, supra, to the decision in was described including "wrongful taking,” property, consti- language directly the district court rele- Indeed, development state. tutes an act of vant to the case at bar: present Sabbatino of the doctrine from to [seizures], practical effect, were com- The day largely litigation the result of over been plete The owners were ousted confiscations. of alien Cuban nationalizations properties their consent from all and without compensation paid. was ever which no any participation excluded from in the busi- con- nationalization decree at issue in Sabbatino rights receipts profits Their compensation nesses. provisions were tained compensation "illusory” and no was were eliminated as described the Second Circuit provided. travesty." Banco Na- and “little more than a Faber, Inc., Sabbatino, Gregg, Coe & v. de cional (2d Cir.1962). Cuba Menendez (S.D.N.Y.1972). banking F.Supp. The seizure of point, Ap- the Armed Forces the first reasonable Honduras.” As to added). pellees’ (emphasis Brief at c-7 plaintiffs’ complaint is that reading of taking. gravamen of alleges a It is hard conceive of another manner that the United defend- complaint is government the Honduran in which could their “deprive[d] plaintiffs of clearly opera- have that the ants have more asserted sovereign property.” of the RMTC constitutes a enjoy and their tion right use government, or indicated its act of H10, I of the J.A. 8. Count Complaint importance estimation RMTC’s “[sjeizure, relief from the complaint seeks I sovereign nation’s interests. am [plain- [deprivation of and [destruction simply at a loss understand how [e]njoyment [property,” tiffs’ [u]se properly these majority, with documents similarly to the al- speaks II and Count them, can conclude that before “[dismissal wrongful “deprivation] ... of legedly plaintiffs’ complaint ... cannot property.” enjoyment of use and [the] time.” justified on record at this then, This, J.A. 10-11. Complaint UH at 1536. Maj.Op. in taking. sounds quite plainly to say It is no answer have taking foreign property has Once only the named United States officials as course, becomes, alleged, issue been defendants, brought and thus have not and, taking in if fact occurred whether litigation. into Honduran actions the line of so, entity taking. In this effected the what reading complaint Such a would re- case, majority inquiry skirts ignore inescapable court to quire the exclusively on whether a focusing the issue government inference Honduran proceeding has been expropriation formal must, minimum, sovereign, at a in formalism completed. But this exercise acquiesced plaintiffs’ prop- in the taking of In its “ex- erty. haste to blend But we are to the inexo- is unwarranted. not limited plaintiffs’ complaint inferences from “taking,” majority rable propriation” with declarations, for have the two de- we governmental the two dismisses Honduran to es- crees of Honduran Maj.Op. “pieces paper,” mere decrees as in- tablish official active Honduran ignores passage the critical operation volvement creation and decree, reprint- presidential the Honduran the RMTC. c-2, (English Brief Appellees’ c-5 ed in translation), including unequivocal *65 the Regardless of extent of United the RMTC,8the as- activity participation in the that the RMTC is “an States statement propo- illegal by majority violations of civil lib- cited the for the searches other 8. The cases officials, foreign acting requests by allowed to the that the United States not be erties sition improper explaining collabora- doctrine to shield Before use the of United States officials. foreign governments, Maj. Op. at 1542- inapplicable tion with why the doctrine seems to me 183-85, action, dis- do relevant nn. not contain present I the decisions the note and are in of the act of state doctrine represent cussions by majority the relied on the do not distinguishable grounds. any on several "joint event breaking ground ven- new in the directly present majority applicable by which to the cases cited the ture” doctrine The improper by States offi- acts case. addressed foreign noteworthy conjunction Dem- offi- It is also that neither Berlin abroad in cials Rumsfeld, any analysis of v. ocratic Club nor Hensel contain are Berlin Democratic Club cials (D.D.C.1976), me F.Supp. States act of state This seems to and United the doctrine. Cir.1983). Hensel, (1st rele- with the factual situations F.2d 18 In consistent different by typical “joint presented elec- the venture” case —an part, involved vant Berlin Democratic Club illegal infringement lib- or other of civil citizens search United States tronic surveillance agents seizure of Germany by German the facts of the Honduran of the West erties —and West place, case plaintiffs’ ranch. this government; search of a the first Hensel involved the by policemen. clearly involves relations considerations marijuana-laden Canadian boat important did vastly than foreign agents both cases more dimension The actions of Secondly, majority. Hon- the cases cited with actions of United were intertwined borders, if, "joint land even within its agents so-called duras’ seizure to the extent argues, beneficially majority owned is implicated. This doc- as the it was venture” doctrine citizen, specifically challenge an act past an American is trine has been invoked in president sertion government Honduras’ as to Hon- of an subject allied nation so RMTC, duran control of the and the com- “manipulation” to U.S. incapable as to be expropriation mencement formal pro- independent sovereign worthy acts ceedings, beyond establish for me cavil that deference under the act of state doctrine. Honduran acts of state have resulted in the The unavoidable tenor argument of such an taking disputed property, suggested by appellants’ and that reference to the position United States courts are in no to impropriety of “manipulating U.S. officials adjudicate propriety taking, abroad,” of this Appellants’ officials Reply majority’s discussion of the fact that at Brief at and their reference to an article stage expropriation process this com- in the quoted New York Times pensation yet paid has not been or title unnamed Honduran official’s criticism of “ is, word, passed in a irrelevant to the ‘great’ pressure deter- from American officials” mination of whether an act of state has constructing n. 2. RMTC. Id. at 8 Thus, occurred. majority’s speculation, Maj.Op. at 4542, that entire suit could [t]he conceiva majority Because the does not view these be resolved with no reference to Hon W duran justifying uneontroverted facts as invoca- governmental involvement” is no doctrine, tion purports act of state thinking, more than wishful weight to “take no view on the or sub- plaintiffs’ stance of the factual case as it Judicial consideration of argu these might developed.” Maj.Op. at obviously ments would threaten embarrass Nonetheless, majority, committed to ment to the United States and its allies in a the idea that the current record will not strategically important volatile and area of support invocation of the hemisphere. act of state doc- danger This compound trine, inexorably is drawn position ed irony majority applies an that there is a need inquiry for further into unprecedentedly reading narrow of the act the “extent” participation of Honduran which, of state doctrine—a doctrine as not taking above, occupation continued grew up ed around the nationaliza Thus, majority land. states tion of U.S. assets unfriendly foreign troops that Honduran may not governments bring now be question into —to all, “participating training activity sovereignty friendly foreign state. let alone to such an Surely extent that the separation powers Hon- concerns duran informing could be said to have the doctrine counsel at least (emphasis added), seized the equal ranch." Id. consideration of friendly the acts of nations, foreign policy where the aims of Assuming majority does not are, put if suggest wish to the United States anything^ greater by judicial risk meddling in interna simply Honduras, invaded its invitation to tional affairs. parties plumb timing of and responsibilities relative for the majority establish goes lengths, to some ment flagrant of the RMTC is a suggest affront to Maj.Op. at that “the *66 the sovereignty of Attempts by Amendment, Honduras. Hickenlooper accepted Second parties respect the to find law, “facts” with to tenets of international treaties be- would, effect, question these “issues” in Honduras, tween the United States and autonomy Honduran specter legal and raise the applica- other obstacles” could “bar of a declaring United States court the tion of the act of state doctrine in this law, words, permitted provided under international more. In other the fact that this action compensation procedures reasonable are fol- rights foreign country, deals with to land in a Similarly, lowed. if this seizure had been com- by country's government, seized thаt rather than by agents mitted within the United States of the protection impli- with the of core civil liberties clear, government, abstracting United States it is by majority, cated in the cases cited renders standing by questions ably
from the discussed "joint analysis urged by majori- venture” Scalia, Judge that would be entitled to ty singularly inapplicable, action, bring but inverse condemnation no Id. at 1543. These speculations propriety ease.” recog- effect whatever nizing the act of state completely unfounded. doctrine this case. to me seem Turning Hickenlooper to the Second perceived “legal obstacle” ad- The first Amendment, only courts which have by majority is the so-called dressed question have addressed the decided that it This Hickenlooper Amendment. stat- First applies only party to cases in which a as- Indeed, the wholly inapposite here. ute is “specific property located in the serts that argument majority in the inclusion of this target United States” was intended nothing astonishing. opinion is short of foreign a confiscation state violation reaching every out for conceivable of international law. Restatement (Re- the act of application obstacle to the § supra, doctrine, interpretation 429. This majority opines that an vised), state of the statute was first advanced “expropriation” Honduran authorities Banco Nacional de Cuba Second Circuit in compensation legal in a will result without Bank, City v. First National requirement under the strictures Cir.1970). (2d subsequent 399-402 Hickenlooper Amendment Su- First First National preme Court decision immediately cut off as- President Bank, City supra, to Honduras. In the words of one sistance (1972), reversed the great yesteryear, prop- cases of this appellate grounds; court on other none of utterly extravagant “too to be osition opinions the four addressed the construc- surely seriously It cannot maintained.” Hickenlooper tion of the Amendment. As argued a cut-off of financial assistance the Restatement notes: (Revised) where, here, president required sovereign country closely a allied to the disagreement by Since in a and sensitive Appeals with the United States Court Court of on inter- difficult solemnly signed pretation [Hickenlooper] region the world has a [Amend- providing ment would have made all of the other expressly decree that a formal irrelevant, points proce- it seems that expropriation pursuant Su- formal preme agreed Court with the provided by go law is to dures Honduran Appeals’ interpretation ... scarcely This is retal- Cuba-like forward. property directly expropria- related to an iatory seizure of American assets. And in the United States tion and can surely majority sug- does not mean to found bring Hickenlooper the second Amend- gest splendid in the isolation of the play, by way ment into whether of claim perceive Courthouse we or counterclaim. south of our borders a situation which require § financial cut-off of U.S. Id. Reporters’ (emphasis Note add- litigation unless we allow ed). assistance recently The Second Circuit has had suggest proposi- proceed. Even to such interpreta- occasion to stand its earlier eloquently single-minded tion manifests a Hickenlooper tion of the Second Amend- willingness to tread with ment. Banco de abandon Nacional Cuba Chase Bank, supra, delicate areas of relations.9 Manhattan most F.2d at majori- Finally, recognize adopted one must n. 10. The Fifth Circuit this read- Compañía de de Gas ty’s analysis, adopted, ing if would have no of the statute solemnly parade majority govern- also undertaken the Honduran In its horribles authority ap- the President’s to waive undisputed overlooks plication at the same ment and time the terms Hickenlooper of the First Amend- government’s that decree evidence that under- 2370(e)(1) sanctions. See 22 U.S.C. § ment's taking appropriate steps compensa- to effect taking steps It is of such aimed at tion. majority arguing is likewise off base in *67 speedy compensation required that is under the expropriation decree issued Hondu- express Hickenlooper terms of the First Am- the issue ras’ Chief Executive is irrelevant to 2370(e)(1). emdment. 22 U.S.C. See also the § legality Hickenlooper vel non under the First p. majority discussion 1512. The errs in infra contrary, very act of Amendment. To the suggesting otherwise. issuing the decree an act of state evidences Laredo, Entex, Nuevo S.A. v. recognize should sovereign these acts denied, (5th Cir.1982), cert. and dismiss this lawsuit. great tragedy The majority’s opin- disputed property Since this case is ion is that it takes no note of the very real property quite permanently real situated dangers foreign policy posed to Ú.S. by this Honduras, Hickenlooper Second court’s decision. I respectfully but em- application Amendment can have no here. phatically dissent. majority’s invocation of the so-called Sabbatino, “treaty exception” to as well as possibility of a violation of international
law, single in effect to a reduces concern. requirements
This is because the Treaty Friendship between the Honduras,
United States and and the stan- law,
dards under international are substan- tially the same. treaty, Under the In Hondu- re Hamilton JORDAN. required ras is “just compensa- to render No. 79-7. upon expropriation tion” property Appeals, States Court of nationals; owned U.S. under recog- District of Columbia Circuit. principles law, nized of international “an expropriated alien whose is en- Oct. ‘prompt, adequate titled to and effective’ Bank, compensation.” Chase Manhattan
supra,
(discussing
gin Doctrine”). of the so-called “Hull See §
also Restatement supra, (Second),
Reporters’ Note 1. light of the uncontroverted fact that government
the Honduran has taken the steps, law,
first under Honduran toward
expropriation compensation of and for the
disputed property, there is at this time no argument
basis that the Honduran
government is in violation either of its trea-
ty obligations accepted tenets of the
international expropriation. law of I do not
accept the majority’s reading of this dis-
sent as precluding legal future action should compensation paid
them the Honduran run’ government’s
afoul of that treaty obliga-
tions. deciding Without the merits of this
hypothetical case, quite easy I find it say yet
that this unripe claim would not be
precluded if our declaratory decision as to injunctive relief were to come out plaintiffs. majority’s imagined barriers to the Purpose Division for Appointing recognition of the Honduran acts of state Independent Counsel Ethics in Government are thus without court can substance. This Act of 1978. notes against tional or local law the actions of local officials. Judge adopts Scalia’s dissent the defendants’ theory repeated evasive is the as- The second argument supports two evasive theo- throughout the dissent that this whole sertion designed jurisdiction ries to avoid United States affair, training operation is a Honduran argument is the refuted in at all costs. first complaint above, to the Honduran should be made text that because Ramirez and his government, citizen Ra- and that United States solely corporations two owned Puerto Rican rights mirez’s must be determined Honduran wholly have chosen to use corporate owned Honduran by the law. This is answered FACTS—undenia- ownership opera- vehicles in the Honduras, alleged by plaintiffs after Rule enterprise ble as tion of the Ramirez 12(b)(6) disposition by the trial court—that American Ramirez as a sole owner then citizen wrongful plaintiffs alleged relegated no acts Hon- stockholder is to the law Honduras alleged rights duran under law but have what he can assert in a officials to determine allegedly wrongful car- acts United States officials viola- United States Court for violations Constitution, officials, military and that solely by tion of the United States ried out American plaintiffs no Honduran officials but have named and civilian. We are familiar with the assertion United States officials within party may properly required to assert have named three that a rights of this courthouse as defend- in state a five-mile radius its United States constitutional courts, plaintiffs’ the United ants. The case rather than state courts federal since ed, example, V. Relief incur- Stated Claims sions onto the land were conduct- complaint attacked on Plaintiffs’ is also military, ed the Honduran relief for the stated claims ground principally project, RMTC is a Honduran in the district court. The is not available “essentially dispute and that this is be- plain- that even if the defendants contend tween- the and the Honduran prevailed on the merits of their consti- tiffs government.”80 We decline to dismiss the claims, the district court would tutional plaintiffs’ complaint on the basis deliber-
Notes
Notes
contrast, what
dissent
advocates
an
taking
par-
warn that courts must “avoid
a
appellate
12(b)(6)
conversion
order
surprise
ty by
through the conversion of
(the
doctrine)
question
on one
political
issue
[12(b)(6)
motion
motion into a
for sum-
]
ruling
into a
entirely
de
on an
novo
new
161
end,
mary judgment.”
To this
the rule
issue
by
parties
never
raised
parties
requires
give
courts to
“all
rea-
[a]
(the
trial
doctrine).
court
act
state
Rule
all
opportunity
present
sonable
material
12(b)
expressly
does not
such a
authorize
pertinent
made
to such
motion.”162
conversion;
contemplates
that the issue
parties
When the
have not even been noti-
pursuant
decided
to Rule 56 will be the
fied that an issue will be considered
same one
dispo-
submitted to the court for
only point
they
may
court at
when
12(b)(6).
sition under Rule
is no
There
factual
trial
submit
affidavits —the
level—
that,
language in
suggesting
the rule
once
every
they
then there is
likelihood
12(b)(6)
a trial
court
have ruled on a
opportunity
have been denied the full
motion on
rejecting nonp-
one issue without
present
applicable
facts. Unless the
leading materials,
appellate
an
court
free
appellate
new issue uncovered
court
entirely
to consider other
unrelated factual
clearly
was one
was
framed
legal
and
necessary
issues
find the
proceedings
parties
facts
below so that the
had a
guise
reviewing
under the
a motion
summary judgment.
all
legitimate chance to submit
relevant
argue
implications,
materials
their
it is
unjust
clearly
appellate
for the
court
reviewing
Ordinarily,
motions
summary judgment
direct the issuance of
appellate
court
summary judgment,
sponte
raised sua
ap-
on a new issue
presented
considers
only those matters
peal.163
court,
disregarding
district
additional
Driver,
(D.C.Cir.
movant
1970);
must file
statement of the material
v.
notes arti- suggesting cles the Honduran resisted the pursuant facility effort to locate The district court dismissed this case in Hon-