KANG JOO KWAN, Individually and as Representative of a Class; SE JEIK PARK, on behalf of members of the National Assembly of the Republic of Korea; REPUBLIC OF KOREA, A Sovereign State
Appellants v. UNITED STATES OF AMERICA
Appellee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRIEF FOR THE APPELLEE
Of Counsel: DAVID W. OGDEN
Assistant Attorney General
RONALD J. BETTAUER
Deputy Legal Adviser MICHAEL R. STILES
U.S. Department of State United States Attorney
2201 C Street, N.W.
Washington, D.C. 20520 MARK B. STERN
(202) 514-5089
MICHAEL S.
(202) 514-4053
Attorneys, Appellate Staff
Civil Division
U.S. Department of Justice
601 D Street, N.W., Room 9530
Washington, D.C. 20530-0001
________________________________________________________________
________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________________
No. 00-1163
_____________________
KANG JOO KWAN, Individually and as Representative of a Class;
SE JEIK PARK, on behalf of members of the National Assembly of
the Republic of Korea; REPUBLIC OF KOREA, A Sovereign State
Appellants
v.
UNITED STATES OF AMERICA
Appellee
_____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
_____________________
BRIEF FOR THE APPELLEE
_____________________
STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION
Plaintiffs invoked the jurisdiction of the district court under 28 U.S.C. §§ 1331, 1332(a)(4), 1346(a), and 1361. See
Joint Appendix (“J.A.”) 70, ¶ 5 (Amended Complaint). The district court entered a final order on February 14, 2000. Plaintiffs filed a notice of appeal on March 2, 2000, within the 60-day period specified in Fed. R. App. P. 4(a)(1)(B). See J.A. 27 (Docket Entry 30). As explained below (at pages 19-20), the district court lacked jurisdiction over plaintiffs’ claims for damages under the Little Tucker Act, 28 U.S.C. § 1346(a)(2), because that statute does not encompass claims under international agreements. This Court accordingly has jurisdiction over this appeal under 28 U.S.C. § 1291. If, however, this Court were to conclude that the district court had jurisdiction over plaintiffs’ claims for damages under the Little Tucker Act, then the United States Court of Appeals for the Federal Circuit would have exclusive jurisdiction to review the judgment below. See 28 U.S.C. § 1295(a)(2); page 20 & n.9, infra.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
- Whether the plaintiffs have a private right of action to enforce an international agreement between the governments of the United States and the Republic of Korea (“ROK”) that addresses the payment of certain “gratuities” to the ROK for military casualties suffered during the Vietnam conflict.
- Whether this lawsuit presents a nonjusticiable political question.
- Whether the United States has waived its sovereign immu-nity from plaintiffs’ claims for damages.
STATEMENT OF THE CASE
Plaintiffs in this suit seek to enforce an international agreement for military and economic assistance between the governments of the United States and the Republic of Korea. That agreement is embodied in a March 1966 letter from United States Ambassador Winthrop G. Brown to the ROK’s Minister of Foreign Affairs (the “Brown Commitment”). The letter was issued in response to the ROK’s decision to deploy additional combat troops in the Republic of South Vietnam and states that the United States is prepared to furnish certain military and economic assistance to the ROK, including the payment of enhanced “gratuities” for ROK casualties suffered in Vietnam. J.A. 35, 79.
The plaintiffs in this case are two ROK nationals — a veteran of the Vietnam conflict and a member of the Korean National Assembly. They seek declaratory, injunctive, and monetary relief on behalf of themselves as well as (1) a class of ROK veterans of the Vietnam conflict and (2) the members of the Korean National Assembly. Although the amended complaint also listed the ROK as a plaintiff, the ROK never authorized its participation in the case (see J.A. 14-15), and plaintiffs concede (Pl. Br. 4 n.1) that the ROK is not a party to this appeal.
The district court granted a motion to dismiss filed by the United States. The court held that the plaintiffs lacked standing because, among other things, the Brown Commitment does not confer any right on the individual plaintiffs to enforce its provisions. See J.A. 9. The court further held that plaintiffs’ suit presents a nonjusticiable political question. J.A. 17-21.
STATEMENT OF FACTS
-
The Brown Commitment.
The “Brown Commitment” is a March 4, 1966 letter from Winthrop G. Brown — the United States Ambassador to the ROK — to the ROK’s Minister of Foreign Affairs. See J.A. 34-37, 78-81.The letter, labeled “SECRET,” was sent after the ROK’s Minister of Foreign Affairs advised Ambassador Brown that “the Government of the Republic of Korea * * * received a request from the Government of the Republic of Vietnam for deployment to the Republic of Vietnam of additional Korean combat troops” and that the government of the ROK “decided to provide the requested assistance to the Government of the Republic of Vietnam * * *.” J.A. 34, 78.
The Brown Commitment explained that “in view of our common interest in the security and progress of the Republic of Korea, the United States is prepared to take the following measures to see to it that the integrity of Korea’s defense is maintained and strengthened and that Korea’s economic progress is further promoted.” J.A. 34, 78. The “measures” that the United States was “prepared to take” constituted various forms of military and economic assistance. J.A. 34-37, 78-81. Included among the military assistance listed in the Brown Commitment was the provision of “death and disability gratuities resulting from casualties in Vietnam at double the rates recently agreed to by the Joint United States-Republic of Korea Military Committee.” J.A. 35, 79.
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The Present Litigation.
This is an action against the United States for declaratory, injunctive, and monetary relief. Plaintiff Kang Joo Kwan, a private citizen of the Republic of Korea (“ROK”), seeks relief on behalf of himself and a class of individuals who served in the armed forces of the Republic of Korea and assisted U.S. troops in the Vietnam conflict from 1963 to 1975. J.A. 69, ¶ 2. Plaintiff Se Jeik Park, a member of the Korean National Assembly, seeks relief “as a member of and on behalf of 270 members of the National Assembly of the Republic of Korea.” J.A. 70, ¶ 3.
Kwan alleges that he suffered injuries while serving in South Vietnam and that he, and all others similarly situated, were “intended third party beneficiaries” of the Brown Commitment and other unspecified “understandings and agreements.” J.A. 71-72, ¶¶ 12, 14 (Amended Complaint). Kwan further alleges that the United States “continues to refuse to abide by the terms of” the Brown Commitment and that the United States is liable to him as a result. J.A. 73, ¶ 18. Park alleges that the United States government is similarly liable to him, on behalf of the Republic of Korea, for failing to abide by the terms of the Brown Commitment. J.A. 73, ¶ 19. Plaintiffs requested a declaratory judgment, an order compelling the United States to perform its duties under the Brown Commitment and other unspecified “understandings and agreements,” and a judgment “in an amount up to and including $10,000” against the United States in favor of Kwan and each class member under the Brown Commitment. J.A. 75-76.
The district court dismissed the plaintiffs’ complaint. See J.A. 2. The court held that plaintiffs Kwan and Park lacked standing to pursue relief under the Brown Commitment because the Commitment confers no private right of action to enforce that agreement. See J.A. 9. The court further concluded that the Republic of Korea had not formally protested any action by the United States under the Brown Commitment (see J.A. 11-14) and that the responsible officials of ROK government did not authorize the filing of this suit in the name of the ROK (see J.A. 14-16). The court also held that plaintiffs’ suit presented a nonjusticiable political question. J.A. 17-21.
STATEMENT OF RELATED CASES AND PROCEEDINGS
This case has not been before this Court previously. Plaintiff Kang Joo Kwan, on behalf of himself and a class, filed a similar lawsuit against the United States in November 1997. Kang Joo Kwan v. United States, No. 97-CV-7112 (E.D. Pa.). Kwan voluntarily dismissed that lawsuit in June 1998. See J.A. 4. Counsel for the United States are unaware of any other related cases.
SUMMARY OF ARGUMENT
This suit seeks judicial enforcement of the Brown Commitment, a sensitive international agreement of the United States that was secretly negotiated by high-ranking officials of the United States and the Republic of Korea during the Vietnam conflict. The district court correctly dismissed this suit.
- The Brown Commitment confers no private rights of action. In recognition of the ROK’s decision to deploy additional combat troops to Vietnam in 1966, the Brown Commitment expressed the willingness of the United States government to provide specified forms of military and economic assistance to the ROK government. The Commitment includes no provision that even remotely suggests an intent to confer private rights of action in favor of ROK citizens against the United States. The stated purpose of the Commitment was to maintain and strengthen the ROK’s defense and promote ROK’s economic progress; the Commitment was secret at the time it was negotiated (and its very existence, therefore, was unknown to the purported third-party beneficiaries); and nothing in the Commitment provided for payments to be made directly to injured ROK service members.
It is presumed that treaties and other international agreements do not create private rights of action, and nothing in the text or purpose of the Brown Commitment overcomes that presumption. Indeed, the Commitment includes no provisions addressing the resolution of disputes between the governments of the United States and the ROK, let alone any provisions authorizing private rights of action by individual ROK citizens against the United States. The Executive Branch, which is entitled to great deference in interpreting international agreements, has concluded that the Commitment provides no private rights of action. The district court correctly reached the same conclusion.
- The district court also correctly held that this lawsuit is not justiciable. This case threatens to undermine the Executive Branch’s ability to conduct effective foreign policy. The courts have repeatedly recognized that they lack authority to determine that the United States or a foreign government has violated the terms of a treaty, or to order a remedy for any such violation. Plaintiffs seek to inject the judiciary into a matter that is properly the subject of diplomatic negotiation between the governments of the ROK and the United States. The district court properly declined plaintiffs’ invitation.
- Plaintiffs also have failed to identify any statute that waives the sovereign immunity of the United States from their claims for damages. The absence of such a waiver provides an alternative basis for dismissing those claims.
ARGUMENT
-
Standard of Review.
The district court’s grant of the government’s motion to dismiss this suit is subject to plenary review. See, e.g., United States v. Occidental Chemical Corp., 200 F.3d 143, 147 (3d Cir. 1999); Delaware Valley Citizens Council for Clean Air v. Davis, 932 F.2d 256, 264 (3d Cir. 1991).
-
The District Court Correctly Dismissed This Lawsuit.
-
Plaintiffs Have No Private Right Of Action To Enforce The Brown Commitment.
- Plaintiffs seek to enforce an international agreement through a private right of action against the United States. As this Court has recognized, “[b]ecause treaties are agreements between nations, individuals ordinarily may not challenge treaty interpretations in the absence of an express provision within the treaty or an action brought by a signatory nation.” United States ex rel. Saroop v. Garcia, 109 F.3d 165, 167 (3d Cir. 1997).[3] Indeed, it is well established that “[i]nternational treaties are not presumed to create rights that are privately enforceable.” Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 968 (4th Cir.), cert. denied, 506 U.S. 955 (1992); see United States v. Li, 206 F.3d 56, 60 (1st Cir. 2000) (en banc) (“treaties do not generally create rights that are privately enforceable in the federal courts”), petitions for cert. filed, No. 99-9768 (May 30, 2000) and No. 99-9770 (May 26, 2000); see also United States v. Diekelman, 92 U.S. 520, 524 (1875); Charlton v. Kelly, 229 U.S. 447, 474 (1913); Edye v. Robertson (Head Money Cases), 112 U.S. 580, 598 (1884); United States v. Davis, 767 F.2d 1025, 1030 (2d Cir. 1985) (“‘even where a treaty provides certain benefits for nationals of a particular state‑‑such as fishing rights‑‑it is traditionally held that “any rights arising from such provisions are, under international law, those of states and . . . individual rights are only derivative through the states.”‘” (citations omitted)); Canadian Transport Co. v. United States, 663 F.2d 1081, 1092 (D.C. Cir. 1980) (“the treaty must be interpreted in accord with the rule that treaty violations are normally to be redressed outside the courtroom”).
Thus, plaintiffs must demonstrate that the Brown Commitment confers on them a private right to enforce the Commitment against the United States. As the district court correctly recognized (J.A. 9), however, the Brown Commitment creates no private causes of action. The Brown Commitment formed part of a sensitive diplomatic dialogue between the United States and the government of the ROK during the heart of the Vietnam conflict; it was issued in response to the ROK’s decision to deploy additional combat troops to Vietnam. The Brown Commitment was intended to ensure that “the integrity of Korea’s defense is maintained and strengthened and that Korea’s economic progress is further promoted,” J.A. 78, not to confer private rights of action on individual ROK citizens.
As the district court recognized, “[n]othing in the Brown Commitment authorizes payment of benefits from the United States directly to individual Korean veterans.” J.A. 6; see J.A. 102, ¶ 19 (Declaration of James G. Hergen). Indeed, the text of the Brown Commitment simply lists various forms of government-to-government assistance that the United States was “prepared” to provide in recognition of the ROK government’s contributions to the conduct of the Vietnam conflict, including certain death and disability “gratuities.” J.A. 78-79. The United States accord-ingly has made payments under the Brown Commitment to the ROK government, not to individual ROK nationals. See J.A. 20.
In addition, the Brown Commitment was kept confidential at the time it was negotiated; each of its pages is marked “SECRET.” See J.A. 78-81. It strains credulity to suggest that the parties intended to secretly confer private causes of action on ROK military personnel without in any way informing the purported beneficiaries.
In short, the indication by the United States in a secret agreement that it was “prepared” to provide certain death and disability “gratuities” to the ROK government cannot reasonably be interpreted to establish an individual, judicially enforceable right to obtain compensation from the United States. Indeed, the Brown Commitment is absolutely silent regarding dispute resolution, even as between the United States and the Republic of Korea, let alone with respect to individual ROK citizens.
Even if the Brown Commitment could plausibly be interpreted to confer private rights of action (and it cannot for the reasons discussed above), the Executive Branch’s contrary interpretation of the agreement nonetheless would be entitled to great deference. See, e.g., El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999) (“Respect is ordinarily due the reasonable views of the Executive Branch concerning the meaning of an international treaty”); Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982) (“Although not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight”); Kolovrat v. Oregon, 366 U.S. 187, 194 (1961) (same); More v. Intelcom Support Services, Inc., 960 F.2d 466, 471-72 (5th Cir. 1992); Restatement (Third) of the Foreign Relations Law of the United States § 326 comment b (1987). The Executive Branch’s interpreta-tion of the Brown Commitment to foreclose private rights of action is manifestly reasonable and warrants judicial deference. 2. As the district court recognized (J.A. 9-11), plaintiffs’ claims are not rendered any more viable by labeling them as claims under a contract rather than an international agreement. Plaintiffs alleged in their complaint that the government had violated certain “understandings and agreements” between the governments of the United States and the ROK. See J.A. 72, ¶ 14; J.A. 73, ¶ 19. But the only specific agreement that plaintiffs have identified is the Brown Commitment, and that agreement includes no judicially enforceable promises to the plaintiffs.
In addition, although treaties and international agreements such as the Brown Commitment are often characterized as “contracts between independent nations,” they are to be interpreted in accordance with “‘the public law of nations'” Santovincenzo v. Egan, 284 U.S. 30, 40 (1931) (citation omitted), not domestic contract law. Indeed, the rights and remedies that exist for breaches of international agreements differ from those available under domestic law for breaches of commercial contracts. Special rules govern breaches of international agreements even where (unlike the agreement in this case) the underlying instrument creates a private right of action. See generally 28 U.S.C. § 1502 (establishing exception to jurisdiction of Court of Federal Claims for claims against the United States “growing out of or dependent upon any treaty entered into with foreign nations”); Restatement (Third) of the Foreign Relations Law of the United States §§ 902, 907 (1987).
- Perhaps recognizing the difficulties of pursuing a private cause of action against the United States, plaintiffs sought to name the Republic of Korea itself as a plaintiff in their amended complaint. But the ROK has never been a party to this case; plaintiffs have never obtained the requisite governmental approval to pursue this action in the name of the ROK. See J.A. 15-16. Indeed, in July 1999, the Korean Ministries of Foreign Affairs and Justice “officially confirmed” to the State Department that the Republic of Korea “is not a party to this lawsuit.” J.A. 102, ¶ 20 (Declaration of James G. Hergen); see J.A. 14. Thus, ROK was never a party to the proceedings below. And, as plaintiffs concede (Pl. Br. 4 n.1), the ROK is not a party to this appeal.
Plaintiffs contend (Pl. Br. 11) that the Republic of Korea “has made an official protest or objection on behalf of Mr. Kwan and those similarly situated,” relying on a diplomatic note from the Republic of Korea to the United States. See J.A. 82-83. As the district court correctly concluded (J.A. 12-13), however, the note is not an official protest. Indeed, “[f]ar from protesting any action by the United States, the [note] merely raises an issue for consideration between the two nations” — “whether the Brown Commitment contemplates payment for disability benefits as a result of injuries caused by Agent Orange.” J.A. 13. The note thus “brings an emergent situation to the attention of the State Department with a request that the two nations discuss how the situation should be resolved.” Ibid. The note does not protest any conduct of the United States.
In any event, even if the note constituted an official protest, it would not authorize plaintiffs to pursue this lawsuit. As explained above, the Brown Commitment creates no private right of action in favor of plaintiffs. Absent a cause of action, plaintiffs have no right to pursue relief against the United States under the Brown Commitment.
- In addition to lacking any cause of action under the Brown Commitment, plaintiff Park has alleged no cognizable injury in fact that could support standing. In order to satisfy the case-or-controversy requirement of Article III, a plaintiff must demonstrate “an invasion of a legally protected interest” that is “concrete and particularized” and “‘actual or imminent, not “conjectural” or “hypothetical.”‘” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted). Here, Park alleges no injury arising out of his own military service that would be compensable under the Brown Commitment; he appears to be suing solely in his capacity as a member of the Korean National Assembly. See J.A. 70, ¶ 3; J.A. 73, ¶ 19. But Park’s status as a legislator does not provide him with a legally cognizable interest in pursuing this lawsuit. Cf. Raines v. Byrd, 521 U.S. 811, 818-30 (1997) (holding that institutional injury alleged by Members of Congress in challenging validity of Line Item Veto Act was not sufficient to give rise to standing).
-
Plaintiffs’ Claims Are Not Justiciable.
The district court also correctly concluded that this suit presents a nonjusticiable political question. The political question doctrine is based on two key principles: the separation of powers among the three coordinate branches and the inherent limits of judicial competence. See, e.g., Baker v. Carr, 369 U.S. 186, 210 (1962). Although “not ‘every case or controversy which touches foreign relations lies beyond judicial cognizance,'” State of New Jersey v. United States, 91 F.3d 463, 469 (3d Cir. 1996) (quoting Baker v. Carr, 369 U.S. at 211), plaintiffs cannot properly inject the judiciary into this matter. To the extent that there is any dispute regarding the Brown Commitment, it is solely for the governments of the United States and the ROK to resolve.
As plaintiffs recognize, the government of the ROK has raised through diplomatic channels the issue of additional compensation under the Brown Commitment. See J.A. 73, ¶ 18 (Amended Compl.); J.A. 82-83. Under these circumstances, it would be improper for the judiciary to preempt the Executive Branch by imposing its on interpretation of the Brown Commitment on the United States. Indeed, “[c]ourts must take into account that international negotiations have their own distinctive time frames, and must be careful ‘to avoid a fixing of our government’s course’ by premature interposition.” Adams v. Vance, 570 F.2d 950, 954-55 (D.C. Cir. 1978) (citation omitted).
In any event, even after the Executive Branch renders its interpretation, plaintiffs’ claims would still not be justiciable. As the district court explained, “[t]he commitment by Ambassador Brown was made on behalf of the United States to the government of the Republic of Korea and not to the individual Korean veterans.” J.A. 20. And “[t]he structure of the agreement was that the Republic of Korea would pay the death or disability gratuity to its veterans and the United States would in turn make a payment to the Republic of Korea.” Ibid. Thus, whether additional compensation should be paid to ROK veterans “is a matter to be settled between the veterans and the Korean governmental agency or department which oversees such matters.” Ibid.
Moreover, “because in the past payments under the Brown Commitment were made directly to the Republic of Korea and not to the individual veterans, it is clear that issues between the two nations as to the amount of the payments was intended to be resolved by government to government negotiations.” J.A. 20. As the district court recognized, that is a matter for the Executive Branch to resolve pursuant to its authority to conduct foreign relations. See Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952); Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); DKT Memorial Fund Ltd. v. Agency for International Development, 887 F.2d 275, 291 (D.C. Cir. 1989) (area of “foreign affairs” is where “the Executive receives its greatest deference, and in which we must recognize the necessity for the nation to speak with a single voice”); Holmes v. Laird, 459 F.2d 1211, 1215 (D.C. Cir.), cert. denied, 409 U.S. 869 (1972).
Plaintiffs contend (Pl. Br. 16) that the Brown Commitment implicates “rights protected by a treaty” and that the case therefore is not subject to dismissal. As explained above, however, the Brown Commitment confers no judicially enforceable rights on the plaintiffs. And plaintiffs’ reliance (Pl. Br. 18-19) on the “national treatment” provisions of a Treaty of Friendship, Commerce, and Navigation between the United States and the Republic of Korea is entirely misplaced. Those provisions ensure solely that Korean nationals are accorded no less favorable treatment in the United States than our own citizens in like circumstances. See J.A. 136 (Treaty of Friendship, Commerce and Navigation, U.S.-ROK, Nov. 28, 1956, art. XXII, 8 U.S.T. 2217, 2232 (entered into force Nov. 7, 1957)). But those provisions do not create special causes of action or standing that would permit nationals of foreign states to pursue claims in U.S. courts that could not be pursued by U.S. nationals. Just like any other litigant in federal court, the plaintiffs in this case must demonstrate a cause of action and present a justiciable claim for relief.
Here, the Brown Commitment confers no private right of action, and plaintiffs’ claims are not justiciable in any event. Accordingly, this suit was properly dismissed.
- The United States Has Not Waived Its Sovereign Immunity From Plaintiffs’ Claims For Damages.
In addition to lacking a cause of action and presenting a nonjusticiable political question, plaintiffs also have failed to identify any statute that waives the sovereign immunity of the United States from their claims for damages under an international agreement. It is axiomatic that Congress must expressly waive the sovereign immunity of the United States before the federal government can be sued, and that such waivers are construed strictly in favor of the United States. See, e.g., Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 260-61 (1999); United States v. Mitchell, 463 U.S. 206, 212 (1983).
In the district court, plaintiffs (J.A. 58) invoked the Little Tucker Act, 28 U.S.C. § 1346(a)(2), which authorizes suit against the United States for claims of no more than $10,000 “founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort * * *.” As explained above, plaintiffs’ claims are not properly viewed as contract claims, and the Little Tucker Act does not unequivocally authorize suit against the United States for violations of an international agreement. Indeed, Congress has made clear that the Court of Federal Claims lacks jurisdiction under the Tucker Act for claims under treaties,[8] and there is no basis for interpreting the Little Tucker Act any differently. If, however, the Court were to conclude that the district court had jurisdiction under the Little Tucker Act, then exclusive jurisdiction over this appeal would lie in the Federal Circuit. See 28 U.S.C. § 1295(a)(2).
Plaintiffs (J.A. 58-59) also invoked the federal mandamus statute, 28 U.S.C. § 1361. But it is well established that the mandamus statute does not itself provide a waiver of sovereign immunity. See, e.g., In re Russell, 155 F.3d 1012, 1012 (8th Cir. 1998) (per curiam); see also Washington Legal Foundation v. United States Sentencing Commission, 89 F.3d 897, 901 (D.C. Cir. 1996) (collecting cases). And the statute applies to suits “in the nature of mandamus” against officers and employees of the United States, not suits for monetary relief against the United States itself. See 28 U.S.C. § 1361.
Finally, plaintiffs’ reliance (J.A. 59) on Bowen v. Massachusetts, 487 U.S. 879 (1988), in the proceedings below was misplaced. Bowen involved the waiver of sovereign immunity in the Administrative Procedure Act, 5 U.S.C. § 702, which applies only to
claims for relief “other than money damages.” The Court in Bowen determined that the term “money damages” in Section 702 refers to “a sum used as compensatory relief to substitute for a suffered loss, as opposed to a specific remedy that attempts to give the plaintiff the very thing to which he was entitled.” Department of the Army v. Blue Fox, Inc., 525 U.S. at 255 (citing Bowen, 487 U.S. at 895, 897, 900); see also Dia Navigation Co., Ltd. v. Pomeroy, 34 F.3d 1255, 1266-67 (3d Cir. 1994). Plaintiffs in this case seek to recover “compensatory relief to substitute for” the loss they suffered while serving in Vietnam. That is precisely the type of relief that falls outside the scope of 5 U.S.C. § 702.
CONCLUSION
For the foregoing reasons, the judgment of the district court should be affirmed.
Respectfully submitted,
Of Counsel: DAVID W. OGDEN
Assistant Attorney General
RONALD J. BETTAUER
Deputy Legal Adviser MICHAEL R. STILES
U.S. Department of State United States Attorney
2201 C Street, N.W.
Washington, D.C. 20520 MARK B. STERN
(202) 514-5089
MICHAEL
(202) 514-4053
Attorneys, Appellate Staff
Civil Division
U.S. Department of Justice
601 D Street, N.W., Room 9530
Washington, D.C. 20530-0001
SEPTEMBER 2000
CERTIFICATION OF BAR MEMBERSHIP
Counsel for the United States of America are federal government attorneys and are not required to be members of the Bar of this Court.
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C), I hereby certify that the foregoing Brief for the Appellee complies with the applicable type-volume limitations; excluding the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), the brief contains 5,555 words, as counted by Corel WordPerfect 9.
___________________________
CERTIFICATE OF SERVICE
I hereby certify that on this 11th day of September, 2000, I filed and served the foregoing Brief for the Appellee by causing an original and ten copies to be sent to the Clerk of the Court by Federal Express and by causing two copies to be sent to the following by Federal Express:
Stewart J. Eisenberg
Weinstein, Goss, Schleifer, Eisenberg,
Winkler & Rothweiler, P.C.
1634 Spruce Street
Philadelphia, PA 19103
Michael Choi
121 South Broad Street, 14th Floor
Philadelphia, PA 19107
TABLE OF CONTENTS ……… Page
STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION …. 1
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ………. 2
STATEMENT OF THE CASE …………………………… 2
STATEMENT OF FACTS ……………………………… 3
I…………………………. The Brown Commitment 3
II………………………. The Present Litigation 4
STATEMENT OF RELATED CASES AND PROCEEDINGS ………… 6
SUMMARY OF ARGUMENT……………………………… 6
ARGUMENT ………………………………………. 8
I…………………………… Standard of Review 8
- The District Court Correctly Dismissed This
Lawsuit……………………………………………. 8
- Plaintiffs Have No Private Right Of
Action To Enforce The Brown Commitment………………… 8
B…….. Plaintiffs’ Claims Are Not Justiciable 15
- The United States Has Not Waived Its
Sovereign Immunity From Plaintiffs’
Claims For Damages ………………………………… 19
CONCLUSION ……………………………………. 22
CERTIFICATION OF BAR MEMBERSHIP
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
Cases: Page
Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978)………… 17
Air Canada v. U.S. Department of Transportation, 843 F.2d 1483 (D.C. Cir. 1988)……………………. 9
The Amiable Isabella, 19 U.S. (6 Wheat.) 1 (1821)…….. 10
Baker v. Carr, 369 U.S. 186 (1962)……………….. 15,16
Bank Melli Iran v. Pahlavi, 58 F.3d 1406 (9th Cir.), cert. denied, 516 U.S. 989 (1995)…………………. 9
Bowen v. Massachusetts, 487 U.S. 879 (1988)………….. 21
Campbell v. Office of Personnel Management, 694 F.2d 305 (3d Cir. 1982)……………………… 20
Canadian Transport Co. v. United States, 663 F.2d 1081 (D.C. Cir. 1980)……………………. 9
Chabal v. Reagan, 822 F.2d 349 (3d Cir. 1987)………… 20
Charlton v. Kelly, 229 U.S. 447 (1913)……………….. 9
DKT Memorial Fund Ltd. v. Agency for International Development, 887 F.2d 275 (D.C. Cir. 1989)………… 17
Delaware Valley Citizens Council for Clean Air v.Davis, 932 F.2d 256 (3d Cir. 1991)………………… 8
Department of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999)……………………………… 19,21
Dia Navigation Co., Ltd. v. Pomeroy, 34 F.3d 1255 (3d Cir. 1994)…………………………….. 21
Edye v. Robertson (Head Money Cases), 112 U.S. 580 (1884)……………………………… 9
El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999)…………………………….. 12
Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. (7 Cranch) 603 (1813)………………………….. 18
Goldstar (Panama) S.A. v. United States, 967 F.2d 965 (4th Cir.), cert. denied, 506 U.S. 955 (1992)…………………………….. 9
Harisiades v. Shaughnessy, 342 U.S. 580 (1952)……….. 17
Holmes v. Laird, 459 F.2d 1211 (D.C. Cir.), cert. denied, 409 U.S. 869 (1972)………………… 18
Hughes Aircraft Co. v. United States, 534 F.2d 889 (Ct. Cl. 1976)……………………… 20
Kang Joo Kwan v. United States, No. 97-CV-7112 (E.D. Pa.)…………………………………….. 6
Kolovrat v. Oregon, 366 U.S. 187 (1961)…………… 12,18
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)…… 15
More v. Intelcom Support Services, Inc., 960 F.2d 466 (5th Cir. 1992)…………………….. 12
Oetjen v. Central Leather Co., 246 U.S. 297 (1918)……. 17
Phillips v. Seiter, 173 F.3d 609 (7th Cir. 1999)……… 20
Raines v. Byrd, 521 U.S. 811 (1997)…………………. 15
In re Russell, 155 F.3d 1012 (8th Cir. 1998) (per curiam)…………………………………… 20
Santovincenzo v. Egan, 284 U.S. 30 (1931)……………. 13
State of New Jersey v. United States, 91 F.3d 463 (3d Cir. 1996)………………………. 16
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)……………………………… 12
Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176 (1982)…………………………….. 12
United States ex rel. Saroop v. Garcia, 109 F.3d 165 (3d Cir. 1997)…………………….. 8-9
United States v. Davis, 767 F.2d 1025 (2d Cir. 1985)………………………………….. 9
United States v. Diekelman, 92 U.S. 520 (1875)………… 9
United States v. Li, 206 F.3d 56 (1st Cir. 2000) (en banc), petitions for cert. filed,
Nos. 99-9768 (May 30, 2000) and 99-9770 (May 26, 2000)………………………………….. 9
United States v. Mitchell, 463 U.S. 206 (1983)……….. 19
United States v. Occidental Chemical Corp., 200 F.3d 143 (3d Cir. 1999)……………………… 8
Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796)………….. 18
Washington Legal Foundation v. United States Sentencing Commission, 89 F.3d 897 (D.C. Cir. 1996)……………………………….. 20
Statutes:
Administrative Procedure Act:
5 U.S.C. § 702………………………………… 21
Little Tucker Act:
28 U.S.C. § 1346(a)(2)………………………… 1,19
28 U.S.C. § 1291………………………………….. 2
28 U.S.C. § 1295(a)(2)…………………………… 2,20
28 U.S.C. § 1331 ………………………………….. 1
28 U.S.C. § 1332(a)(4)…………………………….. 1
28 U.S.C. § 1346(a)……………………………….. 1
28 U.S.C. § 1361 ……………………………. 1,20,21
28 U.S.C. § 1502………………………………. 13,20
28 U.S.C. § 1631…………………………………. 20
Rule:
Fed. R. App. P. 4(a)(1)(B)………………………….. 1
Legislative Materials:
United States Security Agreements and Commitments Abroad, Republic of Korea: Hearings Before the Subcomm. on United States Security Agreements and Commitments Abroad of the Senate Comm. on Foreign Relations, 91st Cong., 2d Sess., Part 6
(Feb. 24-26, 1970) ……………………………. 3-4
Miscellaneous:
Restatement (Third) of the Foreign Relations Law of the United States (1987):
- 326 comment b …………………………. 12
- 902 ………………………………….. 13
- 907 ………………………………….. 13
Treaty of Friendship, Commerce and Navigation, Nov. 28, 1956, U.S.-ROK, art. XXII, 8 U.S.T. 2217
(entered into force Nov. 7, 1957) ………………. 18
Although the Republic of Korea is currently listed in the official caption of this appeal, the Republic is not in fact a party to this case. See Pl. Br. 4 n.1. The Republic of Korea accordingly should be removed from the caption to avoid creating the incorrect impression that the Republic is seeking judicial relief against the government of the United States.
The Brown Commitment was discussed at a Senate subcommittee hearing held in February 1970. United States Security Agreements and Commitments Abroad, Republic of Korea: Hearings Before the Subcomm. on United States Security Agreements and Commitments Abroad of the Senate Comm. on Foreign Relations, 91st Cong., 2d Sess., Part 6 (Feb. 24-26, 1970). The full text of the Brown Commitment was introduced into the public record at that hearing. See id. at 1549-50.
Although the Brown Commitment is an executive agreement rather than a treaty that requires the advice and consent of the Senate under Article II, Section 2 of the Constitution, executive agreements are subject to the same rules of interpretation that govern treaties. See, e.g., Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1408 (9th Cir.), cert. denied, 516 U.S. 989 (1995); Air Canada v. U.S. Department of Transportation, 843 F.2d 1483, 1486 (D.C. Cir. 1988).
The Court has no authority to supply a private right of action where one cannot be shown. As the Supreme Court has explained:
[T]his Court does not possess any treaty-making power. That power belongs by the constitution to another department of the government; and to alter, amend or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be, on our part, an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty. Neither can this court supply a casus omissus in a treaty, any more than in a law. We are to find out the intention of the parties, by just rules of interpretation, applied to the subject matter; and having found that, our duty is to follow it, so far as it goes, and to stop where that stops — whatever may be the imperfections or difficulties which it leaves behind.
The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71 (1821) (Story, J.).
The absence of a cause of action also supports the district court’s conclusion that plaintiffs lack standing in this case. See J.A. 9; cf. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 97 n.2 (1998) (“The question whether this plaintiff has a cause of action under the statute, and the question whether any plaintiff has a cause of action under the statute are closely connected‑‑indeed, depending upon the asserted basis for lack of statutory standing, they are sometimes identical, so that it would be exceedingly artificial to draw a distinction between the two.”).
The Supreme Court in Baker observed:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
369 U.S. at 217.
In any event, the cases that plaintiffs cite (Pl. Br. 16-17) involving violations of international agreements by States or state officials provide no basis for awarding compensation against the United States in this case, which involves only the federal government. See Kolovrat v. Oregon, 366 U.S. 187 (1961); Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. (7 Cranch) 603 (1813); Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).
See 28 U.S.C. § 1502; Hughes Aircraft Co. v. United States, 534 F.2d 889, 903 n.17 (Ct. Cl. 1976) (noting that Section 1502 has been determined to encompass international executive agreements as well as treaties).
This Court has jurisdiction to determine its own jurisdiction. See Chabal v. Reagan, 822 F.2d 349, 355 (3d Cir. 1987). If the Court concludes that it lacks jurisdiction over this appeal, it should not transfer the appeal to the Federal Circuit under 28 U.S.C. § 1631. It would not be “in the interest of justice” within the meaning of Section 1631 to transfer a case in which plaintiffs have no cause of action and cannot otherwise obtain the relief they seek. See Campbell v. Office of Personnel Management, 694 F.2d 305, 309 n.6 (3d Cir. 1982) (refusing to transfer appeal where the petitioner “could not prevail” on the merits); see also Phillips v. Seiter, 173 F.3d 609, 610-11 (7th Cir. 1999) (Posner, C.J.) (“A court is authorized to consider the consequences of transfer before deciding whether to transfer; that is implicit in the statute’s grant of authority to make such a decision * * * and implies in turn that the court can take a peek at the merits, since whether or not the suit has any possible merit bears significantly on whether the court should transfer or dismiss it” (citation omitted)).
In the proceedings below, the United States argued that plaintiffs’ claims also are barred by the applicable statute of limitations. The district court did not reach that issue, and we do not raise the issue as an alternative basis for affirming the judgment below. We wish to preserve that defense, however, in the event that the judgment of the district court is not affirmed.