American Jewish Congress v. Cyrus R. Vance

575 F.2d 939, 188 U.S. App. D.C. 58, 1978 U.S. App. LEXIS 11558

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 21, 1978
• Docket: 76-1983
• Status: Published

Opinions

TAMM, Circuit Judge:

Appellants, the American Jewish Congress and certain individual officials and members thereof, brought suit in the United States District Court for the District of Columbia on their own behalf and as representatives of all other American citizens of the Jewish religion, ancestry, and identity, seeking declaratory, injunctive, and mandamus relief against appellees, certain cabinet officers and subordinate officials of the United States government. The complaint alleges that appellees’ cooperation in programs with the government of Saudi Arabia that directly or indirectly discriminate against American Jews violates the first and fifth amendments and article VI of the Constitution.¹ The district court granted appellees’ motion to dismiss, finding that the case presented a non-justiciable political question,² and thereafter denied appellants’ motion to vacate the order.³ For the reasons stated below, which differ from those of the district court, we affirm the dismissal of the complaint.

I

In early June of 1974, Prince Fahd bin Abd al Aziz, then Second Deputy Prime Minister and Minister of Interior of Saudi Arabia, visited the United States for discussions with President Nixon and Secretary of State Kissinger. On June 8, Prince Fahd and Secretary Kissinger issued a Joint Statement on Saudi Arabian-United States Cooperation (Joint Statement),⁴ which provides in part, for the establishment of a Joint Commission on Economic Cooperation, headed by United States and Saudi Arabian government officials, “to promote programs of industrialization, trade, manpower training, agriculture, and science and technology” in Saudi Arabia.⁵ In pursuance of the Joint Statement, further agreements have been reached and programs undertaken which specifically provide for advisors, technicians, and scientists from both the private and the public sectors of the United States to be sent to Saudi Arabia to implement various cooperative projects.⁶

Although the Saudi government has stated that its boycott of Israel is not based on racial or religious discrimination or discrimination based on national origin and is not intended against the United States,⁷ it is nevertheless the established policy of Saudi Arabia to exclude those of Jewish religion, ancestry, or identity from its boundaries by denominating them “undesirable persons” and denying them visas.⁸ Recognizing this practice and similar practices in other nations, President Ford issued a directive in 1975, prohibiting all federal agencies and departments and all federal contractors and subcontractors from cooperating or acquiescing in visa or admission discrimination by any nation when selecting or hiring persons for foreign assignments or contracts. Furthermore, in the event of visa rejection, the State Department is to attempt to gain entry for any individual subjected to such exclusionary policies.⁹ Regardless of this executive action and Saudi Arabia’s statements of lack of discrimination, appellants have alleged that appellees’ implementation of the Joint Statement so involves them in Saudi Arabia’s exclusionary policies as to constitute illegal conduct in violation of the first and fifth amendments and article VI of the Constitution.¹⁰

As stated earlier, appellants (hereinafter referred to as plaintiffs) are the American Jewish Congress, a not-for-profit membership corporation of American Jews, and six of its officials and members, each individual plaintiff also being a United States citizen and taxpayer. They allege generally that the promotion of the Joint Statement by appellees (hereinafter referred to as defendants), with full awareness of Saudi Arabian discriminatory practices, has the purpose and effect of discouraging American Jews from participating in the economic opportunities arising therefrom.¹¹ Specifically, plaintiff Louis Kaplan alleges that the applied to the Midwest Universities Consortium for International Activities for a position as an advisor to a university in Saudi Arabia and that he believes his rejection was based solely on his Jewish religion, ancestry, and identity.¹² Plaintiff Martin Watkins alleges that he was deterred from applying for a job in Saudi Arabia, advertised by a Maryland corporation, because the completed application would have revealed that he was Jewish and therefore subject to Saudi Arabian exclusionary policies.¹³

The remedy sought by plaintiffs from the district court includes a declaration that defendants’ effectuation of the Joint Statement is unconstitutional and equitable relief against defendants’ further implementation of that Statement or “any program or activity involving the Government of Saudi Arabia which directly or indirectly discriminates against American citizens by reason of their Jewish religion, ancestry or identity.”¹⁴ The district court did not reach the merits of the case or the scope of the relief requested. Finding that international agreements such as the Joint Statement are wholly entrusted to the legislative and executive branches of government, it dismissed the complaint on the basis of the non-justiciability of the political question it presented.¹⁵

The concepts of standing and political question are separate aspects of justiciability, and either the absence of standing or the presence of a political question precludes a federal court, under article III of the Constitution, from hearing or deciding the case presented. Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); accord, Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974). There is at present no fixed rule as to the order of analysis of these elements of justiciability. Id. at 215 n.5, 94 S.Ct. 2925.¹⁶ However, we believe that when both standing and political question issues are before the court and neither has been resolved definitively in a context readily applicable to the ease presented, the court should determine the question of standing first. An analysis of standing requires inquiry only into limitations placed on federal judicial power by article III. The political question issue, on the other hand, requires not only a determination of article III limitations, but also an analysis of the separation of powers doctrine which inevitably carries the inquiry into other articles of the Constitution. See Flast v. Cohen, 392 U.S. at 100-01, 88 S.Ct. 1942; Baker v. Carr, 369 U.S. 186, 210-11, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).¹⁷ We therefore believe that in this case it is more prudent initially to determine the issue of the standing of those who are seeking to invoke the jurisdiction of the federal court.

II

At the outset, we note that the standing of plaintiff American Jewish Congress in this case depends upon the ability of its individual members to bring suit. Although the complaint states that the American Jewish Congress is a corporation organized “for the purpose of protecting the civil, political, religious and economic rights of American Jews and working to preserve American democratic and constitutional values of freedom, justice and equality for persons of all races and religions,”¹⁸ sheer motivation and commitment to the subject matter of a suit, no matter how strong, cannot substitute for judicially cognizable injury. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. at 226, 94 S.Ct. 2925; Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Because the American Jewish Congress has alleged no injury to itself as an organization, it can establish standing in this suit “only as [the] representative [] of those of [its] members who have been injured in fact, and thus could have brought suit in their own right.” Simon v. Eastern Kentucky Welfare Rights Organization, 426 , 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976) (citing Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)).

The complaint also states that the plaintiffs are suing as representatives of the class of all other American Jews and such other American Jews who are denied economic opportunities in Saudi Arabia solely because they are Jewish.¹⁹ Again, however, the members of the class purportedly represented by the plaintiffs, even if they have suffered injury in fact, may not seek relief in the federal courts through a class action unless the named plaintiffs can establish their own standing. See O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Likewise, the possibility that other members of the class might have had standing had they brought suit does not thereby confer standing on the named .representatives; the actual plaintiffs must show that they have personally suffered an injury redressable by the courts. Warth v. Seldin, 422 U.S. at 502, 95 S.Ct. 2197; see Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. at 38, 40 n.20, 96 S.Ct. 1917.

We now turn to the pivotal issue of the standing of the individual plaintiffs who are seeking to bring suit in the district court. The complaint states that the individual plaintiffs are American citizens, taxpayers, and persons of the Jewish religion, ancestry, and identity.²⁰ Two of the named plaintiffs have also allegedly suffered distinct economic disadvantage because of defendants’ actions.²¹

As citizens per se, plaintiffs clearly lack standing. The only injury to plaintiffs as citizens that can be gleaned from the complaint is the alleged general unconstitutional conduct of the defendants. However, the proper observance of constitutional limitations by government officials is an interest shared by all members of the American public. Any injury to that interest is necessarily abstract and lacking in the concreteness required to confer standing. Ex parte Lévitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937); accord, Schlesinger v. Reservists Committee to Stop the War, 418 U.S. at 220, 94 S.Ct. 2925. “Until a judicially cognizable injury is shown no other inquiry is relevant to consideration of citizen standing.” Id. at 227 n.16, 94 S.Ct. at 2935.

Plaintiffs have also failed in their complaint to establish standing as taxpayers. In Flast v. Cohen, 392 U.S. at 102-03, 88 S.Ct. 1942, the Supreme Court held that, in certain limited circumstances, a plaintiff may have standing to challenge federal action based on his status as a United States taxpayer. In those cases, the plaintiff must be challenging a congressional action under the taxing and spending power of article I, section 8, of the Constitution, and must allege contravention of a specific constitutional limitation on that power. Id.; see United States v. Richardson, 418 U.S. 166, 175, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974). Here, although plaintiffs are challenging the implementation of the Joint Statement as violative of a specific constitutional prohibition on the taxing and spending power, the only other allegation connected with their status as taxpayers is that defendant executive officials have expended governmental funds to effectuate cooperative programs with Saudi Arabia.²² Such allegations falter in the first stage of the Flast test, because they are directed at executive action rather than at a congressional enactment under article I, section 8. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. at 228, 94 S.Ct. 2925. Thus, the general rule that a federal taxpayer’s interest in Treasury moneys is too indeterminate, remote, and abstract to support standing is applicable here. Frothingham v. Mellon, 262 U.S. 447, 486-89, 43 S.Ct. 597, 67 L.Ed. 1078 (1923); see United States v. Richardson, 418 U.S. at 177, 94 S.Ct. 2940.

Another prospective ground for standing of the individual plaintiffs is their status as American citizens of the Jewish religion, ancestry, and identity. In regard to this status, the plaintiffs allege that defendants’ promotion and implementation of the Joint Statement have the “purpose and effect of deterring and discouraging American Jews from applying for or otherwise seeking employment and other economic opportunities resulting from the Agreement on Saudi-Arabian-United States Cooperation, although but for their religion, ancestry or identity they are qualified therefor.” ²³ Once again, however, the plaintiffs have fallen short of alleging the type of concrete and direct injury requisite to invocation of federal judicial power. See Ex Parte Lévitt, 302 U.S. at 634, 58 S.Ct. 1.

In essence, plaintiffs’ allegations of injury to themselves as American Jews is that defendants’ actions have a chilling effect on their pursuit of economic opportunities. Although the deterrent or chilling effect of governmental actions has in some cases been held to amount to a constitutional violation and injury in fact, those cases involved regulatory, proscriptive, or compulsory exercises of governmental power to which the complainants were subject. Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972).²⁴ No such regulation, proscription, or compulsion through defendants’ actions has been alleged by plaintiffs in this case. Their asserted injury is premised on their general perception of inability to obtain unspecified employment or economic advantage, rather than any actual or demonstrable inability or discouragement fairly traceable to defendants’ actions. “Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm . . . ,” id. at 13-14, 92 S.Ct. at 2325-26, and therefore do not present the court with the type of judicially cognizable injury required by article III. See also O’Shea v. Littleton, 414 U.S. at 493-96, 94 S.Ct. 669.

Plaintiffs’ strongest argument for standing in the present case rests on the allegations of specific harm to plaintiffs Louis Kaplan and Martin Watkins. Although my colleagues and I are in agreement that plaintiff Watkins has not alleged sufficient facts to obtain standing, we differ on the issue of the standing of plaintiff Kaplan. Judge Robinson would remand the case to the district court and allow Kaplan to proceed to a proof of his allegations. Judge McGowan, on the other hand, although believing that Kaplan has suffered an injury in fact, agrees with the district court’s dismissal of the complaint, basing his affirmance on the want of equity in the complaint as it applies to Kaplan. For the reasons stated below, I believe that neither Kaplan nor Watkins has standing to maintain this suit against the defendants.

Plaintiff Kaplan alleges that he was rejected for a job and believes his rejection was based on his Jewish background rather than any failure in qualification.²⁵ Watkins alleges that he did not apply for an advertised job because of the application’s questions concerning his religion and identity.²⁶ At first blush, Watkins’ asserted injury might appear to suffer from the same deficiency as that allegedly suffered by the American Jews generally. However, in contrast to the general and subjective chill discussed previously, the deterrent effect alleged by Watkins is objective and identifiable: although desiring a specific, advertised position and believing himself fully qualified therefor, he nonetheless refrained from pursuing the opportunity because of the required disclosure of his Jewish background.²⁷ In the ease of these two individual plaintiffs, I believe that they had indeed suffered concrete injury and that, under certain circumstances, a court could provide them with relief.

The article III “case or controversy” requirement encompasses more than merely an injury to the plaintiff. The plaintiff must “establish that, in fact, the asserted injury was the consequence of the defendants’ actions, or that prospective relief will remove the harm.” Warth v. Seldin, 422 U.S. at 505, 95 S.Ct. at 2208; see Linda R. S. v. Richard D., 410 U.S. 614, 618-19, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). It is in these areas of causation and redressability that the allegations of plaintiffs Kaplan and Watkins are deficient.

In the recent case of Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. at 41-42, 96 S.Ct. at 1926, the Supreme Court stated that a federal court is constitutionally empowered “only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.” Here, however, just as in that case, it is “purely speculative” whether Kaplan’s job rejection or the deterrent elements of Watkins’ application are traceable to the defendants’ implementation of the agreement with Saudi Arabia, or instead attributable to decisions made independently by the consortium and the corporation offering the positions. See id. at 42-43, 96 S.Ct. 1917. There has thus been no showing that, absent defendants’ alleged constitutional infractions, there is a'“substantial probability” that plaintiff Kaplan would have been accepted for employment or that plaintiff Watkins would have been encouraged to pursue the application process. See Warth v. Seldin, 422 U.S. at 504, 95 S.Ct. 2197. Without such a showing of an “actionable causal relationship” between defendants’ actions and plaintiffs’ asserted injury, plaintiffs do not have standing to bring suit against defendants in federal court. Id. at 507, 95 S.Ct. 2197.

In McCabe v. Atchison, Topeka & Santa Fe Railway, 235 U.S. 151, 164, 35 S.Ct. 69, 59 L.Ed. 169 (1914), the Supreme Court stated that “[t]he desire to obtain [sweeping relief] cannot be accepted as a substitute for compliance with the general rule that the complainant must present facts sufficient to show that his individual need requires the remedy for which he asks.” Accord, Schlesinger v. Reservists Committee to Stop the War, 418 U.S. at 221-22, 94 S.Ct. 2925, 2932. Here, plaintiffs Kaplan and Watkins have alleged that, because of their religion and identity, they have been denied certain specific economic opportunities arising under the cooperative programs with Saudi Arabia, although they are qualified to participate therein and wish to do so. To remedy this injury, they seek broad equitable relief prohibiting defendants from further implementing the Joint Statement or any other programs with Saudi Arabia that discriminate against American Jews.

There is no doubt that the termination of the cooperative programs would eliminate any possibility of participation by defendants in the discriminatory practices of the Saudi Arabian government. At the same time, however, such an action would eliminate the very economic advantages in which plaintiffs Kaplan and Watkins have alleged an interest and of which they have allegedly been deprived. There has thus been no showing that the granting of the broad relief requested would properly redress the specific injury alleged by Kaplan and Watkins, or that their individual needs require such relief. Cf. id. at 222, 94 S.Ct. at 2932 (in which the Court noted that one purpose of requiring concrete injury in a discrete factual context is to “insure[] the framing of relief no broader than required by the precise facts to which the court’s ruling would be applied”). The requested remedy in this case is not directed at the alleged injury to Kaplan and Watkins in being denied specific economic opportunities because of their religion. Instead, it is directed at the subjective “chill” that we have already found too abstract an injury to permit invocation of the federal court’s remedial powers.

The allegations of the complaint here do not meet either the causation or redressability requirements of standing, and plaintiffs Kaplan and Watkins have therefore failed to show their right to invoke the power of the federal court.²⁸ Because the standing of the American Jewish Congress and the class purportedly represented herein depends upon the ability of the individual plaintiffs to seek relief, and because none of the individual plaintiffs has standing, I believe that this case is non-justiciable under article III of the Constitution.

Ill

The district court in this case dismissed the complaint on the basis of non-justicia-bility under the political question doctrine. Although Judge McGowan and I have expressed no opinion on this issue and although we differ on the question of plaintiff Kaplan’s standing to sue, we nevertheless agree that the district court’s order dismissing the complaint should be

Affirmed.

1 . Record Entry (R.E.) 1 at 9; Appendix (App.) at 11.

2 . R.E. 6; App. at 21-23.

3 . R.E. 12; App. at 29.

4 . R.E. 1, Exhibit B; App. at 15-18.

5 . Id., Exhibit B at 2; App. at 16. The Joint Commission is to review the plans and recommendations of specialized Joint Working Groups and is to “encourage and facilitate peri-odie visits to Saudi Arabia by scientists, engineers and research specialists drawn from the United States Government, universities, and private business in order to supplement the operations of the Working Groups and to examine specific proposals for cooperation. Id., Exhibit B at 3; App. at 17.

6 . See, e. g., R.E. 5, Exhibit A at 2 (Technical Cooperation Agreement); id., Exhibit E (Fact Sheet, U.S./Saudi Arabian Joint Commission on Economic Cooperation); id., Exhibit B at 2, 5-8 (Joint Communique On the First Session of the Joint Commission); id., Exhibit C at 5-7 (Joint Communique On the Second Session of the Joint Commission). See generally id., Exhibit D (Project Agreements).

7 . See id., Exhibit C at 2.

8 . R.E. 1, Exhibit A; App. at 13-14.

9 . 11 Weekly Comp, of Pres. Doc. 1305-07 (Nov. 24, 1975); R.E. 5, Exhibit F.

10 . R.E. 1 at 7-9; App. at 9-11.

11 . Id. at 8; App. at 10.

12 . Id. at 7; App. at 9.

13 . Id. at 8; App. at 10. Both the consortium and the corporation sponsoring the positions in Saudi Arabia are alleged to be “instruments towards implementing the Agreement and otherwise participating in and promoting trade and commercial relations between the United States and Saudi Arabia.” Id. at 7; App. at 9. See id. at 8; App. at 10.

14 . Id. at 9; App. at 11.

¹⁵

16 . Some Supreme Court decisions have indicated that standing questions may be decided without regard to the ultimate justiciability of the issues. See Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Baker v. Carr, 369 U.S. 186, 208, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Other decisions have noted that their discussion of standing is undertaken with the assumption of justiciability in other respects. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). See also United States v. Richardson, 418 U.S. 166, 174 n.6, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974).

17 . See generally Albert, Justiciability and Theories of Judicial Review: A Remote Relationship, 50 S.Cal.L.Rev. 1139 (1977); Henkin, Is There a “Political Question” Doctrine?, 85 Yale L.J. 597 (1976); Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv.L. Rev. 1, 7-8 (1959).

18 . R.E. 1 at 2; App. at 4.

19 . Id. at 3; App. at 5.

20 . Id. at 2-3; App. at 4-5.

21 . Id. at 2; App. at 4.

²²

²³

24 . On this point, the Supreme Court cited and discussed Baird v. State Bar of Ariz., 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971); Keyishi-an v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964).

25 . R.E. 1 at 7; App. at 9.

²⁶

27 . Cf. Hailes v. United Air Lines, 464 F.2d 1006, 1008 (5th Cir. 1972) (an action under the Civil Rights Act of 1964 in which the plaintiff, although not applying for advertised employment, was found to have standing because he had a “real, present interest in the type of employment advertised,” but was deterred from applying by an improper advertisement).

28 . Because of our disposition of this case, we do not need to consider the nonconstitutional “zone of interests” test for standing announced in Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. at 39 n.19, 96 S.Ct. 1917.