Temistocles Ramirez De Arellano v. Caspar W. Weinberger, Secretary of Defense , 724 F.2d 143 ( 1984 )

Opinion for the Court filed by Circuit Judge SCALIA.

Dissenting opinion filed by Circuit Judge WILKEY.

SCALIA, Circuit Judge:

This is an appeal by plaintiffs Ramirez, two Puerto Rican corporations, and four Honduran corporations from dismissal of their suit against the Secretary of Defense claiming wrongful occupation of their property in Honduras for use as a training facility for Salvadoran soldiers. The district court granted defendants’ motion to dismiss, on the ground that the case presented a nonjusticiable political question. We disagree with that basis of dismissal but affirm because in other respects the plaintiffs have failed to present a claim upon which injunctive or other relief can be granted.

I

Accepting as true the allegations contained in plaintiffs’ pleadings and affidavits,¹ the facts of the case are as follows: One of the plaintiff Honduran corporations owns a large tract of land in the northern portion of Honduras, on which the two other Honduran corporations conduct, respectively, a cattle ranching and shrimp packing business. These three Honduran corporations are owned by the fourth Honduran corporation, which is in turn owned by one of the plaintiff Puerto Rican corporations, which, finally, is owned by the second Puer-to Rican corporation (owned by plaintiff Ramirez) and by Ramirez, an American citizen. The plaintiffs’ total investment in the property is approximately $13,000,000.

Still accepting the plaintiffs’ view of the facts: In late March 1983, the Defense Department decided to establish in Honduras a Regional Military Training Center at which American military specialists would train Salvadoran soldiers. The Defense Department selected the site, which turned out to be the plaintiffs’ ranch. While the fact of its private ownership may not have been known initially, after that came to light the Department still refused to change its plans, and proceeded with construction. The base was originally to be located on 1,500-2,000 acres, but it has expanded onto an additional 5,300 acres, so that it occupies about half of the total ranch and about 90% of the year-round grazing land. Permanent facilities include a tent camp, buildings, ammunition storage areas, and a firing range. About one hundred Green Berets and 1,000 other soldiers, including Honduran troops who are participating in the exercises, are now living and training on the land. As a consequence of the construction of the base and the conduct of its activities, prime grazing land and fences have been bulldozed, the flow of water to the meat packing plant has been interrupted, cattle have been shot by stray bullets, the animals in the occupied area have become undernourished, and ranch employees have refused to work in areas where the training is taking place. No eminent domain proceedings, Honduran or American, have been conducted, and no compensation paid plaintiffs, although Honduran proceedings have been discussed with plaintiff Ramirez by Honduran officials.²

The plaintiffs filed a complaint in the United States District Court for the District of Columbia. They alleged that their property had been seized and damaged without statutory or constitutional authority, that they had been deprived of property without due process of law, and that a tort had been committed against the Honduran corporations giving rise to a claim under the Alien Tort Statute, 28 U.S.C. § 1350 (1976). They requested an injunction, a declaratory judgment and such other relief as the court deems just and proper.

II

The district court found that these allegations presented a nonjustieiable political question, because, to repeat the most salient concrete points, (1) “ ‘it is not the function of the Judiciary to entertain private litigation — even by a citizen — which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region,’ ” Mem.Op. at 9-10, quoting Johnson v. Eisentrager, 339 U.S. 763, 789, 70 S.Ct. 936, 949, 94 L.Ed. 1255 (1950); (2) adjudication of the matter would “necessarily involve sensitive and confidential communications between the highest members of the Executive branch and officials of a foreign power that are not judicially discoverable,” Mem.Op. at 6; and (3) judicial intervention would interfere with the conduct of our foreign affairs in Central America, id. at 5-6, 9. We do not agree with this basis of dismissal.

The plaintiffs do not seek adjudication of the propriety of the American military presence in Honduras, but of a narrower issue: whether United States officials have, by their actions, unlawfully deprived them of the use of their land. Unlike the issue to which the Court’s statements in Eisentrager were addressed—the constitutionality of the presence of United States armed forces in China—this is the kind of question that is highly appropriate for judicial resolution. Adjudication of land disputes is perhaps the primeval function of common-law courts, and from the earliest times federal courts in this country have not shrunk from the task, even where ownership of a fort occupied by the United States was at issue. See Meigs v. M’Clung’s Lessee, 13 U.S. (9 Cranch) 11, 3 L.Ed. 639 (1815); see also Grisar v. McDowell, 73 U.S. (6 Wall.) 363, 18 L.Ed. 863 (1868). To be sure, because this case involves land in Central America, and because United States military activities in that region are currently the subject of national interest and debate, the issue is presented in a more politically charged context. That may make it, in a sense, a political case —but as the Court noted in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), “[t]he doctrine ... is one of ‘political questions,’ not one of ‘political cases.’ ”

As to the problem of “sensitive and confidential communications between the highest members of the Executive branch and officials of a foreign power”: On the basis of a bare complaint, a motion to dismiss and related affidavits, we cannot say that resolution of this question will require discovery of such materials. The existence of the base is no secret, and we see no reason why communications that sustain the Department’s defense of Honduran approval and control would necessarily be sensitive. If and when Executive privilege is asserted and it develops that essential evidence is therefore undiscoverable, there will be time enough to dismiss. See Halkin v. Helms, 690 F.2d 977 (D.C.Cir.1982); Halkin v. Helms, 598 F.2d 1 (D.C.Cir.1978) (prior disposition of connected case).

The district court’s concern about interfering with our foreign policy of providing assistance to threatened governments of Central America is a valid one. Such damage would arise, however, not from our mere resolution of the issue whether United States forces are in possession of the plaintiffs’ land, but from injunc-tive relief, should we choose to provide it, which would bring the present operation to a halt. It is relevant, as we shall discuss below, to the nature of the remedy which plaintiffs can obtain — but not to the “political” character of the question we have been asked to resolve.

Ill

A federal appellate court may affirm the judgment appealed from on grounds different from those offered by the rendering court. Langnes v. Green, 282 U.S. 531, 538-39, 51 S.Ct. 243, 246, 75 L.Ed. 520 (1931). Although we find dismissal was not warranted on the ground that this case presents a political question, we nonetheless affirm the district court’s order because for other reasons the plaintiffs have failed to state a claim upon which relief can be granted.

The first remedy plaintiffs have requested is an injunction. General principles of equity, preserved in actions under the Administrative Procedure Act, see 5 U.S.C. § 702 (1982), would preclude the grant of injunctive relief here. The issuance of an injunction is discretionary, and where that remedy will intrude into the conduct of foreign affairs it should be granted only on an extraordinarily strong showing. Cf. Adams v. Vance, 570 F.2d 950 (D.C.Cir.1977). It can hardly be thought that requiring disbanding of a training camp for troops of a friendly country (El Salvador) that is now engaged in substantial defensive military operations does not intrude on the conduct of foreign affairs. And we cannot even be certain that no more than training is involved. It is not far-fetched to speculate, for example, on what the effect of the injunction here sought would have been if it had issued a few months back, and if this base were then being used as a staging area for our recent military operations in Grenada. Nor can we expect or require the Executive to take us into its confidences regarding the activities it has in hand. See Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568 (1948). The fact is that in enjoining a United States military operation of this sort we have no idea what harm we may be doing. If this does not mean that we can never take such action, it at least means that an overwhelming showing of need must be made.

If it be assumed, on the other hand, that the camp will not be disbanded, but merely restricted to adjacent lands not owned by the plaintiffs which it currently may occupy,³ we encounter the difficulty that injunctions are generally considered inappropriate where they would require continuing supervision by the courts. 11 C. Wright & A. Miller, Federal Practice and Procedure § 2942 at 376 (1973). It is not enough to say that we need not worry about that factor here, since the object of the injunction is the executive branch, which can be relied upon to obey our decree. If the training operations continue, there are likely to be ongoing disputes over whether incursions onto the plaintiffs’ property from adjacent lands have occurred— and if so, whether United States, Honduran or Salvadoran forces were responsible. The difficulty of supervision would be increased by the fact that we would need to monitor compliance with our injunction in Honduran territory. Even among the states of this Union courts generally will not enjoin a trespass in another jurisdiction. See Annot., 113 A.L.R. 940 (1938); Restatement (Seoond) of Conflicts of Law § 87 comment d (1971).⁴ And the fact that the supervision would relate to an ongoing military operation adds separation of powers concerns to the factors weighing against injunctive relief. Cf. Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973); Rizzo v. Goode, 423 U.S. 362, 377-80, 96 S.Ct. 598, 607-608, 46 L.Ed.2d 561 (1976) (same effect produced by federalism concerns).

A further factor is the reluctance of courts to issue injunctions that “impugn foreign law,” see Steele v. Bulova Watch Co., 344 U.S. 280, 289, 73 S.Ct. 252, 257, 97 L.Ed. 252 (1952), or call into question the legality of action by the officials of other governments under their own law, see Puerto Rico Telephone Co. v. Puerto Rico Communications Authority, 189 F.2d 39, 41—42 (1st Cir.1951), cert. denied, 342 U.S. 830, 72 S.Ct. 54, 96 L.Ed. 628 (1951).⁵ It appears from the materials offered by the plaintiffs that Honduran forces are taking part in and even helping to supervise this exercise.⁶ In halting or redirecting the exercise on the ultimate ground that it violates the plaintiffs’ property rights under Honduran law, the requested injunction would incidentally affect the activities of the Honduran troops as well, and would as a practical matter accuse them of having violated their own law in their own territory.

Whether or not any of the above factors in isolation would suffice to preclude injunctive relief, in combination they establish a formidable obstacle which the equities of plaintiffs’ case cannot overcome. Plaintiffs acknowledge that they “have not [gone to Honduras for relief] and ... do not intend to do [so].” July 14, 1983 Tr. at 52. We think it remarkable that these plaintiffs, four of which are Honduran corporations and the rest of which have voluntarily chosen to profit from the resources of Honduras by conducting ranching and shrimp packing operations there through Honduran corporations, should take initial resort to the courts of this country with regard to a dispute concerning Honduran land. See generally Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147, 158-59 (2d Cir.1978) (en banc). Plaintiffs assert (in the context of their argument on another point) that it does not “seem likely that these defendants, all of whom are United States government officials, would submit to the jurisdiction of Honduran courts.” Supp. Brief for Appellants at 14. That is irrelevant for purposes of the point made here. Honduran courts unquestionably have jurisdiction over the individuals performing the activity that allegedly violates plaintiffs’ property rights in Honduran land under Honduran law — which is all that is necessary to effect the injunctive relief plaintiffs seek.

It is true that the plaintiffs assert constitutional claims that presumably cannot be considered in a Honduran forum. But those claims are entirely derivative of claims under Honduran law. Plaintiffs are suffering no injury at the hands of the Defense Department unless their property rights under Honduran law are being impaired; and will be made entirely whole if those rights are vindicated (where real property rights are ordinarily vindicated) in the local courts. The impropriety of this court’s issuing an injunction that rests upon such an inquiry is not affected by the fact that unlawful conduct by agents of the Executive is alleged. Where government officers violate rights under our laws that are utterly independent of what foreign law may permit — for example, the Fourth Amendment’s guarantee against unreasonable searches of our citizens — injunctive relief against such action abroad is appropriate (and, indeed, could presumably only be granted by our courts). See, e.g., Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144, 154, 156 (D.D.C.1976). But where, as here, the essence of the claim is that government officers have violated the plaintiffs’ property rights under Honduran law; and where the practical effect of the constitutional guarantee in question is no more than a waiver of sovereign immunity with regard to such violation; we deem the propriety of our intervention by injunction no greater than it would be in a similar suit against a private individual subject to our jurisdiction. At this stage, at least, our intervention by injunction is inappropriate.

Another factor leading to the same conclusion is the availability of monetary relief in other United States courts. Our unwillingness to grant an injunction does not leave the plaintiffs remediless, even in this country. To the extent their allegations state valid causes of action, the plaintiffs would have a valid claim for monetary relief for a Fifth Amendment taking without just compensation, which they can bring under the Tucker Act, 28 U.S.C. § 1491 (1976), in the Claims Court. Plaintiffs have avoided use of the word “taking” in their written submissions and during oral argument, presumably out of concern that they might be relegated to their Tucker Act remedy. One of the counts in their complaint, however, is for the “unconstitutional and unauthorized seizure, destruction and deprivation of plaintiffs’ use and enjoyment of property,” and if the kind of activity they claim has occurred, it clearly constitutes a sufficient interference with their use and possession of property to be a taking. See United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287 (1922); Branning v. United States, 654 F.2d 88 (Ct.Cl.1981). Applicability of the Tucker Act cannot be avoided by merely omitting the talismanic word “taking.”

The dissent argues that under the state of facts alleged in the complaint the Tucker Act remedy is not available, since the Tucker Act precludes recovery for acts by government agents beyond their statutory or constitutional authority. Of course if that is correct, the American plaintiffs’ sole remedy against the United States in this case would be injunctive relief,⁷ and they could recover nothing for the damage done to the property so far. There is no need to adopt such an extreme position. The dissent misunderstands the Tucker Act authority requirement.

It is well established that the mere fact that a government officer has acted illegally does not mean he has exceeded his authority for Tucker Act purposes, even though he is not “authorized” to break the law. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). If a taking occurs while he is acting within the normal scope of his duties (a concept akin to, though not as liberal as, the “scope of employment” test for application of the doctrine of respondeat superior in private law⁸), a Tucker Act remedy normally lies, unless Congress has expressed a positive intent to prevent the taking or to exclude governmental liability. The cases cited by the dissent involved the latter exception to the rule. In Hooe v. United States, 218 U.S. 322, 31 S.Ct. 85, 54 L.Ed. 1055 (1910), the lessor of the building in which the Civil Service Commission was housed refused to renew the lease for $4,000, and wanted $6,000 instead. After Congress refused to increase the appropriation, the Secretary of the Interior reached agreement to lease the building without the basement for $4,500, which Congress appropriated. The Commission, however, continued to use the basement for six years. When the lessor sought to recover an additional $9,000 under the Tucker Act (the difference between $4,500 and $6,000 for six years), the Court held that he could not, because under the circumstances the Commission had no power to bind the government. The Supreme Court has specifically distinguished Hooe from other Tucker Act cases on the ground that it involved “specific limitation on the agent’s authority.” Larson v. Domestic & Foreign Commerce Corp., supra, 337 U.S. at 701 n. 24, 69 S.Ct. at 1467 n. 24. Likewise, in United States v. North American Transportation & Trading Co., 253 U.S. 330, 40 S.Ct. 518, 64 L.Ed. 935 (1920), the Court held that a taking of the plaintiff’s property by a subordinate military officer was not compensable under the Tucker Act since the applicable statute had explicitly conferred confiscation power only upon the Secretary of War.⁹ And in Southern California Financial Corp. v. United States, 634 F.2d 521 (Ct.Cl.1980), cert. denied, 451 U.S. 937, 101 S.Ct. 2016, 68 L.Ed.2d 324 (1981), the Court of Claims found that the alleged taking by the Air Force would violate legislation that expressly required Congressional approval for military condemnations of United States land with a value of over $50,000. Id. at 523-25.¹⁰

On the other hand, on numerous occasions when the government agent was acting within the ordinary scope of responsibilities conferred on him by Congress, and took private property without express statutory authority or prohibition, the Tucker Act remedy was held to lie. Thus, in United States v. Causby, supra, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, the Civil Aeronautics Authority approved a path of glide for planes that allowed them to take off and land 83 feet above the plaintiffs’ property, effectively destroying its use as a chicken farm. While Congress had authorized a taking of “navigable air space,” that was defined as “airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority,” at the time from 300 to 1000 feet above ground. Id. at 260, 263-64, 66 S.Ct. at 1065, 1066-1067. No other takings were authorized. Despite this Congressional silence—if not negative implication —the Court concluded that the deprivation of use of the land constituted a compensable taking, for which recovery could be had in the Court of Claims. Similarly, in Portsmouth Harbor Land & Hotel Co. v. United States, supra, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287, the government had built a fort on the shore opposite plaintiffs’ island and intended to fire cannon shot over it with some regularity. The plaintiffs claimed that gunfire from the fort would effectively destroy use of the island as a summer resort, amounting to a taking. The Court found that this stated a cause of action, although no specific authority from Congress was alleged for the taking. While stating that it was open to the defendants to try to show lack of authority, the Court also observed that “[a]s the United States built the fort and put in the guns and the men, there is a little natural unwillingness to find lack of authority to do the acts even if the possible legal consequences were unforeseen.” Id. at 330, 43 S.Ct. at 137.¹¹ See also Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962) (forest ranger’s occupation of plaintiffs’ land gave rise to taking compensable in Court of Claims where he exceeded no express statutory limit on his authority); United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539 (1903) (flooding of plaintiffs’ plantation as a result of congressionally authorized construction of dam gave rise to compensa-ble taking although no specific act of Congress directed the appropriation); Great Falls Mfg. Co. v. Attorney General, 124 U.S. 581, 8 S.Ct. 631, 31 L.Ed. 527 (1888) (where Secretary of War took lands not within a survey even though Congress had authorized taking only on the basis of the survey, if Secretary did not take more than reasonably necessary for purposes authorized by Congress and honestly and reasonably exercised his discretion, compensable taking occurred); Mallow v. United States, 161 Ct.Cl. 446 (1963) (plaintiff could recover under the Tucker Act a fine assessed under an unconstitutional statute).¹²

We know of no case where mere Congressional failure expressly to authorize a taking that occurs as a consequence of a federal officer’s discharge of his normal responsibilities has been held to preclude Tucker Act recovery. And we would find such a general bar to recovery no more recommended by policy than supported by precedent. Since the officials of the Defense Department in the present case were performing their ordinary responsibilities of deploying United States military forces and of planning and operating a training facility for the military forces of a friendly country, we have no doubt that, if there was a taking, a Tucker Act suit would lie.¹³

We conclude, therefore, that in-junctive relief would be inappropriate, and turn to the next remedy specifically requested by the plaintiffs, declaratory judgment. That, like injunctive relief, is discretionary with the court. Brillhart v. Excess Insurance Co., 316 U.S. 491, 494-96, 62 S.Ct. 1173, 1175-1176, 86 L.Ed. 1620 (1942). Where it would have the same negative effects as an injunction, the same prudential considerations which preclude the one preclude the other. See Samuels v. Mackell, 401 U.S. 66, 69-74, 91 S.Ct. 764, 766-768, 27 L.Ed.2d 688 (1971). The effect of a declaratory judgment in the present case will be to obligate the Secretary of Defense, in light of his oath to uphold the Constitution, either to withdraw the troops from the disputed area (thus making the declaratory judgment equivalent to the injunction we have found inappropriate) or to compensate the plaintiffs (thus making the declaratory judgment equivalent to a successful Tucker Act suit). But since the taking for which the complaint seeks full relief concededly involves property worth in excess of $10,-000,¹⁴ exclusive Tucker Act jurisdiction lies in the Claims Court. 28 U.S.C. § 1346 (1976). Under such circumstances, it would be inappropriate for the district court to grant a declaratory judgment, it being well settled that the jurisdiction of the Claims Court cannot be evaded by framing a complaint to seek only declaratory relief. Amalgamated Sugar Co. v. Bergland, 664 F.2d 818, 823-24 (10th Cir.1981).¹⁵

The plaintiffs have also requested such other relief as the court deems just and proper. As for remedies (available to the Honduran corporations alone) under the Alien Tort Statute: Assuming without deciding that that legislation allows suits against the United States, it nonetheless applies only to so-called transitory causes of action. Neither an action seeking ejectment nor an action seeking money damages for trespass would lie, since they are both local actions. See Ellenwood v. Marietta Chair Co., 158 U.S. 105, 15 S.Ct. 771, 39 L.Ed. 913 (1895); Pasos v. Pan American Airways, Inc., 229 F.2d 271 (2d Cir.1956); Livingston v. Jefferson, 15 Fed.Cas. 660 (C.C.D.Va.1811) (No. 8411) (Marshall, Circuit Justice); Restatement (Second) of Conflicts of Law § 87 comment d (1971).

The only other relief the district court can grant is monetary compensation under the Tucker Act. (The Tucker Act remedy precludes a separate damage award not only for the allegedly unconstitutional taking, but also for the alleged deprivation of due process of law related to the taking. Stringer v. United States, 471 F.2d 381 (5th Cir.1973), cert. denied, 412 U.S. 943, 93 S.Ct. 2775, 37 L.Ed.2d 404 (1973).) But the district court’s Tucker Act jurisdiction is limited to claims for less than $10,000, those of greater amount being reserved to the exclusive jurisdiction of the Claims Court. 28 U.S.C. §§ 1346, 1491 (1976). As noted above, that jurisdictional limit is exceeded by the value of the taking for which, on its face, the complaint seeks full relief.¹⁶

Since we resolve this case on other grounds, we do not pass upon the constitutional questions presented by the complaint. The dissent, however, must reach these questions,¹⁷ and we are surprised that it finds them so readily resolvable in the plaintiffs’ favor, Dissent at 157 n. 9. It is at least not clear that the plaintiff Honduran corporations have rights under the United States Constitution with regard to activity taking place in Honduras. See Pauling v. McElroy, 278 F.2d 252, 254 n. 3 (D.C.Cir.1960), cert. denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960); L. Henkin, Foreign Affairs and the Constitution 267 (1972). But see United States v. Toscanino, 500 F.2d 267 (2d Cir.1974). See generally Johnson v. Eisentrager, supra, 339 U.S. at 771, 70 S.Ct. at 940.¹⁸ The constitutional claims of Ramirez and the Puerto Rican corporations rest entirely upon injury done to the Honduran corporations in which they are shareholders. Despite the dissent’s assertion that “[i]t has hitherto never been suggested that the constitutional rights of American citizen investors ... were in any way lessened by the mere utilization of such corporate vehicles,” Dissent at 158 n. 9, we know of no case in which the corporate veil has been pierced (or, more precisely, in which the corporate shareholders have been permitted to cast it off) to enable a constitutional right that belongs only to the shareholders to be asserted against action taken with regard to the corporation. See, e.g., Reamer v. Beall, 506 F.2d 1345 (4th Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 431 (1975) (sole shareholder of professional corporation unable to assert his Fifth Amendment privilege against self-incrimination on behalf of corporation); United States v. Richardson, 469 F.2d 349 (10th Cir.1972) (shareholder of Subchapter S corporation — same). Such a practice would effectively drain of content the venerable principle that corporations, since they are not “citizens,” have no “privileges or immunities” under the Fourteenth Amendment. Paul v. Virginia, 75 U.S. (8 Wall.) 168, 177-80, 19 L.Ed. 357 (1868). It is suggestive in this regard that in dealing with warrantless surveillance, a matter supremely evocative of constitutional concerns, both Congress and the President have required unincorporated associations to be treated as “United States persons” on the basis of the citizenship of their members, but corporations only on the basis of their place of incorporation, regardless of the citizenship of stockholders. See Foreign Intelligence Surveillance Act of 1978 § 101(i), 50 U.S.C. § 1801(i) (Supp. V 1981); Exec. Order No. 12,333, 3 C.F.R. 200 (1982), reprinted in 50 U.S.C. § 401 note at 840, 846 (Supp. V 1981). The only authority the dissent cites for the proposition that shareholders may assert their own constitutional rights with regard to action taken against a corporation is the Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974). There, however, the only shareholder that asserted a Fifth Amendment claim arising out of the reorganization was also a creditor of one of the reorganized corporations, and the Court did not pass on which status supported the claim, id. at 107 n. 1, 95 S.Ct. at 341 n. 1, 117 n. 12, 95 S.Ct. at 345 n. 12; Connecticut General Insurance Corp. v. United States Railway Ass’n, 383 F.Supp. 510, 513 (E.D. Pa.) (lower court opinion).

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The dissent accuses us of not only error but apparently even of prejudgment, asserting that we have “gone to extraordinary lengths to deprive plaintiff Ramirez of an opportunity for relief,” Dissent at 172,¹⁹ and that essential portions of our analysis are “only advanced ... to make the denial of this citizen’s constitutional rights more palatable,” id. at 168. We of course reject that imputation, as we reject the dissent’s more demonstrable distortions of our position. We do not, for example, maintain that “the U.S. plaintiffs should be forced to bring their claims in the foreign courts of Honduras,” id. at 169 (though since they have been injured only in their capacity as shareholders of the other plaintiffs, the four Honduran corporations, with respect to land acquired and activities undertaken in Honduras, that would hardly seem outrageous); to the extent they have valid claims they may bring them here, but must be content with the ordinary remedy of monetary compensation — for what is, after all, a monetary injury, despite the dissent’s romantic characterization of this $13 million, corporate-owned, multinational agribusiness-packery as “a U.S. citizen’s private ranch,” id. at 172. Similarly, we have not remotely said that “the foreign affairs context of Executive action can [] shield unlawful conduct from judicial inquiry,” id. at 170; only that this particular foreign affairs context, plus many other factors, precludes the extraordinary remedy of injunction in this case.

The dissent invokes “the great tradition of judicial protection of individual rights against unconstitutional governmental activities,” id. at 168. But that tradition has not come to us from La Mancha, and does not impel us to right the unrightable wrong by thrusting the sharpest of our judicial lances heedlessly and in perilous directions. It acknowledges the need to craft judicial protection in such fashion as to preserve the proper functions of government. We are therefore perplexed rather than inspired by the dissent’s uncompromising pronouncement that it “do[es] not accept the proposition that a United States district court is powerless to stop a continuing violation of a U.S. citizen’s constitutional rights,” or “should decline for prudential considerations to intervene to arrest ongoing constitutional violations, when the alleged perpetrators are officials of the Executive Branch, amenable to process and supervision here in Washington, D.C.,” id. at 173. Such a vision of judicial supremacy, not only in interpreting the Constitution but in controlling every aspect of Executive activity bearing upon citizens’ constitutional rights, does not comport with our understanding of the separation of powers. It is a vision that obscures not merely the common-law tradition that injunction is an extraordinary remedy, but also the political truth that society has many other needs that must be accommodated with proper protection of individual rights, and the related constitutional reality that we serve beside the officers of two other coequal branches, whose responsibilities, no less important than our own, require knowledge and judgment we do not possess. If the traditional and hence limited relief we have found available in this case, based upon a more modest conception of our abilities and powers, lends itself less to stirring eulogy of the judicial role in vindicating individual liberties, we are consoled by the fact that it lends itself more to preservation of the Constitution.

For the reasons stated, the judgment of the district court is

Affirmed.

1 . Although the district court’s dismissal was in response to a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), in support of and in opposition to that motion the parties offered evidence extrinsic to the pleadings, which the court did not exclude. Under such circumstances, Rule 12(b)(6) provides that “the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” Local Rule l-9(h) provides that with each motion for summary judgment “there shall be served and filed ... a statement of the material facts as to which the moving party contends there is no genuine issue.” Plaintiffs complain of the district court’s failure to require compliance with this rule. We find it unnecessary to pass upon this assigned error and the related contention that the district court relied upon facts in the defendants’ submissions that were not uncontroverted. We consider this case entirely on the basis of the facts set forth in the complaint and the plaintiffs’ affidavits, accepting all of them as true. If the district court’s judgment is sustainable on that basis, no such errors could have affected the substantial rights of the plaintiffs. See 28 U.S.C. § 2111 (1976).

2 . The dissent makes much of “the district court’s statement ... that ‘there are some essential disputes as to the material facts in the case.’” Dissent at 159. There are indeed disputed facts, but we have resolved all disputes in the light most favorable to the plaintiffs, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1966), and still find that the plaintiffs have failed to state a claim. Under those circumstances, it is proper to dismiss.

3 . This is the only alternative. The dissent’s hypothesis, Dissent at 170, that the camp could be relocated at a distance from the plaintiffs’ property is simply euphemism for closing down the existing camp and opening a new one. The dissent’s position on this point amounts to saying that, before we can conclude that there is an intrusion upon foreign affairs, we must find that an equivalent training camp could not be established elsewhere — or must at least permit the plaintiffs to demonstrate that one could be established elsewhere. We think ourselves poorly qualified to judge the relative geopolitical and military advantages of various sites for training camps (assuming that training is the sole objective), and think the closing down of an existing camp to be in and of itself an intrusion. Thus, the only conceivable alternative to the conclusion that an injunction would constitute an intrusion (and even this alternative may represent too much of a concession) is the possibility that the existing camp could continue to function on lands which it may now occupy adjacent to plaintiffs’ property. We had not considered the possibility raised by the dissent, id. at 163 n. 36, that the injunction could exclude from its prohibitions that portion of the ranch known as the “designated area,” since the plaintiffs claim full ownership rights in that portion as well as in the rest of the ranch. In any event, even if the district court’s equitable decree permitted continuing unlawful occupation of the “designated area,” the problems of supervision would be precisely the same as those we are about to discuss with regard to the alternative of adjacent lands.

4 . The dissent points out that “[c]ourts often properly issue equitable decrees involving property outside the jurisdiction of the court.” Dissent at 168. That is true in respects not pertinent here—notably, where the property in question is personalty (which was the case in Phelps v. McDonald, 99 U.S. (9 Otto) 298, 25 L.Ed. 473 (1879), quoted by the dissent). Even when realty is involved, certain equitable decrees will issue as a matter of course, e.g., decrees requiring execution of a deed, which can be done, of course, in the state where the decree is rendered regardless of where the land is found. But when it comes to enjoining a trespass in another jurisdiction, the great weight of authority supports our statement in text. See 42 Am.Jur.2d Injunctions § 151 (1969); 92 C.J.S. Venue § 38b (1955).

5 . The Defense Department here contends that the presence of our forces is only at the invitation of the Honduran government, which ultimately determines and controls the location of the training activities. Since that allegation is controverted, it cannot be considered in the context of this 12(b)(6) motion as a basis for invoking the act of state doctrine. See Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726 (1918).

6 . This is the only fact for which we rely upon information contained outside the plaintiffs’ complaint. It involves no “speculation favorable to the defendants,” Dissent at 159, or “slant of the inferences” in favor of the defendants, id., but is contained explicitly in sworn affidavits submitted by the plaintiffs:

I and my men have observed military activities carried out almost every day in the Taya Crique and the Los Presos sections. Green Berets, and Honduran and Salvadoran soldiers enter and leave by car and on foot, loaded with military equipment.

Castro Declaration at 1, filed July 25, 1983.

Almost daily during the past three weeks, I, my family and other workers have seen American soldiers (Green Berets), and Salvadoran and Honduran soldiers enter the section of Taya Crique, that is located on the other side of the highway, right across from my house. They enter in groups of various sizes, sometimes of up to 70 or 100 soldiers.

Reyes Declaration at 1, filed July 25, 1983.

I have asked United States and Honduran Military Officials in charge of the Regional Military Training Center to Escort my workers into the fields ....

Ramirez Third Supplemental Declaration at 3, filed Sept. 7, 1983. None of the affidavits asserts, as the dissent maintains, that “Honduran troops were not involved in the U.S. excursions onto the plaintiffs’ property,” Dissent at 159 n. 14, but only that Honduran troops did not participate in the “reconnaissance” and “surveying and measuring” which resulted in the selection of this particular site for the training camp. That is, of course, a crucial fact for the plaintiffs, and as our statement of the case shows we have assumed it in their favor (“The Defense Department selected the site,” supra, p. 3). It is undisputed, however, that Honduran troops are participating in this operation.

The dissent views this case as one in which the district court has “improperly relie [d] on factual materials outside the complaint and construe [d] those materials in favor of the defendants,” whereupon our function is “to review and correct [that] error” without ourselves resorting, of course, to the extra-complaint materials. Dissent at 159. Even if this view were correct, its effect would be to exclude only the fact here under discussion, which is not central to our opinion so that its exclusion would not alter our result. But these affidavits need not and indeed cannot be disregarded. Rule 12(b)(6) requires that when such material has been submitted and received, the motion to dismiss “shall be treated as one for summary judgment” — which means, of course, that the materials shall be considered. The plaintiffs’ only contention on appeal in this regard has not been that the materials beyond the complaint should not have been considered, but rather that those portions of such materials favorable to the defendants and not uncontro-verted should not have been used to support the district court’s decision. As indicated in note 1, supra, we have avoided all possibility of this defect in our decision by considering only the plaintiffs’ extra-complaint materials. But beyond the technicalities, we do not see how the dissent thinks we can possibly do harm to the “substantial rights” of the plaintiffs, see 28 U.S.C. § 2111 (1976), if we affirm the district court on the basis of submissions which the plaintiffs made to the district court, cited in their briefs before us, and referred to in their oral argument.

7 . The Federal Tort Claims Act excepts damage occurring abroad, and thus would not be available. 28 U.S.C. § 2680(k) (1976). The dissent expresses no opinion regarding the validity of the Alien Tort Statute claim, hence under its view the Honduran plaintiffs might have a money remedy.

8 . See 1 Restatement (Second) of Agency § 244 at 537 (1958):

A master is subject to liability for a trespass or a conversion caused by an act done by a servant within the scope of employment.

9 . The Secretary had actually exercised that power at a later date. The original taking by a subordinate officer was relevant only because, if it had been effective to raise a Tucker Act claim, the plaintiff’s claim was time-barred. The Court in effect denied a Tucker Act remedy in order to preserve one.

10 . It is questionable whether the outcome in Southern California Financial Corp. was correct, since the Court of Claims has subsequently held that the statute at issue, now 10 U.S.C. § 2662(c) (1982), only applies to formal acquisitions and condemnations, and not to so-called “inverse condemnations” such as that represented by the present suit, in which the plaintiff is alleging under the Tucker Act a taking that the government denies. Armijo v. United States, 663 F.2d 90, 96-97 (Ct.C1.1981). While Armijo seeks to distinguish Southern California Financial Corp., the effort does not seem to us notably successful.

The holding and reasoning of Armijo apply as well to the companion statutory provision which the dissent believes may preclude Tucker Act relief in the present case — 10 U.S.C. § 2676 (1982), which states that “no military department may acquire real property not owned by the United States unless the acquisition is expressly authorized by law.” That provision is obviously meant to control the military’s use of unrestricted appropriated funds for the acquisition of real estate, and has nothing to do with eliminating the safety net of Tucker Act relief in inverse condemnation cases against the military. See generally Regional Rail Reorganization Act Cases, 419 U.S. 102, 125-36, 95 S.Ct. 335, 349-350, 42 L.Ed.2d 320 (1974). To our knowledge, such a vast exemption from Tucker Act liability for actions by the armed forces has never been suggested; the many cases that impose such liability should eliminate the dissent’s concern on this point. See, e.g., Branning v. United States, supra, 654 F.2d 88; Foster v. United States, 607 F.2d 943 (Ct.Cl.1979).

11 . It is of no significance, as the dissent thinks, that the Court in Portsmouth “remanded the case to the Court of Claims for a determination whether there was in fact sufficient authority” to support Tucker Act relief. Dissent at 165. Since the suit in Portsmouth had been brought in the Court of Claims, to avoid the necessity of remand the Supreme Court would have had to make precisely the opposite determination of that involved here — namely, that it could not be found that the government officers were acting within the normal scope of their duties. As the Court’s discussion shows, the facts of the case would not support that determination. Moreover, Portsmouth arose on a pure demurrer, so that the parties there, unlike here, had had no opportunity to make evidentiary submissions.

12 . Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952), the case on which the plaintiffs and dissent rely heavily for the contention that defendants here were acting outside their authority, obviously assumed that the question of lack of authority for Tucker Act purposes is distinct from that of lack of constitutional authority, since it discussed them entirely separately (compare Part I of the opinion, id at 584-85, 72 S.Ct. at 865-866, with Part II, id. at 585-89, 72 S.Ct. at 865-866, 867-868), and resolved only the latter.

13 . The dissent’s argument that the Tucker Act remedy is inadequate because the type of property damage here alleged is immeasurable in money terms need not detain us, since it would read the government’s eminent domain power out of the Constitution. The dissent’s view, that the threat to Ramirez’s physical safety constitutes irreparable harm, would be correct if the government were seeking to harm Ramirez. In fact, however, the threat to his physical safety arises only because of his continuing occupation and use of the land. It is not the law that a taking can be enjoined whenever the government puts land it takes to a new use which is hazardous to the former owner who tries to retain possession.

We do not understand the dissent’s complaint that, since the issue of availability of a Tucker Act remedy “is intertwined with the merits of the plaintiffs’ case,” our holding “im-permissibly decides the merits of the plaintiffs’ case on review of a dismissal for lack of jurisdiction,” Dissent at 166. In the first place, it is entirely proper for an appellate court to affirm on the merits a dismissal based on jurisdictional grounds. See Walton v. Morgan Stanley & Co., 623 F.2d 796, 797-98 & n. 1 (2d Cir.1980). In the second place, jurisdictional issues are frequently intertwined with the merits and such issues are just as frequently disposed of on review. When, for example, a complaint is dismissed on standing grounds because the plaintiff is not arguably within the “zone of interests” protected by the statute under which he sues, that jurisdictional issue necessarily determines the merits question of whether he is entitled to relief under the statute. See, e.g., Tax Analysts & Advocates v. Blumenthal, 566 F.2d 130, 143-45 (D.C.Cir. 1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978).

14 . As noted earlier, the plaintiffs assert that their total investment in the property is now worth $13,000,000, Appellants’ Motion for Injunction Pending Appeal at 6, and that about half the property and about 90 percent of the year-round grazing land is occupied by the base, id. at 40.

15 . Where, as here, the effect of a declaratory judgment is the same as the effect that would be produced by success in a Tucker Act suit, we do not understand what further psychological inquiry the dissent would conduct in order to establish that the former is a “pretext” for the latter. Dissent at 172. While some opinions may choose to characterize the equivalency as a pretext, not all do so, see Amalgamated Sugar Co. v. Bergland, supra, and no case we are aware of elevates that characterization to an actual substantive requirement.

16 . Since the plaintiffs have not specifically sought monetary relief, and since there is no impending time bar that would prevent the refiling of this action, if plaintiffs so desire, in the Claims Court, we do not transfer this case to the Claims Court under 28 U.S.C.A. § 1631 (1983 Supp.). Cf. Eccles v. United States, 396 F.Supp. 792, 796-97 (D.N.D.1975).

17 . The reason it must reach them is not, as the dissent suggests we are asserting, Dissent at 157 n. 9, that they are both standing issues. (As to the American plaintiffs, at least, there is injury in fact and an arguable claim under the Constitution, though not necessarily a claim that is valid.) Rather, the dissent must reach these issues because, unless they are resolved in the plaintiffs’ favor, the judgment below must stand.

18 . The cases cited by the dissent did not address claims by foreign corporations with regard to action outside the jurisdiction of the United States. Russian Volunteer Fleet v. United States, 282 U.S. 481, 51 S.Ct. 229, 75 L.Ed. 473 (1931), involved actions taken by American officials in the United States against an alien corporation. Porter v. United States, 496 F.2d 583 (Ct.Cl.1974), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 761 (1975), involved a claim by a corporation chartered in Micronesia with regard to a taking in Micronesia, at a time when Micronesia was a United States trust territory. Act of June 30, 1954, ch. 423, 68 Stat. 330, as amended by Act of July 19, 1962, Pub.L. No. 87-541, 76 Stat. 171, and Act of May 10, 1967, Pub.L. No. 90-16, 81 Stat. 15. Caltex (Philippines), Inc. v. United States, 100 F.Supp. 970 (Ct.Cl.1951), involved a claim by a corporation chartered in the Philippines, with regard to a taking in the Philippines at a time when those islands were a possession of the United States, governed as a Commonwealth pursuant to the Tydings-McDuffie Act of 1934, ch. 84, 48 Stat. 456.

19 . This must be a serious charge, since the dissent’s notion of ordinary lengths embraces alluding to factual allegations contained in, and even appending to its opinion, a letter from plaintiff Ramirez to the United States Ambassador to Honduras, written after this appeal was argued. See Dissent at 173 n. 80 & App. While the allegations that letter contains in no way affect our opinion, we regret the inducement to improper appellate practice which reliance upon such material entails.