Mark Munns v. John F. Kerry , 782 F.3d 402 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK MUNNS; CHRISTA MUNNS, No. 12-15969
administrators for the separate Estate
of Joshua Munns; DENNIS D.C. No.
DEBRABANDER; SHARON 2:10-cv-00681-
DEBRABANDER, administrators for MCE-EFB
the separate Estate of John Young;
LORI SILVERI, administrator for the
separate Estate of John Cote, OPINION
Plaintiffs-Appellants,
v.
JOHN F. KERRY, in his official
capacity as United States Secretary
of State; JENNIFER FOO, in her
official capacity; UNITED STATES OF
AMERICA; LLOYD’S OF LONDON;
CNA FINANCIAL CORPORATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted
September 11, 2014—San Francisco, California
Filed March 20, 2015
2 MUNNS V. KERRY
Before: Stephen Reinhardt, Raymond C. Fisher
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Fisher;
Concurrence by Judge Reinhardt
SUMMARY*
Standing / Jurisdiction
The panel affirmed the district court’s dismissal of the
plaintiffs’ equitable claims due to lack of standing and their
federal benefits claims due to lack of jurisdiction, and vacated
the district court’s dismissal of the due process and takings
claims for withheld back pay and insurance proceeds in an
action brought against United States government officials by
family members and a coworker of three Americans who
were kidnapped and killed while providing contract security
services during the United States military occupation of Iraq.
The panel held that the plaintiffs had not shown that they
were likely to be harmed in the future by the United States’
policies governing the supervision of private contractors and
the response to kidnappings of American citizens in Iraq; and
therefore, the plaintiffs lacked Article III standing to seek
prospective declaratory and injunctive relief regarding those
policies. The panel also held that the plaintiffs failed to
allege a governmental waiver of sovereign immunity that
would confer jurisdiction in the district court over their
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MUNNS V. KERRY 3
monetary claims. Finally, the panel held that the United
States Court of Federal Claims had jurisdiction over the
plaintiffs’ claims for withheld back pay and insurance
proceeds, and directed the district court to sever and transfer
those claims under 28 U.S.C. § 1631.
Judge Reinhardt concurred, and wrote separately to
emphasize that it would not be appropriate for the court to
resolve in this case any questions regarding the proper
policies for the government to follow with respect to the role
of contractors in Iraq, nor determine how the government, or
the families of hostages, should deal with terrorist groups
who hold hostage United States citizens.
COUNSEL
William Wayne Palmer (argued), Law Offices of William W.
Palmer, Sacramento, California, for Plaintiffs-Appellants.
H. Thomas Byron, III (argued), Michael Raab, Stuart F.
Delery, Assistant Attorney General, Joyce R. Branda, Acting
Assistant Attorney General, and Benjamin B. Wagner, United
States Attorney, United States Department of Justice, Civil
Division, Appellate Staff, Washington, D.C., for Defendants-
Appellees.
4 MUNNS V. KERRY
OPINION
FISHER, Circuit Judge:
This case arises from the kidnappings and brutal killings
of three Americans who were providing contract security
services during the United States military occupation of Iraq.
The plaintiffs, who include family members and a former
coworker of these three men, brought suit against United
States government officials to challenge policies governing
the supervision of private contractors and the response to
kidnappings of American citizens in Iraq (“policy claims”).
They also claim the government is withholding back pay, life
insurance proceeds and government benefits owed to the
families of the deceased contractors (“monetary claims”).
The district court dismissed the policy claims for lack of
standing and for presenting nonjusticiable political questions.
It dismissed the monetary claims for failure to establish a
waiver of the government’s sovereign immunity from suits
for damages and for failure to state a claim for which relief
could be granted. We hold that the plaintiffs have not shown
they are likely to be harmed in the future by the challenged
policies. They therefore lack standing to seek prospective
declaratory and injunctive relief regarding those policies. We
further hold that the plaintiffs have failed to allege a
governmental waiver of sovereign immunity that would
confer jurisdiction in the district court over their monetary
claims. Finally, we hold that the United States Court of
Federal Claims has jurisdiction over the plaintiffs’ claims for
withheld back pay and insurance proceeds, and we direct the
district court to transfer those claims under 28 U.S.C. § 1631.
We thus affirm in part and vacate in part and remand.
MUNNS V. KERRY 5
BACKGROUND1
Plaintiffs Mark Munns, Christa Munns, Dennis
DeBrabander, Sharon DeBrabander and Lori Silveri are
family members of Joshua Munns, John Young and John
Cote, who were kidnapped and tragically killed in Iraq in
2008 while working for a private security firm, Crescent
Security (Crescent). Plaintiff Gary Bjorlin was formerly
employed by Crescent in Iraq and would like to return to that
country as a private security contractor.
In November 2006, while working for Crescent,
contractors Munns, Young and Cote were assigned to guard
a 46-truck convoy traveling from Kuwait to southern Iraq.
The plaintiffs allege that on the day of the convoy, Crescent
issued the men substandard military equipment and ordered
other security team members not to accompany them on the
convoy, and that Iraqi security team members slated to join
the convoy failed to show up for work, leaving only seven
contractors to guard the convoy. When the convoy stopped
at an Iraqi police checkpoint, 10 armed men approached and,
along with the Iraqi police, took five of the contractors
captive, including Munns, Young and Cote. The men were
held for over a year, until their kidnappers brutally executed
them sometime in 2008.
The plaintiffs trace the contractors’ kidnappings and
murders to Crescent’s failure to adequately prepare and
supervise its personnel in Iraq. They allege Crescent’s
1
When reviewing an order granting a motion to dismiss, we accept as
true all well-pleaded facts in the complaint. See OSU Student Alliance v.
Ray, 699 F.3d 1053, 1058 (9th Cir. 2012). The assumed facts in this
opinion are based on the plaintiffs’ first amended complaint.
6 MUNNS V. KERRY
deficient conduct was “officially sanctioned” by the Secretary
of State through an unlawful order issued by the Coalition
Provisional Authority (CPA) overseeing the U.S. occupation.
CPA Order 17 allegedly gave “blanket immunity [to
contractors] from all prosecution,” granting them a “license
to kill” with impunity and permitting contractors to
“circumvent the authority of Congress, the Courts, and the
Constitution.”2 Additionally, the plaintiffs say they heard
rumors that CPA Order 17, and the consequent lawless
behavior of some security contractors, may have been the
motivation behind the kidnappings.
Plaintiff Bjorlin wants to know whether CPA Order 17, or
a similar policy, will be in effect if he returns to Iraq as a
security contractor, as he says he would like to do. He asserts
it is foreseeable that whatever employer he might contract
with will again make assurances about safe working
conditions, but that he cannot know if those assurances will
be honored because the U.S. government has previously
failed to hold its contractors legally accountable. He
contends that CPA Order 17’s alleged grant of blanket
immunity from prosecution exceeded the executive branch’s
constitutional authority. Accordingly, he asks the court to
declare CPA Order 17 unconstitutional and to permanently
enjoin the government from implementing it, or a similar
policy, in the future.
2
The government disputes that the order granted blanket immunity.
Both parties agree that the text of the order itself suggests that it exempted
coalition contractors from prosecution or civil suit in Iraqi courts only, and
not from the application of U.S. law. But the plaintiffs argue that the
practical effect of the order, as it was applied to contractors in Iraq, was
to exempt contractors from all legal accountability.
MUNNS V. KERRY 7
The family members and Bjorlin together focus on the
government’s refusal to negotiate with terrorists for the
release of hostages, particularly as that policy blocks or
impedes private efforts to secure a hostage’s release. The
family members allege that officials in the State Department
prevented them from negotiating for the release of their
relatives, in violation of their First Amendment guarantees of
free speech and free assembly. Specifically, they allege that
officials told them they could not meet with a United States
citizen who had reportedly obtained information on the
location and condition of the captured men. They also allege
that the State Department blocked distribution of 90,000
flyers promising a reward for information about their missing
relatives that the families had sent to “the Middle East.”
The family members request a declaration that the
government cannot prohibit family members from negotiating
for the release of their captured relatives and an injunction
against government policies, such as those alleged above, that
violate their First Amendment rights. Plaintiff Bjorlin joins
the family members’ First Amendment claim. Contemplating
employment in Iraq again, Bjorlin asserts it is foreseeable that
he could be kidnapped and consequently injured by the
government’s policies impeding the efforts of family
members seeking to secure the release of their captured
relatives.
Finally, the family members claim that the government is
unlawfully withholding money that belongs to them as
survivors of their deceased contractor relatives, in violation
of the Due Process and Takings Clauses of the Fifth
Amendment. First, they allege that their relatives’ employer,
Crescent, owes them back pay for their relatives’ time in
captivity and life insurance proceeds that Crescent’s insurer
8 MUNNS V. KERRY
paid to the company but were rightfully due family members
as beneficiaries. The family members state that Crescent
required them to sign releases of liability against the company
and its owner in order to receive a portion of the proceeds but
that some benefits are still being withheld.3 The plaintiffs
contend that the Secretary of State is “ultimately responsible
for its contractor’s nonpayment and retention of private
benefits.” Second, the family members claim entitlement to
benefits under three federally administered compensation
programs: the Longshore and Harbor Workers’ Compensation
Act, the Defense Base Act and the War Hazards
Compensation Act. However, nothing in the record indicates
that the plaintiffs sought these benefits directly from the
agency that administers the programs, the Department of
Labor.
The district court dismissed all claims against the
government with prejudice, ruling (1) the plaintiffs lacked
standing to pursue their policy claims for injunctive and
declaratory relief, (2) those claims raised nonjusticiable
political questions, (3) their monetary claims were barred by
sovereign immunity, and (4) they failed to state a claim under
the Takings Clause. The plaintiffs appeal. We have
jurisdiction under 28 U.S.C. § 1291.4
3
In their amended complaint, the plaintiffs also made claims against
Lloyd’s of London and CNA Financial Corporation, Crescent’s insurers,
regarding the insurance proceeds. The plaintiffs voluntarily dismissed
those defendants in order to pursue this appeal.
4
Because “the record reveals no evidence of intent to manipulate our
appellate jurisdiction” through the plaintiffs’ voluntary dismissal of the
private defendants in this case, the district court’s dismissal of the
government defendants is final and appealable under § 1291. Sneller v.
City of Bainbridge Island, 606 F.3d 636, 638 (9th Cir. 2010).
MUNNS V. KERRY 9
STANDARD OF REVIEW
We review de novo a district court’s dismissal without
leave to amend. See Oki Semiconductor Co. v. Wells Fargo
Bank, 298 F.3d 768, 772 (9th Cir. 2002).
DISCUSSION
A. Standing to Seek Equitable Relief
Bjorlin and the family members contend they have Article
III standing to seek declaratory and injunctive relief regarding
the State Department’s policies governing the immunity of
security contractors and the handling of kidnappings in Iraq.
We disagree. Because the plaintiffs cannot show they are
likely to be harmed by these alleged policies in the future, we
do not have the authority in this case to determine the legality
or constitutionality of the policies or to enjoin their
implementation.
“Article III of the Constitution limits the jurisdiction of
federal courts to ‘Cases’ and ‘Controversies.’” Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)
(quoting U.S. Const. art. III, § 2). “The doctrine of standing
gives meaning to these constitutional limits by ‘identify[ing]
those disputes which are appropriately resolved through the
judicial process,’” id. (alteration in original) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)), and
“serves to prevent the judicial process from being used to
usurp the powers of the political branches,” id. (quoting
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013)).
To establish Article III standing, a plaintiff must show
(1) an injury in fact, (2) a sufficient causal connection
10 MUNNS V. KERRY
between the injury and the conduct complained of and (3) a
likelihood that the injury will be redressed by a favorable
decision. See id. (citing Lujan, 504 U.S. at 560–61). The
principal issue in this case is whether the plaintiffs have
alleged an “injury in fact.” “An injury sufficient to satisfy
Article III must be ‘concrete and particularized’ and ‘actual
or imminent, not conjectural or hypothetical.’” Id. at 2341
(quoting Lujan, 504 U.S. at 560) (some internal quotation
marks omitted). The party asserting the claim has the burden
of establishing standing. See id. at 2342.
1. Bjorlin
Bjorlin does not allege he has already been injured.
Rather, he seeks prospective relief for an injury that might
occur to him in the future. He bases his threat of injury on
the experience of his former colleagues who were captured
and killed in Iraq, allegedly as a result of CPA Order 17 and
the State Department policies that impeded their family
members from seeking their release.
The Supreme Court has “repeatedly reiterated that
‘threatened injury must be certainly impending to constitute
injury in fact,’ and that ‘[a]llegations of possible future
injury’ are not sufficient.” Clapper v. Amnesty Int’l USA,
133 S. Ct. 1138, 1147 (2013) (alterations in original) (quoting
Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). Rather
than requiring literal certainty, the Court has sometimes
framed the injury requirement as a “substantial risk” that the
harm will occur. Id. at 1150 n.5 (citing, inter alia, Monsanto
Co. v. Geertson Seed Farms, 561 U.S. 139, 153 (2010)).
As the district court concluded, the threat of injury to
Bjorlin from CPA Order 17 is too speculative to constitute
MUNNS V. KERRY 11
injury in fact. Even assuming that CPA Order 17 granted
blanket immunity to contractors and contributed to a lawless
atmosphere for security contractors in Iraq, Bjorlin
acknowledges that the order is no longer in effect, although
he speculates that it or a similar order could be reinstated in
the future.5 Moreover, even if he seeks such employment in
the future, Bjorlin may or may not be hired to provide private
security in Iraq. For Bjorlin to be injured in the future,
therefore, he would have to be hired and sent to Iraq to
perform security services again, the State Department would
have to reinstate CPA Order 17 or a similar policy, and that
policy would have to cause injury to Bjorlin in one of the
ways he fears: by creating a lawless atmosphere that
encourages his contractor employer to improperly provide for
his safety, which then leads to his kidnapping, or by
motivating an individual to kidnap him. The chain of events
that must occur for Bjorlin to be injured by the now-
inoperative Order 17 is on its face much too attenuated for the
threatened injury to be certainly impending or to present a
substantial risk of its occurrence. See City of Los Angeles v.
Lyons, 461 U.S. 95, 108–09 (1983) (holding that a plaintiff
who had been subjected to an illegal chokehold by police did
not have standing to pursue a prospective injunction against
the use of chokeholds because it was too speculative that he
would be stopped and illegally choked again). Moreover,
Bjorlin has not alleged facts supporting his speculation that
CPA Order 17 (or its equivalent) would likely be reinstated.
5
As noted earlier, supra n.2, the government disputes that the order
granted blanket immunity. Because the plaintiffs’ lack of standing
deprives this court of jurisdiction to adjudicate their claims regarding the
order, we do not resolve the parties’ dispute over the effect of the order.
12 MUNNS V. KERRY
Bjorlin alternatively argues that the government’s earlier
implementation of CPA Order 17, coupled with the
government’s ongoing assertion that the policy was legal,
make him uncertain as to what policies the government will
implement if he returns to Iraq as a security contractor. This
uncertainty, he contends, constitutes an injury in fact because
it deters him from seeking work in a field of employment that
may subject him to a policy he believes is illegal. The
Supreme Court rejected an analogous theory of injury in
Clapper, in which the plaintiffs argued that their subjective
fear of future violations of their rights deterred them from
certain activities in the present. See 133 S. Ct. at 1151–53.
Acknowledging that, in some circumstances, a similar
“chilling effect” can constitute a cognizable injury, the Court
nonetheless drew the line at situations in which the chilling
effect was based on a plaintiff’s fear of future injury that
itself was too speculative to confer standing. See id. at 1152.
The Court reasoned, “allowing [the plaintiffs] to bring this
action based on costs they incurred in response to a
speculative threat would be tantamount to accepting a
repackaged version of [their] first failed theory of standing.”
Id. at 1151. Here too, Bjorlin’s alternative theory of injury
fails because his deterrence from seeking employment is
ultimately based on his fear of an injury that we have already
determined is too speculative to confer standing. Cf. Drake
v. Obama, 664 F.3d 774, 780 (9th Cir. 2011) (holding a
military service member’s injury was “entirely speculative”
when it was based on his fear of being penalized for obeying
an order from the President that he believed would be
unconstitutional).
Like his allegations regarding CPA Order 17, Bjorlin’s
allegations of the threat of injury from the government’s
hostage response policies are too speculative and abstract to
MUNNS V. KERRY 13
constitute injury in fact. Bjorlin alleges only that he will
“likely be employed as a contractor in the region in the
immediate future,” and that he “may be kidnapped” and
thereafter injured by the U.S. government’s policies that
impede the efforts of private citizens to secure the release of
their captured relatives. First, he alleges no concrete plans to
return, only an abstract “wish[]” to do so. Even if he seeks a
position in private security in Iraq, he may not obtain one.
His “some day” hope to return to Iraq is not the sort of
specific planning that the Supreme Court has held is required
to demonstrate that a future injury is sufficiently imminent for
a federal court to address it prospectively. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 564 (1992). Second,
even if Bjorlin’s plans to return to Iraq were otherwise
sufficiently concrete, his likelihood of being kidnapped would
still be speculative. His supposed risks of injury are at least
as speculative as Lyons’ claim that he was likely to
experience an illegal police chokehold again. See Lyons,
461 U.S. at 108 (“We cannot agree that the ‘odds’ that Lyons
would not only again be stopped for a traffic violation but
would also be subjected to a chokehold without any
provocation whatsoever are sufficient to make out a federal
case for equitable relief.” (citation omitted)). The same is
true of Bjorlin’s likelihood of being injured by the
government’s hostage response policies. The chain of events
leading to injury from these policies is simply too
hypothetical and attenuated to constitute injury in fact. As
the district court summed up:
What Mr. Bjorlin really seeks, then, is a
declaration of his rights, if he elects to serve
again, if he is hired by a contractor, if he is
shipped overseas, if CPA Order 17 is still in
effect or if another similar order instead
14 MUNNS V. KERRY
governs, and, with respect to the kidnapping
declaration, if he is kidnapped, and if he is
then held hostage. Based on this logic, almost
any American even contemplating serving
overseas could make roughly the same
argument.
As with his claims regarding CPA Order 17, Bjorlin
alternatively argues that his uncertainty about how the
government will respond if he were to be taken hostage is
itself an injury because that uncertainty deters him from
seeking employment as a contractor. Because Bjorlin’s
feeling of deterrence is based on a fear of speculative future
injury, this theory of injury fails. See Clapper, 133 S. Ct. at
1152–53.6
In sum, Bjorlin does not allege a sufficient likelihood of
injury resulting from CPA Order 17 or the government’s
hostage response policy, nor is there any probability he could,
given the many inherent contingencies. Therefore, he does
not have standing to seek prospective declaratory and
injunctive relief regarding those policies.
2. Family Members
Plaintiff family members challenge only the hostage
response policies. Unlike Bjorlin, the family members assert
that these policies infringed on their First Amendment rights
in the past. But rather than seeking retrospective relief for
6
We do not suggest that other persons claiming injury from the
government’s alleged hostage response policy in different circumstances
would be unable to allege sufficient facts to establish Article III injury.
See infra note 7.
MUNNS V. KERRY 15
past wrongs, like Bjorlin they ask the court to declare these
policies unlawful and to enjoin their future implementation.
They too lack standing because they have not alleged how the
challenged policies are likely to affect them in the future.
“Past exposure to harmful or illegal conduct does not
necessarily confer standing to seek injunctive relief if the
plaintiff does not continue to suffer adverse effects. Nor does
speculation or ‘subjective apprehension’ about future harm
support standing.” Mayfield v. United States, 599 F.3d 964,
970 (9th Cir. 2010) (citing Lujan, 504 U.S. at 564, and
quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 184 (2000)). “Once a plaintiff has
been wronged, he is entitled to injunctive relief only if he can
show that he faces a ‘real or immediate threat . . . that he will
again be wronged in a similar way.’” Id. (omission in
original) (quoting Lyons, 461 U.S. at 111). Despite being
harmed in the past, the family members must still show that
the threat of injury in the future is “certainly impending” or
that it presents a “substantial risk” of recurrence for the court
to hear their claim for prospective relief. Clapper, 133 S. Ct.
at 1147, 1150 n.5.
The family members have not alleged any facts
demonstrating that they are likely to be reinjured by the
hostage response policies. At oral argument, plaintiffs’
counsel asserted for the first time that the family members
might again seek to communicate within Iraq to determine
who was responsible for the kidnapping and killing of their
relatives. If so, counsel maintained, the government’s past
impediments to their private efforts during a hostage event
16 MUNNS V. KERRY
will once again be applied to them.7 This argument is waived
because it was never presented to the district court below.
See AlohaCare v. Hawaii, Dep’t of Human Servs., 572 F.3d
740, 745 (9th Cir. 2009). In any event, this new assertion still
would not demonstrate the likelihood of injury required for
prospective relief. The family members’ statement that they
might seek to communicate in Iraq to determine who killed
their relatives, coupled with the fact that it is unclear how
hostage response policies would even apply to an inquiry
after the hostage event has concluded, make this claim too
speculative to constitute injury in fact. See Lujan, 504 U.S.
at 564.
***
We hold that the district court properly dismissed the
plaintiffs’ policy claims for lack of standing. We therefore do
not address the political question doctrine as an alternative
basis for dismissing these claims.
7
At oral argument, the government represented that there are no State
Department policies preventing private individuals from making efforts to
secure the release of relatives who are kidnapped abroad, citing the
Foreign Affairs Manual. That manual outlines the U.S. government’s
policies regarding communicating and coordinating with families of
hostages or kidnapping victims. See Hostage Taking and Kidnappings,
7 U.S. Department of State Foreign Affairs Manual 1820. It states that,
in the event a U.S. private citizen seeks the release of their relatives
through the payment of ransom or through any other means that deviate
from U.S. government policy, the government will limit its participation
and cooperation. See id. at 2. But see Rukmini Callimachi, The Cost of
the U.S. Ban on Paying for Hostages, N.Y. Times (Dec. 27, 2014)
(reporting that at least one woman seeking the release of her kidnapped
son was told by U.S. officials that she could be prosecuted for paying a
ransom to her son’s captors).
MUNNS V. KERRY 17
B. Jurisdiction over Monetary Claims
The district court dismissed the plaintiff family members’
due process and Takings Clause claims for their relatives’
back pay, unpaid insurance proceeds and withheld federal
benefits for lack of subject matter jurisdiction and for failure
to state a claim for relief. See Fed. R. Civ. P. 12(b)(1), (b)(6).
As an initial matter, we note that if the district court had no
jurisdiction over the claims, its determination that the claims
failed on their merits was a “nullity.” Orff v. United States,
358 F.3d 1137, 1149 (9th Cir. 2004). So we address
jurisdiction first. We conclude that the plaintiffs have not
alleged a waiver of sovereign immunity that would confer
subject matter jurisdiction on the district court.
“Absent a waiver of sovereign immunity, courts have no
subject matter jurisdiction over cases against the [federal]
government.” Kaiser v. Blue Cross of Cal., 347 F.3d 1107,
1117 (9th Cir. 2003) (citing United States v. Mitchell,
463 U.S. 206, 212 (1983)). “[A]ny waiver ‘must be
unequivocally expressed in statutory text . . . and will not be
implied.’” Ordonez v. United States, 680 F.3d 1135, 1138
(9th Cir. 2012) (omission in original) (quoting Lane v. Pena,
518 U.S. 187, 192 (1996)).
The family members contend that the Federal Tort Claims
Act (FTCA), 28 U.S.C. § 2674, waives sovereign immunity
for their claims. However, they have missed a crucial first
step. The FTCA requires, as a prerequisite for federal court
jurisdiction, that a claimant first provide written notification
of the incident giving rise to the injury, accompanied by a
claim for money damages to the federal agency responsible
for the injury. See 28 U.S.C. § 2675(a); 28 C.F.R. § 14.2(b);
Johnson v. United States, 704 F.2d 1431, 1442 (9th Cir. 1983)
18 MUNNS V. KERRY
(“Exhaustion of the claims procedures established under the
Act is a prerequisite to district court jurisdiction.”). The
plaintiffs have not alleged or provided evidence that they
have exhausted their administrative remedies under the
FTCA, so they cannot rely on that statute’s waiver of
sovereign immunity for jurisdiction.
Alternatively, the plaintiffs cite two other federal statutes
for waiver of sovereign immunity: 28 U.S.C. § 1343(a)(3)
and § 1391(e). Section 1343(a)(3) is a general jurisdiction
statute that “does not waive sovereign immunity.” Jachetta
v. United States, 653 F.3d 898, 908 (9th Cir. 2011). Section
1391(e) provides nationwide venue in the district courts for
mandamus actions against federal officials, but does not
waive sovereign immunity for suits for damages. See
Stafford v. Briggs, 444 U.S. 527, 542 (1980); Gilbert v.
DaGrossa, 756 F.2d 1455, 1460 (9th Cir. 1985).
Next, the plaintiffs argue that the district court has
jurisdiction over their federal benefits claims because the
United States has waived its sovereign immunity under the
three federal statutes at issue: the Longshore and Harbor
Workers’ Compensation Act (LHWCA), the Defense Base
Act (DBA) and the War Hazards Compensation Act
(WHCA). District courts do not have jurisdiction over claims
under the LHWCA, which must first be heard by the
Department of Labor, whose determinations may later be
appealed to the federal courts of appeals. See 33 U.S.C.
§§ 913(a), 921(c); Ingalls Shipbuilding, Inc. v. Dir., Office of
Workers’ Comp. Programs, 519 U.S. 248, 262 (1997). The
DBA incorporates the “protections and procedures” of the
LHWCA, which include the requirement to file a claim with
the Department of Labor before seeking judicial review.
Pearce v. Dir., OWCP, 603 F.2d 763, 765, 770–71 (9th Cir.
MUNNS V. KERRY 19
1979); see also Serv. Empls. Int’l, Inc. v. Dir., OWCP,
595 F.3d 447, 452–54 (2d Cir. 2010). Claims under the
WHCA may be heard only through the Department of
Labor’s administrative process and are “not subject to review
. . . by any court by mandamus or otherwise.” 42 U.S.C.
§ 1715.
Although this court does not have jurisdiction over the
federal benefit program claims, nothing in this opinion
precludes the family member plaintiffs from seeking relief
under these federal statutes through the proper administrative
procedures. As the government has represented to the court,
“no statute of limitations would prevent filing a new
administrative claim at this time.” Appellees’ Supp. Br. 15.
The only possible waivers of sovereign immunity that the
plaintiffs allege involve the Due Process and Takings Clauses
of the Fifth Amendment. But these provisions are not general
waivers of sovereign immunity and do not establish
jurisdiction in the district courts over monetary claims such
as those brought by the plaintiffs. Absent an independent
waiver of sovereign immunity, due process and takings
claims against the federal government in excess of $10,000,
such as the family members’ claims, fall under the exclusive
jurisdiction of the United States Court of Federal Claims
under the Tucker Act, 28 U.S.C. § 1491. See McGuire v.
United States, 550 F.3d 903, 910–11 (9th Cir. 2008). The
district court correctly ruled that it lacked jurisdiction over
the family members’ monetary claims.
C. Transfer
The family members request that their claims be
transferred to the Court of Federal Claims if this court lacks
20 MUNNS V. KERRY
jurisdiction. If we lack jurisdiction over a civil action,
28 U.S.C. § 1631 directs us to transfer a case if (1) the court
to which the action is to be transferred would have had
jurisdiction “at the time [the action] was filed,” and (2) “it is
in the interest of justice” to transfer. See also Clark v. Busey,
959 F.2d 808, 812 (9th Cir. 1992).8 As discussed above, the
due process and takings claims are the plaintiffs’ only
monetary claims for which sovereign immunity has
potentially been waived, and the Tucker Act provides
jurisdiction in the Court of Federal Claims for such claims.
See McGuire, 550 F.3d at 910–11.
The government nonetheless argues that the Court of
Federal Claims has no jurisdiction over the due process claim
because it is not a “money-mandating” provision. This
argument goes too far. “The Court of Federal Claims
ordinarily lacks jurisdiction over due process claims under
the Tucker Act, but has been held to have jurisdiction over
illegal exaction claims ‘when the exaction is based upon an
asserted statutory power.’” Norman v. United States,
429 F.3d 1081, 1095 (Fed. Cir. 2005) (citations omitted)
(quoting Aerolineas Argentinas v. United States, 77 F.3d
1564, 1573 (Fed. Cir. 1996)). “An illegal exaction involves
a deprivation of property without due process of law,” id.,
which is exactly what the plaintiffs allege. But “[t]o invoke
Tucker Act jurisdiction over an illegal exaction claim, a
claimant must demonstrate that the statute or provision
causing the exaction itself provides, either expressly or by
‘necessary implication,’ that ‘the remedy for its violation
8
Although the plaintiffs did not move for transfer in the district court,
we have held that such a motion is not required because § 1631 mandates
that a court “shall” transfer if the necessary conditions are met. See Hays
v. Postmaster Gen. of U.S., 868 F.2d 328, 331 (9th Cir. 1989).
MUNNS V. KERRY 21
entails a return of money unlawfully exacted.’” Id. (quoting
Cyprus Amax Coal Co. v. United States, 205 F.3d 1369, 1373
(Fed. Cir. 2000)). The family members have alleged an
exaction. Although they have not identified in their
complaint a statutory power upon which the alleged exaction
was based, we are not in a position to determine whether the
complaint could be amended to satisfy this jurisdictional
prerequisite. That determination is best left to the Court of
Federal Claims, which has exclusive jurisdiction over Tucker
Act claims such as this. See McGuire, 550 F.3d at 910–11.
The government contends the takings claims cannot be
transferred because they are not colorable claims. To
establish jurisdiction under the Tucker Act, however, “the
Court of Federal Claims asks only whether the plaintiff is
within the class of plaintiffs entitled to recover under the
[provision] if the elements of a cause of action are
established.” Greenlee Cnty. v. United States, 487 F.3d 871,
876 (Fed. Cir. 2007). This jurisdictional inquiry goes only so
far as to determine whether the provision being invoked is a
“money-mandating” source of authority, not whether the
plaintiffs’ claims for relief have any merit. Jan’s Helicopter
Serv., Inc. v. FAA, 525 F.3d 1299, 1309 (Fed. Cir. 2008); see
also In re United States, 463 F.3d 1328, 1335 (Fed. Cir.
2006) (holding that jurisdiction was satisfied because the
statute invoked was money-mandating, even though it was
“clear from the face of [the] complaint that [the plaintiff did]
not come within the reach of [the statute]”). Because the
Takings Clause is a money-mandating provision, which
would entitle the plaintiff family members to relief if they
establish that the government deprived them of property to
which they were entitled without just compensation, see
McGuire, 550 F.3d at 911, the Court of Federal Claims would
22 MUNNS V. KERRY
have jurisdiction over their takings claims if they had been
originally brought there. See 28 U.S.C. § 1631.
Even if the Court of Federal Claims would have
jurisdiction over the due process and takings claims, we still
must determine whether it would be “in the interest of
justice” to transfer. Id. We ordinarily find transfer to be in
the interest of justice where, as here, the plaintiffs appear to
have been “unaware of or confused about the proper forum in
which to file [their] action.” Puri v. Gonzales, 464 F.3d
1038, 1043 (9th Cir. 2006). We therefore direct the district
court, on remand, to transfer the due process and takings
claims to the Court of Federal Claims.9
CONCLUSION
We affirm the district court’s dismissal of the plaintiffs’
equitable claims due to lack of standing and their federal
benefits claims due to lack of jurisdiction. We vacate
dismissal of the due process and takings claims for withheld
back pay and insurance proceeds. Pursuant to Federal Rule
of Civil Procedure 21, we direct the district court to sever the
due process and takings claims from the remainder of the
case, and to transfer them the Court of Federal Claims. See
FDIC v. McGlamery, 74 F.3d 218, 222 (10th Cir. 1996)
9
Admittedly, the plaintiffs’ allegations that the federal government is
directly responsible for the withholding of insurance proceeds and back
pay are quite spare. But we leave such issues to the court with jurisdiction
over the claims.
MUNNS V. KERRY 23
(indicating that the district court should sever the claims
under Rule 21 before transferring only part of the initial
action). Each party shall bear its own costs on appeal.
AFFIRMED IN PART, VACATED IN PART AND
REMANDED.
REINHARDT, Circuit Judge, concurring:
I join fully in Judge Fisher’s opinion for the court.
Although it answers every legal issue presented to us
correctly, I would like to emphasize a few points, mainly to
make certain that it is clear that it would not be appropriate
for us to resolve in this case any questions regarding the
proper policies for our government to follow with respect to
the role of contractors in Iraq. Nor, more important, would it
be appropriate for us to determine here how the government,
or the families of hostages, should deal with any terrorist
group or other foreign entities who may hold captive relatives
of citizens of the United States.
As to the former issue, it is agreed that the Order issued
by the Coalition Provisional Authority governing contractors
in Iraq is no longer in effect; nor is there any indication that
it will be reinstated by the Coalition or by our government in
the future. Under these circumstances, the one plaintiff who
tells us that he may someday want to work for a contractor in
Iraq has no legal basis for requesting us to rule on a non-
existent government policy. Neither Mr. Bjorlin nor we have
any idea what our policy may be as to government contractors
if and when he ever decides to return to Iraq and is again
24 MUNNS V. KERRY
employed there. Under our longstanding rules, courts simply
do not answer hypothetical questions of this kind.
The more troubling and painful question is what the role
of our government should be if and when terrorist groups like
ISIS or Al Queda capture an American citizen and hold him
hostage, and whether the government may, or should, impose
any limitation on the rights of the citizen’s family or friends
to communicate with that group or pay a ransom. It is
significant that the government has told this court that
currently there are no policies preventing private individuals
from making efforts to secure the release of relatives who are
held captive abroad. More important however from the
standpoint of the legal rules that govern us, the parties
bringing the action – relatives of contractors’ employees
“brutally killed,” as Judge Fisher puts it, in the Middle East
– seek no damages resulting from that policy but simply seek
to have the policy declared unlawful. They ask that the
government be enjoined from implementing the policy in the
future. Again, even assuming that contrary to what the
government tells us, such a policy exists, we cannot under
well established legal rules render a decision that will be of
no immediate benefit to the individuals bringing the lawsuit.
Because the plaintiffs have no relatives currently in the
Middle East, or currently in greater danger from terrorist
groups than any of the rest of us, we again face only a
hypothetical question – the kind that courts do not answer.1
1
I do not preclude the possibility that under other circumstances, a court
might find it necessary to consider the constitutionality of rules bearing on
the subject at issue here. This is not that case, however, and further
speculation on this point would be just that – speculation.
MUNNS V. KERRY 25
For theses reasons, we do not consider the wisdom, let
alone the existence or the legality, of any government policy
regarding how to deal with any terrorist groups that may in
the future hold American citizens captive. That is a question
that, for now at least, is best left to the American people.2
2
Judge Fisher has correctly ordered that the claims for back pay, life
insurance proceeds and government benefits filed by relatives of the
murdered contractors be transferred to the Court of Claims. They are
properly resolved by that court, not ours.