Hmong 2 v. United States

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 30 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HMONG 2; et al., No. 19-15226
Plaintiffs-Appellants, D.C. No.
2:17-cv-00927-TLN-AC
v.
UNITED STATES OF AMERICA; MEMORANDUM*
CENTRAL INTELLIGENCE AGENCY,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted March 26, 2020**
San Francisco, California
Before: GOULD, CHRISTEN, and BRESS, Circuit Judges.
In this putative class action under the Federal Tort Claims Act, 28 U.S.C.
§ 1346(b)(1), Plaintiffs allege that the United States failed to protect the Hmong
people from atrocities that the communist government in Laos perpetrated after the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Vietnam War. Plaintiffs claim that in exchange for Hmong assistance during the
war, the United States, including through verbal assurances from Presidents
Eisenhower and Kennedy, promised to protect the Hmong from retribution by the
Laotian government, but then failed to do so. The district court dismissed the case
for lack of subject matter jurisdiction under the political question doctrine. We
affirm.
1. Plaintiffs in their opening brief “agree that the conduct of the United
States in not holding up its part of the treaty in protecting the Hmong soldiers and
their families constitutes political question issues within the meaning of Baker v.
Carr, 369 U.S. 186 (1962).” That concession is well-taken. To determine whether
a claim presents a political question, the Court considers the Baker v. Carr factors
and asks whether the claim inextricably involves:
[1] a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or [2] a lack
of judicially discoverable and manageable standards for
resolving it; or [3] the impossibility of deciding without an
initial policy determination of a kind clearly for
nonjudicial discretion; or [4] the impossibility of a court’s
undertaking independent resolution without expressing
lack of the respect due coordinate branches of
government; or [5] an unusual need for unquestioning
adherence to a political decision already made; or [6] the
potentiality of embarrassment from multifarious
pronouncements by various departments on one question.
Baker, 369 U.S. at 217. The presence of any of these factors is enough to present a
political question, although the factors “often collaps[e]” into each other. Alperin v.
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Vatican Bank, 410 F.3d 532, 544 (9th Cir. 2005). If a case presents a political
question, federal courts lack subject matter jurisdiction to consider it. See Corrie v.
Caterpillar, Inc., 503 F.3d 974, 979–81 (9th Cir. 2007).
The district court correctly determined that Plaintiffs’ claims present
nonjusticiable political questions. Plaintiffs’ lawsuit would require the court to pass
judgment on United States foreign policy in Southeast Asia for a period spanning
several decades. “It is well established that the conduct of foreign relations is
committed by the Constitution to the political departments of the Federal
Government; and that the propriety of the exercise of that power is not open to
judicial review.” Corrie, 503 F.3d at 983 (quotations and alterations omitted). In
addition, “[w]hether to grant military or other aid” to the Hmong “is a political
decision inherently entangled with the conduct of foreign relations.” Id.
2. The district court did not err in rejecting Plaintiffs’ request for an
exception to the political question doctrine for claims based on alleged war crimes.
As we explained in Alperin, the Court is “not a war crimes tribunal” and “[t]o act as
such would require us to intrude unduly on certain policy choices and value
judgments that are constitutionally committed to the political branches.” 410 F.3d
at 560 (quotations and alterations omitted). Plaintiffs acknowledge that Alperin
controls but ask us to re-examine that decision. However, as a three-judge panel, we
are “without authority to overrule a circuit precedent; that power is reserved to the
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circuit court sitting en banc.” Newdow v. Lefevre, 598 F.3d 638, 644 (9th Cir. 2010)
(quotations omitted).
3. Insofar as Plaintiffs’ claims are based on alleged breaches of treaties,
the claims remain nonjusticiable under the political question doctrine under these
circumstances. See Republic of Marshall Islands v. United States, 865 F.3d 1187,
1200–01 (9th Cir. 2017). Plaintiffs have not shown that the treaties at issue are self-
executing, id. at 1192–99, or, in some instances, that they are “treaties” under U.S.
law.
AFFIRMED.
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