Tran et al v. United States Department of State et al
Filing
62
ORDER AND REASONS granting 55 Motion to Dismiss for Lack of Jurisdiction, 55 Motion to Dismiss for Failure to State a Claim, 55 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DO THI TRAN, ET AL.
CIVIL ACTION
VERSUS
NO. 13-646
UNITED STATES DEPARTMENT OF STATE, ET AL.
SECTION "B"(2)
ORDER AND REASONS
Causes of Action and Facts of the Case
Plaintiffs are naturalized Vietnamese-Americans and a
national Vietnamese-American non-profit organization who seek
class action declaratory and injunctive relief against
Defendants, who are agencies and officials of the United States
government. Plaintiffs assert that on or before April 1975 they
were citizens of the Republic of South Vietnam and owned real
property before Communist forces took control of the country.
They subsequently fled to the United States at various times.
They left their property behind, which they claim was seized by
the Vietnamese government and nationalized.1
Plaintiffs allege two causes of action. First, they argue
that Defendants have violated federal law by providing
assistance to Vietnam. Second, they argue Defendants have
discriminated against them in violation of the 14th Amendment
Equal Protection Clause and the 5th Amendment Due Process Clause.
1
Some of the Plaintiffs are the children of parents whose property was taken.
(Rec. Doc. No. 45 at ¶ XII).
1
Defendants seek dismissal, arguing the Court is barred from
hearing the case because Plaintiffs lack standing, Plaintiffs’
claims are political questions, and the statute of limitations
has expired for Plaintiffs’ Constitutional claims.
Accordingly, and for the reasons articulated below IT IS
ORDERED that Defendants’ Motion to Dismiss or in the Alternative
for Summary Judgment (Rec. Doc. No. 55) is GRANTED and
Plaintiffs’ claims are DISMISSED.
Law and Analysis
I. Statutory Claims
Plaintiffs point to 22 U.S.C. § 2370(e)(1) as prohibiting
the grant of aid by the United States to certain foreign
countries who have expropriated the property of United States
citizens. That provision however was subsequently superseded by
22 U.S.C. § 2370a. See Talenti v. Clinton, 102 F.3d 573, 575
(D.C. Cir. 1996). The Court therefore analyzes Plaintiffs’
claims under § 2370a.
§ 2370a provides in relevant part:
(a) Prohibition
None of the funds made available to carry out this Act, the
Foreign Assistance Act of 1961 [22 U.S.C.A. 2151 et seq.],
or the Arms Export Control Act [22 U.S.C.A. 2751 et seq.]
may be provided to a government or any agency or
instrumentality thereof, if the government of such country
(other than a country described if subsection (d) of this
section)—
(1) has on or after January 1, 1956-(A) nationalized or expropriated the property of any United
States person . . .
2
However the prohibition on aid contains a waiver provision,
which reads “[t]he President may waive the prohibitions in
subsections (a) and (b) of this section for a country, on an
annual basis, if the President determines and so notifies
Congress that it is in the national interest to do so.” 22
U.S.C. § 2370a (g).
Separate and apart from the prohibition in § 2370a,
Plaintiffs also point to 22 U.S.C. § 2370(f)(1) which provides:
(f) (1) No assistance shall be furnished under this
chapter, (except section 2174 (b) of this title) to any
Communist country. This restriction may not be waived
pursuant to any authority contained in this chapter unless
the President finds and promptly reports to Congress that:
(A) such assistance is vital to the security of the United
States;
(B) the recipient country is not controlled by the
international Communist
conspiracy; and
(C) such assistance will further promote the independence
of the recipient country from international communism. For
the purposes of this subsection, the phrase “Communist
country” includes specifically, but is not limited to, the
following countries: Democratic People’s Republic of Korea,
People’s Republic of China Republic of Cuba, Socialist
Republic of Vietnam, Tibet[.]
However, like the provision above, § 2370(f) also contains a
separate Presidential waiver option reading:
(2) Notwithstanding the provisions of paragraph (1) of this
subsection, the President may remove a country, for such
period as the President determines, from the application of
this subsection, and other provisions which reference this
subsection, if the President determines and reports to the
Congress that such action is important to the national
interest of the United States. It is the sense of the
Congress that when consideration is given to authorizing
3
assistance to a country removed from the application of
this subsection, one of the factors to be weighed, among
others, is whether the country in question is giving
evidence of fostering the establishment of a genuinely
democratic system, with respect for internationally
recognized human rights.
Summarizing the two provisions restricting aid that
Plaintiffs rely on, two principles are clear: (1) Both statutes
require the suspension of U.S. foreign aid to countries if
certain conditions are met, i.e. a country has expropriated
Americans’ property or a country is communist; and (2) Both
statutes can be unilaterally disregarded by the President upon a
finding that continuing to provide the aid is in the national
interest, so long as the President reports this finding to
Congress.
Defendants, in their Opposition, do not appear to dispute
that Plaintiffs’ land was expropriated by the government of
Vietnam, or that Vietnam remains a communist country. Thus, the
Court assumes for purposes of the instant motion that the
statutory conditions to halt aid are present.
Turning to the waiver provisions, the President has
delegated his authority to waive the aid restrictions to the
Secretary of State. See Executive Order 12163, 44 Fed. Reg.
56673 (Sept. 29, 1979); Pres. Mem. of July 26, 1994, 59 Fed.
Reg. 40205. The Secretary of State has waived § 2370(f) as it
applies to Vietnam. Comm. Int’l Relations & H. Comm. on Foreign
4
Relations, I-A Legislation on Foreign Relations Through 2008 §
620 n.1004 (March 2010). No similar waiver has been made under §
2370a.
In place of an argument that § 2370a has been complied
with, Defendants argue that Plaintiffs lack standing to
challenge noncompliance with the statute. In the alternative
they argue that compliance with the statute represents a
political question.
In order for a Plaintiff to establish standing, three
elements must be met:
First, the plaintiff must have suffered an injury in fact—
an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent,
not conjectural or hypothetical. Second, there must be a
causal connection between the injury and the conduct
complained of—the injury has to be fairly traceable to the
challenged action of the defendant, and not the result of
the independent action of some third party not before the
court. Third, it must be likely, as opposed to merely
speculative, that the injury will be redressed by a
favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(internal citations and quotations omitted).
The Fifth Circuit has not had an opportunity to address the
application of either provision at issue in this case. The D.C.
Circuit, in Talenti v. Clinton, 102 F.3d 573 (D.C. Cir. 1996),
considered a claim under § 2370a brought by an American citizen,
Talenti, who claimed the Italian government had rezoned and
expropriated millions of dollars worth of his property from 1974
5
to 1985. Id. at 575. He sought to cease United States foreign
aid to Italy based on the statute and the lack of a Presidential
waiver. The D.C. Circuit found that Talenti lacked standing.
Specifically, it found Talenti could not meet third requirement
of standing – redressability – because it was speculative, if
not “doubtful”, that any relief granted under that statute would
redress Talenti’s injury. Id. at 577. The court recognized that
§ 2370a does not require the suspension of aid, but instead
allows the President to waive the prohibition on aid by
reporting the waiver to Congress. Accordingly, the only relief
the court could accord Talenti was to order the President to
report any waiver to Congress before resuming aid. Id. That
relief could not redress Talenti’s injury, because forcing the
President to make the report to Congress would do little if
anything to assist Talenti in getting compensation for his
property. Id. at 578. Further, even if aid was halted, that
likewise would not redress Talenti’s claims – since it was
merely speculative that the Italian government would respond to
the denial of aid by remedying his property claims. Id.
The United States District Court for the District of Puerto
Rico reached a similar conclusion on standing when faced with a
challenge to aid to the Dominican Republican under § 2370a.
Betteroads Asphalt Corp. v. United States, 106 F. Supp. 2d 262,
267 (D.P.R. 2000).
6
Further, in Aerotrade, Inc. v. Agency for Int'l Dev., Dep't
of State, 387 F. Supp. 974 (D.D.C. 1974) the United States
District Court for the District of Columbia found a plaintiff
lacked standing to challenge aid to Hati. That case dealt with
22 U.S.C. § 2370(e)(1), the provision cited by Plaintiffs in
their complaint here but which has been superseded by § 2370a.
Nonetheless, the court’s reasoning is nearly identical, and
recognized that because the President was free to waive the
provision and because there was a lack of evidence that stopping
aid would remedy plaintiff’s injury, the plaintiff lacked
standing. Id. at 975-76.
In short, no court has permitted the type of suit advanced
here to go forward. Plaintiffs’ only retort to this fact is to
claim that those prior cases are distinguishable because in
those cases “there were no prior Settlement Claims Act
established by Congress for the specific purpose of compensating
property losses of U.S. Citizens nor were they presented with
such unique facts as this case.” Opposition, (Rec. Doc. No. 58
at 19). The Court is not persuaded. The fact that a settlement
claims process exists does not make it more likely that
Plaintiffs’ claims can be redressed by court action. Further,
while the facts of this case are no doubt unique, that still
does not change the inability of the Court to redress
Plaintiffs’ grievances in this forum.
7
The Court agrees with the case law referenced above and
finds that the Plaintiffs here lack standing to pursue suit
against Defendants. Plaintiffs have failed to allege how a
favorable ruling would redress their injury. Like the plaintiffs
in the cases recited above, it is mere speculation to assume
that a court order halting aid or requiring the President to
meet the reporting requirements would assist in resolution of
Plaintiffs’ land disputes. While the Court joins in Plaintiffs’
frustration, Plaintiffs lack the necessary legal standing to
challenge the alleged failure to comply with clear statutory
provisions. Accordingly, dismissal is appropriate under either
the motion to dismiss or summary judgment standard.2
II. Constitutional Claims
Plaintiffs next claim Defendants have violated their 5th and
14th Amendment rights by discriminating against VietnameseAmericans. Specifically, Plaintiffs argue that Defendants have
mishandled the expropriation claims brought by foreign born
Vietnamese-Americans, but have honored claims brought by
American born citizens – thus violating the equal protection
rights of foreign born citizens.
Except in limited circumstances not relevant here, “every
civil action commenced against the United States shall be barred
2
Because Plaintiffs lack standing, thus barring the Court from jurisdiction
over the case, the Court finds no reason to determine if Plaintiffs’ claims
are alternatively barred under the political question doctrine.
8
unless the complaint is filed within six years after the right
of action first accrues.” 28 U.S.C. § 2401(a). Plaintiffs’
allegations in their complaint are that:
From 1975 to 1995, the U.S. Government through the
Department of State, and/or the Office of the U.S. Trade
Representative, and/or the Federal Claims Settlement
Commission had persistently pressed the Socialist Republic
of Vietnam to pay compensation to naturally born U.S.
citizens whose properties had been seized or nationalized
by the Vietnamese government after the Vietnam War.
(Rec. Doc. No. 45 at ¶ XLIX)
During that same time period, Plaintiffs claim the U.S.
government did not make similar demands or arrangements for
naturalized Vietnamese-Americans to obtain compensation for
their property. (Id. at ¶ LIII).3
Accepting Plaintiffs’ claims as true, the statute of
limitations on their claims expired at the latest in 2001 – six
years after the Defendants alleged discriminatory conducted
concluded in 1995. Plaintiffs’ counsel filed his clients’ claims
in 2013, well beyond obvious legal time limitations. The claims
are therefore time barred, and must be dismissed.4
3
In their Opposition to the instant Motion, Plaintiffs seem to retract
slightly from their prior assertion in their Complaint and concede that at
least some naturalized Vietnamese-Americans may have been afforded relief
during the 1975-1995 period. See Opposition, (Rec. Doc. No. 58 at 24)
(stating “[f]rom 1975-1995, the Federal Claims Settlement Commission (FCSC)
heard over 534 claims against Vietnam and awarded 192 claims to most, if not
all, natural-born citizen”) (emphasis added). In short, Plaintiffs seem
unsure exactly who was awarded claims from the FCSC.
4
More recently, Plaintiffs claim they have sent requests and/or petitions to
various executive branch officials and agencies in the hopes of redressing
their land claims. Plaintiffs allege their complaints have not been resolved
through this process. These unresponded to petitions do not evidence any
9
Accordingly, and for the reasons articulated above IT IS
ORDERED that Defendants’ Motion to Dismiss or in the Alternative
for Summary Judgment (Rec. Doc. No. 55) is GRANTED and
Plaintiffs’ claims are DISMISSED.
New Orleans, Louisiana, this 9th day of May, 2014.
_______________________________
UNITED STATES DISTRICT JUDGE
unlawful discrimination or differential treatment. Plaintiffs have not
provided any evidence that petitions by American born citizens have been
answered where naturalized citizen requests have not. Rather, the only
differing treatment between American born citizens and naturalized citizens
alleged occurred between 1975 and 1995.
10
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