Wake Forest Law Review
24Feb

Now Leaving Oklahoma: Castro-Huerta and its Potential to Change State Criminal Jurisdiction on Native Lands

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By: Mathias A. Young

In 2020, the Supreme Court declared that a large part of Oklahoma was still Indian country[1] because Congress had never formally disestablished a reservation. While the McGirt v. Oklahoma[2] decision certainly had a large impact on the state of Oklahoma and was celebrated as a recognition of Native American treaty rights, its impact was felt less outside of the state. However, the Supreme Court left a question unanswered in McGirt that could fundamentally change the way that states prosecute crimes in Indian country.

Under the federal Major Crimes Act,[3] any American Indian[4] who commits certain offenses is subject to the exclusive jurisdiction of the United States.[5] As Justice Gorsuch put it, “[s]tate courts generally have no jurisdiction to try [American] Indians for conduct committed in ‘Indian country.’”[6] A neighboring statutory provision extends this rule more broadly, stating that “[e]xcept as otherwise expressly provided by law, the general laws of the United States . . . in any place within the . . . exclusive jurisdiction of the United States . . . shall extend to the Indian country.”[7]

Therefore, in addition to re-recognizing the Muscogee Creek Nation’s reservation, McGirt essentially removed between ten and fifteen percent of Oklahoma’s population from state criminal jurisdiction when they committed crimes in Indian country. While the Muscogee Creek reservation only covers approximately ten percent of Oklahoma, subsequent state court cases have extended McGirt to re-recognize the Cherokee, Choctaw, Chickasaw, and Seminole reservations, which together cover almost all of eastern Oklahoma.[8] As a result of these decisions, nearly half of Oklahoma’s four million residents now reside in Indian country.[9]

The McGirt decision only touched on whether states have jurisdiction under the Major Crimes Act to prosecute American Indians who commit crimes in Indian country.[10] In response to losing jurisdiction, Oklahoma petitioned the Supreme Court for review of the McGirt decision and the question of whether states have authority to prosecute non-American Indians in Indian country when the victims are American Indian.[11] Although the Supreme Court withheld certiorari on Oklahoma’s first question, it is taking up the second.[12]

Oklahoma argues that previous decisions from the Oklahoma Court of Criminal Appeals overstepped the bounds of both the Major Crimes Act, 18 U.S.C. § 1153, and the General Crimes Act, 18 U.S.C. § 1152.[13] In so doing, it relies on a mix of textual interpretation of the statutes and analysis of nineteenth century precedent. Oklahoma’s textual analysis begins with a study of the text of the General Crimes Act.

Oklahoma takes issue with the Court of Criminal Appeals’ interpretation of two phrases in the General Crimes Act. The state first argues that the phrase “sole and exclusive jurisdiction” as used in the statute describes which laws extend to Indian country, and not what governments have prosecutorial authority over those laws.[14] Next, Oklahoma disagrees with the Court of Criminal Appeals as to the meaning of the phrase “except as otherwise expressly provided by law.”[15] Instead of exempting Indian country from state criminal law without an act of Congress, Oklahoma argues that the phrase refers to federal laws that do not reach Indian country without congressional approval.[16] This distinction, the state argues, allows Oklahoma to exercise concurrent jurisdiction over non-American Indians who commit crimes against American Indians in Indian country.

In addition to the textual argument, Oklahoma also points to a pair of decisions allowing states to exercise prosecutorial authority in Indian country. One, New York ex rel. Cutler v. Dibble,[17] allowed New York to enforce trespass laws against non-American Indians who attempted to settle in Indian country.[18] However, Dibble did not interpret either the Major or General Crimes Act, instead analyzing whether the New York law violated the Commerce Clause or a treaty.[19] Oklahoma also relies on United States v. McBratney,[20] a case interpreting the predecessor to the General Crimes Act that held that Colorado had jurisdiction over a murder committed by a non-American Indian in Indian country.[21] However, McBratney involved a murder where both the defendant and the victim were not American Indians, a situation that the Court affirmed was still within the jurisdiction of the states in McGirt.[22]

In response, Castro-Huerta argues that precedent stands on his side and that the statutory interpretation undertaken by the Court of Criminal Appeals was correct. In analyzing precedent, Castro-Huerta first points to Williams v. United States,[23] where the Supreme Court held that:

“[w]hile the . . .  courts of the State . . . may have jurisdiction over [criminal] offenses committed on this reservation between persons who are not [American] Indians, the . . . courts of the United States . . . have jurisdiction over offenses committed there . . . by one who is not an [American] Indian against one who is.”[24]

Next, Castro-Huerta argues that Williams v. Lee,[25] a civil case involving non-American Indians suing American Indians for a dispute that happened in Indian country, bolsters his case.[26] There, the Supreme Court held that state courts did not have jurisdiction because allowing it would “infringe on the right of the [American] Indians to govern themselves.”[27]

In analyzing the decision of the Court of Criminal Appeals, Castro-Huerta essentially takes the opposite position of Oklahoma. In ascertaining the meaning of “sole and exclusive jurisdiction,” Castro-Huerta argues that the phrase is meant to parallel federal enclaves, where state law is inapplicable.[28] Additionally, Castro-Huerta notes that if Oklahoma’s statutory interpretation is correct, Congress would have had no need to specifically give certain states criminal jurisdiction over crimes involving American Indians on reservations.[29] Castro-Huerta’s argument is, in essence, that if state jurisdiction already extended to crimes involving American Indians in Indian country, Congress would not have assumed the opposite.

If the Supreme Court decides that states have concurrent jurisdiction in criminal cases where the defendant is not ana American Indian but the victim is, the implications will be felt much farther than the bounds of the Sooner State. Although many of the largest reservations, such as the Navajo Nation which encompasses parts of Arizona, New Mexico, and Utah, lie in the western part of the United States, reservations can be found in half of the states.[30] In addition to greatly reducing the judicial autonomy afforded to the Five Tribes of Oklahoma after McGirt and its subsequent state court cases, a decision in favor of Oklahoma in Castro-Huerta could fundamentally reorder the way that state criminal law is applied in Indian country across the United States.

[1] “Indian country” is a legal term of art used to refer to lands under the control of federally recognized tribes. For the sake of accuracy, it is used in this article with the same meaning as the Major Crimes Act, the General Crimes Act, and the caselaw interpreting those statutes.

[2] 140 S.Ct. 2452 (2020).

[3] 18 U.S.C. § 1153(a).

[4] The term “American Indian” was chosen for use by the author throughout this blog. Where an alternative term is used, the different term was the result of a quote or another source.

[5] Id.

[6] McGirt v. Oklahoma, 140 S.Ct. 2452, 2459 (2020).

[7] 18 U.S.C. § 1152.

[8] See generally Grayson v. State, 485 P.3d 250 (Okla. Crim. App. 2021) (Seminole); Spears v. State, 485 P.3d 873 (Okla. Crim. App. 2021) (Cherokee); Sizemore v. State, 485 P.3d 867 (Okla. Crim. App. 2021) (Choctaw); Bosse v. State, 499 P.3d 771 (Okla. Crim. App. 2021) (Chickasaw).

[9] Mitchell Jagodinski, Fallout from McGirt and Testimony About Future Crimes, SCOTUSblog (Aug. 20, 2021, 8:48 PM), https://www.scotusblog.com/2021/08/fallout-from-mcgirt-and-testimony-about-future-crimes/.

[10] McGirt, 140 S.Ct. at 2479.

[11] Petition for a Writ of Certiorari at i, Oklahoma v. Castro-Huerta, No. 21-429 (Sept. 21, 2021).

[12] Oklahoma v. Castro-Huerta, 142 S.Ct. 877 (2022) (mem.).

[13] Petition for a Writ of Certiorari at 11–12, Oklahoma v. Castro-Huerta, No. 21-429 (Sept. 21, 2021).

[14] Id. at 12.

[15] Id.

[16] Id.

[17] 62 U.S. 366 (1858).

[18] Id. at 371.

[19] Id. at 370.

[20] 104 U.S. 621 (1882).

[21] Id. at 624.

[22] McGirt v. Oklahoma, 140 S.Ct. 2452, 2479 (citing McBratney, 104 U.S. at 624).

[23] 327 U.S. 711 (1946).

[24] Id. at 714.

[25] 358 U.S. 217 (1959).

[26] Id. at 218.

[27] Id. at 223.

[28] Brief in Opposition at 13, Oklahoma v. Castro-Huerta, No. 21-429 (2021).

[29] Id. at 11–12.

[30] Frequently Asked Questions, Bureau of Indian Affs., https://www.bia.gov/frequently-asked-questions (last visited Feb. 21, 2022); Eric Johnston, Which States Have Indian Reservations & How Many?, Synonym (Sept. 29, 2017) https://classroom.synonym.com/which-states-have-indian-reservations-how-many-12083590.html.

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4Feb

The Guelph Treasure and the Hunt for Jurisdiction

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By Sarah E. Page

Pop culture is filled with references to hidden Nazi treasure. Monuments Men tells the story of the real hunt for stolen Nazi art[1] Television channels are rife with shows focusing on the search for hidden Nazi gold around the world.[2] However, one hoard is hidden in plain sight, and is now the subject of a dispute that made it all the way to the Supreme Court of the United States, which, in a decision released Feb. 3, sided with the treasure’s current owners regarding whether the dispute should be decided by U.S. courts.[3]

The collection, currently housed in Berlin’s Kunstgewerbemuseum,[4] is filled with artifacts of immense cultural and monetary value, and includes beautiful, gilded ecclesiastical artifacts such as the Cupola Reliquary, the Guelph Cross, and the Portable Altar of Eilbertus.[5] The beauty of the artifacts hides a long and rich history. Although that history originates in the beginnings of the German church, the conflict that brought the treasure before the Supreme Court is rooted in the beginnings of the Nazi Party’s control over Europe. In 1929, a consortium of Jewish art dealers based in Germany purchased the Guelph Treasure and displayed it around the world.[6] After their rise to power in 1933, the Nazi government began pressuring the group to sell their collection to Prussia, which promptly gifted the treasure to Hitler.[7] However, this transaction was for only a third of the collection’s appraised market value.[8]

The unjustly low price paid over 80 years ago is the cause of the current legal battle. A group of the original Jewish art dealers’ descendants composed of Alan Philipp, a resident of the United Kingdom, and United States residents Gerald Stiebel and Jed Leiber, [9] seek legal recourse for what they allege was an unjust transaction. Before availing themselves of the United States court system, the group first tried to use the Limbach Commission in Germany, which was established in 2003 to consider the fate of Nazi-acquired artifacts with questionable provenance that are currently in government possession.[10]

In that commission hearing, the museum foundation currently holding the collection argued that because the collection was in Amsterdam, and not under German control at the time of the sale, it cannot automatically be presumed that the Jewish art dealers faced pressure and threats from the Nazi Party to sell.[11] Arguably, this assertion failed to consider that one member of the group lived in Germany at the time of the deal, and while the treasure might not have been subject to Nazi control, the man may have felt that his life was in danger.[12] Furthermore, the museum claimed that because the market declined due to the Great Depression, the collection was worth much less at the time it was sold, and therefore the sale price was fair,[13] despite evidence of a letter from a Nazi official to Hitler outlining his intent to purchase the collection for a mere third of its value.[14]

The commission agreed with the museum, and determined that the Guelph Treasure was sold for a reasonable price that was not a result of duress.[15] Thus, the museum, whose deputy director has described the Guelph Treasure as “the highlight, the center, the heart of [their] medieval collection,” was not required to return the artifacts to the descendants of the original dealers.[16]

Understandably displeased, the heirs decided to bring their fight to the United States.[17] Most of their causes of action are straightforward, like replevin, conversion, and unjust enrichment;[18] but the question of whether an American court could actually decide these issues is a jurisdictional quagmire that halted the case’s progress in the U.S.

Both the district court[19] and the D.C. Circuit Court of Appeals[20] determined that the claims surrounding the sale of the Guelph Treasure were connected to the genocide of German Jews during the Holocaust, and therefore the Foreign Sovereign Immunities Act (“FSIA”) would not prevent the United States courts from gaining jurisdiction. But the museum appealed this decision to the Supreme Court, arguing that the FSIA’s expropriation exception should not apply, both because the claims are of a domestic taking, from a German citizen to the German government, and because the principle of international comity would require that American courts refrain from making a decision on a matter with only a tenuous connection to the United States.

Normally, foreign governments are granted sovereign immunity from suits in the United States under the FSIA, but there are a few exceptions.[21] Under the FSIA’s expropriation exception, when a foreign state takes property “in violation of international law,” and “that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States,” then the foreign government is susceptible to suits in the United States regarding the taken property.[22] The museum, of course, does not believe this exception applies.

The museum’s first contention seems to rest on the fact that the actual transaction only involved German parties, that the sale itself did not violate international law, and that the transaction’s connection with the horrors of the Holocaust cannot bring claims surrounding the transaction under the purview of the expropriation exception.[23] The taking itself must violate international law, and historically, that can only happen when the government takes from a foreign national.[24] The heirs of the art dealers argue that the court should consider only the plain text of the law, and as “taken in violation of international law” is not defined within the FSIA statute and not an obvious term of art, it should be interpreted according to its plain meaning.[25] Because genocide is an obvious violation of international law, and the potentially unjust sale of the Guelph Treasure was directly related to the Holocaust genocide, then the sale should render the treasure “taken in violation of international law.”[26]

Although the museum is correct and the sale of the Guelph collection was not genocide, Justice Thomas suggested in oral argument that it is impossible to separate actions taken by the Nazi party against the German Jewish population from the Holocaust.[27] However, despite this incisive comment during argument, Justice Thomas joined in a unanimous decision to vacate the lower courts’ interpretation of the expropriation exception.[28] Writing for the court, Chief Justice Roberts adopted the German museum’s perspective on the FSIA.[29]

Because the rest of the FSIA mentions only property related offenses, the Supreme Court stated that the expropriation exception should not be extrapolated to apply to events surrounding human rights violations.[30] This is because international law governing property tends to abide by the “domestic takings rule,” which holds that a government’s seizure of the property of its own citizen is not a matter governed by international law.[31] The Court articulated that Congress’s intention to allow American courts to intervene only when there is state action against property held by a citizen of another state is obvious because the verbiage used in the FSIA expropriation exception is identical to that of the Second Hickenlooper Amendment to the Foreign Assistance Act of 1964.[32] This amendment dictated that federal courts could intervene in situations in which foreign nations had taken adverse action against the property of a non-citizen, and was passed as a reaction to the former Supreme Court’s reluctance to exercise jurisdiction over the actions of a foreign nation on foreign soil involving an American company’s property.[33] However, Congress did not alter the traditional “domestic takings rule” when it passed the Second Hickenlooper Amendment, and instead left state actions against the property of their own citizens out of the purview of international law.[34] Because the sale of the Guelph Treasure was a transaction between German citizens, there is no invocation of international law, and therefore, there is no possibility that the transactions could have violated international law for the purposes of jurisdiction under the FSIA exception.[35]

However, the Supreme Court did leave one small door open to allow the dealers’ descendants another chance at U.S. jurisdiction. If the dealers were no longer considered German citizens at the time of the transaction due to Germany stripping Jewish Germans of citizenship status, the “domestic takings rule” may not apply.[36] However, the Court declined to address this important factor and sent the issue back to the district court to ascertain whether that issue was properly preserved for appeal.[37]

The museum’s next argument is that the principle of comity should prevent American courts from presiding over these claims because Germany has a system that would adjudicate the claims and because the claims hold significant historical and political implications for Germany.[38] At a basic level, comity is the principle that governments should respect the governmental decisions of foreign states.[39] After asserting comity, the nation of Germany was dismissed as a party to the case, but the museum foundation asserts that this principle should cover them as well.[40] The descendants contend that not only is the museum’s comity argument just a restatement of the forum non conveniens argument that was dismissed earlier and not appealed,[41] but also that discretionary comity would be inappropriate here because the descendants would not be able to recover for their claims in Germany.[42] The Supreme Court artfully avoided stepping on international toes by declining to address this issue and basing the outcome of the case solely on the dispute under the FSIA.[43] Therefore, the issue of comity in similar cases is left for another day.

On one hand, the Supreme Court had a sympathetic set of plaintiffs and extreme, visceral disgust for the atrocities committed by the Nazis during the Holocaust. On the other hand, the Court faced the possibility of overly encroaching on international affairs.[44] Although faced with two very compelling arguments and the competing goals of both preserving international relations and recognizing the injustices inflicted on the German Jews by the Nazis, the Court effectively struck a balance between preserving traditional tenants of international law and recognizing the injustices that faced the art dealers at the time of the sale.[45]

[1] See Monuments Men Found., https://www.monumentsmenfoundation.org (last visited Feb. 4, 2021).

[2] See Hunting Nazi Treasure, Nat’l Geographic Channel, https://www.natgeotv.com/ca/hunting-nazi-treasure/about (last visited Feb. 4, 2021); Lost Gold of World War II, History, https://www.history.com/shows/lost-gold-of-world-war-ii (last visited Feb. 4, 2021); Nazi Gold Train, Travel Channel, https://www.travelchannel.com/shows/expedition-unknown/episodes/nazi-gold-part-1 (last visited Feb. 4, 2021).

[3] Federal Republic of Germany v. Philipp, No. 19-351, slip op. at 1, 16 (U.S. Feb. 3, 2021), https://www.supremecourt.gov/opinions/20pdf/19-351_o7jp.pdf.

[4] Hilary McDonnell, An Uncertain Fate for the Guelph Treasure, Hughes Hubbard & Reed (Nov. 11, 2020), https://www.hhrartlaw.com/2020/11/an-uncertain-fate-for-the-guelph-treasure/.

[5] What is the Guelph Treasure?, Stiftung Preußischer Kulturbesitz,

http://www.preussischer-kulturbesitz.de/newsroom/dossiers-and-news/all-dossiers/dossier-the-guelph-treasure/what-is-the-guelph-treasure.html?no_cache=1&L=1 (last visited Feb. 4, 2021).

[6] McDonnell, supra note 4.

[7] Id.

[8] Brief for Respondents at 5, Federal Republic of Germany v. Philipp, No. 19-351 (U.S. Oct. 22, 2020), https://www.supremecourt.gov/DocketPDF/19/19-351/158522/20201022151404770_Respondents%20Brief.pdf.

[9] Brief for Petitioners at ii, Federal Republic of Germany v. Philipp, No. 19-351 (U.S. Sept. 4, 2020), https://www.supremecourt.gov/DocketPDF/19/19-351/153210/20200904172357322_2020-09-04%20Brief%20of%20Petitioners.pdf.

[10] Nicholas O’Donnell, Limbach Advisory Commission Recommends Against German Restitution of “Guelph Treasure,” Focuses on Terms of 1929 Agreement for Intended Sale, Sullivan &Worcester: Art L. Rep. (Mar. 26, 2014, 11:54 AM), https://blog.sullivanlaw.com/artlawreport/2014/03/26/limbach-advisory-commission-recommends-against-german-restitution-of-guelph-treasure-focuses-on-terms-of-1929-agreement-for-intended-sale/.

[11] Christopher F. Schuetze, U.S. Supreme Court to Rule on Medieval Treasure Bought by Nazis, N.Y. Times (July 10, 2020), https://www.nytimes.com/2020/07/10/world/europe/guelph-treasure-germany-us.html.

[12] Schuetze, supra note 11.

[13] O’Donnell, supra note 10.

[14] Brief for Respondents, supra note 8, at 4.

[15] Brief for Petitioners, supra note 9, at 6.

[16] Schuetze, supra note 11 (quoting Lothar Lambacher).

[17] Nicholas O’Donnell, Civil Action Filed Against Germany for Restitution of Guelph Treasure, Sullivan &Worcester: Art L. Rep. (Feb. 24, 2015, 12:27 AM), https://blog.sullivanlaw.com/artlawreport/topic/philipp-v-federal-republic-of-germany-et-al-15-cv-.

[18] Joint Appendix at 125–26, Federal Republic of Germany v. Philipp, No. 19-351 (U.S. Sept. 4, 2020), https://www.supremecourt.gov/DocketPDF/19/19-351/153235/20200904173042682_2020-09-04%20Joint%20Appendix.pdf.

[19] Philipp v. Federal Republic of Germany, 248 F. Supp. 3d 59, 70–72 (D.D.C. 2017), aff’d, 894 F.3d 406 (D.C. Cir. 2018), vacated, No. 19-35,1 slip op. (U.S. Feb. 3, 2021), https://casetext.com/case/philipp-v-fed-republic-of-ger.

[20] Philipp v. Federal Republic of Germany, 894 F.3d 406, 410–413 (D.C. Cir. 2018), vacated, No. 19-35,1 slip op. (U.S. Feb. 3, 2021), https://casetext.com/case/philipp-v-fed-republic-of-germany-2.  

[21] Amy Howe, Argument Preview: Pleading Standards and the “Expropriation” Exception to the FSIA, SCOTUSblog (Oct. 27, 2016, 2:10 PM), https://www.scotusblog.com/2016/10/argument-preview-pleading-standards-and-the-expropriation-exception-to-the-fsia/.

[22] 28 U.S.C. §1605(a)(3), https://www.govinfo.gov/content/pkg/USCODE-2011-title28/html/USCODE-2011-title28-partIV-chap97.htm.

[23] Brief for Petitioners, supra note 9, at 16–18.

[24] Id. at 22–26.

[25] Brief for Respondents, supra note 8, at 11–12.

[26] Id. at 12–13.

[27] Coleman Sanders, Summary: Supreme Court Oral Argument in Federal Republic of Germany v. Philipp, Lawfare (Jan. 12, 2021, 1:19 PM), https://www.lawfareblog.com/summary-supreme-court-oral-argument-federal-republic-germany-v-philipp.

[28] Philipp, slip op. at 15–16.

[29] Id. at 1, 7.

[30] Id. at 4–5.

[31] Id. at 4–6.

[32] Id. at 7–8; see also 22 U.S.C. § 2370(e)(2).

[33] Philipp, slip op. at 7–8; § 2370(e)(2).

[34] Philipp, slip op. at 7.

[35] Id. at 8.

[36] Brief for Respondents, supra note 8, at 27.

[37] Philipp, slip op. at 16.

[38] McDonnell, supra note 4.

[39] Brief for Respondents, supra note 8, at 9–10.

[40] Id. at 10.

[41] Id. at 43.

[42] Id. at 54–55.

[43] Philipp, slip op. at 15–16.

[44] Brief for Petitioners, supra note 9, at 49–50.

[45] Philipp, slip op. at 13 (hinting at potential retaliation if an American court claimed jurisdiction over these claims).

Post image of the Cupola Reliquary, courtesy Kunstgewerbemuseum. Photo by Fabian Frohlich.

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14Oct

Weekly Roundup 10/9-10/13

Categories: 4th Cir. Blog Weekly Roundup
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Weekly Roundup 10/9-10/13
By: Evan Reid & Ashley Collette

United States v. Salmons
In this criminal case, the defendant appealed the district court’s decision, which found his prior crime of aggravated robbery was a predicate crime under the force clause of U.S.S.G.§ 4B1.2, thus requiring a longer minimum sentence. The Fourth Circuit affirmed the judgment of the district court, holding that aggravated robbery was categorically violent.

Fawzy v. Wauquiez Boats SNC
In this admiralty and maritime case, the plaintiff appealed the district court’s decision dismissing the case for lack of jurisdiction. The Fourth Circuit dismissed the appeal for lack of appellate jurisdiction, finding that the district court’s decision was not final because the plaintiff had filed an amended complaint prior to the court’s dismissal of the case.

Lucero v. Early
In this First Amendment case, the plaintiff appealed the district court’s decision dismissing his claim challenging the constitutionality of a protocol that he was arrested for violating. The Fourth Circuit vacated the judgment of the district court and remanded the case, finding the district court did not consider all relevant facts and law in determining whether the protocol was content neutral.

Siena Corporation v. Mayor and City Council of Rockville, Maryland
In this civil case, the plaintiff appealed the district court’s dismissal of its claim that the City Council violated its constitutional rights when it passed a zoning amendment prohibiting the construction of a self-storage facility based on its proximity to a school. The Fourth Circuit affirmed the dismissal, holding that the plaintiff did not have a constitutionally-protected property right.

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30Oct

Fourth Circuit Clarifies “Political Question Doctrine”

Categories: 4th Cir. Blog Civil Cases
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By Kelsey Mellan

On October 21, 2016, the Fourth Circuit issued a published opinion in Al Shimari v. CACI Premier Tech., Inc., a civil case involving four Iraqi nationals who were allegedly abused while detained at Abu Gharib prison, located near Baghdad, Iraq, in 2003 and 2004. While the plaintiffs in this action were held by the United States Army, CACI Premier Technology (“CACI”), a corporation headquartered in Virginia, provided contract interrogation services for the military at the time of the alleged abuse. This case is on appeal before the Fourth Circuit for the fourth time. The current issue before the court is whether the district court erred in dismissing plaintiffs’ complaint on the ground that it presented a non-justiciable political question. The Fourth Circuit vacated the district court’s judgment and remanded this case for further proceedings consistent with the instructions discussed in this opinion.

Facts & Procedural History

 In 2003, the US took control of Abu Gharib prison (“Abu Gharib”), a prison located near Baghdad, Iraq that was previously under Saddam Hussein’s control. Upon assuming control of the Abu Gharib, the US military used the facilities to hold individuals for interrogation related to intelligence gathering. Due to a shortage of military interrogators, the US contracted CACI to provide additional interrogation services at Abu Gharib. In a later investigation of Abu Gharib, the United States Department of Defense (“DoD”) determined that prisoners were tortured at the prison between October and December 2003. The DoD investigation confirmed that both CACI interrogators and military personnel engaged in the allegedly abusive conduct. The US military disciplined multiple service members who were involved by either court martial or imprisonment. It is unclear as to whether any CACI interrogators where punished either administratively or criminally.

In their complaint, filed in June 2008, the plaintiffs alleged that CACI interrogators conspired with low-ranking military police officials to abuse the plaintiffs to make them “more responsive” during later interrogations. The plaintiffs further allege that CACI interrogators “instigated, directed, participated in, encouraged, and aided and abetted conduct towards detainees” in clear violation of the Geneva Conventions, the Army Field Manual, and the laws of the United States. Furthermore, the plaintiffs allege the acts of abuse were possible because of a “command vacuum” at Abu Gharib, caused by the failure of military leaders to exercise effective oversight of CACI interrogators. CACI moved to dismiss the plaintiff’s complaint on several grounds, including the political question doctrine. However, the district court determined that it lacked subject matter jurisdiction over this case, as CACI is a private party rather than a governmental actor, and both parties failed to demonstrate either diversity or federal question jurisdiction.

After several subsequent remands and rehearings in this case, the district court decided in Al Shimari v. CACI Premier Tech., Inc. (4th Cir. 2014) (Al Shimari III) that the plaintiffs’ claim presented a non-justiciable political question and should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). In this appeal, the plaintiffs contend that the district court erred in dismissing their complaint as non-justiciable under the political question doctrine.

Explanation of Political Question Doctrine

The Supreme Court defined the political question doctrine in Japan Whaling Association v. American Cetacean Society as the limitation of courts’ jurisdiction over “controversies which revolved around policy choices and value determinations constitutionally committed” to either the executive or legislative branch. This is a narrow exception to the judiciary’s general obligation to decide cases properly brought before the courts. This rule is justified by the concern that courts are ill-equipped to evaluate discretional military decisions. Despite the general presumption that military decisions are committed exclusively to the executive branch, a claim is not shielded from judicial review just because it arose in a military setting.

The Supreme Court established a six-factor test in Baker v. Carr to aid courts in determining whether a case presents a political question. In Taylor v. Kellogg Brown & Root Services, Inc., the Fourth Circuit further distilled these factors into two questions for consideration in determining whether a court has subject matter jurisdiction in a negligence suit against a government contractor, such as CACI. The first inquiry is whether the government contractor was under the direct control of the military. The second inquiry is whether national defense interests were so intertwined with military decisions governing the contractor’s conduct that a decision on the merits of the claim would require the court to question military judgments. An affirmative answer to either question generally triggers the application of the political question doctrine.

Application of the Political Question Doctrine

 In the instant case, the Fourth Circuit determined that there was some evidence that shows the military was in direct control of CACI interrogators, including the fact that the military was in charge of the official command structure at Abu Gharib. However, overwhelming evidence in the record indicated that the military failed to exercise actual control over the CACI interrogators. Moreover, additional evidence suggested that CACI interrogators actually ordered low-level military personnel to mistreat the detainees.

In total, the record demonstrated that the military’s formal command authority did not translate into actual day-to-day control of CACI interrogators. While the district court’s analysis focused on this formal control by the military, the Fourth Circuit decided that the concept of dire control encompasses not only the requirements set in place before the interrogations, but also what actually occurred during the interrogations. Furthermore, this court clarified that the military cannot lawfully exercise its authority by directing a contractor to engage in unlawful activity, and therefore if a contractor does engage in unlawful activity, the contractor cannot claim protection under the political question doctrine.

In terms of the second Taylor factor, the district court concluded that the plaintiffs’ claims were non-justiciable because adjudicating the plaintiffs’ claims would impinge on the military’s authority to select interrogation strategies. However, the district court failed to draw a distinction between unlawful conduct and discretionary acts that were not unlawful when committed. Unlawful acts fall outside the protection of the political question doctrine. Therefore, the lower court must distinguish between unlawful acts and discretionary acts (that were, at the time, lawful).

 When a military contractor acts contrary to settled international law or applicable criminal law, the separation of powers rationale of the political question doctrine does not preclude judicial review. The adjudication of a claim involving an unlawful act simply requires a court to engage in the traditional judicial function of “saying what the law is.” The Supreme Court has explained that the political question doctrine does not strip courts of the ability to apply traditional rules of statutory interpretation to the facts in a particular case. Therefore, any conduct of CACI employees that occurred under direct military control or involving sensitive military judgments, and was not unlawful when committed, constituted is shielded from judicial review under the political question doctrine. However, any unlawful acts committed by CACI employees are subject to judicial review, as they fall outside of the political question doctrine’s purview.

The Fourth Circuit acknowledged that some conduct is not clearly lawful or unlawful, and deemed this as “grey area” conduct. Accordingly, this court vacated the district court’s decision and remanded the case. The Fourth Circuit instructed the district court to determine which of the alleged acts were unlawful by examining the evidence regarding the specific conduct to which the plaintiffs were subjected and the source of any direction under which the acts took place. Judge Floyd authored a concurrence in this case, in which he agreed with the majority’s holding, but questioned the definition of “grey area” conduct and whether this greyness renders close cases justiciable.

 Disposition

 The Fourth Circuit concluded the political question doctrine does not shield unlawful acts committed by government contractors from judicial review and thus vacated the district court’s judgment and remanded this case for further proceedings.

 

 

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21Mar

Fourth Circuit Reverses Lower Court’s Sua Sponte Consideration of Diversity Jurisdiction

Categories: 4th Cir. Blog Civil Cases
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By Daniel Stratton

Today, March 21, 2016, the Fourth Circuit issued a published opinion in the civil case Jane Doe #1 v. Matt Blair, vacating the district court’s decision. The Fourth Circuit held that the lower court incorrectly determined that there was no federal diversity jurisdiction because the defendant corporation failed to allege its principal place of business. The Fourth Circuit overturned the decision because it was a procedural determination rather than a jurisdictional one.

The Case Bounces Between State and Federal Courts

On March 27, 2014, Ben and Kelly Houdersheldt filed a complaint in West Virginia state court as the next friends and guardians of Jane Doe #1, against Matt Blair and Res-Care, Inc. On July 14 of that same year, Res-Care removed the case to federal court, claiming subject matter jurisdiction based on diversity. Res-Care alleged that Jane Doe #1 was a resident of West Virginia and that Blair was a resident of Virginia. The company alleged that it was incorporated in Kentucky, but did not allege the state in which it had its principal place of business. The Houdersheldts, acting as next friends and guardians of Jane Doe #2, amended the complaint to include the second plaintiff. Jane Doe #2 and the Houdersheldts were residents of West Virginia.

On January 20, 2015, the district court sua sponte remanded the case back to state court, asserting that diversity subject matter jurisdiction had not been established. The court asserted that because neither party had asserted where Res-Care had its principal place of business, the court did not have jurisdiction based on diversity. Defendant Blair filed a motion to amend under Federal Rule of Civil Procedure 59(e) and for reconsideration under Federal Rule of Civil Procedure 60. Res-Care joined the motion. In the motion, the defendants argued that no party had challenged the diversity jurisdiction and that the parties had determined that Res-Care’s principal place of business was Louisville, Kentucky. The plaintiffs did not oppose Blair and Res-Care’s motion, but the district court denied it. Res-Care and Blair appealed.

Procedural or Jurisdictional: The Threshold Question for Reviewing Removal Orders

Federal circuit courts are restricted in reviewing district court orders remanding removed cases to state court. Under 28 U.S.C. § 1447(d), remand orders are generally “not reviewable on appeal or otherwise.” Supreme Court precedent, however, limits 28 U.S.C. § 1447(d) to cases where (1) a district court lacks subject matter jurisdiction, or (2) there is a defect in removal (other than a lack of subject matter jurisdiction) that was raised by a motion filed by a party within thirty days after the notice of removal was filed.

Under this system, a court can remand a case sua sponte for lack of subject matter jurisdiction at any time. Such an order is not reviewable by a federal appellate court. However, if the remand is based on another defect, a motion must be timely filed. If no motion is filed, 28 U.S.C. § 1447(d) does not bar a court’s review. Essentially, whether an appellate court has jurisdiction to review a district court’s remand order turns on whether the order was jurisdictional or procedural in nature.

How Have Other Circuits Tackled This Question?

In deciding how to resolve this case, the Fourth Circuit took notice of how other circuits have dealt with the the precise issue of “whether a failure to establish a party’s citizenship at the time of removal is a procedural or jurisdictional defect.” Three other circuits – the Fifth, Seventh, and Eleventh Circuits – had previously determined that this type of failure was “procedural, rather than jurisdictional.” Those circuits determined that a procedural defect was any defect that did not go to the question of whether the case could have been brought in federal court in the first place.

The Fourth Circuit, in the 2008 case Ellenberg v. Spartan Motors Chassis, reached a similar decision in regards to the amount in controversy component of diversity jurisdiction. In that case, the complaint did not state a dollar amount for damages claimed. The notice of removal to federal court there stated that the amount in controversy exceeded $75,000. Once the case was in federal court, the district court sua sponte considered whether the case should be remanded to state court. There, the district court found that the defendants’ allegations of diversity jurisdiction failed because they had failed to establish that the amount in controversy exceeded the required jurisdictional amount. Soon after, the defendants filed a motion with facts supporting their allegations regarding the amount in controversy, which the district court denied. On appeal, the Fourth Circuit determined that it was not barred from reviewing the lower court’s decision because the remand order was based on a procedural insufficiency rather than on finding a lack of subject matter jurisdiction.

The Fourth Circuit Applies Ellenberg; Adopts Approach of the Other Circuits

Turning to the present case, the Fourth Circuit noted that the district court had proceeded in a manner similar to the district court in Ellenberg. Like that court, the court in the current case had “recited the well-established principles of subject matter jurisdiction” then determined that diversity jurisdiction had not been established. Then, after Blair attempted to correct this failure with his Rule 59(e) motion, the court here denied that motion, much as the court in Ellenberg.

The Fourth Circuit was not persuaded that in the present case the lower court had explicitly concluded that there was no subject matter jurisdiction, because such an order required an examination of the underlying substantive reasoning. This, the Fourth Circuit reasoned, was enough to show that the district court had not based its decision on a lack of subject matter jurisdiction, but instead on the procedural insufficiency of the removal notice. As a result, the court explained that the only way the this procedural deficiency could be raised would be by a party filing a timely motion, which did not occur here. Thus the Fourth Circuit adopted the approach used by the Fifth, Seventh, and Eleventh Circuits.

The Fourth Circuit Remands the Case Back to Federal District Court

Because the district court improperly remanded this case sua sponte, the Fourth Circuit reversed the lower court’s decision and remanded the case back for further proceedings. The Fourth Circuit also granted a motion made by Res-Case to amend its removal notice to correct its earlier deficiency.

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1Feb

Dispute In Somalia Captures the Attention of the Fourth Circuit

Categories: 4th Cir. Blog
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By Taylor Anderson

On February 1, 2016, the Fourth Circuit issued its published opinion regarding the civil case Warfaa v. Ali. Farhan Warfaa (“Warfaa”), the plaintiff, appealed the district court’s summary dismissal of his Alien Tort Statute (“ATS”) claims after the district court found that Warfaa’s ATS claims did not sufficiently “touch and concern” the United States so as to establish jurisdiction in the United States. Additionally, Yusuf Ali (“Ali”) appeals the district court’s decision to allow Warfaa’s Torture Victim Protection Act of 1991 (“TVPA”) claims to proceed. The district court allowed the TVPA claims to proceed because Ali was not entitled to immunity as a foreign official. The Fourth Circuit affirmed the judgment of the district court.

Warfaa Alleges Several Violations of International Law

Throughout the 1980s, the Somali government targeted members of certain opposition “clans” through killings, torture, and property destruction. This government regime was titled the “Barre” regime. Warfaa’s clan, the Isaaq, was one of the targeted clans. Ali supported the Barre regime and commanded the Fifth Battalion of the Somali National Army stationed in Gebiley, the area where Warfaa lived. One morning in December 1987, two armed soldiers from the Fifth Battalion appeared at Warfaa’s hut and captured him. Warfaa was later detained and placed in a small, windowless cell with ten other prisoners.

Warfaa alleged he was subjected to many acts of violence during his detention at the direction of Ali. These acts included, but were not limited to, beatings with the butt of a gun, being tied up in a painful position, being kicked, being stripped naked, and being beat into unconsciousness. Throughout his capture, Ali abused and tortured Warfaa at least nine times.

In March 1988, Ali’s base was attacked. After ordering his soldiers to defend the base, Ali shot Warfaa in the wrist and leg, causing him to fall unconscious. Ali thought he had killed Warfaa and ordered his guards to bury the body; however, Warfaa regained consciousness while in the guards’ possession and convinced the guards to accept a bribe. Warfaa was released, and he still resides in Somalia today.

The Barre regime collapsed in 1991, but Ali had departed the country in advance of the fall. He came to the United States, and the United States began deportation proceedings soon thereafter. Ali voluntarily left the country in 1994 before the conclusion of the deportation proceedings. Ali returned to the United States in December 1996 and now resides in Alexandria, Virginia.

Warfaa filed suit against Ali in the United States District Court for the Eastern District of Virginia in 2004. For most of its duration, the case was stayed. On April 25, 2014, the district court lifted the stay and ordered Warfaa to file an amended complaint. Warfaa’s amended complaint contained six counts, and all six counts alleged torts purportedly committed in violation of international law, with jurisdiction arising under the ATS. Additionally, the first two counts were alleged to violate the TVPA, which provides a jurisdictional basis separate from the ATS. The district court dismissed the ATS claims because “such claims, generally speaking, must be based on violations occurring on American soil.” The district court also rejected Ali’s motion to dismiss the TVPA claims, concluding that Ali could not claim “official acts” immunity because his alleged acts violated jus cogens norms. Both parties timely appealed.

The ATS Does Not Grant Original Jurisdiction

The Fourth Circuit started its ATS analysis by pointing out that the ATS grants district courts “original jurisdiction” over “any civil action by an alien for a tort . . . committed in violation of the law of nations or a treaty of the United States.” The Fourth Circuit then narrowed its analysis of Warfaa’s claims based on the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. In Kiobel, the Supreme held that an ATS claim may not reach conduct occurring in the territory of a foreign sovereign. Additionally, the Kiobel presumption provides that when a statute gives no clear indication of an extraterritorial application, as the ATS did, it has none. Finally, the Fourth Circuit recognized that the Supreme Court emphasized that the ATS can create jurisdiction for such claims only where they “touch and concern” United States territory “with sufficient force to displace the presumption against extraterritorial application.”

The Fourth Circuit held that Warfaa’s ATS claims fell squarely within the ambit of Kiobel’s broad presumption against extraterritorial application of ATS because all of the relevant conduct in Warfaa’s case took place outside of the United States, in Somalia. Nothing in Warfaa’s case involved U.S. citizens, the U.S. government, U.S. entities, or events in the United States. The Fourth Circuit stated that the only purported “touch” in this case is the happenstance of Ali’s after-acquired resident in the United States long after the alleged events of abuse; however, this “touch” is not enough to overcome the Kiobel presumption. For this reason, the Fourth Circuit affirmed the district court’s decision to dismiss Warfaa’s ATS claims.

Ali Is Not Immune from the TVPA Claims

The district court allowed Warfaa’s TVPA claims to go forward, finding that Ali lacked foreign official immunity for jus cogens violations under the Fourth Circuit’s holding in Yousuf v. Samantar. On appeal, Ali’s only challenge was that Samantar was wrongly decided, and jus cogens violations deserve immunity.

The Fourth Circuit held that it was not in a position to overrule Samantar, as Ali wished. Instead, the Fourth Circuit stated that one panel’s decision is binding, not only upon the district court, but also upon another panel of this court—unless and until it is reconsidered en banc. For this reason, the Fourth Circuit did not consider the Samantar holding’s validity and held that the district court properly concluded Samantar forecloses Ali’s claim to foreign official immunity.

Judgment Affirmed

Because the district court correctly held that Warfaa’s ATS claims lacked a sufficient nexus with the United States to establish jurisdiction over those claims and Ali was not to receive foreign official immunity, the Fourth Circuit affirmed the decisions of the district court.

One judge wrote an opinion concurring in part and dissenting in part. This judge dissented on the issue of the ATS claims and believed that the Fourth Circuit should have reversed the district court’s decision in relation to them because Ali had extensive contacts with the United States which should have subjected him to the jurisdiction of the United States.

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