FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J. TONY SERRA; JEANINE SANTIAGO;
VICTOR J. CORDERO, and all others
similarly situated,
Plaintiffs-Appellants,
v. No. 08-15969
HARLEY LAPPIN, Director of the D.C. No.
3:07-CV-01589-MJJ
Bureau of Prisons; B. G. COMPTON,
Warden of Lompoc Prison; OPINION
ROBERT F. MCFADDEN, head of the
Western Regional Office of the
Bureau of Prisons,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Submitted January 14, 2010*
San Francisco, California
Filed April 9, 2010
Before: Alex Kozinski, Chief Judge, J. Clifford Wallace and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2). Plaintiffs’ motion for recon-
sideration of our order submitting the case on the briefs is denied.
5405
5408 SERRA v. LAPPIN
COUNSEL
John Murcko and William M. Simpich, Oakland, California,
and Stephen Perelson, Mill Valley, California, for the
plaintiffs-appellants.
Gregory G. Katsas, Assistant Attorney General, Joseph P.
Russoniello, United States Attorney, Michael S. Raab, and
Alexander K. Haas, U.S. Department of Justice, Civil Divi-
sion, Washington, D.C., for the defendants-appellees.
OPINION
CLIFTON, Circuit Judge:
Current and former federal prisoners allege that the low
wages they were paid for work performed in prison violated
their rights under the Fifth Amendment and various sources
of international law. Plaintiffs sued officials of the Bureau of
Prisons for damages and injunctive and declaratory relief. We
conclude that prisoners have no enforceable right to be paid
for their work under the Constitution or international law, and
we affirm the district court’s dismissal of the action.
I. Background
Plaintiffs Tony Serra, Jeanine Santiago, and Victor Cordero
are current and former inmates of federal prisons in Califor-
nia, who were sentenced to terms of incarceration after being
convicted of federal crimes.1 While serving their sentences,
they worked under the auspices of either Federal Prison
Industries, a wholly owned government corporation known by
the trade name UNICOR, see 18 U.S.C. §§ 4121-29; 31
U.S.C. § 9101(3)(E), or the Inmate Work and Performance
1
Plaintiffs sought to represent a class of similarly situated inmate-
workers, but their case was dismissed before any class was certified.
SERRA v. LAPPIN 5409
Pay Program, see 18 U.S.C. § 4125. Federal Prison Industries
is authorized to pay its inmate-workers wages set by its Board
of Directors pursuant to a delegation of authority from the
Attorney General. See 18 U.S.C. § 4126(c)(4); 28 C.F.R.
§ 345.10. Under the Inmate Work and Performance Pay Pro-
gram, wages are determined according to regulations promul-
gated by the Bureau of Prisons under the authority of the
Attorney General. See 18 U.S.C. § 4125(d); 28 C.F.R.
§ 545.26.
Plaintiffs earned between $19.00 and $145.00 per month at
rates as low as nineteen cents per hour. Plaintiffs contend that
by paying them such low wages, Defendants Harley Lappin,
Director of the Bureau of Prisons; B.G. Compton, Warden of
Lompoc Prison; and Robert McFadden, Director of the West-
ern Regional Office of the Bureau of Prisons, violated Plain-
tiffs’ rights under the Fifth Amendment to the United States
Constitution; articles 7 through 9 of the International Cove-
nant on Civil and Political Rights (“ICCPR”), Dec. 16, 1966,
999 U.N.T.S. 171; a U.N. document entitled “Standard Mini-
mum Rules for the Treatment of Prisoners;”2 and the law of
nations.3
The district court granted Defendants’ motion to dismiss
the action in its entirety and denied Plaintiffs’ motion for
leave to amend their complaint to name Defendants in their
individual capacities and to state a cause of action under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b).
2
This appears to be the document that Plaintiffs persist in calling the
United Nations Covenant on Prisoner Rights, ignoring the district court’s
observation that no such document exists.
3
Plaintiffs also sued under the Sherman Act, 15 U.S.C. § 1, et seq., and
alleged a violation of the Thirteenth Amendment. We do not examine the
Sherman Act claim because Plaintiffs withdrew that claim before the dis-
trict court. Plaintiffs also appear not to have appealed the district court’s
decision that the Thirteenth Amendment does not prohibit low wages for
prison work.
5410 SERRA v. LAPPIN
II. Discussion
We review de novo a dismissal for failure to state a claim
and for lack of subject matter jurisdiction, and we review a
denial of leave to amend for abuse of discretion. Papa v.
United States, 281 F.3d 1004, 1008-09 (9th Cir. 2002). We
conclude that neither the Fifth Amendment nor international
law grants Plaintiffs a judicially enforceable right to any level
of compensation for work performed in prison. We also con-
clude that the district court did not abuse its discretion in
denying Plaintiffs’ request for leave to amend.
A. Due Process
Plaintiffs allege that Defendants violated their due process
rights under the Fifth Amendment by denying them fair
wages. This claim fails because prisoners do not have a legal
entitlement to payment for their work, and the Due Process
Clause protects only against deprivation of existing interests
in life, liberty, or property. See Stanley v. Gonzales, 476 F.3d
653, 660 (9th Cir. 2007) (“To assert a procedural due process
claim under the Fifth Amendment, [a plaintiff] must first
establish a constitutionally protected interest. [The plaintiff]
must have more than a unilateral expectation of it; instead,
she must have a legitimate claim of entitlement.” (citing
Board of Regents of State Colleges v. Roth, 408 U.S. 564,
569-70, 577 (1972))).
[1] The Constitution does not provide prisoners any sub-
stantive entitlement to compensation for their labor. See Piatt
v. MacDougall, 773 F.2d 1032, 1035 (9th Cir. 1985) (holding
that the state does not deprive a prisoner of a constitutionally
protected liberty interest by forcing him to work without pay).
Although the Constitution includes, in the Thirteenth Amend-
ment, a general prohibition against involuntary servitude, it
expressly excepts from that general prohibition forced labor
“as a punishment for crime whereof the party shall have been
duly convicted.” U.S. Const. amend. XIII, § 1; see Piatt, 773
SERRA v. LAPPIN 5411
F.2d at 1035 (“The Thirteenth Amendment does not prohibit
involuntary servitude as part of imprisonment for a crime.”).
[2] Plaintiffs do not challenge their underlying convictions
or allege that their sentences were cruel and unusual. A pris-
oner has no basis for asserting a violation of due process sim-
ply because he is made or allowed to work for low pay as
punishment for a crime of which he was lawfully convicted.
See Draper v. Rhay, 315 F.2d 193, 197 (9th Cir. 1963)
(“Where a person is duly tried, convicted, sentenced and
imprisoned for crime in accordance with law, no issue of
peonage or involuntary servitude arises.”).
[3] Nor do Plaintiffs claim that they were paid less than the
applicable regulations require.4 If, without due process, they
were deprived of pay to which they were entitled under the
regulations, Plaintiffs might have a colorable claim. See
Vance v. Barrett, 345 F.3d 1083, 1091 (9th Cir. 2003) (con-
cluding that due process was violated when a prisoner’s future
employment was conditioned on his giving up “his statutory
right to accrued net interest”). Here Plaintiffs have no consti-
tutionally protected property interest because they lack a stat-
utory or otherwise established right to the higher wages they
demand.
B. International Law
Plaintiffs also cite sources of international law as a basis for
the right they assert to higher wages for work performed in
prison. The individual documents that Plaintiffs cite, however,
do not confer judicially enforceable rights, and Plaintiffs are
unable to bring a claim under the law of nations.
4
See generally 28 C.F.R. § 345.10 (providing that UNICOR payrates are
set “at the discretion of Federal Prison Industries” while noting that
“[t]here is no statutory requirement that inmates be paid for work”), id.
§ 545.20(b) (providing that the Warden “may . . . grant[ ] performance
pay”), id. § 545.26 (setting the approximate percentage of Performance
Pay Program work assignments allotted to each of four pay grades).
5412 SERRA v. LAPPIN
[4] Plaintiffs fail to state a viable claim under the Interna-
tional Covenant on Civil and Political Rights. “For any treaty
to be susceptible to judicial enforcement it must both confer
individual rights and be self-executing.” Cornejo v. County of
San Diego, 504 F.3d 853, 856 (9th Cir. 2007). A treaty is self-
executing when it is automatically enforceable in domestic
courts without implementing legislation. See Medellin v.
Texas, 552 U.S. 491, 504-05 & n.2 (2008); Khan v. Holder,
584 F.3d 773, 783 (9th Cir. 2009). The ICCPR fails to satisfy
either requirement because it was ratified “on the express
understanding that it was not self-executing and so did not
itself create obligations enforceable in the federal courts.”
Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004).5
[5] The Standard Minimum Rules for the Treatment of
Prisoners (“Standard Minimum Rules”)6 similarly fail as a
source of justiciable rights. This document was adopted by the
First United Nations Congress on the Prevention of Crime and
the Treatment of Offenders in 1955 “to set out what is gener-
ally accepted as being good principle and practice in the treat-
ment of prisoners and the management of institutions.”
Standard Minimum Rules ¶ 1. It is not a treaty, and it is not
binding on the United States. Even if it were a self-executing
treaty, the document does not purport to serve as a source of
private rights. The “Rules” themselves acknowledge that they
are not all “capable of application in all places and at all
times,” id. ¶ 2, and are “not intended to preclude experiment,”
id. ¶ 3. Moreover, the specific rule identified by Plaintiffs as
a source of rights declares only that “[t]here shall be a system
of equitable remuneration of the work of prisoners” without
specifying what wages would qualify. Id. ¶ 76(1).
5
The Universal Declaration of Human Rights, which Plaintiffs mention
in passing, suffers from the same problem as a source of justiciable rights.
See Sosa, 542 U.S. at 734-35.
6
United Nations, Standard Minimum Rules for the Treatment of Prison-
ers (1955), available at http://www.unhcr.org/refworld/docid/
3ae6b36e8.html (last checked Feb. 12, 2010). The document was
approved by the U.N. Economic and Social Council in 1977.
SERRA v. LAPPIN 5413
[6] Finally, Plaintiffs assert that “the customs and usages”
of the nations of the world, as revealed in these and other
sources, form customary international law entitling them to
higher wages. This claim fails because customary interna-
tional law is not a source of judicially enforceable private
rights in the absence of a statute conferring jurisdiction over
such claims. See Princz v. Federal Republic of Germany, 26
F.3d 1166, 1174 n.1 (D.C. Cir. 1994) (“While it is true that
‘international law is part of our law,’ it is also our law that a
federal court is not competent to hear a claim arising under
international law absent a statute granting such jurisdiction.”
(citation omitted)); see also Sosa, 542 U.S. at 720
(“ ‘[O]ffences against this law of nations are principally inci-
dent to whole states or nations,’ and not individuals seeking
relief in court.” (quoting Blackstone, 4 Commentaries 68)
(alteration omitted)). Plaintiffs can point to no statute that
brings their claim within our purview.
[7] The Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, is
the only possible vehicle for a claim like Plaintiffs’ because
no other statute recognizes a general cause of action under the
law of nations.7 The ATS grants to the district courts “original
jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the
United States.” 28 U.S.C. § 1350. We need not decide
whether Plaintiffs’ proposed minimum wage for prison labor
“rest[s] on a norm of international character accepted by the
civilized world and defined with a specificity comparable to
7
See Sosa, 542 U.S. at 731 n.19 (resisting the implication “that every
grant of jurisdiction to a federal court carries with it an opportunity to
develop common law” and distinguishing the ATS’s unique invitation to
entertain “common law claims derived from the law of nations” from the
strictures of § 1331 federal-question jurisdiction). If any plaintiff could
bring any claim alleging a violation of the law of nations under federal-
question jurisdiction, there would be no need for statutes such as the ATS
and the Torture Victim Protection Act, 28 U.S.C. § 1350, note, which rec-
ognize or create limited causes of action for particular classes of plaintiffs
(aliens) or particular violations (torture).
5414 SERRA v. LAPPIN
the features of [Blackstone’s] 18th-century paradigms,” Sosa,
542 U.S. at 725, because Plaintiffs have conceded that they
are not aliens. The scope of the ATS is limited to suits “by an
alien.” 28 U.S.C. § 1350; see In re Estate of Marcos Human
Rights Litig., 978 F.2d 493, 499 (9th Cir. 1992) (“[The ATS]
requires a claim by an alien . . . .”). The ATS admits no cause
of action by non-aliens. See Yousuf v. Samantar, 552 F.3d
371, 375 n.1 (4th Cir. 2009) (“To the extent that any of the
claims under the ATS are being asserted by plaintiffs who are
American citizens, federal subject-matter jurisdiction may be
lacking.”).
We have allowed ourselves a few sidelong glances at the
law of nations in non-ATS cases by applying the canon of
statutory construction that “[w]here fairly possible, a United
States statute is to be construed as not to conflict with interna-
tional law or with an international agreement with the U.S.”
Munoz v. Ashcroft, 339 F.3d 950, 958 (9th Cir. 2003) (quoting
Restatement (Third) of Foreign Relations Law § 114 (1987)).
The canon is derived from Chief Justice Marshall’s statement
that
an act of Congress ought never to be construed to
violate the law of nations if any other possible con-
struction remains, and consequently can never be
construed to violate neutral rights, or to affect neu-
tral commerce, further than is warranted by the law
of nations as understood in this country.
Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch)
64, 118 (1804). The Charming Betsy canon is not an inviola-
ble rule of general application, but a principle of interpretation
that bears on a limited range of cases. Mindful that “Congress
has the power to legislate beyond the limits posed by interna-
tional law,” Cabrera-Alvarez v. Gonzales, 423 F.3d 1006,
1009 (9th Cir. 2005) (internal quotation marks omitted), we
do not review federal law for adherence to the law of nations
with the same rigor that we apply when we must review stat-
SERRA v. LAPPIN 5415
utes for adherence to the Constitution.8 We invoke the Charm-
ing Betsy canon only where conformity with the law of
nations is relevant to considerations of international comity,
see Arc Ecology v. United States Dep’t of the Air Force, 411
F.3d 1092, 1102-03 (9th Cir. 2005), and only “where it is pos-
sible to do so without distorting the statute.” Cabrera-Alvarez,
423 F.3d at 1010 (quoting Munoz, 339 F.3d at 958). We
decline to determine whether Plaintiffs’ rates of pay were in
violation of the law of nations because this case meets neither
condition for applying the canon.
[8] First, the purpose of the Charming Betsy canon is to
avoid the negative “foreign policy implications” of violating
the law of nations, Weinberger v. Rossi, 456 U.S. 25, 32 (1982),9
and Plaintiffs have offered no reason to believe that their low
wages are likely to “embroil[ ] the nation in a foreign policy
dispute.” Arc Ecology, 411 F.3d at 1102; United States v.
Corey, 232 F.3d 1166, 1169 (9th Cir. 2000). That the courts
should ever invoke the Charming Betsy canon in favor of
United States citizens is doubtful, because a violation of the
law of nations as against a United States citizen is unlikely to
bring about the international discord that the canon guards
against.10 In The Charming Betsy, the status of the ship’s
8
Compare Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803)
(holding that “the Constitution, and not [an] ordinary act, must govern the
case to which they both apply”), with The Charming Betsy, 6 U.S. at 118
(avoiding an interpretation that conflicts with the laws of nations only “if
any other possible construction remains”).
9
See also Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1114 (9th Cir. 2001)
(“[W]e adhere to this principle ‘out of respect for other nations.’ ”) (quot-
ing United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990)).
10
Cf. Arc Ecology, 411 F.3d at 1102 (“The concerns that underlie the
canon are ‘obviously much less serious where the interpretation arguably
violating international law is urged upon the court by the Executive
Branch of our government.’ When the Executive Branch is the party
advancing a construction of a statute with potential foreign policy implica-
tions, we presume that ‘the President has evaluated the foreign policy con-
sequences of such an exercise of U.S. law and determined that it serves
the interests of the United States.’ ” (quoting United States v. Corey, 232
F.3d 1166, 1179 (9th Cir. 2000) (citation and alteration omitted))).
5416 SERRA v. LAPPIN
owner as a Danish subject, and thus a neutral in the conflict
between the United States and France, was critical to the
Court’s conclusion that the Non-Intercourse Act of 1800
should not be interpreted to permit the seizure and sale of his
ship. 6 U.S. at 120. We have never employed the Charming
Betsy canon in a case involving exclusively domestic parties
and domestic acts,11 nor has the Supreme Court.12 As a general
rule, domestic parties must rely on domestic law when they
sue each other over domestic injuries in federal court. We
need not consider whether the statutory and regulatory regime
of federal inmate compensation conflicts with the law of
nations because Plaintiffs, as United States citizens and resi-
dents, have not demonstrated that their low wages have any
possible ramifications for this country’s foreign affairs.
[9] Second, “[t]he Charming Betsy canon comes into play
only where Congress’s intent is ambiguous,” United States v.
Yousef, 327 F.3d 56, 92 (2d Cir. 2003), and there is nothing
ambiguous about the complete discretion that Congress vested
in the Attorney General with regard to inmate pay.13 Congress
is not constrained by international law as it is by the Constitu-
tion. See United States v. Aguilar, 883 F.2d 662, 679 (9th Cir.
11
Cf. United States v. Clark, 435 F.3d 1100, 1106-07 (9th Cir. 2006)
(applying the presumption “that Congress does not intend to violate princi-
ples of international law” to support extraterritorial jurisdiction over a
United States citizen convicted of committing a crime in a foreign coun-
try).
12
Cf. Weinberger, 456 U.S. at 32 (1982) (applying the Charming Betsy
canon against United States citizen plaintiffs who had been employed on
military bases abroad because their proposed interpretation of the relevant
statute would have effectively repudiated Executive Agreements promis-
ing preferential hiring of local nationals).
13
See 18 U.S.C. § 4125(d) (“[T]he Attorney General is authorized to
provide for the payment to the inmates or their dependents such pecuniary
earnings as he may deem proper, under such rules and regulations as he
may prescribe.”); id. § 4126(c) (“[Federal Prison Industries] is authorized
to employ the fund, and any earnings that may accrue to the corporation
. . . in paying, under rules and regulations promulgated by the Attorney
General, compensation to inmates employed in any industry.”).
SERRA v. LAPPIN 5417
1989) (“In enacting statutes, Congress is not bound by inter-
national law; if it chooses to do so, it may legislate contrary
to the limits posed by international law.” (alterations and quo-
tation marks omitted)), cert. denied, 498 U.S. 1046 (1991). As
a result, “we are bound by a properly enacted statute, pro-
vided it be constitutional, even if that statute violates interna-
tional law.” Alvarez-Mendez v. Stock, 941 F.2d 956, 963 (9th
Cir. 1991). Because the statutes giving the Attorney General
discretion over prisoner pay grades are unambiguous, there is
no reason for this court to decide whether they accord with
the law of nations. Thus, the district court did not err in dis-
missing Plaintiffs’ complaint.
C. Amendment of Complaint
Plaintiffs argue that they have a right to amend their com-
plaint to sue the defendants in their individual capacities and
to assert a claim under the FTCA. The power to grant leave
to amend, however, is entrusted to the discretion of the district
court, which “determines the propriety of a motion to amend
by ascertaining the presence of any of four factors: bad faith,
undue delay, prejudice to the opposing party, and/or futility.”
William O. Gilley Enters. v. Atl. Richfield Co., 588 F.3d 659,
669 n.8 (9th Cir. 2009) (quoting Griggs v. Pace Am. Group,
Inc., 170 F.3d 877, 880 (9th Cir. 1999)). The district court did
not abuse its discretion by denying Plaintiffs’ motion for
leave to amend, because their proposed amendments would
have been futile.
Plaintiffs could not prevail against the prison officials in
their individual capacities in a Bivens action for money dam-
ages based on the alleged inadequacy of the prisoners’ earn-
ings. Cf. Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971) (identifying an
implied cause of action against individual federal officers for
violation of plaintiff’s Fourth Amendment rights). To state a
claim for relief under Bivens, a plaintiff must allege that a fed-
eral officer deprived him of his constitutional rights. See
5418 SERRA v. LAPPIN
Shwarz v. United States, 234 F.3d 428, 432 (9th Cir. 2000).
Here, Plaintiffs have failed to identify a constitutional viola-
tion because prisoners have no legal right to be paid for their
work.
[10] Nor could Plaintiffs prevail on a false imprisonment
claim under the FTCA, given their failure to prove or even
assert that they were confined without legal authority. See
Blankenhorn v. City of Orange, 485 F.3d 463, 486 n.15 (9th
Cir. 2007) (“False imprisonment is the nonconsensual, inten-
tional confinement of a person, without lawful privilege, for
an appreciable length of time, however short.” (emphasis
added and internal quotation marks omitted)). Amending the
complaint to name Defendants in their individual capacities
and to state a claim under the FTCA would therefore have
been futile, and the district court did not abuse its discretion
in denying leave to amend.
III. Conclusion
[11] Plaintiffs have stated no constitutional claim upon
which relief can be granted and no international law claim
over which federal courts have jurisdiction. Plaintiffs’ pro-
posed amendments could have fared no better. The action was
properly dismissed without leave to amend.
AFFIRMED.