UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DR. ROGER C.S. LIN, et al.,
Plaintiffs
v.
UNITED STATES OF AMERICA Civil Action No. 15-cv-00295 (CKK)
and
REPUBLIC OF CHINA (TAIWAN),
Defendants.
MEMORANDUM OPINION
(March 31, 2016)
Plaintiffs are residents of Taiwan and members of an advocacy group in Taiwan who
allege that in 1946, the Republic of China—at that time recognized by the United States as the
government of China—unlawfully denied the population of Taiwan of its Japanese nationality at
the conclusion of World War II. Specifically, Plaintiff allege that the Republic of China issued
nationality decrees that unlawfully denied those residing on Taiwan, as well as their descendants,
of their Japanese nationality. Plaintiff further allege that the United States shares legal
responsibility for the denial of Plaintiffs’ Japanese nationality because the Republic of China,
through Generalissimo Chiang Kai-shek, was “acting as an agent of the United States” when the
decrees were issued in 1946. Plaintiffs filed suit against Defendants, the United States and the
Republic of China (Taiwan), seeking relief in the form of (1) a declaration that the nationality
decrees of 1946 violated international law and (2) an award for monetary damages for the tort of
arbitrary denationalization.
Presently before the Court are Defendant United States’ [23] Motion to Dismiss and
Defendant Republic of China’s [24] Motion to Dismiss, both pursuant to Federal Rules of Civil
1
Procedure 12(b)(1) and 12(b)(6). Upon consideration of the pleadings,1 the relevant legal
authorities, and the record as a whole, the Court finds that the Court lacks subject matter
jurisdiction over Plaintiffs’ claims with respect to both Defendants. Accordingly, the Court shall
GRANT Defendant United States’ [23] Motion to Dismiss, and the Court shall GRANT
Defendant Republic of China’s [24] Motion to Dismiss.
I. BACKGROUND
For the purposes of the motions before the Court, the Court accepts as true the well-
pleaded allegations in Plaintiffs’ Amended Complaint. The Court does “not accept as true,
however, the plaintiff’s legal conclusions or inferences that are unsupported by the facts
alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The
Court recites the principal facts pertaining to the issues raised in the pending motions, reserving
further presentation of the facts for the discussion of the individual issues below.
Plaintiffs’ Amended Complaint provides a “short history lesson” concerning the political
status of Taiwan over the last 120 years.2 In 1895, at the conclusion of the Sino-Japanese War,
1
The Court’s consideration has focused on the following documents: Plaintiffs’ Amended
Complaint (“Pls.’ Am. Compl.”), ECF No. [18]; Defendant United States’ Motion to Dismiss
(“USA’s Mot.”), ECF No. [23]; Defendant Republic of China’s Motion to Dismiss (“ROC’s
Mot.”), ECF No. [24]; Plaintiffs’ Opposition to Defendant United States’ Motion to Dismiss
(“Pls.’ Opp’n to USA’s Mot.”), ECF No. [25]; Plaintiffs’ Opposition to Defendant Republic of
China’s Motion to Dismiss (“Pls.’ Opp’n to USA’s Mot.”), ECF No. [26]; Defendant United
States’ Reply in Support of Motion to Dismiss (“USA’s Reply”), ECF No. [29]; and Defendant
Republic of China’s Reply in Support of Motion to Dismiss (“ROC’s Reply”), ECF No. [30].
2
The instant case marks Plaintiff Dr. Roger C.S. Lin’s second attempt to obtain a declaratory
judgment from this District Court concerning the nationality of Dr. Lin and other Taiwan
residents. See Lin v. United States, 539 F. Supp. 2d 173 (D.D.C. 2008) aff’d 561 F.3d 502
(2009) (dismissing plaintiffs’ claims because they were barred by the political question doctrine).
Plaintiffs’ instant Amended Complaint contains factual allegations that substantially mirror the
factual allegations made in the amended complaint in the first Lin case. For a comprehensive
recitation of the background facts, see Judge Rosemary M. Collyer’s decision in the first Lin
case. See Lin, 539 F. Supp. at 174-77.
2
China and Japan signed the Treaty of Shimonoseki, pursuant to which, China ceded Taiwan (then
known as Formosa) to Japan in “perpetuity and full sovereignty.” Am. Compl. ¶¶ 28-31. On
December 7, 1941, Japan attacked the United States naval base at Pearl Harbor, Hawaii, and as a
result the United States Congress issued a Declaration of War on December 8. Id. ¶¶ 33-34.
After four years of war, Japan surrendered on September 2, 1945. Id. ¶ 34. On that same day,
General Douglas MacArthur, Supreme Commander for the Allied Powers, issued General Order
No. 1, ordering the “senior Japanese commanders and all ground, sea, air, and auxiliary forces
within . . . Formosa” to “surrender to Generalissimo Chiang Kai-shek.” Id. ¶ 35.
According to the Amended Complaint, Chiang Kai-shek was the leader of the Chinese
Nationalist Party of the Republic of China and was the “representative of the Allied Powers
empowered to accept surrender[]” of the Japanese forces in Taiwan. Id. On October 25, 1945,
Chiang Kai-shek’s representative in Taiwan accepted the surrender of the Japanese forces there,
although “[t]he surrender of Japanese forces in Taiwan (Formosa) was assisted by the United
States Armed Forces.” Id. Plaintiffs allege that in the aftermath of Japan’s surrender, Chiang
Kai-shek and his Chinese Nationalist Party administered Taiwan on behalf of the Allied Powers,
such that the Republic of China acted as “the agent of the United States.” Id. ¶ 45.3
On January 12, 1946, the Republic of China issued a decree mandating, effective
December 25, 1945, the automatic restoration of Chinese nationality for the people of Taiwan.
Id. ¶ 37. The decree stated:
3
As stated in the Amended Complaint, in 1949, Taiwan (Formosa) became the only home of the
Chinese Nationalist Party. In that same year, China’s civil war between Chinese Nationalists and
Communists ended with the establishment of the People’s Republic of China and the ouster of
the Chinese Nationalists from Mainland China. The Chinese Nationalists, led by Chiang Kai-
shek, remained in Taiwan, where, Plaintiffs allege, they continued to administer the island for the
Allied Powers as the Republic of China. See Am. Compl. ¶ 46.
3
The people of Taiwan are people of our country. They lost their nationality
because the island was invaded by an enemy. Now that the land has been
recovered, the people who originally had the nationality of our country shall,
effective December 25, 1945, resume the nationality of our country. This is
announced by this general decree in addition to individual orders.
Id. Several months later, on June 22, 1946, the Republic of China issued a decree on Measures
Concerning the Nationality of Overseas Taiwanese (also translated as “Measures For The
Adjustment of Nationality of Taiwanese Abroad”). Id. ¶ 39. The measure provided that persons
living outside of Taiwan would likewise have Chinese nationality restored to them, and issued a
certificate of registration. Id.
Plaintiffs allege that “the United States did not give the Republic of China the appropriate
authority to issue the 1946 Nationality Decrees.” Id. ¶ 41. Plaintiffs also allege that the United
States was “fully aware of these Decrees” and was also “aware . . . that the decree[s] violated
international law.” Id. ¶ 41, 43.
On February 27, 2015, Plaintiffs filed suit against Defendants the United States and the
Republic of China. Plaintiffs seek a series of Court-ordered declarations holding that the
Republic of China’s nationality decrees are legally invalid under various international
instruments, and that the United States did not authorize the Republic of China to issue those
decrees. See id., Prayer for Relief, ¶ 1. Plaintiffs also seek an award for monetary damages
against the Republic of China for the tort of arbitrary denationalization. See id., Prayer for
Relief, ¶ 2. Both Defendants have filed Motions to Dismiss Plaintiffs’ Amended Complaint,
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
II. LEGAL STANDARD
“Federal courts are courts of limited jurisdiction” and can adjudicate only those cases or
controversies entrusted to them by the Constitution or an Act of Congress. Kokkonen v.
4
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377. “In an attempt to give meaning to Article III's
case-or-controversy requirement, the courts have developed a series of principles termed
‘justiciability doctrines,’ among which are standing . . . and the political question doctrine.”
Nat'l Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (citing
Allen v. Wright, 468 U.S. 737, 750 (1984)). These doctrines incorporate both the prudential
elements, which “ ‘Congress is free to override,’ ” id. (quoting Fair Employment Council of
Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1278 (D.C. Cir. 1994)), and “ ‘core
component[s]’ ” which are “ ‘essential and unchanging part[s] of the case-or-controversy
requirement of Article III,’ ” id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)).
The Court begins with the presumption that it does not have subject matter jurisdiction
over a case. Id. To survive a motion to dismiss pursuant to Rule 12(b)(1), a plaintiff bears the
burden of establishing that the Court has subject matter jurisdiction over its claim. Moms
Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). In determining whether there is
jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced
in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003)
(citations omitted). “Although a court must accept as true all factual allegations contained in the
complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1),” the factual allegations
in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a
12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F. Supp.
2d 163, 170 (D.D.C. 2007) (citations omitted).
5
III. DISCUSSION
In moving to dismiss, the two Defendants have each put forward a plethora of arguments
as to why this Court should dismiss Plaintiffs’ case for lack of subject matter jurisdiction.
Specifically, both Defendants argue that this Court lacks jurisdiction over Plaintiffs’ claims
because (1) Plaintiffs do not have standing under Article III of the United States Constitution and
(2) Plaintiffs’ request that declarations be issued concerning the nationality status of residents of
Taiwan presents a “quintessential non-justiciable political question.” In addition, Defendant
Republic of China argues that the Court lacks jurisdiction over Plaintiffs’ claims against the
Republic of China under the Foreign Sovereign Immunities Act.
Upon review of the parties’ submissions, the Court finds that it lacks subject matter
jurisdiction over Plaintiffs’ case. Accordingly, the Court shall not consider Defendants’
remaining arguments, which concern the merits of Plaintiffs’ claims, namely, whether Plaintiffs
fail to state a cause of action and whether the applicable statutes of limitations bar Plaintiffs’
claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). The Court shall
limit its discussion to the threshold jurisdictional issues that bar adjudication of this matter. See
Anderson v. Carter, 802 F.3d 4, 10 (D.C. Cir. 2015) (“While the Supreme Court in Steel Co.
makes clear that once we have established that we have no subject-matter jurisdiction, we can
proceed no further, we do not violate this admonition when we observe that more than one
threshold basis bars adjudication.”).
A. Plaintiffs lack standing under Article III of the United States Constitution.
Pursuant to Article III of the Constitution, Defendants move to dismiss this action on the
basis that this Court has no jurisdiction because Plaintiffs lack standing. “Article III of the
Constitution limits the jurisdiction of federal courts to ‘actual cases or controversies between
6
proper litigants.’ ” Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014) (quoting Fla.
Audubon Soc'y v. Bentsen, 94 F.3d 658, 661 (D.C. Cir. 1996)). Because standing is a “threshold
jurisdictional requirement,” a court may not assume that Plaintiff has standing in order to
proceed to evaluate a case on the merits. Bauer v. Marmara, 774 F.3d 1026, 1031 (D.C. Cir.
2014). A plaintiff “bears the burden of showing that he has standing for each type of relief
sought.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). “To establish constitutional
standing, plaintiffs ‘must have suffered or be imminently threatened with a concrete and
particularized injury in fact that is fairly traceable to the challenged action of the defendant and
likely to be redressed by a favorable judicial decision.’ ” Mendoza, 754 F.3d at 1010 (quoting
Lexmark Int'l, Inc. v. Static Control Components, Inc., ––– U.S. ––––, 134 S.Ct. 1377, 1386, 188
L.Ed.2d 392 (2014); see also Lujan, 504 U.S. at 560.
“The ‘irreducible constitutional minimum of standing contains three elements’: injury in
fact, causation, and redressability.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (quoting
Lujan, 504 U.S.at 560-61). “Injury in fact is the ‘invasion of a legally protected interest which is
(a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.”
Id. (quoting Lujan, 504 U.S. at 560) (alterations in original). “The ‘causal connection between
the injury and the conduct complained of’ must 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.’ ” Id. (quoting Lujan, 504 U.S. at 561). Finally, “it must be ‘likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.’ ” Id. (quoting Lujan, 504
U.S. at 561).
7
Defendant United States challenges standing with respect to all three prongs, while
Defendant Republic of China challenges standing only with respect to prong #1, the injury-in-
fact requirement, and prong #3, the redressability requirement.
1. Plaintiffs have alleged an “injury-in-fact.”
To constitute an “injury-in-fact” under Article III, an injury must be “particularized,”
which means that “the injury must affect the plaintiff in a personal and individual way.” Lujan,
504 U.S. at 560 n.1.
Defendants argue that Plaintiffs “have not alleged facts showing that they have suffered a
personal injury as a result of the 1946 nationality decrees.” See USA’s Mot. at 17 (emphasis in
original).4 Defendants characterize Plaintiffs’ alleged injury merely as a “general interest in
obtaining a different international status for Taiwan and defining Taiwan’s identity.” Id.
Defendants contend that Plaintiffs’ allegations present the type of “abstract question of wide
public significance which amount to generalized grievances, pervasively shared and most
appropriately addressed in the representative branches. See id. at 18 (quoting Valley Forge
Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 475 (1982)).
Plaintiffs argue that their injury is “separate and apart from questions of Taiwan’s
unresolved political status” and that Plaintiffs’ “daily experiences facing statelessness are neither
abstract nor general.” Pls.’ Opp’n to USA’s Mot. at 33. Relying on the Supreme Court’s
decision in Baker v. Carr, 369 U.S. 186 (1962), Plaintiffs argue that that the requirement that
their injury be “personal, individualized, and peculiar to himself” does not mean that they must
allege injuries that affect only them, or that there is an upper limit on the number of people that
4
Defendant Republic of China adopts Defendant United States’ arguments with respect to the
injury-in-fact requirement. See ROC’s Mot. at 12.
8
may be injured by a defendant’s acts beyond which there is no standing. Pls.’ Opp’n to USA’s
Mot. at 34.
The Court agrees with Plaintiffs and finds that they have alleged a “particularized” injury
that affects them in a “personal and individual way.” Lujan, 504 U.S. at 560 n.1. Plaintiffs’
allegations go beyond having a “general interest in obtaining a different international status for
Taiwain.” USA’s Mot. at 17. Rather, Plaintiffs allege that they have been injured by virtue of
having been “stripped of their Japanese nationality” and having been “impos[ed] a nationality of
the ROC.” Am. Compl. ¶ 8. Such an injury is not a mere “generalized grievance about the
conduct of government or the allocation of power.” Valley Forge Christian Coll., 454 U.S. at
480 (finding that plaintiff taxpayers did not have standing as taxpayers to challenge transfer of
federally owned property). Accordingly, the Court finds that Plaintiffs have alleged “facts
showing disadvantage to themselves as individuals,” so as to demonstrate that they have “such a
personal stake in the outcome of the controversy as to assure [] concrete adverseness.” Baker,
369 U.S. at 205, 206.
2. Plaintiffs cannot met their burden of showing that their alleged injury is fairly
traceable to the United States.5
In order for Plaintiffs to have standing, they must demonstrate that their alleged injury is
“fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the court.” Lujan, 504 U.S. at 560 (quoting
Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976)). To satisfy this
“causation” or “traceability” prong, Plaintiffs must show that “it is substantially probable that the
5
Defendant Republic of China concedes that Plaintiffs have met this element of standing with
respect to Defendant Republic of China. See ROC’s Mot. at 12.
9
challenged acts of the defendant, not an absent third party, [] cause[d] the particularized injury of
the plaintiffs.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996).
Defendant United States contends that Plaintiffs cannot establish that the United States
caused their nationality injury through the 1946 decrees because the United States did not issue
those decrees. USA’s Mot. at 19. Defendant United States cites Plaintiffs’ own allegation in
their Amended Complaint: “the United States did not give the ROC the appropriate authority to
issue the 1946 Nationality Decrees.” Id. (quoting Am. Compl. ¶ 41). Defendant United States
also argues that Plaintiffs cannot establish causation by alleging that the Republic of China was
“acting as an agent of the United States” when it promulgated the nationality decrees in 1946.
Id. (citing Am. Compl. ¶ 6). Defendant United States further argues that, accepting arguendo
that such an agency relationship existed in 1946, “almost seven decades have passed since then,
with numerous events having occurred that are more directly relevant to Taiwan’s political
status,” and that it would be “completely speculative to conclude that the nationality of Taiwan
residents was caused by decrees issued by the Republic of China in 1946.” Id. at 19-20 (listing
intervening events).
In response, Plaintiffs repeat their allegation that the United States is liable for the
challenged acts of its alleged agent, the Republic of China. Pls.’ Opp’n to USA’s Mot. at 36
(citing Restatement (Third) of Agency (2006) § 7.03(1)). Plaintiffs also cite allegations in their
Amended Complaint, which they believe establish the principal-agent relationship between the
United States and the Republic of China. See id. Plaintiffs also argue that “the fact that
Plaintiffs’ statelessness has been allowed to exist for nearly 70 years should not be held against
the Plaintiffs.” See id. at 37.
10
At the outset, the Court notes that this is not the first time that Plaintiffs have brought
claims against the United States based on their assertion that the Republic of China acted as an
agent for the United States during the relevant post-World-War II time period. In Lin v. United
States, 539 F. Supp. 2d 173 (D.D.C. 2008), Plaintiff Dr. Roger C.S. Lin—who is also a plaintiff
in this lawsuit—and a group of Taiwan residents claimed that “General Order No. 1 made
Chiang Kai-shek an agent for the principal Occupying Power, i.e., the United States,” and that
the asserted principal-agent relationship enabled the United States to exercise temporary
sovereignty over Taiwan. Id. at 178, 180. In that case, Judge Rosemary M. Collyer held that the
court could not examine the bases for Plaintiffs’ claims because doing so would require the court
to resolve non-justiciable political questions, such as whether the United States exercised
sovereign authority over Taiwan. See id. at 178-181. The United States Court of Appeals for the
District of Columbia Circuit affirmed Judge Collyer’s decision to dismiss the plaintiffs’ claims,
finding that the plaintiffs were asking the court to “trespass into a controversial area of U.S.
foreign policy in order to resolve a question the Executive Branch intentionally left unanswered
for over sixty years: who exercises sovereignty over Taiwan.” Lin v. United States, 561 F.3d
502, 503-04 (D.C. Cir. 2009).
Similarly here, Plaintiffs are asking the Court to conclude that a principal-agency
relationship existed between the United States and the Republic of China, and that through the
asserted principal-agent relationship, the United States has caused Plaintiffs’ alleged injuries,
namely the deprivation of Plaintiffs’ recognized nationality. As the Court discusses in greater
detail below in Part III.B, the Court cannot issue such a finding without addressing the complex
and delicate contours of certain non-justiciable political questions, including whether the United
11
States exhibited sovereign control over Taiwan during the time period at issue. See infra, Part
III.B.
Without addressing any such non-justiciable political questions, the Court notes several
readily apparent deficiencies in Plaintiffs’ allegations that the Court deems problematic in
proving that Defendant United States has caused Plaintiffs’ alleged injuries. First, Plaintiffs
concede in their Amended Complaint that “the United States did not give the ROC the
appropriate authority to issue the 1946 Nationality Decrees.” Am. Compl. ¶ 41. Plaintiffs, citing
relevant State Department documents, allege that the United States was merely “aware” of the
Decrees. Id. ¶¶ 41, 43. As Defendant United States observes in its Motion to Dismiss, if “by
Plaintiffs’ own allegations, the United States did not authorize the Republic of China to issue the
nationality decrees in 1946, then any alleged injury arising from the decrees cannot be ‘fairly
traceable’ to the United States.” USA’s Mot. at 19.6
6
Plaintiffs misleadingly cite two inapposite out-of-circuit cases to argue the proposition that
where “the United States is sufficiently involved in the activity in the activity of foreign officials,
the United States may be responsible for the acts of those officials as agents of the United
States.” Pls.’ Opp’n to USA’s Mot. at 36. The first case, United States v. Hensel, 699 F.2d 18,
25 (1st Cir. 1983), cert. denied, 461 U.S. 958 (1983), concerns whether the “exclusionary rule”
under the Fourth Amendment applied to a search conducted by Canadian law enforcement of
evidence seized by foreign police agents, after an American DEA agent urged the Canadians to
seize the ship if it entered Canadian waters. See id. The second case, Stonehill v. United States
405 F.2d 738, 743 (9th Cir. 1968), cert. denied, 395 U.S. 960 (1969), also concerned the
“exclusionary rule,” specifically, the legality of certain raids found to have been illegal searches
and seizures by the Philippine Supreme Court as violating a section of the Philippine
Constitution that was identical to the Fourth Amendment of the United States Constitution. See
id. Neither cited decision provides any support for Plaintiffs’ contention that United States is
responsible for Plaintiffs’ injuries that allegedly have resulted from the issuing of the 1946
nationality decrees.
Likewise, Plaintiffs’ reliance on Cobb v. United States, 191 F.2d 604 (1951) is misplaced. Cobb
concerned whether the military occupation of Okinawa rendered the occupied territory part of
the United States for purposes of the Federal Tort Claims Act and did not address the principles
of agency law on which Plaintiffs rely. See id. at 610-611.
12
Furthermore, Plaintiffs repeatedly allege in their Amended Complaint that Chiang Kai-
shek acted as a representative of the Allied Powers. See Am. Compl. ¶¶ 1, 18, 36, 46, 57.
Plaintiffs’ assertion that Chiang Kai-shek acted as an agent of the United States appears to be
part of an attempt by Plaintiffs to benignly conflate the Allied Powers and the United States into
one. However, such an attempt appears problematic, given Plaintiffs’ concession that the “Allied
Powers,” as defined in Article 23(a) of the Treaty of Peace with Japan, included “Australia,
Australia, Canada, Ceylon, France, Indonesia, the Kingdom of the Netherlands, New Zealand,
Pakistan, the Republic of the Philippines, the United Kingdom of Great Britain and Northern Ireland,
and the United States of America.” Am. Compl. ¶ 70, n.57.
Finally, Plaintiffs are asking the Court to conclude that Defendant United States—by
virtue of its alleged principal-agent relationship with the Republic of China in 1946—has caused
Plaintiffs’ present-day injuries as stateless persons deprived of their Japanese nationality. See
Am. Compl. ¶¶ 6, 8. However, even if one were to accept, arguendo, that such an agency
relationship existed in 1946, seven decades have passed since the issuing of the nationality
decrees in 1946, with numerous events having occurred that are directly relevant to Taiwan’s
political status. See U.S.A.’s Mot. at 19, Ex. 2. Furthermore, Plaintiffs have not put forward any
evidence demonstrating that Plaintiffs’ current situation is a result of the events in 1946 and not a
consequence of the “years and years of diplomatic negotiations and delicate agreements” that
have occurred during the intervening years. Lin I, 539 F. Supp. 2d at 181. Given the lapse of
time and the numerous intervening events involving a number of nonparty sovereign nations, it
would be speculative to conclude, based on the record currently before the Court, that Plaintiffs’
current injuries were caused by the decrees issued by the Republic of China in 1946.
Accordingly, the Court cannot find that Plaintiffs have met their burden of demonstrating
the second element required for Article III standing, i.e., that “it is substantially probable” that
13
the challenged actions by Defendant United States have caused Plaintiffs’ alleged injuries. Fla.
Audubon Soc’y, 94 F.3d at 663.
3. Plaintiffs’ alleged injuries are not redressable by a favorable decision of this
Court.
In order for Plaintiffs to have standing, Plaintiffs must also demonstrate that it is “likely,
as opposed to merely speculative that the injury will be redressed by a favorable decision” of this
Court. Lujan, 504 U.S. at 561 (internal quotations and citation omitted). “Relief that does not
remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence
of the redressability requirement.” Steel Co., 523 U.S. at 107.
Plaintiffs request that the Court redress their alleged injuries—the deprivation of their
Japanese nationality and their current stateless status—by entering a series of declarations
holding that the nationality decrees issued in 1946 are legally invalid under various international
instruments, and that the United States did not authorize the Republic of China to issue those
decrees. See Am. Compl., Prayer for Relief, ¶ 1.
Defendants argue that no declaratory judgment can restore Plaintiffs’ alleged Japanese
nationality, and that the Court lacks authority to resolve Plaintiffs’ nationality. Defendants
further argue that Plaintiffs’ nationality status cannot be resolved without first resolving the
political status of Taiwan, the resolution of which the United States has long favored through a
“peaceful settlement . . . by the Chinese themselves.” See USA’s Mot. at 21.7 According to
Defendants, resolving the political status of Taiwan involves “independent actors not before the
court and whose exercise of broad and legitimate discretion the courts cannot presume either to
7
Defendant Republic of China adopts Defendant United States’ arguments with respect to the
injury-in-fact requirement. See ROC’s Mot. at 12.
14
control or to predict.” See id. (quoting Lujan, 504 U.S. at 562 (quoting ASARCO, Inc. v. Kadish,
490 U.S. 605, 615 (1989) (internal quotations omitted))).
Plaintiffs assert that this Court can redress Plaintiffs’ injuries. Specifically, Plaintiffs
contend that Plaintiffs’ action “seeks a declaration by this Court that is substantially likely to
support and materially change the Plaintiffs’ ability to clarify their nationality status.” Pls.’
Opp’n to USA’s Mot. at 38. Plaintiffs assert that they do not claim to be Japanese nationals, but
rather claim to be stateless persons, whose statelessness began with the illegal deprivation of
their, and their descendants’, Japanese nationality.” Id. at 38-39. Plaintiffs argue that the
declaration that Plaintiffs seek would “support the Plaintiffs’ position in securing an answer, any
answer, to the question of their nationality” and would “significantly support the Plaintiffs’
efforts in Taiwan and around the world, and within international bodies such as the United
Nations, to end their statelessness.” Id. at 39.
Upon review of the parties’ submissions, the Court finds that this Court cannot redress
Plaintiffs’ alleged injuries. “Redressability examines whether the relief sought, assuming that the
court chooses to grant it, will likely alleviate the particularized injury alleged by the plaintiff.”
Fla. Audubon Soc'y, 94 F.3d at 661. Here, the relief sought by Plaintiffs—a declaration stating
that the Republic of China’s nationality decrees are legally invalid—would not redress their
alleged injury as “stateless persons” who lack an internationally recognized nationality. In fact,
Plaintiffs do not even attempt to argue that the declaration that Plaintiffs are seeking would
provide them with an internationally recognized nationality or directly affect their nationality
status. See Pls.’ Opp’n to USA’s Mot. at 38-39. Rather, Plaintiffs merely contend that the
sought declaration, if issued by the Court, would “significantly support the Plaintiffs’ efforts in
Taiwan and around the world, and within international bodies such as the United Nations, to end
15
their statelessness.” Id. at 39. However, redressability cannot rest on speculation concerning the
discretionary actions that non-parties may take in the future. See Univ. Med. Ctr. Of S. Nev. v.
Shalala, 173 F.3d 438, 442 (D.C. Cir. 1999) (stating that even if the plaintiff prevailed, “it has
never explained how, or under what legal theory, it would be entitled to recover” against non-
parties).
Furthermore, when “redress depends on the cooperation of a third party, it becomes the
burden of the [plaintiff] to adduce facts showing that those choices have been or will be made in
such manner as to produce causation and permit redressability of injury.” U.S. Ecology, Inc. v.
U.S. Dep’t of Interior, 231 F.3d 20, 24-25 (D.C. Cir. 2000) (citation omitted). Here, Plaintiffs
allege no facts plausibly demonstrating how the sought declaration, if issued by this Court,
would be used “within international bodies such as the United Nations [] to end their
statelessness.” Pls.’ Opp’n to USA’s Mot. at 39. As such, the resolution of Plaintiffs’ alleged
injury necessarily involves “independent actors not before the court and whose exercise of broad
and legitimate discretion the courts cannot presume either to control or to predict.” Lujan 504
U.S. at 562 (citation omitted).
In sum, Plaintiffs have failed to show that it is “likely, as opposed to merely speculative”
that their injury will be redressed by a favorable decision of this Court. Lujan, 504 U.S. at 561.
Accordingly, the Court finds that Plaintiffs lack standing to bring the present suit, and that this
Court lacks subject matter jurisdiction to hear Plaintiffs’ claims against Defendants.
B. Additional grounds as to why this Court lacks subject matter jurisdiction over
Plaintiffs’ claims.
When a court concludes that it lacks subject matter jurisdiction over a plaintiff’s claims,
the Court is prohibited from addressing the merits of those claims. See Steel Co., 523 U.S. at
104-05. A court does not violate that admonition when the court “observes that more than one
16
threshold basis bars adjudication,” and proceeds to explain why such threshold jurisdictional
issues provide additional grounds for why the court lacks jurisdiction to hear the plaintiff’s case.
Anderson, 802 F.3d at 10 (citing Public Citizen v. United States District Court, 486 F.3d 1342,
1346 (D.C. Cir. 2007)).
Here, Plaintiffs’ request that a declaration be issued concerning the nationality status of
Taiwan residents presents a “quintessential non-justiciable political question.” In addition,
Plaintiffs fail to show that this Court has jurisdiction over Plaintiffs’ claims against Defendant
Republic of China under the FSIA.
1. The political question doctrine bars adjudication of Plaintiffs’ claims.
“The principle that the courts lack jurisdiction over political questions that are by their
nature ‘committed to the political branches to the exclusion of the judiciary’ is as old as the
fundamental principle of judicial review.” Schneider v. Kissinger, 412 F.3d 190, 193 (D.C. Cir.
2005) (quoting Antolok v. United States, 873 F.2d 369, 379 (D.C. Cir. 1989)). In determining
whether a case presents a nonjusticiable political question, the courts look for six factors: (1) a
textually demonstrable constitutional commitment of the issue to a coordinate political
department; (2) a lack of judicially discoverable and manageable standards for resolving it; (3)
the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; (4) the impossibility of a court’s undertaking independent resolution without
expressing a lack of respect due coordinate branches of government; (5) an unusual need for
unquestioning adherence to a political decision already made; or (6) the potentiality of
embarrassment of multifarious pronouncements by various departments on one question. Baker
v. Carr, 369 U.S. 186, 217 (1962). If any one of these factors is present, the Court may find that
the political question doctrine bars adjudication of Plaintiffs’ claims. Schneider, 412 F.3d at 194.
17
Here, Plaintiffs ask this Court to address broad questions about the nationality of Taiwan
residents under various international instruments and to issue declarations regarding their
nationality. See Am. Compl. ¶¶ 5, 6, 8, 9, 13, 45, 53, 50, 77; id., Prayer for Relief, ¶ 1. Under
settled D.C. Circuit precedent, however, the nationality of Taiwan residents presents a
quintessential non-justiciable political question.
In Lin v. United States, 539 F. Supp. 2d 173 (D.D.C. 2008), the plaintiffs, which included
the named Plaintiff in this case—Dr. Roger C.S. Lin—sought a judicial declaration that they are
nationals of the United States with all related rights and privileges, including the right to obtain
U.S. passports. Id. at 176-77. As noted above, Judge Collyer granted the government’s motion
to dismiss, concluding that the plaintiffs’ challenge involved “a quintessential political question”
that required “trespass into the extremely delicate relationship between and among the United
States, Taiwan and China.” Id. at 178. Judge Collyer also noted that the plaintiffs were asking
the court to “catapult over” a decision by the political branches to “obviously and intentionally
not recognize[] any power as sovereign over Taiwan.” Id. at 179 (emphasis in original). Given
the “years and years of diplomatic negotiations and delicate agreements” between the United
States and China, the court concluded it “would be foolhardy for a judge to believe that she had
the jurisdiction to make a policy choice on the sovereignty of Taiwan.” Id. at 181.
The United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”)
affirmed Judge Collyer’s decision, holding that the plaintiffs’ request to be declared nationals of
the United States was barred by the political question doctrine. See Lin v. United States, 561
F.3d 502, 508 (D.C. Cir. 2009). The D.C. Circuit explained that addressing plaintiffs’ attempt to
be declared U.S. nationals “would require us to trespass into a controversial area of U.S. foreign
18
policy in order to resolve a question the Executive Branch intentionally left unanswered for over
sixty years: who exercises sovereignty over Taiwan. This we cannot do.” Id. at 503-04.
Here, as in the earlier case, Plaintiffs ask the Court to issue declarations that directly
address the nationality of Taiwan’s residents. See Am. Compl. Prayer for Relief, ¶ 1. However,
as noted above, the D.C. Circuit has explicitly held that determining the nationality of Taiwan’s
residents would require this Court to resolve political questions that this Court does not have
jurisdiction to resolve. See Lin, 561 F.3d at 504. Furthermore, resolving Plaintiffs’ claims
regarding their nationality status would first require answering the “antecedent question” of
identifying Taiwan’s sovereign, an issue that cannot be answered under the political question
doctrine. Id. at 506.
Plaintiffs argue, to no avail, that the declarations sought by Plaintiffs “do not touch upon
the political status or sovereignty of Taiwan.” Pls.’ Opp’n to USA’s Mot. at 42. Plaintiffs
contend that they have identified a “specific and concrete violation of international law” that is
unrelated to the current status of Taiwan, and that “the declarations sought by [Plaintiffs] would
make no statement in any way on the current sovereignty status of Taiwan.” See id. Plaintiffs’
argument is essentially identical to the arguments rejected by the district court and the D.C.
Circuit in the earlier Lin case. See Lin, 539 F. Supp. 2d at 179 (“Plaintiffs argue that the Court
need only perform a traditional judicial task, interpret treaties, laws, and the Constitution . . . but
they misapprehend the nature of their own Amended Complaint.”); Lin, 561 F.3d at 506
(“Appellants argue this is a straightforward question of treaty and statutory interpretation . . .
Appellants insist they do not ask the court to determine Taiwan’s sovereign; however, without
knowing Appellants’ status, we cannot delineate Appellants’ resultant rights.”).
19
Furthermore, Plaintiffs’ arguments are fundamentally inconsistent with Plaintiffs’
assertion that the declaratory judgment sought by Plaintiffs would redress Plaintiffs’ injuries as
stateless persons. Plaintiffs assert that the sought declaration “would support the Plaintiffs’
position in securing an answer, any answer to the question of their nationality” and that such a
declaration would “significantly support the Plaintiffs’ efforts in Taiwan and around the world,
and within international bodies such as the United Nations, to end their statelessness.” Id. at 39.
In short, Plaintiffs argue that the sought declaration is both “unrelated to the current status of
Taiwan” and sufficiently related to the current status that the sought declaration would be
“substantially likely to support and materially change” the status of Taiwan. See id. Plaintiffs
cannot have it both ways.
In light of the foregoing, the Court finds that Plaintiffs’ claims are barred by the political
question doctrine.
2. Plaintiffs fail to demonstrate that the Court has subject matter jurisdiction over the
Republic of China under the Foreign Sovereign Immunities Act.
Under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602-1611, “a
foreign state is presumptively immune from the jurisdiction of United States courts,” and “unless
a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim
against a foreign state.” Saudi Arabia v. Nelson, 507 U.S. 349, 355, (1993); see also 28 U.S.C.
§§ 1604-1605. The FSIA provides “the sole basis for obtaining jurisdiction over a foreign state
in the courts of this country.” Nelson, 507 U.S. at 355, 113 S.Ct. 1471, quoting Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989) (internal quotation marks
omitted). Because “subject matter jurisdiction in any such action depends on the existence of
one of the specified exceptions . . . [a]t the threshold of every action in a District Court against a
foreign state . . . the court must satisfy itself that one of the exceptions applies.” Verlinden B.V.
20
v. Cent. Bank of Nigeria, 461 U.S. 480, 493–94 (1983). “In other words, U.S. courts have no
power to hear a case brought against a foreign sovereign unless one of the exceptions applies.”
Diag Human S.E. v. Czech Republic-Ministry of Health, 64 F. Supp. 3d 22, 30 (D.D.C. 2014).
Plaintiffs assert that this Court has subject matter jurisdiction over Plaintiffs’ claims
against the Republic of China under the FSIA’s non-commercial tort exception, 28 U.S.C.
§ 1605(a)(5). See Pls.’ Opp’n to ROC’s Mot. at 18. Plaintiffs allege that Defendant Republic of
China committed the tort of “arbitrary denationalization” when it promulgated the nationality
decrees in 1946.8
The non-commercial tort exception provides jurisdiction for cases alleging “personal
injury or death, or damage to or loss of property, occurring in the United States and caused by
the tortious act or omission of that foreign state or of any official or employee of that foreign
state while acting within the scope of his office or employment.” Jerez v. Republic of Cuba, 775
F.3d 419, 424 (D.C. Cir. 2014) cert. denied, 136 S. Ct. 38, 193 L. Ed. 2d 26 (2015) (quoting 28
U.S.C. § 1605(a)(5)). “[B]oth the tort and the injury must occur in the United States.” Id.
(quoting Persinger v. Islamic Republic of Iran, 729 F.2d 835, 842 (D.C. Cir. 1984)). “The entire
tort”—including not only the injury but also the act precipitating that injury—must occur in the
United States. Id. (citing Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517,
8
Only one federal case has recognized the tort of “arbitrary denationalization.” See In re S.
African Apartheid Litig., 617 F. Supp. 2d 228, 252 (S.D.N.Y. 2009). In that case, the court
analyzed the tort of “arbitrary denationalization” in the context of the Alien Tort Statute, holding
that a “state actor commits arbitrary denationalization if it terminates the nationality of a citizen
either arbitrarily or on the basis of race, religion, ethnicity, gender, or political beliefs.” Id.
Because the Court finds that the tortious activity at issue did not occur “within the United States”
for the purposes of the FSIA’s non-commercial tort exception, the Court finds it unnecessary to
resolve Defendant Republic of China’s contentions that the tort of “arbitrary denationalization”
is not a tort recognized under the exception or that the Republic of China’s decisions fall within
the discretionary function exception under § 1605(a)(5)(A).
21
1525 (D.C. Cir. 1984)). “Congress’ primary purpose in enacting § 1605(a)(5) was to eliminate a
foreign state’s immunity for traffic accidents and other torts committed in the United States, for
which liability is imposed under domestic tort law.” Amerada Hess, 488 U.S. at 439-40.
The FSIA’s term “United States” is narrowly construed to mean only “the continental
United States and those islands that are part of the United States and its possessions,” Amerada
Hess, 488 U.S. at 440, and does not include territories over which the United States might
exercise some form of jurisdiction. See id. at 440-41; Persinger v. Islamic Rep. of Iran, 729 F.2d
835, 839 (D.C. Cir. 1984). For example, the “high seas” fall outside the FSIA’s definition of the
“United States” even though the high seas might otherwise be within the United States’ admiralty
jurisdiction. Amerada Hess, 488 U.S. at 440-41. Similarly, a U.S. embassy in a foreign country
does not constitute the “United States” for purposes of the FSIA because, even though the United
States exercises certain forms of jurisdiction over its embassies, embassies are not within the
continental United States and are not islands or possessions of the United States. Persinger, 729 F.2d
at 839-842. See also Perez v. The Bahamas, 652 F.2d 186, 189 n.1 (D.C. Cir. 1981) (expressing
doubt that a territory falling within the “Fishery Conservation Zone suffices as territory of the United
States within the meaning of the FSIA” because it was clear that Congress intended the Fishery
Conservation Management Act to extend U.S. jurisdiction only for limited maritime purposes).
Here, Plaintiffs argue that the tortious activity at issue occurred “within the United
States” because when the nationality decrees were issued in 1946, Taiwan was “subject to
complete American military occupation” and therefore should be considered “within the United
States” for purposes of the FSIA’s non-commercial tort exception. See Pls.’ Opp’n to ROC’s
Mot. at 18. Plaintiffs’ argument is unavailing and contrary to the established case law described
above. The Supreme Court and the D.C. Circuit have definitely held that the FSIA’s term,
“United States,” is narrowly construed to mean only “the continental United States and those
22
islands that are part of the United States and its possessions,” Amerada Hess, 488 U.S. at 440,
and does not include territories over which the United States might exercise some form of
jurisdiction. See id. at 440-41; Persinger, 729 F.2d at 839.9
Additionally, Plaintiffs allege that the United States was the “principal occupying power of
Taiwan,” but they do not allege that the United States had any form of legal jurisdiction over Taiwan,
let alone jurisdiction as expressly defined as a U.N.-approved, congressionally ratified trusteeship.
See Am. Compl. ¶ 5. In fact, Plaintiffs allege the opposite, that is, after World War II, the Allied
Powers turned over “the trusteeship of Formosa10 to China” but that, “legalistically Formosa
[was] still a part of the Empire of Japan.” Id. ¶ 63 (quoting General MacArthur’s testimony to a
congressional committee in 1951)).11
Furthermore, Plaintiffs have not alleged that the decisions regarding the 1946 nationality
decrees occurred entirely in Taiwan. In briefing, Plaintiffs concede a point raised in Defendant’s
motion, that is, in 1946, the Republic of China was actually operating its government out of
Nanjing—which is not part of mainland China, not Taiwan. See ROC’s Mot. at 5, ex. A; Pls.’
Opp’n to ROC’s Mot. at 25. Accordingly, even if Taiwan could have been considered “within
the United States” in 1946 for the purposes of the FSIA’s tort exception, Plaintiffs have not
9
Plaintiffs’ reliance on Cobb v. United States, 191 F.2d 604 (9th Cir. 1951) is misplaced, as
Cobb is inapposite to the facts and issues before the Court. Cobb concerned whether the military
occupation of Okinawa rendered the occupied territory part of the United States for purposes of
the Federal Tort Claims Act and did not address the FSIA or the exception at issue in this case.
See id. at 610-611. Furthermore, to the extent that Cobb does have bearing on this case, Cobb
actually cuts against Plaintiffs’ argument, as the Ninth Circuit found that the United States’
military occupation of Okinawa did not render the occupied territory part of the United States.
See id. at 608-611.
10
At the time, Taiwan was known as “Formosa.”
11
To the extent that Plaintiffs dispute Taiwan’s legal status at the relevant time, Plaintiff would
be asking the Court to resolve a political question that this Court may not adjudicate. See supra,
Part III.A.
23
shown that the “entire alleged tort” occurred “within the United States,” as required by
established case law. Jerez, 775 F.3d at 424.
In sum, there simply is no basis for the Court to conclude that the tortious acts at issue
occurred “within the United States” for purposes of the FSIA’s non-commercial tort exception.
Accordingly, the Court finds that it lacks subject matter jurisdiction over Plaintiffs’ claims
against Defendant Republic of China.
IV. CONCLUSION
For the reasons set forth above, the Court finds that it lacks subject matter jurisdiction
over this case. Accordingly, the Court shall GRANT Defendant United States’ [23] Motion to
Dismiss, and the Court shall GRANT Defendant Republic of China’s [24] Motion to Dismiss.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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