Schieber v. United States

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JENNY SCHIEBER,
Plaintiff,
v. Civil Action No. 21-1371 (JDB)

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OPINION

Plaintiff Jenny Schieber challenges a decision by the United States Secretary of State

(“Secretary”) denying her claim for compensation from the Holocaust Deportation Fund (“Fund”).

The Fund is a sum of money held in trust by the Secretary pursuant to an executive agreement

between the governments of the United States and France; it is intended to compensate certain

qualifying individuals who survived deportation from France during the Holocaust, or their

survivors. See generally Def.’s Mot. to Dismiss Pl.’s Compl. Ex. A [ECF No. 6-2] (“Agreement”

or “Ex. A”). 1 Schieber claims that the Secretary’s rejection of her claim was arbitrary and

capricious in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. See

Compl. [ECF No. 1] ¶¶ 1–3. The United States responds that the Court lacks subject-matter

jurisdiction over Schieber’s claims and that she has failed to state a claim upon which relief can

be granted. See Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss [ECF No. 6-1] (“Mot. to

1
The Agreement is attached as an exhibit to defendant’s motion to dismiss, and it is available in the Treaties
and Other International Acts Series and electronically. See Agreement Between the Government of the United States
and the Government of the French Republic on Compensation for Certain Victims of Holocaust-Related Deportation
from France Who Are Not Covered by French Programs, Fr.-U.S., Dec. 8, 2014, T.I.A.S. 15-1101,
https://www.state.gov/wp-content/uploads/2019/04/us_france_agreement.pdf. The Court will cite the Agreement’s
provisions as “Agreement art.#(#)” and prefatory materials as “Ex. A at #.”

1
Dismiss”) at 8–9. For the reasons explained below, the Court will grant the government’s motion

to dismiss.

Background

I. The United States–France Agreement and the Holocaust Deportation Fund

The United States and French governments entered into the Agreement on December 8,

2014. Ex. A at 3. France agreed to provide $60 million to create a fund—the Holocaust

Deportation Fund—from which the United States government would “mak[e] payments,”

Agreement art. 4(1), to compensate “persons who survived deportation from France, their

surviving spouses, or their assigns,” id. art. 2(1). The Agreement required the United States to

deposit the money received from France “in an interest-bearing account . . . until distribution,

pursuant to a determination by the Secretary of State of the United States of America or his

designee.” Id. art. 4(4); see also 22 U.S.C. § 2668a (providing that the “Secretary of State shall

determine the amounts due claimants” from “trust funds” consisting of “moneys received . . . from

foreign governments . . . in trust for citizens of the United States or others”). In exchange for

France’s payment of money to establish the Fund, the United States agreed to recognize France’s

sovereign immunity, secure termination of suits pending against France in the United States

concerning Holocaust deportation claims, and require future claimants to execute waivers of all

rights against France. See Agreement art. 5.

The United States, through the Secretary of State, “shall distribute the [Fund] . . . according

to criteria which it shall determine unilaterally, in its sole discretion, and for which it shall be solely

responsible.” Agreement art. 6(1); see id. art. 4(4). Notwithstanding that broad grant of discretion,

the Agreement requires the Secretary to reject any claims by persons “who have received, or are

eligible to receive, compensation under an international agreement concluded by the Government

of the French Republic addressing Holocaust deportation,” id. art. 3(2), or under “another State’s
2
program” for compensating Holocaust deportation victims, id. art. 3(4); accord id. art. 6(2)(b). To

determine whether a person is eligible to receive a payment from the Fund, the Secretary “shall

rely on the sworn statement of nationality” to determine whether a claimant is a French national,

and “sworn representations” that a claimant has not received compensation from other programs,

“as well as on any relevant information” exchanged between the United States and French

governments. Id. art. 6(2)(c). 2 Finally, the Agreement provides that “[a]ny dispute arising out of

the interpretation or performance of this Agreement shall be settled exclusively by way of

consultation between the parties.” Id. art. 8. The Agreement “[e]ntered into force” on November

1, 2015. Ex. A at 3.

II. Factual Background

At the pleading stage, district courts must accept as true a plaintiff’s factual allegations,

see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), so the Court will recite the facts as presented in

the complaint. Jenny Schieber is a citizen and resident of Israel. Compl. ¶ 7. On July 31, 1943,

Schieber’s mother was deported to Auschwitz, where she was later killed; Schieber’s father, on

the other hand, “survived and passed away in Antwerp, Belgium on August 1, 1964.” Id. ¶ 9.

After the Agreement was signed, Schieber filed a claim for payment from the Fund “on behalf of

the estate of her father, a surviving spouse.” Id. ¶ 10. In her application, Schieber swore that her

father was “stateless,” i.e., that he was not a citizen of any country. Id.; see id. ¶ 14.

On April 3, 2018, however, the Secretary denied her claim. Compl. ¶ 10. Although

Schieber “swore that the information in [her] application, including the information that her father

2
The Annex to the Agreement (“Annex”) is a “Form of Written Undertaking That Any Recipient of
Compensation Must Execute Before Receiving Payment under This Agreement”—in other words, it is a template for
the application that a claimant must submit to the Secretary to receive money from the Fund. Annex at 1. In the first
paragraph of the form, a claimant must declare his or her nationality. Id. The claimant also must attach “a copy of
government documentation establishing nationality” to the form, and must “declare under penalty of perjury” that he
or she has not received, and will not claim, compensation under similar programs of France or any other nation. Id.
at 2.

3
was stateless, was true and correct,” id. ¶ 11, and although she “provided a second affidavit, again

swearing that her father was stateless, that he passed away in 1964, and that she did not have a

copy of his death certificate,” id. ¶ 12, the Secretary allegedly took “the position that [Schieber]

had provided no evidence of the fact that her father was stateless,” instead “stating that [the

Department of State] had been unable to find proof of statelessness,” id. ¶ 10. 3

Schieber filed her complaint on May 18, 2021. See generally Compl. She claims that the

Secretary’s denial of her claim based on the rejection of her “sworn affidavits of nationality” was

“an exercise of discretion which [the Secretary] did not have” because the Agreement provides

that the Secretary “shall rely on the sworn statement of nationality” in determining eligibility for

compensation. Id. ¶ 11 (quoting Agreement art. 6(2)(c)); see also id. ¶¶ 18–19 (claiming that the

Secretary’s decision “was not a reasonable interpretation of the Agreement”). Schieber also

alleges that “the claims of other claimants who provided no more than sworn statements in support

of their claims were approved,” rendering the Secretary’s decision “arbitrary and capricious.” Id.

¶ 11. Further, she claims that the Secretary “arbitrarily and capriciously refused to accept basic

principles of evidence” and ignored the “difficulty involved in trying to prove statelessness” by

denying her claim despite her sworn statements and affidavits about her father’s statelessness and

death. Id. ¶¶ 13–16.

Schieber asks the Court to declare, pursuant to the APA and the Declaratory Judgment Act,

28 U.S.C. § 2201 et seq., that the denial of her claim “was arbitrary and capricious and should be

3
According to Schieber, nationals of five countries, including France and Belgium, “are excluded from the
Agreement.” Pl.’s Mem. in Opp’n to Mot. to Dismiss [ECF No. 9] (“Opp’n”) at 1 n.1; see Agreement art. 3(1)–(2)
(providing that the Agreement “shall not apply” to “French nationals” and “nationals of other countries who . . . are
eligible to receive compensation under” other international agreements concluded by the French government); see
also John Irish, France to Pay $60 Million for Holocaust Victims Deported by State Rail Firm, Reuters (Dec. 5, 2014,
12:26 PM), https://www.reuters.com/article/us-france-usa-holocaust/france-to-pay-60-million-for-holocaust-victims-
deported-by-state-rail-firm-idUSKCN0JJ1TB20141205 (“The compensation deal . . . is open to people from all
countries with the exception of . . . Belgium[,] which already ha[s] [a] bilateral agreement[] with France.”).

4
overturned” and that her claim “should be approved based on the evidence” she provided and “the

failure of Defendant to honor the terms of the Agreement,” Compl. at 7. She also seeks a

declaration that she is entitled to receive compensation “in the amount that would otherwise be

paid . . . had she been initially approved as eligible,” as well as “supplemental payments paid to

all eligible claimants” of the same status. Id.

III. Motion to Dismiss

On July 27, 2021, the United States moved to dismiss Schieber’s complaint under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Mot. to Dismiss at 1–2. The government

contends that the Agreement creates no private right of action, see id. at 9, but instead provides for

resolution of disputes only through consultation between the United States and France—a

provision that, the government argues, creates a “limitation on judicial review,” id. at 9–10 (citing

5 U.S.C. § 702), precludes judicial review, id. at 13 (citing 5 U.S.C. § 701(a)(1)), and commits

eligibility determinations “to agency discretion by law,” id. at 14 (citing 5 U.S.C. § 701(a)(2)).

The government also argues that Schieber’s claims “raise a non-justiciable political question” as

to the Department of State’s interpretation and implementation of an international agreement. Id.

at 17. Lastly, because “the Declaratory Judgment Act is not an independent source of federal

jurisdiction,” the government contends that Schieber’s claims under that statute cannot survive on

their own. Id. at 25.

In her opposition, Schieber protests that the government’s arguments are “red herrings”

because “the only issue” raised in her complaint “is whether a unilateral, internal administrative

decision by the State Department” was “arbitrary and capricious.” Pl.’s Mem. in Opp’n to Mot.

to Dismiss Am. Compl. [ECF No. 9] (“Opp’n”) at 2–3. 4 She contends that she is not “asking the

4
The Court notes that Schieber has not moved to amend her complaint, nor has she filed an amended version.

5
Court to . . . mandate a particular interpretation of the Agreement,” id. at 3, and that her allegations

“are not based on the Agreement” but instead “are limited entirely to the Department of State’s”

actions, id. at 6. Thus, she argues, the absence of a private cause of action in the Agreement cannot

overcome the presumption of a right to sue under the APA. Id. at 3–4; see id. at 6–10. Further,

Schieber claims that the Agreement is not a “law” by which a decision may be committed to an

agency’s discretion, see id. at 7, and she contends that the political question doctrine is “irrelevant”

to her claims because she is only “seek[ing] to have the Defendant accept affidavits sworn to under

penalty of perjury,” see id. at 10–13. In its reply, the government argues that Schieber’s claims

are indeed based on the Agreement, which is both “the basis for [her] alleged right to

compensation” and the document that the Secretary allegedly misinterpreted in denying her claim.

Reply in Supp. of Mot. to Dismiss (“Reply”) at 3 (citing Compl. ¶¶ 11, 19); see id. at 5–6. The

government’s motion to dismiss Schieber’s complaint is now fully briefed and ripe for decision.

Analysis

In considering a motion to dismiss under Rule 12, a court must accept all facts alleged in

the complaint as true and make all reasonable inferences in the plaintiff’s favor. Humane Soc’y

of U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015). Courts need not, however, “accept inferences

unsupported by facts or legal conclusions cast in the form of factual allegations.” City of Harper

Woods Emps.’ Ret. Sys. v. Olver, 589 F.3d 1292, 1298 (D.C. Cir. 2009). To survive a motion to

dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), a plaintiff must establish a

court’s jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S.

555, 561 (1992). And to survive a motion to dismiss for failure to state a claim under Rule

12(b)(6), the “complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is

6
plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)).

Although a court may consider materials outside the pleadings to determine whether it has

subject-matter jurisdiction over claims, Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253

(D.C. Cir. 2005), a motion to dismiss for failure to state a claim must be decided only on the basis

of “the facts alleged in the complaint, any documents either attached to or incorporated in the

complaint[,] and matters of which [the court] may take judicial notice,” EEOC v. St. Francis Xavier

Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). “Incorporation by reference can also amplify

pleadings where the document is not attached by the plaintiff, but is ‘referred to in the complaint

and integral to the plaintiff’s claim.’” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133

(D.C. Cir. 2015) (cleaned up) (quoting Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004).

Thus, “[a] district court may consider a document that a complaint specifically references without

converting the motion into one for summary judgment.” Id.

I. Political Question Doctrine

The government’s sole argument for dismissal for lack of subject-matter jurisdiction is that

Schieber’s claims present a nonjusticiable political question. See Mot. to Dismiss at 17. “The

political question doctrine is ‘essentially a function of the separation of powers,’ and ‘excludes

from judicial review those controversies which revolve around policy choices and value

determinations constitutionally committed for resolution to the halls of Congress or the confines

of the Executive Branch.” El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 840 (D.C.

Cir. 2010) (first quoting Baker v. Carr, 369 U.S. 186, 217 (1962); and then quoting Japan Whaling

Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986)). And although many foreign policy

decisions fall into this category, the Supreme Court has cautioned that “it is error to suppose that

7
every case or controversy which touches foreign relations lies beyond judicial cognizance.” Baker,

369 U.S. at 211. Instead, courts should undertake “a discriminating analysis of the particular

question posed, in terms of the history of its management by the political branches, of its

susceptibility to judicial handling in the light of its nature and posture in the specific case, and of

the possible consequences of judicial action.” Id. at 211–12.

To aid in this analysis, Supreme Court articulated six factors that are “[p]rominent on the

surface” of any case involving a non-justiciable political question:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate
political department; or [2] a lack of judicially discoverable and manageable
standards for resolving it; or [3] the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial discretion; or [4] the
impossibility of a court’s undertaking an independent resolution without expressing
lack of respect due coordinate branches of government; or [5] an unusual need for
unquestioning adherence to a political decision already made; or [6] the potentiality
of embarrassment from multifarious pronouncements by various departments on
the question.

Baker, 369 U.S. at 217. The first two factors are “the most important,” Harbury v. Hayden, 522

F.3d 413, 418 (D.C. Cir. 2008), but only one factor need be present for a court to conclude that a

case is non-justiciable, Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005).

But despite the Supreme Court’s enumeration of factors, the bounds of the political

question doctrine remain “murky and unsettled.” Harbury, 522 F.3d at 418 (quoting Tel-Oren v.

Libyan Arab Republic, 726 F.2d 774, 803 n.8 (D.C. Cir. 1984) (Bork, J., concurring)). The D.C.

Circuit has noted that “[n]o branch of the law of justiciability is in such disarray as the doctrine of

the political question,” and because “there is no workable definition of characteristics that

distinguish political questions from justiciable questions,” the doctrine “is ‘more amenable to

description by infinite itemization than by generalization.’” Comm. of U.S. Citizens Living in

Nicar. v. Reagan, 859 F.2d 929, 933 (D.C. Cir. 1988) (quoting Charles Allen Wright, The Law of

8
Federal Courts 74–75 (4th ed. 1983)). Thus, the D.C. Circuit has explained that “applying the

political question doctrine . . . may not be the best approach” to resolving certain issues. Id. at

934.

In Committee of U.S. Citizens Living in Nicaragua, for example, plaintiffs sued the

government on the ground that the United States’ continued funding of the “Contras” in Nicaragua

violated a judgment of the International Court of Justice (“ICJ”) and therefore violated the APA,

the United Nations Charter, international law, and various constitutional provisions. See 859 F.2d

at 932. Although the government sought to dismiss the suit on political question grounds, the D.C.

Circuit held that the case “invite[d] dismissal for a reason more fundamental than the political

question doctrine”: none of the plaintiffs “ha[d] a cause of action in an American court.” Id. at

934. Thus, the D.C. Circuit “d[id] not rest on the political question doctrine in rejecting the

claims,” and instead affirmed dismissal “on the ground that private parties have no cause of action

in this court to enforce” an ICJ decision. Id.; see also Sanchez-Espinoza v. Reagan, 770 F.2d 202,

206 (D.C. Cir. 1985) (opting “not to resort to [the political question] doctrine for most of

[plaintiffs’ claims]” because there were “other bases for dismissing the suit . . . which do not

expand [the court’s] jurisdiction by resolving the assertedly political question on its merits”)).

Cognizant of the marked difficulty in deciding “[j]ust where the non-justiciability line is

drawn,” and of “the D.C. Circuit’s hesitance to apply the ill-defined and nebulous political question

doctrine,” another court in this District “decline[d] to apply the doctrine” in an analogous case and

instead “address[ed] the other grounds for dismissal asserted by” the defendants. Gonzalez-Vera

v. Kissinger, Civ. A. No. 02-02240 (HHK), 2004 WL 5584378, at *3–4 (D.D.C. Sept. 17, 2004)

(collecting D.C. Circuit cases affirming dismissals on grounds other than the political question

doctrine). Guided by the D.C. Circuit’s preference to resolve a case on the basis of whether

9
plaintiffs had “a cause of action in an American court” instead of addressing the political question

doctrine, see Comm. of U.S. Citizens Living in Nicar., 859 F.2d at 934, the Court will therefore

reserve judgment on the government’s political question argument and instead consider whether

Schieber has a cause of action to raise her claims in this Court.

II. Private Right of Action

The government argues that, because the Agreement provides no private cause of action,

it imposes a “limitation on judicial review” and leaves Schieber without a cause of action. Mot.

to Dismiss at 9–10 (quoting 5 U.S.C. § 702). Schieber responds that the government’s premise—

that her claims “are based on the Agreement”—“is clearly wrong.” Opp’n at 5. She argues instead

that she “seeks a judgment against the [government] only for domestic wrongs committed by the

Department of State,” id. at 3–4, so her “right of action is specifically created by the APA subject

only to specified exceptions,” none of which are applicable in her case, id. at 6. The Court will

first determine whether Schieber’s claims are based on the Agreement, then decide whether the

Agreement provides a private cause of action, and, if not, whether that is fatal to Schieber’s claims.

A. Basis of Schieber’s Claims

In her opposition to the government’s motion to dismiss, Schieber contends that she is not

“asking the Court to . . . mandate a particular interpretation of the Agreement,” Opp’n at 3, or to

“interpret any terms of the Agreement,” id. at 4. Instead, she argues that she has “suffered financial

injury only because of the internal acts of the Department of State,” which “rejected her claim

based on conclusions of fact that lacked rational justification.” Id.; see also id. at 6 (“Th[is] dispute

has nothing to do with the terms of the Agreement.”). She also claims that she “does not rely on

the Agreement as the source of [her] cause of action against the State Department.” Id. at 4–5.

10
 But these arguments are inconsistent with the allegations in Schieber’s complaint. Schieber

alleged that the “language of the Agreement itself was a mandate” requiring the Secretary to accept

sworn affidavits of nationality, and that it was the Secretary’s “[f]ailure to treat [Schieber] in

accordance with the terms of the Agreement” that rendered the Secretary’s decision “arbitrary and

capricious.” Compl. ¶ 11 (emphases added). Furthermore, Schieber explicitly claimed that the

Secretary’s rejection of her claim “was not a reasonable interpretation of the Agreement,” id. ¶ 19.

Indeed, Schieber acknowledges the centrality of the Agreement in her opposition to the motion to

dismiss: “To the extent that the Agreement is relevant to this suit, it is only because Plaintiff is

asking the Defendant to adhere to the purpose and language of the Agreement.” Opp’n at 12

(emphasis added).

Nor does Schieber raise any other source of law as the basis of her suit. Although she

contends that the Secretary “arbitrarily and capriciously refused to accept basic principles of

evidence,” citing Federal Rules of Evidence 602, 803(10), and 1004(b), 5 Compl. ¶ 13, she does

not explain why those rules, which only “apply to proceedings in United States courts,” Fed. R.

Evid. 101(a), are relevant to the Secretary’s decision. Schieber also contends that the Secretary

“ignore[d] internationally accepted guidelines on the definition and treatment of stateless persons,”

Opp’n at 2 & n.2; see Compl. ¶¶ 14–16, but those guidelines are not a legal basis for claims against

the Secretary under the APA. The Court concludes that Schieber’s claims are based on the

5
Federal Rule of Evidence 602 provides that a witness may testify only on a matter within his or her personal
knowledge, and that “[e]vidence to prove personal knowledge may consist of the witness’s own testimony.” Rule
803(10) creates an exception to the general rule against hearsay for testimony “that a diligent search failed to disclose
a public record,” if that testimony is admitted to prove that “the record . . . does not exist” or that the “matter did not
occur or exist, if a public office regularly kept a record or statement for a matter of that kind.” Finally, Rule 1004(b)
provides that a non-original writing is admissible if “an original cannot be obtained by any available judicial process.”
Drawing from these rules, Schieber argues that the Secretary should have considered her “personal knowledge of the
date of her father’s death” and her sworn statement that she has been unable to locate a death certificate for over 55
years. Compl. ¶ 13.

11
Agreement and will thus consider whether the Agreement provides a private right of action and, if

not, whether it imposes a “limitation on judicial review” under the APA.

B. Limitation on Judicial Review

A person who is “suffering a legal wrong because of agency action . . . is entitled to judicial

review thereof,” 5 U.S.C. § 702, and the Court must “set aside agency action” that is “arbitrary,

capricious, . . . or otherwise not in accordance with law,” id. § 706(2)(A). But nothing in the APA

“(1) affects other limitations on judicial review or the power or duty of the court to dismiss any

action . . . on any other appropriate legal or equitable ground; or (2) confers authority to grant relief

if any other statute that grants consent to suit expressly or impliedly forbids the relief which is

sought.” Id. § 702. Although treaties and executive agreements have the force of law, violations

of them are “subject to review under the APA” only “when a private right of action is afforded.”

De la Torre v. United States, Nos. C 02–1942 CRB, C 01–0892–CRB, C 02–1943–CRB, C 02–

1944–CRB, 2004 WL 3710194, at *8–9 (N.D. Cal. Apr. 14, 2004); cf. McKesson Corp. v. Islamic

Republic of Iran, 539 F.3d 485, 488–89, 491 (D.C. Cir. 2008) (although Treaty of Amity between

United States and Afghanistan had the force of law, plaintiff could not bring suit for alleged

violation because treaty lacked “a textual invitation to judicial participation”). Thus, whether a

treaty or executive agreement carries the force of law is a separate issue from whether it affords a

private right of action. See McKesson Corp., 539 F.3d at 488–89 (“[W]hether a treaty is self-

executing is a question distinct from whether the treaty creates private rights or remedies.” (quoting

Restatement (Third) of Foreign Relations Law of the United States § 111 cmt. h (Am. Law Inst.

1986))).

There is a presumption that international agreements do not create private causes of action.

See Medellín v. Texas, 552 U.S. 491, 506 n.3 (2008); McKesson Corp., 539 F.3d at 488–89; Mora

12
v. New York, 524 F.3d 183, 201 & n.25 (2d Cir. 2008) (collecting cases). This presumption may

“be overcome only if the agreement itself reflects an intent to create judicially enforceable private

rights.” United States v. Sum of $70,990,605, 234 F. Supp. 3d 212, 237–38 (D.D.C. 2017) (citing

Restatement (Third) of Foreign Relations Law of the United States § 907 cmt. a (Am. Law Inst.

1986)); accord Restatement (Fourth) of Foreign Relations Law of the United States § 311 cmt. b

(Am. Law Inst. 2018). Without a “textual invitation to participation,” therefore, a treaty or

agreement is enforceable only “through bilateral interaction between its signatories” and not by

the adjudication of private suits. McKesson Corp., 539 F.3d at 491 (also giving “‘great weight’ to

the fact that the United States shares this view” (quoting Medellín, 552 U.S. at 513)).

The government correctly notes that the Agreement “contains no express provisions

creating judicially enforceable rights for claimants” and argues that the “Agreement’s text and

context” support the same conclusion. Mot. to Dismiss at 12. Textually, the Agreement provides

that the United States shall distribute funds “according to criteria which it shall determine

unilaterally, in its sole discretion, and for which it shall be solely responsible,” Agreement art. 6(1)

(emphasis added), and that “[a]ny dispute arising out of the interpretation or performance of this

Agreement shall be settled exclusively by way of consultation between the Parties,” that is,

between the United States and France, id. art. 8 (emphasis added).

As to context, although the Agreement was intended to benefit individual claimants—

Holocaust survivors and their qualifying family members, see Agreement art. 2(1)—the relevant

question is whether anything in the Agreement “indicate[s] an intent by its creators that any of [its]

terms . . . would give rise to affirmative, judicially-enforceable obligations on behalf of” individual

claimants. De la Torre, 2004 WL 3710194, at *10; see also McKesson Corp., 539 F.3d at 489

(concluding that treaty provided no private cause of action, even though it “directly benefit[ted]”

13
the plaintiff, because it “le[ft] open the critical question of how [plaintiff] is to secure its due”).

For instance, the court in De la Torre concluded that a series of agreements between the United

States and Mexico, which were intended to improve working conditions for certain Mexican

citizens in the United States, were not enforceable by the workers. See 2004 WL 3710194, at *1–

2. “[D]espite the multitude of provisions that provided protections to the [workers],” the court

concluded that “nothing in the agreements expresses or allows the court to infer that” the purposes

or objectives of the treaty “warrant[ed] a private right of action.” Id. at *9. Instead, the court

reasoned “that what was contemplated by the agreements were matters of states for the respective

nations to enforce between them.” Id. at *10. So too here. Although the Agreement’s objectives

include compensation for private parties, its text and context indicate that it is not intended to be

enforceable by those parties. Thus, the Court concludes that the Agreement provides no private

cause of action, so Schieber cannot state a claim under the APA for the Secretary’s alleged

violation of the Agreement. 6 This lack of a cause of action is an independent limitation on judicial

review of the State Department’s denial of Schieber’s claim.

III. Preclusion of Review and Commitment to Agency Discretion

Even assuming that the Agreement did not operate as a limitation on judicial review under

5 U.S.C. § 702, the Court would still conclude that it precludes judicial review under § 701(a)(1).

See Mot. to Dismiss at 13–14. Schieber urges that the Agreement’s provision limiting dispute

resolution to consultation between the United States and France does not apply to her claims, which

are limited to the Secretary’s actions, see Opp’n at 6, and she argues that the government has

6
Without a viable claim under the APA, Schieber also cannot state a claim under the Declaratory Judgment
Act. If a plaintiff fails to allege “a cognizable cause of action,” she has “no basis upon which to seek declaratory relief
because of the “well-established rule that the Declaratory Judgment Act is ‘not an independent source of federal
jurisdiction.’” Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011) (quoting C & E Servs., Inc. of Washington v.
D.C. Water & Sewer Auth., 310 F.3d 197, 201 (D.C. Cir. 2002)).

14
identified no law that “prohibit[s] review,” id. at 7. The Court disagrees: the Agreement itself

precludes judicial review.

The APA provides no cause of action for a person injured by allegedly unlawful agency

action “to the extent that statutes preclude judicial review.” 5 U.S.C. § 701(a)(1). “Executive

agreements are not quite treaties,” in that they do not require ratification by the Senate, but they

do “carry the force of law as an exercise of the President’s foreign policy powers.” Owner-

Operator Indep. Drivers Ass’n, Inc. v. U.S. Dep’t of Transp., 724 F.3d 230, 232 (D.C. Cir. 2013). 7

In the context of the APA, courts have concluded that treaties, just like statutes, may preclude

judicial review under § 701(a). See United States v. Moloney (In re Price), 685 F.3d 1, 13–14 (1st

Cir. 2012), cert. denied, 569 U.S. 942 (2013).

Under § 701(a)(1), the APA’s presumption of reviewability of agency action “may be

overcome by specific language” or by “inferences of intent drawn from the statutory scheme as a

whole.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984); see also Heckler v. Cheney,

470 U.S. 821, 830 (1985) (Section 701(a)(1) applies “when Congress has expressed an intent to

preclude judicial review”). Thus, “[w]hether and to what extent a particular statute precludes

judicial review is determined not only from its express language, but also from” its structure,

objectives, history, and the nature of the agency action involved. Block, 467 U.S. at 345; see also

Moloney, 685 F.3d at 13 (applying the same principle to an APA challenge under a mutual legal

assistance treaty (“MLAT”)).

For many of the reasons explained above, the Court concludes that the Agreement

precludes judicial review of Schieber’s claim. That claim is based on the Secretary’s allegedly

7
Schieber argues that the Agreement is not “the equivalent of law,” Opp’n at 7, but she neither cites any
support for this position nor grapples with binding Circuit precedent to the contrary. See Owner-Operator Indep.
Driver’s Ass’n, 724 F.3d at 232; cf. McKesson Corp., 539 F.3d at 488 (concluding that Treaty of Amity had the force
of law).

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incorrect interpretation of the Agreement, see, e.g., Compl. ¶ 19; Opp’n at 12, and the Agreement

provides for exclusive resolution of “[a]ny dispute arising out of the interpretation or performance

of the Agreement” by “consultation” between the United States and France, Agreement art. 8.

That consultation-only provision operates as law precluding judicial review. See Moloney, 685

F.3d at 13–14. In Moloney, the First Circuit considered an APA challenge to the government’s

decision to subpoena information pursuant to an MLAT with the United Kingdom. Id. at 3, 13.

Because the MLAT explicitly did “not give rise to a right on the part of any private person to . . .

impede the execution of a request [for legal assistance],” instead providing that the United States

and United Kingdom would “consult promptly . . . concerning [its] implementation,” id. at 10–11,

and because its structure and objectives suggested the same, id. at 11–12, the court concluded that

§ 701(a)(1) “bar[red] federal court jurisdiction,” id. at 13–14. So too here. Schieber resists this

conclusion by arguing that her challenge is only directed at the Secretary’s rejection of her claim

and “has nothing to do with the terms of the Agreement.” See Opp’n at 6. But, as explained above,

the Court concludes that Schieber’s claims are based on her disagreement with the Secretary’s

interpretation of the Agreement. See Moloney, 685 F.3d at 13 (rejecting an analogous argument

that plaintiffs “s[ought] . . . merely to enforce the treaty requirements”). Because any dispute

about the “interpretation” of the Agreement must be resolved by intra-party consultation, the

consultation-only provision of the Agreement precludes judicial review in this case.

Conclusion

For the foregoing reasons, the Court will grant the government’s motion to dismiss

Schieber’s complaint. An Order to that effect shall issue on this date.

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 /s/
JOHN D. BATES
United States District Judge
Dated: January 26, 2022

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