American Jewish Congress v. Cyrus R. Vance

SPOTTSWOOD W. ROBINSON, III, Circuit Judge,

dissenting in part:

Though much of Judge Tamm’s discussion of standing is unexceptionable, he concludes that the abrupt dismissal as to Ka-plan should be affirmed, primarily on the ground that it is “purely speculative” whether his injuries were directly caused by the governmental activities challenged, and thus that any judicially-ordered relief directed toward that conduct would be unlikely to redress those injuries.1 Judge McGowan, our concurring colleague, finds that Kaplan has standing but subscribes to affirmance on the ground that “the relief he seeks . . . could not properly be given.”2

I cannot agree with either result. The complaint alleges facts that would establish all the causation legally demanded, and dismissal on the pleadings denied Kaplan the opportunity to prove his allegations in that respect. And because questions of relief are to be decided not on the basis of what a plaintiff requests in his complaint but according to what he legally deserves — and by the trial court in the first instance — I think the exigencies of remediation presented no occasion for dismissal. I must, then, respectfully dissent.

I

Fairly read,3 the complaint sets forth two causes of action against appellees, all of whom are officials of the United States Government. The more limited one is that the United States has helped create or has utilized the services of certain nongovernmental institutions and corporations in discharging its responsibilities under the cooperative agreement with Saudi Arabia, and that the organizations with which it has thus become intertwined have discriminated on the bases of religion and ancestry in selecting employees for work in that country.4 The broader claim is that although the United States endeavors to gain the admission into Saudi Arabia of Jewish Americans employed by participating organizations it may not always be successful,5 and still it continues its cooperation knowing full well that at sometime it will have to replace one or more.6

Jewish citizens thus are allegedly disadvantaged at each of two levels: when the participating organizations choose their employees, and when the United States bows to Saudi Arabian dictates on who may enter to carry out the programs. I agree with my colleagues that under existing law no appellant has standing to launch an attack on the second level, if for no other reason than that none has alleged exclusion at that *949stage.7 Contrary to their implicit assumptions, however, the analysis for the latter does not apply equally to the former.

In dealing with initial hiring decisions, Judge Tamm missteps, I believe, by forgetting at what stage this lawsuit was intercepted. He finds, and I agree, that Kaplan8 “indeed suffered concrete injury and that, under certain circumstances, a court could provide [him] with relief.”9 He concludes, however, that Kaplan faces insurmountable problems of causation and redressability, obstacles that are dealt with under the rubric of the threshold issue of standing.10

The difficulty seen with respect to causation is that “it is ‘purely speculative’ whether Kaplan’s job rejection . . . [is] traceable to the defendants’ implementation of the agreement with Saudi Arabia, or *950instead attributable to decisions made independently by the consortium . . . 11 But Kaplan does allege facts which if proven would establish that his injuries were caused by “the defendants’ implementation of the agreement,” either directly or because the United States is so involved with the participating institutions that governmental action pervades what might superficially seem to be independent, private decisions.12 This is not a case in which the complaint merely states a result and then speculates that the challenged governmental conduct might have had something to do with that outcome. The complaint here specifies the facts of how the activity lead to the wrongs in question, and the only possible element of speculation involves whether the alleged facts are correct. Kap-lan has not yet had a chance to prove his assertions, and so of course in this limited sense what they say has to be “speculative.”

In this milieu, I submit, dismissal as to Kaplan was error. “For purposes of ruling on a motion to dismiss for want of standing,” the Supreme Court has recently reminded, “both the trial court and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party . . . .”13 Even if Judge Tamm is correct that some degree of specificity is lacking, the only proper course is to remand this litigation to the District Court “to allow or to require [Kaplan] to supply, by amendment to the complaint or by affidavits, further allegations of fact deemed supportive of . standing.”14 My colleague is correct that Kaplan must sustain his allegations on causation, but he paradoxically deprives Kaplan of the opportunity to do just that.

II

Both the leading opinion’s handling of redressability and the concurring opinion’s elaboration thereon are similarly puzzling. To be sure, appellants seek extensive and “extraordinary remedies,”15 considerably more than could be justified as remediation for injuries suffered at the level of exclusion that they have standing to challenge.16 But plaintiffs frequently ask for the stars, and a complaint is not dismissable simply because its proof would at most entitle the plaintiff to something less.17 Judge Tamm *951recognizes “that, under certain circumstances, a court could provide [Kaplan] with relief”; 18 and, even if it were incumbent upon him to temper his demand for relief, the complaint ends with the traditional boilerplate prayer for “such other and further relief as . . . the Court may [deem] just and proper.”19 That Kaplan has requested an end to our entire participation in the Saudi Arabian program but might only merit, for instance, a decree banning knowing utilization of organizations that discriminate is no reason to leave him empty-handed. To throw out of court plaintiffs who want more than they are likely to get is to ignore human nature, and to create an unrealistic and unwarranted barrier to litigation.20

To sum up, then, I believe today’s decision distorts the law of standing, and prematurely and needlessly denies Kaplan the opportunity to demonstrate what he alleges. Judge Tamm, I think, not only has abrogated notice-pleading of standing but has further insisted that complaints include proof as well as factual allegations on that score. Judge McGowan has told plaintiffs that they must not ask for more relief than they are sure their complaint warrants on its face. I know of no such requirements, and am unable to perceive any justification for them.

. Principal Opinion (Prin. Op.), - U.S.App.D.C. at 188, 575 F.2d at 946.

. Concurring Opinion (Cone. Op.), - U.S. App.D.C. at 188, 575 F.2d at 948 (emphasis supplied).

. In scrutinizing a motion to dismiss on the pleadings, the complaint must be construed liberally in the plaintiffs favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 96 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957).

. For example, appellants specifically allege that one appellee, the Administrator of the Agency for International Development, helped to create the Midwest Universities Consortium for International Activities, that AID uses the Consortium as an instrumentality for implementation of the agreement, and that the Consortium refused to hire Kaplan because of his religion and ancestry. Complaint U 23, Appellants’ Appendix (App.) 9.

. No instance of failure at this level has been brought to our attention.

. In appellants’ words, “it is illegal for the government to enter into an agreement or participate in any program with Saudi Arabia which directly or indirectly results in discrimination by that government against American citizens because of religion.” Reply Brief for Appellants at 3.

. Judge Tamm’s discussion of citizen, Jewish citizen and taxpayer standing is in accord with the Supreme Court’s recent teachings, and no individual asserts that he was hired but then excluded at the second level. Even such an employee might not have standing because of the problem of redressability. If the appellees were enjoined from executing the cooperative agreement unless Saudi Arabia allowed equal entrance to all employees, the “substantial probability,” Warth v. Seldin, 422 U.S. 490, 504, 95 S.Ct. 2197, 2208, 45 L.Ed.2d 343, 358 (1975), might be that that country would refuse and that no employees at all would be let in. The situation is unlike, for example, that in Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), where the Eagle Coffee Shoppe’s continued refusal to serve blacks would have meant that the Authority would have replaced it with another lessee, and blacks would eventually have been served. In our case, however, no Jewish employee might ever get into Saudi Arabia no matter what the United States would do.

It may therefore be that, at this stage of the evolution of the law of standing, no one can challenge this allegedly unconstitutional conduct, and that is why I deem the explication of citizen and taxpayer standing only facially correct. Perhaps the standing of citizens or taxpayers who have suffered a widely-shared injury and who are interested enough to commit their resources to a suit should be recognized when possibly unlawful action would otherwise go unreviewed. While we surely cannot do away with the constitutional requisite of injury-in-fact, perhaps prudential considerations designed to allow into court only the “best” plaintiffs — in the sense of those with the most serious and individualized injuries — should not completely bar the courthouse doors solely because no one has any greater injury than anyone else. See, e. g., Nova Scotia Bd. of Censors v. McNeil, 55 D.L.R.3d 632 (Can. 1975) and Thorson v. Attorney-General of Canada, 43 D.L.R.3d 1 (Can. 1974), discussed in Comment, Opening the Door, Not the Floodgates: An Adaptation of Canadian Standing Criteria to Citizen or Taxpayer Suits in the United States, 26 Emory L.J. 185 (1977) (under Canadian law, court may grant standing to an affected citizen or taxpayer when the issue is otherwise justici-

able and substantial, no other challenger could meet traditional standing rules, alternative methods of attacking validity of the challenged conduct have been exhausted and grave inconvenience will not result).

In the circumstances of this case, we have no need to go beyond the law as it now stands because we do not know that a Jewish employee excluded at the Saudi Arabian border would not have standing under traditional analysis of redressability. It may be, for instance, that the United States could be ordered to implement the agreement so that most if not all of the work to be done by United States citizens could be done in this country, thus remedying the injuries of those Jewish employees who would otherwise be excluded from work in Saudi Arabia. Consequently, more refined analysis of the question of standing to challenge United States conduct at the second level of exclusion can await another day.

. I agree that Watkins may not challenge even the first level of exclusion since he has alleged no governmental involvement either in Bendix Corporation’s formulation of its application or in that company’s affairs generally. In short, he has not stated a cause of action under the Fifth Amendment because any inequality of treatment did not, for all that is alleged, result from action of the United States Government.

Since I believe that Kaplan has standing, appellant American Jewish Congress would also have standing as a representative of its members who are situated similarly to Kaplan. See Prin. Op., 188 U.S.App.D.C. at -, 575 F.2d at 943.

. Prin. Op., 188 U.S.App.D.C. at-, 575 F.2d at 946.

. If the factual allegations of causal nexus are incorrect, that seems like a good and traditional reason for denying relief on the merits. See Tushnet, The New Law of Standing: A Plea for Abandonment, 62 Cornell L. Rev. 663, 681 (1977). We are bound, however, by the Supreme Court’s determination that it is actually a negation of standing.

. Prin. Op.,-U.S.App.D.C. at-, 575 F.2d at 946. The court here relies primarily upon Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), but the complaint therein failed to allege the factual links between the injury suffered and the challenged action. Id. at 44, 96 S.Ct. at 1927, 48 L.Ed.2d at 463-464. The Eastern Kentucky complaint fell short because it rested essentially upon “unalleged and unknown facts” to support an inference of causation. Id. at 45 n.25, 96 S.Ct. at 1928 n.25, 48 L.Ed.2d at 464 n.25. Appellants have avoided that difficulty here by specifically alleging facts explaining how the conduct complained of led to their injuries.

. See note 4 supra.

. Warth v. Seldin, supra note 7, 422 U.S. at 501, 95 S.Ct. at 2206, 45 L.Ed.2d at 356.

. Id., 95 S.Ct. at 2206-2207, 45 L.Ed.2d at 356. Of course, if the facts on standing are uniquely within the knowledge or control of the opponent, limited discovery might be appropriate. Cf. Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458, 464 (1962).

A remand to the District Court would necessitate a decision whether that court was correct in ruling that this controversy embraces a non-justiciable political question. With that I have little difficulty — especially with regard to the claim respecting initial hiring decisions. At that level considerations of foreign policy are not implicated at all, and questions of equal protection are well within the expertise of the judiciary. E. g., Baker v. Carr, 369 U.S. 186, 226, 82 S.Ct. 691, 715, 7 L.Ed.2d 663, 691 (1962). Even were we more deeply involved in adjudication affecting this Nation’s international affairs, I would be troubled by a holding that the context of the dispute inexorably immunizes it from judicial review of allegedly unconstitutional action. E. g., Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957).

. Cone. Op., 188 U.S.App.D.C. at -, 575 F.2d at 947.

. See text at notes 11-12 supra.

. See, e. g., Pickus v. Board of Parole, 165 U.S.App.D.C. 284, 287, 507 F.2d 1107, 1110 (1974); Norwalk CORE v. Norwalk Redev. Agency, 395 F.2d 920, 925-926 (2d Cir. 1968); Kahan v. Rosensteil, 424 F.2d 161, 174 (3d *951Cir.), cert. denied, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970); Logan v. General Fireproofing Co., 521 F.2d 881, 884 n.3 (4th Cir. 1971); Sapp v. Renfroe, 511 F.2d 172, 176 n.3 (5th Cir. 1975). Fed.R.Civ.P. 54(c) specifies that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” The purpose of the rule “is to avoid the tyranny of formalism,” Rosden v. Leuthold, 107 U.S.App.D.C. 89, 92, 274 F.2d 747, 750 (1960), a regime I would not help to reinstate.

. Prin. Op.,-U.S.App.D.C. at 188, 575 F.2d at 946.

. Complaint fl 33(6), App. 12.

. Nor can I agree with Judge McGowan that Kaplan has failed to exhaust his administrative remedies. In the first place, I have been told of no process available for enforcement of the presidential statement. Compare Sohm v. Fowler, 124 U.S.App.D.C. 382, 385, 365 F.2d 915, 918 (1966) with A Quaker Action Group v. Morton, 148 U.S.App.D.C. 346, 353-354, 460 F.2d 854, 861-862 (1971), on remand, 362 F.Supp. 1161 (D.D.C.1973), aff’d in part, 170 U.S.App.D.C. 124, 516 F.2d 717 (1975), later appeal, 182 U.S.App.D.C. 95, 559 F.2d 716 (1977) and Genuine Parts Co. v. FTC, 445 F.2d 1382, 1394 (5th Cir. 1971). The statement, moreover, does not speak directly to the first theory of exclusion as I have described it, but instead merely restates the ban on employment discrimination by federal agencies and instructs the Secretary of Labor to order federal contractors to report to the State Department any visa rejections by foreign countries based on exclusionary policies. 11 Weekly Comp, of Pres. Docs: Gerald R. Ford 1305 (Nov. 20, 1975). The statement also reaffirms the general prohibition on job bias by federal contractors, but that in no way provides an adequate remedy for challenges arguing that the Government itself encourages the discrimination or at least is entangled with the discriminating entity. Cf. Mathews v. Eldridge, 424 U.S. 319, 329-330, 96 S.Ct. 893, 900, 47 L.Ed.2d 18, 29-30 (1976).