Endeley v. Department of Defense , 268 F. Supp. 3d 166 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SAINT JERMAINE ENDELEY
Plaintiff,
v.
Civil Action No. 17-733 (RDM)
UNITED STATES DEPARTMENT OF
DEFENSE and NATIONAL
CLANDESTINE SERVICE,
Defendants.
MEMORANDUM OPINION
On April 6, 2017, the United States fired fifty-nine Tomahawk cruise missiles at the Al
Shayrat airfield in Syria. See Statement from Pentagon Spokesman Capt. Jeff Davis on U.S.
Strike in Syria, Release No. NR-126-17 (Apr. 6, 2017).1 In a statement announcing the missile
strike, President Trump explained that Syria had “launched a horrible chemical weapons attack”
on its own citizens and that, in response, he had “ordered a targeted military strike on the airfield
in Syria from where the chemical attack was launched.” Statement by President Trump on Syria,
White House, Office of the Press Secretary (Apr. 6, 2017).2 The purpose of the missile strike, as
President Trump further explained, was “to prevent and deter the spread and use of deadly
chemical weapons.” Id. President Trump did not seek authorization from Congress before
1
Available at https://www.defense.gov/News/News-Releases/News-Release-
View/Article/1144598/statement-from-pentagon-spokesman-capt-jeff-davis-on-us-strike-in-syria
(last visited Aug. 2, 2017).
2
Available at https://www.whitehouse.gov/the-press-office/2017/04/06/statement-president-
trump-syria (last visited Aug. 2, 2017).
ordering the strike, nor did he identify any preexisting congressional authorization for the use of
military force.
Four days after the strike, plaintiff Saint Jermaine Endeley filed this pro se action against
the Department of Defense and the National Clandestine Service of the Central Intelligence
Agency.3 See Dkt. 2. Plaintiff alleges that the missile strike “was unconstitutional under [t]he
War Powers Resolution because the President did not seek approval from Congress;” that “[t]he
office of the President has publicly admitted more military action is to follow;” and that “[t]he
President does not have authority to launch a war in Syria without a resolution from Congress.”
Id. at 3. In addition, he alleges that “[t]he Department of Defense illegally used [t]he Patriot Act
and unconstitutionally expanded [its] authority under the provisions of the law.” Id. Plaintiff
requests that the Court issue an “injunction ending military action against the government of
Syria” and barring “any further military action . . . without approval from Congress through a
resolution.” Id. at 4.
Viewing the complaint in the light most favorable to Plaintiff, the Court concludes that it
fails to allege facts sufficient to establish subject matter jurisdiction. Accordingly, the Court
will, on its own motion, DISMISS the action for lack of jurisdiction.4
3
Although the caption of the complaint refers to the National Clandestine Service, the
substantive averments of the complaint make no mention of it.
4
The Court concludes that Plaintiff has established that he is “unable to pay [the filing] fee[]”
typically required to initiate a civil action in this court, 28 U.S.C. § 1915(a)(1); see also id.
§ 1914, and will therefore grant Plaintiff’s motion to proceed in forma pauperis, see Dkt. 1.
2
I. BACKGROUND
A. Factual Background
Plaintiff commenced this action on April 10, 2017, by filing suit in the United States
District Court for the Southern District of New York. Dkt. 2. He alleges that four days earlier,
“[o]n April 6, 2017, [t]he defense department launched approximately [fifty-nine] Tomahawk
missiles into Syria as a response to President Bashir Al-Assad’s recent chemical attack on
civilians.” Id. at 3. This “attack” represented “part of [President Trump’s] strategy of deterrence
against the use of chemical weapons by the Syrian government” and, according to Plaintiff,
resulted in the “destr[uction] [of] an airbase that belonged to a Syrian government institution.”
Id. He further alleges that the President “did not seek approval from Congress” before ordering
the strike, id., and that allegation is indisputably correct. As the President explained in his notice
to Congress (which is subject to judicial notice, see Fed. R. Evid. 201), in ordering the strike, he
relied on his “constitutional authority to conduct foreign relations and” to serve “as Commander
in Chief and Chief Executive.” Letter from the President to the Speaker of the House and the
President Pro Tempore of the Senate (Apr. 8, 2017).5 In that same notice, moreover, the
President cautioned that he was prepared to “take additional action, as necessary and appropriate,
to further [the] important national interests” of the United States. Id. Expanding on that
statement, Plaintiff avers that “the office of the President has publicly admitted more military
action is to follow.” Dkt. 2 at 3.
Recognizing the need to plead facts sufficient to establish Article III standing, Plaintiff
alleges that Defendants’ actions have caused him to “suffer[]” injury. Id. In particular, he
5
Available at https://www.whitehouse.gov/the-press-office/2017/04/08/letter-president-speaker-
house-representatives-and-president-pro-tempore (last visited Aug. 2, 2017).
3
contends that “[his] firm has a diplomatic mission to remove President Assad by delegitimizing
his government and ensuring a free election where the Syrian people can elect a new leader” and
that, in pursuit of this mission, “[his] firm is currently [engaged] in lobbying efforts with the
United States government and [the] United Nations.” Id. Those efforts have been
“complicate[d]” by the April 6 strike, according to Plaintiff, because “[t]he government of Syria
is less likely to listen to United States officials if” U.S. military forces are “attacking [Syrian]
government institutions.” Id. He asserts that both the airstrikes and the potential for further
attacks on Syrian government institutions have “create[d] more obstacles to an eventual peace
deal” and have thus required that his firm devote additional “time, labor, and money” to the
firm’s “diplomatic mission.” Id. Finally, Plaintiff alleges that he has “spent significant time,
labor, [and] money on ensuring good government practices in the United States government” and
that “it is [his] job to regulate administrative agencies when they act unconstitutionally.” Id.
On April 11, 2017, the United States District Court for the Southern District of New York
transferred Plaintiff’s suit to this Court pursuant to 28 U.S.C. § 1406(a) on the ground that venue
is proper here but not in New York. Dkt. 3 at 2. The transferring court did not rule on Plaintiff’s
pending motion for leave to proceed in forma pauperis, see Dkt. 1, noting that “[w]hether
[Plaintiff] should be permitted to proceed further without payment of fees is a determination to
be made by the transferee court,” Dkt. 3 at 2. Although it is the Court’s responsibility to effect
service on behalf of litigants proceeding in forma pauperis, 28 U.S.C. § 1915(d), the Court has
postponed doing so pending its evaluation of the threshold jurisdictional issues discussed below.
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B. Plaintiff’s Claims
Plaintiff’s claims require some parsing. To start, it is unclear whether he intends to assert
a stand-alone claim under Article I, Section 8 of the Constitution,6 or, instead, merely intends to
assert statutory claims. He alleges, for example, that the missile strike “was unconstitutional
under [t]he War Powers Resolution” and that “[t]he Executive Branch acted without
constitutional authority required under [t]he War Powers Resolution.” Dkt. 2 at 3 (emphases
added). Although one might reasonably construe these allegations only to assert a claim “under
the War Powers Resolution,” and not a separate claim under Article I, Section 8, the Court is
required to construe Plaintiff’s pro se complaint liberally, see Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam), and, accordingly, will assume that he intends to allege both statutory and
constitutional claims.
Plaintiff also asserts that the United States’ missile strike on Syria was an
“unconstitutional[] expan[sion] [of] [Defendants’] authority under the provisions of the” USA
PATRIOT Act. Dkt. 2 at 3. The USA PATRIOT Act, however, does not address the President’s
authority (or the Department of Defense’s authority) to use military force. Once again
construing Plaintiff’s pro se complaint liberally, however, the Court will assume that he actually
intends to reference the Authorization for Use of Military Force (“AUMF”), Pub. L. No. 107-40,
6
See U.S. Const. art. I, § 8, cl. 1 (congressional powers to tax, pay debts, “and provide for the
common Defence and general Welfare of the United States”); id. cl. 11 (congressional power to
“declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on
Land and Water”); id. cls. 12 & 13 (congressional powers to “raise and support Armies” and
“provide and maintain a Navy”); id. cl. 14 (congressional power to “make Rules for the
Government and Regulation of the land and naval Forces”); id. cl. 15 (congressional power to
“provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections
and repel Invasions”); id. cl. 16 (congressional power to “provide for organizing, arming, and
disciplining, the Militia, and for governing such Part of them as may be employed in the Service
of the United States”).
5
115 Stat. 224 (2001), enacted by Congress the week after the September 11th terrorist attacks.
The AUMF authorizes the President “to use all necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001, or harbored such organizations or
persons.” Pub. L. No. 107–40, § 2(a). So construed, Plaintiff’s complaint alleges that the
missile strike on “an airbase that belonged to a Syrian government institution” went beyond the
scope of the AUMF, which (he says) authorizes the President to “attack terrorist organizations
that target the United States” but does not permit “an attack on another government.” Dkt. 2 at
3.
Thus, liberally construed, Plaintiff’s complaint alleges that the President’s use of force to
attack the Al Shayrat airfield, and his threat to use additional force “as necessary and appropriate
. . . to further [the] important national interests” of the United States, exceeded and threatens
further to exceed his authority under Article 1, § 8 of the Constitution, the War Powers
Resolution, and the AUMF. As redress, Plaintiff seeks a “court injunction ending military action
against the government of Syria and a limitation on Presidential authority to expand the
[AUMF].” Id. at 4. In addition, he asks the Court to prohibit the Department of Defense from
“begin[ning] any further military action against the government of Syria without approval from
Congress through a resolution” and to order the Department to “submit a plan to Congress
detailing their military operations in Syria against terrorist organizations.” Id.
II. ANALYSIS
In every case, the Court must satisfy itself that it has subject matter jurisdiction. See
LeFande v. District of Columbia, 841 F.3d 485, 492 (D.C. Cir. 2016). Plaintiffs bear the burden
of establishing the Court’s jurisdiction, and the nature of that burden varies depending on the
6
stage of the proceeding. See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)
(explaining that “[t]he party invoking federal jurisdiction bears the burden of establishing” the
court’s jurisdiction “in the same way as any other matter on which [it] bears the burden of proof,
i.e., with the manner and degree of evidence required at the successive stages of the litigation”).
Here, Plaintiff has merely filed a complaint; the complaint has not yet been served, and
counsel for Defendants has yet to appear. The fact that this case is at its earliest stage, however,
does not mean that the Court need not consider whether it has jurisdiction. To the contrary, as
the D.C. Circuit has observed, “a district court may dismiss a complaint sua sponte prior to
service on the defendants pursuant to Fed. R. Civ. P. 12(h)(3) when . . . it is evident that the court
lacks subject matter jurisdiction.” Evans v. Suter, No. 09-5242, 2010 WL 1632902, at *1 (D.C.
Cir. Apr. 2, 2010) (unpublished) (per curiam); see also, e.g., Hurt v. U.S. Court of Appeals for
the D.C. Circuit Banc, 264 Fed. App’x 1 (D.C. Cir. Jan. 24, 2008) (unpublished) (per curiam)
(same); Wiley v. Wilkins, 134 F. Supp. 3d 308, 309 (D.D.C. 2015) (same); Weisser v. Obama,
No. 13-cv-1257, 2013 WL 4498980, at *1 (D.D.C. Aug. 21, 2013) (same); Caldwell v. Kagan,
777 F. Supp. 2d 177, 179 (D.D.C. 2011) (same). When making this assessment based on the
complaint alone, the Court must, of course, “accept as true all factual allegations contained in the
complaint,” Smith v. Obama, 217 F. Supp. 3d 283, 289 (D.D.C. 2016) (quoting Wright v.
Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007)), and must “draw all
reasonable inferences in favor of the plaintiff,” Kucinich v. Obama, 821 F. Supp. 2d 110, 114
(D.D.C. 2011).
Assessing the Court’s subject matter jurisdiction begins with Article III of the
Constitution, which vests federal courts with authority to adjudicate “Cases” and
“Controversies.” U.S. Const. art. III, § 2. Because federal courts are courts of limited
7
jurisdiction, this grant of power also marks the outer boundary of their authority to act. “In an
attempt to give meaning” to the case or controversy requirement, “courts have developed a series
of principles termed ‘justiciability doctrines,’ among which are standing[,] ripeness, mootness,
and the political question doctrine.” Nat’l Treasury Emps. Union v. United States, 101 F.3d
1423, 1427 (D.C. Cir. 1996) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)). All four of
these doctrines are germane to the present case.
First, the “Court lacks power to resolve a dispute unless [the] plaintiff has standing.”
Abulhawa v. U.S. Dep’t of the Treasury, No. 15-cv-2186, --- F. Supp. 3d ---, 2017 WL 883609,
at *4 (D.D.C. Mar. 4, 2017). At the motion to dismiss stage, this means that Plaintiff “must . . .
allege a ‘concrete and particularized’ injury that is ‘fairly traceable to the challenged action of
the defendant[s]’ and ‘likely’ to be ‘redressed by a favorable decision.’” West v. Lynch, 845 F.3d
1228, 1230 (D.C. Cir. 2017) (quoting Lujan, 504 U.S. at 560–61). Moreover, although the
Supreme Court has “always insisted on strict compliance with [the] jurisdictional standing
requirement,” it has demanded an “especially rigorous” inquiry in cases requiring the courts “to
decide whether an action taken by one of the other two branches of the Federal Government was
unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819–20 (1997); see also Smith, 217 F. Supp. 3d
at 289 (quoting same in discussing standing to challenge the President’s use of military force).
Even drawing all inferences in Plaintiff’s favor, his complaint fails this test.
Plaintiff does not allege that he has been “ordered into a war that [he] contend[s] is
illegal,” Smith, 217 F. Supp. 3d at 296, or that his property was damaged or destroyed, cf. El-
Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 837 (D.C. Cir. 2010). Rather, he alleges
that “[his] firm is currently [engaged] in lobbying efforts with the United States government and
[the] United Nations on bringing an end to President Assad’s government and liberating the
8
Syrian people” and that U.S. “military action against the Syrian government only created more
obstacles to an eventual peace deal.” Dkt. 2 at 3. The imposition of these additional obstacles,
according to the complaint, has “complicate[d]” the mission of Plaintiff’s firm, resulting in
additional expenditures of “time, labor, and money.” Id. Plaintiff further alleges, moreover, that
his work “includes military conflicts and the legality of Department of Defense actions in these
conflicts.” Id. From this, he posits that “it is [his] job to regulate administrative agencies when
they act unconstitutionally” and that these efforts have required “significant time, labor, [and]
money” in order to “ensur[e] good government practices in the United States government.” Id.
None of these allegations rise to the level required to sustain Article III standing. An
“injury in fact” sufficient to satisfy Article III must be “actual or imminent, not conjectural or
hypothetical.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (quoting Lujan, 504 U.S. at
560). Because Plaintiff seeks only prospective injunctive relief, he “must [allege facts sufficient
to show] that he . . . ‘is immediately in danger of sustaining some direct injury’ as the result of
the challenged official conduct.’” City of Los Angeles v. Lyons, 461 U.S. 95, 101–02 (1983); see
also Williams v. Lew, 819 F.3d 466, 472 (D.C. Cir. 2016) (“[W]here a plaintiff ‘seeks
prospective . . . injunctive relief, he must establish an ongoing or future injury that is certainly
impending; he may not rest on past injury.’” (emphasis added) (quoting Arpaio, 797 F.3d at 19)).
And he must also alleges facts sufficient to show that it is “likely, as opposed to merely
speculative, that [any such imminent] injury [would] be redressed by a favorable decision.”
Lujan, 504 U.S. at 561 (internal quotation marks omitted).
Aside from one line in his complaint in which he alleges that “the office of the President
has publicly admitted [that] more military action is to follow” in Syria, Dkt. 2 at 3, Plaintiff’s
complaint is devoid of any allegations of “likely” future injury. This is not a case—like
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Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971), to take one example—involving an armed
conflict lasting months, years, or decades. To be sure, the United States has been involved in an
extended armed conflict with the Islamic State of Iraq and the Levant (“ISIL”) in the region.
See, e.g., Statement by the President on ISIL (Sept. 10, 2014).7 But that is not what Plaintiff
challenges. Rather, he challenges the legal authority of the Department of Defense—and,
presumably, the President—to take “military action against the Syrian government,” and, as to
that use of force, he identifies only the April 6, 2017, missile strike on the Al Shayrat airfield.
See Dkt. 2 at 3. The prospect that another, similar strike will occur in the foreseeable future (and
without congressional authorization) is, by any measure, speculative. On top of that speculation,
moreover, the complaint asks that the Court speculate that Plaintiff will be involved in lobbying
“the United States government and [the] United Nations on bringing an end to President Assad’s
government and liberating the Syrian people” at that time; that whatever use of force that might
occur would “complicate[]” his lobbying effort; and that he and his firm might achieve their
desired result (with a less “significant” expenditure of “time, labor, and money”) but for some
future U.S. military operations. Id. Such “speculation upon speculation” does not suffice to
support Article III standing.8 See Abulhawa, 2017 WL 883609, at *7.
7
Available at https://obamawhitehouse.archives.gov/the-press-office/2014/09/10/statement-
president-isil-1 (last visited Aug. 2, 2017). See also Letter from the President to the Speaker of
the House of Representatives and the President Pro Tempore of the Senate (June 6, 2017) (“As
part of a comprehensive strategy to defeat ISIS, U.S. Armed Forces are conducting a systematic
campaign of airstrikes and other necessary operations against ISIS forces in Iraq and Syria.”),
available at https://www.whitehouse.gov/the-press-office/2017/06/06/text-letter-president-
speaker-house-representatives-and-president-pro (last visited Aug. 2, 2017).
8
Plaintiff’s contention that it is his “job to regulate administrative agencies when they act
unconstitutionally,” Dkt. 2 at 3, is both conclusory and bewildering; nothing in Article III vests
courts with authority to adjudicate claims in the absence of a concrete and particularized injury
to the plaintiff.
10
The speculative nature of Plaintiff’s allegations also implicates the second relevant
jurisdictional hurdle—the ripeness requirement. “Ripeness is a justiciability doctrine designed
‘to prevent the courts, through avoidance of premature adjudication, from entangling themselves
in abstract disagreements over administrative policies.’” Nat’l Park Hospitality Ass’n v. Dep’t of
the Interior, 538 U.S. 803, 807–08 (2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148–
149 (1967)); see also Devia v. Nuclear Regulatory Comm’n, 492 F.3d 421, 424 (D.C. Cir. 2007).
The doctrine is premised, in part, on Article III’s case or controversy limitation and, in part, on
prudential considerations “for refusing to exercise jurisdiction.” Nat’l Park Hospitality Ass’n,
538 U.S. at 808 (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)).
“[E]ven in a case raising only prudential concerns,” however, “the question of ripeness may be
considered on a court’s own motion.” Id.
As a “constitutional minim[um],” the ripeness doctrine—like, and closely akin to, the
standing doctrine—excludes claims seeking relief for future injuries that are hypothetical or
speculative. Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 48 (D.C. Cir. 1999).
Thus, “[a] claim is not ripe for adjudication if it rests upon contingent future events that may not
occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300
(1998) (internal quotation marks omitted). Courts, moreover, must go beyond this
“constitutional minim[um] and take into account prudential concerns[,] which in some cases may
mandate dismissal even if there is not a constitutional bar to the exercise of [their] jurisdiction.”
Wyo. Outdoor Council, 165 F.3d at 48. These concerns, in turn, require consideration of “the
fitness of the issues for judicial decision” and “the hardship to the parties of withholding court
consideration.” Abbott Labs, 387 U.S. at 149; see also Texas, 523 U.S. at 301 (same). “The
‘primary focus’ of the prudential aspect of the ripeness doctrine is to balance ‘the petitioner’s
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interest in prompt consideration of allegedly unlawful [government] action against the
[government’s] interest in crystallizing its policy before that policy is subjected to judicial
review and the court’s interests in avoiding unnecessary adjudication and in deciding issues in a
concrete setting.’” Wyo. Outdoor Council, 165 F.3d at 49 (quoting Eagle-Picher Indus. v. EPA,
759 F.2d 905, 915 (D.C. Cir. 1985)).
Plaintiff’s claims fail at every step of this analysis. For the same reasons the he has failed
to allege facts sufficient to establish standing, he has failed to identify any non-speculative
dispute that is ripe for adjudication. That is, he has not alleged any facts that would permit the
Court to conclude that any “future” use of force against the government of Syria is likely to
“occur as anticipated, or indeed” that it will “occur at all.” Texas, 523 U.S. at 300 (internal
quotation marks omitted). Nor has he alleged facts that would render the dispute “fit” for
resolution; it is asking far too much to seek to embroil the federal courts in a dispute about the
scope of the President’s authority to use military force based on nothing more than assumptions
about what a foreign government might someday do and how the President and Congress might
respond. If there were ever a case that is not “fit” for judicial resolution, this is it. And, finally,
Plaintiff’s current hardship is far too amorphous and tenuous to survive the ripeness inquiry.
This is not a case, like Abbott Labs for example, in which the government has taken an action
“that has a direct effect on the day-to-day business” of Plaintiff or his firm. 387 U.S. at 152.
The April 6 airstrike is history. The sole question, then, is whether some ongoing conduct or
imminent future action is causing Plaintiff a concrete hardship, and he alleges no facts that would
allow the Court to draw such a conclusion.
The flip side of the ripeness doctrine is mootness. This rule has obvious application to
Plaintiff’s contention that the April 6 missile strikes were themselves unlawful. Plaintiff does
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not—and could not—seek monetary relief, and the Court cannot enjoin or otherwise provide a
non-monetary remedy (such as declaratory relief) for a past event. The only possible escape
from this dilemma is the “the rule regarding issues capable of repetition, yet evading review.”
Campbell v. Clinton, 203 F.3d 19, 33 (D.C. Cir. 2000) (Randolph, J., concurring in the
judgment) (internal quotation marks omitted). That rule applies where “(1) the challenged action
was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there
[is] a reasonable expectation that the same complaining party w[ill] be subjected to the same
action again.” United Bhd. of Carpenters & Joiners of Am., AFL-CIO v. Operative Plasterers’ &
Cement Masons’ Int’l Assoc. of the U.S. & Can., AFL-CIO, 721 F.3d 678, 687 (D.C. Cir. 2013)
(citation and internal quotation marks omitted). Of particular relevance here, “the ‘wrong’ that
is, or is not, ‘capable of repetition’ must be defined in terms of the precise controversy it spawns,
to wit, in terms of the legal questions it presents for decision.” Id. at 688 (internal quotation
marks and alteration omitted). The Court doubts that there is a “reasonable expectation” that
“the precise controversy” at issue will recur. But, given the array of other bases for concluding
that Plaintiff has not presented a justiciable controversy, the Court need not decide that issue.
Finally, Plaintiff’s request that the Court opine in the abstract on the scope of the
President’s authority to employ military force runs afoul of yet another justiciability canon—the
“political question” doctrine. That “doctrine ‘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.’” Smith, 217 F.
Supp. 3d at 297 (quoting El-Shifa Pharm. Indus. Co., 607 F.3d at 840). A claim presents a
political question if any one of the following factors, see El-Shifa Pharm. Indus. Co., 607 F.3d at
841, is present:
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[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 independent resolution without expressing
lack of the 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 one question.
Baker v. Carr, 369 U.S. 186, 217 (1962). Although “[d]isputes involving foreign relations . . .
are quintessential sources of political questions,” El-Shifa Pharm. Indus. Co., 607 F.3d at 841
(internal quotation marks omitted), it would be a mistake to assume “that every case or
controversy which touches foreign relations lies beyond judicial cognizance,” id. (quoting Baker,
369 U.S. at 211), or that “in the context of military action, the courts” will never “have a role,”
id. Rather, courts must approach questions touching on foreign relations and national defense
with particular attention to the relevant context and the respective spheres of competence of the
coordinate branches of government.
Judges in this circuit have taken different views on the application of the political
question doctrine to disputes challenging the President’s use of military force. Compare
Campbell, 203 F.3d at 24–25 (Silberman, J., concurring) (concluding that, because the plaintiffs’
claims under the War Powers Clause and the War Powers Resolution “implicat[ed] the political
question doctrine,” their claims were “not justiciable” in that case, and were, moreover,
“generally unsuited to judicial resolution”), with id. at 37 (Tatel, J., concurring) (concluding that,
if the challenge had been “brought by plaintiffs with standing,” the court “could determine”
whether the President’s “air campaign in Yugoslavia . . . exceeded his authority under the
Constitution or the War Powers Resolution”). The Court, however, need not step into this fray,
14
because this case implicates the concerns underlying the political question doctrine under any
plausible application.
Given the inherent uncertainty in determining whether the President might seek to use
force against the Syrian government in the future, and, if so, under what circumstances he might
do so, the Court cannot address the merits of Plaintiff’s claims without unduly treading on the
domain of a coordinate branch of government. In speculating about what the Syrian government
might do and how the President might respond, the Court could not avoid injecting itself into the
most sensitive issues of foreign affairs and national security; it could not avoid inserting itself
into the policy-making process; and it could not avoid the risk that its pronouncements might
prove both unnecessary and at odds with the judgments of those charged with speaking for the
United States in foreign affairs. See Baker, 369 U.S. at 217. Most manifestly, it is not the
Court’s role to provide its views, in the absence of a concrete case or controversy, about the
scope of the President’s authority. As then-Chief Justice Jay explained long ago, that
responsibility is textually committed to those employed in the executive branch to advise the
President. See 4 The Founders’ Constitution, Art. 3, Cl. 1, Doc. 34 (Letter of Aug. 8, 1793, from
Chief Justice John Jay to President George Washington).
Although the edges of the political question doctrine may, at times, be fuzzy, this is not a
close case. The Court, accordingly, concludes that Plaintiff’s request that the Court establish
“limitation[s] on Presidential authority” under the AUMF; enjoin the Department of Defense
from taking “any further military action against the government of Syria without approval from
Congress;” and “limit the President’s power to declare war against another government that has
not attacked the United States,” Dkt. 2 at 4, is also precluded by the political question doctrine.
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CONCLUSION
The Court will, accordingly, GRANT Plaintiff’s motion for leave to proceed in forma
pauperis, Dkt. 1, and will DISMISS the action for lack of jurisdiction.
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: August 3, 2017
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