Judge Passes Buck on Assigning Blame for Decision to Leave Behind 26 U.S. Citizens during Evacuation from Yemen

Friday, May 20, 2016
Judge Ketanji Brown Jackson (photo: U.S. Court of Appeals)

By Tim Ryan, Courthouse News Service


  WASHINGTON (CN) — Federal courts don't have the authority to decide whether the government has an obligation to evacuate 26 U.S. citizens and permanent residents who say they are stranded in war-torn Yemen, a federal judge ruled Tuesday.


Nora Ali Mobarez, a U.S. citizen living in Yemen, and 25 other citizens and permanent residents sued Secretary of State John Kerry and Secretary of Defense Ash Carter last April, saying the government ignored them while ordering diplomats and military personnel to flee the civil war-ravaged country.


While the State Department issued a travel warning for Yemen and acknowledged the possibility of danger to Americans, it did nothing to evacuate U.S. citizens, the group claimed. This, the plaintiffs said, was a violation of the government's responsibilities under the Administrative Procedure Act (pdf).


But the government challenged the group's claims, saying it does not have an obligation to evacuate its citizens under the act. The government also argued the decision to evacuate citizens from a country does not fall under the federal judiciary's authority since it is a nonjusticiable political question.


U.S. District Judge Ketanji Brown Jackson granted the government's motion to dismiss in a March 31 order, but the order became final with the opinion issued Tuesday.


In the 25-page opinion, Brown acknowledged that while it can be hard to determine what constitutes a political question the case at hand was relatively clear.


"After considering the parties' arguments and the applicable law regarding the boundaries of the political-question doctrine, this court is confident that plaintiffs' claims fit well within the scope of the nonjusticiability principles that the Supreme Court and D.C. Circuit have long articulated," Brown wrote.


The political-question doctrine holds that courts should not weigh in on policy choices best left to Congress or the Executive Branch, according to the opinion.


However, while foreign policy decisions certainly fall within the purview of the White House, not all foreign policy issues are political questions from which the courts must stay away, Brown wrote.


Sill, by looking at precedent from the Federal Circuit, Brown was able to find a distinction between claims of "purely legal questions" and claims that force the court to question foreign policy decisions.


"When deciding the claim merely requires the court to engage in garden-variety statutory analysis and constitutional reasoning, it has authority to do so (i.e. the claim is justiciable), but a claim that goes beyond those classically judicial functions to request that a court override discretionary foreign-policy decisions that the political branches have made — however framed — falls within the heartland of the political-question doctrine," Brown wrote.


Applying this guideline, Brown determined that hearing the plaintiffs' claims would require her to decide whether the administration was wrong not to "conduct complex overseas operations," a decision beyond her role on the bench.


Brown also noted she would have no standard by which to judge the government's decision not to evacuate the plaintiffs from Yemen.


"Instead, the complaint's allegations make plain that plaintiffs are seeking judicial review and intervention with respect to defendants' decision not to evacuate American citizens from Yemen, and in so requesting, plaintiffs are effectively asking this court to decide whether the Executive Branch should have exercised its discretion to undertake a complex military operation in order to effect an evacuation in a foreign, war-torn country," Brown wrote.


The plaintiffs' claims that the government has an obligation to evacuate its citizens also did not sway Brown, who found the laws weighing in on the government's role "replete with conditional language."


"Thus, the duty plaintiffs identify is clearly contingent upon the relevant agencies first exercising their discretion to make a determination regarding whether these prerequisites are satisfied, which means that the alleged duty is plainly not nondiscretionary," Brown wrote before granting the government's motion to dismiss.


The plaintiffs' attorney, Jessica Wicks, directed a request for comment to William Burgess, an attorney at the Council on American-Islamic Relations. Burgess did not respond to a request for comment emailed late Wednesday afternoon. 


To Learn More:

U.S. “Concern” Over Yemen Crisis Belies Its Military Support of Saudi Coalition Bombing (by Noel Brinkerhoff, AllGov)

Lawsuits Accuse Obama Administration of Abandoning Americans Stuck in Yemen (by Steve Straehley, AllGov)


Leave a comment