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Ninth Circuit:
District Court Lacks Jurisdiction to Hear Suit Seeking to Enjoin U.S. Support of Israel
Opinion Says Complaint Seeking Injunctive Relief Presents Nonjusticiable Political Questions
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a lawsuit by an advocacy organization—residents of Gaza and Palestinian-Americans asserting violations by the U.S. government of international law and seeking to enjoin President Joseph Biden and other senior executive branch officials from providing military, diplomatic and financial support to Israel—is not justiciable.
It presents political questions reserved for the elected branches, the opinion explains.
The per curiam opinion by Circuit Judges Consuelo M. Callahan, Jacqueline H. Nguyen, and Daniel A. Bress affirms dismissal of the action by Senior District Court Judge Jeffrey S. White of the Northern District of California for lack of subject matter jurisdiction.
The panel wrote:
“Though federal courts decide cases with political overtones, we do not decide political questions….[The political question doctrine] reflects the foundational precept, central to our form of government, that federal courts decide only matters of law, with the elected branches setting the policies of our nation. Because this doctrine embodies a limit on the powers of the judiciary, we lack subject matter jurisdiction to resolve claims that present political questions.”
Genocide Convention Claims
Appealing the dismissal was Defense for Children International-Palestine, identified on its website as “the only Palestinian human rights organization specifically focused on child rights.” The organization and the individual plaintiffs sued Biden, Secretary of State Antony J. Blinken, and Secretary of Defense Lloyd J. Austin, asserting two causes of action under the 1948 Convention on the Prevention and Punishment of Genocide.
The November 2023 complaint alleges that the defendants are violating their obligations to prevent genocide under Article I of the convention by failing to use the federal government’s “considerable influence to call for an end to the bombing, cut off weapons deliveries or take measures to end the siege” and that the provision of military assistance to the Israeli government makes the U.S. complicit in genocide in violation of 18 U.S.C. §1091.
The plaintiff’s complaint seeks wide-ranging injunctive and declaratory relief, including requests to “[o]rder Defendants to take all measures within their power to exert influence over Israel to end its bombing of the Palestinian people of Gaza” and “[e]njoin[ing] Defendants from providing, facilitating, or coordinating military assistance or financing to Israel.”
On Jan. 31, 2024, White granted the defendants’ motion to dismiss without leave to amend and denied the plaintiffs’ motion for a preliminary injunction but decried his inability to grant relief. He wrote:
“There are rare cases in which the preferred outcome is inaccessible to the Court. This is one of those cases. The Court is bound by precedent and the division of our coordinate branches of government to abstain from exercising jurisdiction in this matter. Yet…it is plausible that Israel’s conduct amounts to genocide. This Court implores Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.”
Political Question Doctrine
The judges explained that whether a claim presents a nonjusticiable political question is determined by considering whether it inextricably involves:
“[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 decision; 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 of one question.”
Applying this analytical framework to the present case, they noted that not every cause of action involving foreign affairs will be considered a nonjusticiable political question, but opined:
“[T]here is nothing ‘indirect’ or ‘implicit’ about the lawsuit before us. Plaintiffs have sued the President and other senior Executive Branch officials directly. And they explicitly ask the courts to condemn the United States’ foreign policy toward Israel, to the point of wresting this responsibility away from the Executive Branch and placing it under judicial control.”
They added:
“[B]y plaintiffs’ design, the foreign affairs, military, diplomatic, and spending functions of the United States—as they relate to the active conflagration in Gaza—would be subject to judicial decree. Plaintiffs’ lawsuit and extraordinary requests for relief present political questions grounded in matters committed to those branches of our government that exercise military and diplomatic prerogatives. The courts do not chart the national security and geopolitical objectives of the United States. The law does not place such decisions within our rightful authority.”
The panel declared “[a]pplying this framework, we conclude that plaintiffs’ complaint presents nonjusticiable political questions.”
Discretionary Executive Decisions
The plaintiffs argue that the political question doctrine applies only to discretionary decisions of the executive branch and that they have alleged non-compliance with affirmative legal duties to prevent and not participate in genocide.
Unpersuaded, the judges wrote:
“Many, if not most, grievances can be styled as the violation of an asserted legal obligation. In this case, we question whether the plaintiffs’ claimed legal violations can be meaningfully isolated out from the considerable discretion that otherwise characterizes the political branches’ powers in the areas of foreign and military affairs.”
They similarly rejected an attempt by the plaintiffs to rely on White’s commentary on the treatment of the Palestinians in Gaza in the January order and said:
“To the extent plaintiffs construe the district court’s commentary as factual findings, plaintiffs are incorrect. Because the district court lacked subject matter jurisdiction, any claimed factual findings and related commentary are of no legal force. Once it is determined that claims present political questions, the judicial inquiry ends.”
The case is Defense for Children International-Palestine v. Biden, 24-704.
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