Petition for Writ of Certiorari — Jenny Schieber, et al., Petitioners v. United States

NO. 23-_____

In the

Supreme Court of the United States

JENNY SCHIEBER, ET AL.,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the D.C. Circuit

PETITION FOR A WRIT OF CERTIORARI

Noam Schreiber

Of Counsel

34 Ben Yehuda St.

14th Floor

Jerusalem, Israel 9423001

011-972-2-633-6300

noam.schreiber@fandz.com

L. Marc Zell

Counsel of Record

Stephen T. Rodd

Of Counsel

Harriet Tamen

Of Counsel

ABBEY SPANIER, LLP

ZELL & ASSOCIATES

INTERNATIONAL ADVOCATES, LLC

1345 Ave. of the Americas, 2nd Floor

New York, NY 10105

(212) 971-1349

mzell@fandz.com

LAW OFFICES OF HARRIET TAMEN

212 East 39th Street

New York, NY 10016

(212) 889-3700

strodd47@gmail.com

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New York, NY 10021

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htamen@tamenlaw.com

November 15, 2023

SUPREME COURT PRESS

Counsel for Petitioners

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

This petition presents two crucial and as yet

unresolved questions regarding the availability of

judicial review under the Administrative Procedure

Act (“APA”) of agency adjudication rendered pursuant

to international executive agreements. In the decision

from which certiorari review is sought, the D.C. Circuit

held in a case of first impression that final agency

decisions issued under an executive agreement are

immune from judicial review in the absence of

congressional legislation setting forth substantive

evaluative criteria, because they are deemed ipso facto

to have been “committed to agency discretion by law.”

5 U.S.C. § 701(a)(2). This is what Petitioners have

dubbed the “substantive statute” test.

The lower court also held, alternatively, that

judicial review of adjudicative action under an international executive agreement containing a governmentto-government dispute resolution clause is precluded on

the grounds that such an agreement is a “statute”

that “preclude[s] judicial review.” 5 U.S.C. § 701(a)(1).

The questions presented by this petition therefore are:

1. Whether agency adjudication rendered pursuant to an international executive agreement is subject

to judicial review under the APA where: (a) Congress

has granted the agency general authority to act; (b)

the authorizing statute lacks substantive criteria by

which to measure agency action; (c) the executive

agreement sets forth such criteria; and (d) the agency

has adopted detailed procedures for adjudicating claims

by individuals, incorporating such evaluative criteria.

ii

2. Whether a government-to-government dispute

resolution clause in an international executive agreement bars judicial challenges to agency action under

the APA brought by individual claimants?

iii

PARTIES TO THE PROCEEDINGS

Petitioners and Plaintiffs-Appellants below:

●

Jenny Schieber

●

Solange Faktor

●

Esther Gutrejman

●

Louis Schneider

●

Regina English

●

Simon Bywalski

Respondent and Defendant-Appellee below:

●

United States of America

iv

LIST OF PROCEEDINGS

U.S. Court of Appeals,

District of Columbia Circuit

No. 22-5068

Jenny Schieber et al., Plaintiffs/Appellants v.

United States, Defendant/Appellee

Final Opinion: July 18, 2023

U.S. District Court, District of Columbia

No. 21-cv-1371

Jenny Schieber, Plaintiff v. United States, Defendant

Final Opinion: January 26, 2022

No. 20-cv-263

Solange Faktor, Plaintiff v. United States, Defendant

Final Opinion: March 10, 2022

No. 20-cv-266

Esther Gutrejman, Plaintiff v. United States, Defendant

Final Opinion: March 22, 2022

No. 20-cv-260

Louis Schneider, et al., Plaintiff v.

United States, Defendant

Final Opinion: April 22, 2022

No. 20-cv-265

Simon Bywalski, Plaintiff v. United States, Defendant

Final Opinion: May 13, 2022

v

TABLE OF CONTENTS

Page

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDINGS ........................ iii

LIST OF PROCEEDINGS ......................................... iv

TABLE OF CONTENTS ............................................. v

TABLE OF AUTHORITIES ...................................... ix

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 2

STATUTORY PROVISIONS INVOLVED ................. 2

INTRODUCTION ....................................................... 3

STATEMENT OF THE CASE .................................... 6

I.

Factual Background ......................................... 6

A. The United States and France Enter into

the Agreement............................................. 6

B. The Department of State Implements

the Agreement. ........................................... 8

C. Plaintiffs’ Applications for Compensation

and the Denial Thereof. ............................ 10

D. Plaintiffs File Suit Seeking Judicial

Review of the Denial of Their Claims. ..... 11

REASONS FOR GRANTING THE PETITION ....... 14

I.

SUPREME COURT REVIEW IS NECESSARY TO

CORRECT THE D.C. CIRCUIT’S “SUBSTANTIVE

STATUTE” TEST. ............................................... 15

vi

TABLE OF CONTENTS – Continued

Page

A. The “Substantive Statute” Test Is Inconsistent with the Decisions of Other

Circuits That Have Addressed the Issue

in an Analogous Context. ......................... 15

B. The “General Authorization” Test Best

Comports with the Purpose and

Structure of the APA. ............................... 17

C. The D.C. Circuit’s “Substantive Statute”

Test Is at Odds with This Court’s WellEstablished APA Jurisprudence. .............. 21

D. The D.C. Circuit’s “Substantive Statute”

Test Fails to Consider the Role That the

Executive Has Taken in Implementing

Non-Self-Executing Agreements. ............. 23

II. THE D.C. CIRCUIT’S INTERPRETATION AND

APPLICATION OF ARTICLE 8 OF THE U.S.FRANCE AGREEMENT WARRANTS REVIEW BY

THIS COURT. .................................................... 24

A. The D.C. Circuit’s Interpretation of

Article 8 Conflicts with Basic Tenets of

International Treaty Interpretation. ....... 24

B. The D.C. Circuit’s Application of Article

8 Conflicts with Language and Purpose

of APA § 701(a)(1). .................................... 26

CONCLUSION.......................................................... 28

vii

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

U.S. COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Opinion of the United States Court of Appeals for

the District of Columbia Circuit (July 18, 2023) ..... 1a

U.S. DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Schieber v. United States, No. 21-cv-1371

Memorandum Opinion Granting Defendant’s

Motion to Dismiss (January 26, 2022) ................... 18a

Bywalski v. United States, NO. 20-cv-265

Memorandum Opinion Granting Defendant’s

Motion to Dismiss, U.S. District Court for the

District of Columbia (May 13, 2022) ...................... 39a

Schneider, Et Al. v. United States, No. 20-cv-260

Memorandum Opinion Granting Defendant’s

Motion to Dismiss, U.S. District Court for the

District of Columbia (April 22, 2022) ..................... 54a

Gutrejman v. United States No. 20-cv-266

Memorandum Opinion Granting Defendant’s

Motion to Dismiss Amended Complaint, U.S.

District Court for the District of Columbia

(March 22, 2022) ..................................................... 69a

Gutrejman v. United States, No. 20-cv-266

Memorandum Opinion Granting Defendant’s

Motion to Dismiss Original Complaint, U.S.

District Court for the District of Columbia

(March 19, 2021) ..................................................... 94a

viii

TABLE OF CONTENTS – Continued

Page

Faktor v. United States No. 20-cv-263

Memorandum Opinion Granting Defendant’s

Motion to Dismiss Amended Complaint, U.S.

District Court for the District of Columbia

(March 10, 2022) ................................................... 110a

Faktor v. United States, No. 20-cv-263

Memorandum Opinion Granting Defendant’s

Motion to Dismiss Original Complaint, U.S.

District Court for the District of Columbia

(March 4, 2021) ..................................................... 127a

INTERNATIONAL BILATERAL AGREEMENT

Agreement Between the United States of

America and France, T.I.A.S. No. 15-1101,

Claims and Dispute Resolution

(December 8, 2014) ............................................... 143a

OTHER DOCUMENTS

State Department Letter, Re: Denial of Bywalski

Compensation (April 11, 2018) ............................. 161a

State Department Letter, Re: Denial of Gutrejman

Compensation (April 3, 2018) ............................... 163a

State Department Letter, Re: Denial of Scheiber

Compensation (April 3, 2018) ............................... 166a

ix

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Abrams v. Société Nationale des Chemins de

Fer Français, 175 F. Supp. 2d 423

(E.D.N.Y. 2001) ................................................... 4

Air France v. Saks,

470 U.S. 392 (1985) ........................................... 25

Am. Ins. Ass’n v. Garamendi,

539 U.S. 396 (2003) ................................. 8, 23, 24

Bennett v. Spear,

520 U.S. 154 (1997) ........................................... 21

Chrysler Corp. v. Brown,

441 U.S. 281 (1979) ..................................... 15, 21

City of Albuquerque v. U.S. Dep’t of Interior,

379 F.3d 901 (10th Cir. 2004) ..................... 16, 18

City of Arlington, Tex. v. F.C.C.,

569 U.S. 290, 312 (2013) ..................................... 3

City of Carmel-By-The-Sea v. U.S. Dep’t of

Transp., 123 F.3d 1142 (9th Cir. 1997) ....... 15, 16

Clarke v. Securities Industry Assn.,

479 U.S. 388 (1987) ............................................ 27

Dames & Moore v. Regan,

453 U.S. 654 (1981) ........................................... 24

Freund v. Republic of France,

592 F. Supp. 2d 540 (S.D.N.Y. 2008) .................. 4

Glacier Park Found. v. Watt,

663 F.2d 882 (9th Cir. 1981) .............................. 22

Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062 (2020) ....................................... 27

x

TABLE OF AUTHORITIES – Continued

Page

Gutierrez de Martinez v. Lamagno,

515 U.S. 417 (1995) ........................................... 26

Heckler v. Chaney,

470 U.S. 821 (1985) ............................... 15, 17, 18

Hosp. Ass’n v. Becerra,

142 S.Ct. 1896 (June 15, 2022) ......................... 22

Karst Envtl. Educ. & Prot., Inc. v. Envtl. Prot.

Agency, 475 F.3d 1291 (D.C. Cir. 2007) ............... 22

Keats v. Becerra,

2021 WL 6102200 (D.C. Cir. Dec. 3, 2021) ....... 19

Kucana v. Holder,

558 U.S. 233 (2010) ........................................... 26

Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians v. Patchak,

567 U.S. 209 (2012) ........................................... 27

Medellín v. Texas,

552 U.S. 491 (2008) ........................................ 5, 23

Nat’l Mining Ass’n v. United Steel Workers,

985 F.3d 1309 (11th Cir. 2021) ......................... 16

Padula v. Webster,

822 F.2d 97 (D.C. Cir. 1987) .............................. 19

Reno v. Cath. Soc. Servs., Inc.,

509 U.S. 43 (1993) ............................................ 27

San Carlos Apache Tribe v. United States,

417 F.3d 1091 (9th Cir. 2005) ........................... 22

Scalin v. Societe Nationale des Chemins de Fer

Francais, 2018 WL 1469015

(N.D. Ill. Mar. 26, 2018) ...................................... 4

xi

TABLE OF AUTHORITIES – Continued

Page

Sluss v. United States Dep’t of Just., Int’l

Prisoner Transfer Unit, 898 F.3d 1242

(D.C. Cir. 2018) ............................................ 22, 23

Steenholdt v. F.A.A.,

314 F.3d 633 (D.C. Cir. 2003) ............................ 19

Sullivan v. Kidd,

254 U.S. 433 (1921) ........................................... 25

Sumitomo Shoji Am., Inc. v. Avagliano,

457 U.S. 176 (1982) ............................................ 25

The Amiable Isabella,

6 Wheat. (10 U.S.) 1 (1821) ............................... 25

United States v. Pink,

315 U.S. 203 (1942) ........................................... 24

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ............................................. 8

CONSTITUTIONAL PROVISIONS

U.S. Const., art. II................................................... 8, 9

STATUTES

22 U.S.C. § 2668a ............................ 2, 5, 7, 8, 9, 13, 16

28 U.S.C. § 1254(1) ..................................................... 2

5 U.S.C. § 701(a) .................................................. 12, 18

5 U.S.C. § 701(a)(1) .......................... i, 6, 13, 17, 26, 27

5 U.S.C. § 701(a)(2) ............... i, 5, 12, 13, 15, 16, 17, 18

5 U.S.C. § 704 ...................................................... 17, 21

5 U.S.C. § 706(2) ....................................................... 11

xii

TABLE OF AUTHORITIES – Continued

Page

5 U.S.C. § 706(2)(a) ................................................... 20

JUDICIAL RULES

Fed. R. Civ. P. 12(b)(1) ........................................ 12, 13

Fed. R. Civ. P. 12(b)(6) ........................................ 12, 13

FEDERAL REGISTERS

80 Fed. Reg. 22604-01, 2015 WL 1802386

(April 22, 2015) .................................................... 9

80 Fed. Reg. 37352-02, 2015 WL 3943095

(June 30, 2015) .................................................... 9

INTERNATIONAL AGREEMENTS

Agreement Between the Government of the

United States of America 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, Dec. 8, 2014, T.I.A.S. No. 151101 ........................... 4-8, 11-14, 16, 18, 19, 23-27

Vienna Convention on the Law of Treaties,

opened for signature May 23, 1969,

1155 U.N.T.S. 33 ............................................... 25

xiii

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Congressional Research Service,

International Agreements (Part I):

Overview and Agreement-Making Process,

(September, 29, 2023), available at https:/

/crsreports.congress. gov/product/pdf/LSB/

LSB11048 ............................................................ 8

Elspeth Faiman Hans,

The Montreal Protocol in U.S. Domestic

Law: A “Bottom Up” Approach to the

Development of Global Administrative

Law, 45 N.Y.U. J. INT’L L. & POL. 827

(2013) ........................................................... 20, 21

Jacob Katz Cogan,

The Regulatory Turn in International Law,

52 HARV. INT’L. L. J. 321 (2011) ......................... 20

Jean Galbraith & David Zaring,

Soft Law As Foreign Relations Law,

99 CORNELL L. REV. 735 (2014) ................... 19, 20

Jean Galbraith,

Making Treaty Implementation More Like

Statutory Implementation,

115 MICH. L. REV. 1309 (2017)................. 19, 20, 23

Joseph F. Weis, Jr.,

A Judicial Perspective on Deference to

Administrative Agencies: Some Grenades

From the Trenches,

2 ADMIN. L.J. 301 (1988) ................................... 17

xiv

TABLE OF AUTHORITIES – Continued

Page

Kathleen Claussen,

The Improvised Implementation of

Executive Agreements,

89 U. CHI. L. REV. 1655 (2022) ...................... 3, 19

Oona A. Hathaway et. al.,

The Failed Transparency Regime for

Executive Agreements: An Empirical and

Normative Analysis,

134 HARV. L. REV. 629 (2020) ......................... 3, 19

Oona A. Hathaway,

Treaties’ End: The Past, Present, and

Future of International Lawmaking in the

United States, 117 YALE L.J. 1236 (2008) ........ 19

RESTATEMENT (FOURTH) OF FOREIGN

RELATIONS LAW § 301 (2018) ............................. 25

RESTATEMENT (THIRD) OF FOREIGN RELATIONS

LAW § 111 cmt. h (1987) .................................... 21

Richard B. Stewart,

The Global Regulatory Challenge to U.S.

Administrative Law,

37 N.Y.U. J. INT’L L. & POL. 695 (2005) ............ 20

Richard B. Stewart,

U.S. Administrative Law: A Model for

Global Administrative Law?,

68 LAW & CONTEMP. PROBS. 63 (2005) .............. 20

xv

TABLE OF AUTHORITIES – Continued

Page

Ronald Bettauer,

A Measure of Justice for Uncompensated

French Railroad Deportees, during the

Holocaust, 20 ASIL INSIGHTS , No. 5

(Mar. 1, 2016), https://www.asil.org/

insights/volume/20/issue/5/measurejustice-uncompensated-french-railroaddeportees-during-holocaust .............................. 4

U.S. State Department,

11 FAM 723.2-2(C) .............................................. 8

U.S. State Department,

Form DS-7713 .......................................... 9, 10, 11

1

OPINIONS BELOW

The decision of the U.S. Court of Appeals for the

D.C. Circuit, affirming the decisions of the district

court on other grounds, appears at Schieber v. United

States, 77 F.4th 806 (D.C. Cir. 2023). [App.1a-17a]

The decisions of the U.S. District Court for the

District of Columbia, granting the government’s

motions to dismiss, are reported at:

(1) Schieber v. United States, 2022 WL 227082

(D.D.C. Jan. 26, 2022) [App.18a-38a]

(Schieber);

(2) Faktor v. United States, 590 F. Supp. 3d 287

(D.D.C. 2022) [App.110a-126a] (Faktor);

(3) Gutrejman v. United States, 596 F. Supp. 3d 1

(D.D.C. 2022) [App.69a-93a] (Gutrejman);

(4) Schneider v. United States, 2022 WL 1202427

(D.D.C. Apr. 22, 2022) [App.54a-68a]

(Schneider);

(5) Bywalski v. United States, 2022 WL 1521781

(D.D.C. May 13, 2022) [App.39a-53a]

(Bywalski).1

1 On appeal, the five cases were consolidated.

2

JURISDICTION

The judgment of the Court of Appeals issued on

July 18, 2023. [App.1a-17a]. The Chief Justice granted

an application which extended the time to file until

November 15, 2023. (Sup. Ct. No. 23A306). This Court

has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

22 U.S.C. § 2668a—Disposition of trust funds

received from foreign governments for citizens of

United States

All moneys received by the Secretary of State

from foreign governments and other sources, in

trust for citizens of the United States or others,

shall be deposited and covered into the Treasury.

The Secretary of State shall determine the

amounts due claimants, respectively, from each

of such trust funds, and certify the same to the

Secretary of the Treasury, who shall, upon the

presentation of the certificates of the Secretary of

State, pay the amounts so found to be due.

Each of the trust funds covered into the Treasury

as aforesaid is appropriated for the payment to

the ascertained beneficiaries thereof of the

certificates provided for in this section.

3

INTRODUCTION

The “administrative state wields vast power

and touches almost every aspect of daily life.” City

of Arlington, Tex. v. F.C.C., 569 U.S. 290, 312 (2013),

Roberts, C.J. dissenting. This phenomenon “continues

to grow.” Id. The exponential growth of the administrative state is also reflected in the increasing use of

international executive agreements to regulate domestic

matters. Oona A. Hathaway et. al., The Failed Transparency Regime for Executive Agreements: An Empirical

and Normative Analysis, 134 HARV. L. REV. 629, 684

(2020) [“Hathaway”] (documenting thousands of executive agreements currently in force).

This petition concerns the proper scope of judicial

review of administrative action taken pursuant to

executive agreements. Given the massive number of

currently operative executive agreements, the decision

of the D.C. Circuit to insulate allegedly illegal action

from judicial review will, if let stand, create a gaping

lacuna in the congressionally mandated mechanism

for remedying administrative abuse embodied in the

APA, as applied by this Court. Review by certiorari is,

therefore, clearly warranted. Kathleen Claussen, The

Improvised Implementation of Executive Agreements,

89 U. CHI. L. REV. 1655, 1656 (2022) [“Claussen”] (noting

that courts have yet to examine “legal implementation”

by federal agencies of executive agreements.).

In the proceeding below, the D.C. Circuit ruled

that the “Agreement Between the Government of the

United States of America and the Government of the

French Republic on Compensation for Certain Victims

4

of Holocaust-Related Deportation from France Who Are

Not Covered by French Programs”, Dec. 8, 2014, T.I.A.S.

No. 15-1101 (entered into force on Nov. 1, 2015) (the

“Agreement)2 is unenforceable in U.S. courts absent

congressional legislation containing specific evaluative

criteria. In so doing, the appellate court affirmed the

dismissals of five lawsuits brought under the APA,

alleging that the State Department erred in denying

claims for compensation under the Agreement.3

2 For a brief discussion of the historical, political, legislative and

judicial background of the Agreement, see Ronald Bettauer, A

Measure of Justice for Uncompensated French Railroad Deportees,

during the Holocaust, 20 ASIL INSIGHTS, No. 5 (Mar. 1, 2016), https:

//www.asil.org/insights/volume/20/issue/5/measure-justiceuncompensated-french-railroad-deportees-during-holocaust

(last visited last on November 15, 2023).

For related litigation see also Freund v. Republic of France, 592

F. Supp. 2d 540 (S.D.N.Y. 2008), aff’d, 391 Fed. Appx. 939 (2d

Cir. 2010), cert. denied, 565 U.S. 816 (2011); Abrams v. Société

Nationale des Chemins de Fer Français, 175 F. Supp. 2d 423

(E.D.N.Y. 2001), aff’d, 389 F.3d 61 (2d Cir. 2002), vacated, 542 U.S.

901 (2004), aff’g d. ct. on remand, 389 F.3d 61 (2d Cir.), cert. denied,

544 U.S. 975 (2005); Scalin v. Societe Nationale des Chemins de

Fer Francais, 2018 WL 1469015 (N.D. Ill. Mar. 26, 2018), aff’d on

other grounds sub nom., Scalin v. Societe Nationale SNCF SA, 8

F.4th 509 (7th Cir. 2021).

For proposed congressional responses see H.R. 1193, 112th Cong.

(2011); S. 634, 112th Cong. (2011); H.R. 1505, 113th Cong. (2013);

S. 1393, 113th Cong. (2013). A hearing on the 2011 bill was held

before the Senate Judiciary Committee on June 20, 2012. See

Holocaust-Era Claims in the 21st Century: Hearing on H.R. 1193

Before the S. Comm. on the Judiciary, 112th Cong. (2011),

available at www.judiciary.senate.gov/meetings/location-change_

_holocaust-era-claims-in-the-21st-century.

3 For example, in Schneider, the Department of State concluded

that the region from which the Plaintiffs were deported—Haute

Savoie—was not France, but rather Italy. [App.58a]. The State

5

Taking its cue from this Court’s decision in

Medellín v. Texas, 552 U.S. 491 (2008), the D.C. Circuit

disregarded the State Department’s discrete administrative actions—including the establishment of a

detailed claims process after notice and comment—to

implement the Agreement. Ignoring 22 U.S.C. § 2668a

and the substantive criteria set forth in the Agreement,

the D.C. Circuit held that there was no statute that

contained substantive evaluative criteria sufficient to

allow judicial enforcement of Petitioners’ claims which

are therefore barred under APA § 701(a)(2). [App.15a16a]. Essentially, the D.C. Circuit concluded that

Congress—and only Congress—can implement international executive agreements (thereby allowing judicial

review) by way of specific, substantive, legislation. As

discussed in greater detail below, the D.C. Circuit’s

reading of Medellín is incorrect: Congress is not the

exclusive constitutional institution empowered to render

international executive agreements enforceable in

domestic United States law.

This Court’s intervention is warranted to correct

the decision of the D.C. Circuit and to restore the

proper role of the executive branch in domestically

implementing international executive agreements and

Department’s historical and legal conclusion concerning the

status of the Haute Savoie region at the time of deportation is

wrong historically and legally. The region was part of France

prior to World War II having been annexed by France from the

Kingdom of Piedmont-Sardinia in 1860. It was merely occupied

by Italy temporarily from November 1942 to September 1943

after which the Schneider plaintiffs were deported by the German

SS under the auspices of the Vichy French government to death

camps in central and eastern Europe.

6

the task of the judiciary in reviewing such implementation.

Finally, certiorari is necessary to correct the

alternate holding of the D.C. Circuit below: that the

intergovernmental dispute resolution provision of the

Agreement operates like a “statute” to preclude judicial

review under APA, § 701(a)(1). That conclusion, reached

without careful analysis, is utterly disconsonant with

the plain language of the Agreement and this Court’s

jurisprudence and international law concerning the

interpretation of treaties and international agreements.

STATEMENT OF THE CASE

I.

Factual Background

A.

The United States and France Enter into

the Agreement.

On December 8, 2014, the United States and the

French Republic signed the Agreement. [App.143a160a]. Under the Agreement, France agreed to pay

$60 million to the United States to establish a fund

to be deposited in an interest-bearing account “in

accordance with the applicable domestic procedures of

the United States [ . . . ]” Art. 4(4) [App.152a].

In exchange, the United States agreed to “secure,

with the assistance of the Government of the French

Republic if need be, at the earliest possible date, the

termination of any pending suits or future suits that

may be filed in any court at any level of the United

States legal system against France concerning any

7

Holocaust deportation claim.” Art. 5(2) [App.153a]. The

Agreement entered into force on November 1, 2015.

One of the Agreement’s stated objectives was to

provide “an exclusive mechanism for compensating”

individuals (1) who “survived deportation from France,

their surviving spouses, or their assigns” and (2) who

are “not able to gain access to the pension program

established by the French Republic for French nationals,

or by international agreements concluded by the French

Republic to address Holocaust deportation claims.”

Art. 2(1). [App.150a].

Under the Agreement, the United States is required

to distribute the fund “according to criteria which it

shall determine unilaterally, in its sole discretion.” Art.

6(1) [App.154a]; see also 22 U.S.C. § 2668a, discussed

below. The Agreement mandates that, in making eligibility determinations, the United States “shall rely”

on (1) an applicant’s “sworn statement of nationality

appearing in [ . . . ] the Annex to this Agreement”

[App.155a]; (2) her “sworn representation” regarding

whether she has received (or is eligible to receive)

funding from other programs that provide compensation

for Holocaust deportation; and (3) “any relevant information obtained” pursuant to information sharing

between the United States and France. Art. 6(2)(c)

[App.155a].

The Agreement also includes an intergovernmental

dispute resolution provision, Article 8: “Any dispute

arising out of the interpretation or performance of this

Agreement shall be settled exclusively by way of

consultation between the parties.” [App.157a].

8

B.

The Department of State Implements the

Agreement.

The authority of the Executive Branch to enter

into sole executive agreements to settle claims against

foreign nations on behalf of individuals stems from

Art. II of the Constitution and the President’s role as

“Commander-in-Chief and as the Nation’s organ in

foreign affairs.” Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 610-611 (1952) (Frankfurter, J.,

concurring); Am. Ins. Ass’n v. Garamendi, 539 U.S.

396, 414 (2003).4 See also 11 FAM 723.2-2(C).

The disposition of funds received from foreign

governments pursuant to a sole executive agreement

is governed by 22 U.S.C. § 2668a. That statute is an

explicit grant of congressional authority to the

Secretary of State to receive and hold in trust funds

received from foreign governments for the benefit of

individuals. It provides in its entirety:

All moneys received by the Secretary of State

from foreign governments and other sources,

in trust for citizens of the United States or

others, shall be deposited and covered into

the Treasury. The Secretary of State shall

4 There are three types of international instruments: (1) treaties;

(2) executive agreements; and (3) non-binding instruments. See

Congressional Research Service, International Agreements (Part

I): Overview and Agreement-Making Process, (September, 29,

2023), available at https://crsreports.congress. gov/product/pdf/

LSB/LSB11048. There are three types of executive agreements:

(1) Congressional-executive agreements (authorized by legislation);

(2) treaty-based executive agreements (based on authority derived

from Senate-approved treaties); and (3) sole executive agreements

(based on the President’s constitutional powers). The Agreement

here is a sole executive agreement.

9

determine the amounts due claimants, respectively, from each of such trust funds, and

certify the same to the Secretary of the

Treasury, who shall, upon the presentation

of the certificates of the Secretary of State,

pay the amounts so found to be due. Each of

the trust funds covered into the Treasury as

aforesaid is appropriated for the payment to

the ascertained beneficiaries thereof of the

certificates provided for in this section.

In the present case, acting under the President’s

Art. II authority and the general authorization pursuant

to § 2668a, the Department of State developed a detailed

claims procedure. The government issued two notices

of request for public comment under the Paperwork

Reduction Act to assist it in developing this claims

procedure. See 80 Fed. Reg. 22604-01, 2015 WL 1802386

(April 22, 2015); 80 Fed. Reg. 37352-02, 2015 WL

3943095 (June 30, 2015).

Ultimately, the government developed and published Form DS-7713 entitled “Statement of Claim

Related to Deportation from France During the

Holocaust”5 as well as additional online explanatory

material for the general public. The form was readily

downloadable. All claimants were required to complete

and submit Form DS-7713 for agency adjudication.

Claimants were also instructed to submit additional

evidence to support their DS-7713s.

Form DS-7713 instructs claimants to “provide all

available identifying information and documentation

regarding the relevant individual’s deportation from

5 https://2009-2017.state.gov/documents/organization/249134.

pdf (last accessed on November 15, 2023).

10

France during the Second World War, including if

possible the date, convoy, and place of departure and

arrival of such deportation.” [DS-7713, Sec. 4]. In

addition, the Form includes a “Release and Penalties”

section. [DS-7713, Sec. 5]. The Form must be signed

by the claimant who must certify that “the statements

set forth in this Statement of Claim, including any

papers attached to or filed with this Statement of

Claim, are true and accurate, and that all material

facts have been set forth in this Statement of Claim.”

After completing the DS-7713, claimants must

submit it to the State Department via post, e-mail

(DeportationClaims@state.gov) or facsimile. After

receiving the Statement of Claim and accompanying

documentation, the State Department sends an acknowledgment letter confirming receipt. The State Department also contacts the claimant in the event it needs

additional information or documentation. According to

the State Department, each “claims form and accompanying evidence will be considered on a case-by-case

basis. Claimants are contacted by the Department

regarding any follow-up questions and with a determination as to the eligibility of the claim.”6

C.

Plaintiffs’ Applications for Compensation

and the Denial Thereof.

Plaintiffs (or their predecessors-in-interest) were

neither French nationals entitled to compensation

under French Holocaust compensation programs; nor

were they entitled to compensation as nationals of

other countries for Holocaust deportation under any

agreement concluded by France addressing Holocaust

6 https://2009-2017.state.gov/p/eur/rt/hlcst/deportationclaims/

248921.htm (last accessed on November 15, 2023).

11

deportation. Art. 3(2). [App.151a]. Moreover, none of

the Plaintiffs (or their predecessors-in-interest) received

compensation under another nation’s program or that

of an institution providing compensation specifically

for Holocaust deportation. Art. 3(4). [App.151a]. That

Plaintiffs met these eligibility requirements is undisputed. Accordingly, Plaintiffs were eligible to receive

compensation under the Agreement.

The Department of State nonetheless denied

Plaintiffs’ claims in their entirety. See, for example,

App.161a (denial of Bywalski claim); App.163a (denial

of Gutrejman claim); App.166a (denial of Schieber

claim). Although the grounds for the denials varied, the

majority of applications were denied due to the government’s refusal to accept the truth of the sworn statements of Plaintiffs—as they appeared in the DS-7713

and supplemental declarations—and the rejection of

the proffered evidence in support of the statements.7

D.

Plaintiffs File Suit Seeking Judicial

Review of the Denial of Their Claims.

After receiving notice of the denial of their DS7713 applications, Plaintiffs filed lawsuits pursuant to

the APA, alleging that the State Department’s decisions

were arbitrary and capricious under 5 U.S.C. § 706(2).

They alleged that the State Department’s findings

were unsupported by the record and did not fall within

the bounds of reasonable decision-making. Plaintiffs

sought a judicial declaration that the denial of their

claims should be overturned under the APA.

The government moved to dismiss all the complaints for want of subject matter jurisdiction under

7 See also, supra, fn. 2.

12

Rule 12(b)(1) of the Federal Rules of Civil Procedure

(“FRCP”) and for failure to state a claim under FRCP

Rule 12(b)(6). The government argued that federal

jurisdiction in each of the cases was lacking under the

political question doctrine. The government also argued

that the complaints should be dismissed because the

Agreement precludes judicial review under APA, 5

U.S.C. § 701(a).8 The various district judges granted the

government’s motions to dismiss in every case. However,

the decisions were not unanimous on the grounds for

dismissal. The following chart briefly describes the

outcomes in the various cases:

Dismissal under Rule 12(b)(6)

(Agreement does not create private

right of action)

Dismissal under 5 U.S.C. § 701(a)(1)

(Agreement precludes judicial review)9

Dismissal under Rule 12(b)(1)

(nonjusticiable political question)

Schieber

Bywalski

Schneider

Faktor

Gutrejman

Schieber

Faktor

Bywalski

Schneider

Gutrejman10

8 5 U.S.C. § 701(a) provides:

This chapter applies, according to the provisions thereof,

except to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by law.

9 No court below made any conclusions regarding the government’s

APA § 701(a)(2) arguments.

10 Although Judge Randolph Moss in Gutrejman concluded that

the Agreement does not bestow a right of action on individual

13

Plaintiffs timely filed appeals to the United States

Court of Appeals for the District of Columbia Circuit

which were subsequently consolidated. Oral argument

was held on January 10, 2023.

On July 18, 2023, the court of appeals issued its

opinion. The court found that the district courts in

Schieber and Faktor correctly concluded that the plaintiffs failed to state a claim, while the district courts in

Gutrejman, Schneider, and Bywalski erred in dismissing

the claims based on jurisdictional grounds. However,

the court of appeals affirmed those decisions on the

alternative ground and held that the claims are barred

under 5 U.S.C. § 701(a)(2). [App.16a].

The court of appeals held that Plaintiffs’ claims

are unreviewable under § 701(a)(2) because the general

authorizing statute, § 2668a, “neither requires the

Secretary of State to apply the substantive standards

of the Agreement nor itself provides any substantive

standards.” [App.16a].

The court of appeals also held that even if § 2668a

did domesticate11 the Agreement for purposes of the

APA, the claims would be barred under 5 U.S.C. § 701

(a)(1) because the Agreement contains a governmentto-government dispute resolution clause “which requires

interpretive and enforcement disputes to be settled

applicants, he addressed the issue in the context of his political

question analysis under Rule 12(b)(1) rather than 12(b)(6)

11 By “domestication” we mean that the terms of a non-self-

executing executive agreement have domestic legal force insofar

as individuals may bring claims under the APA challenging

executive adjudication pursuant to the agreement and the government’s implementation procedures.

14

exclusively by way of consultation between the parties.”

[App.17a].

REASONS FOR GRANTING THE PETITION

This petition should be granted to overrule what

we refer to here as the D.C. Circuit’s “substantive

statute” test. The appellate court’s novel analysis must

be rejected and the judgment below reversed for the

following reasons: (1) the “substantive statute” test is

inconsistent with decisions of other Circuits that have

addressed the same question in the context of executive

orders; (2) the test conflicts with both the purpose and

structure of the APA; (3) the test is at odds with this

Court’s well-established APA jurisprudence; and (4),

the “substantive statute” test ignores this Court’s

holdings that the President’s authority to settle foreign

claims of private persons (including non-U.S. citizens)

by way of executive agreement is a “long standing”

practice backed by congressional acquiescence.

The D.C. Circuit’s alternative holding—that the

dispute resolution provision in the Agreement bars

judicial review—is equally deserving of review by this

Court. This holding was fundamentally erroneous and

unsupported by any statutory, judicial or scholarly

authority. Considering the wide use of similar dispute

resolution clauses in bilateral and multilateral executive agreements, review by this Court of the D.C.

Circuit’s conclusion regarding Article 8 is essential to

prevent further misapplication of the proper interpretation of such provisions and adverse impact on

15

thousands of claimants under existing and future

executive agreements.

I.

SUPREME COURT REVIEW IS NECESSARY TO

CORRECT THE D.C. CIRCUIT’S “SUBSTANTIVE

STATUTE” TEST.

A.

The “Substantive Statute” Test Is

Inconsistent with the Decisions of Other

Circuits That Have Addressed the Issue

in an Analogous Context.

By requiring the authorizing statute to include

substantive judicially manageable standards, the D.C.

Circuit deviated from the analysis adopted by at least

three other circuit courts of appeal, addressing

whether an executive order (as opposed to an executive

agreement) had been sufficiently “domesticated” so as

to provide a court with the “law to apply” for purposes

of APA judicial review under § 701(a)(2). Heckler v.

Chaney, 470 U.S. 821, 834 (1985).

In City of Carmel-By-The-Sea v. U.S. Dep’t of

Transp., 123 F.3d 1142, 1166 (9th Cir. 1997), the Ninth

Circuit held that otherwise nonreviewable executive

orders, will come within the purview of the APA if

there is “specific statutory foundation.” Id., relying on

Chrysler Corp. v. Brown, 441 U.S. 281, 317-319 (1979).

City of Carmel discussed Executive Order 11988, 42

Fed. Reg. 26951, 1977 WL 201900 (May 24, 1977), a

generally applicable order concerning agency floodplain

management. The Ninth Circuit held that the agency

action taken pursuant to the order was reviewable

under the APA, notwithstanding the fact that the

authorizing statute did not include the substantive

provisions of the order.

16

The Tenth and Eleventh Circuits have taken a

similar approach. See City of Albuquerque v. U.S.

Dep’t of Interior, 379 F.3d 901, 913 (10th Cir. 2004);

Nat’l Mining Ass’n v. United Steel Workers, 985 F.3d

1309, 1327 (11th Cir. 2021) (citing City of Albuquerque

and City of Carmel.).

Under the approach of the 9th, 10th and 11th

Circuits (which we will refer to as the “general authorization” test) the proper test for the domestication of

executive agreements should be whether there is some

anchor or “foundation” in federal law authorizing the

executive action in the first instance, whether the

action is by executive order or agreement. The form of

the executive action is irrelevant. The authorizing

statute does not itself need to include substantive

standards as a precondition to trigger APA judicial

review, so long as the substantive standards—or, the

“law to apply”—are found in the subject executive

agreement or executive order.

Had the D.C. Circuit adhered to the approach

followed by its sister circuits, it would have found that

the Agreement, a sole executive agreement, was authorized under the President’s constitutional authority.

Moreover, the State Department was granted general

authority by Congress to receive, manage and distribute

funds transferred by the French Republic to the United

States pursuant to the Agreement in accordance with

§ 2668a. Under the rationale of City of Carmel and its

progeny, the combination of the President’s constitutional authority and the general authorization statute,

coupled with the subsequent detailed procedures

adopted by the government, provides the legal substrate

sufficient to domesticate and judicialize the Agreement

for purposes of APA, § 701(a)(2).

17

B.

The “General Authorization” Test Best

Comports with the Purpose and

Structure of the APA.

The APA establishes a federal cause of action for

one who is adversely affected or aggrieved by agency

action provided that (1) no statute precludes judicial

review [5 U.S.C. § 701(a)(1)]; (2) the action in question

is not one committed by law to agency discretion [5

U.S.C. § 701(a)(2)]; and (3) there is no other adequate

remedy in a court [5 U.S.C. § 704]; Heckler, 470 U.S.

at 828.

The D.C. Circuit’s “substantive statute” test misunderstands the respective roles of Congress and the

Executive in the modern administrative state and the

critical importance of the APA’s judicial review remedies

as a check against error and abuse by federal administrative agencies. Joseph F. Weis, Jr., A Judicial

Perspective on Deference to Administrative Agencies:

Some Grenades From the Trenches, 2 ADMIN. L.J. 301

(1988) (APA “reflects congressional disapproval of

agency activity which seemed to be exempt from

checks, balances, and controls [ . . . ]” and was enacted

to “reorder comprehensively the administrative scheme

and to clarify the roles of the legislative, executive,

and judicial entities.”).

When Congress enacted the APA in 1946, it

recognized that the transfer of quasi-legislative

authority to executive agencies created enhanced risk

of erroneous agency action in implementing and

enforcement of the delegated powers that could severely

impact the life, liberty and economic interests of private

persons. To this end, Congress turned to the judicial

branch to provide a check and balance against improper

agency action, especially in adjudicative cases where

18

the authorizing statute neither set out substantive

criteria for judicial review nor even expressly provided

for judicial review at all. Judicial review would be

precluded a priori under this legislative framework

only in the narrow range of cases described in APA

§ 701(a). Heckler, 470 U.S. at 838 (701(a)(2) creates a

“narrow” exception to the general presumption of

judicial review).

The “general authorization” test adopted in the

9th, 10th and 11th Circuits is consistent with both the

structure and purpose of the APA. This test simply

asks whether an individual has been adversely affected

by agency action and whether a plaintiff is within the

“zone of interests protected by the statute, executive

order, or regulation which the agency is alleged to

have violated.” City of Albuquerque, 379 F.3d at 913.

Additionally, under this approach, a court is asked to

determine whether there is legislation that authorizes

the agency action pursuant to an executive agreement

/order so as to enable the court to verify that such

action is “within the scope of authority delegated by

Congress” [Id.]; and, hence, whether the action can be

said to have domestic legal force.

The D.C. Circuit’s “substantive statute” test, on

the other hand, misses the point of the purpose and

need of an authorizing statute: to delegate authority

to the executive. The purpose of the statute is not to

provide the court with “judicially manageable standards” for purposes of APA, § 701(a)(2). Those standards

stem from the Agreement’s eligibility criteria and the

State Department’s elaborate procedural regime. As

the court of appeals acknowledged, these sources provide

more than an adequate basis for evaluating the

propriety of the government’s handling of the Plaintiffs’

19

claims. [App.9a, acknowledging, when discussing the

applicability of the political question doctrine, that

“[t]here are also judicially manageable standards for

resolving the claims.”]; see also Padula v. Webster, 822

F.2d 97, 100 (D.C. Cir. 1987) (holding that even “formal

and informal policy statements and regulations” can

provide requisite predicate for judicial review); Steenholdt v. F.A.A., 314 F.3d 633, 638 (D.C. Cir. 2003)

(same); Keats v. Becerra, 2021 WL 6102200, at *1 (D.C.

Cir. Dec. 3, 2021) (same).

Thousands of executive agreements—similar to

the U.S.-France Agreement at issue here—are

domestically implemented by federal agencies with

almost no congressional oversight. Hathaway, supra,

684 (documenting thousands of executive agreements

currently in force); Oona A. Hathaway, Treaties’ End:

The Past, Present, and Future of International

Lawmaking in the United States, 117 YALE L.J. 1236,

1260 (2008) (cataloging more than 2,700 executive

agreements implemented by federal agencies); Claussen,

supra, at 1657 (documenting an additional 1,000 executive agreements in the field of trade alone). Agency

implementation of executive agreements can and does

have immediate effects on thousands of individuals,

yet it evades congressional supervision (and, as the

D.C. Circuit would have it, judicial review); Claussen,

supra, at 1715 (noting that the “rise of executiveagreement implementation” requires us to “consider

questions of agreement enforceability as falling along

a spectrum.”). Cf. Jean Galbraith & David Zaring, Soft

Law As Foreign Relations Law, 99 CORNELL L. REV.

735, 745-748 (2014) [“Galbraith & Zaring”] (describing

the rise of agency domestic implementation of international soft law); see also Jean Galbraith, Making

20

Treaty Implementation More Like Statutory Implementation, 115 MICH. L. REV. 1309, 1362 (2017) [“Galbraith”]

(discussing the development of the executive

implementation of non-self-executing treaties). Jacob

Katz Cogan, The Regulatory Turn in International

Law, 52 HARV. INT’L. L. J. 321, 344-45, 349-352 (2011)

(describing this trend and observing that “[u]nlike

previous practice, seemingly now the default position

in international negotiations [ . . . ] is the regulation

of individual behavior.”).

The consensus among legal commentators and

scholars is that agency action taken pursuant to executive agreements is not—and should not be—insulated

from judicial review. Galbraith, supra, at 1361 (noting

that many of the APA “provisions would be relevant

for treaty delegations to agencies” and that § 706(2)(a)

“does not require that the agency action be pursuant

to a statute as opposed to a treaty”); Galbraith &

Zaring, supra, at 742; Richard B. Stewart, The Global

Regulatory Challenge to U.S. Administrative Law, 37

N.Y.U. J. INT’L L. & POL. 695, 723 (2005) [“Stewart”]

(“[ . . . ] nothing in the APA indicates that domestic

agency decisions in implementing global norms are

exempt from APA requirements or subject to a lesser

standard of judicial review than comparable purely

domestic decisions.”); Richard B. Stewart, U.S.

Administrative Law: A Model for Global Administrative

Law?, 68 LAW & CONTEMP. PROBS. 63, 78 (2005)

(discussing agency implementation of international

agreements and judicial review); Elspeth Faiman

Hans, The Montreal Protocol in U.S. Domestic Law: A

“Bottom Up” Approach to the Development of Global

Administrative Law, 45 N.Y.U. J. INT’L L. & POL. 827,

833 (2013) (discussing judicial review of “domestic

21

agency implementation of an international norm,

standard, or policy.”); see also RESTATEMENT (THIRD)

OF FOREIGN RELATIONS LAW § 111 cmt. h (1987) (“the

intention of the United States determines whether an

agreement is to be self-executing in the United States

or should await implementation by legislation or appropriate executive or administrative action.) [emphasis

added].

Supreme Court review is necessary to restore the

proper role of the APA in protecting individuals from

adverse agency action, even action taken pursuant to

executive agreements.

C.

The D.C. Circuit’s “Substantive Statute”

Test Is at Odds with This Court’s WellEstablished APA Jurisprudence.

This Court’s prior decisions addressing the general

applicability of the APA also support the position that

agency action taken pursuant to executive agreements

should not be categorically insulated from judicial review

unless authorized by a substantive and comprehensive

federal statute. In Bennett v. Spear, 520 U.S. 154, 175

(1997), this Court held that 5 U.S.C. § 704 provides a

cause of action for all “final agency action for which

there is no other adequate remedy in a court.” The

APA creates a right of action for persons aggrieved by

arbitrary and capricious agency conduct and other

agency misconduct even in the absence of a federal

statute (or international agreement) creating a cause

of action. 5 U.S.C. § 704; Chrysler Corp., 441 U.S. at

317-319.

Nothing in the APA or this Court’s precedent

precludes judicial review for agency action pursuant

to executive agreements. Indeed, as this Court has

22

recognized, there is a strong presumption in favor of

judicial review of agency action under the APA, unless

a statute’s language or structure precludes it. Hosp.

Ass’n v. Becerra, 142 S.Ct. 1896, 1902 (June 15, 2022).

This Court’s APA jurisprudence has correctly led

lower courts to conclude that an APA claim can be

maintained even when the underlying statute does

not provide litigants with a private cause of action.

See, for example, Karst Envtl. Educ. & Prot., Inc. v.

Envtl. Prot. Agency, 475 F.3d 1291, 1295 (D.C. Cir. 2007)

(“Because NEPA creates no private right of action,

challenges to agency compliance with the statute must

be brought pursuant to the Administrative Procedure

Act [ . . . ]”); San Carlos Apache Tribe v. United States,

417 F.3d 1091, 1095 (9th Cir. 2005), citing Glacier

Park Found. v. Watt, 663 F.2d 882, 885 (9th Cir. 1981)

(“[r]egardless whether a statute implies a private

right of action, administrative actions thereunder may

be challenged under the APA unless they fall within

the limited exceptions of that Act.”).

The D.C. Circuit’s “substantive statute” test turns

this APA jurisprudence on its head. It narrows the

coverage of APA review to agency actions taken pursuant to federal statutes that incorporate substantive,

comprehensive standards. That, however, is simply

not the case, nor should it be, where, as here, those

criteria are provided by the executive agreement and

the agency’s own detailed procedural framework.

There is no reason to distinguish between the

availability of judicial review over agency action taken

pursuant to an executive agreement and that over

agency action pursuant to a federal statute that

contains no private cause of action. Cf. Sluss v. United

States Dep’t of Just., Int’l Prisoner Transfer Unit, 898

23

F.3d 1242, 1249 (D.C. Cir. 2018) (“Non-self-executing

treaties are much like federal statutes that do not

supply a private cause of action. Although both are

enactments that create legal obligations, plaintiffs

cannot bring claims under either.”). It is axiomatic

that the latter type of action is subject to APA judicial

review; the former type of action deserves the same

treatment.

D.

The D.C. Circuit’s “Substantive Statute”

Test Fails to Consider the Role That the

Executive Has Taken in Implementing

Non-Self-Executing Agreements.

In adopting the “substantive statute” test, the

D.C. Circuit operated under the erroneous “[a]ssumption that Congress needs to be the intermediary

between otherwise unenforceable treaty provisions and

the courts [ . . . ]”. Galbraith, at 1312. It was precisely

due to this assumption that the D.C. Circuit required

a substantive and comprehensive federal statute as a

precondition for APA review. [App.15a] (citing Medellín

v. Texas, 552 U.S. 491 (2008) for its conclusion that

“because [the U.S.-France Agreement] is not self-executing, it does not function as binding federal law, and

it can only be enforced domestically through implementing legislation.”) (internal quotations omitted).

A correct reading of Medellín would have led the

D.C. Circuit to eschew its “substantive statute” test.

This Court in Medellín explicitly left open the question

whether the executive can judicialize an otherwise

non-self-executing treaty when there is “congressional

acquiescence.” Medellín, 552 U.S. at 1370-1371. In

Medellín, “such acquiescence” did “not exist.” Id. Here,

in contrast, “congressional acquiescence” clearly exists.

See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003),

24

citing United States v. Pink, 315 U.S. 203, 223 (1942)

(stating that the “President’s control of foreign relations

includes the settlement of claims” and such authority

“is indisputable.”); Medellín, 552 U.S. at 531, citing

Dames & Moore v. Regan, 453 U.S. 654, 686 (1981)

(noting that Garamendi and similar holdings are “are

based on the view that ‘a systematic, unbroken, executive practice, long pursued to the knowledge of the

Congress and never before questioned,’ can ‘raise a

presumption that the [action] had been [taken] in

pursuance of its consent.’”).

Thus, in the context of foreign claims settlements, the D.C. Circuit’s “substantive statute” test is

completely out of place. The Agreement, together with

its implementation and development of the claims

process by the Department of State, is based on the

historic practice, role and authority granted by Congress

to the executive to carry out these functions. If these

types of agreements are sufficient to preempt state

law (as was the case in Garamendi), they should also

be sufficient to trigger APA review on agency decisions

rendered thereunder.

II. THE D.C. CIRCUIT’S INTERPRETATION AND

APPLICATION OF ARTICLE 8 OF THE U.S.-FRANCE

AGREEMENT WARRANTS REVIEW BY THIS COURT.

A.

The D.C. Circuit’s Interpretation of

Article 8 Conflicts with Basic Tenets of

International Treaty Interpretation.

This Court has long respected the principle that

the “clear import of treaty language controls unless

“application of the words of the treaty according to

their obvious meaning effects a result inconsistent

with the intent or expectations of its signatories.”

25

Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176,

180 (1982); The Amiable Isabella, 6 Wheat. (10 U.S.) 1

(1821). “The shared expectations of the contracting

parties” control in the interpretation of international

agreements, just as parties’ collective intent governs

the adjudication of private contracts. Air France v.

Saks, 470 U.S. 392, 399 (1985); Sullivan v. Kidd, 254

U.S. 433, 439 (1921) (noting that “treaties [ . . . ] are

to be executed in the most good faith, with a view to

making effective the purposes of the high contracting

parties” and importance of examining the circumstances and specific interests of each of contracting

parties at the time of the negotiation of treaty).

This Court’s instructions as to treaty interpretation

are rooted in international law. Article 31(1) of the

Vienna Convention on the Law of Treaties [opened for

signature May 23, 1969, 1155 U.N.T.S. 331, reprinted

in 8 I.L.M. 679] provides that “a treaty shall be interpreted in good faith in accordance with the ordinary

meaning to be given to the terms of the treaty in their

context and in the light of its object and purpose.”

Executive agreements are considered “treaties” and

the Vienna Convention would apply equally to them.

See RESTATEMENT (FOURTH) OF FOREIGN RELATIONS

LAW § 301 (2018).

Against this background, the error of the D.C.

Circuit is manifest. Significantly, the appellate court

did not engage in any analysis when it interpreted

Article 8 to include claims brought by individuals

challenging agency action under the Agreement. By

its own clear and unambiguous terms, Article 8 applies

exclusively to disputes between sovereigns. In adopting

Article 8, the United States and France were concerned

about disputes between themselves (i.e., horizontal

26

disputes); they had no intention to include disputes

amongst individual non-parties against a party for

action taken under the Agreement (i.e., vertical disputes).12

Even if there was any doubt as to the proper

interpretation and scope of Article 8, that doubt

should be dispelled by a familiar principle of statutory

construction, namely that when a statute (or treaty) is

“reasonably susceptible to divergent interpretation,

we adopt the reading that accords with traditional

understandings and basic principles: that executive

determinations generally are subject to judicial review.”

Kucana v. Holder, 558 U.S. 233, 251 (2010), citing

Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434

(1995).

B.

The D.C. Circuit’s Application of Article 8

Conflicts with Language and Purpose of

APA § 701(a)(1).

Section 701(a)(1) bars an APA action only when

“statutes preclude judicial review.” [Emphasis added].

By its clear terms, § 701(a)(1)’s limitation on judicial

review applies only when the restriction is mandated

by a statute. The U.S.-France Agreement is manifestly

not a statute. Thus, Article 8 cannot serve as a bar to

APA judicial review under § 701(a)(1). The D.C. Circuit

cited no authority to support the applicability of

§ 701(a)(1) to treaties or executive agreements. Nor

could it. When a statute bars judicial review, it reflects

12 This intent is evident from the government’s argument that

the Agreement is not self-executing and has no domestic effect.

If so, then Art. 8 could not have been intended to apply to

individuals who, according to the government, cannot bring

claims in the first place.

27

the will of Congress, which has the final say in such

matters. Just as it created a right to judicial review

under the APA, Congress is free to withhold the right

to challenge agency action in court. This is not the

case with sole executive agreements. Nothing in the

APA contemplates that an agency could foreclose

judicial oversight of its own conduct by international

agreement. Had Congress wished to grant the Executive

such authority, it could have easily so provided. It did

not. Cf. Gutrejman v. United States, 596 F. Supp. 3d

1, 8 (D.D.C. 2022) (making similar argument).

In enacting the APA, Congress’s “evident intent”

was to “make agency action presumptively reviewable.”

Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians v. Patchak, 567 U.S. 209, 225 (2012), quoting

Clarke v. Securities Industry Assn., 479 U.S. 388, 399

(1987). The presumption can only be overcome by “clear

and convincing evidence” of congressional intent to

preclude judicial review. Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062, 1069 (2020); Reno v. Cath. Soc. Servs.,

Inc., 509 U.S. 43, 64 (1993) [clear and convincing

evidence required to trigger § 701(a)(1)].

Article 8 of the Agreement does not constitute “clear

and convincing evidence” of a contrary congressional

intent. Article 8 is not a “statute.” Moreover, it cannot

dislodge Congress’s intent to make agency action

under an executive agreement reviewable in claims by

individuals challenging the propriety of such action.

Accordingly, review of this Court is necessary to

correct a clear error of statutory interpretation, the

result of which is to frustrate Congress’s overriding

intent to allow for judicial review of adverse agency

action.

28

CONCLUSION

This Court’s intervention is warranted and a

petition for a writ of certiorari should be granted.

Respectfully submitted,

Noam Schreiber

L. Marc Zell

Of Counsel

Counsel of Record

34 Ben Yehuda St.

ZELL & ASSOCIATES

14th Floor

INTERNATIONAL ADVOCATES, LLC

Jerusalem, Israel 9423001 1345 Ave. of the Americas,

011-972-2-633-6300

2nd Floor

noam.schreiber@fandz.com New York, NY 10105

(212) 971-1349

mzell@fandz.com

Stephen T. Rodd

Of Counsel

ABBEY SPANIER, LLP

212 East 39th Street

New York, NY 10016

(212) 889-3700

strodd47@gmail.com

Harriet Tamen

Of Counsel

LAW OFFICES OF HARRIET TAMEN

420 East 72nd St.

New York, NY 10021

(917) 543-7270

htamen@tamenlaw.com

Counsel for Petitioners

November 15, 2023