# Appendix — Weinberger v. Ramirez de Arellano > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0151%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1985 - **Citation:** 471 U.S. 1113 ## Text Office - Supreme Court, US. 3 FILED , 84- 1398 MAR 4 {985 No. Iu the Supreme Court of the United States OCTOBER TERM, 1984 CASPAR W. WEINBERGER, SECRETARY OF DEFENSE, ET AL. Vv. TTEMISTOCLES RAMIREZ DE ARELLANO, ET AL. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT REX E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General EDWIN S. KNEEDLER ‘Assistant to the Solicitor General ROBERT E. Kopp JOHN M. ROGERS Attorneys Depariment of Justice Washington, D.C: 20530 (202) 633-2217 se ceamraniemnaeennateeeneteed beeemmenmnemmaeneteeehdenheimenelioes eranaieeemaiemioanmmedinaan iaeammeadeeniameetemteeaeae a Appendix Appendix Appendix Appendix Appendix Appendix Appendix Appendix Appendix Appendix Appendix TABLE OF CONTENTS (Court of Appeals opinion dated 10/5/ a ae aN NS (Court of Appeals opinion dated 12/22/ a eg, pee BA a TAT OO (District Court opinion dated 8/24/83) .. (Judgment dated 10/5/84) _.......000.000....... (Court of Appeals Order dated 12/6/ eee disdiniakaciieiuedssnien Getic (Department of State Translation dated | _, SEN ER ARREST NGN AZ) erin» Acatao Sy ARRON Ea (Letter from the Secretary of Defense I i oe (Letter from the Acting Secretary of State dated 12/11/84) —.........000000000002.. (Letter from the Secretary of State I UT IID tsb ccdn skh asscsecevccaraceecns Page i es a as s e: 4,3 Gh ais rm Recy eg © or v 7: TPA eae, Metre AEN rk ri be Vw eden Ce | APPENDIX A UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Civil Action No. 88-02002 No. 88-1950 TEMISTOCLES RAMIREZ DE ARELLANO, ET AL., APPELLANTS v. CASPAR W. WEINBERGER, SECRETARY OF DEFENSE, ET AL. Appeal from the United States District Court for the District of Columbia Argued 25 April 1984 Decided 5 October 1984 Before: ROBINSON, Chief Judge, and WRIGHT, TAMM, WILKEY, MIKVA, EDWARDS, GINS- BURG, BORK, SCALIA and STARR, Circuit Judges. Opinion for the court filed by Circuit Judge WILKEY. Dissenting opinion filed by Circwit Judge TAMM. Dissenting opinion filed by Circuit Judge SCALIA, in which Circuit Judges BoRK and STARR concur. Dissenting opinion filed by Circuit Judge STARR, in which Circuit Judge SCALIA concurs. (la) 2a OUTLINE Page Ba Me ia aceceae dais ale scene Ache concn these scasuakiake 5a A. The Plaintiffs’ Set of Facts 2.000000... 5a EE Ca 10a C. Subsequent Developments ....................00.20000.. 12a Be ee me I ances 14a a ae 17a So a 27a V. RELIEF FOR THE STATED CLAIMS ........ 0... 39a A. Equitable Discretion of the District Court... 41a 1. Adequacy of the remedy at law ................. 42a 2. Balancing the equities and prudential I iii gia ii csc peecckiicaenicnneee 58a a. Location of the land _.....00002......002000.... 59a AN I 6la c. Separation of powers ........................... 62a d. Compliance and monitoring ................ 65a Ws - ME a is, an 67a C. Relief for the Due Process Claims ................ 68a Sr FERRI: ere ACT ies FS 69a A. The Factual Basis for Applying the Act of State Doctrine on This Appeal _................... Tla B. Legal Obstacles to the Application of the Act I ie a 82a , A ea el CAEN Ae RNS ere Lt RGIS 93a 8a WILKEY, Circuit Judge: This case involves an al- leged occupation, amounting to an effective seizure and destruction, of a United States citizen’s pri- vately owned cattle ranch in Honduras by officials of the United States government. Temistocles Ramirez de Arellano (Ramirez), a United States citizen, claims that the Secretaries of State and Defense are operating a large military facility for training Sal- vadoran soldiers on his private ranch without per- mission or lawful authority, in violation of the Con- stitution. Ramirez alleges, in essence, that a United States sponsored and controlled military center is oc- cupying his land, destroying his life’s work, and ex- posing his family and employees to life threatening conditions. The complaint filed in the United States District Court for the District of Columbia requests declaratory and injunctive relief for the alleged oc- cupation and destruction of private property without constitutional or statutory authority and for a depri- vation of the use and enjoyment of property without due process of law. The district court dismissed the complaint prior to any discovery or findings of fact on the ground that the dispute was a nonjusticiable political question.* We reverse. The plaintiffs’ claims present varied and complex issues of core constitutional concern. We emphasize, however, that we are not now being asked to enter judgment on the merits for one of the parties. Be- cause the case is before us on an appeal of the dis- trict court’s dismissal of the complaint at the thresh- old of litigation, we need only determine whether the plaintiffs have stated a justiciable claim for relief which falls within the jurisdiction of the district 1568 F. Supp. 1236 (D.D.C. 1983). 4a court. In so doing, we address the assortment of in genious but spurious arguments which the defend- ants have conceived and advanced in an effort to wipe out the plaintiffs’ case. We find the dismissal of the complaint was precipitous. We proceed under the settled rule for assessing the propriety of dismissal under Rule 12(b) of the Fed- eral Rules of Civil Procedure. Many potentially dis- positive facts are intensely disputed by the parties, such as the role of the Honduran armed forces and the United States military in operating the Regional Military Training Center (RMTC), and the extent of land occupied and used for the military base. Be- cause there has been neither fact-finding by the dis- trict court nor stipulation of undisputed facts by the parties, we must accept as true all of the material al- legations in the plaintiffs’ complaint. Dismissal for failure to state a claim for relief is proper only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”* All factual doubts must be resolved and all inferences made in favor of the plain- tiffs.* Defendants’ factual allegations, if in agree- ment with plaintiffs’, only reinforce plaintiffs’ case; if in disagreement, they must be ignored. Thus, at this stage of the proceedings, the only relevant fac- tual allegations are the plaintiffs’. 2 Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957) ) (emphasis added). 8 Shear v. National Rifle Ass’n, 606 F.2d 1251, 1253 (D.C. Cir. 1979) ; Schuler v. United States, 617 F.2d at 608 (D.C. Cir. 1979). 5a I. BACKGROUND A. The Plaintiffs’ Set of Facts The plaintiffs’ set of facts are detailed in the veri- fied complaint filed by Ramirez and six corporate plaintiffs, in eleven sworn declarations filed with the district court, and in numerous newspaper reports appended to the plaintiffs’ pleadings and memoranda. Assuming, as we must, the truth of the plaintiffs’ material allegations, the facts are as follows. Plaintiff Ramirez is a citizen of the United States. He is the sole beneficial owner, the general manager, and the chief executive officer of a large agricultural- industrial complex in the northern region of Hondu- ras. Plaintiff Ramirez is a businessman and was a founding member of the Lion’s Club of Trujillo, Hon- duras, as well as the founder of the Association for the Defense of the Free Enterprise System in San Juan, Puerto Rico. Ramirez has engaged in numer- ous civic and community services in Puerto Rico and in Central America, including assisting the United States government in a meat distribution program for Puerto Rico. Ramirez conducts his business opera- tions through six corporations which he owns and controls. Two of these corporate plaintiffs are United States nationals and four are incorporated in Hon- duras. Together they form a chain of title through which plaintiff Ramirez holds his interest in the land and property at issue.* * Complaint 7] 4-9, Appendix (“‘A.”) at 5-7; Ramirez Dec- laration 99 1-5, A. at 19-22. The complaint states that Ramirez owns two United States corporations which in turn own four Honduran corporations. “The six corporate plain- tiffs . . . are and at all material times have been owned and controlled by Mr. Ramirez.” Complaint 75, A. at 6. 6a Plaintiff Ramirez acquired his large tract of land in Honduras more than 20 years ago, when it was raw, undeveloped jungle. Since then he has trans- formed the land into a 14,000-acre cattle ranch, meat- packing operation and shrimp-packing plant. Accord- ing to Ramirez’s sworn declaration filed with the court, he “supervised the clearing of this land, plant- ing feed grass, constructing fences, farmroads, cattle pens, cattle treatment facilities, warehouses and nu- merous other buildings, water ponds and reservoirs, and housing for [his] employees and their families.” ° The business operation employs approximately 500 workers and is the single largest employer in the De- partment of Colon, Honduras. The plaintiffs’ initial total investment in the property has increased from approximately $700,000 to more than $13,000,000.° Still assuming the truth of the plaintiffs’ factual allegations, the plaintiffs’ property was occupied by the defendants without permission in 1983. In March of that year, the United States Department of De- fense decided to establish a Regional Military Train- ing Center for the United States to train soldiers from the army of El] Salvador. Because of Congress’s un- willingness to increase the number of military ad- visers in El] Salvador itself, the Defense Department decided not to locate the military training center there.’ Instead, after reportedly considering several 5 Ramirez Declaration {| 4, A. at 22. * Complaint ff 4-9, A. at 5-7; Ramirez Declaration {[{ 1-5, A. at 19-22. 7 See Plaintiffs’ Memorandum of Points and Authorities, filed 13 July 1983, Attachment +1, Boston Globe, 27 Mar. 1983, at 1, A. at 15; id., Attachment #3, Miami Herald, 12 Apr. 1983, at 17-A, A. at 17. Ta other countries, the Defense Department chose Hon- duras as the location for the RMTC. Newspaper articles in the United States at the time reported that the Honduran government was resisting the Defense Department’s placement of the military center in Honduras and that a United States Army spokesman said that Honduras did not have anywhere to locate the training center.* Nonetheless, officials of the United States Depart- ment of Defense began a survey of land in the vicinity of Ramirez’s property, and in April of 1983 they picked a specific site in Honduras for the Regicnal Military Training Center. Unknown to Ramirez, the chosen site was his cattle ranch. Officers of the Army Corps of Engineers immediately started planning the construction of a 1,000-man tent camp and training facility on the plaintiffs’ property, and by May 1983, they had drawn up blueprints for the military center.® In this same month, plaintiff Ramirez discovered the United States plans. The First Secret ry of the United States Embassy in Honduras was visiting Ramirez’s home and “casually mentioned that a train- ing base for Salvadoran soldiers was going to be built in the area.” *° When Ramirez asked its location, the official pointed to property across the bay. Ramirez instantly realized that the official was pointing to his privately owned cattle ranch and he immediately in- ® See id., Attachment +8, Miami Herald, 12 Apr. 1983, at 17-A (“Honduras balks at hosting Salvador army train- ing”), A. at 17; id., Attachment #2, N.Y. Times, 20 Mar. 1983, at A19, A. at 16. ® Ramirez Declaration {| 24, A. at 31; Ramirez Supplemental Declaration { 3, A. at 66. 10 Ramirez Declaration { 10, A. at 28. 8a formed his guest and other officials of the United States Embassy that the intended site for the RMTC was his land. Construction of the military camp proceeded apace. Work crews from Litton Industries, under the super- vision of the United States Army Corps of Engineers, began bulldozing the ranch in early June 1983. The crews constructed a 1,000-man tent camp for housing Salvadoran soldiers as well as an unspecified number of buildings on the ranch. The Army Corps of Engi- neers also built an ammunition storage facility and a firing range on the private land. In addition, plans were drawn up for mortar and other long distance firing ranges on the plaintiffs’ property.” Next, according to the plaintiffs’ allegations, United States military training personnel moved in. Over 100 United States Army Special Forces Soldiers be- gan training over 1,000 soldiers on the plaintiffs’ pastures, conducting training exercises all over the ranch using live ammunition. As a result of the construction and the military operations, plaintifis allege that they have suffered numerous injuries. Prime grazing land and fences have been bulldozed. The flow of water to the plain- tiffs’ meat-packing plant has been interrupted by the soldiers’ diversion of substantial quantities of water for their own use. Cattle have been shot by stray bullets. ‘““arge numbers of armed soldiers and trainees roaming around [the] ranch and the area of [the] meat-packing plant” have frightened Ramirez’s family and his employees.” Ranch employees, fearing 1 Jd. {4{ 19, 31, A. at 28, 32-34; Ramirez Supplemental Dec- laration Jf 22, 29, A. at 73-74, 76. 12 Ramirez Declaration {| 33, A. at 34. NN eEEEEeEeEeEeEeEeEeEeEeEEeeEmaE=E>E=EEEeEeEe—— 9a for their lives, have refused to tend cattle near the military operations, causing the livestock to become undernourished. The foreman of one section of the ranch declared: My family, I and the workers are living in con- stant fear because of so much military activity carried out in the pastures of Taya Crique to the south of the highway. At this point, we do not know what to do in such circumstances since we are afraid to remain here and also because we fear to encounter armed soldiers in the pastures where we must work.” Over half of the ranch’s 14,000 acres and nearly 90% of the year-round grazing land has been seized by soldiers of the Regional Military Training Center.™* The operations are destroying the plaintiffs’ invest- ment and Ramirez’s life work. The plaintiffs claim that the land on which their operations are based is irreplaceable. Land in other areas of Honduras is either too arid, too mountainous or too inaccessible for the integrated agro-industrial enterprise. The only other land in Honduras suitable for cattle ranching is neighboring property, which is privately owned.” The plaintiffs allege that in May 1983, the Wash- ington Post reported an announcement by officials of the Departments of State and Defense pertaining to the establishment of the RMTC. One month later, the National Congress of Honduras entered a decree 18 Reyes Declaration {| 4, A. at 94-95. 14 Complaint {j11, A. at 8; Ramirez Third Supplemental Declaration {] 2, A. at 115. 15 Ramirez Declaration { 6, A. at 22-23. 10a which authorized “the admission of military instruc- tors and students, coming from friendly countries” to the Military Training Center.** According to Ra- mirez, however, “the site for the RMTC was neither presented to, nor decided by the Honduran legisla- ture.” *’ In the summer of 1983, Honduran military officials discussed expropriation of a small portion of the ranch with Ramirez, but this discussion, Ramirez alleges, only pertained to a 1,500-2,000 acre section of the ranch called the “Designated Area.” These dis- cussions did not result in any expropriation of the Designated Area** and the training activities spilled over onto the majority of the ranch’s acreage. Meanwhile, according to the complaint, plaintiff Ramirez made numerous efforts to resolve his dispute with officials of the United States Embassy in Hon- duras and the Departments of State and Defense in Washington, D.C., but these efforts were unproductive or rebuffed.” The plaintiffs have not received any compensation for the seizure nor has any hearing on the dispute been held. The plaintiffs do not know from day to day what is going to happen on their ranch. B. Procedural History In July 1983 plaintiff Ramirez and the six cor- porate plaintiffs which he wholly owns and controls 1® Ramirez Supplemental Declaration, Attachment +1; Brief of Appellees, Addendum A. 17 Ramirez Supplemental Declaration {| 2, A. at 65. 18 Complaint {]/11, A. at 8-10; Ramirez Declaration {1% 13, 16-18, A. at 25-28. 19 Ramirez Declaration { 36, A. at 36-37. lla sued Caspar W. Weinberger, Secretary of Defense, George P. Shultz, Secretary of State, and Lt. Gen. Joseph K. Bratton, Chief of Engineers for the United States Army Corps of Engineers, in the United States District Court for the District of Columbia. The plaintiffs’ complaint charges the named officials of the United States with causing the construction and operation of a large military training camp on the plaintiffs’ private property in Honduras. It alleges that the defendants’ occupation and destruction of the plaintiffs’ property is unconstitutional because it is not authorized by any federal statute or provision of the Constitution. It further charges that the de- fendants deprived the plaintiffs of the use and enjoy- ment of their property without due process of law. The complaint seeks declaratory and injunctive relief and such other relief as the court deems just and proper.” Shortly after the complaint was filed, the parties met in an effort to stipulate material facts. When they failed to reach an agreement, plaintiffs sought the permission of the district court to begin discovery of the facts. The district court denied their request.” On 20 July 1988, the United States defendants moved to dismiss the complaint on the grounds that the action presented a nonjusticiable political question and that the plaintiffs had failed to state a claim for relief. No answer to the complaint was filed, but the defendants’ motion to dismiss was supported by five declarations disputing the plaintiffs’ factual claims and contending that the RMTC was actually a project of the Honduran government. The plaintiffs opposed 20 A. at 5-14. 21 See Transcript of 15 July 1983 at 4-11, 36. 12a the motion to dismiss and submitted additional decla- rations of fact and other exhibits. On 24 August 1983, the district court dismissed the complaint, hold- ing that the case presented a nonjusticiable political question. The district court indicated that summary judgment was not appropriate at that time, because crucial material facts were in dispute. Accordingly it dismissed the complaint under Rule 12(b) of the Federal Rules of Civil Procedure.” This appeal ensued. C. Subsequent Developments On appeal before a panel of this court, the defend- ants informed the court that the President of the Republic of Honduras had issued an “expropriation decree” in November 1983 pertaining to the plaintiffs’ land.* The decree identifies certain land in the De- partment of Colon, Honduras on which the Regional Military Training Center is located and states that the described property “shall be expropriated.” It provides that “established legal procedures shall apply to the appraisal of the property and to the payment of compensation.” The decree is signed by the Secre- tary of State for National Defense and Public Se- curity of Honduras and is dated 4 November 1983.” © 22 See Transcript of 26 July 1983 at 9, 11-12 (The Court said: “Summary judgment is a technique to resolve disputes as a matter of law when there is no dispute as to a material fact, and it is quite obvious here, I think both parties would agree, that there are some essential disputes as to the ma- terial facts in the case.”) ; 568 F. Supp. at 1237 n.1. 23 See Brief of Appellees, Addendum C. 24 Td. at c-5, c-7, c-8. 13a In response to this submission to the court by the defendants, the plaintiffs submitted a letter to the court stating that the signing of such an expropria- tion decree merely begins the process of expropriation in Honduras and is not itself an act of expropriation or a claim of title. The plaintiffs directed the court’s attention to the uncontroverted legal opinions they had already submitted to the district court, which advise that a Presidential decree of expropriation in Honduras is only the first step in a process which may or may not result in expropriation.” The plaintiffs also submitted to the court a copy of a letter dated 18 November 1983 from Ramirez to the United States Ambassador to Honduras. This letter describes alleged, subsequent developments on the ranch which are similar to those outlined in the veri- fied complaint. The letter reads: Dear Mr. Ambassador: With the utmost urgency I am informing you by hand courier that United States Armed Person- nel with Tanks have invaded our Plant Premises at Puerto Castilla this afternoon... . At 15.40 hours CST when I am dictating this letter we have reports that there are four Tanks inside with supporting infantrymen. The Tank Commander came to our Office Gate inside the yarc and demanded the keys to the gates of all other areas. He was told to leave and that no keys were to be given to him. He then gave order to his company to proceed and go thru our property. At this time we have no reports from our ranch. 25 See Reply Brief of Appellants, Appendix A. We note that foreign law is a question of fact. 14a Inasmuch as the U.S. Government had been fore- warned and foretold not to go into my properties and its Diplomatic and Military Representatives had assured no U.S. Troops would violate my rights and property I hereby advise you that we hold all those responsible Legally and Morally Liable. Sincerely /s/ Temistocles Ramirez de Arellano ** II. THE PLAINTIFFS’ CLAIMS The plaintiffs’ set of facts gives rise to cognizable causes of action against the named defendants. Count I of the plaintiffs’ complaint charges that the de- fendants’ establishment of the Regional Military Training Camp on plaintiffs’ land, the occupation and destruction of the plaintiffs’ property, and the depri- vation of the plaintiffs’ use and enjoyment of the property “are beyond defendants’ express or implied authority under the laws and treaties of the United States and the United States Constitution.” *’ This count states a claim. It is settled law that the Executive’s power to take the private property of United States citizens must stem from an act of Con- gress or from the Constitution itself.** When there is 26 Td. 27 Complaint f 16, A. at 11. 28 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Hooe v. United States, 218 U.S. 322 (1910); The Paquete Habana, 175 U.S. 677 (1900). 15a no authorization by an act of Congress or the Consti- tution for the Executive to take private property, an effective taking by the Executive is unlawful because it usurps Congress’s constitutionally granted powers of lawmaking and appropriation. Youngstown Sheet & Tube Co. v. Sawyer” is a leading authority for the 29343 U.S. 579 (1952). The purported distinctions of Youngstown Sheet & Tube offered by the dissenters merely serve to emphasize the applicability of that case to this. We suggest that the Supreme Court did not regard the foreign affairs component of seizing domestic steelmills as “‘nil’’; the motive and justification for the presidential action was a- leged to be a major war going on in Korea. In both Youngs- town and the case today the “primary” effect of the seizure (Dissenting Opinion of Tamm., J., at 8) is on the property of United States citizens—foreign affairs powers have only been cited secondarily as a supposed justification for the domestic actions. Further, whether the underlying activity enjoined is in Youngstown, Ohio and every other distant point in the United States where a seized mill was located, or at no greater dis- tance to the South in a neighboring country, the location of the enjoined activity misses the mark. As the injunction run- ning to the Secretary of Commerce in Youngstown illustrates, when the enjoined defendant is a responsible government officer residing in the nation’s capital, who by virtue of his oath of office is sworn to uphold the Constitution and laws of the United States, and who therefore must be presumed to be ready to comply with this court’s orders (as Government counsel conceded readily at oral argument before the original panel that defendants were willing and bound to do), ques- tions of evaluating and guaranteeing compliance are not in- surmountable. Finally, the availability of monetary compensation is al- ways a factor in considering injunctive relief: not only is its availability doubtful here, but the plaintiffs’ description of the situation may suggest that mere monetary relief would be insufficient under any concept of justice. See infra notes 124 & 134. 16a cause of action stated in plaintiffs’ first count. There the Supreme Court adjudicated a challenge to the Executive’s power to seize privately owned steel mills during the Korean conflict. The Court held that the President’s seizure of the steel mills was unconstitu- tional because no statute authorized the taking and authority to take the mills was not implicit in the powers granted to the Executive by the Constitution, despite the exigent circumstances. It upheld a federal district court’s injunction prohibiting Executive offi- cials from seizing the mills.” In the instant case, plaintiffs claim that no statute or constitutional provision authorizes the United States defendants to take the plaintiffs’ private prop- erty for a military training center. While we express no view on the merits of the plaintiffs’ first count, the plaintiffs have succeeded in stating a claim against the defendants for an unauthorized and unconstitu- tional deprivation of the use and enjoyment of their property. This claim is adjudicable in the federal district court. Count II contends that the defendants’ deprivation of the plaintiffs’ use and enjoyment of their property without notice or a hearing violates the due process clause of the fifth amendment. Plaintiffs rely on Mullane v. Central Hanover Bank & Trust Co." as support for the proposition that the deprivation of a property interest must be preceded by notice and 80 Jd. Similarly, in The Paquete Habana, 175 U.S. 677, 710- 11 (1900), the Supreme Court held that the wartime capture of foreign fishing vessels off the coast of Cuba by U.S. officials was unlawful because such seizures had not been authorized by Congress. 81 339 U.S. 306, 313 (1950) ; see also Fuentes v. Shevin, 407 U.S. 67 (1972). 17a must be accompanied by an appropriate hearing, ex- cept in extraordinary circumstances. Plaintiffs claim that the defendants have given the plaintiffs no notice of their intentions with respect to the plaintiffs’ property and that no hearing has been held on the property dispute. This count also states a claim within the jurisdiction of the federal district court sufficient to withstand dismissal for failure to state a claim.” III. JUSTICIABILITY Having found that the plaintiffs’ set of facts gives rise to the causes of action stated in the complaint, we examine the applicability of the political question doctrine to this case. The district court dismissed the complaint on the ground that the case presented a nonjusticiable political question. It determined that the case was a direct challenge to the propriety of the United States military presence in Central America, and having so characterized the complaint, it held that the dispute was nonjusticiable. The district court found that the case presented all of the three criteria identified by the Supreme Court in Baker v. Carr*® for nonjusticiable political questions. The panel opin- ion by Judge Scalia (later vacated for en banc) found unanimously that the trial court was in error in rely- ing on this ground. On this point our en banc disposi- tion is in accord with the panel opinion. The factors for identifying political questions were recently summarized by Justice Powell in his con- 82 The third count charges the defendants with violating the law of Nations and is brought under the Alien Tort Claims Act, 28 U.S.C. § 1850 (1982). 88 369 U.S. 186 (1962). 18a currence in Goldwater v. Carter. The doctrine in- corporates three inquiries: (i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of government? (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) Do prudential considerations counsel against ju- dicial intervention? ™ The first of these formulations requires the court to determine whether the text of the Constitution im- plicitly or explicity commits the stated claim to the political branches. According to the Supreme Court, this necessitates a close textual analysis of specific provisions of the Constitution. The Supreme Court determined, for example, that certain suits brought pursuant to the Constitution’s guarantee of a republi- can form of government in article IV are nonjusticia- ble political questions textually committed for resolu- tion to Congress, not the Judiciary, because the Constitution gives Congress the exclusive power to determine whether a particular state government should be recognized.* In addition, certain disputes over internal procedures in Congress may be textually committed for resolution to Congress by article I, sec. on 5, clause 2, which provides that “[e]ach House may determine the Rules of its Proceedings.” ** In the area of foreign affairs, some broad chal- lenges to the Executive’s conducting of foreign rela- 84 444 U.S. 996, 998 (1979) (Powell, J., concurring). 35 See, e.g., Luther v. Borden, 48 U.S. (7 How.) 1 (1849). 586 See, e.g., Metzenbaum v. FERC, 675 F.2d 1282, 1287 (D.C. Cir. 1982). 19a tions have been found nonjusticiable because formu- lation of foreign policy is constitutionally committed to the political branches. In Johnson v. Eisentrager, for example, the Supreme Court refused to adjudicate claims by enemy aliens who were convicted of violat- ing laws of war in China after Germany had sur- rendered. The aliens’ claims were found to be com- mitted to resolution by the political branches because they fundamentally challenged the propriety of United States military activities in China. There, the Court stated: “[I]t is not the function of the Judi- ciary to entertain private litigation . . . which chal- lenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region.” * Not every issue related to foreign relations, how- ever, is constitutionally committed for resolution by the Executive. Baker v. Carr states that “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cogniz- ance.” * Issues which are not at base sweeping chal- lenges to the Executive’s foreign policy typically are adjudicated by the courts because they do not involve judicial usurpation of the Executive’s constitutional powers to manage foreign affairs. A careful analysis of the plaintiffs’ case shows that their claims are not exclusively committed for resolu- tion to the political branches. Unlike the claim ad- dressed by the Court in Johnson v. Eisentrager, the plaintiffs do not seek to adjudicate the lawfulness of the United States military presence abroad. Instead, they seek adjudication of the narrow issue whether 37 339 U.S. 763, 789 (1950). 38 369 U.S. at 211. 20a the United States defendants may run military exer- cises throughout the plaintiffs’ private pastures when their land has not been lawfully expropriated. They do not challenge the United States military presence in Honduras or in Central America, nor do they ob- ject to United States sponsorship of a Regional Mili- tary Training Center in Honduras. Plaintiffs’ claim, properly understood, is narrowly focused on the law- fulness of the United States defendants’ occupation and use of the plaintiffs’ cattle ranch. This is a paradigmatic issue for resolution by the Judiciary. The federal courts historically have re- solved disputes over land, even when the United States military is occupying the property at issue.** Further- more, certain disputes over property rights to land located abroad are appropriately resolved by the fed- eral courts,” as are property disputes involving the Executive Branch and foreign affairs. In Younys- town, for example, the Supreme Court adjudicated the claim that the President had unlawfully seized most of the nation’s steel mills, even though the case arose in the context of the nation’s military involve- ment in Korea.“ The issues in the instant case are well within the traditional bounds of justiciability by the federal Judiciary. Secondly, it cannot be said on review of this dis- missal that resolution of the case will require the court to move outside of its areas of expertise. On the basis of the complaint and affidavits, it appears 38° See, e.g., Meigs v. McClung’s Lessee, 18 U.S. (9 Cranch) 11 (1815). : © See, e.g., United States v. Caltex (Philippines), Inc., 344 U.S. 149 (1952). * 343 U.S. 579 (1952). 2la that adjudication of the defendants’ constitutional au- thority to occupy and use the plaintiffs’ property will necessitate interpretations of the Constitution and of federal statutes—which are quintessential tasks of the federal Judiciary.“ The complaint does not reveal that expertise beyond the capacity of the Judiciary is essential to a resolution of the claims. The district court found, however, that adjudica- tion of the plaintiffs’ claims would be unmanageable because reaching “the heart of this matter would necessarily involve sensitive and confidential commu- nications between the highest members of the Execu- tive branch and officials of a foreign power that are not judicially discoverable.” ** We disagree. It is premature to conclude that essential evidence is un- discoverable merely on the basis of the complaint and related declarations in this case. Evidentiary privi- leges turn on facts, such as the harm that might flow from disclosure of particular communications,“ which are not yet part of the record in the instant case. In Attorney General v. The Irish People, Inc., this court held that dismissal of a complaint is not proper “when information which ‘might’ be relevant toa... claim is unavailable for discovery.” ** That case applies 42 See Powell v. McCormack, 395 U.S. 486, 548-49 (1969) (requirements of nonjusticiability not met when court is called upon merely to interpret the Constitution) ; Consumer Energy Council of America v. FERC, 673 F.2d 425, 452 (D.C. Cir. 1982), affirmed mem. sub nom. Process Gas Consumers Group v. Consumers Energy Council of America, 103 S. Ct. 3556 (1983). #8 568 F. Supp. at 1239 (footnote omitted). 44 See Halkins v. Helms, 690 F.2d 977, 990 (D.C. Cir. 1982). 45 684 F.2d 928, 951 (D.C. Cir. 1982), cert. denied, 108 S. Ct. 817 (19838). 22a squarely to the instant appeal. If it turns out that essential evidence is undiscoverable due to Executive privilege, the district court can take appropriate ac- tion at that time. Speculation about Executive privi- lege in this case cannot justify squelching the plain- tiffs’ complaint prior to any factfinding. Finally, the district court erred by holding that prudential considerations compel dismissal of the com- plaint. Baker v. Carr identifies four circumstances in which prudential considerations may bar adjudica- tion of a claim. These are: [T]he impossibility of deciding without an ini- tial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution with- out expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrass- ment from multifarious pronouncements by vari- ous departments on one question.** None of these circumstances is necessarily presented by the plaintiffs’ complaint and related declarations. The plaintiffs do not seek judicial monitoring of foreign policy in Central America nor do they chal- lenge United States relations with any foreign coun- try. The case does not raise the specter of judicial control and management of United States foreign policy. As such, the issues in the instant case are qualitatively different from those posed in several recent cases which were dismissed as nonjusticiable political questions. In Dickson v. Ford the Fifth Cir- #6 369 U.S. at 217. 23a cuit upheld the dismissal of a taxpayer’s challenge to military and economic assistance to Israel.*’ Like- wise, in Crocket v. Reagan a panel of this circuit upheld the dismissal of a suit brought by members of Congress challenging the legality of United States military aid to El Salvador.** If adjudicated, those broadside attacks on fundamental foreign policy de- cisions might have resulted in conflicting pronounce- ments from the Judiciary and the political branches over the basic tenets of United States relations with foreign states. By contrast, those factors which have permitted ad- judication in other cases implicating foreign affairs are present here. Private United States litigants seek a determination of the lawfulness of the Executive’s deprivation of their private property.* The pru- dential, separation-of-powers concerns presented by the instant case are certainly not greater than those underlying the wartime seizure of an entire industry by the Executive in Youngstown. Ramirez’s dispute with the United States military over land in Hon- duras does not require unquestioning adherence to a political decision by the Executive. The complaint does not present any of the criteria used by the Su- 47521 F.2d 234 (5th Cir. 1975), cert. denied, 424 U.S. 954 (1976). 48720 F.2d 13855 (D.C. Cir. 1983) (per curiam), cert. de- nied, (1048S. Ct. 3533 (1984). 49 See Goldwater v. Carter, 444 U.S. 996, 1004 (1979) (Rehnquist, J., concurring) (Justice Rehnquist noted that the claim in Youngstown was not a nonjusticiable political question because “[i]n Youngstown, private litigants brought a suit contesting the President’s authority under his war powers to seize the Nation’s steel industry.”’). 24a preme Court to identify nonjusticiable political ques- tions. The political question doctrine is a tempting refuge from the adjudication of difficult constitutional claims. Its shifting contours and uncertain underpinnings make it susceptible to indiscriminate and overbroad application to claims properly before the federal courts. Recent cases raise doubts about the contours and vitality of the political question doctrine, which continues to be the subject of scathing scholarly at- tack.” We need not, however, announce the demise of the political question doctrine by our holding in this case. Despite confusion over whether a retreat to the political questions doctrine is proper in particular cases,” it is clear that the doctrine is, at best, a narrow one. Baker v. Carr admonishes that “[t]he doctrine .. . is one of ‘political question,’ not one of ‘political cases.’”** For similar reasons we funda- mentally disagree with Judge Tamm’s dissenting sug- 50 See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 796- 98 (D.C. Cir. 1984) (Edwards, J., concurring) ; id. at 803 n.8 (Bork, J., concurring) (“That the contours of the doctrine are murky and unsettled is shown by the lack of consensus about its meaning among the members of the Supreme Court ....”); Vander Jagt v. O’Neill, 699 F.2d 1166, 1173-74 (D.C. Cir.), cert. denied, 104 S. Ct. 91 (1983) ; McGowan, Congress- men in Court: The New Plaintiffs, 15 Ga. L. REv. 241, 256- 60 (1981). Professor Louis Henkin suggested in his influ- ential article debunking the political question doctrine that the leading cases f wearing judicial review on the ground that the issue pos as a political question might instead be understood as determinations that the challenged actions were in fact constitutional. See Henkin, Js There A “Political Question” Doctrine ?, 85 YALE L.J.597 (1976). 51 See, e.g., Goldwater v. Carter, 444 U.S. 996 (1979). 52 369 U.S. 186, 217 (1962). 25a gestion that granting these plaintiffs their day in court will “intolerably” impinge and intrude upon the Executive’s conducting of foreign affairs. This dis- sent relies heavily on United States v. Curtiss-Wright Export Corp.,® to establish the existence of a “realm” of Executive power in the foreign relations area which courts should not curtail. But this same deci- sion review, on the merits, a constitutional challenge to certain laws granting foreign affairs power to the President.“ The possibility that the laws would not withstand constitutional scrutiny, with the concomi- tant embarassment to the President who had relied on those laws in prohibiting arms sales to specific for- eign countries, did not deter the Court from finding the controversy to be justiciable. | The Executive’s power to conduct foreign relations free from the unwarranted supervision of the Ju- diciary cannot give the Executive carte blanche to trample the most fundamental liberty and property rights of this country’s citizenry. The Executive’s foreign relations prerogatives are subject to constitu- tional limitation; no agreement with a foreign country can confer upon the Executive Branch any power greater than those bounded by the Constitu- tion.** We recognize that review by the Judiciary may 53 299 U.S. 304 (1936). 54 After reviewing the series of statutes relevant to the exercise of Executive power, the Supreme Court concluded that “this court may not, and should not hesitate to declare acts of Congress, however many times repeated, to be uncon- stitutional if beyond all rational doubt it finds them tc te so.” Id. at 327. 55 Jd. at 319. 56 Reid v. Covert, 354 U.S. 1, 16 (1957). 26a not always be appropriate. But unlike Curtiss- Wright,” the government has not relied on a specific legislative grant of authority to conduct the chal- lenged activities. Moreover, this is not a case like Chicago & Southern Airlines, Inc. v. Waterman Steamship Corp.,** in which the plaintiffs, who were denied review of an Executive order, were at least granted some process through which their contention could be heard prior to the Executive decision. In- deed, if the dissent’s approach were adopted by all judicial forums, then no ordinary process at all could be offered.* We must be most reluctant to withhold judicial scrutiny in these circumstances. Every act taken by the Executive having an effect beyond this country’s borders may be described as political, with a potential or actual impact on our foreign relations. Affirmance of this dismissal on the 57 299 U.S. 304 (1936). 58 333 U.S. 103 (1948). 58 The theory proposed by the dissent is equally applicable to other forums. Thus it is seriously doubtful whether any judicial remedy for the asserted taking would be available. See, e.g., Langenegger v. United States, slip op. (Claims Court 14 May 1984) (denying review on alternative theory of im- permissible inquiry into foreign affairs when plaintiff’s claim was unavoidably predicated upon a challenge to the intrusive manner in which the United States conducted its foreign pol- icy). Judge Tamm’s apparent assumption that a remedy would exist in the Claims Court under the Tucker Act may be incorrect. Dissenting Opinion of Tamm, J., at 10-11. Of course, the possibility of a private bill of relief may theoreti- cally be available. But see P. BAToR, P. MISHKIN, D. SHAPIRO & H. WECHSLER, HART & WECHSLER’S FEDERAL COURTS IN THE FEDERAL SYSTEM 1326-31 (2d ed. 1973) (original purpose of Tucker Act to end the plague of private relief bills dogging Congress) . 27a ground that plaintiffs’ claims are political questions or an improper chalienge to foreign affairs powers would mean that virtually anything done by United States officials to United States citizens on foreign soil is nonjusticiable. This is not the law. A proper application of the political question doctrine to the plaintiffs’ case shows that dismissal on this ground was erroneous. IV. STANDING After prompting by the vacated panel opinion in this case, the defendants for the first time pressed the argument that Ramirez, a United States citizen, and his two wholly owned United States corporations lack standing to sue the defendants for the constitutional violations alleged here. The theory is that because plaintiff Ramirez and his two wholly owned United States corporations own and control the land in ques- tion by means of !egal title held by their wholly owned Honduran corporations, the three United States plain- tiffs do not have a constitutionally protected property interest in the land and property for the purposes of the asserted claims. This proposition embodies a most extreme form of fanciful thinking. It is bizarre to posit that the claimed seizure and destruction of the United States plaintiffs’ multi-million dollar investment, business, property, assets, and land is not an injury to a pro- tected property interest. The suggestion that a United States citizen who is the sole beneficial owner of viable business operations does not have constitu- tional rights against the United States government officials’ threatened complete destruction of corporate assets is preposterous. If adopted by this court, the proposition would obliterate the constitutional prop- 28a erty rights of many United States citizens abroad and would make a mockery of decades of United States policy on transnational investments. The debate over standing is easily obfuscated by couching the issue in terms of whether this court should permit Ramirez to bring a suit “derivatively” or whether we should “lift the corporate veil.” As Justice (then Judge) Cardozo admonished, “Meta- phors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.” The ability of the United States plaintiffs to sue does not turn on whether certain rights which may belong only to the Honduran corpo- ration may be asserted “derivatively” by the sole United States shareholders or on whether we should “lift the corporate veil.” The “standing” inquiry may be conducted along two different branches: first, there is a cognizable property interest under the United States Constitution directly assertable by a United States citizen-shareholder; and second, whether 60 Further obfuscation is supplied by Judge Scalia’s dissent, which concedes in his first paragraph on standing that Ra- mirez as an individual “has a cognizable property interest in that land, which interest, since he is an American citizen, is protected by the Constitution.” Dissenting Opinion of Scalia, J., at 13. The dissent then spends six more pages trying to place the interest of the wholly owned corporations exclusively under Honduran law. If the 100% owner, Ramirez, has an interest protected by the United States Constitution as Judge Scalia concedes, that is enough to compel the United States District Court to go forward, as we make clear in text at notes 55-56. Judge Scalia has conceded the only issue on this point we reach and decide. 61 Berkey v. Third Ave. Railway Co., 244 N.Y. 84, 155 N.E. 58, 61 (1926). 29a (a) there is a cognizable property interest directly belonging to the corporation, and (b) if so, the scope of a shareholder’s right to assert that interest deriva- tively. The crucial issue here is whether the United States plaintiffs have constitutional rights of their own, which exist by virtue of their exclusive bene- ficial ownership, control, and possession of the prop- ties and businesses allegedly seized.” Properly under- stood, the question is whether the United States plaintiffs—Ramirez and his two wholly owned United States corporations—have a judicial cognizable in- terest in the affected property sufficient to enable them to sue for an unconstitutional deprivation of the use and enjoyment of that private property. Because we hold that the United States plaintiffs have a pro- tected property interest for the purposes of the claims asserted here and that they have standing to sue, we do not reach the question whether the alien Honduran corporations also have constitutional rights to judicial relief for the violations alleged here.® 62 As such, cases involving corporate shareholders’ attempts to sue for a violation of a constitutiona! right which attaches only to individuals when the challenged action affected only the corporation are inapposite. See, e.g., Reamer v. Beall, 506 F.2d 1345 (4th Cir. 1974), cert. denied, 420 U.S. 955 (1975) ; United States v. Richardson, 469 F.2d 349 (10th Cir. 1972). The approach taken in the instant case is consistent with the holdings of those cases by its focus on the nature of a United States shareholder’s personal interests and injuries and his own constitutional rights in determining whether the share- holder has a right to sue. 63 Cf. Cardenas v. Smith, slip op. (D.C. Cir. Apr. 17, 1974). Neither do we find it necessary now to resolve the issue whether the Honduran corporations may state a valid alter- nate claim under the Alien Tort Claims Act, 28 U.S.C. § 1350 30a We analyze this issue, as we must, on the basis of the facts alleged by the plaintiffs. According to the plaintiffs’ complaint, the operation is the enterprise (1982) ; see Verified Complaint for Declaratory and Injunc- tive Relief, Count III, A. at 5. Judge Scalia, in dissent, mixes the two branches of standing together. As an initial matter, on the second branch he would hold that the foreign corporations have “no rights under the United States Constitution with regard to activity taking place in Honduras.” Dissenting Opinion of Scalia, J., at 13. Logically, therefore, he would also assert that no derivative corporate rights in the assets based on the United States Con- stitution may be passed on to United States shareholders. The remainder of the opinion, however, then attempts to define the direct constitutional rights of the United States citizen shareholder by reference to the procedural and substantive rights of shareholders under Honduran law. In effect, the dis- sent permits the “efficiencies” and technicalities of Honduran corporation law (which are policies designed to regulate the affairs between Honduran corporations, the shareholders and creditors under Honduran law—not United States law) to de- fine the substantive scope of United States constitutional safe- guards running directly to United States citizens (which safe- guards, in turn, control the lawfulness of coercive power exer- cised upon the citizenry by the Government). It seems to us that these two considerations are wholly unrelated; and that, at least when the issue of asserting a third party’s rights does not cast doubt on the existence of a justiciable case-or-controversy—as might occur when a share- holder is attempting to assert derivative rights which can undisputably be raised by a corporation—it is improper to analyze the existence of a cognizable constitutionai right as the dissent suggests. See infra note 79. The dissent does not doubt that an individual United States citizen could assert the constitutional rights the plaintiffs now press. What the dissent attempts to create is a system in which a United States citizen loses all United States rights in wholly owned assets when those assets are held through a for- eign corporation—perhaps even when the assets are located in the United States, since it is solely the “law of incorporation” 3la of one man—a United States citizen. Title to the property is held by three companies incorporated in Honduras, which are wholly owned jointly by plaintiff (Dissenting Opinion of Scalia, J., at 17) which is said to define the United States constitutional rights. This is unsound and fundamentally unjust. For instance, many foreign countries forbid direct ownership of real property by aliens, effectively forcing a United States national to adopt a foreign business entity to hold the investment. But the adoption of a foreign business entity should not be held to strip the United States citizen of rights he or she would otherwise have vis-a-vis the United States government in United States courts since strip- ping those rights would not serve any valid policy underlying the foreign rules of incorporation. Cf. RESTATEMENT (RE- VISED) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 216, reporters’ note 3: “A state cannot, by requiring a for- eign enterprise to incorporate locally, compel the corporation to surrender in advance its right to protection by the state of the parent corporations or of the parent’s shareholders.” (Tent. Draft No. 2, 1981). Moreover, the corollary to Judge Scalia’s position is not true: a United States citizen cannot escape the prescriptive reach of United States law solely by choosing to do business through a foreign corporation. In many contexts the United States government has asserted control over foreign corpora- tions owned predominately by United States shareholders. See RESTATEMENT (SECOND) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 27, comment d (1965): When the nationality of a corporation is different from the nationality of the persons (individual or corporate) who own or control it, the state of the nationality of such persons has jurisdiction to prescribe, and to enforce in its territory, rules of law governing their conduct. It is thus in a position to control the conduct of the corporation even though it does not have jurisdiction to prescribe rules directly applicable to the corporation. See also id. reporters’ note. Constitutional rights and duties are closely related in scope; if the Constitution permits such a broad exercise of prescriptive power, then the protective reach of the Constitution should extend equally far. 32a Ramirez and by two United States corporations which plaintiff Ramirez wholly owns and controls. The sole and ultimate individual investor, beneficial owner and shareholder in the chain of companies is plaintiff Ramirez.“ The essence of standing is whether the asserted claims—here, of an unconstitutional, unauthorized oc- cupation and use of private property and of a de- privation of property without due process of law— entitle persons in the position of the plaintiffs to judicial relief.“ The question may be phrased either in terms of whether the plaintiffs have standing to sue or in terms of whether the plaintiffs have properly stated a cause of action for the allegedly unconstitu- tional acts.“ Either way, the inquiry must focus on whether the plaintiffs have a cognizable property in- terest in the assets in Honduras for the purposes of the constitutional violations claimed here. We turn first to an assessment of the nature of the United States citizens’ interests in the property. The fact that the United States plaintiffs do not directly hold legal title to the real property does not deprive them of a property interest in the assets nor does it defeat their constitutional claims. Ramirez has a pro- tected property interest in the allegedly occupied property both by virtue of his status as sole share- holder of the corporations and by virtue of his posses- sion of the land for more than twenty years. %4 See supra note 4. 85 See Warth v. Seldin, 422 U.S. 490, 500 (1975). 86 See Cardenas v. Smith, slip op. at 11 (D.C. Cir. April 17, 1984) ; Currie, Misunderstanding Standing, 1981 S. Ct. Rev. 41, 43. 83a First, as shareholders, the United States plaintiffs have a concrete and protected interest in the property allegedly occupied and used by the United States de- fendants. The United States plaintiffs’ status as sole and ultimate shareholders of the corporations which have title to the land and property gives rise to in- terests which are protected from unconstitutional ac- tivity of the type alleged here. It is settled law that ownership of stock constitutes a specific interest in the corporation’s property. Shares of stock do. . . represent an interest in the corporate property. Thus, it has been said that stockholders are the equitable owners of the property and assets of the corporation, and that they have a proprietary interest in the corpora- tion, and a qualified beneficial interest which is an indirect or collateral interest in the corporate property. It has been held that the stockholder’s interest is an “ownership interest” within the meaning of an insurance policy on the corporate property, and that his interest is an insurable one.” Likewise, this circuit acknowledged in Nielsen v. Sec- retary of tre Treasury that shareholders have a prop- erty interest in assets of a corporation. There the court agreed with the apparent shareholders that the blocking of a corporation’s assets in the United States 6711 W. FLETCHER, CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS §5100 (1971 ed.) (footnotes omitted); see also H. HENN & J. ALEXANDER, LAWS OF CORPORATIONS 1052 (3d ed. 1983) (“Actions to enjoin a... sale of corporate assets have been permitted as direct actions. They are hardly actions to procure a judgment in favor of the corporation.” (footnotes omitted) ). 34a could constitute a deprivation of the shareholders’ property.” The Supreme Court has accepted this proposition that a shareholder may have a property interest in the assets of a corporation which can support the shareholder’s standing to sue over an injury to the corporation’s assets. In Regional Rail Reorganization Act Cases, the Court implicitly held that the sole shareholder of a corporation has a constitutionally protected property interest in corporate assets.” Not a single Justice dissented from the Court’s finding that the sole shareholder of Penn Central Transporta- tion Co. had a sufficient interest in Penn Central’s assets to be a property party in a challenge to an alleged taking of the railroad company’s property without just compensation. The facts of ownership in the instant case are functionally equivalent: a sole ultimate shareholder is suing for unlawful destruc- tion of the corporate assets. Likewise, in Kaufman v. Societe International Pour Participations Industrielles et Commerciales, the Supreme Court permitted United States shareholders to intervene in a suit seeking re- covery of corporate property confiscated by the United States under the Trading with the Enemy Act. Re- jecting the dissent’s contention that the United States shareholders had no present interest in the physical property of the corporation, the Court held that “when the Government seizes assets of a corporation organized under the laws of .a neutral country, the rights of innocent stockholders to an interest in the assets proportionate to their stock holdings must be 68 424 F.2d 833, 843 (D.C. Cir. 1970). 6° 419 U.S. 102, 117 (1974). 35a fully protected.” * The corporate ownership of the land and property in the instant case does not deprive the sole beneficial owners—United States citizens—of a property interest for the purposes of the claims asserted here. The Supreme Court has consistently refused to allow mere corporate formalities to dictate whether the suing party in fact has a valid claim and a per- sonal stake in the outcome of the case. In Bangor Punta Operations, Inc. v. Bangor & Aroostook Rail- road, the Supreme Court squarely rejected the argu- ment that the Court may not “look behind the corpo- rate entity to the trust substance of the claims and the actual beneficiaries” when it evaluates a party’s standing to sue.” In that case the Court determined that a corporation should not be treated as a distinct and separate entity for standing purposes when 99% of the corporation’s stock was owned by a single shareholder. Because the facts of that case showed that the shareholder both owned and controlled the corporation, the Court found that the shareholder would be the actual beneficiary of any recovery by the corporation. Thus, the Court disregarded the corpo- rate form of ownership in determining whether the suit could proceed. Similarly, in the recent case of First National City Bank v. Banco Para El Comercio Exterior de Cuba, the Court refused to give con- clusive status to the act of incorporation in determin- ing the status of the corporate party before the Court.” There the Court stated that “an incorpor: ved entity . . . is not to be regarded as legally separate 70 343 U.S. 156, 159-60 (1952). 1 417 U.S. 708, 713 (1974). 72 103 S. Ct. 2591 (1983). 36a from its owners in all circumstances.” Applying that approach to the instant case, it is clear that Ramirez, the sole individual owner and controller of the corporations, has a property interest in the cor- porate assets that is real and protected for the pur- poses of the claims alleged in the instant case.“ Secondly, in addition to his beneficial preperty in- terest as a shareholder, Ramirez has a cognizable possessory interest in the property allegedly seized, by virtue of his continuous possession of his ranch for more than twenty years. The Supreme Court stated in Board of Regents v. Roth that the Court “has ... made clear that the property interests pro- tected by procedural due process extend well beyond actual ownership of real estate, chattels, or money.” ” 78 Id. at 2601 (footnotes omitted). 74 We need not consider under what circumstances a share- holder should be deemed to have ceded his right to sue to the corporation by virtue of local law. It is sufficient to note that a shareholder will not be deemed to have ceded constitutional claims to an alien corporation which itself may be precluded from bringing suit on behalf of its shareholders. Further- more, this is not a case in which the rights of other share- holders might be adversely affected by permitting a single shareholder to sue, because Ramirez has alleged that he is the sole ultimate beneficial owner. 7408 U.S. 564, 571-72 (1972). Judge Scalia’s dissent agrees that Ramirez has standing to vindicate his possessory interest in the ranch as a resident under Honduran law. (Dissenting Opinion of Scalia, J., at 18). We question the internal consistency of that concession with those portions of the dissent which assert, incorrectly, that Honduran law must define the scope of Ramirez’s United States constitutional rights since the dissent has disclaimed any real knowledge of Honduran law and has explained the existence of the “lawful possessory interest under Honduran law” only by citing a deci- 37a In Fuentes v. Shevin the Court applied that principle and held that a purchaser of household goods under a conditional sales contract had a possessory interest in the goods sufficient to give rise to a constitutional claim for a violation of due process when 2 noteholder attempted repossession.’ Despite the purchaser’s lack of legal title, the Court held that the purchaser had a cognizable property interest in the continued use and possession of the goods. The facts alleged by Ramirez in his complaint give rise to an analogous possessory interest. According to the complaint, Ramirez has personally controlled and managed his Honduran property for over 20 years, during which time he developed the land from raw jungle into viable business operations. He has spent much of his life on the land allegedly seized. Prior to the defendants’ alleged invasion of this cattle ranch, Ramirez had full control and possession of the ranch’s pastures and business operations. Now he claims to have been ejected from portions of the land he once possessed. Ramirez’s possessory interest is constitutionally protected for the purposes of the claims stated here.” sion by the United States Supreme Court. Be that as it may, it seems that the concession of standing must be read to encom- pass all properties here in dispute, especially since the dissent has not cited to anything which would indicate that Ramirez’s own possessory interest is not owned through a corporate in- termediary, as is the rest of the ranch. 76 407 U.S. 67 (1972). 7 That constitutional provisions protecting property ex- tend to property interests not secured by actual legal title was likewise made clear in Armstrong v. United States, 364 U.S. 40 (1960). In that case, the Court held that the plaintiffs had a property interest protected by the fifth amendment’s just 88a For decades United States investors abroad have utilized the privilege of incorporation in the host country in order to put themselves on a parity with | indigenous corporations and other foreign investors in regard to taxation, labor law, and other matters. It has hitherto never been suggested that the consti- tutional rights of United States citizen-investors, in this case against unconstitutional seizures by United States officials, were in any way lessened by the mere utilization of such corporate vehicles. Furthermore, the defendants’ contention is contrary to the policy which the United States maintains world-wide with respect to the confiscation abroad of assets owned directly or indirectly by United States citizens; the United States insists upon full compensation by the confiscating nation as a condition of United States foreign assistance.” It is astonishing for the United States defendants to argue that confiscation of corpo- rate assets is a deprivution of United States investors’ property when executed by a foreign government but that it is an unrecognizable injury to United States shareholders when it is carried out by the United States itself. It is hard to imagine a more disingenu- ous contention.” compensation clause when the value of liens which they held on boats and materials was destroyed by the government. And in Mennonite Board of Missions v. Adams, 108 S. Ct. 2706 (1983), the Court held that a mortgagee possesses a “substantial property interest” in the mortgaged property which is protected by the due process clause. 78 See, e.g., 22 U.S.C. § 2370(e) (1) (1982) ; infra notes 169, 170. 79 Judge Scalia’s dissent adopts the defendants’ argument and supports it by two evasive theories designed to avoid United States jurisdiction at all costs. The first is the argu- 89a V. RELIEF FOR THE STATED CLAIMS Plaintiffs’ complaint is also attacked on the ground that relief for the stated claims is not available in the district court. The defendants contend that even if ment refuted in the text above, that because Ramirez and his two solely owned Puerto Rican corporations have chosen to use wholly owned Honduran corporate vehicles in the owner- ship and operation of the Ramirez enterprise in Honduras, then American citizen Ramirez as a sole owner stockholder is relegated to the law of Honduras to determine what rights he can assert in a United States Court for violations allegedly carried out solely by American officials, military and civilian. We are familiar with the assertion that a party may properly be required to assert its United States constitutional rights in state rather than federal courts, since state courts are fully in- tegrated in our nation’s uniquely federal judicial system and are usually subject to review by the Supreme Court. But here- tofore we never thought that a United States party could be banished to the final and unreviewable forum of a foreign nation for a conclusive adjudication of that party’s rights under United States law. As indicated in the text above, to allow this argument to prevail would undermine the legal position of American multi- national corporations around the world, as well as that of the United States government when it comes to their defense. For if the corporate form adopted can negate an American investor’s rights against American officials, a fortiori the adoption of a local corporate form might be interpreted to ne- gate his rights under international or local law against the actions of local officials. The second evasive theory is the repeated assertion through- out the dissent that this whole training operation is a Hon- duran affair, that complaint should be made to the Honduran goverment, and that United States citizen Ramirez’s rights must be determined by Honduran law. This is answered by the FACTS—undeniable as alleged by the plaintiffs after this Rule 12(b) (6) disposition by the trial court—that plaintiffs have alleged no wrongful acts by Honduran officials under any law but have alleged wrongful acts by United States 40a the plaintiffs prevailed on the merits of their consti- tutional claims, the district court would abuse its eq- uitable discretion if it ordered any form of declara- tory or injunctive relief. Accordingly, the defendants argue that dismissal of the complaint should be up- held on the ground that the plaintiffs have failed to state a claim for relief. Appropriate remedies for the plaintiffs’ claims, however, must be determined in the first instance by the district court, on the basis of particular findings of fact as well as the nature of any proved unlawful conduct. The doctrine of equi- table discretion does not compel dismissal of the plain- tiffs’ complaint at the outset of litigation. The plain- tiffs have stated a claim for relief sufficient to with- stand dismissal under Rule 12(b) (6), and that is all that is now required. We emphasize again that the procedural posture of this case prevents us from relying on the defendants’ officials in violation of the United States Constitution, and that plaintiffs have named no Honduran officials but have named three United States officials within a five-mile radius of this courthouse as defendants. The plaintiffs’ case against the United States defendants must be tested by United States law in a United States court. All we decide here are the rights of a United States citizen, Ramirez, and his 100% owned corporations. We do not pro- nounce on the rights of a United States citizen owning .0001% of the shares in a Honduran corporation. Most of Judge Scalia’s standing discussion, resting on his analysis of share- holders’ rights, is thus beside the point. We do note, however, that his analysis would apparently permit the United States Executive Branch literally to do anything to the property and livelihood of a United States citi- zen overseas, if the United States citizen were conducting his business operations in the form of a foreign subsidiary corpo- ration, without any recourse whatsoever to a United States District Court to protect his rights. United States constitu- tional rights are not so fragile. 4la version of disputed facts. The defendants have re- peatedly argued their version of the facts in their effort to show that relief cannot be granted for the stated claims. They have contended, for example, that the military incursions onto the plaintiffs’ land were conducted by the Honduran military, that the RMTC is principally a Honduran project, and that is “essentially a dispute between the plaintiffs and the Honduran government.” * We decline to dismiss the plaintiffs’ complaint on the basis of deliberate dis- tortions of the plaintiffs’ case. While we express no view on the weight or substance of the plaintiffs’ fac- tual case as it might be developed, we roundly reject the defendants’ efforts to involve this court in im- proper fact-finding of controverted material issues on appeal of a dismissal under Rule 12(b) (6). A. Equitable Discretion of the District Court The doctrine of equitable discretion might permit the district court to grant some form of injunctive relief for the stated claims. A trial court’s equitable remedial powers are great.** The Supreme Court has stated that “in shaping equity decrees, the trial court 8° Counsel for the Appellees, oral argument, 25 Apr. 1984; see also Brief of Appellees at 5-8. 81 See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971). Courts are, of course, more reluctant to utilize their equitable powers for interim orders—when the plaintiffs have not yet proved their claims—than they are to grant equitable remedies for the correction of proved unlawful conduct. In Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978), for example, the court required the plaintiffs to make an ex- traordinarily strong showing in order to justify a highly in- trusive preliminary injunction against the Executive, when no constitutional violation had yet been proved. 42a is vested with broad discretionary power.” The duty of the trial court is to decree relief that corrects the condition offending the Constitution or U.S. laws. In exercising its broad equitable powers, a trial court must balance the nature of the proved vio- lation against the affected public and private inter- ests.* An equitable remedy is proper (1) when the plaintiff lacks an adequate remedy at law and (2) when a balancing of the rights and interests involved as well as other prudential considerations permit in- junctive or declaratory relief.* Plaintiffs’ complaint shows that their stated claims may be irremediable at law and that a balancing of the equities may favor relief. We cannot now conduct the balancing for the district court nor specify which remedies would be most appropriate for the stated claims. We simply demonstrate that the scales are not firmly and con- clusively tipped for the defendants on the plaintiffs’ set of facts. 1. Adequacy of the Remedy at Law If the district court determined that the actions of the federal defendants were unlawful because they were not authorized by an act of Congress or the Constitution, the allegations in plaintiff Ramirez’s 82 Lemon v. Kurtzman, 411 U.S. 192, 200 (1973). 83 See Swann v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1, 15-16 (1971). 84 See Hecht Co. v. Bowles, 321 U.S. 321, 329-30 (1944) (a court of equity has flexibility to mold decrees to the par- ticulars of each case). 85 See Developments in the Law—Injunctions, 78 HARV. L. REV. 996-1054 (1965) ; ef. RESTATEMENT (SECOND) OF TORTS § 936 (1977). 43a complaint suggest that monetary relief for the con- tinuing occupation and effective seizure of the plain- tiffs’ property might‘be unavailable or inadequate. First, monetary relief from the United States for the stated claims may not be available to the plain- tiffs. The Tucker Act provides that the Claims Court shall have jurisdiction over claims against the U.S. government in excess of $10,000 founded upon con- tracts, or the Constitution or statutes of the United States. It is unclear, however, whether the Tucker Act would permit the plaintiffs to recover damages, because the Supreme Court has held that monetary relief for unauthorized Executive seizures is not avail- able in the Claims Court. In Regional Railroad Re- organization Act Cases, the Court stated: “The taking of private property by an officer of the United States for public use, without being authorized, expressly or by necessary implication, to do so by some act of Congress, is not the act of the Government,” and hence recovery is not available in the Court of Claims.” Likewise, in Hooe v. United States, the Supreme Court held that the Court of Claims did not have ju- risdiction to award damages for the unauthorized seizures of plaintiffs’ basement by U.S. officers. Jus- tice Harlan, writing for the Court, rejected the plain- tiffs’ argument that they were entitled to just com- pensation for a taking in the Court of Claims. He concluded that because the officers acted without legal or constitutional authority their actions did not cre- 86 See 28 U.S.C. §§ 1346, 1491 (1982). 87419 U.S. 102, 127 n.16 (1974) (quoting Hooe v. United States, 218 U.S. 322, 386 (1910) ). 44a ate a claim against the government for relief in the Court of Claims.” It is important to remember that the plaintiffs do not challenge the defendants’ actions merely because just compensation has not been paid; plaintiffs deny the existence of any constitutional or statutory power of the defendants to seize their private ranch. While courts may properly find that the only relief for an authorized taking of private property is compensa- tion in accordance with the just compensation require- ment of the fifth amendment, injunctive relief is available when the owner proves that government offi- cials lack lawful authority to expropriate his prop- erty. In the latter situation, the landowner is enti- tled to equitable relief and need not rely on the as- serted availability of a damages remedy.” When government officials seize private property without constitutional or statutory authority, the trial court must apply general equitable principles to determine whether injunctive relief is proper.” This involves determining whether monetary relief is adequate and whether a balancing of the equities favors relief. Whether an action of Executive officials is suffi- ciently authorized by congressional or constitutional 88 218 U.S. 322 (1910). In United States v. North American Transp. Co., 253 U.S. 330, 334 (1920) ; Justice Brandeis held for the Court that the actions of a federal official who took land for military purposes were unauthorized and therefore created no liability for com™ensation by the government in the Court of Claims; see also Youngstown Sheet & Tube Co. v. Sawyer,\343 U.S. 579, 585 (1952) ; sources cited supra note 87; cf. The Paquete Habana, 175 U.S. 677, 710-11 (1900). 8° See Land v. Dollar, 330 U.S. 731, 738 (1947). % See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 595-96 (1952) (Frankfurter, J., concurring). 45a \ provision to permit a claim for relief under the Tucker Act depends upon the nature of the facts of the particular case and the scope of the defendants’ lawful powers. Not all illegal acts of government offi- cials are considered unauthorized for the purpose of determining the government’s liability to pay com- pensation under the Tucker Act. The question in each case is whether the defendants’ actions are substan- tially in compliance with the powers granted to them by congressional statute or constitutional provision. Recovery under the Tucker Act has been permitted when a taking by an officer is the natural consequence of congressionally approved measures or the result of an exercise of discretion granted to an official for the implementation of a congressional statute.” *! For example, in United States v. Causby, 328 U.S. 256 (1946) the Supreme Court held that a Tucker Act claim had been stated when the Civil Aeronautics Board, acting within the scope of authority granted to it by Congress, prescribed an air traffic route that was found to result in the taking of an easement over the plaintiff’s land. Although Congress itself had not expressly put that particular airspace into the public domain, the taking was held to be authorized by Congress be- cause it was within the discretion of the Civil Aeronautics Board, under the congressional statute, to prescribe an air traffic route like the one at issue. Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 327 (1922), also sup- ports this principle. The Court stated that because the mili- tary officials were authorized to build the fort in question and to staff it with guns and men, it would be reluctant to find lack of authority for the firing of the cannons which resulted in the property damage. Nonetheless, it remanded the case to the Court of Claims for a determination whether there was in fact authority on the part of the military officials so to fire the canons sufficient to bind the government to pay for the property taken. 46a However, when an officer acts wholly outside the scope of the powers granted to him by statute or con- stitutional provision, the official’s actions have been considered to’ be unauthorized for the purposes of a damages remedy under the Tucker Act.” In Southern California Financial Corporation v. United States,” for example, officers of the United States Air Force used approximately 120 acres of the plaintiff’s land as a buffer-zone for an Air Force base’s ammunition dump and bomb storage area. An appellate panel of the Court of Claims found that the defendant Air Force officials were not authorized, explicitly or im- plicitly, to take the plaintiff’s property and that there- fore plaintiffs could not invoke the jurisdiction of the Claims Court. In denying the plaintiff's claim for monetary relief on the ground that the military offi- cials’ taking of the plaintiff's property was unauthor- ized and that therefore a Tucker Act remedy did not lie, the unanimous appellate panel of the Court of Claims stated: Ordinarily, whenever there is no authority for a taking or intrusion, the claimant, although un- able to obtain sompensation, can seek an injunc- tion or a declaration judgment against the un- authorized governmental activities.” Thus, if the plaintiffs prove that the acts of the de- fendants in regard to their property are unauthorized by law, it is not clear whether they could obtain monetary relief in the Claims Court under the Tucker * See sources cited supra notes 87 & 88. *° 634 12d 521 (Ct. Cl. 1980), cert. denied, 451 U.S. 937 (1981). * Jd. at 526 n.8. 47a Act. Whether or not a Tucker Act claim will lie de- pends upon facts not yet ascertained and the nature of the congressional ard constitutional grants of power to these defendants to make military acquisi- tions.” The defendants’ allegedly unauthorized de- * Judge Scalia’s dissent is largely in agreement with these principles; it relies on Larson v. Domestic & Foreign Corp., 337 U.S. 682, 696-705 (1949), which held that a challenge to the actions of a government officer asserting either (1) that the actions were “not within the officer’s statutory powers,” or (2) that those statutory “powers, or their exercise in the particular case, are constitutionally void” need not be brought under the Tucker Act. 337 U.S. at 702. However, although promising a “walk to the statutes and regulations and some hard thought,” he never considers whether there exists any statutory authorization for the kind of taking alleged to have occurred here, or whether that authorization—if there is any—would be consistent with the Constitution. Nowhere in the entire dissenting opinion is there an attempt to show that the Secretary of Defense, Secretary of State, or the Chief of the United States Army Corps of Engineers has statutory authority or constitutional power to move troops in on a United States citizen’s property anywhere, conduc? life threat- ening military exercises, destroy the existing business enter- prise, and thus effectively seize his property—all without notice to the citizen or the filing of any court or administrative action. Although both of these issues were contested before the district court and again on appeal, the dissent is willing to assume, sub silentio, the requisite statutory and constitu- tional authority. That omission is particularly troublesome given the dis- sent’s blanket sssertion that “there is no violation of consti- tutional rights so long as just compensation is available.” (Dissenting Opinion of Scalia, J., at 3). Apparently the dis- sent endorses monetary ratification of unconstitutional and unauthorized governmental! activities with no opportunity to correct the constitutional breach through the traditional! in- junctive powers of the courts. Under this approach the gov- ernment can deprive a citizen of any possession, and the | il 48a struction of plaintiffs’ $13 million investment may or may not be in substantial compliance with the de- fendants’ lawful powers, and it is impossible for this court at this stage of the case to determine that it is.” More importantly, however, even if the district court finds that the defendants acted wrongfully (al- though pursuant to constitutional and statutory au- thority to take property in a foreign country), trig- gering the availability of monetary relief in the Claims Court for unauthorized seizures of private property by United States officials, injunctive relief might still be a proper remedy for the stated claims. Injunctive relief is available when the owner proves that government officials acted wrongfully in expro- priating his property, and money damages would not citizen cannot challenge the government’s right to do it, but only question how much the citizen is to receive for losing his property. This cannot be the law. On any type of taking by the gov- ernment, the citizen can always raise the threshold question, whether successfully or unsuccessfully, of the government’s fundamental right to take his property. Then, and then only, if the government establishes its constitutional right to seize the property of the citizen, is the citizen relegated to the second question, i.e., how much should the plaintiff be com- pensated for the property which was taken. The fundamental first question of constitutional! right to take cannot be evaded by offering “just compensation.” * Nor may Congress have intended so to tax the public coffers under the Tucker Act for such unauthorized activities. Congress has provided that acquisition of private property is beyond the authority of military officials unless it is ex- pressly permitted by law. “No military department may acquire property not owned by the United States unless the acquisition is expressly authorized by law.” 10 U.S.C. § 2676 (1982). 49a justly redress the plaintiff’s injury, despite an asser- tion that the Tucker Act would provide compensation. The dissenting interpretation of the Tucker Act offered by Judge Scalia has been repeatedly rejected by this court. In Dronenburg v. Zech," a member of the armed forces sought to overturn his discharge by challenging the constitutionality of the regulations wnder which he had been discharged. The govern- ment argued that the action was essentially one for money damages (i.e., back pay) which was precluded by the assertedly exclusive Tucker Act remedy in the Claims Court, In an opinion by Judge Bork, joined unreservedly by Judge Scalia, the court squarely re- jected this contention, holding that “[t]he United States and its officers .. . are [not] insulated from suit for injunctive relief by the doctrine of sovereign immunity,” despite the asserted availability of a Tucker Act remedy.” The court reasoned that 5 U.S.C. § 702 “was intended to waive the sovereign immunity of the United States in suits for injunc- tive relief.” Although the court recognized that 5 U.S.C. § 702 might retain the defense of sovereign immunity when another statute “implicitly forecloses judicial relief,” °° the Tucker Act was deemed not to * No. 82-2304 slip op. (D.C. Cir. 17 Aug. 1984). * Id. at 5 (quoting Schnapper v. Foley, 667 F.2d 102, 107 (D.C. Cir. 1981), cert. denied, 455 U.S. 948 (1982) ). * Id. at 6. It is generally accepted that this waiver extends to suits brought under 28 U.S.C. § 1331 (1982), one of the jurisdictional bases asserted in this suit. See Dronenburg, slip op. at 6 n.3 and authorities cited therein. 10° See Droneburg, slip op. at 6 (quoting S. Rep. No. 996, 94th Cong., 2d Sess. 7-8 (1976) ). 50a be such a statute.’” Although the legislative history, quoted by this court noted that the Tucker Act did preclude “specific relief’ for “government contracts” actions, limitations on the district courts’ powers to issue injunctions to redress allegedly illegal govern- mental conduct infringing core constitutional rights were, by necessary implication, not so limited.*” The decision in Dronenburg controls the case at hand. Even aside from the issue of whether 5 U.S.C. § 702 waives the defense of sovereign immunity, the Tucker Act’s “implicit limitation” on suits for spe- cific relief has never been a complete bar to injunc- tive remedies. The Supreme Court has never ex- pressly held that an unlawful taking which could not be justiy compensated by monetary damages is un- redressable due to the bar of sovereign immunity. Cases as ancient and venerable as United States v. 101 See also Megapulse, Inc. v. Lewis, 672 F.2d 959, 971 (D.C. Cir. 1982). 102 The Tucker Act confers jurisdiction over claims against the United States “founded .. . upon the Constitution, or any Act of Congress, ... or upon any .. . contract with the United States,” 28 U.S.C. § 1491 (1982). Just as it might be argued that the plaintiffs in Dronenburg and Megapulse did not assert traditional contract claims within the scope of § 1491, (See Megapulse, Inc. v. Lewis, 672 F.2d at 968, 971 (1982)), the case at hand is not one seeking “just compensation” under the fifth amendment or otherwise “founded upon” the Con- stitution within the ordinary meaning of § 1491. Rather, it asserts that there is no underlying authority for the taking in either the Constitution or statutes of the United States. The claim thus clearly “raises under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1831 (1982). Com- pare Dronenburg (D.C. Cir. 17 Aug. 1984) (asserted viola- tion of constitutional privacy and equal protection rights not a claim subject to exclusive jurisdiction of Claims Court). 5la Lee,’ suggest precisely the opposite. That case in- volved an action for ejectment seeking to redress the allegedly illegal and unauthorized occupation of the plaintiff’s property, which had been seized by the Government under pretext of nonpayment of taxes. After the jury returned a verdict that the seizure had been illegal, the Supreme Court refused to hold that the suit was barred by sovereign immunity. Re- buffing the argument that this doctrine was an abso- lute bar to the ejectment of the defendants, the court stated : It is not pretended, as the case now stands, that the President had any lawful authority to do this, or that the legislative body could give him any such authority except upon payment of just compensation. The defense stands here solely upon the absolute immunity from judicial inquiry of every one who asserts authority from the executive branch of the government, however clear it may be made that the executive possessed no such power. Not only no such power is given, but it 1s absolutely prohibited, both to the execu- tive and the legislative, to deprive any one of life, liberty, or property without due process of law, or to take private property without just compensation. Shall it be said, in the face of all this, and of the acknowledged right of the judiciary to decide in proper cases, statutes which have been passed by both branches of Congress and approved by the President to be unconstitutional, that the courts cannot give a remedy when the citizen has 103 106 U.S. 196 (1882). 52a been deprived of his property by force, his estate seized and converted to the use of the govern- ment without lawful authority, without process of law, and without compensation, because the President has ordered it and his officers are in possession? If such be the law of this country, it sanctions a tyranny which has no existence in the mon- archies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights. These principles were reaffirmed subsequently in Land v. Dollar,’ in which the Supreme Court disal- lowed any reliance on sovereign immunity when “the right to possession or enjoyment of property under general law is in issue, and. the defendants claim as officers or agents of the sovereign.” As long as the essential nature of the suit would neither deplete the public treasury nor impermissibly interfere with pub- lic administration, the Court specifically held that “where [public officials] unlawfully seize or hold a citizen’s real property or chattels, recoverable by ap- propriate action in law or equity, he is not relegated to the Court of Claims to recover a money judgment. The dominant interest of the sovereign is then on the side of the victim who may bring his possessory ac- tion to reclaim that which is wrongfully withheld.” ™ 104 Id. at 219-21 (emphasis added). With reference to tyran- nical “monarchies,” see Dissenting Opinion of Scalia, J., at 1n.1; compare I Samuel 8:7-18, 12:17. 105 330 U.S. 731 (1946). 106 Td. at 737. 107 Td. at 738. 53a Subsequent cases decided by the Supreme Court have interpreted United States v. Lee and Land v. Dollar to permit an injunction only where there was a claim “that the taking of the property or the injury to it was not the action of the sovereign because un- constitutional or beyond the officer’s statutory pow- ers.” Yet these cases did not dispute the bedrock principle of United States v. Lee that “it is absolutely prohibited . . . to deprive any one of life, liberty, or property without due process of law, or to take pri- vate property without just compensation.” *” Larson v. Domestic & Foreign Corp. relied on Lee in holding that sovereign immunity does not bar specific relief “where there is a claim that the holding constitutes an unconstitutional taking of property without just compensation.” “° Thus, the availability of a suit for just compensation will (if the taking was constitu- tionally authorized and within the scope of the offi- cial’s authority) quiet contentions that a taking is a violation of the fifth amendment.’* United States v. Lee was distinguishable under this principle, that there was no tribunal where the plaintiff could seek just compensation.” , But neither Larson nor any case since has over- ruled Lee by holding that injunctive relief against the United States is beyond the power of the courts when just compensation for the seized property could not 108 Tarson v. Domestic & Foreign Corp., 337 U.S. 682, 698 (1949) ; Malone v. Bowdoin, 390 U.S. 643 (1963). 109 106 U.S. at 220. 110 337 U.S. at 697. 111 Jd, at 697 n.18. 112 Malone v. Bowdoin, 369 U.S. 648, 647 (1962) ; Larson v. Domestic & Foreign Corp., 337 U.S. at 697 n.17. 54a be obtained in the alternate tribunal. In Hurley v. Kincaid,’ cited with approval in Larson, the Su- preme Court held that governmental action taken pursuant to an otherwise constitutionaily valid stat- ute by officers acting wrongfully, although within the scope of their authority, could be authorized when the remedy at law was unclear or grossly inadequate: “[A] court of equity acts with caution, and only upon a clear showing that its intervention is necessary in order to prevent an irreparable injury.”"* The Court found that relief inapplicable since a sufficient showing was not made." It is clear, therefore, that when the monetary com- pensation available through the Tucker Act remedy is so inadequate that the plaintiff would not-be justly compensated for the seizure of his property by the United States, an injunctive remedy is not barred by sovereign immunity."° For example, in Youngstown —————— | 118 285 U.S. 95 (1982). "4 Id. at 104 n.8 (citations omitted). 115 Jd. 46 In fashioning equitable remedies, the issue of whether damages will adequately compensate plaintiffs for a claimed unconstitutional seizure of private property by unauthorized government officials is not equivalent to the fifth amend- ment’s provision that the government lawfully may expro- priate property for just compensation. The fifth amend- ment’s requirement of just compensation for takings defines the government’s lawful powers of eminent domain; it does not embody a remedial principle applicable in equity that monetary damages are fully adequate to redress injuries to real property. The Court’s opinion in Larson amply recognizes this principle. There are limits, of course [to the reluctance of courts to invoke compulsive powers to restrain the Government 55a Sheet & Tube Co. v. Sawyer, the Court declined to accept the government’s contention that injunctive relief was unnecessary since a damages remedy was available through the Tucker Act; instead, the Court held that even if such a remedy were available, “seizure and governmental operation of these going businesses were bound to result in many present and future damages of such nature as to be difficult, if not incapable, of measurement.” *” Other decisions since Larson assume either explicitly or implicitly that the adequacy of the Tucker Act remedy is an issue; and that the gross inadequacy of money dam- ages could justify injunctive relief when money alone would not constitute just compensation.” from affecting disputed property]. Under our constitu- tional system, certain rights are protected against gov- ernmental action and, if such rights are infringed by the actions of officers of the Government, it ts proper that the courts have the power to grant relief against those actions. But in the absence of a claim of constitutional limitation, the necessity of permitting the Government to carry out its functions unhampered by direct judicial intervention outweighs the possible disadvantage to the citizen in being relegated to the recovery of money dam- ages after the event. 337 U.S. at 704 (emphasis added). Thus, a statute may be challenged as unconstitutional, and an injunction issued, when the compensation available under the Tucker Act would not rise to the level of just compensation required by the fifth amendment. Such a claim would fall within Larson’s excep- tion permitting injunctive relief if “the exercise fof statutory powers] in the particular case . . . [is] constitutionally void.” Id. at 702. 117 343 U.S. at 585. 118 See Ruckelshaus v. Monsanto County, 104 S. Ct. 2862 (1984) (“[A]n adequate remedy for the taking exists under the Tucker Act”) ; Dugan v. Rank, 372 U.S. 609, 623-24 (1963) 56a From the earliest times, courts in equity have con- sidered an injury to real property to be irremediable at law."® The uniqueness of land typically makes damages an inadequate remedy. Equity will not hesi- tate to enjoin an unconstitutional taking and even a repeated trespass or other nuisance to land.” In the instant case, the plaintiffs have alleged that the oc- cupied land is the only available land in Honduras capable of sustaining their cattle ranch and other business operations, due to the topography and trans- portation routes of Honduras.’ Ramirez’s claimed loss of a unique parcel of land may prove to be im- measurable in monetary terms and irremediable at law. If the gap between such an injury and the mone- tary compensation available through a Tucker Act remedy is so great that an unconscionable injustice would be worked, effectively denying just compensa- tion, then injunctive relief can be appropriate. (rejecting arguments that damages were inadequate since they could not be reasonably ascertained) ; Malone v. Bowdoin, 369 U.S. 648, 648 (1962) (not reaching the issue, since the plaintiff failed to assert that just compensation was unavail- able) ; cf. Larson v. Domestic & Foreign Corp., 337 U.S. 682 (adequacy of Tucker Act remedy for asserted wrongful re- tention of coal not questioned, since fungible personalty not ordinarily the subject of extraordinary injunctive relief). 119 See, e.g., Belusko v. Phillips Petroleum Co., 198 F. Supp. 140 (S.D. Ill. 1961), af’d, 308 F.2d 882 (7th Cir. 1962), cert. denied, 372 U.S. 980 (1963). 120 See Youngstown Sheet & Tube Co. v. Sawyer, 348 U.S. 579 (1952) ; Erhardt v. Boaro, 118 U.S. 587 (1885); Lucy Webb Hayes Nat'l Training School for Deaconesses & Mis- sionaries v. Geoghegan, 281 F. Supp. 116 (D.D.C. 1967); 6A J. SACKMAN, NICHOLS’ THE LAW OF EMINENT DOMAIN § 28.38 (3d ed. 1981). 121 See supra note 15. 57a Moreover, the loss of Ramirez’s business operations in Honduras, if proved, may fall within another cate- gory of injuries that equity considers irremediable at law. In Semmes Motor Ine. v. Ford Motor Co., Judge Friendly granted equitable relief for the threatened loss of an individual’s company, noting that the owner wanted to run his business, not to retire on a damages award. Ramirez alleges that he has devoted more than 20 years of his life to building and personally managing his business in Honduras. The district court might find that the loss of a life’s work would not be adequately remediable at law. Finally, the increased risk to plaintiff Ramirez’s personal safety allegedly due to defendants’ unconsti- tutional conduct may not be remediable by damages. Life-threatening conditions and loss of personal se- curity created by constitutional violations are not re- dressed by payments of money. Depending upon the facts, the district court might properly find that any remedy at law would: be inadequate to correct the constitutional violations alleged here. We find it difficult to believe that a United States citizen would be banished to a damages remedy in the Claims Court if he were the victim of a similar ongoing violation of his constitutional rights within the United States. The contention that the plaintiffs really be- long in the Claims Court is an empty argument. Ramirez has a right to be in the district court, where he has a right to ask for injunctive and declaratory relief. 122 499 F.2d 1197 (2d Cir. 1980) (Judge Friendly found that monetary relief would not be adequate and that injunc- tive relief was proper to prevent the loss of a 20-year-old business managed by the owners). 58a 2. Balancing the Equities and Prudential Considerations Not only could the district court conclude that monetary relief would be inadequate under facts con- sistent with the complaint, but the court might also find that a balancing of the equities favors relief. Plaintiffs’ complaint states claims for which equitable relief cannot be declared improper on a balancing of the equities and prudential considerations prior to any factfinding by the district court. Although evaluation of the propriety of remedies must await factual devel- opment of the case on the merits,” the plaintiffs’ complaint and the related declarations do not support a conclusion that injunctive or declaratory relief are foreclosed. If the plaintiffs prevailed on the merits of their claims, the equities favoring relief might be quite powerful. Plaintiff Ramirez claims an unconstitu- tional intrusion onto his private property by military officials of the United States, which threatens the loss of his land, his 20-year-old investment, his labors, and even his life. Plaintiffs’ case is not a routine trespass action or a piddling boundary dispute; it is a claim for relief from a deprivation of land, business, and personal safety caused by an unconstitutional invasion by officials of the United States. The federal Judi- ciary has not hesitated to grant equitable relief to individuals suffering similar injury both at home and abroad due to constitutional violations by government officials.’** 123 See Powell v. McCormack, 395 U.S. 486, 550 (1969). 124 See, e.g., Kent v. Dulles, 357 U.S. 116, 129-30 (1958) ; Reid v. Covert, 354 U.S. 1 (1957) ; Youngstown Sheet & Tube © Co. v. Sawyer, 343 U.S. 579 (1952). While Judge Scalia’s dis- 59a a. Location of the Land The location of the plaintiffs land in a foreign coun- try does not prevent the district court from granting relief. Courts often properly issue equitable decrees involving property outside the jurisdiction of the court.’ Where, as here, the court adjudicating the controversy has personal jurisdiction over the defend- ants, the extraterritorial nature of the property in- volved in the litigation is no bar to equitable relief. Under such circumstances, courts in equity do not hesitate to order the defendants, who are present be- fore the court, to do or refrain from doing something directly involving foreign property. As the Supreme Court stated in Phelps v. McDonald: sent relies principally on trying to characterize this case as a land title dispute, to which Honduran law would apply to Hon- duran land, at one point he does venture to go further to con- front the alleged facts that the actions of United States officials have not only been property taking but property destroying and life threatening, Judge Scalia’s answer is: “As for the risk to plaintiff Ramirez’s security: That is not a consequence of the taking, but of the plaintiff’s refusal to acquiesce in it.” (Dissenting Opinion of Scalia, J., at 29). If this is a fair characterization of the government’s position, then the govern- ment’s argument boils down to: “How dare the citizen’s nose get in the way of the governmental fist?” As long as the plaintiffs’ complaint plausibly alleges unconstitutional or un- authorized actions by governmental defendants, we think it ludricrous to suggest that the threat to plaintiff Ramirez’s security is of his own making because he insists upon asserting his United States constitutional rights—against governmental actions which have never sought nor received the imprimatur of any court, anywhere. 12511 C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PRO- CEDURE §§ 2942-45 (1973). See E. Messner, The Jurisdiction of a Court of Equity Over Persons to Compel the Doing of Acts, 14 MINN. L. REV. 494, 500 (1930). 60a Where the necessary parties are before a court of equity, it is immaterial] that the res of the con- troversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribu- nal. It has the power to compel the defendant to do all things necessary, according to the lex loci rei sitae, which he could do voluntarily, to give full effect to the decree against him. Without regard to the situation of the subject- matter, such courts consider the equities between the parties, and decree in personam ... .™ The local action rule of common law as applied to complaints seeking money damages for trespass to land has no bearing on this case. Second, courts are specially willing to grant equi- table relief involving property outside the court’s jur- isdiction when the law of the court’s jurisdiction governs the controversy instead of the law of the situs." Here the plaintiffs’ causes of action against the United States officials named as defendants arise under United States laws and the United States Con- stitution, As such, federal law provides the rules of decision for plaintiffs’ claim. If Honduran law be- comes relevant to the dispute, it cannot operate of its own force in this controversy but must apply only to the extent the federal law adopts it or deems it rele- vant. The occasional deference in equity to the courts of the situs state in actions involving trespass brought under the situs state’s law is inapposite here. Third, courts will not hesitate to issue equitable decrees involving foreign land when there is no com- pelling reason to require that relief be sought in the 12899 U.S. (9 Otto) 298, 8308 (1879) (emphasis added). 127 See sources cited supra note 125. 6la territory of the situs property.” It is difficult to con- ceive of any plausible reason why the United States plaintiffs should be forced to bring their claims in the foreign courts of Honduras. Plaintiff Ramirez, a United States citizen, has alleged violations of his constitutional rights by officers of the United States. A requirement that such a constitutional claim be brought in Honduran courts would be a gross distor- tion of the doctrine of equitable discretion. b. Honduran Law It cannot be concluded on the basis of the plaintiffs’ complaint that equitable relief would impugn foreign law or determine the legality of the actions, if any, of the Honduran military under Honduran law. An equitable decree would not challenge the sovereignty of Honduras because it would only adjudicate the rights of plaintiffs under United States law vis-a-vis the United States officials named as defendants. Plaintiffs do not request relief against any Honduran actors. Furthermore, according to the plaintiffs’ pleadings, there has not been any act by the Honduran state that could be impugned by an equitable decree, since Honduras has not claimed ownership rights to Ramirez’s ranch. In addition, the extent to which Honduran military forces are participating in the military training exercises is a controverted fact and cannot be considered in determining whether equi- table relief is barred and dismissal is proper at this time. Even if the plaintiffs’ set of facts could be interpreted to imply at least some limited degree of complicity by Honduran military officials in the al- legedly unconstitutional seziure of plaintiffs’ ranch, the mere fact of the defendants’ commingling United 128 Td. 62a States with foreign troops or the acquiescence of for- eign military officers cannot deprive this court of its authority to correct constitutional violations by means of properly tailored equitable relief against United States officers. Any contention to the contrary is sim- ply not consistent with the doctrine of equitable dis- cretion.’” c. Separation of Powers It is not necessary to linger over the long line of cases that permit judicial relief for unlawful or un- constitutional action by officials of the Executive Branch of the government, including relief against unlawful actions taken in the context of foreign and military affairs." As Chief Justice Taney stated in Mitchell v. Harmony, the foreign affairs context of Executive action cannot shield unlawful conduct from judicial inquiry. “[A United States officer’s] distance from home and the duties in which he is engaged can- not enlarge his power over property of a citizen, nor give to him, in that respect, any authority which he would « ', under similar circumstances, possess at home.” ** Those words of the Supreme Court are ap- plicable—squarely, without distinction or modifica- tion—to plaintiff Ramirez’s case here. That unlawful and unauthorized military activity is remediable by equitable relief has been reaffirmed 12° See, e.g., United States v. Caltex (Philippines), Inc., 344 U.S. 149 (1952) (adjudicating a claim that United States mili- tary officials unlawfully destroyed private property in the Philippines) . 1 See Reid v. Covert, 354 U.S. 1 (1957); Youngstown Sheet & Tube Co. v. Sawyer, 348 U.S. 579 (1952) ; Duncan v. Kahanamoku, 827 U.S. 304 (1946). 54 U.S. (13 How.) 115, 183 (1852) (emphasis added). 63a by the Court on numerous occasions. In Gilligan v. Morgan the Court noted that separation of powers concerns cannot prevent military officers from being accountable for specific unlawful conduct “whether by way of damages or injunctive relief.” ‘* And in upholding an injunction against the Brigadier Gen- eral of the Texas National Guard for unlawfui inter- ference with private property, the Court stated: Whether or not the injured party is entitled to an injunction will depend upon equitable prin- ciples: upon the nature of the right invaded and the adequacy of the remedy at law. If the court finds that the limits of executive authority have been transgressed, and that in view of the char- acter of the injury equitable relief by injunction is essential in order to afford the protection to which the injured party is entitled, it can not be said that the judicial power is fettered because the injury is attributable to a military order.™ While Laird v. Tatum counsels against continuous judicial monitoring of Executive policymaking, the Court there stated that it is the role of the courts within the constitutional scheme to adjudicate \and remedy claims of actual injury resulting from specific, unlawful Executive action.“ Such is the nature of the claim presented here."” 182 413 U.S. 1, 11-12 (1978). 188 Sterling v. Constantin, 287 U.S. 378, 403 (1932) (fed- eralism concerns and the context of executive action do not bar relief). 184 408 U.S. 1, 15-16 (1972). 185 Tt is instructive to compare Judge Scalia’s doctrine of equitable discretion with that suggested in the Youngstown 64a Furthermore, the plaintiffs’ set of facts do not show that the Executive’s conduct of foreign affairs would be impaired by an equitable decree that required the defendants to abide by United States constitutional and statutory requirements. Plaintiffs do not seek to prohibit the Regional Military Training Center from operating in Honduras. They merely ask the federal court to prevent the United States defendants from case. In Youngstown the Supreme Court permitted the plain- tiffs to attempt to establish an equitable basis for the requested injunction, primarily through a showing that money damages, if available, wouid not compensate for the injury. 343 U.S. at 584-85; Id. at 595-96 (Frankfurter, J., concurring). None of the Justices who found the seizure unconstitutional sug- gested that an inadequate damage remedy could substitute for injunctive relief if constitutional authority for the taking was not extant. In this case, however, Judge Scalia, in dissent, would deny the plaintiffs even an opportunity to show that damages could not fully compensate for their allleged loss; he merely assumes, without any factual foundation whatso- ever, that any loss which might be proved is compensable. Apparently this does not trouble the dissent because it asserts that money damages are always sufficient to remedy an unconstitutional taking, and that, therefore, an “injunc- tion is not available to prevent a taking by the United States” —presumably even one which the United States has no consti- tutional or statutory authority to make. Dissenting Opinion of Scalia, J., at 29 (discussing Larson). If this were the law, the Supreme Court had nothing to de- cide in Youngstown, since the authority of the President to make the seizure would have been an irrelevant issue, the only question remaining being the extent of money damages to be paid for the taking. Preferring to ignore what it can- not overrule, the dissent thus takes a position even more ex- treme than that propounded by the dissenters in Youngstown who were willing to assume that the Government “was not immune from judicial restraint and that the plaintiffs are entitled to equitable relief if we find that the ... [taking] is unconstitutional.” 348 U.S. at 678 (Vinson, C.J., dissenting) . 65a running military training operations on their prop- erty, which has not been lawfully expropriated. Care- fully tailored equitable relief might correct the unlaw- ful condition without challenging the United States’ relations with any Central American country or its military policies in the region. Separation of powers considerations do not fell the plaintiffs’ complaint. d. Compliance and Monitoring The suggestion that the enforcement of any equi- table decree would present insurmountable problems of compliance and judicial monitoring rests entirely on wild speculation. It must be presumed that the de- fendants, all officials of the United States government present in Washington, D.C., will obey an order of the district court. Furthermore, there is simply no factual basis in the plaintiffs’ complaint for conclud- ing that an equitable decree would involve this court in numerous or even any monitoring problems. Courts do not monitor compliance with decrees by personal, on-site inspections. Even if the alleged violations were occurring in the corridors of the Pentagon in- stead of in Honduras, the district court would not monitor its decree by personally inspecting the af- fected area. If a dispute arises over compliance with any remedial decree, the parties can introduce evi- dence in the district court to establish whether a vio- lation in fact has occurred. This is the only method to determine a violation of a decree of which we are aware; it is a method universally used no matter where any acts occur or property is located. It is absurd to suggest on the basis of the plaintiffs’ com- plaint that judicial monitoring of relief would be so 66a problematic that adjudication of the plaintiffs’ con- stitutional claims is barred.” 136 Judge Scalia epitomizes the weakness of the govern- ment’s position when he sums up his dissenting opinion argu- ment against equitable relief: [1] “Any system that would countenance judicial interfer- ence in military operations abroad’”—are the United States military when they operate abroad never subject to the courts at the behest of United States citizens? [2] “for a reason that simultaneously impugns the integrity and fairness of a friendly nation”—a point never raised directly or by implication by the plaintiffs here. No accusa- tion has been levied nor redress asked in U.S. courts against the Honduran government or any official thereof. Assuming that a seizure has occurred, even the Honduran’s government’s failure, to date, to make a lawful expropriation and pay due compensation to the plaintiffs could be easily explained as the Honduran government’s viewing this whole operation as a United States affair with the United States obligated to com- pensate its own citizen. [3] “at the instance of a plaintiff who has not sought tradi- tional judicial relief in the country where the real estate in question is located”—again, no complaint has been levied by the plaintiff against the Honduran government or any official ; further, this is not a piddling land title dispute; and finally, regarding a dispute between a United States citizen and his own government, “traditional judicial relief” has never been in Honduran courts. [4] “and who in any event has a claim for money damages in the courts of this country”—existence of monetary damages, if they do exist in this case, cannot bar equitable relief, as Judges Bork and Scalia have so recently stated. Dronenburg v. Zech, No. 82-2304 slip op. (D.C. Cir. 17 Aug. 1984). In his elaboration of these points Judge Scalia makes much of the third, saying: “A further obstacle to issuance [of an injunction] is the fact that they have made no effort .. . to obtain protection in the ordinary quarter from the trespass of which they complain—the courts of Honduras.” Dissent- ing Opinion of Scalia, J., at 27-28. This emphasizes the evasive 67a B. Declaratory Relief The plaintiffs have also succeeded in stating a claim for declaratory relief sufficient to withstand dismissal under Rule 12(b)(6). The express purpose of the Declaratory Judgment Act was to create a milder, less coercive form of relief than the injunctive remedy.*** Although in some contexts, a declaratory judgment may have the same adverse effect on the de- fendants and the public as injunctive relief,’* in most situations a declaratory judgment is less intrusive than a specific injunctive order.’ Such is the case here. In assessing the propriety of declaratory relief, the equities in favor of granting the plaintiffs relief for constitutional violations remain equally strong, while any prudential considerations that may detract from the propriety of injunctive relief on the plain- tiffs’ asserted facts are even weaker. A declaration of the plaintiffs’ rights could provide the defendants with options for compliance that a specific injunctive order might not. If the district court declared that the defendants’ occupation and nature of the defense relied on by the government brief and argument, which Judge Scalia supports. “The trespass of which they complain” comes from the United States Army. Relief from this particular trespass, and these particular tres- passers, would not ordinarily be found in “the courts of Honduras.” 18728 U.S.C. § 2201 (1982); E. BORCHARD, DECLARATORY JUDGMENTS 3-15 (2d ed. 1941) ; 10A C. WRIGHT & [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0151%3A2. Public record. Not legal advice.