Doe, Atamirzayeva, and Fallujah: When Stealth Overruling Produces Incoherent Doctrine

Thanks to the irreplaceable Bobby Chesney, I've had a chance to read through last month's decision by the Court of Federal Claims throwing out a takings claim (among others) by an Iraqi citizen whose house was occupied by the Marines (who razed a wall around the house) during the Battle of Fallujah in 2004. The opinion itself is worth a read, but, at least with respect to the takings claim, the gist of it is two-fold: (1) the takings claim is not justiciable because it arose in the context of active combat operations by the armed forces, and is therefore covered by the so-called "military necessity" doctrine; and (2) in the alternative, because the plaintiff is a non-citizen with no significant contacts to the United States, he lacks standing to enforce the Takings Clause against the United States.

In this post, I want to skip over the first holding, not because it isn't interesting or controversial, but because I think it follows from the precedents cited by Judge Miller (even if those precedents are themselves troubling, for reasons I've written about before). Rather, I want to focus on the second holding, i.e., that a non-citizen outside the territorial United States must have substantial contacts with the United States in order to have standing to enforce constitutional rights.

The standing holding isn't new--it follows (as the Court of Federal Claims explains) from a 2008 Federal Circuit decision, Atamirzayeva v. United States. Part of what makes Atamirzayeva so remarkable is that the court there articulated this "contacts" requirement, rather than simply hold that non-citizens outside the territorial United States cannot enforce the Takings Clause. The latter route was foreclosed by a 1953 Court of Claims decision, Turney v. United States, that had allowed such a claim to go forward. As the Federal Circuit (which is bound to follow pre-1982 Court of Claims decisions) explained in Atamirzayeva,

The Philippine corporation that was the claimant in Turney had three significant connections to the United States. First, the corporation had been formed by two United States citizens. Second, the corporation received its ownership interest in the surplus property by assignment from those United States citizens. Third, after liquidation of the corporation, a United States citizen was appointed as the liquidating trustee and the plaintiff in the Court of Claims action. Ms. Atamirzayeva, by contrast, has not pleaded any relationship, business or otherwise, with the United States. As pleaded, her only connections with the United States are that her cafeteria was adjacent to the U.S. Embassy and that embassy officials directed the seizure. Her relationship with the United States is therefore not analogous to the relationship between the claimant corporation and the United States in Turney.

Leaving aside the fact that, as the Federal Circuit itself recognized, "the court in Turney did not state that the plaintiff was required to demonstrate any connection with the United States," what's particularly distressing about Atamirzayeva is how it has since been understood, i.e., as requiring a showing of substantial contacts to the United States in order to have standing to enforce constitutional rights. Indeed, although the Atamirzayeva court did not itself use the word "standing," the Court of Federal Claims in Doe used it repeatedly, ultimately concluding that no standing exists because of the lack of contacts.

In other words, rather than go en banc and overrule Turney, the Federal Circuit in Atamirzayeva molded onto Turney a "standing" requirement that may render the original holding largely unenforceable (let alone other cases that have recognized limited circumstances in which constitutional provisions can be enforced by non-citizens outside the United States). If this isn't stealth overruling (to steal Barry Friedman's term), I'm not sure what is.

More than stealth overruling, though, this approach makes no doctrinal sense. It's black-letter law that, to make out a case for Article III standing, plaintiffs must show injury-in-fact, causation, and redressability. Unless Doe's claim is patently frivolous (and it's hard to see how it is--clearly, the Court of Federal Claims didn't think so), it seems that all three prongs are easily satisfied here. That Doe might lose on the merits (e.g., if the courts ultimately conclude that the Takings Clause doesn't apply to the property of non-citizens located outside the territorial United States) is beside the point in ascertaining whether he has standing to bring the suit in the first place. And if the Federal Circuit is increasingly moving toward a view of "standing" that turns on the merits of a plaintiff's claim, that could have enormous (and unintended) consequences in a wide run of cases. At the very least, it deflects attention from the true issue, which is when, if ever, the Constitution constrains the conduct of our government vis-a-vis non-citizens abroad.

Reasonable people will surely disagree on the answer to that question, but at least that's the right question, as opposed to the one articulated in Atamirzayeva and followed in Doe. And so, even if the result in Doe is correct (which it may well be, given the first holding and the fact that the standing discussion was in the alternative), the reasoning is yet further proof of the dangers of stealth overruling--that it sometimes produces new understandings of doctrine that are analytically incoherent, rather than taking the underlying question on its face.