844 F.

2d 195
56 USLW 2608

Mark A. SMITH, Former United States Prisoner of War;

Melvin
C. McIntire, Sergeant First Class, United States Army; Anne
M. Hart, Wife of service member listed as missing in action;
Dorothy M. Shelton, Wife of existing Prisoner of War;
Kathryn Fanning, Wife of service member listed as missing in
action; Jerry L. Dennis, Brother of service member lost in
Southeast Asia, Plaintiffs- Appellees,
v.
Ronald REAGAN, President of the United States; Caspar
Weinberger, United States Secretary of Defense; George
Schultz, United States Secretary of State; James A.
Williams, General, Director of the United States Defense
Intelligence Agency; and each of their respective
predecessors and successors, in their official capacity,
Defendants-Appellants.
No. 87-1661.

United States Court of Appeals,

Fourth Circuit.
Argued Feb. 2, 1988.
Decided April 18, 1988.
Rehearing and Rehearing En Banc Denied May 18, 1988.

Mark Bernard Stern, Appellate Staff, Civil Div., Dept. of Justice (Richard
K. Willard, Asst. Atty. Gen., Samuel T. Curran, U.S. Atty., Michael Jay
Singer, Appellate Staff, Civil Div., Dept. of Justice, on brief), for
defendants-appellants.
Mark Louis Waple (Hutchens & Waple, on brief), for plaintiffs-appellees.
Before WILKINSON, Circuit Judge, BUTZNER, Senior Circuit Judge,
and ELLIS, United States District Judge for the Eastern District of

Virginia, sitting by designation.

WILKINSON, Circuit Judge:

This suit was brought under what has come to be known as the Hostage Act, 22
U.S.C. Sec. 1732 (1982). Plaintiffs sought a declaration that American
prisoners of the Vietnam War continue to be held in captivity by the
governments of Vietnam, Laos, and Cambodia, that those prisoners "enjoy the
full protection and benefit" of the Hostage Act, and "that the Defendants shall
comply" with the Act's requirements. They also sought a writ of mandamus
compelling the President to comply with the Hostage Act.

Defendants moved to dismiss the case for lack of subject matter jurisdiction,
contending that the suit raises a nonjusticiable political question. The district
court granted the motion with respect to the claim for mandamus, but denied it
with respect to the claim for declaratory relief. It then granted defendants'
motion for an interlocutory appeal. Because the suit raises a nonjusticiable
political question, and because the Hostage Act does not create a private right of
action, we reverse and remand with instructions to the district court to dismiss
this suit.

I.
3

In January, 1973, the United States entered into an agreement, generally known
as the Paris Accords, on ending the Vietnam War. This agreement provided for
the return of service personnel held captive by all parties to the conflict. The
Paris Accords also called for the parties to assist each other in obtaining a full
accounting of personnel missing in action.

Despite the formal end of the hostilities, however, and despite the signing of
the Paris Accords, the families of American service personnel still listed as
missing in action after the Vietnam War (MIAs) continue to live with the
possibility that these men remain alive and in captivity in a foreign land. The
families of some men listed as killed in action have likewise been haunted by
reports that loved ones whom they thought dead remain alive and captive.

These families have labored for years to obtain an accounting of missing

servicemen and the release of any who may remain captive. The National
League of Families has monitored negotiations on this issue between the United
States and the governments of southeast Asia. It has endeavored to focus public
attention on the problem and, in some cases, has worked with the various

governments in attempting to resolve it.

6

The efforts of the United States government to obtain an accounting began prior
to the fall of South Vietnam in 1975 and have continued since then. Those
efforts have been extensive. The POW/MIA Interagency Group, whose
members include State and Defense Department personnel, staff members of
the National Security Council, representatives of the Joint Chiefs of Staff, staff
members of the House and Senate Foreign Affairs and Foreign Relations
Committees, and members of the National League of Families, coordinates U.S.
efforts to secure an accounting of missing personnel and the release of any
personnel still in captivity. Congressional delegations and missions from the
Departments of Defense and State have met with the Vietnamese on this issue.
The United States Defense Intelligence Agency (DIA) evaluates reports of
POW/MIA sightings. Congress also oversees attempts to account for U.S.
personnel, both through committee hearings and through the efforts of the
House Task Force on American Prisoners & Missing in Southeast Asia.
The Hostage Act states, in pertinent part:

7
Whenever
it is made known to the President that any citizen of the United States has
been unjustly deprived of his liberty by or under the authority of any foreign
government, it shall be the duty of the President forthwith to demand of that
government the reasons of such imprisonment; and if it appears to be wrongful and
in violation of the rights of American citizenship, the President shall forthwith
demand the release of such citizen, and if the release so demanded is unreasonably
delayed or refused, the President shall use such means, not amounting to acts of war,
as he may think necessary and proper to obtain or effectuate the release ...
8

22 U.S.C. Sec. 1732.

This suit was brought under the Act by a former Army prisoner of the Vietnam
War and an active Army Sergeant, who were joined and ultimately replaced as
plaintiffs by relatives of American personnel lost or missing in southeast Asia.
It was brought on behalf of a class of "all living American Prisoners of the
[Vietnam War] currently being held in captivity by the foreign governments of
Vietnam, Cambodia, Laos or other foreign government" against the President,
the Secretaries of Defense and State, and the Director of the DIA. Plaintiffs
sought a writ of mandamus compelling defendants to comply with the terms of
the Hostage Act, and a declaration that the plaintiff class exists and enjoys the
protection of the Hostage Act.
Defendants argued that the suit poses a nonjusticiable political question and

10

11

Defendants argued that the suit poses a nonjusticiable political question and
moved to dismiss for lack of subject matter jurisdiction. The district court
granted the motion with respect to the mandamus claim, ruling that the claim
"directly involves foreign policy decisions and falls squarely under the category
of political questions ... which involve 'potential judicial interference with
executive discretion in the foreign affairs field' and which 'seek to dictate
foreign policy.' " Smith v. Reagan, 637 F.Supp. 964, 967 (E.D.N.C.1986).
The district court denied appellants' motion to dismiss the declaratory judgment
claim. The court held that the question whether the plaintiff class exists, and
whether its members are protected by the Constitution and the Hostage Act, did
not raise a nonjusticiable political question, but only a question of fact "arising
out of rights derived from the United States Constitution and law." Id. at 968.
When defendants moved the court to reconsider its judgment, the court
affirmed its earlier ruling, but granted defendants' motion to certify the court's
order for interlocutory appeal. Smith v. Reagan, 663 F.Supp. 692
(E.D.N.C.1987).

II.
12

Plaintiffs would have this court declare that they "enjoy the full protection and
benefit of [the Hostage Act] and further that the Defendants shall comply with
such statutory provisions." They thus ask the courts to determine whether
American service personnel remain in captivity in southeast Asia and to assess
the adequacy of the executive's efforts to secure the release of any who do.
Either course of action is fraught with peril for the judiciary. In order to grant
the relief requested, the courts would be asked to intrude in the conduct of
sensitive diplomatic negotiations. Furthermore, they would be asked to make
determinations of fact in an area where the judiciary lacks power to obtain
information, and in which it has neither expertise to evaluate the information
brought before it nor standards to guide its review. Finally, as different courts
address these issues, the judiciary may speak with multiple voices in an area
where it is imperative that the nation speak as one. These difficulties lead us to
conclude that this suit presents a nonjusticiable political question.

13

"In determining whether a question falls within [the political question]

category, the appropriateness under our system of government of attributing
finality to the action of the political departments and also the lack of
satisfactory criteria for a judicial determination are dominant considerations."
Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962)
(quoting Coleman v. Miller, 307 U.S. 433, 454-55, 59 S.Ct. 972, 982, 83 L.Ed.
1385 (1939)). The boundaries of the political question doctrine have never been
marked with precision, but the Supreme Court's discussion of the doctrine in

Baker v. Carr has provided much useful guidance. In Baker, the Court listed
several factors, the presence of any one of which may render an issue a
nonjusticiable political question. This case presents a textbook example of at
least two of those factors, a "textually demonstrable constitutional commitment
of the issue to a coordinate political department" and "a lack of judicially
discoverable and manageable standards for resolving it." Baker, 369 U.S. at
217, 82 S.Ct. at 710.
A.
14

Plaintiffs seek in this suit to investigate and evaluate the executive branch's
conduct of foreign policy, an area traditionally reserved to the political
branches and removed from judicial review. In Chicago & Southern Air Lines,
Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92
L.Ed. 568 (1948), the Supreme Court stated:

15 very nature of executive decisions as to foreign policy is political, not judicial.

[T]he
Such decisions are wholly confided by our Constitution to the political departments
of the government, Executive and Legislative. They are delicate, complex, and
involve large elements of prophecy. They are and should be undertaken only by
those directly responsible to the people whose welfare they advance or imperil. They
are decisions of a kind for which the Judiciary has neither aptitude, facilities nor
responsibility and which has long been held to belong in the domain of political
power not subject to judicial intrusion or inquiry.
16

See also Haig v. Agee, 453 U.S. 280, 292, 101 S.Ct. 2766, 2774, 69 L.Ed.2d
640 (1981); Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 72 S.Ct. 512,
518-19, 96 L.Ed. 586 (1952).

17

Not every suit that touches on foreign relations is beyond judicial cognizance.
Baker, 369 U.S. at 211, 82 S.Ct. at 706. A cause of action under the Hostage
Act, however, would inescapably involve courts in matters of the most delicate
diplomacy. A charge that a foreign government has "unjustly deprived" an
American citizen of liberty is likely to have far-reaching and unforeseeable
effects on the conduct of foreign relations. Similarly, the adequacy of actions
taken under the Hostage Act to secure the release of such a citizen is likely to
be difficult to assess and the success of those actions difficult to predict.
Congress therefore gave great discretion to the President in making, or
refraining from making, such a charge and in choosing the actions to be taken
after such a charge is made. The Act fails to define the term "unjustly
deprived," suggesting that "Congress seems to have contemplated that the
President would make a subjective judgment." Flynn v. Schultz, 748 F.2d 1186,

1193 (7th Cir.1984), cert. denied, 474 U.S. 830, 106 S.Ct. 94, 88 L.Ed.2d 77
(1985). It directs the President to take the actions he deems "necessary and
proper" after concluding that there has been an unjust deprivation of liberty.
The Act's vagueness suggests that Congress intended the President to exercise
broad discretion, and intended to foreclose "traditional judicial review" in this
area. Id. The courts, unschooled in "the delicacies of diplomatic negotiation
[and] the inevitable bargaining for the best solution of an international
conflict," Holtzman v. Schlesinger, 484 F.2d 1307, 1312 (2d Cir.1973), cert.
denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 (1974), must leave these
sensitive determinations where the text of the Constitution and the terms of the
Hostage Act both place them--with the political branches of our government.
18

Courts considering suits to compel executive action under the Hostage Act have
consistently held that the substance of such action is unreviewable. In Flynn,
the court did find that the Act creates a reviewable duty in the President to
inquire into allegations of the improper foreign imprisonment of an American
citizen. 748 F.2d at 1193. It went on to hold, however, that "[w]hile it might be
appropriate for a court to order such an inquiry ... review of the substance of the
inquiry and subsequent decision clearly presents a nonjusticiable political
question." Id. See also Redpath v. Kissinger, 415 F.Supp. 566, 568-69
(W.D.Tex.), aff'd, 545 F.2d 167 (5th Cir.1976). Plaintiffs do not allege that the
President has failed to look into allegations that American servicemen remain
captive in southeast Asia; indeed, their documentary evidence consists largely
of reports on MIAs compiled by the executive branch. Rather, plaintiffs ask the
courts to conduct an independent inquiry into the status of the servicemen. In so
doing, the courts would be undertaking a task which Congress has explicitly
assigned to the executive.

19

Plaintiffs would simply place too many actors on the diplomatic stage. The
Supreme Court noted in Baker that issues involving foreign relations often pose
political questions because, in part, they "uniquely demand single-voiced
statement of the Government's views." 369 U.S. at 211, 82 S.Ct. at 707. The
status of these servicemen has been the subject of negotiations between the
United States and the governments of southeast Asia for over a decade. It is
important that this country speak with a single, clear voice in these negotiations.
Pronouncements by the federal courts may differ sharply from those of the
executive, and might themselves not be consistent. Although this suit purports
to include within the class all living POWs and MIAs, we can hardly be certain
that a decision here would foreclose future adjudication of the issue by different
parties or on different theories. The resulting cacophony would necessarily
hamper United States negotiators. It might prove a significant hindrance to
diplomatic efforts to effectuate the release of any Americans who may still be

in captivity. These considerations combine to convince us that the issues

plaintiffs seek to litigate are so "vitally and intricately interwoven with
contemporaneous policies in regard to the conduct of foreign relations" as to be
"exclusively entrusted to the political branches of government [and] immune
from judicial inquiry or interference." Harisiades, 342 U.S. at 588-89, 72 S.Ct.
at 519.
B.
20

Any court disposed to entertain this action would encounter formidable

obstacles. The "lack of judicially discoverable and manageable standards for
resolving" the issues reinforces our view that this case presents a nonjusticiable
political question. Baker, 369 U.S. at 217, 82 S.Ct. at 710. Furthermore, the
courts face intractable difficulties in gathering relevant information, and lack
the expertise to evaluate what information would be put before them.

21

The Hostage Act is broad and open-ended. Neither the statutory language nor
the legislative history give any indication of the meaning of the term "unjustly
deprived," which triggers executive duties under the Act. See Flynn, 748 F.2d
at 1193. Once the President has concluded that an American citizen has been
"unjustly deprived" of liberty, he must determine whether the deprivation is
"wrongful" and whether release, once demanded, is "unreasonably delayed or
refused," and must "use such means, not amounting to acts of war, as he may
think necessary and proper to obtain or effectuate the release" of that citizen.
Each of these nebulous directives vests extraordinary discretion in the
executive. See Redpath, 415 F.Supp. at 569 ("official actions [contemplated by
the Act] are not ministerial, but are clearly of a diplomatic nature involving the
exercise of discretion by the Executive"). Accountability lies in oversight by
Congress or in criticism from the electorate, but not in the judgments of the
courts. The Hostage Act sets the terms of political debate, not the standards of
adjudication. The adversary process here is more political than litigious. See
Mikva & Neuman, The Hostage Crisis and the "Hostage Act," 49 U.Chi.L.Rev.
292, 341 (1982) (the Act gives the President "room for discretion" but his
actions are "subject to oversight by Congress").

22

The courts also lack the powers for the task which plaintiffs would have them
undertake. The political branches have worked for years, since the end of
American involvement in hostilities in southeast Asia, to obtain a full
accounting of missing Americans from foreign governments. The courts, which
lack even the limited tools of diplomatic leverage, are unlikely to be more
successful in obtaining information from those governments. Further, the courts
lack the expertise to evaluate what information would be laid before them.

Much of the evidence proffered by plaintiffs consists of intelligence reports,

with which courts are inexpert and unfamiliar. In the end, evaluation of this
information requires not so much the application of law as the exercise of
judgment. That judgment should be made by the political branches of our
government.
C.
23

This suit also raises the question of whether there exists the power to award
plaintiffs any meaningful remedy. A declaration that defendants "shall comply"
with the Hostage Act would be the functional equivalent of a writ of
mandamus. See Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n. 8
(D.C.Cir.1985) (where federal officers are defendants, declaratory relief is "the
practical equivalent of specific relief such as an injunction or mandamus, since
it must be presumed that federal officers will adhere to the law as declared by
the court"). The courts would be precluded from issuing such a declaration for
the same reasons which caused the district court to decline to issue a writ of
mandamus: such a declaration would "seek to dictate foreign policy." Smith v.
Reagan, 637 F.Supp. at 967. A declaration that the court had found, by a
preponderance of the evidence, that the plaintiff class exists would afford
plaintiffs little real relief. The judiciary cannot oversee the conduct of foreign
relations, and could not order the President to take specific action to obtain the
release of any American it declared to be the object of a wrongful detention.

24

The Act itself prescribes no remedy for presidential noncompliance and courts
would be hard-pressed to devise their own. Holding the President in contempt
for insufficient efforts on behalf of Americans held abroad is hardly realistic.
Without the prospect of that sanction, the status of equitable relief becomes
little more than advisory. The remedy, as we have noted, must come through
the political process. Indeed, our polity assumes that elected officials will lend
their ears to sympathetic pleas and worthy causes.

III.
25

Even if the issues raised by this suit were justiciable, the suit must be
dismissed. The Hostage Act does not create an explicit private right of action,
and we decline to infer one.

26

In determining whether an otherwise silent federal statute implicitly creates a

private right of action, our "focal point" must be congressional intent.
Thompson v. Thompson, --- U.S. ----, 108 S.Ct. 513, 516, 98 L.Ed.2d 512
(1988). See also Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 444

U.S. 11, 24, 100 S.Ct. 242, 249, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v.
Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82
(1979). "[U]nless this congressional intent can be inferred from the language of
the statute, the statutory structure, or some other source, the essential predicate
for implication of a private remedy simply does not exist." Northwest Airlines,
Inc. v. Transport Workers Union of America, AFL-CIO, 451 U.S. 77, 94, 101
S.Ct. 1571, 1582, 67 L.Ed.2d 750 (1981). The regulation of access to the courts
is largely a legislative task, and one that courts should hesitate to undertake. For
this reason, implied rights of action are disfavored, and will not be found in the
absence of clear evidence of legislative intent. See Thompson, 108 S.Ct. at 52122 (Scalia, J., concurring). Because the Hostage Act treads on matters of
foreign policy which have long been recognized as the exclusive province of
the political branches, we must be especially certain of congressional intent
before inferring a private cause of action.
27

The language of the Hostage Act argues against such an action. The Act calls
for congressional review of presidential action taken pursuant to the Hostage
Act, requiring that "all the facts and proceedings relative [to such actions] shall
as soon as practicable be communicated by the President to Congress." 22
U.S.C. Sec. 1732. Provision for congressional oversight does not necessarily
rule out congressional intent to provide for private enforcement, but it is
evidence that Congress set forth with some care the enforcement scheme it
intended to create. The legislative history of the Act indicates further that
failure of the President to take actions required by the Hostage Act "is not
remediable by the courts, nor, perhaps, even Congress, but solely by the
electorate." Flynn, 748 F.2d at 1195. Speaking of the bill that became the
Hostage Act, Senator Fessenden stated:

28 can do nothing but declare the principle; and if the Government does not do its
[W]e
duty the people will remedy it, and we must leave the proper remedy to those who
have it in their hands.
29

Cong.Globe, 40th Cong., 2d Sess. 4358 (1868).

30

In determining whether a private right of action is implicit in a federal statute,

we must also consider "the contemporary legal context." Cannon v. University
of Chicago, 441 U.S. 677, 698-99, 99 S.Ct. 1946, 1958, 60 L.Ed.2d 560 (1979).
We must "assume that our elected representatives, like other citizens, know the
law," id. at 696-97, 99 S.Ct. at 1958, and we acknowledge that legislation is
informed by "the state of the law at the time the legislation was enacted."
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 378, 102
S.Ct. 1825, 1839, 72 L.Ed.2d 182 (1982). The Hostage Act was enacted in

1868, long before the practice of finding implied private rights of action
became common. See J.I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12
L.Ed.2d 423 (1964). It also antedated the era of widespread resort to the
judiciary to compel executive action. The 40th Congress, in enacting the
Hostage Act, is likely to have done so with the understanding that it created
only those rights of action explicit in the text of the statute, and its failure to
provide explicitly for a private right of action is powerful evidence of its intent
not to provide one at all.
31

Finally, plaintiffs argue that a private right of action in their favor should be
inferred because they are members of "the class for whose especial benefit the
statute was enacted." Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45
L.Ed.2d 26 (1975) (emphasis in original). Whether or not this is correct, it
alone does not enable this court to find such a right. "[T]he mere fact that the
statute was designed to protect [certain individuals] does not require the
implication of a private cause of action ... on their behalf.... The dispositive
question remains whether Congress intended to create any such remedy."
Transamerica Mortgage Advisors, 444 U.S. at 24, 100 S.Ct. at 249. We hold
that Congress did not so intend.

IV.
32

The desire to account for American service personnel still missing after the
Vietnam War runs deep. Such an accounting would go far in healing the
wounds which remain from that difficult chapter in our nation's history. Perhaps
more importantly, it would end the anxiety and frustration, if not all of the pain,
borne by the families of these servicemen.

33

We must, however, be mindful of the constraints our Constitution places on the

judiciary. Our system of government confines each branch to a limited sphere.
No one branch of our government can cure all ills, and institutional hubris is
more likely than not to result in new and greater ills. In this suit, plaintiffs ask
the courts to intrude in an area in which they have no rightful power and no
compass. Congress, in enacting the Hostage Act, appears to have been well
aware of the judiciary's limitations. Those limitations embody the strict and
binding force of law.

34

We reverse the judgment of the district court and remand with directions to
dismiss this lawsuit.

35

REVERSED.