CASPAR W. WEINBERGER, SECRETARY OF DEFENSE, ET AL., APPLICANTS v. TEMISTOCLES RAMIREZ DE ARELLANO, ET AL. No. A-477 In The Supreme Court Of The United States October Term, 1984 Application For A Stay Pending Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Application For A Stay Pending Petition For A Writ Of Certiorari To the United States Court Of Appeals For The District Of Columbia Circuit Pursuant to Rules 43 and 44 of the Rules of this Court and 28 U.S.C. 2101(f), the Solicitor General, on behalf of the Secretary of Defense, the Secretary of State, and the Chief of the United States Army Corps of Engineers, applies for a stay of any proceedings in district court pursuant to the court of appeals' mandate, pending the filing and disposition of a petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. The judgment of the en banc court of appeals, rendered on respondents' petition for rehearing, was entered on October 5, 1984 (App. D, infra). By order dated December 6, 1984, the court of appeals directed the clerk of that court not to file the government's timely petition for rehearing (App. E, infra). Respondents brought this suit for injunctive and declaratory relief to challenge the activities of United States military personnel participating in training exercises in Honduras at a facility known as the Regional Military Training Center (RMTC). The RMTC was established on land owned by several Honduran corporations that in turn are owned by respondent Ramirez, a citizen of the United States. A resolution of the Congress of Honduras formally approved the establishment of the RMTC and authorized instructors and students from friendly nations to participate in training activities there, and the President of Honduras entered a formal decree expropriating the property for national security purposes and directing that established legal procedures be available to determine the compensation to be paid. Notwithstanding these official acts of a foreign sovereign with respect to land within its borders that is owned by corporations organized under its laws, a divided en banc court of appeals decided in this case that respondents may proceed with their suit alleging that the RMTC should actually be regarded as an undertaking of the United States and challenging the involvement of United States military personnel there. Specifically, the court of appeals directed the district court to permit discovery into the relative involvements of the United States and Honduras in the establishment and operation of the RMTC; to determine whether the RMTC should be regarded as a facility of the United States, despite the official pronouncements to the contrary by the Government of Honduras; and to consider the granting of injunctive relief. The court of appeals thus has sanctioned a wholly unprecedented judicial interference in the Nation's foreign affairs and military activities. What is more, after the en banc court rendered its decision, Congress passed legislation specifically addressing the existence of the RMTC and respondents' monetary claim against the Government of Honduras. That legislation and the circumstances of its enactment make clear that Congress approves of the establishment of the RMTC; regards the payment of compensation to respondents to be the responsibility of the Government of Honduras, acknowledges that the appropriate way for the United States government to involve itself in resolution of any disputes concerning respondents' land in Honduras is through diplomatic channels; and establishes a timetable for the President to identify economic measures that might be taken against Honduras if respondents' claim is not resolved. Yet when the government filed a rehearing petition to call this new legislation to the court of appeals' attention, the court directed the clerk not even to file the petition. Circumstances thus have compelled the Solicitor General to direct that a petition for a writ of certiorari be filed to review the judgment of the court of appeals in this case. The Department of State repeatedly has raised the issue of respondents' claim in diplomatic discussions with the Government of Honduras and will do so again over the next several weeks, along with other issues pertaining to the RMTC. Discovery and other proceedings in district court could jeopardize the diplomatic process. To prevent this and other harm to the Nation's foreign relations and national security, we respectfully apply for a stay of any further proceedings below pending the filing and disposition of the certiorari petition. A stay is particularly warranted because respondents have not pursued their available compensation remedies under Honduras law and because the diplomatic process might well resolve respondents' claim against Honduras or result in moving the RMTC, and thus wholly eliminate the underlying basis for this lawsuit. STATEMENT 1. a. This suit was brought in the United States District Court for the District of Columbia against the Secretary of Defense, the Secretary of State, and the Chief of the Army Corps of Engineers challenging the activities of United States military personnel at a Regional Military Training Center (RMTC) in northern Honduras. The RMTC is situated on a 14,000-acre ranch that is owned by three Honduran corporations that in turn are owned, through intermediate corporations, by respondent Ramirez, a United States citizen who resides in Puerto Rico and Honduras (C.A. App. 5-7). The Government of Honduras publicly announced its plans to establish the RMTC on May 26, 1983 (C.A. App. 56). By decree dated June 24, 1983, the National Congress of Honduras formally approved the RMTC to "permit overall improvement of the Honduran Armed Forces and the technical training of military elements, both national as well as natives of friendly countries," and it "authorize(d) the admission of military instructors and students, coming from friendly countries," to participate in the activities of the RMTC. Decree No. 8104-83, App. G, infra, 1-2. On November 4, 1983, the President of Honduras issued a decree declaring that the RMTC is "an activity of the Armed Forces of Honduras" that "performs the obvious, very important, and direct function of providing national security for the state" (App. H, infra, 3). The President therefore decreed that the property for the RMTC shall be expropriated under the law of eminent domain and that "(e) stablished legal procedures shall apply to the appraisal of the property and to the payment of compensation to the owner(s), without prejudice to any agreements or direct negotiations between the Government of Honduras and/or the Armed Forces and the owner(s) of the property" (id. at 4). b. In the instant suit, respondents /1/ contended that the actions of the Secretary of Defense, the Secretary of State, the Chief of the Corps of Engineers and the personnel acting at their direction in connection with the RMTC (i) exceeded their authority under the laws or treaties of the United States and the United States Constitution, and (ii) deprived respondents of their property without notice and an opportunity for a hearing, in violation of the Due Process Clause of the Fifth Amendment (C.A. App. B-11). /2/ The relationship between Honduras and the United States was explained in a sworn declaration by James H. Michel, the Principal Deputy Assistant Secretary of State for Inter-American Affairs, filed by the government in district court (C.A. App. 47-52). Mr. Michel explained that the Government of Honduras has "close and friendly diplomatic relations with the United States" and is threatened by aggression from Nicaragua, supported by Cuba and the Soviet Union. Honduras has participated in diplomacy and regional efforts to resolve mutual problems, while maintaining military readiness to defend its independence and territorial integrity. In furtherance of these policies, Honduras established the RMTC to train Honduran troops and those of friendly governments, principally those of El Salvador. Id. at 48. The Michel declaration further explained that "(t)he United States has a vital foreign policy interest in the security of Honduras and El Salvador, and in the preparedness of their defensive forces," and that the United States accordingly "has assisted in the establishment of the facility and is assisting in the instruction of trainees" (C.A. App. 48). This assistance is granted pursuant to the Bilateral Military Assistance Agreement of May 20, 1954 between Honduras and the United States (5 U.S.T. 843), as well as the President's constitutional authorities, the Foreign Assistance Act of 1961 (22 U.S.C. 2301 et seq.), and the Arms Export Control Act (22 U.S.C. 2751 et seq.). C.A. App. 49. However, the Michel declaration stressed that "(a)s a Honduran government facility, the RMTC is and from its inception has always been under the command, control and administration of the Honduran Armed Forces," and that "(t)he Honduran Government controls access to and acquisition of land used for the RMTC, provides physical security, and negotiates bilateral issues with other governments whose personnel receive training at the facility" (ibid.). Finally, Mr. Michel averred that "(e)ven a short-term interference with the RMTC could result in serious harm to United States foreign policy interests" (C.A. App. 49). In addition, he explained that an injunction would "introduce friction into the bilateral relationship insofar as it entails a determination by a U.S. court that another state was not acting in its sovereign capacity, thus calling into question that sovereignty" (id. at 50), and "call(s) into question the reliability and credibility of United States Government commitments to other states" (id. at 51). c. Respondents sought to depose various United States officials to inquire into such subjects as "(t)he extent to which the United States Government exercised control over the formation, creation, formulation and operation of the training center, the United States' activities at the training center, * * * and the extent to which the United States had alternatives available to it other than (respondents') site" (7/15/ 83 Tr. 22). /3/ However, the district court denied that request (id. at 37), and on August 24, 1983, the court dismissed the complaint on the ground that it raised nonjusticiable political questions (App. C, infra; 568 F. Supp. 1236). 2. A panel of the court of appeals affirmed the dismissal of the complaint (App. B, infra; 724 F.2d 143). /4/ It held that general principles of equity preclude this suit because (1) the activity challenged is military in nature, (2) compliance would have to be monitored on foreign soil, (3) military activities of a foreign sovereign on its own soil are involved, (4) relief had not been sought in Honduran courts, and (5) alternative relief is available in any event in the form of a suit for money damages in the Claims Court if a taking by the United States occurred (724 F.2d at 148-153). Judge Wilkey dissented (id. at 156-173). 3. a. On respondents' petition for rehearing, the en banc court, in a sharply divided 6-4 decision, reversed the dismissal of the suit and remanded for proceedings on the merits, including discovery by respondents into the circumstances of the United States' involvement with the RMTC (App. A, infra). The majority rejected the district court's reliance on the political question doctrine in dismissing the suit (id. at 15-24), principally on the ground that respondents did not challenge the presence of United States military personnel in Honduras generally or the furnishing of assistance to the RMTC, but instead challenged the presence of military personnel and the RMTC only on the particular land that is owned by the Honduran corporations controlled by respondent Ramirez (id. at 17-18). As to that issue, the court saw no need for "unquestioning adherence to a political decision by the Executive" (id. at 21). The court of appeals next rejected the panel's conclusion that numerous principles of equitable discretion barred the instant suit (App. A, infra, 35-61). It suggested in the process that injunctive relief requiring United States military personnel to withdraw from the premises might be available even if they are fully authorized by Act of Congress and the Constitution to be there, because, in the court's view, a monetary remedy might be "inadequate" if respondents' land is uniquely suited to ranching (id. at 47-51). Finally, the majority rejected the contention that the suit is barred by the act of state doctrine by virtue of the resolution of the Congress of Honduras and the decree by the President of Honduras that formally proclaimed the RMTC to be an activity of Honduras and expropriated the land in question for that use (App. A, infra, 61-82). The majority concluded that it was necessary for the district court to evaluate the extent of the activities of Honduran soldiers there in order to determine whether the RMTC is actually a Honduran undertaking (id. at 66-67, 71, 72, 73, 74, 77). Judges Tamm, Bork, Scalia and Starr dissented on various grounds, in three separate opinions. 4. Following the entry of judgment by the en banc court on October 5, 1984, Congress passed and the President signed the Continuing Appropriation Act for Fiscal Year 1985 (Pub. L. No. 98-473, 98 Stat. 1837), which specifically addresses the status of the RMTC and respondents' claim. In one paragraph of that Act, Congress appropriated $805,100,000 to the President for military assistance in carrying out the Foreign Assistance Act of 1961 (App. I, infra). /5/ However, a proviso to that paragraph states that none of the funds made available shall be used for operation and maintenance of a RMTC unless the President determines that a number of issues pertaining to the RMTC have been resolved. These issues include possible consideration of a new site in Honduras for the RMTC, a commitment by the Government of Honduras to make a site available on a long-term basis for training of soldiers from other friendly countries as well as Honduras, matters pertaining to the plan and cost estimates for construction of a permanent RMTC, /6/ and recognition by the Government of Honduras of "the need to compensate as required by international law the United States citizen (i.e., respondent Ramirez) who claims injury from the establishment of the existing Center, and that it is taking appropriate steps to discharge its obligations under international law" (App. I, infra). We have been informed by the Department of Defense and Department of State that because these outstanding issues pertaining to the RMTC have not yet been resolved in diplomatic discussion with Honduras -- and because the President accordingly has not yet made the determination that is a necessary predicate for the use of the fiscal year 1985 funds for construction and operation of a permanent RMTC -- the United States' assistance to the existing facility is currently being furnished with remaining funds under the regular fiscal year 1984 appropriation for foreign military assistance that were allocated to Honduras. Although Congress recognized the problems experienced in connection with the RMTC, the Conference Report on the Continuing Appropriation Act for fiscal year 1985 states that the conferees "support the concept of such a Center and believe that the President should have maximum flexibility to continue negotiating cost effective methods of providing necessary military training to Central American armed forces" (130 Cong. Rec. H11940 (daily ed. Oct. 10, 1984) (App. J, infra)). The Conference Report also states that it is "essential that the U.S. Department of State and the Honduran government work together immediately to resolve (respondents') claim promptly and amicable under international law" (ibid.). Consistent with this view, Congress directed the President to submit reports 60 and 120 days after passage of the Appropriation Act informing Congress of progress in resolving respondent Ramirez's claim against Honduras. Congress further directed the President to submit a report 180 days after passage, if the claim is not resolved, explaining the response the President proposes to take against Honduras with regard to such matters as Honduras's continuing eligibility for preferential trade benefits under the Caribbean Basin Initiative and for economic assistance (App. I, infra). 5. On November 8, 1984, the government filed a motion with the court of appeals for a stay of the mandate -- which was then due to issue on November 12, 1984 -- pending the filing and disposition of a petition for rehearing addressing the effect of the Continuing Appropriation Act on this case. The rehearing petition was timely filed on November 19, 1984 (App. E, infra). /7/ But by order dated November 20, 1984, the court of appeals denied the government's motion for a stay of the mandate (App. F, infra), and by order dated December 6, 1984, the court, without explanation, directed the clerk not to file the government's rehearing petition (App. E, infra). 6. On December 8, 1984, the Secretary of Defense reported to Congress regarding respondent Ramirez's claim (App. K. infra). /8/ The Secretary explained that Honduras had entered into negotiations with respondent Ramirez in December 1983 but that no agreement was reached. The Secretary further explained that in that same month, Honduras made "strong commitments" in connection with the Caribbean Basin Initiative to meet its obligations regarding the claim under international law and its treaty with the United States and that "upon request of the claimant, the Government of Honduras agrees to submit the case to a national valuation proceeding under the Law of Forcible Expropriation with the objective of providing prompt, adequate and effective compensation based on a fair market valuation of the property" (ibid.). However, the Secretary reported that respondent Ramirez "has not yet requested that this valuation process be initiated" (id. at 2). The Secretary of Defense also informed Congress that respondent Ramirez's claim has "continued to be the subject of diplomatic discussions between the Honduran and U.S. Governments," notably in discussions with "high level Honduran officials in Tegucigalpa in August and September of this year," during which "the Honduran Government reiterated its willingness" to follow the compensation procedures it had previously outlined (App. K, infra, 2). He continued (ibid.): The Government of Honduras has indicated its desire to relocate the RMTC to another site, and a decision by the Government is expected in the very near future. I met with a high-level Honduran delegation on November 28, 1984, to discuss bilateral security and economic issues. As a result of these discussions, and similar ones the Hondurans held with Secretary Schultz and Ambassador pmotley, an interagency working group will travel to Honduras in mid-December to address specific areas of our security relationship including the RMTC. I am confident that substantial progress in resolving the outstanding disputes will be made during this scheduled visit. Finally, the Secretary assured Congress that "(t)he Department of State will continue to lend all appropriate assistance to a speedy and just settlement of these claims by the Government of Honduras, directly or through agreed third-party procedures" (ibid.). /9/ ARGUMENT The decision of the court of appeals sanctions an extraordinary and unprecedented judicial intrusion into the conduct of the Nation's military affairs and foreign relations. It provides for the district court to consider the propriety of the presence of United States military personnel on foreign soil -- yet wholly ignores explicit statutory authority for the President to lend assistance to precisely such military training. It countenances an inquiry by the courts of the United States into the bona fides of the official declarations by the Congress and President of Honduras that the RMTC is an undertaking of the Armed Forces of Honduras and that compensation will be made by the Government of Honduras in accordance with international law. It ignores the express views of the Legislative and Executive Branches of the United States Government that the RMTC is a facility of the Government of Honduras, that payment of compensation to respondents is the responsibility of Honduras, and that respondents' claim against Honduras should be resolved through diplomatic channels. And to compound its cavalier disregard for the views of the coordinate Branches on these sensitive matters, the court of appeals inexplicably refused even to entertain the petition for rehearing filed by the Executive that addressed the impact on this case of an intervening Act of Congress specifically addressing the RMTC and respondents' claim. /10/ A stay is required to prevent injury to the national security and foreign relations that could result from further proceedings in district court. In deciding whether to grant a stay pending certiorari, the Court or Circuit Justice ordinarily regards it as appropriate "to determine whether four Justices would vote to grant certiorari, to balance the so-called 'stay equities,' and to give some consideration as to predicting the final outcome of the case in this Court." Heckler v. Lopez, No. A-145 (Sept. 9, 1983) (Rehnquist, Circuit Justice), slip op. 3. See also id. (Brennan, J., dissenting), slip op. 2; Heckler v. Blankenship, No. A-589 (Jan. 26, 1984) (O'Connor, Circuit Justice), slip op. 2. These factors all firmly support the granting of a stay. A. There is a strong probability that this Court will grant certiorari and reverse the judgment of the court of appeals in this case. This is so because the decision of the court of appeals is flatly inconsistent with this Court's holdings on such matters as the political question and act of state doctrines and the considerations that preclude equitable relief, and because of the serious adverse consequences of the decision for the Nation's military affairs and foreign relations. But in addition, the activities of the federal defendants are so clearly and specifically authorized as to render this suit frivolous on the merits. 1. Respondents allege that the United States' actions pertaining to the RMTC "are beyond defendants' express or implied authority under the laws and treaties of the United States and the United States Constitution" (C.A. App. 11). However, they cite no provision of a law or treaty or the Constitution that they believe was violated. Indeed, they, like the court of appeals, simply ignore the clear authorization for military training activities in a friendly nation. Of course, at the core of the case are the President's constitutional powers as Commander-in-Chief and as the "sole organ" of the Nation in foreign affirs. Art. II, Section 2; United States v. Curtiss-Wright Export Corp., 229 U.S. 304, 319 (1936). But there is no need here to rely on the Constitution alone. As Judge Scalia pointed out in his dissent (App. A, infra, 9-10 n.7 (Scalia, J., dissenting)), the President is expressly authorized by the Foreign Assistance Act of 1961 to furnish "military education and training to military and related civilian personnel of foreign countries through * * * attendance at military educational facilities * * * abroad" (22 U.S.C. 2347(1)) and "to furnish military assistance, on such terms and conditions as he may determine, to any friendly country * * * by * * * assigning or detailing members of the Armed Forces of the United States or other personnel of the Department of Defense to perform duties of a noncombatant nature" (22 U.S.C. 2311(a)(2)). These provisions constitute explicit statutory authorization for the President to assist in the training activities of the RMTC. The majority below seemed to believe that it was necessary to find a congressional authorization for training or assistance specifically at a regional training center or even on the very tract of land owned by the three Honduran corporations controlled by respondent Ramirez. But that obviously is not so. Congressional authorizations typically are written in broad terms to afford the Executive necessary flexibility, without specifying the precise manner or situs of the activity. This approach is all the more appropriate with regard to the President's conduct of foreign relations and military affairs, and this Court in fact has acknowledged "the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed." United States V. Curtiss-Wright Export Corp., 299 U.S. at 321-322. See Haig v. Agee, 453 U.S. 280, 291-292 (1981). In the present context, for example, where military assistance or training is to be rendered in a foreign country, the location of the assistance or training necessarily depends upon a designation of an appropriate site by the government of that country, as occurred in this case. Certainly Congress was not required to have been more specific here simply because, as it subsequently turned out, the land on which the activity was to be conducted happened in this instance to be owned by Honduran corporations that, in turn, were owned by a United States citizen. But even assuming that more specific authorization were required, it plainly exists here. Congress has been fully apprised of the President's use of foreign military assistance funds for the RMTC and has approved that action. In the State Department's official explanation of the President's proposals to implement the recommendations of the National Bipartisan Commission on Central America (the Kissinger Commission), the Department reported that "(t)he RMTC was established by Honduras in 1983 on a temporary, austere basis" and "has proven to be extremely valuable as a low-cost way to provide large-scale training to Honduran and Salvadoran troops in a realistic environment" (U.S. Department of State, Briefing Book: Central America Democracy, Peace and Development Initiative 8 (Feb. 1984) (App. M. infra)). /11/ The State Department further stated that the President was requesting a supplemental appropriation in the amount of $25 million for fiscal year 1984 and an appropriation of $20 million for fiscal year 1985 for construction costs and other expenses associated with a more permanent training center (id. at 8-9). Thereafter, the background of the RMTC and the manner in which the newly requested funds would be used were explained in detail by the Department of Defense in response to questions from the Chairman of the Subcommittee of the House Committee on Appropriations having jurisdiction over the matter. /12/ Although the House of Representatives subsequently earmerked only $3.1 million specifically for the RMTC in its version of the supplemental appropriation bill (see H.R. Rep. 98-916, 98th Cong., 2d Sess. 92 (1984)), the Supplemental Appropriation Act for fiscal year 1984 as finally enacted and signed into law on August 22, 1984 appropriate a lump sum of $140 million for foreign military assistance, without restricting the use of funds for the RMTC to a particular amount. Pub. L. No. 98-396, 98 Stat. 1405. We have been informed by the Department of Defense that in fact $18.5 million of that total has been allocated administratively for the RMTC. Moreover, as we have explained (see pages 8-10, supra), Congress subsequently enacted the Continuing Appropriation Act for fiscal year 1985, which makes available more than $800 million to the President for foreign military assistance. Although that Act likewise does not on its face allocate a specific amount for the RMTC, Congress previously had been made fully aware of the President's plans to use $20 million of those funds for the RMTC. See page 16, supra. Congress's approval of the use of funds for that purpose is in any event made clear by the proviso stating that no funds made available under the lump sum appropriation for fiscal year 1985 shall be obligated or expended for construction or operation of an RMTC until after resolution of certain issues regarding its permanent establishment and a commitment by Honduras regarding respondents' claim in connection with what the Act refers to as the "existing Center" (App. I, infra). /13/ But Congress did not question the authority of the President to establish the "existing Center." To the contrary, the Conference Report expressed "support for the concept of such a Center" (130 Cong. Rec. H11940 (daily ed. Oct. 10, 1984) (App. J, infra), and Congress appropriated substantial additional funds for the RMTC, either at its existing site or a new location, subject only to the specified conditions. In sum, subject to funding limitations and conditions, it is clear beyond question that Congress has approved the President's actions in lending assistance to the RMTC. For this reason, and contrary to the view of the court of appeals (App. A, infra, 13-15), this case also presents no issue of separation of powers such as that involved in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), where the President's actions were demonstrably contrary to the intent of Congress (343 U.S. at 586; id. at 609 (Frankfurter, J., concurring)). As a result, even assuming there were no other obstacles in this suit (but see pages 18-24, infra), there could be no basis whatever for the district court to inquire into the circumstances of and responsibility for the establishment of the RMTC. /14/ 2. It is perhaps tempting to rest on the clear congressional authorization for the Executive's actions and to suggest that this case might be disposed of on that ground alone. There is, however, a far deeper and more disturbing flaw in the court of appeals' decision, because this suit is clearly barred by the political question and act of state doctrines, or, at the very least, by compelling prudential considerations that preclude equitable relief. a. A number of the factors this Court has identified under the political question doctrine are directly applicable in this case. The Court has made clear that "(c)ertainly it is not the function of the Judiciary to entertain private litigation -- even by a citizen -- which challenges the legality, wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region." Johnson v. Eisentrager, 339 U.S. 763, 789 (1950). The court of appeals sought to avoid that principle here on the ground that respondents do not challenge the United States' military presence in Honduras or object to United States aid to an RMTC in Honduras, but instead challenge only the presence of military personnel and the RMTC on their land. App. A, infra, 17-18, 20-21. This distinction finds no basis in the political question doctrine. The President's discretionary determination to furnish military personnel and other assistance to Honduras in connection with an RMTC, which the court of appeals appears to concede is nonjusticiable, necessarily subsumes the right of the President or his subordinates to make subsidiary judgments regarding the manner and location of activity executing that policy judgment. Cf. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), No. 82-1349 (June 19, 1984), slip op. 12-13; Dalehite v. United States, 346 U.S. 15, 35-36 (1953). Thus, assuming arguendo that officials of the United States were responsible for selecting the site for the present RMTC, it is not for the courts below to inquire, as respondents have sought to do through discovery, into "the extent to which the United States had alternatives available to it other than (respondents') site" (see 7/15/83 Tr. 22). There is, in any event, "a lack of judicially discoverable and manageable standards for resolving" such a question (Baker v. Carr, 369 U.S. 186, 217 (1962)), especially given the potential for inquiry into confidential diplomatic and other information. In this, as in other aspects of the United States' role in Central America, there is an "impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government" and an "unusual need for unquestioning adherence to a political decision already made" (Baker v. Carr, 369 U.S. at 217). Nor is this case remotely like Youngstown Sheet & Tube Co. v. Sawyer, upon which the court of appeals relied in finding this case to be justiciable (see App. A, infra, 18, 21). In Youngstown, the President had seized the Nation's steel industry, "an action of profound and demonstrable domestic impact"; here, by contrast, the Executive action "is 'entirely external to the United States, and (falls) within the category of foreign affairs'" (Carter v. Goldwater, 444 U.S. 996, 1004-1005 (1979) (Rehnquist, J., concurring), quoting United States v. Curtiss-Wright Corp., 299 U.S. at 315). Moreover, in Youngstown, the President's action was only indirectly related to his authority as Commander-in-Chief (343 U.S. at 587), while here the President's assignment of military personnel to a foreign country falls squarely within that power. Finally, the court of appeals' decision invites "multifarious pronouncements by various departments on one question" (Baker v. Carr, 369 U.S. at 217). The text and background of the Continuing Appropriation Act for fiscal year 1985 express Congress's intent that the President will conduct negotiations with Honduras regarding the RMTC, that the President will seek to obtain a firm commitment from Honduras with respect to compensation for respondents (see Dames & Moore v. Regan, 453 U.S. 654, 679-688 (1981)), and that the President will determine what actions should be taken if Honduras fails to resolve respondents' claim within 180 days. The judicial proceedings in district court contemplated by the court of appeals would undermine the Nation's ability to speak with one voice through the Executive in these negotiations, by casting doubt on the legality of the actions of the United States Government with respect to the existing center, by impugning the sovereign acts of the Honduran Government in establishing the RMTC as a facility of its own Armed Forces, and by thereby suggesting that Honduras is not responsible for paying compensation to respondents. b. The court of appeals also clearly erred in holding that this suit is not barred by the act of state doctrine, under which: Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Underhill v. Hernandez, 168 U.S. 250, 252 (1897), quoted in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416 (1964). See also Oetjen v. Central Leather Co., 246 U.S. 297 (1918); Ricaud v. American Metal Co., 246 U.S. 304, 310 (1918). The doctrine requires that an American court recognize as valid an action by a foreign sovereign with regard to property within its territory. Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 686, 691 nn.7 & 8 (1976). In this case, the Congress of Honduras formally approved the establishment of the RMTC and invited foreign personnel to train and be trained there. The President of Honduras also issued a decree declaring that the RMTC is "an activity of the Armed Forces of Honduras" and that the land shall be expropriated for the RMTC. See page 4, supra. As the court of appeals acknowledged (App. A, infra, 65, 80), respondents do not challenge the validity of the official decrees, nor could they do so under the act of state doctrine. But what respondents propose and what the court of appeals has countenanced is far more insulting to a sovereign state. The thrust of respondents' entire argument in this case is that although the official decrees are valid on their face, the Congress and President of Honduras did not mean what they said -- that although the Government of Honduras has officially declared the RMTC within its borders to be "an activity of the Armed Forces of Honduras," the RMTC actually should be considered an activity of the United States. In other words, respondents accuse the Government of Honduras not of illegality, but of mendacity, and they ask a court of the United States to adjudicate that question. To establish their case, respondents have argued (see page 6, supra), and the court of appeals agreed (App. A, infra, 67, 77, 86), that they should be permitted to engage in discovery to determine the respective roles of the United States and Honduras in creating and operating the RMTC, the number of Honduran troops there, and the extent of their occupation of the ranch. As Judge Starr stated in his dissenting opinion below (App. A, infra, 13-14): Assuming that the majority does not wish to suggest that the United States simply invaded Honduras, its invitation to the parties to plumb the timing of and relative responsibilities for the establishment of the RMTC is a flagrant affront to the sovereignty of Honduras. Attempts by the parties to find "facts" with respect to these "issues" would, in effect, question Honduran autonomy and raise the specter of a United States court declaring the government of an allied nation so subject to U.S. "manipulation" as to be incapable of independent sovereign acts worthy of deference under the act of state doctrine. That result would be especially intolerable in this case, because the Congress and President of the United States agree with the Congress and President of Honduras that the RMTC is an activity of the Government of Honduras. See Sumitomo Shoji America, Inc. v. Avigliano, 457 U.S. 176, 183-185 (1982). Against this background, the court of appeals' suggestion (App. A, infra, 81) that the Executive cannot invoke the act of state doctrine here is both patently wrong and fraught with danger. It is the Executive that engages in diplomatic relations with and makes commitments to foreign sovereigns. The credibility and effectiveness of the Executive in this process would be seriously undermined if the courts of the United States could ignore the Executive's insistence in judicial proceedings that the acts of state of the sovereign nations with which it deals must be respected. Conversely, respondent Ramirez and the corporations he controls have no equitable claim to request the courts of the United States to disregard the sovereign acts of the Government of Honduras. The land in question in this case is owned by three Honduran corporations. To be sure, under Article XIV of the Treaty between the United States and Honduras, nationals of the United States, such as Ramirez, have a right to organize corporations under the laws of Honduras. 45 Stat. 2628. And under Article I of the Treaty, the Government of Honduras must pay compensation for the taking of property belonging to a corporation owned by United States citizens. 45 Stat. 2619. But Article XIV of the same Treaty expressly provides that the rights of such corporations within the territory of Honduras shall be governed by the laws of Honduras. Id. at 2628. See Sumitomo Shoji America, Inc. v. Avigliano, 457 U.S. at 182-183, 187-188. Accordingly, neither the Honduran corporations nor Ramirez as their ultimate shareholder has a right to insist that the courts of the United States determine the validity or bona fides of a resolution of the Congress of Honduras, an expropriation decree issued by the President of Honduras, or other acts of state of the Government of Honduras affecting the corporations' land in Honduras. c. Finally, as Judge Scalia explained (App. B, infra, 724 F.2d at 148-153; App. A, infra, 22-32), a number of principles of equity preclude the granting of injunctive or declaratory relief in this case: (i) the activity challenged is military in nature; (ii) the action is essentially one for ejectment from land situated in a foreign country, and compliance therefore would have to be monitored on foreign soil; (iii) the military activities of a foreign sovereign are involved; (iv) respondents have not sought relief or requested an initiation of the valuation proceedings under Honduran law that the Government of Honduras has repeatedly insisted are available; and (v) alternative relief in the form of money damages is available even in the courts of the United States, under the Tucker Act, if there has been a taking of property that can properly be attributed to the United States. /15/ Moreover, the Continuing Appropriation Act for fiscal year 1985 imposes significant legal prohibitions on the use of new funding for United States assistance to the RMTC, which is essentially the same relief respondents seek in this suit. Because respondents have now been furnished the legal remedy that Congress deemed adequate, there can be no remaining basis for respondents to invoke the equitable powers of the courts. B. The foregoing discussion also sufficiently demonstrates that the balance of the equities clearly supports the granting of a stay. The court of appeals' decision and its direction to the district court to inquire further into matters pertaining to the RMTC come at the very time when the Executive -- in conformity with the express intent of Congress -- is engaged in sensitive diplomatic discussions with the Government of Honduras on all matters pertaining to the present and future operation of the RMTC, including resolution of respondents' claim, as well as other issues in the bilateral relationship between the two Nations. As the Secretary of Defense recently reported to Congress, a United States delegation is scheduled to travel to Honduras this month to discuss those very issues. See page 11, supra. The initiation of discovery by respondents and other proceedings in district court /16/ could seriously disrupt that process and undermine the credibility of the United States' commitment to an undertaking in Central America that both Congress and the President have deemed essential to the national security and foreign relations of the United States. See pages 5-6, supra. Compare Regan v. Wald, No. 83-436 (June 28, 1984), slip op. 6 & n.11, 19-20. On the other hand, respondents have no substantial equities weighing in favor of further proceedings in the courts below and will suffer no substantial harm if a stay is granted. As we have explained (see pages 10-11, supra), the Government of Honduras has repeatedly expressed its commitment to pay compensation in accordance with international law, pursuant to valuation proceedings under Honduran law. Yet respondent Ramirez pointedly has not requested the initiation of those proceedings. As the Acting Secretary of State informed the Chairmen of the House and Senate Appropriation Committees in his December 11, 1984 letter, "(w)e believe the most appropriate next step is for Mr. Ramirez, like any other claimant abroad, to pursue fully remedies available under Honduran law, including the valuation process offered by the Government of Honduras last December, that will permit a full and fair hearing of all material issues. * * * The rule of exhaustion of remedies is a well-established part of international law" (App. N, infra, at 3). In addition, as we also have explained, Congress already has afforded as much of the relief that respondents seek in this suit as it deemed appropriate by prohibiting the use of new funds for the RMTC until the President has determined that Honduras is committed to compensating respondents for any injury they have sustained, and Congress expressly contemplated the possible invocation of economic sanctions if Honduras does not live up to its commitment. Finally, if Honduras decides after the current consultations that the RMTC should be moved to another location, the resulting withdrawal of United States military personnel from respondents' land would completely achieve the goal respondents' seek in this suit for injunctive relief. CONCLUSION The application for a stay of any proceedings in district court pursuant to the court of appeals' mandate, pending the filing and disposition of a petition for a writ of certiorari, should be granted. Respectfully submitted, REX E. LEE Solicitor General DECEMBER 1984 /1/ In addition to respondent Ramirez, the other plaintiffs, respondents herein, are the three Honduran corporations, their Honduran parent corporation, and two Puerto Rican corporations through which Ramirez owns the Honduran corporations (C.A. App. 5-7). /2/ Respondents also alleged that these actions constituted a seizure of alien property by the United States in violation of the Law of Nations (C.A. App. 12; see 28 U.S.C. 1350), but the court of appeals did not address that issue (App. A, infra, 15 n.32). /3/ Respondents stated that they wanted to depose the United States Ambassador to Honduras, the chief political-military adviser in the United States Embassy in Honduras, the United States military officer responsible for coordinating aid to the RMTC, and an officer of the Corps of Engineers (7/15/83 Tr. 21-23). /4/ The panel rejected the district court's reliance on the political question doctrine. 724 F.2d at 147. /5/ Because of its length, the Continuing Appropriation Act is not yet available in Public Law form. We therefore have included as App. I, infra, a copy of the page from the Congressional Record on which the pertinent provision of the Act appeared. /6/ The background of Congress's concerns is explained in the Conference Report, which notes the continuing border disputes between El Salvador and Honduras, recent decisions by the Honduran high command refusing to allow El Salvadoran training at the existing RMTC, and proposals by certain countries for eliminating military training schools in Central America. 130 Cong. Rec. H11940 (daily ed. Oct. 10, 1984) (App. J, infra). /7/ Under Rule 14 of the Rules of the United States Court of Appeals for the District of Columbia Circuit, a party may file a petition for rehearing within 45 days of the entry of judgment. The rehearing petition was filed within that period. /8/ The report was submitted in accordance with H.R. Conf. Rep. 98-1080, 98th Cong., 2d Sess. 285-286 (1984) (the Conference Report on the Department of Defense Authorization Act for 1985), which also addressed the matter of respondents' claim. /9/ On December 11, 1984, the Acting Secretary of State, on behalf of the President, made a similar report to Congress pursuant to the final proviso to the pertinent paragraph of the Continuing Appropriation Act for fiscal year 1985 (App. L, infra). /10/ The court of appeals failed to offer an explanation for its order directing the clerk not to file the rehearing petition. Although respondents filed an opposition to the government's motion for a stay of the mandate pending disposition of the rehearing petition, they did not suggest that the court could not entertain the petition. Perhaps the court was of the view that the government could not seek rehearing as a matter of right because the October 5 decision was rendered by the court sitting en banc, on petition for rehearing. If so, the court was wrong. This is not a case of successive rehearing petitions filed by the same party seeking review of the same judgment. The panel ruled in favor of the government, and respondents sought rehearing en banc of that decision. The en banc court reached a result contrary to that of the panel, and it entered a new judgment on October 5, 1984. Under Fed. R. App. P. 40, a party may petition for rehearing within 14 days after the entry of "judgment" or such extended period as it permitted by local rule. The government therefore was entitled to seek rehearing of the en banc court's judgment. But even if the matter were solely within the discretion of the court, we fail to understand why the court would refuse to consider a petition that addressed an intervening and directly relevant statute. /1/ We have been informed by the Department of Defense that this document was distributed to all Members of Congress in connection with the President's proposals. /12/ See House Appropriations Committee, Foreign Operations Subcommittee, March 8, 1984 transcript (App. N, infra). The Defense Department stated that foreign military assistance funds made available for Honduras and El Salvador under the Arms Export Control Act and the Foreign Assistance Act were used to establish the RMTC and the "(t)he Administration consulted with the Senate Foreign Relations and House Foreign Affairs Committees prior to the establishment of the RMTC" (id. at 1). /13/ The Conference Report on the Continuing Appropriation Act states that the conferees expect that "these same conditions will be applied to funds contained in Public Law No. 98-396, the Supplemental Appropriation Act (for fiscal year 1984)" (130 Cong. Rec. 11940 (daily ed. Oct. 10, 1984) (App. J, infra)), thereby making clear that Congress had intended in that Act passed less than two months earlier to make funds available specifically for the RMTC. However, no similar restraints were placed on the use of other funds, such as funds remaining from the foreign military assistance appropriation for fiscal year 1984 that are now being used to support the RMTC. See page 9, supra. /14/ We regard as wholly insubstantial respondents' alternative claim that the Due Process Clause was violated because they were deprived of the use of their property without notice and an opportunity for a hearing (App. A, infra, 15). The land in Honduras was expropriated by the Government of Honduras. The Due Process Clause of the Fifth Amendment plainly does not apply to such action. Nor did the court of appeals suggest what issues respondents would be entitled to litigate in a "hearing" on the question of the use of land in a foreign country by military personnel for military training. We note as well that respondents do not (and cannot, under the act of state doctrine) challenge the validity of the occupation of the land by the Honduran Armed Forces or the expropriation of the land by the Honduran Government. Accordingly, even assuming that the Due Process Clause might apply in some circumstances to actions of United States' military personnel on foreign soil, since the Honduran Government had the unquestioned right to take possession of the land, respondents could have no right to notice and an opportunity for a hearing in connection with the Honduran Government's invitation to United States' personnel to enter the land as well. Moreover, even in the United States, the government may obtain property through physical occupation, subject to the payment of just compensation at a later date (see, e.g., Kirby Forest Industries, Inc. v. United States, No. 82-1994 (May 21, 1984), slip op. 8-9), and the Government of Honduras has expressed its intent to make such compensation here. /15/ There is no merit whatever to the majority's remarkable and unprecedented assertion (App. A, infra, 47-51) that injunctive relief might be available even if the Executive's actions are fully authorized by Act of Congress and the Constitution, on the ground that monetary compensation might be an inadequate remedy if respondents' land is uniquely suited to ranching. Even assuming that the RMTC is a project of the United States Government, this Court's decisions refute the notion that the United States could be prohibited from taking private property for a public purpose -- much less a purpose relating to military or foreign affairs -- simply because it has a special value to the owner. See, e.g., Hawaii Housing Authority v. Midkiff, No. 83-141 (May 30, 1984), slip op. 9-12; United States v. 50 Acres of Land, No. 83-1170 (Dec. 4, 1984), slip op. 11. /16/ As recently as November 13, 1984, when they filed their Opposition to Motion for Stay of Mandate in the court of appeals, respondents reiterated (id. at 4) their view that they should be permitted to "purs(ue) discovery which is essential to a final disposition of this case." APPENDIX