Sunday, June 24, 2018

A. Justiciability Doctrines

Article III, § 2 of the United States Constitution provides that federal courts have jurisdiction only if presented with a “Case” or “Controversy.” The requirement of a case or controversy imposes a “dual limitation” upon the federal courts. See Flast v. Cohen, 392 U.S. 83, 94, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). First, the requirement of a case or controversy serves to “limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.” Id. Second, the requirement of a case or controversy serves to “define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.” Id. This “dual limitation” found in the requirement of a case or controversy is enforced by what have been termed the justiciability doctrines of Article III, which state the fundamental limits on federal judicial power in our system of government. See Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). “Concerns of justiciability go to the power of the federal courts to entertain disputes, and to the wisdom of their doing so.”Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991). The justiciability doctrines include principles such as the prohibition against advisory opinions, standing, ripeness, mootness, and the political question doctrine. See generally Erwin Chemerinsky, Constitutional Law: Principles and Policies 46 (Aspen Law & Business 1997). “The Article III doctrine that requires a litigant to have ‘standing’ to invoke the power of a federal court is perhaps the most important of these doctrines.” Allen, 468 U.S. at 750, 104 S.Ct. 3315.

1. Standing

The doctrine of standing ensures that a litigant is the proper party to bring a matter before a federal court for adjudication, by asking if that specific litigant has a sufficient stake in the matter to invoke the federal judicial process. As the United States Supreme Court recently reiterated: “We have consistently stressed that a plaintiff's complaint must establish that he has a ‘personal stake’ in the alleged dispute, and that the alleged injury suffered is particularized as to him.” Raines v. Byrd, 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997).

a. Historical Overview of the Doctrine of Standing

The requirement that a litigant demonstrate standing—a personal stake in an alleged dispute—to bring a matter before a court for adjudication has been a bedrock principle in our system of law, as well as the common law system from which our system of law developed. The standing doctrine comes from the well-known common law doctrine of locus standi, which translated from Latin means “place of standing.” In essence, the doctrine of locus standi concerns whether an individual has the legal capacity to institute proceedings. See, e.g., S.M. Thio, Locus Standi and Judicial Review 13–14, 235–36 (1971) (analyzing the doctrines of standing in the United States and in other common law countries). The concept of standing, or locus standi, was well known to the early federal courts. See, e.g., Southern Exp. Co. v. Western N.C.R. Co., 99 U.S. 191, 201, 9 Otto 191, 25 L.Ed. 319 (1878) (holding that since appellant had no legally cognizable interest in the suit, appellant “can, therefore, have no locus standi in a court of equity”).

The standing doctrine serves to reinforce that “[t]he province of the court is, solely, to decide on the rights of individuals....” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803). As stated in an authoritative nineteenth century treatise: “The general rule is that the action should be brought in the name of the party whose legal right has been affected, against the party who committed or caused the injury, or by or against his personal representative.” Joseph Chitty, A Treatise on Pleading and Parties to Actions 1 (G. & C. Merriam 1867). In specific reference to tort actions, that treatise provides:

The action for a tort must in general be brought in the name of the person whose legal right has been affected, and who was legally interested in the property at the time the injury thereto was committed; for he is impliedly the party injured by the tort, and whoever has sustained the loss is the proper person to call for compensation from the wrongdoer.

Id. at 59 (emphasis in original and footnotes omitted). This treatise was relied upon by the United States Supreme Court in Tyler v. Judges of Court of Registration, 179 U.S. 405, 407, 21 S.Ct. 206, 45 L.Ed. 252 (1900), in which the Supreme Court discussed the proper parties to litigation. In elucidating the standing doctrine's focus on the rights of individuals, the Tyler Court stated:

The prime object of all litigation is to establish a right asserted by the plaintiff or to sustain a defense set up by the party pursued. Save in a few instances where, by statute or the settled practice of the courts, the plaintiff is permitted to sue for the benefit of another, he is bound to show an interest in the suit personal to himself, and even in a proceeding which he prosecutes for the benefit of the public, as, for example, in cases of nuisance, he must generally aver an injury peculiar to himself, as distinguished from the great body of his fellow citizens.

Id. at 406, 21 S.Ct. 206. In Tyler, the Court reiterated that the doctrine of standing “has been announced in so many cases in this court that it may not be considered an open question.” Id.

This core aspect of the doctrine of standing—that a litigant demonstrate a personal stake in an alleged dispute—has remained unchanged as the Supreme Court has elucidated the modern formulation and rationale for the doctrine.

b. Modern Formulation of the Doctrine of Standing

The standing doctrine involves both constitutional limitations on federal courts, based on Article III, and prudential limitations on the exercise of federal court jurisdiction. See, e.g., Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The modern formulation of the constitutional limitations of the standing doctrine was elucidated in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), where the Supreme Court stated:

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan, 504 U.S. at 560—61, 112 S.Ct. 2130 (citations and internal quotations omitted). “This triad of injury in fact, causation, and redressability constitutes the core of Article III's case-or-controversy requirement.” Steel Co. v. Citizens For a Better Environment, 523 U.S. 83, 103–04, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). These constitutional limitations on standing “are not confined to the facts of any particular case, but are broadly relevant to standing in any Article III controversy.” Plotkin v. Ryan, 239 F.3d 882, 884 (7th Cir.2001).

[1] The party seeking to invoke federal court jurisdiction has the burden of establishing the elements of standing. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. “Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. The present motion is a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b), and in this posture “we must presume that the general allegations in the complaint encompass the specific facts necessary to support those allegations.”Citizens For a Better Environment, 523 U.S. at 104, 118 S.Ct. 1003. “However, [w]here standing is challenged as a factual matter, the plaintiff bears the burden of supporting the allegations necessary for standing with competent proof.” Perry v. Village of Arlington Heights, 186 F.3d 826, 829 (7th Cir.1999) (quoting Retired Chicago Police Ass'n. v. City of Chicago, 76 F.3d 856, 862 (7th Cir.1996)) (internal quotations omitted); see also McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) (indicating that the party invoking federal court jurisdiction must “allege in his pleading the facts essential to show jurisdiction [and][i]f he fails to make the necessary allegations he has no standing”). “ ‘Competent proof’ requires a showing by a preponderance of the evidence that standing exists.” Id. (quoting NLFC, Inc. v. Devcom Mid–America, Inc., 45 F.3d 231, 237 (7th Cir.1995)); see also McNutt, 298 U.S. at 189, 56 S.Ct. 780 (stating that when “allegations of jurisdictional facts are challenged ... in any appropriate manner, [the party alleging jurisdiction] must support them by competent proof;” and if unchallenged, the federal courts “may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence”).

c. Plaintiffs' Allegations in Support of their Standing to Maintain this Suit

In general, Plaintiffs claim that the source of their injury is the institution of slavery. Plaintiffs point to three distinct injuries which they allege are sufficient to confer them standing to maintain this suit. First, “the complaint alleges that enslaved African–Americans suffered concrete injury to their property and tort rights and that their descendants suffer derivative harm today.” Pls.' Resp. to Defs.' Mot. to Dismiss, at 3. Specifically, Plaintiffs allege injury through being “denied the economic wealth of their ancestors' labor,” which they refer to as a “derivative and inherited property right in their ancestors' lost pay.” FACC ¶¶ 100–01. Second, Plaintiffs allege that they are injured on a continuing basis. Specifically, Plaintiffs allege that “[t]hey still endure daily indignities from the legacy of slavery, including, but not limited to, racial profiling, racial slurs, and improper and hurtful assumptions regarding their overall status.” Id. ¶ 102. Further, Plaintiffs allege that they “are also likely to encounter future harm, as they are more likely to have a shorter life expectancy; more likely [to] go to jail; and are more likely to be murdered, than their white counterparts.” Id. Third, Plaintiffs' allege that they are “[p]resently consumers of Defendants” and have been injured by certain communications made by the Defendants concerning their respective roles in the institution of slavery. See id. ¶ 93. Specifically, Plaintiffs allege that “[d]ue to unconscionable, fraudulent and deceptive public communications made by defendants, plaintiffs suffered the harm of being misled, confused, and deceived about the roles the defendants played in the enslavement of African peoples.” Id. Further, Plaintiffs allege injury through the Defendants' refusal to provide documentation that relates to any profits made as a result of the institution of slavery. See Pls.' Resp. to Defs.' Mot. to Dismiss, at 12.

(1). Constitutional Limitations on Standing

(a). Derivative Harm

[2] [3] It is well-established that a plaintiff must “ ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.’ ” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979)). Plaintiffs cannot establish a personal injury by merely identifying tort victims and alleging a genealogical relationship. The illegal conduct at issue here, the institution of slavery, is alleged to have directly affected Plaintiffs' ancestors. Plaintiffs now, more than a century later, point to that horrific institution as the source of their derivative injury.20 However, Plaintiffs' own choice of words, derivative, should be sufficient to signify the standing problem in this case. See FACC ¶¶ 100–01; see also Pls.' Resp. to Defs.' Mot. to Dismiss, at 3. Plaintiffs fail to allege that they have personally suffered a concrete and particularized injury as a result of Defendants' putatively illegal conduct; rather, Plaintiffs' alleged injury is derivative of the injury inflicted upon enslaved African–Americans over a century ago. This is insufficient to establish standing, and contrary to centuries of well-settled legal principles requiring that a litigant demonstrate a personal stake in an alleged dispute. See, e.g., Tyler, 179 U.S. at 406–07, 21 S.Ct. 206 (stating that a plaintiff must “aver an injury peculiar to himself, as distinguished from the great body of his fellow citizens”); Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (stating that a“plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is ... concrete and particularized”); Raines, 521 U.S. at 819, 117 S.Ct. 2312 (stating that “a plaintiff's complaint must establish that he had a ‘personal stake’ in the alleged dispute, and that the alleged injury is particularized as to him”). To recognize Plaintiffs' standing in such a situation “would transform the federal courts into ‘no more than a vehicle for the vindication of the value interests of concerned bystanders.’ ” Allen, 468 U.S. at 756, 104 S.Ct. 3315 (citing United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973)).

[4] In addition, the injury alleged cannot be “conjectural or hypothetical.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Plaintiffs allege injury through being “denied the economic wealth of their ancestors' labor,” which they refer to as a “derivative and inherited property right in their ancestors' lost pay.” FACC ¶¶ 100–01. However, Plaintiffs' claim to the economic wealth of their ancestors' labor is conjectural. While most would like to assume that they will be the beneficiaries of their ancestors' wealth upon their demise, this is a mere assumption. Plaintiffs can only speculate that their ancestors' estates would have been passed on to them, and cannot say that they would have inherited their ancestors' lost pay. This is insufficient to show a personal injury to Plaintiffs.

[5] [6] Further, the Plaintiffs must allege a “causal connection between the injury and the conduct complained of.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130. “[T]he injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court....” Id. The allegations of Plaintiffs' Complaint do not link these Defendants to the alleged harm. Plaintiffs fail to allege any facts in their Complaint that link the specifically named Defendants to the alleged injuries suffered by the Plaintiffs; nor does the Plaintiffs' Complaint allege a connection between any of the named Defendants and any of the Plaintiffs' ancestors. The named Plaintiffs who allege that they are descendants of enslaved African–Americans fail to allege that their ancestors were enslaved by any of the eighteen specifically named Defendants. Likewise, the named Plaintiffs who allege that they were slaves fail to allege that they were enslaved by any of the eighteen specifically named Defendants. Plaintiffs' only response to this fundamental defect is to allege that Defendants were engaged in “co-dependent” industries and therefore vicariously liable for the institution of slavery. However, Plaintiffs fail to allege how these named Defendants were involved in these “co-dependent” industries. Plaintiffs offer no allegations that Defendants had any relationships with specific entities that enslaved Plaintiffs or their ancestors. More than “unadorned speculation” is required to establish standing. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 43–44, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).

(b). Continuing Injury

[7] Plaintiffs' allegations that they suffer injury on a continuing basis also fail to establish the requisite standing. Plaintiffs claim a continuing injury through the allegation that “[t]hey still endure daily indignities from the legacy of slavery, including, but not limited to, racial profiling, racial slurs, and improper and hurtful assumptions regarding their overall status.” FACC ¶ 102. Further, Plaintiffs allege that they “are also likely to encounter future harm, as they are more likely to have a shorter life expectancy; more likely [to] go to jail; and are more likely to be murdered, than their white counterparts.” Id.

Plaintiffs' allegations of continuing harm are no different than the allegations of continuing harm made by the plaintiffs in Cato v. United States, 70 F.3d 1103 (9th Cir.1995), and other similar cases. In Cato, descendants of enslaved African–Americans filed a complaint against the United States government seeking damages due to the enslavement of, and subsequent discrimination against, African–Americans. Cato, 70 F.3d at 1105. The plaintiffs in Cato alleged injuries based on “disparities in employment, income, and education” between African–Americans and other racial groups. Id. at 1109. The Cato court found that such allegations were insufficient to establish an injury personal to the plaintiffs so as to establish the plaintiffs' standing; rather, such injuries were “a generalized, class-based grievance....” Id. Other courts faced with similar complaints have also found that those plaintiffs had failed to establish their standing to litigate claims based on continuing injuries alleged to be the result of slavery. See, e.g., Bell v. United States, No. Civ. A. 301CV0338D, 2001 WL 1041792, at *2 (N.D.Tex. Aug.31, 2001) (plaintiff lacked standing to file suit against United States government seeking damages for the enslavement of African–Americans); Bey v. United States Department of Justice, No. 95 CIV 10401, 1996 WL 413684, at *1 (S.D.N.Y. July 24, 1996) (same); Langley v. United States, No. C 95–4227, 1995 WL 714378, at *2 (N.D.Cal. Nov.30, 1995) (same); Himiya v. United States, No. 94 C 4065, 1994 WL 376850, *2 (N.D.Ill. July 15, 1994) (“Although it is extremely regrettable that this country's history, as well as the history of many other countries, includes a significant history of slavery, the plaintiff does not have proper standing under the law to recover damages for this reprehensible time period.”). Like the plaintiffs' allegations in Cato and the other slavery reparations cases decided after Cato, Plaintiffs' allegations of continuing harm in this case do not establish a concrete and particularized injury-in-fact, as these allegations are too speculative and generalized. See Lujan 504 U.S. at 560–61, 112 S.Ct. 2130.

Plaintiffs argue that the other lawsuits seeking reparations for acts related to the institution of slavery are distinguishable on the grounds that those cases were brought by pro se plaintiffs, acting without the guidance of counsel, and against the United States Government, protected from suit by the doctrine of sovereign immunity. These are distinctions without a difference. Those pro se plaintiffs could have been represented by attorneys and the result would not have changed.21 Furthermore, the doctrine of sovereign immunity was only one of many jurisdictional bars to suit in those cases, including standing. The constitutional limitations on standing, including an injury-in-fact, “are not confined to the facts of any particular case, but are broadly relevant to standing in any Article III controversy.” Plotkin, 239 F.3d at 884. Like the plaintiffs in those cases, Plaintiffs fail to allege any concrete and particular injury-in-fact that they have suffered apart from their race generally.

Further, Plaintiffs' complaint is devoid of any allegations that any specific conduct of the Defendants was a cause of the continuing injuries of which Plaintiffs complain. Such wide-ranging social ills are not even alleged “to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Plaintiffs' allegations of abstract stigmatic injury are not cognizable absent specific allegations of conduct on behalf of the Defendants that has been directed at Plaintiffs or their ancestors. Cf. Allen, 468 U.S. at 755–56, 104 S.Ct. 3315.

(c). Miscellaneous Injury

[8] Lastly, Plaintiffs allege injury, in their status as consumers of the Defendants, through being misled, confused and deceived about the roles the Defendants played in the enslavement of African peoples, as a result of Defendants' public communications. See FACC ¶ 93. Plaintiffs also allege a separate harm through the Defendants not turning over documents that relate to their involvement in securing profits from slavery. See id. ¶¶ 218–23. These alleged injuries relate to causes of action plead in Plaintiffs' Complaint as violations of various state consumer protection laws. See id., Counts X–XIV. Plaintiffs argue that their allegations that Defendants have violated these State consumer protection laws are sufficient to confer them standing to pursue these, and all other, claims. See Pls.' Resp. to Defs.' Mot. to Dismiss, at 11. Further, Plaintiffs argue that some of these statutes do not even require that an injury be alleged, and therefore their standing to pursue all claims is a given. See id.

[9] This argument misses the mark. The fact that a state statute dispenses with the requirement that an injury be alleged does not, and cannot, abrogate constitutional limitations imposed by Article III that a personal injury-in-fact is a prerequisite for standing to sue in a federal court. See, e.g., Burford v. Sun Oil Co., 319 U.S. 315, 317, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) (holding that state legislatures may not expand the jurisdiction of the federal district courts); see also Rifkin v. Bear Stearns & Co., Inc., 248 F.3d 628, 631 (7th Cir.2001) (same). These constitutional limitations on standing cannot be altered by either state or federal law. See Gladstone, Realtors, 441 U.S. at 100, 99 S.Ct. 1601 (holding that Congress may not abrogate the constitutional limitations on standing); Watson v. Tarpley, 59 U.S. 517, 520, 18 How. 517, 15 L.Ed. 509 (1855) (holding that “[state] laws cannot affect, either by enlargement or diminution, the jurisdiction of the courts of the United States as vested and prescribed by the constitution and laws of the United States”); see also U.S. Const. art. VI, cl. 2 (Supremacy Clause). Further, Plaintiffs cannot use their standing to pursue one type of claim in a State court in order to establish their standing to pursue all of the claims asserted in the present case in a federal court. “The plaintiffs must establish the district court's jurisdiction over each of their claims independently; they are not permitted to use one count of their complaint to establish federal subject matter jurisdiction and a separate count to establish standing.” Rifkin, 248 F.3d at 634.

Moreover, these injuries alleged in Plaintiffs' status as consumers of Defendants do not establish a legally cognizable injury. Aside from alleging a general state of confusion, the Plaintiffs fail to allege any injury-in-fact that has come about as a result of that confusion. “The injury alleged must be ... distinct and palpable, and not abstract or conjectural or hypothetical.” See Allen, 468 U.S. at 751, 104 S.Ct. 3315 (citations omitted). Additionally, “in ruling on standing, it is both appropriate and necessary to look to the substantive issues ... to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated.” Flast, 392 U.S. at 102, 88 S.Ct. 1942. “Such inquiries into the nexus between the status asserted by the litigant and the claim he presents are essential to assure that he is a proper and appropriate party to invoke federal judicial power.” Id. Plaintiffs fail to allege that Defendants have any duty to turn over any such documentation. Plaintiffs allege that “[t]here is a fiduciary relationship that arose between the litigant classes and defendants by virtue of defendants' superior position, maintenance of those positions and, their holding in constructive trust, the proceeds of the unpaid labor of the plaintiffs and/or their ancestors.” FACC ¶ 222. However, Plaintiffs make this conclusory statement without any specific factual allegations in support of it. Plaintiffs offer unsupported conclusions wrapped in legally significant terms, such as fiduciary duty and constructive trust, which are insufficient to establish standing. “The requirements of Article III are not satisfied merely because a party requests a court of the United States to declare its legal rights, and has couched that request for forms of relief historically associated with courts of law in terms that have a familiar ring to those trained in the legal process.” Valley Forge, 454 U.S. at 471, 102 S.Ct. 752. Again, more than “unadorned speculation” and conclusory allegations are required to establish standing. See Simon, 426 U.S. at 43–44, 96 S.Ct. 1917.

(d). Conclusion

In response to all these deficiencies, Plaintiffs argue that “ ‘[s]tanding can be supported by a very slender reed of injury.’ ” Pls.' Resp. to Defs.' Mot. to Dismiss, at 4 (citing 13 Charles Allen Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531.4 (2d ed.1984)). Plaintiffs are correct that standing can be supported by a very slender reed of injury, as the cases which they cite provide. Yet, this “slender reed” must still have its roots in the soil of an injury personal to the Plaintiffs, not a “derivative harm” uprooted from the soil of another's injury.

Plaintiffs wish to litigate the issue of slavery without establishing that they have suffered some concrete and particularized injury as a result of the putatively illegal conduct of the Defendants. See Valley Forge, 454 U.S. at 472, 102 S.Ct. 752; Lujan 504 U.S. at 560, 112 S.Ct. 2130. However, “[t]he fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” Flast, 392 U.S. at 99, 88 S.Ct. 1942. “In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.” Id. at 99–100, 88 S.Ct. 1942. Plaintiffs cannot satisfy the first and most basic requirement of constitutional standing—a concrete and particularized personal injury. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Plaintiffs cannot establish a personal injury sufficient to confer standing by merely alleging some genealogical relationship to African–Americans held in slavery over one-hundred, two-hundred, or three-hundred years ago. In attempting to litigate the unopposed issue of slavery rather than their personal injuries, Plaintiffs also cannot satisfy the second requirement of constitutional standing—injury that is fairly traceable to the conduct of the defendants. See id. Plaintiffs do not allege that they had any present property interest that was injured as a result of the Defendants' actions, nor that any action of the Defendants wronged them in any way that would be cognizable under tort theory. Plaintiffs fail to allege any conduct by the eighteen specifically named Defendants that individually affected any of the Plaintiffs.

In sum, the allegations of Plaintiffs' Complaint fail to support their standing to maintain this suit, as required by Article III of the United States Constitution.

(2). Prudential Limitations on the Standing Doctrine

Beyond the constitutional limitations on the standing doctrine, there are prudential limitations on the exercise of federal court jurisdiction. See, e.g., Warth, 422 U.S. at 498, 95 S.Ct. 2197. These additional prudential limitations on standing may exist even though the Article III requirements are met because “the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim.” Gladstone, Realtors, 441 U.S. at 99–100, 99 S.Ct. 1601. Like the constitutional limitations on the standing doctrine, these prudential limitations ensure that federal courts adhere to the separation of powers concept and are “founded in concern about the proper, and properly limited, role of the courts in a democratic society.” Warth, 422 U.S. at 498, 95 S.Ct. 2197. However, “unlike their constitutional counterparts, they can be modified or abrogated by Congress.” Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).

One of these prudential limits on standing is that a litigant must normally assert his own legal interests rather than those of third parties.See Singleton v. Wulff, 428 U.S. 106, 113–14, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Warth, 422 U.S. at 499, 95 S.Ct. 2197. Another is that the federal courts should “refrain[ ] from adjudicating ‘abstract questions of wide public significance’ which amount to ‘generalized grievances,’ pervasively shared and most appropriately addressed in the representative branches.” Valley Forge, 454 U.S. at 475, 102 S.Ct. 752 (citing Warth, 422 U.S. at 499–500, 95 S.Ct. 2197).

(a). Plaintiffs Impermissibly Attempt to Assert the Legal Rights of Absent Third Parties

[10] [11] As a general rule, a litigant must assert his own legal rights and cannot assert the legal rights of a third-party. See, e.g., Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Singleton, 428 U.S. at 113–14, 96 S.Ct. 2868. However, a litigant may assert the rights of absent third-parties in certain limited situations. In determining whether a litigant who seeks standing to assert the legal rights of a third-party may do so, a two-part inquiry is involved. See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 n. 3, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989). First, the litigant must have personally suffered some injury-in-fact adequate to satisfy Article III's case or controversy requirement. See id.; see also Singleton, 428 U.S. at 112, 96 S.Ct. 2868. Second, certain prudential considerations must point in favor of permitting the litigant to assert the third-party's legal rights. See id. Among the prudential considerations to consider are the requirements that the litigant must have a legally sufficient relation to the third-party, see Powers, 499 U.S. at 411, 111 S.Ct. 1364; see also Craig v. Boren, 429 U.S. 190, 196, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), and there must exist some hindrance to the third-party's ability to protect his or her own rights, see Powers, 499 U.S. at 411, 111 S.Ct. 1364; see also Singleton, 428 U.S. at 115–116, 96 S.Ct. 2868.

[12] To the extent that Plaintiffs are attempting to assert the legal rights of their ancestors, Plaintiffs cannot do so because they themselves have failed to establish that they have personally suffered some injury-in-fact adequate to satisfy Article III's case-or-controversy requirement. See Singleton, 428 U.S. at 112, 96 S.Ct. 2868. In addition, prudential considerations militate against allowing such claims. First, Plaintiffs have not alleged a legally sufficient relation to their ancestors. All that Plaintiffs allege is a genealogical relationship, and more is required under the law in order to confer third-party standing. Cf. Gilmore v. Utah, 429 U.S. 1012, 1016–17, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976) (indicating that a mother had no standing to contest her son's execution). Plaintiffs make no allegations of any relationship sufficient, whether by common law or statute, to confer them standing to pursue the claims of their deceased ancestors. Cf. Whitmore v. Arkansas, 495 U.S. 149, 163, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (recognizing a next-friend's standing to sue in certain situations); United Food & Comm. Workers Union Local 751 v. Brown Group, 517 U.S. 544, 558, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996) (recognizing that the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq., grants unions standing to sue on behalf of its members). Furthermore, Plaintiffs do not allege that they are assignees of a legally cognizable claim against the named Defendants. Second, Plaintiffs have not alleged that any hindrance existed to their ancestors' ability to have protected their own rights over the last century.Cf. Johnson v. McAdoo, 45 App. D.C. 440, 441 (D.C.App.1916), aff'd, 244 U.S. 643, 37 S.Ct. 649, 61 L.Ed. 1367 (1917) (evidencing a claim for slavery-based reparations nearly a century ago).

In sum, Plaintiffs have not established third-party standing to assert the legal rights of their ancestors.

(b). Plaintiffs Impermissibly Attempt to Litigate a Generalized Grievance Which is Best Addressed in the Representative Branches

As currently framed, Plaintiffs' Complaint seeks to litigate a generalized grievance over one of the most horrific chapters of our Nation's history rather than a personal dispute, which the federal courts are able to adjudicate. For the reasons stated in the following section, such an “abstract question[ ] of wide public significance” should be left to the representative branches of our system of government. See Valley Forge, 454 U.S. at 475, 102 S.Ct. 752.

2. The Political Question Doctrine

[13] Defendants also argue that the court should dismiss Plaintiffs' Complaint because the issue of reparations to former slaves presents a non-justiciable political question. See Defs.' Joint Mot. to Dismiss, at 26–38. Although the court has dispositively determined that Plaintiffs lack standing to bring the claims raised in their Complaint, with an abundance of caution, the court will next determine whether the political question doctrine provides an independent basis for dismissal.

a. Overview of the Political Question Doctrine

[14] [15] [16] It is well-established that the federal courts will not adjudicate questions that fall within the purview of the political question doctrine. See Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Like standing, mootness and ripeness, the political question doctrine is a justiciability limitation with its prudential roots dating back to the 18th century. See, e.g., Hayburn's Case, 2 U.S. (2 Dall.) 408, 410 (1792) (invalidating a statute authorizing the Executive branch to accept or reject federal court determinations of pension eligibility for Revolutionary War veterans); Marbury, 5 U.S. (1 Cranch) at 170 (“Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”). The political question doctrine restricts judicial review that might interfere with other branches of the federal government. See McIntyre v. Fallahay, 766 F.2d 1078, 1081 (7th Cir.1985). Even in cases where the federal court has subject matter jurisdiction, it could choose not to exercise its jurisdiction to avoid interfering with decisions previously made by the Executive or Legislative branches (hereinafter the “Representative Branches”). See United States v. Munoz–Flores, 495 U.S. 385, 393–94, 110 S.Ct. 1964, 109 L.Ed.2d 384 (1990). When the court reaches this conclusion, the question becomes non-justiciable—meaning not appropriate for judicial review. The non-justiciability of a political question is based primarily on the constitutional principle of separation of powers inherent in the text of the Constitution and the policy of judicial self-restraint. See Baker, 369 U.S. at 210, 82 S.Ct. 691; see also Kashani v. Nelson, 793 F.2d 818, 827 (7th Cir.1986); Flynn v. Shultz, 748 F.2d 1186, 1189 (7th Cir.1984); Calvin v. Conlisk, 520 F.2d 1, 5 (7th Cir.1975). Although the political question doctrine is just one aspect of a broader justiciability issue, it has been “applied in cases involving extremely diverse issues.” Flynn, 748 F.2d at 1189; see also Baker, 369 U.S. at 211–18, 82 S.Ct. 691.

[17] However, not all issues having political implications or significant political overtones are non-justiciable under the political question doctrine. See Japan Whaling Ass'n. v. American Cetacean Soc., 478 U.S. 221, 229–30, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986); see also I.N.S. v. Chadha, 462 U.S. 919, 921, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Rather the Supreme Court has said that “ ‘[i]n 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, 369 U.S. at 210, 82 S.Ct. 691 (quoting Coleman v. Miller, 307 U.S. 433, 454–55, 59 S.Ct. 972, 83 L.Ed. 1385 (1939)). To further frame the issue, the Supreme Court has identified at least six factors (“Baker factors”) the court should consider to determine whether a matter raises a non-justiciable political question, including:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Baker, 369 U.S. at 217, 82 S.Ct. 691; see also Kashani, 793 F.2d at 827. When any one of the foregoing Baker factors is implicated, the court should refrain from adjudicating the issue to prevent unwarranted interference with decisions properly made by the Representative Branches of the federal government. See Munoz–Flores, 495 U.S. at 393–94, 110 S.Ct. 1964; Baker, 369 U.S. at 217, 82 S.Ct. 691.

b. Application of the Political Question Doctrine

Before determining whether any of the Baker factors require dismissal under the political question doctrine, the court must first decide the applicability of the political question doctrine based on the nature of Plaintiffs' claims. Plaintiffs argue that the political question doctrine is inapplicable here because their claims are private, not political. See Pls.' Resp. to Defs.' Mot. to Dismiss, at 25 (emphasis added). Specifically, Plaintiffs assert that the doctrine does not apply because their “claims are brought by private individuals against private corporations for tort and property harms that were occasioned by defendants' particular acts of years past, as well as their acts of today.”22 Id. The court rejects Plaintiffs' argument for two reasons. First, there are numerous cases where the federal courts have dismissed claims by private plaintiffs against private defendants on the basis of the political question doctrine. The majority of these cases arise in the context of reparations claims arising out of World War II. See, e.g., Kelberine v. Societe Internationale, 363 F.2d 989, 995 (D.C.Cir.1966); In re Nazi Era Cases Against German Defendants Litig., 129 F.Supp.2d 370, 382 (D.N.J.2001); Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 489 (D.N.J.1999); Burger–Fischer v. DeGussa AG, 65 F.Supp.2d 248, 282–85 (D.N.J.1999).

[18] Second, although Plaintiffs couch their claims as tort or property claims for acts committed by private corporate defendants, this alone does not preclude the application of the political question doctrine. The Supreme Court has stated that the identity of the litigants is immaterial to the questions raised by the political question doctrine. See Munoz–Flores, 495 U.S. at 394, 110 S.Ct. 1964. Additionally, when determining whether the political question doctrine applies, the court must look to the nature of the underlying litigation, not the specific claims enumerated in the complaint. See Renne, 501 U.S. at 316, 111 S.Ct. 2331 (to determine justiciability, the court must examine the “pleadings and record to determine the nature of the dispute and the interests of the parties in having [the issue] resolved”); see also Baker, 369 U.S. at 217, 82 S.Ct. 691 (indicating the need for a “discriminating inquiry into the precise facts and posture of the particular case” when distinguishing between “political questions” and “political cases”). Thus, the issue becomes whether Plaintiffs' claims are the type of claims that have been committed to the Representative Branches for resolution. See In re Nazi Era Cases Against German Defendants Litig., 129 F.Supp.2d at 378.

Plaintiffs' Complaint establishes that the underlying nature of their lawsuit seeks reparations for Defendants' participation in slavery dating back as far as the year 1691. See FACC ¶ 9. Although Plaintiffs request both equitable and legal relief, the bulk of this relief centers on Plaintiffs' claim for restitution. For example, Plaintiffs seek, among other things, the following remedies: (1) an accounting containing all records Defendants possess related to the slave trade and slavery; (2) equitable disgorgement of all illicit profits Defendants gained from slavery; (3) the appointment of an independent historic commission designed to fully examine Defendants' actions; (4) a constructive trust imposed on all profits Defendants gained from slavery; and (5) restitution in the value of Plaintiffs' ancestors' slave labor and Defendants' corresponding unjust enrichment. See id. ¶¶ 3, 116. These remedies collectively provide the basis for calculating and distributing the amount of restitution sought, that is the amount in which Plaintiffs claim that Defendants wrongfully benefitted from Plaintiffs' ancestors' unpaid slave labor. See United States v. Shepard, 269 F.3d 884, 885 (7th Cir.2001) (defining restitution as usually meaning the return of ill-gotten gains to which the holder is not legally entitled). Courts have consistently held that claims seeking restitution for forced labor are claims for reparations. See Iwanowa, 67 F.Supp.2d at 485 n. 84; see also Burger–Fischer, 65 F.Supp.2d at 281–82. Such claims clearly raise a question as to whether the Judicial branch of the federal government is best suited to resolve the issue. See Cato, 70 F.3d at 1110 (holding that plaintiffs' claims for slavery reparations presented a non-justiciable political question); see also Kelberine, 363 F.2d at 995 (concluding that plaintiffs' claims for reparations against private corporate defendant for its involvement in a “Nazi Conspiracy” during World War II were barred by political question doctrine).

To further support this conclusion, in a recent action seeking relief from a German company and its American subsidiaries for damages resulting from the plaintiffs' forced labor in Nazi Germany during World War II, the District Court for the District of New Jersey rejected the very same argument that Plaintiffs raise here.See In re Nazi Era Cases Against German Defendants Litig., 129 F.Supp.2d at 375 (rejecting the plaintiffs' argument that the political question doctrine cannot preclude a claim for reparations brought by an individual against a private company when the underlying abuse alleged was “fundamentally interrelated with the Nazi war effort”).

As a result, the fact that Plaintiffs refer to their claims as private rather than political does not, in and of itself, preclude the court from inquiring into the existence of a non-justiciable political question. Further, based on the nature of Plaintiffs' claims, an analysis of the political question doctrine is necessary. Having reached this conclusion, a review of Plaintiffs' Complaint reveals that all of the Baker factors are present in the underlying litigation.

(1). A Textually Demonstrable Constitutional Commitment of the Issue to a Coordinate Political Department

The Constitution commits to the Representative Branches of the United States Government the authority to resolve the issue of reparations to former slaves resulting from the Nation's role in the institution of slavery. As stated above, historians have long debated whether the issue of slavery was the actual cause of the Civil War. See supra, Part II.E. However, regardless of what actually caused the Civil War, it is clear that the abolition of slavery as an institution was a fundamental concern of the Representative Branches both during and after the war. See, e.g., Donald G. Nieman, Promises to Keep: African–Americans and the Constitutional Order. 1776 to the Present 54 (Oxford University Press 1991). Under the Constitution, the war powers are reserved to the Representative Branches of the federal government. See U.S. Const. art. I, § 8; U.S. Const. art. II, § 2; see also Doe v. Bush, 323 F.3d 133, 137 (1st Cir.2003). These powers not only include the power to declare and prosecute war, but also extend to the power to ensure a just and lasting peace following the conclusion of a war. See Ladue & Co. v. Brownell, 220 F.2d 468, 472 (7th Cir.1955) (holding that Congress may reserve the power to seize property following a formal declaration of peace). By exclusively entrusting such powers to the Representative Branches, the Constitution restricts judicial review or interference on many war-related decisions made by Congress and the President both during and after a war. See Harisiades v. Shaughnessy, 342 U.S. 580, 589–90, 72 S.Ct. 512, 96 L.Ed. 586 (1952).

In this case, there is a strong historical record indicating that the relief sought, reparations to former slaves following the Civil War, was considered and rejected by the Representative Branches in lieu of other forms of relief. This relief came in many forms, including wartime and post-war legislation, civil rights legislation, and constitutional amendments—all intended to ensure the liberty of the newly freed slaves and benefit them generally.

For example, prior to the end of the Civil War, Congress passed the Federal Confiscation Acts designed to punish those who participated in the rebellion by confiscating their property. See An Act to Confiscate Property Used for Insurrectionary Purposes, ch. 60, 12 Stat. 319 (Aug. 6, 1861), as amended by, An Act to Suppress Insurrection, to Punish Treason and Rebellion, to Seize and Confiscate the Property of Rebels, and for Other Purposes, ch. 195, 12 Stat. 589 (July 17, 1862). The Confiscation Acts also freed tens of thousands of slaves who had fled to Union forces by the summer of 1862.See id. Shortly thereafter, following a series of Union victories, President Lincoln, using his constitutional authority as Commander–in–Chief, issued the Emancipation Proclamation on January 1, 1863. See Abraham Lincoln, The Emancipation Proclamation, Exec. Proclamation No. 17 (Jan. 1, 1863), reprinted in 12 Stat. 1268 (1863). The Emancipation Proclamation freed all slaves in the states under Confederate control. Id.

Other wartime efforts to ensure the well-being of the newly freed slaves included Congress' creation of the Freedman's Bureau in March 1865. See An Act to Establish a Bureau for the Relief of Freedmen and Refugees, ch. 90, 13 Stat. 507 (March 3, 1865). Congress created the Freedman's Bureau pursuant to the war powers to provide former slaves food, clothing, supplies, job placement, educational facilities and homestead land. Id.; see also Albert P. Blaustein and Robert L. Zangrando, Civil Rights and the American Negro: A Documentary History 210 (Washington Square Press, Inc., New York 1968). The Bureau had the authority to rent or sell to freed slaves land abandoned or confiscated in the Confederacy. Id. Although Congress initially intended for the Bureau's authority to expire one-year after the completion of the Civil War, Congress voted to extend the Bureau's powers over President Johnson's veto. See An Act to Continue in Force and to Amend An Act to Establish a Bureau for the Relief of Freedmen and Refugees, and for Other Purposes, ch. 200, 14 Stat. 173 (July 16, 1866); An Act to Continue the Bureau for the Relief of Freedmen and Refugees, and for Other Purposes, ch. 135, 15 Stat. 83 (July 6, 1868); see also George R. Bentley, A History of the Freedmen's Bureau 133 (Octagon Books 1970) (1955).

Congress also passed numerous Civil Rights Acts between the period of 1866– 1875. Specifically, the Civil Rights Acts of 1866, 1870, 1871 and 1875 were enacted to secure civil rights for the newly freed slaves. Most notably, the Civil Rights Act of 1866 declared “[a]ll persons” to be citizens of the United States and guaranteed them legal equality throughout the nation.23 See Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (April 6, 1866). The Act provided that “[a]ll persons ... shall have the same right in every State ... as is enjoyed by white citizens.” Id. § 1 (currently codified, as amended, at 42 U.S.C. § 1981 (2003)).

Additionally, Congress ratified three constitutional amendments (hereinafter collectively referred to as the “Civil War Amendments”) between the period of 1865 to 1870 to ensure the liberty of the newly freed slaves. The Thirteenth Amendment, ratified on December 6, 1865, provides, in part: “Neither slavery nor involuntary servitude ... shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII, § 1. This amendment formally abolished slavery within the United States by prohibiting individual states from enacting legislation authorizing the use of slavery within their borders. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) (noting that the Thirteenth Amendment effectively abolished slavery and gave Congress the “power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States”) (internal quotations omitted). Congress then ratified the Fourteenth Amendment on July 9, 1868, declaring among other things, that all persons born or naturalized in the United States were United States citizens and citizens in the state in which they resided.See U.S. Const. amend. XIV, § 1. Section 1 of this Amendment effectively overruled the Supreme Court's Dred Scott24 decision, ultimately making freed slaves citizens of the United States. Finally, on February 3, 1870, Congress ratified the Fifteenth Amendment with the intention of granting African–Americans the right of suffrage.25 The Fifteenth Amendment provides, in part: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on the account of race, color, or previous condition of servitude.” U.S. Const. amend XV, § 1. Concerned with the possibility that individual states may attempt to circumvent the purpose behind the Civil War Amendments, Congress included an enabling clause in all three of the Civil War Amendments—giving it the exclusive power to enforce the Amendments with appropriate legislation. See U.S. Const. amend XIII, § 2; see also U.S. Const. amend XIV, § 5; U.S. Const. amend XV, § 2.

More directly on point, the Representative Branches considered the issue of reparations to freed slaves for harms suffered as a result of the institution of slavery.26 Congressman Thaddeus Stevens proposed a bill that would have utilized the Confiscation Acts to seize public and private real property within the former Confederate States. See H.R. 29, 40th Cong. § 1, 2 (1867). The confiscated property would have been distributed to freed slaves. See id. § 4. Specifically, the text of that bill provided, inter alia:

That out of the lands thus seized and confiscated the slaves who have been liberated by the operations of the war and the amendment to the Constitution or otherwise, who reside in said “confederate States” on the 4th day of March, A.D. 1861, or since, shall have distributed to them as follows, namely: to each male person who is the head of a family, forty acres; to each adult male, whether the head of a family or not, forty acres; to each widow who is the head of a family, forty acres—to be held by them in fee-simple, but to be inalienable for the next ten years after they come seized thereof. Id. In addition, each freed slave would have also been entitled to a monetary grant for the purpose erecting buildings on these distributed lands. See id. § 5.

Stevens passionately advocated for passage of this bill. Stevens indicated that H.R. 29 was designed to help several classes of persons, including freed slaves, stating:

[H.R. 29] is important to four millions of injured, oppressed, and helpless men, whose ancestors for two centuries have been held in bondage and compelled to earn the very property a small portion of which we propose to restore to them, and who are now destitute, helpless, and exposed to want and starvation under the deliberate cruelty of their former masters.... The cause of the war was slavery. We have liberated the slaves. It is our duty to protect them and provide for them while they are unable to provide for themselves. Have we not a right, in the language of Vattel, ‘to do ourselves justice respecting the object which has caused the war,’ by taking lands for homesteads for these ‘objects' of the war?

Cong. Globe, 40th Cong., 1st Sess. 204 (1867) (statement of Congressman Stevens). According to Stevens, passage of H.R. 29 would have served two objectives. First, the bill would have served to punish the Confederate States for their treasonous war. As Stevens stated: “You hold at your feet a conquered foe, an atrocious enemy. Tell him on what terms he may arise and depart or remain loyal. But do not embrace him too hastily. Be sure first that there is no dagger in his girdle.” Id. at 205. Second, the bill would have served to place freed slaves on the path to economic independence. As Stevens stated:

Four million people have just been freed from a condition of dependence, wholly unacquainted with business transactions, kept systematically in ignorance of all their rights and of the common elements of education, without which none of any race are competent to earn an honest living, to guard against the frauds which will always be practiced on the ignorant, or to judge of the most judicious manner of applying their labor.  Id.

In the Senate, Senator Charles Sumner also championed this vision of land distribution as a form of reparations to freed slaves. See Cong. Globe, 40th Cong., 1st Sess. 15, 49–56, 79, 114, 147, 203–08, 304–08, 463 (1867) (statements of Senator Sumner). According to Sumner, “all who are now familiar with the process of reconstruction have felt that our work would be incomplete unless in some way or another we secured to the freedmen a piece of land.” Cong. Globe, 40th Cong., 1st Sess. 50 (1867) (statement of Senator Sumner). One particular proposed resolution of Sumner's provided, inter alia: “Not less important than education is the homestead, which must be secured to the freedmen, so that at least every head of a family may have a piece of land.” Id. (reading text of proposed resolution, Miscellaneous Document No. 1, § 5).

The idea of land distribution was also a plan of the Bureau of Refugees, Freedmen, and Abandoned Land. See generally Bentley, supra at 49. However, the idea of land distribution was ultimately abandoned, with President Andrew Johnson pursuing a plan to pardon Confederate sympathizers and restore their property rights. See Claude F. Oubre, Forty Acres and a Mule: The Freedmen's Bureau and Black Land Ownership 61—71 (1978).

The words of Senator Sumner, lamenting the decision not to extend monetary or property reparations to freed slaves, is hauntingly prophetic of the continued post-Emancipation reparations movement: “I do not like to play the part of Cassandra;27 but I cannot forbear declaring my conviction that we shall regret hereafter that we have not done more.” Cong. Globe, 40th Cong., 1st Sess. 165 (1867) (statement of Senator Sumner). Yet, that does not change the fact that the Representative Branches considered the issue of reparations to former slaves, and the chosen vessels of reparations came in the form of constitutional and legislative enactments guaranteeing equality under the law and freedom from discrimination. It is the political question doctrine that militates that this court attribute finality to those decisions, and not posit itself as the ultimate authority on the issue by second guessing those decisions. See Baker, 369 U.S. at 210, 82 S.Ct. 691. It is not the province of this court to say that more could have been done in the past; as such decisions are in the nature of political questions committed to the Representative Branches.

In conclusion, based on the historical record presented here, it is clear that both during and after the Civil War the issue of reparations to former slaves was one committed to the Representative Branches of the federal government. It was the President and Congress who prosecuted the military and political aspects of the Civil War, ultimately leading to the conclusion of the war. With a goal of preserving the Union and securing an acceptable and lasting peace, it again was the President and Congress who chose to amend the Constitution and enact civil rights legislation in an effort to provide legal equality to the newly freed slaves. Although the Representative Branches decided to take this particular course of conduct in lieu of providing reparations to former slaves, the historical record clearly demonstrates that the Constitution commits this decision to the Representative Branches. See Alperin v. Vatican Bank, 242 F.Supp.2d 686, 692 (N.D.Cal.2003) (noting that “a court must consider the totality of the circumstances in determining whether a claim is one committed to the political branches for resolution”). By requiring the court to second-guess the decisions of the Representative Branches made more than a century ago, Plaintiffs' Complaint presents a non-justiciable political question. See Cato, 70 F.3d at 1110 (affirming the dismissal of plaintiffs' slavery reparations complaint on political question grounds based on Congress' desire “to prevent judicial second guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort”) (internal quotations and citations omitted).

(2). Judicially Discoverable and Manageable Standards

There also exists a lack of “judicially discoverable and manageable standards” for resolving Plaintiffs' claims in this case. Baker, 369 U.S. at 217, 82 S.Ct. 691. Defendants argue, and the court agrees, that the historical issues raised in Plaintiffs' Complaint “involve too broad a span of conduct over too broad an expanse of time to be susceptible to any manageable judicial standards for resolution.” See Defs.' Joint Mot. to Dismiss, at 35. As stated in the Complaint, the relevant events took place as far back as the year 1619. See FACC ¶ 9. Absent a political framework, the court is ill-equipped to determine many issues posed in a dispute covering a period of almost 400 years. This includes, for example, determining such issues as consanguinity and apportionment of liability given the multiple generations associated with the litigation. See, e.g., Eric A. Posner and Adrian Vermeule, Reparations For Slavery and Other Historical Injustices, 103 Colum. L.Rev. 689, 702 (2003) (discussing the limited effect of the restitutionary theory of reparations where the claim is made several generations removed from the actual wrongdoing).

In support of their claims, Plaintiffs rely on In re Holocaust Victim Assets Litig., 105 F.Supp.2d 139 (E.D.N.Y.2000), to support their assertion that this type of case is “extremely well suited to judicial resolutions.” See Pls.' Resp. to Def.'s Mot. to Dismiss, at 30 n. 47; see also Pls.' Sur-reply Br., at 6 n.20. In the Holocaust Victim case, the district court approved a class action settlement between Holocaust victims and two leading Swiss banks after the plaintiffs brought suit alleging, among other things, that the defendants “collaborated with and aided the Nazi regime in furtherance of war crimes, crimes against humanity, crimes against peace, slave labor and genocide.” 105 F.Supp.2d at 141. However, the Holocaust Victim case is clearly distinguishable from the present action because in its opinion, the court noted that because the settlement was reached while the defendants' motions to dismiss were pending, the court did not have to decide the issues raised in the motions. Id. at 142. Thus, the Holocaust Victim court never considered whether the issues raised in the plaintiffs' complaint implicated a non-justiciable political question.

Moreover, although it can be argued that in certain cases such issues similar to those presented in Plaintiffs' Complaint are not entirely inappropriate for judicial resolution, this case is not one of them. Because the events surrounding the institution of slavery and the Civil War are so deeply rooted in our Nation's history, the issues that may appear to be capable of judicial resolution in an ordinary case move beyond the province of this court given the magnitude of the events that preceded them. Cf. Nazi Era Cases Against German Defendants Litig., 129 F.Supp.2d at 389 (stating that the magnitude of World War II has placed Plaintiffs' claims for reparations beyond the province of judicial determination and “into the political realm”).

Ultimately, the court is persuaded by the reasoning adopted by other courts that have considered the issue in the context of reparations for forced labor during World War II and have held that such claims are not suitable for judicial resolution. See, e.g., Kelberine, 363 F.2d at 995; Iwanowa, 67 F.Supp.2d at 489; Burger–Fischer, 65 F.Supp.2d at 283–84; Alperin, 242 F.Supp.2d at 695; Anderman v. Federal Republic of Austria, 256 F.Supp.2d 1098, 1115 (C.D.Cal.2003). In Kelberine, while discussing whether a private corporation should be liable for its involvement in the Nazi conspiracy of 1933–45, the Appeals Court for the D.C. Circuit stated:

We are of the opinion the thesis is not presently susceptible of judicial implementation. It may be that the Congress might enact a program and a procedure by which the objectives prayed for could be achieved. But we think the courts alone cannot do it. As presently framed, the problem is not within the established scope of judicial authority.... The span between the doing of the damage and the application of the claimed assuagement is too vague. The time is too long. The identity of the alleged tortfeasors is too indefinite. The procedure sought—adjudication of some two hundred thousand claims for multifarious damages inflicted twenty to thirty years ago in a European area by a government then in power—is too costly, to justify undertaking by a court without legislative provision of the means wherewith to proceed.... The events, the witnesses, the guilty tortfeasors, their membership in the conspiracy are all so potentially vague at this point as to pose an insoluble problem if undertaken by the courts without legislative or executive guidance, authorization or support. The whole concept is too uncertain of legal validity to sustain the self-establishment of the proceedings by a court in the absence of specific legislative or executive formulation. Id.

The issues raised by the Kelberine court, particularly those relating to the impracticality of judicially resolving disputes covering vast time periods and containing numerous unidentifiable tortfeasors, are clearly present in the underlying litigation. Although Plaintiffs attempt to distinguish the World War II reparation cases from their case, many of the issues raised in Kelberine and its progeny are plentiful in the underlying litigation. As such, the second Baker factor also requires dismissal of Plaintiffs' Complaint.

(3). Remaining Baker Factors

As stated above, the issues raised in Plaintiffs' Complaint involve events that have had a significant impact on our Nation's historical development. See supra Part IV.A.2.b.(1). Both during and after the Civil War, the Representative Branches implemented various policies aimed at resolving the problems and challenges stemming from the abolition of slavery within the United States. These policies included, among others, the enactment of several Civil Rights Acts and the ratification of the Civil War Amendments—all of which were intended to provide legal equality to the newly freed slaves. Even throughout the twentieth century, the Representative Branches continued to establish these policies by enacting further civil rights legislation and by implementing various relief programs intended to benefit minorities—many of whom are descendants of former slaves.

By bringing their claims for slavery reparations before the court, Plaintiffs require the court to criticize or question actions or decisions or policies made by the Representative Branches over a period spanning more than a century. Given our constitutional structure, policy determinations of this type are for elected officials, not the courts. Moreover, during and after the bloodiest war in this country's history, the Representative Branches grappled with these issues while simultaneously trying to conclude the war and ensure lasting peace. Allowing Plaintiffs, through private litigation, to seek reparations for wrongs committed prior to and during the Civil War clearly expresses a lack of respect for the Representative Branches and their attempted resolution of such issues over the past century and one-half.28 Although Plaintiffs question the choices made by the Representative Branches and the effectiveness of these decisions in providing equality to descendants of former slaves, the fact remains that these are political questions which the court must decline to determine. Cf. Burger–Fischer, 65 F.Supp.2d at 282 (concluding that courts cannot re-examine the adequacy of reparation agreements between the United States and other World War II combatants because doing so implicates a political question in which the court must decline to determine).

c. Conclusion

In sum, the issues raised in Plaintiffs' Complaint implicate all of the factors established by the Supreme Court identifying a non-justiciable political question. See Baker, 369 U.S. at 217, 82 S.Ct. 691. As such, each Baker factor provides a separate and independent basis for the court to dismiss Plaintiffs' Complaint under the well-settled political question doctrine. See id.

 

The site is available without logging in. However, if you want to post a comment you must login. Your email address will only be use to provide updates on race, racism and the law.

 patreonblack02