Mark Munns v. John F. Kerry

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK MUNNS; CHRISTA MUNNS, No. 12-15969 administrators for the separate Estate of Joshua Munns; DENNIS D.C. No. DEBRABANDER; SHARON 2:10-cv-00681- DEBRABANDER, administrators for MCE-EFB the separate Estate of John Young; LORI SILVERI, administrator for the separate Estate of John Cote, OPINION Plaintiffs-Appellants,

v.

JOHN F. KERRY, in his official capacity as United States Secretary of State; JENNIFER FOO, in her official capacity; UNITED STATES OF

AMERICA; LLOYD’S OF LONDON;

CNA FINANCIAL CORPORATION,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., Chief District Judge, Presiding

Argued and Submitted September 11, 2014—San Francisco, California

Filed March 20, 2015 Before: Stephen Reinhardt, Raymond C. Fisher and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Fisher; Concurrence by Judge Reinhardt

SUMMARY*

Standing / Jurisdiction

The panel affirmed the district court’s dismissal of the plaintiffs’ equitable claims due to…

concurring:

I join fully in Judge Fisher’s opinion for the court. Although it answers every legal issue presented to us correctly, I would like to emphasize a few points, mainly to make certain that it is clear that it would not be appropriate for us to resolve in this case any questions regarding the proper policies for our government to follow with respect to the role of contractors in Iraq. Nor, more important, would it be appropriate for us to determine here how the government, or the families of hostages, should deal with any terrorist group or other foreign entities who may hold captive relatives of citizens of the United States.

As to the former issue, it is agreed that the Order issued by the Coalition Provisional Authority governing contractors in Iraq is no longer in effect; nor is there any indication that it will be reinstated by the Coalition or by our government in the future. Under these circumstances, the one plaintiff who tells us that he may someday want to work for a contractor in Iraq has no legal basis for requesting us to rule on a non-existent government policy. Neither Mr. Bjorlin nor we have any idea what our policy may be as to government contractors if…

This case arises from the kidnappings and brutal killings of three Americans who were providing contract security services during the United States military occupation of Iraq. The plaintiffs, who include family members and a former coworker of these three men, brought suit against United States government officials to challenge policies governing the supervision of private contractors and the response to kidnappings of American citizens in Iraq (“policy claims”). They also claim the government is withholding back pay, life insurance proceeds and government benefits owed to the families of the deceased contractors (“monetary claims”).

The district court dismissed the policy claims for lack of standing and for presenting nonjusticiable political questions. It dismissed the monetary claims for failure to establish a waiver of the government’s sovereign immunity from suits for damages and for failure to state a claim for which relief could be granted. We hold that the plaintiffs have not shown they are likely to be harmed in the future by the challenged policies. They therefore lack standing to seek prospective declaratory and injunctive relief regarding those policies. We…