**No. 00-1163**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**IN THE UNITED STATES COURT OF APPEALS**

**FOR THE THIRD CIRCUIT**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**KANG JOO KWAN, Individually and as Representative of a Class;**

**SE JEIK PARK, on behalf of members of the National Assembly of**

**the Republic of Korea; REPUBLIC OF KOREA, A Sovereign State**

**Appellants**

**v.**

**UNITED STATES OF AMERICA**

**Appellee**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**ON APPEAL FROM THE UNITED STATES DISTRICT COURT**

**FOR THE EASTERN DISTRICT OF PENNSYLVANIA**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**BRIEF FOR THE APPELLEE**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Of Counsel: DAVID W. OGDEN**

**[Assistant Attorney General]{.underline}**

**RONALD J. BETTAUER**

**[Deputy Legal Adviser]{.underline} MICHAEL R. STILES**

**[U.S. Department of State]{.underline} [United States
Attorney]{.underline}**

**[2201 C Street, N.W.]{.underline}**

**[Washington, D.C. 20520]{.underline} MARK B. STERN**

**(202) 514-5089**

**MICHAEL S. RAAB**

**(202) 514-4053**

**[Attorneys, Appellate Staff]{.underline}**

**[Civil Division]{.underline}**

**[U.S. Department of Justice]{.underline}**

**[601 D Street, N.W., Room 9530]{.underline}**

**[Washington, D.C. 20530-0001]{.underline}**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

No. 00-1163

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

KANG JOO KWAN, Individually and as Representative of a Class;

SE JEIK PARK, on behalf of members of the National Assembly of

the Republic of Korea; REPUBLIC OF KOREA, A Sovereign State[^1]

Appellants

v\.

UNITED STATES OF AMERICA

Appellee

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

BRIEF FOR THE APPELLEE

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION**

Plaintiffs invoked the jurisdiction of the district court under 28
U.S.C. §§ 1331, 1332(a)(4), 1346(a), and 1361. [See]{.underline} Joint
Appendix (\"J.A.\") 70, ¶ 5 (Amended Complaint). The district court
entered a final order on February 14, 2000. Plaintiffs filed a notice of
appeal on March 2, 2000, within the 60-day period specified in Fed. R.
App. P. 4(a)(1)(B). [See]{.underline} J.A. 27 (Docket Entry 30). As
explained below (at pages 19-20), the district court lacked jurisdiction
over plaintiffs\' claims for damages under the Little Tucker Act, 28
U.S.C. § 1346(a)(2), because that statute does not encompass claims
under international agreements. This Court accordingly has jurisdiction
over this appeal under 28 U.S.C. § 1291. If, however, this Court were to
conclude that the district court had jurisdiction over plaintiffs\'
claims for damages under the Little Tucker Act, then the United States
Court of Appeals for the Federal Circuit would have exclusive
jurisdiction to review the judgment below. [See]{.underline} 28 U.S.C. §
1295(a)(2); page 20 & n.9, [infra]{.underline}.

**STATEMENT OF THE ISSUES** **PRESENTED FOR REVIEW**

1\. Whether the plaintiffs have a private right of action to enforce an
international agreement between the governments of the United States and
the Republic of Korea (\"ROK\") that addresses the payment of certain
\"gratuities\" to the ROK for military casualties suffered during the
Vietnam conflict.

2\. Whether this lawsuit presents a nonjusticiable political question.

3\. Whether the United States has waived its sovereign immu-nity from
plaintiffs\' claims for damages.

**STATEMENT OF THE CASE**

Plaintiffs in this suit seek to enforce an international agreement for
military and economic assistance between the governments of the United
States and the Republic of Korea. That agreement is embodied in a March
1966 letter from United States Ambassador Winthrop G. Brown to the
ROK\'s Minister of Foreign Affairs (the \"Brown Commitment\"). The
letter was issued in response to the ROK\'s decision to deploy
additional combat troops in the Republic of South Vietnam and states
that the United States is prepared to furnish certain military and
economic assistance to the ROK, including the payment of enhanced
\"gratuities\" for ROK casualties suffered in Vietnam. J.A. 35, 79.

The plaintiffs in this case are two ROK nationals \-- a veteran of the
Vietnam conflict and a member of the Korean National Assembly. They seek
declaratory, injunctive, and monetary relief on behalf of themselves as
well as (1) a class of ROK veterans of the Vietnam conflict and (2) the
members of the Korean National Assembly. Although the amended complaint
also listed the ROK as a plaintiff, the ROK never authorized its
participation in the case ([see]{.underline} J.A. 14-15), and plaintiffs
concede (Pl. Br. 4 n.1) that the ROK is not a party to this appeal.

The district court granted a motion to dismiss filed by the United
States. The court held that the plaintiffs lacked standing because,
among other things, the Brown Commitment does not confer any right on
the individual plaintiffs to enforce its provisions. [See]{.underline}
J.A. 9. The court further held that plaintiffs\' suit presents a
nonjusticiable political question. J.A. 17-21.

**STATEMENT OF FACTS**

> **I. The Brown Commitment.**

The \"Brown Commitment\" is a March 4, 1966 letter from Winthrop G.
Brown \-- the United States Ambassador to the ROK \-- to the ROK\'s
Minister of Foreign Affairs. [See]{.underline} J.A. 34-37, 78-81.[^2]
The letter, labeled \"[SECRET]{.underline},\" was sent after the ROK\'s
Minister of Foreign Affairs advised Ambassador Brown that \"the
Government of the Republic of Korea \* \* \* received a request from the
Government of the Republic of Vietnam for deployment to the Republic of
Vietnam of additional Korean combat troops\" and that the government of
the ROK \"decided to provide the requested assistance to the Government
of the Republic of Vietnam \* \* \*.\" J.A. 34, 78.

The Brown Commitment explained that \"in view of our common interest in
the security and progress of the Republic of Korea, the United States is
prepared to take the following measures to see to it that the integrity
of Korea\'s defense is maintained and strengthened and that Korea\'s
economic progress is further promoted.\" J.A. 34, 78. The \"measures\"
that the United States was \"prepared to take\" constituted various
forms of military and economic assistance. J.A. 34-37, 78-81. Included
among the military assistance listed in the Brown Commitment was the
provision of \"death and disability gratuities resulting from casualties
in Vietnam at double the rates recently agreed to by the Joint United
States-Republic of Korea Military Committee.\" J.A. 35, 79.

> **II. The Present Litigation.**

This is an action against the United States for declaratory, injunctive,
and monetary relief. Plaintiff Kang Joo Kwan, a private citizen of the
Republic of Korea (\"ROK\"), seeks relief on behalf of himself and a
class of individuals who served in the armed forces of the Republic of
Korea and assisted U.S. troops in the Vietnam conflict from 1963 to
1975. J.A. 69, ¶ 2. Plaintiff Se Jeik Park, a member of the Korean
National Assembly, seeks relief \"as a member of and on behalf of 270
members of the National Assembly of the Republic of Korea.\" J.A. 70, ¶
3.

Kwan alleges that he suffered injuries while serving in South Vietnam
and that he, and all others similarly situated, were \"intended third
party beneficiaries\" of the Brown Commitment and other unspecified
\"understandings and agreements.\" J.A. 71-72, ¶¶ 12, 14 (Amended
Complaint). Kwan further alleges that the United States \"continues to
refuse to abide by the terms of\" the Brown Commitment and that the
United States is liable to him as a result. J.A. 73, ¶ 18. Park alleges
that the United States government is similarly liable to him, on behalf
of the Republic of Korea, for failing to abide by the terms of the Brown
Commitment. J.A. 73, ¶ 19. Plaintiffs requested a declaratory judgment,
an order compelling the United States to perform its duties under the
Brown Commitment and other unspecified \"understandings and
agreements,\" and a judgment \"in an amount up to and including
\$10,000\" against the United States in favor of Kwan and each class
member under the Brown Commitment. J.A. 75-76.

The district court dismissed the plaintiffs\' complaint.
[See]{.underline} J.A. 2. The court held that plaintiffs Kwan and Park
lacked standing to pursue relief under the Brown Commitment because the
Commitment confers no private right of action to enforce that agreement.
[See]{.underline} J.A. 9. The court further concluded that the Republic
of Korea had not formally protested any action by the United States
under the Brown Commitment ([see]{.underline} J.A. 11-14) and that the
responsible officials of ROK government did not authorize the filing of
this suit in the name of the ROK ([see]{.underline} J.A. 14-16). The
court also held that plaintiffs\' suit presented a nonjusticiable
political question. J.A. 17-21.

**STATEMENT OF RELATED CASES AND PROCEEDINGS**

This case has not been before this Court previously. Plaintiff Kang Joo
Kwan, on behalf of himself and a class, filed a similar lawsuit against
the United States in November 1997. [Kang Joo Kwan]{.underline} v.
[United States]{.underline}, No. 97-CV-7112 (E.D. Pa.). Kwan voluntarily
dismissed that lawsuit in June 1998. [See]{.underline} J.A. 4. Counsel
for the United States are unaware of any other related cases.

**SUMMARY OF ARGUMENT**

This suit seeks judicial enforcement of the Brown Commitment, a
sensitive international agreement of the United States that was secretly
negotiated by high-ranking officials of the United States and the
Republic of Korea during the Vietnam conflict. The district court
correctly dismissed this suit.

**A.** The Brown Commitment confers no private rights of action. In
recognition of the ROK\'s decision to deploy additional combat troops to
Vietnam in 1966, the Brown Commitment expressed the willingness of the
United States government to provide specified forms of military and
economic assistance to the ROK government. The Commitment includes no
provision that even remotely suggests an intent to confer private rights
of action in favor of ROK citizens against the United States. The stated
purpose of the Commitment was to maintain and strengthen the ROK\'s
defense and promote ROK\'s economic progress; the Commitment was secret
at the time it was negotiated (and its very existence, therefore, was
unknown to the purported third-party beneficiaries); and nothing in the
Commitment provided for payments to be made directly to injured ROK
service members.

It is presumed that treaties and other international agreements do not
create private rights of action, and nothing in the text or purpose of
the Brown Commitment overcomes that presumption. Indeed, the Commitment
includes no provisions addressing the resolution of disputes between the
governments of the United States and the ROK, let alone any provisions
authorizing private rights of action by individual ROK citizens against
the United States. The Executive Branch, which is entitled to great
deference in interpreting international agreements, has concluded that
the Commitment provides no private rights of action. The district court
correctly reached the same conclusion.

**B.** The district court also correctly held that this lawsuit is not
justiciable. This case threatens to undermine the Executive Branch\'s
ability to conduct effective foreign policy. The courts have repeatedly
recognized that they lack authority to determine that the United States
or a foreign government has violated the terms of a treaty, or to order
a remedy for any such violation. Plaintiffs seek to inject the judiciary
into a matter that is properly the subject of diplomatic negotiation
between the governments of the ROK and the United States. The district
court properly declined plaintiffs\' invitation.

**C.** Plaintiffs also have failed to identify any statute that waives
the sovereign immunity of the United States from their claims for
damages. The absence of such a waiver provides an alternative basis for
dismissing those claims.

**ARGUMENT**

**I. Standard of Review.**

The district court\'s grant of the government\'s motion to dismiss this
suit is subject to plenary review. [See]{.underline},
[e.g.]{.underline}, [United States]{.underline} v. [Occidental Chemical
Corp.]{.underline}, 200 F.3d 143, 147 (3d Cir. 1999); [Delaware Valley
Citizens Council for Clean Air]{.underline} v. [Davis]{.underline}, 932
F.2d 256, 264 (3d Cir. 1991).

**II. The District Court Correctly Dismissed This Lawsuit.**

> **A. Plaintiffs Have No Private Right Of Action To Enforce The Brown
> Commitment.**

**1.** Plaintiffs seek to enforce an international agreement through a
private right of action against the United States. As this Court has
recognized, \"\[b\]ecause treaties are agreements between nations,
individuals ordinarily may not challenge treaty interpretations in the
absence of an express provision within the treaty or an action brought
by a signatory nation.\" [United States ex rel. Saroop]{.underline} v.
[Garcia]{.underline}, 109 F.3d 165, 167 (3d Cir. 1997).[^3] Indeed, it
is well established that \"\[i\]nternational treaties are not presumed
to create rights that are privately enforceable.\" [Goldstar (Panama)
S.A.]{.underline} v. [United States]{.underline}, 967 F.2d 965, 968 (4th
Cir.), [cert]{.underline}. [denied]{.underline}, 506 U.S. 955 (1992);
[see]{.underline} [United States]{.underline} v. [Li]{.underline}, 206
F.3d 56, 60 (1st Cir. 2000) (en banc) (\"treaties do not generally
create rights that are privately enforceable in the federal courts\"),
[petitions]{.underline} [for]{.underline} [cert]{.underline}.
[filed]{.underline}, No. 99-9768 (May 30, 2000) and No. 99-9770 (May 26,
2000); [see]{.underline} [also]{.underline} [United States]{.underline}
v. [Diekelman]{.underline}, 92 U.S. 520, 524 (1875);
[Charlton]{.underline} v. [Kelly]{.underline}, 229 U.S. 447, 474 (1913);
[Edye]{.underline} v. [Robertson]{.underline} ([Head Money
Cases]{.underline}), 112 U.S. 580, 598 (1884); [United
States]{.underline} v. [Davis]{.underline}, 767 F.2d 1025, 1030 (2d Cir.
1985) (\"\'even where a treaty provides certain benefits for nationals
of a particular state‑‑such as fishing rights‑‑it is traditionally held
that \"any rights arising from such provisions are, under international
law, those of states and . . . individual rights are only derivative
through the states.\"\'\" (citations omitted)); [Canadian Transport
Co.]{.underline} v. [United States]{.underline}, 663 F.2d 1081, 1092
(D.C. Cir. 1980) (\"the treaty must be interpreted in accord with the
rule that treaty violations are normally to be redressed outside the
courtroom\").[^4]

Thus, plaintiffs must demonstrate that the Brown Commitment confers on
them a private right to enforce the Commitment against the United
States. As the district court correctly recognized (J.A. 9), however,
the Brown Commitment creates no private causes of action. The Brown
Commitment formed part of a sensitive diplomatic dialogue between the
United States and the government of the ROK during the heart of the
Vietnam conflict; it was issued in response to the ROK\'s decision to
deploy additional combat troops to Vietnam. The Brown Commitment was
intended to ensure that \"the integrity of Korea\'s defense is
maintained and strengthened and that Korea\'s economic progress is
further promoted,\" J.A. 78, not to confer private rights of action on
individual ROK citizens.

As the district court recognized, \"\[n\]othing in the Brown Commitment
authorizes payment of benefits from the United States directly to
individual Korean veterans.\" J.A. 6; [see]{.underline} J.A. 102, ¶ 19
(Declaration of James G. Hergen). Indeed, the text of the Brown
Commitment simply lists various forms of government-to-government
assistance that the United States was \"prepared\" to provide in
recognition of the ROK government\'s contributions to the conduct of the
Vietnam conflict, including certain death and disability \"gratuities.\"
J.A. 78-79. The United States accord-ingly has made payments under the
Brown Commitment to the ROK government, not to individual ROK nationals.
[See]{.underline} J.A. 20.

In addition, the Brown Commitment was kept confidential at the time it
was negotiated; each of its pages is marked \"[SECRET]{.underline}.\"
[See]{.underline} J.A. 78-81. It strains credulity to suggest that the
parties intended to secretly confer private causes of action on ROK
military personnel without in any way informing the purported
beneficiaries.

In short, the indication by the United States in a secret agreement that
it was \"prepared\" to provide certain death and disability
\"gratuities\" to the ROK government cannot reasonably be interpreted to
establish an individual, judicially enforceable right to obtain
compensation from the United States. Indeed, the Brown Commitment is
absolutely silent regarding dispute resolution, even as between the
United States and the Republic of Korea, let alone with respect to
individual ROK citizens.

Even if the Brown Commitment could plausibly be interpreted to confer
private rights of action (and it cannot for the reasons discussed
above), the Executive Branch\'s contrary interpretation of the agreement
nonetheless would be entitled to great deference. [See]{.underline},
[e.g.]{.underline}, [El Al Israel Airlines, Ltd.]{.underline} v. [Tsui
Yuan Tseng]{.underline}, 525 U.S. 155, 168 (1999) (\"Respect is
ordinarily due the reasonable views of the Executive Branch concerning
the meaning of an international treaty\"); [Sumitomo Shoji America,
Inc.]{.underline} v. [Avagliano]{.underline}, 457 U.S. 176, 184-85
(1982) (\"Although not conclusive, the meaning attributed to treaty
provisions by the Government agencies charged with their negotiation and
enforcement is entitled to great weight\"); [Kolovrat]{.underline} v.
[Oregon]{.underline}, 366 U.S. 187, 194 (1961) (same);
[More]{.underline} v. [Intelcom Support Services, Inc.]{.underline}, 960
F.2d 466, 471-72 (5th Cir. 1992); Restatement (Third) of the Foreign
Relations Law of the United States § 326 comment b (1987). The Executive
Branch\'s interpreta-tion of the Brown Commitment to foreclose private
rights of action is manifestly reasonable and warrants judicial
deference.[^5] **2.** As the district court recognized (J.A. 9-11),
plaintiffs\' claims are not rendered any more viable by labeling them as
claims under a contract rather than an international agreement.
Plaintiffs alleged in their complaint that the government had violated
certain \"understandings and agreements\" between the governments of the
United States and the ROK. [See]{.underline} J.A. 72, ¶ 14; J.A. 73, ¶
19. But the only specific agreement that plaintiffs have identified is
the Brown Commitment, and that agreement includes no judicially
enforceable promises to the plaintiffs.

In addition, although treaties and international agreements such as the
Brown Commitment are often characterized as \"contracts between
independent nations,\" they are to be interpreted in accordance with
\"\'the public law of nations\'\" [Santovincenzo]{.underline} v.
[Egan]{.underline}, 284 U.S. 30, 40 (1931) (citation omitted), not
domestic contract law. Indeed, the rights and remedies that exist for
breaches of international agreements differ from those available under
domestic law for breaches of commercial contracts. Special rules govern
breaches of international agreements even where (unlike the agreement in
this case) the underlying instrument creates a private right of action.
[See]{.underline} [generally]{.underline} 28 U.S.C. § 1502 (establishing
exception to jurisdiction of Court of Federal Claims for claims against
the United States \"growing out of or dependent upon any treaty entered
into with foreign nations\"); Restatement (Third) of the Foreign
Relations Law of the United States §§ 902, 907 (1987).

**3.** Perhaps recognizing the difficulties of pursuing a private cause
of action against the United States, plaintiffs sought to name the
Republic of Korea itself as a plaintiff in their amended complaint. But
the ROK has never been a party to this case; plaintiffs have never
obtained the requisite governmental approval to pursue this action in
the name of the ROK. [See]{.underline} J.A. 15-16. Indeed, in July 1999,
the Korean Ministries of Foreign Affairs and Justice \"officially
confirmed\" to the State Department that the Republic of Korea \"is not
a party to this lawsuit.\" J.A. 102, ¶ 20 (Declaration of James G.
Hergen); [see]{.underline} J.A. 14. Thus, ROK was never a party to the
proceedings below. And, as plaintiffs concede (Pl. Br. 4 n.1), the ROK
is not a party to this appeal.

Plaintiffs contend (Pl. Br. 11) that the Republic of Korea \"has made an
official protest or objection on behalf of Mr. Kwan and those similarly
situated,\" relying on a diplomatic note from the Republic of Korea to
the United States. [See]{.underline} J.A. 82-83. As the district court
correctly concluded (J.A. 12-13), however, the note is not an official
protest. Indeed, \"\[f\]ar from protesting any action by the United
States, the \[note\] merely raises an issue for consideration between
the two nations\" \-- \"whether the Brown Commitment contemplates
payment for disability benefits as a result of injuries caused by Agent
Orange.\" J.A. 13. The note thus \"brings an emergent situation to the
attention of the State Department with a request that the two nations
discuss how the situation should be resolved.\" [Ibid]{.underline}. The
note does not protest any conduct of the United States.

In any event, even if the note constituted an official protest, it would
not authorize plaintiffs to pursue this lawsuit. As explained above, the
Brown Commitment creates no private right of action in favor of
plaintiffs. Absent a cause of action, plaintiffs have no right to pursue
relief against the United States under the Brown Commitment.

**4.** In addition to lacking any cause of action under the Brown
Commitment, plaintiff Park has alleged no cognizable injury in fact that
could support standing. In order to satisfy the case-or-controversy
requirement of Article III, a plaintiff must demonstrate \"an invasion
of a legally protected interest\" that is \"concrete and
particularized\" and \"\'actual or imminent, not \"conjectural\" or
\"hypothetical.\"\'\" [Lujan]{.underline} v. [Defenders of
Wildlife]{.underline}, 504 U.S. 555, 560 (1992) (citations omitted).
Here, Park alleges no injury arising out of his own military service
that would be compensable under the Brown Commitment; he appears to be
suing solely in his capacity as a member of the Korean National
Assembly. [See]{.underline} J.A. 70, ¶ 3; J.A. 73, ¶ 19. But Park\'s
status as a legislator does not provide him with a legally cognizable
interest in pursuing this lawsuit. [Cf]{.underline}.
[Raines]{.underline} v. [Byrd]{.underline}, 521 U.S. 811, 818-30 (1997)
(holding that institutional injury alleged by Members of Congress in
challenging validity of Line Item Veto Act was not sufficient to give
rise to standing).

**B. Plaintiffs\' Claims Are Not Justiciable.**

The district court also correctly concluded that this suit presents a
nonjusticiable political question. The political question doctrine is
based on two key principles: the separation of powers among the three
coordinate branches and the inherent limits of judicial competence.
[See]{.underline}, [e.g.]{.underline}, [Baker]{.underline} v.
[Carr]{.underline}, 369 U.S. 186, 210 (1962).[^6] Although \"not \'every
case or controversy which touches foreign relations lies beyond judicial
cognizance,\'\" [State of New Jersey]{.underline} v. [United
States]{.underline}, 91 F.3d 463, 469 (3d Cir. 1996) (quoting
[Baker]{.underline} v. [Carr]{.underline}, 369 U.S. at 211), plaintiffs
cannot properly inject the judiciary into this matter. To the extent
that there is any dispute regarding the Brown Commitment, it is solely
for the governments of the United States and the ROK to resolve.

As plaintiffs recognize, the government of the ROK has raised through
diplomatic channels the issue of additional compensation under the Brown
Commitment. [See]{.underline} J.A. 73, ¶ 18 (Amended Compl.); J.A.
82-83. Under these circumstances, it would be improper for the judiciary
to preempt the Executive Branch by imposing its on interpretation of the
Brown Commitment on the United States. Indeed, \"\[c\]ourts must take
into account that international negotiations have their own distinctive
time frames, and must be careful \'to avoid a fixing of our
government\'s course\' by premature interposition.\" [Adams]{.underline}
v. [Vance]{.underline}, 570 F.2d 950, 954-55 (D.C. Cir. 1978) (citation
omitted).

In any event, even after the Executive Branch renders its
interpretation, plaintiffs\' claims would still not be justiciable. As
the district court explained, \"\[t\]he commitment by Ambassador Brown
was made on behalf of the United States to the government of the
Republic of Korea and not to the individual Korean veterans.\" J.A. 20.
And \"\[t\]he structure of the agreement was that the Republic of Korea
would pay the death or disability gratuity to its veterans and the
United States would in turn make a payment to the Republic of Korea.\"
[Ibid]{.underline}. Thus, whether additional compensation should be paid
to ROK veterans \"is a matter to be settled between the veterans and the
Korean governmental agency or department which oversees such matters.\"
[Ibid]{.underline}.

Moreover, \"because in the past payments under the Brown Commitment were
made directly to the Republic of Korea and not to the individual
veterans, it is clear that issues between the two nations as to the
amount of the payments was intended to be resolved by government to
government negotiations.\" J.A. 20. As the district court recognized,
that is a matter for the Executive Branch to resolve pursuant to its
authority to conduct foreign relations. [See]{.underline}
[Harisiades]{.underline} v. [Shaughnessy]{.underline}, 342 U.S. 580, 589
(1952); [Oetjen]{.underline} v. [Central Leather Co.]{.underline}, 246
U.S. 297, 302 (1918); [DKT Memorial Fund Ltd.]{.underline} v. [Agency
for International Development]{.underline}, 887 F.2d 275, 291 (D.C. Cir.
1989) (area of \"foreign affairs\" is where \"the Executive receives its
greatest deference, and in which we must recognize the necessity for the
nation to speak with a single voice\"); [Holmes]{.underline} v.
[Laird]{.underline}, 459 F.2d 1211, 1215 (D.C. Cir.),
[cert]{.underline}. [denied]{.underline}, 409 U.S. 869 (1972).

Plaintiffs contend (Pl. Br. 16) that the Brown Commitment implicates
\"rights protected by a treaty\" and that the case therefore is not
subject to dismissal. As explained above, however, the Brown Commitment
confers no judicially enforceable rights on the plaintiffs. And
plaintiffs\' reliance (Pl. Br. 18-19) on the \"national treatment\"
provisions of a Treaty of Friendship, Commerce, and Navigation between
the United States and the Republic of Korea is entirely misplaced. Those
provisions ensure solely that Korean nationals are accorded no less
favorable treatment in the United States than our own citizens in like
circumstances. [See]{.underline} J.A. 136 (Treaty of Friendship,
Commerce and Navigation, U.S.-ROK, Nov. 28, 1956, art. XXII, 8 U.S.T.
2217, 2232 (entered into force Nov. 7, 1957)). But those provisions do
not create special causes of action or standing that would permit
nationals of foreign states to pursue claims in U.S. courts that could
not be pursued by U.S. nationals. Just like any other litigant in
federal court, the plaintiffs in this case must demonstrate a cause of
action and present a justiciable claim for relief.[^7]

Here, the Brown Commitment confers no private right of action, and
plaintiffs\' claims are not justiciable in any event. Accordingly, this
suit was properly dismissed.

> **C. The United States Has Not Waived Its Sovereign Immunity From
> Plaintiffs\' Claims For Damages.**

In addition to lacking a cause of action and presenting a nonjusticiable
political question, plaintiffs also have failed to identify any statute
that waives the sovereign immunity of the United States from their
claims for damages under an international agreement. It is axiomatic
that Congress must expressly waive the sovereign immunity of the United
States before the federal government can be sued, and that such waivers
are construed strictly in favor of the United States. [See]{.underline},
[e.g.]{.underline}, [Department of the Army]{.underline} v. [Blue Fox,
Inc.]{.underline}, 525 U.S. 255, 260-61 (1999); [United
States]{.underline} v. [Mitchell]{.underline}, 463 U.S. 206, 212 (1983).

In the district court, plaintiffs (J.A. 58) invoked the Little Tucker
Act, 28 U.S.C. § 1346(a)(2), which authorizes suit against the United
States for claims of no more than \$10,000 \"founded either upon the
Constitution, or any Act of Congress, or any regulation of an executive
department, or upon any express or implied contract with the United
States or for liquidated or unliquidated damages in cases not sounding
in tort \* \* \*.\" As explained above, plaintiffs\' claims are not
properly viewed as contract claims, and the Little Tucker Act does not
unequivocally authorize suit against the United States for violations of
an international agreement. Indeed, Congress has made clear that the
Court of Federal Claims lacks jurisdiction under the Tucker Act for
claims under treaties,[^8] and there is no basis for interpreting the
Little Tucker Act any differently. If, however, the Court were to
conclude that the district court had jurisdiction under the Little
Tucker Act, then exclusive jurisdiction over this appeal would lie in
the Federal Circuit. [See]{.underline} 28 U.S.C. § 1295(a)(2).[^9]

Plaintiffs (J.A. 58-59) also invoked the federal mandamus statute, 28
U.S.C. § 1361. But it is well established that the mandamus statute does
not itself provide a waiver of sovereign immunity. [See]{.underline},
[e.g.]{.underline}, [In re Russell]{.underline}, 155 F.3d 1012, 1012
(8th Cir. 1998) (per curiam); [see]{.underline} [also]{.underline}
[Washington Legal Foundation]{.underline} v. [United States Sentencing
Commission]{.underline}, 89 F.3d 897, 901 (D.C. Cir. 1996) (collecting
cases). And the statute applies to suits \"in the nature of mandamus\"
against officers and employees of the United States, not suits for
monetary relief against the United States itself. [See]{.underline} 28
U.S.C. § 1361.

Finally, plaintiffs\' reliance (J.A. 59) on [Bowen]{.underline} v.
[Massachusetts]{.underline}, 487 U.S. 879 (1988), in the proceedings
below was misplaced. [Bowen]{.underline} involved the waiver of
sovereign immunity in the Administrative Procedure Act, 5 U.S.C. § 702,
which applies only to

claims for relief \"other than money damages.\" The Court in
[Bowen]{.underline} determined that the term \"money damages\" in
Section 702 refers to \"a sum used as compensatory relief to substitute
for a suffered loss, as opposed to a specific remedy that attempts to
give the plaintiff the very thing to which he was entitled.\"
[Department of the Army]{.underline} v. [Blue Fox, Inc.]{.underline},
525 U.S. at 255 (citing [Bowen]{.underline}, 487 U.S. at 895, 897, 900);
[see]{.underline} [also]{.underline} [Dia Navigation Co.,
Ltd.]{.underline} v. [Pomeroy]{.underline}, 34 F.3d 1255, 1266-67 (3d
Cir. 1994). Plaintiffs in this case seek to recover \"compensatory
relief to substitute for\" the loss they suffered while serving in
Vietnam. That is precisely the type of relief that falls outside the
scope of 5 U.S.C. § 702.[^10]

**CONCLUSION**

For the foregoing reasons, the judgment of the district court should be
affirmed.

> Respectfully submitted,

Of Counsel: DAVID W. OGDEN

[Assistant Attorney General]{.underline}

RONALD J. BETTAUER

[Deputy Legal Adviser]{.underline} MICHAEL R. STILES

[U.S. Department of State]{.underline} [United States
Attorney]{.underline}

[2201 C Street, N.W.]{.underline}

[Washington, D.C. 20520]{.underline} MARK B. STERN

\(202\) 514-5089

MICHAEL S. RAAB

\(202\) 514-4053

[Attorneys, Appellate Staff]{.underline}

[Civil Division]{.underline}

[U.S. Department of Justice]{.underline}

[601 D Street, N.W., Room 9530]{.underline}

[Washington, D.C. 20530-0001]{.underline}

SEPTEMBER 2000

**CERTIFICATION OF BAR MEMBERSHIP**

Counsel for the United States of America are federal government
attorneys and are not required to be members of the Bar of this Court.

**CERTIFICATE OF COMPLIANCE**

Pursuant to Fed. R. App. P. 32(a)(7)(C), I hereby certify that the
foregoing Brief for the Appellee complies with the applicable
type-volume limitations; excluding the portions exempted by Fed. R. App.
P. 32(a)(7)(B)(iii), the brief contains 5,555 words, as counted by Corel
WordPerfect 9.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Michael S. Raab

**CERTIFICATE OF SERVICE**

I hereby certify that on this 11th day of September, 2000, I filed and
served the foregoing Brief for the Appellee by causing an original and
ten copies to be sent to the Clerk of the Court by Federal Express and
by causing two copies to be sent to the following by Federal Express:

Stewart J. Eisenberg

Weinstein, Goss, Schleifer, Eisenberg,

Winkler & Rothweiler, P.C.

1634 Spruce Street

Philadelphia, PA 19103

Michael Choi

121 South Broad Street, 14th Floor

Philadelphia, PA 19107

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Michael S. Raab

**TABLE OF CONTENTS**

**[Page]{.underline}**

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION 1

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 2

STATEMENT OF THE CASE 2

STATEMENT OF FACTS 3

I. The Brown Commitment 3

II\. The Present Litigation 4

STATEMENT OF RELATED CASES AND PROCEEDINGS 6

SUMMARY OF ARGUMENT 6

ARGUMENT 8

> I. Standard of Review 8

II\. The District Court Correctly Dismissed This

Lawsuit 8

A. Plaintiffs Have No Private Right Of

Action To Enforce The Brown Commitment 8

B. Plaintiffs\' Claims Are Not Justiciable 15

C. The United States Has Not Waived Its

Sovereign Immunity From Plaintiffs\'

Claims For Damages 19

CONCLUSION 22

CERTIFICATION OF BAR MEMBERSHIP

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

**TABLE OF AUTHORITIES**

**Cases:** **[Page]{.underline}**

[Adams]{.underline} v. [Vance]{.underline}, 570 F.2d 950 (D.C. Cir.
1978) 17

[Air Canada]{.underline} v. [U.S. Department of
Transportation]{.underline},

843 F.2d 1483 (D.C. Cir. 1988) 9

[The Amiable Isabella]{.underline}, 19 U.S. (6 Wheat.) 1 (1821) 10

[Baker]{.underline} v. [Carr]{.underline}, 369 U.S. 186 (1962) 15,16

[Bank Melli Iran]{.underline} v. [Pahlavi]{.underline}, 58 F.3d 1406
(9th Cir.),

[cert]{.underline}. [denied]{.underline}, 516 U.S. 989 (1995) 9

[Bowen]{.underline} v. [Massachusetts]{.underline}, 487 U.S. 879 (1988)
21

[Campbell]{.underline} v. [Office of Personnel Management]{.underline},

694 F.2d 305 (3d Cir. 1982) 20

[Canadian Transport Co.]{.underline} v. [United States]{.underline},

663 F.2d 1081 (D.C. Cir. 1980) 9

[Chabal]{.underline} v. [Reagan]{.underline}, 822 F.2d 349 (3d Cir.
1987) 20

[Charlton]{.underline} v. [Kelly]{.underline}, 229 U.S. 447 (1913) 9

[DKT Memorial Fund Ltd.]{.underline} v. [Agency for
International]{.underline}

[Development]{.underline}, 887 F.2d 275 (D.C. Cir. 1989) 17

[Delaware Valley Citizens Council for Clean Air]{.underline} v.

[Davis]{.underline}, 932 F.2d 256 (3d Cir. 1991) 8

[Department of the Army]{.underline} v. [Blue Fox, Inc.]{.underline},
525

U.S. 255 (1999) 19,21

[Dia Navigation Co., Ltd.]{.underline} v. [Pomeroy]{.underline}, 34 F.3d

1255 (3d Cir. 1994) 21

[Edye]{.underline} v. [Robertson]{.underline} ([Head Money
Cases]{.underline}),

112 U.S. 580 (1884) 9

[El Al Israel Airlines, Ltd.]{.underline} v. [Tsui Yuan
Tseng]{.underline},

525 U.S. 155 (1999) 12

[Fairfax\'s Devisee]{.underline} v. [Hunter\'s Lessee]{.underline}, 11
U.S.

(7 Cranch) 603 (1813) 18

[Goldstar (Panama) S.A.]{.underline} v. [United States]{.underline},

967 F.2d 965 (4th Cir.), [cert]{.underline}. [denied]{.underline},

506 U.S. 955 (1992) 9

[Harisiades]{.underline} v. [Shaughnessy]{.underline}, 342 U.S. 580
(1952) 17

[Holmes]{.underline} v. [Laird]{.underline}, 459 F.2d 1211 (D.C. Cir.),

[cert]{.underline}. [denied]{.underline}, 409 U.S. 869 (1972) 18

[Hughes Aircraft Co.]{.underline} v. [United States]{.underline},

534 F.2d 889 (Ct. Cl. 1976) 20

[Kang Joo Kwan]{.underline} v. [United States]{.underline}, No.
97-CV-7112

(E.D. Pa.) 6

[Kolovrat]{.underline} v. [Oregon]{.underline}, 366 U.S. 187 (1961)
12,18

[Lujan]{.underline} v. [Defenders of Wildlife]{.underline}, 504 U.S. 555
(1992) 15

[More]{.underline} v. [Intelcom Support Services, Inc.]{.underline},

960 F.2d 466 (5th Cir. 1992) 12

[Oetjen]{.underline} v. [Central Leather Co.]{.underline}, 246 U.S. 297
(1918) 17

[Phillips]{.underline} v. [Seiter]{.underline}, 173 F.3d 609 (7th Cir.
1999) 20

[Raines]{.underline} v. [Byrd]{.underline}, 521 U.S. 811 (1997) 15

[In re Russell]{.underline}, 155 F.3d 1012 (8th Cir. 1998)

(per curiam) 20

[Santovincenzo]{.underline} v. [Egan]{.underline}, 284 U.S. 30 (1931) 13

[State of New Jersey]{.underline} v. [United States]{.underline},

91 F.3d 463 (3d Cir. 1996) 16

[Steel Co.]{.underline} v. [Citizens for a Better
Environment]{.underline},

523 U.S. 83 (1998) 12

[Sumitomo Shoji America, Inc.]{.underline} v. [Avagliano]{.underline},

457 U.S. 176 (1982) 12

[United States ex rel. Saroop]{.underline} v. [Garcia]{.underline},

109 F.3d 165 (3d Cir. 1997) 8-9

[United States]{.underline} v. [Davis]{.underline}, 767 F.2d 1025

(2d Cir. 1985) 9

[United States]{.underline} v. [Diekelman]{.underline}, 92 U.S. 520
(1875) 9

[United States]{.underline} v. [Li]{.underline}, 206 F.3d 56 (1st Cir.
2000)

(en banc), [petitions]{.underline} [for]{.underline} [cert]{.underline}.
[filed]{.underline},

Nos. 99-9768 (May 30, 2000) and 99-9770

(May 26, 2000) 9

[United States]{.underline} v. [Mitchell]{.underline}, 463 U.S. 206
(1983) 19

[United States]{.underline} v. [Occidental Chemical Corp.]{.underline},

200 F.3d 143 (3d Cir. 1999) 8

[Ware]{.underline} v. [Hylton]{.underline}, 3 U.S. (3 Dall.) 199 (1796)
18

[Washington Legal Foundation]{.underline} v. [United States]{.underline}

[Sentencing Commission]{.underline}, 89 F.3d 897

(D.C. Cir. 1996) 20

**Statutes:**

Administrative Procedure Act:

5 U.S.C. § 702 21

Little Tucker Act:

28 U.S.C. § 1346(a)(2) 1,19

28 U.S.C. § 1291 2

28 U.S.C. § 1295(a)(2) 2,20

28 U.S.C. § 1331 1

28 U.S.C. § 1332(a)(4) 1

28 U.S.C. § 1346(a) 1

28 U.S.C. § 1361 1,20,21

28 U.S.C. § 1502 13,20

28 U.S.C. § 1631 20

**Rule:**

Fed. R. App. P. 4(a)(1)(B) 1

**Legislative Materials:**

[United States Security Agreements and Commitments]{.underline}

[Abroad, Republic of Korea: Hearings Before the]{.underline}

[Subcomm. on United States Security Agreements]{.underline}

[and Commitments Abroad of the Senate Comm. on]{.underline}

[Foreign Relations]{.underline}, 91st Cong., 2d Sess., Part 6

(Feb. 24-26, 1970) 3-4

**Miscellaneous:**

Restatement (Third) of the Foreign Relations Law

of the United States (1987):

§ 326 comment b 12

§ 902 13

§ 907 13

Treaty of Friendship, Commerce and Navigation,

Nov. 28, 1956, U.S.-ROK, art. XXII, 8 U.S.T. 2217

(entered into force Nov. 7, 1957) 18

[^1]: Although the Republic of Korea is currently listed in the official
    caption of this appeal, the Republic is not in fact a party to this
    case. [See]{.underline} Pl. Br. 4 n.1. The Republic of Korea
    accordingly should be removed from the caption to avoid creating the
    incorrect impression that the Republic is seeking judicial relief
    against the government of the United States.

[^2]: The Brown Commitment was discussed at a Senate subcommittee
    hearing held in February 1970. [United States Security Agreements
    and Commitments Abroad, Republic of Korea: Hearings Before the
    Subcomm. on United States Security Agreements and Commitments Abroad
    of the Senate Comm. on Foreign Relations]{.underline}, 91st Cong.,
    2d Sess., Part 6 (Feb. 24-26, 1970). The full text of the Brown
    Commitment was introduced into the public record at that hearing.
    [See]{.underline} [id]{.underline}. at 1549-50.

[^3]: Although the Brown Commitment is an executive agreement rather
    than a treaty that requires the advice and consent of the Senate
    under Article II, Section 2 of the Constitution, executive
    agreements are subject to the same rules of interpretation that
    govern treaties. [See]{.underline}, [e.g.]{.underline}, [Bank Melli
    Iran]{.underline} v. [Pahlavi]{.underline}, 58 F.3d 1406, 1408 (9th
    Cir.), [cert]{.underline}. [denied]{.underline}, 516 U.S. 989
    (1995); [Air Canada]{.underline} v. [U.S. Department of
    Transportation]{.underline}, 843 F.2d 1483, 1486 (D.C. Cir. 1988).

[^4]: The Court has no authority to supply a private right of action
    where one cannot be shown. As the Supreme Court has explained:

    > \[T\]his Court does not possess any treaty-making power. That
    > power belongs by the constitution to another department of the
    > government; and to alter, amend or add to any treaty, by inserting
    > any clause, whether small or great, important or trivial, would
    > be, on our part, an usurpation of power, and not an exercise of
    > judicial functions. It would be to make, and not to construe a
    > treaty. Neither can this court supply a [casus]{.underline}
    > [omissus]{.underline} in a treaty, any more than in a law. We are
    > to find out the intention of the parties, by just rules of
    > interpretation, applied to the subject matter; and having found
    > that, our duty is to follow it, so far as it goes, and to stop
    > where that stops \-- whatever may be the imperfections or
    > difficulties which it leaves behind.

    [The Amiable Isabella]{.underline}, 19 U.S. (6 Wheat.) 1, 71 (1821)
    (Story, J.).

[^5]: The absence of a cause of action also supports the district
    court\'s conclusion that plaintiffs lack standing in this case.
    [See]{.underline} J.A. 9; [cf]{.underline}. [Steel Co.]{.underline}
    v. [Citizens for a Better Environment]{.underline}, 523 U.S. 83, 97
    n.2 (1998) (\"The question whether [this]{.underline} plaintiff has
    a cause of action under the statute, and the question whether
    [any]{.underline} plaintiff has a cause of action under the statute
    are closely connected‑‑indeed, depending upon the asserted basis for
    lack of statutory standing, they are sometimes identical, so that it
    would be exceedingly artificial to draw a distinction between the
    two.\").

[^6]: The Supreme Court in [Baker]{.underline} observed:

    > Prominent on the surface of any case held to involve a political
    > question is found a textually demonstrable constitutional
    > commitment of the issue to a coordinate political department; or a
    > lack of judicially discoverable and manageable standards for
    > resolving it; or the impossibility of deciding without an initial
    > policy determina­tion of a kind clearly for nonjudicial discretion;
    > or the impossibility of a court\'s undertaking independent
    > resolution without expressing lack of the respect due coordinate
    > branches of government; or an unusual need for unquestioning
    > adherence to a political decision already made; or the
    > potentiality of embarrassment from multifarious pronounce­ments by
    > various departments on one question.

    369 U.S. at 217.

[^7]: In any event, the cases that plaintiffs cite (Pl. Br. 16-17)
    involving violations of international agreements by States or state
    officials provide no basis for awarding compensation against the
    United States in this case, which involves only the federal
    government. [See]{.underline} [Kolovrat]{.underline} v.
    [Oregon]{.underline}, 366 U.S. 187 (1961); [Fairfax\'s
    Devisee]{.underline} v. [Hunter\'s Lessee]{.underline}, 11 U.S. (7
    Cranch) 603 (1813); [Ware]{.underline} v. [Hylton]{.underline}, 3
    U.S. (3 Dall.) 199 (1796).

[^8]: [See]{.underline} 28 U.S.C. § 1502; [Hughes Aircraft
    Co.]{.underline} v. [United States]{.underline}, 534 F.2d 889, 903
    n.17 (Ct. Cl. 1976) (noting that Section 1502 has been determined to
    encompass international executive agreements as well as treaties).

[^9]: This Court has jurisdiction to determine its own jurisdiction.
    [See]{.underline} [Chabal]{.underline} v. [Reagan]{.underline}, 822
    F.2d 349, 355 (3d Cir. 1987). If the Court concludes that it lacks
    jurisdiction over this appeal, it should not transfer the appeal to
    the Federal Circuit under 28 U.S.C. § 1631. It would not be \"in the
    interest of justice\" within the meaning of Section 1631 to transfer
    a case in which plaintiffs have no cause of action and cannot
    otherwise obtain the relief they seek. [See]{.underline}
    [Campbell]{.underline} v. [Office of Personnel
    Management]{.underline}, 694 F.2d 305, 309 n.6 (3d Cir. 1982)
    (refusing to transfer appeal where the petitioner \"could not
    prevail\" on the merits); [see]{.underline} [also]{.underline}
    [Phillips]{.underline} v. [Seiter]{.underline}, 173 F.3d 609, 610-11
    (7th Cir. 1999) (Posner, C.J.) (\"A court is authorized to consider
    the consequences of transfer before deciding whether to transfer;
    that is implicit in the statute\'s grant of authority to make such a
    decision \* \* \* and implies in turn that the court can take a peek
    at the merits, since whether or not the suit has any possible merit
    bears significantly on whether the court should transfer or dismiss
    it\" (citation omitted)).

[^10]: In the proceedings below, the United States argued that
    plaintiffs\' claims also are barred by the applicable statute of
    limitations. The district court did not reach that issue, and we do
    not raise the issue as an alternative basis for affirming the
    judgment below. We wish to preserve that defense, however, in the
    event that the judgment of the district court is not affirmed.