United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 10, 2023 Decided July 18, 2023

No. 22-5068

JENNY SCHIEBER,

APPELLANT

v.

UNITED STATES OF AMERICA,

APPELLEE

Consolidated with 22-5118, 22-5141, 22-5151, 22-5152, 

22-5159, 22-5160, 22-5163

Appeals from the United States District Court

for the District of Columbia

(No. 1:21-cv-01371)

(No. 1:20-cv-00263)

(No. 1:20-cv-00266)

(No. 1:20-cv-00260)

(No. 1:20-cv-00265)

Noam Schreiber argued the cause for appellants. With him 

on the briefs was L. Marc Zell. Marc E. Miller entered an 

appearance.
2

Anna O. Mohan, Attorney, U.S. Department of Justice, 

argued the cause for appellee. With her on the brief were Brian 

M. Boynton, Principal Deputy Assistant Attorney General, and 

Sharon Swingle, Attorney.

Before: MILLETT and KATSAS, Circuit Judges, and 

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KATSAS.

KATSAS, Circuit Judge: The United States and the French 

Republic agreed to establish a fund for compensating nonFrench nationals who were deported from France to 

concentration camps during the Holocaust. The Department of 

State, which administers the fund, denied compensation to the 

plaintiffs here. They seek judicial review under the 

Administrative Procedure Act. We hold that the political 

question doctrine does not bar review. But because 

administration of the fund is committed to agency discretion by 

law, the APA provides no cause of action.

I

A

During World War II, France’s Vichy government 

collaborated with the Nazis to deport nearly 76,000 Jews to 

concentration camps. Most of them never returned. In the 

decades since, France has established several programs to 

compensate Holocaust victims and their families. One such 

program is the focus of this case.

In 2014, the United States and France reached an 

Agreement to settle all Holocaust deportation claims against 

France. France agreed to pay $60 million to establish a 

compensation fund to cover such claims. In return, the United 
3

States agreed to secure the dismissal of any pending or future 

Holocaust deportation claims against France in United States 

courts. The Agreement excludes claims of both French 

nationals, who receive other benefits, and non-French nationals 

eligible to receive compensation under other programs.

Article 6 of the Agreement governs distribution of the 

settlement fund. It requires the United States to distribute the 

fund “according to criteria which it shall determine 

unilaterally, in its sole discretion, and for which it shall be 

solely responsible.” J.A. 18. At the same time, it requires the 

United States to consider the Agreement’s objectives in 

formulating distribution criteria and to reject all excluded 

claims. In deciding whether these exclusions apply, the United 

States “shall rely” on a claimant’s sworn declaration of

nationality and ineligibility for other compensation programs, 

“as well as on any relevant information obtained under” an

information-sharing provision. Id.

Article 8 of the Agreement governs the resolution of 

disputes. It states that “[a]ny dispute arising out of the 

interpretation or performance of this Agreement shall be settled 

exclusively by way of consultation between the Parties”—i.e., 

by diplomacy between the United States and France. J.A. 19.

The State and Treasury Departments are responsible for 

disbursing funds received from foreign governments to settle 

claims. A standing appropriation directs the Secretary of State 

to “determine the amounts due claimants” and then requires the 

Secretary of the Treasury to “pay the amounts so found to be 

due.” 22 U.S.C. § 2668a. The State Department ultimately 

approved 386 of the 867 claims filed under the Agreement.
4

B

The plaintiffs are six of the unsuccessful claimants. Four 

plaintiffs (Jenny Schieber, Solange Faktor, Esther Gutrejman, 

and Simon Bywalski) filed claims on behalf of a parent or stepparent whose spouse was deported to Auschwitz and then 

killed. The State Department rejected these claims because, in 

its view, the plaintiffs had not adequately proven eligibility for 

compensation under the Agreement. The other two plaintiffs 

(Louis Schneider and Regina English) filed claims on their own 

behalf. The State Department denied their claims after 

determining that they likely had been deported by Italian rather 

than French authorities.

The plaintiffs sued to challenge the denials under the APA. 

In separate actions, Schieber, Faktor, Gutrejman, and Bywalski 

argued that the Agreement required the State Department to 

credit their affidavits about their deceased parents’ nationalities 

and ineligibility for other Holocaust compensation programs. 

In one lawsuit, Schneider and English challenged the 

Department’s finding that Italy controlled the region from 

which they had been deported.

The government moved to dismiss the complaints for lack 

of jurisdiction and failure to state a claim. In Gutrejman, 

Bywalski, and Schneider, the courts held that the claims raise

nonjusticiable political questions because the Agreement 

requires disputes to be resolved through diplomacy. 

Gutrejman v. United States, 596 F. Supp. 3d 1, 9–10 (D.D.C. 

2022); Bywalski v. United States, No. 1:20-cv-265, 2022 WL 

1521781, at *4–5 (D.D.C. May 13, 2022); Schneider v. United 

States, No. 1:20-cv-260, 2022 WL 1202427, at *4–5 (D.D.C. 

Apr. 22, 2022). In Schieber and Faktor, the courts skipped 

over the political question doctrine and dismissed the claims on 

the merits. These courts held that because the Agreement bars 
5

judicial review, the APA provides no cause of action. Faktor 

v. United States, 590 F. Supp. 3d 287, 292–94 (D.D.C. 2022);

Schieber v. United States, No. 1:21-cv-1371, 2022 WL 227082, 

at *5–7 (D.D.C. Jan. 26, 2022).

II

Two of the district courts concluded that they could 

reserve judgment on whether the cases present nonjusticiable 

political questions. The other three concluded that the claims

do present such questions. We disagree with both conclusions.

A

Start with the sequencing issue. This Court repeatedly has 

held that the political question doctrine implicates the subjectmatter jurisdiction of Article III courts. See Al-Tamimi v. 

Adelson, 916 F.3d 1, 7–8 (D.C. Cir. 2019). In contrast, the 

existence of a cause of action under the APA goes to the merits. 

Air Courier Conf. of Am. v. Am. Postal Workers Union, 498 

U.S. 517, 523 n.3 (1991); Sierra Club v. Jackson, 648 F.3d 848, 

854 (D.C. Cir. 2011). The Schieber and Faktor courts thus 

skipped over a jurisdictional issue to rule on a merits one.

In Steel Co. v. Citizens for a Better Environment, 523 U.S. 

83 (1998), the Supreme Court reaffirmed that a federal court 

must confirm its subject-matter jurisdiction before reaching the 

merits. Id. at 95. Steel Co. firmly rejected the doctrine of 

“hypothetical jurisdiction,” under which a court would skip 

over difficult jurisdictional questions if it could more simply 

rule on the merits against the party invoking its jurisdiction. 

See id. at 93–94. As the Supreme Court explained, 

hypothetical jurisdiction “produces nothing more than a 

hypothetical judgment—which comes to the same thing as an 

advisory opinion.” Id. at 101; see also Cross-Sound Ferry 
6

Servs. v. ICC, 934 F.2d 327, 339–46 (D.C. Cir. 1991) (Thomas, 

J., concurring in part and concurring in the judgment).

The district courts in Schieber and Faktor bypassed the 

jurisdictional question because, in their view, a few of this 

Court’s decisions skipped over the political question doctrine 

when it was easier to rule against plaintiffs on the merits. See 

Schieber, 2022 WL 227082, at *5 (citing Comm. of U.S. 

Citizens Living in Nicar. v. Reagan, 859 F.2d 929, 934 (D.C. 

Cir. 1988) and Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206 

(D.C. Cir. 1985)); Faktor, 590 F. Supp. 3d at 292 (relying on 

Schieber). But these decisions predate Steel Co. and are 

premised on the same theory of hypothetical jurisdiction that 

Steel Co. repudiated. Under current law, they cannot justify 

skipping over jurisdiction to reach the merits.

The government suggests a different approach. It contends 

that we may skip over the political question issue because the 

cause-of-action question is “plainly insubstantial” within the 

meaning of Norton v. Mathews, 427 U.S. 524, 532 (1976). 

There, the Court skipped over a jurisdictional issue because the 

merits question—which was decided in a companion case—

had become “no longer substantial in the jurisdictional sense.” 

See id. at 530–31. Steel Co. preserved this exception for cases 

where existing precedent “foreordained” the merits. 523 U.S. 

at 98. And we have since applied the exception. Sherrod v. 

Breitbart, 720 F.3d 932, 936–37 (D.C. Cir. 2013). As 

explained below, we agree that the plaintiffs’ claims lack merit. 

But because the claims cannot fairly be characterized as 

“plainly insubstantial,” we must first resolve the political 

question issue.

B

The political question doctrine traces to the case-orcontroversy requirement of Article III. See Allen v. Wright, 
7

468 U.S. 737, 750 (1984). In its canonical formulation, the 

doctrine bars federal courts from exercising jurisdiction over 

claims that involve any of six different factors:

[1] a textually demonstrable constitutional 

commitment of the issue to a coordinate political 

department; [2] a lack of judicially discoverable and 

manageable standards for resolving it; [3] the 

impossibility of deciding without an initial policy 

determination of a kind clearly for nonjudicial 

discretion; [4] the impossibility of a court’s 

undertaking independent resolution without 

expressing lack of the respect due coordinate branches 

of government; [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 v. Carr, 369 U.S. 186, 217 (1962) (cleaned up). But in 

Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012), 

the Supreme Court stressed the doctrine’s “narrow” scope. Id.

at 195. And it mentioned only the first two Baker factors, id., 

despite separate opinions pointedly noting the omission of the 

final four, see id. at 202–07 (Sotomayor, J., concurring in part 

and concurring in the judgment); id. at 212 (Breyer, J., 

dissenting). We too have characterized the first two factors as 

“the most important” ones, Harbury v. Hayden, 522 F.3d 413,

418 (D.C. Cir. 2008), and the last four as merely “prudential,” 

Al-Tamimi, 916 F.3d at 12.

Disputes involving foreign relations often raise political 

questions, but not always. Such disputes “frequently turn on 

standards that defy judicial application, or involve the exercise 

of a discretion demonstrably committed to the executive or 
8

legislature.” Baker, 369 U.S. at 211. Yet not every controversy 

that “touches foreign relations” has these characteristics. Id. 

So we must always consider “the particular question posed, in 

terms of the history of its management by the political 

branches, of its susceptibility to judicial handling in the light of 

its nature and posture in the specific case, and of the possible 

consequences of judicial action.” Id. at 211–12.

Zivotofsky is a useful illustration. A statute allowed 

Americans born in Jerusalem to elect to have “Israel” listed as 

the country of birth on their passports. When a plaintiff sued 

to enforce the statute, the government argued that the lawsuit 

presented a nonjusticiable political question under Article III

and that, at any rate, the statute unconstitutionally impinged on 

the President’s Article II powers. 566 U.S. at 191–93. The 

Supreme Court rejected the former contention. It explained 

that the plaintiff had not asked the courts to decide “whether 

Jerusalem is the capital of Israel,” but instead only “whether he 

may vindicate his statutory right.” Id. at 195. The latter 

question turned on whether the statute was constitutional, and 

the Constitution did not textually commit that issue to the 

Executive Branch. Id. at 197. Moreover, the Article II question 

turned on “familiar” kinds of legal arguments about

constitutional text, structure, history, and purpose. Id. at 197–

201. Thus, it did not “turn on standards that defy judicial 

application.” Id. at 201 (quoting Baker, 369 U.S. at 211).

The claims here are likewise justiciable. To start, 

resolving these cases would not impinge on foreign relations 

matters constitutionally committed to the Executive Branch. 

Under the Agreement, France was obliged to make a lump-sum 

payment—with no reversionary interest—and to provide 

information that would help implement the program. That is 

all. No doubt, the Executive is responsible for managing this 

Nation’s relationship with France. But reviewing the State 
9

Department’s compensation decisions would say nothing about 

France or its performance under the Agreement. The only 

foreign-relations wrinkle is that the yardstick against which we 

would measure the Department’s actions is an international 

agreement rather than a statute or regulation. But that is hardly 

enough to transform the legal and factual questions in these 

cases into political ones. After all, courts routinely interpret 

treaties and executive agreements, including those that involve 

the disposition of claims settlement funds. See, e.g., Medellín 

v. Texas, 552 U.S. 491 (2008); Dames & Moore v. Regan, 453 

U.S. 654 (1981); United States v. Pink, 315 U.S. 203 (1942);

United States v. Belmont, 301 U.S. 324 (1937); Mellon v. 

Orinoco Iron Co., 266 U.S. 121 (1924).

There are also judicially manageable standards for 

resolving the claims. These claims involve not the design, but 

the administration of a foreign claims settlement scheme set out 

in an international agreement. Four plaintiffs assert that the 

Agreement required the State Department to credit affidavits

about their parents’ ineligibility for other compensation. They 

also contend that the Department arbitrarily accepted some 

affidavits but not others. Resolving these questions would 

require us to interpret the terms of a written legal instrument 

and to decide whether the Department treated like claims alike. 

Two plaintiffs claim that the Department erred in finding that 

they were likely deported by Italian rather than French or 

German officials. Resolving that contention would require us 

to assess whether an agency’s finding of fact was adequately 

supported in an administrative record. There is nothing 

unusual or awkward about the courts resolving such questions.

1

1

 We need not consider whether the political question doctrine 

would bar review of an Executive determination about which country 

has sovereignty over disputed territory during ongoing hostilities.
10

The claims here also tee up a host of threshold legal issues

about the status of the Agreement under domestic law and 

about how the Agreement interacts with federal statutes. Is the 

Agreement self-executing? Does the APA provide a vehicle 

for enforcing a non-self-executing international agreement? 

To what extent does section 2668a execute the Agreement? 

Are the claims here unreviewable under the APA? To be sure, 

these questions arise in a foreign-policy context. But like the 

Article II question in Zivotofsky, they are legal ones—which 

turn on familiar legal considerations such as text, structure, and 

history. In short, the questions presented in these cases do not 

turn on standards that defy judicial application.

Finally, none of the prudential factors cuts the other way.

These factors reflect a concern that the “Judiciary should be 

hesitant to conflict with the other two branches.” Al-Tamimi, 

916 F.3d at 12. Because these cases implicate foreign relations 

only at their outermost edges, adjudicating them would risk no

interbranch conflict in that area. Furthermore, because the 

Executive Branch is best able “to understand the foreign policy 

ramifications of the court’s resolution of a potential political 

question,” its position is “highly relevant” to our consideration 

of the prudential factors, and its assessment of any specific 

foreign-policy harms would be “owed deference.” See id. at 

13. Here, the government’s position has undergone a full shift: 

Despite urging application of the political question doctrine 

below, and despite remaining agnostic on that question in its 

brief in this Court, the government at oral argument 

affirmatively took the position that this case does not involve 

any political question. We must of course resolve that 

jurisdictional question for ourselves, see Steel Co., 523 U.S. at 

95, but we see no reason to disagree with the government’s 

current position.
11

The district courts in Gutrejman, Bywalski, and Schneider 

concluded otherwise. They reasoned that the claims here are 

nonjusticiable because the Agreement requires any disputes to 

be resolved through diplomacy. Gutrejman, 596 F. Supp. 3d at 

10; Bywalski, 2022 WL 1521781, at *5; Schneider, 2022 WL 

1202427, at *5. For support, they invoked Holmes v. Laird, 

459 F.2d 1211 (D.C. Cir. 1972), which likewise involved an 

international agreement requiring disputes to be resolved 

through diplomacy. But our disposition in Holmes rested on 

considerations that are not present here.

Holmes involved a Status of Forces Agreement (SOFA) 

that allowed Germany to exercise criminal jurisdiction over 

United States military personnel stationed there. After being 

convicted of attempted rape in Germany, two American 

soldiers sued to prevent the United States from transferring

them back to Germany to serve their sentences. The soldiers 

argued that the United States had no transfer obligation because 

Germany had violated its obligation to afford certain 

procedural protections during their trials. 459 F.2d at 1214. 

We held that this claim was nonjusticiable because federal

courts lack power to decide how the Executive Branch should 

respond to another sovereign’s alleged failure to comply with 

a non-self-executing international agreement. Id. at 1220–22.

The district courts read Holmes to say that the soldiers’ 

claim was nonjusticiable because the SOFA was not selfexecuting. That oversimplifies our reasoning. In concluding 

that the claim was nonjusticiable, we first explained that courts 

generally lack authority to determine whether another 

sovereign’s failure to abide by the terms of an international 

agreement relieved the United States of any corresponding 

obligations. 459 F.2d at 1220–21. We then recognized a

qualification—that courts must enforce self-executing treaties 

affecting individual rights. Id. at 1221–22. But, we continued, 
12

the qualification does not apply “when the corrective 

machinery specified in the treaty itself is nonjudicial.” Id. at 

1222; see also id. (“intervention by an American court ... is 

foreclosed by the very terms of the document from which the 

rights insisted upon are said to spring”). Holmes nowhere 

suggests that courts lack jurisdiction to adjudicate any claims 

involving non-self-executing agreements. And as explained 

above, adjudicating the claims at issue here would not require 

United States courts to pass judgment on the public acts of a 

foreign sovereign. Moreover, after Holmes was decided, we 

squarely held that the question of self-execution “does not 

present a jurisdictional issue regarding the court’s power to 

hear a case” and instead relates to a merits question whether the 

“plaintiff has a cause of action.” Sluss v. U.S. Dep’t of Justice, 

Int’l Prisoner Transfer Unit, 898 F.3d 1242, 1248 (D.C. Cir. 

2018). So if claims fail because an international agreement is 

not self-executing, the result should be a merits dismissal rather 

than application of the political question doctrine.

III

For their cause of action, the plaintiffs invoke the APA’s 

judicial-review provisions, 5 U.S.C. §§ 701–06. Those 

provisions create a right of review for any person adversely 

affected by agency action, id. § 702, which extends to final 

agency action not otherwise reviewable, id. § 704. But this

review is unavailable if “statutes preclude judicial review,” id.

§ 701(a)(1), or if the action for which review is sought is 

“committed to agency discretion by law,” id. § 701(a)(2). 

Because the latter exclusion applies to this case, the plaintiffs 

have no APA cause of action.

Section 701(a)(2) governs in two related circumstances. 

First, a matter is “committed to agency discretion by law” if the 

governing statute “is drawn so that a court would have no 
13

meaningful standard against which to judge the agency’s 

exercise of discretion.” Lincoln v. Vigil, 508 U.S. 182, 191 

(1993) (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). 

Second, section 701(a)(2) makes presumptively unreviewable 

certain decisions “traditionally left to agency discretion,” such 

as decisions not to bring enforcement actions or not to grant 

reconsideration. Id. But even for traditionally unreviewable 

decisions, if Congress limits agency discretion “by putting 

restrictions in the operative statutes,” the exception may not

apply. Id. at 193; see Chaney, 470 U.S. at 833 (considering 

whether a statute “supplied sufficient standards to rebut the 

presumption of unreviewability”).

In Vigil, the Supreme Court held that an agency’s 

“allocation of funds from a lump-sum appropriation” is another 

kind of decision that section 701(a)(2) presumptively insulates

from review. 508 U.S. at 192. As the Court explained, such 

allocations have been “traditionally regarded as committed to 

agency discretion,” for “the very point of a lump-sum 

appropriation is to give an agency the capacity to adapt to 

changing circumstances and meet its statutory responsibilities 

in what it sees as the most effective or desirable way.” Id. The 

Court thus refused to review the Indian Health Service’s

decision to discontinue a regional healthcare program and 

reallocate the funding to a national one. Id. at 189. The Court 

noted that neither the relevant appropriations nor the 

substantive statutes even mentioned the discontinued program, 

much less circumscribed the agency’s discretion to repurpose

its funding. Id. at 193–94.

The State Department decisions rejecting the plaintiffs’ 

claims are unreviewable for many of the same reasons. What 

law might constrain those decisions? Start with section 2668a, 

which governs the disbursement of settlement funds paid to the 

United States by foreign governments. Section 2668a provides 
14

that the Secretary of State “shall determine the amounts due 

claimants” from such funds, and it prospectively makes 

appropriations to pay “the ascertained beneficiaries.” It thus

charges the Secretary with deciding how to allocate a fixed sum 

of appropriated money among claimants, and Vigil teaches that 

the “allocation of funds from a lump-sum appropriation” is 

presumptively “committed to agency discretion.” 508 U.S. at 

192. Nor does section 2668a overcome the presumption by 

restricting agency discretion. Nothing in it directs the 

Secretary to allocate funds in any particular way—it just 

requires him to “determine the amounts due.”

Next consider the Agreement. Article 6 requires the 

United States to distribute the $60 million fund “according to 

criteria which it shall determine.” J.A. 18. And Article 8 states 

that “[a]ny dispute arising out of the interpretation or 

performance of this Agreement shall be settled exclusively by 

way of consultation between” France and the United States. 

J.A. 19. The Agreement thus is not self-executing. See

Medellín, 552 U.S. at 508–09. And because it is not selfexecuting, it does not “function as binding federal law,” and it

“can only be enforced” domestically through implementing 

legislation. Id. at 504–05 (cleaned up). We recognized this 

basic point in Citizens in Nicaragua, which held that the APA 

“does not grant judicial review of agencies’ compliance with a 

legal norm that is not otherwise an operative part of domestic 

law.” 859 F.2d at 943.

The plaintiffs do not argue that the Agreement itself has 

domestic legal force. Instead, they contend that section 2668a

incorporates the Agreement as binding domestic law. They 

invoke Sluss, where a statute directed an agency to look to a 

non-self-executing treaty “for substantive direction.” 898 F.3d 

at 1251. We held that the statute implemented and 

incorporated the treaty, thereby domesticating its provisions 
15

and making agency action under the treaty reviewable through 

the APA. Id. at 1251–52. We are skeptical that section 2668a 

does comparable work here. As discussed, it merely requires 

the Secretary of State to determine amounts due to claimants, 

authorizes the Secretary of the Treasury to disburse those 

amounts, and provides a standing appropriation. This 

implements the Agreement in the limited sense of allowing the 

United States to pay claimants consistent with the 

Appropriations Clause. See U.S. Const. art. I, § 9, cl. 7. But 

section 2668a neither requires the Secretary of State to apply 

the substantive standards of the Agreement nor itself provides 

any substantive standards.

In any event, domestication of the Agreement would not 

help the plaintiffs. They contend that Article 6, which requires 

the United States to “consider the objectives of this 

Agreement” and to “rely on the sworn statement[s]” of the 

claimants, would provide standards firm enough to support 

APA review. J.A. 18. We need not decide this question 

because the plaintiffs’ theory would also domesticate Article 8, 

which requires interpretive and enforcement disputes to be 

“settled exclusively by way of consultation between the 

Parties.” J.A. 19. In that case, the statute domesticating the 

Agreement would itself preclude review. See 5 U.S.C. 

§ 701(a)(1). The plaintiffs object that Article 8 governs only 

disputes between the United States and France, as opposed to 

disputes between individual claimants and the State 

Department. But by its terms, Article 8 applies to “[a]ny 

dispute arising out of the interpretation or performance of this 

Agreement.” J.A. 19. And try as the plaintiffs might to 

characterize their claims as arising solely under the APA, the 

only possible source of substantive law for their claims is the 

Agreement itself, which bars judicial review expressly.
16

For these reasons, the APA gives the plaintiffs no cause of 

action to challenge the State Department’s decisions rejecting 

their claims under the Agreement.

IV

The district courts in Schieber and Faktor correctly 

concluded that the plaintiffs there failed to state a claim. The 

district courts in Gutrejman, Schneider, and Bywalski erred in 

dismissing the claims at issue on jurisdictional grounds, but we 

affirm on the alternative ground that these plaintiffs failed to 

state a claim.2 

Affirmed.

2

 Because the government filed cross-appeals to support its

merits arguments in these three cases, we need not consider whether 

this Court otherwise could have converted the jurisdictional rulings 

below into merits ones. See Shatsky v. Palestine Liberation Org., 

955 F.3d 1016, 1028–29 (D.C. Cir. 2020); Sierra Club, 648 F.3d at 

854.