Jenny Schieber v. United States of America

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.

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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 non-
French 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

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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.

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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 step-
parent 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

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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 subject-
matter 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

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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-or-
controversy requirement of Article III. See Allen v. Wright,

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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

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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

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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.

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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.

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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 self-
executing. 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,

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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

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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

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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 self-
executing, 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

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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.

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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.

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