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May 7, 2015
  Munns v. Kerry - Ninth Circuit
Headline: The Ninth Circuit Holds Plaintiffs Lacked Standing To Challenge The State Department's Policies Governing The Handling Of Kidnappings and Security Contractors In Iraq.

Areas of Law: Constitutional Law

Issues Presented: Do family members of kidnapped and murdered contractors in Iraq, and a former contractor in Iraq, have standing to challenge U.S. Government policies that regulated contractors in Iraq and prevented the families of kidnapping victims from communication aimed at saving them?

Brief Summary:
This case addresses standing to bring a claim against the U.S. government in district court. Family members of three Americans who were kidnapped and murdered while working as contractors in Iraq, as well as a former contractor who seeks to return to Iraq, sued to enjoin policies governing (1) supervision of private contractors and (2) the response to kidnappings in Iraq.

The first policy challenged was CPA Order 17, which allegedly gave "blanket immunity" to contractors from prosecution for their actions in Iraq. It was argued that Order 17 exceeded the executive branch's constitutional authority. The Ninth Circuit found that the plaintiffs lacked sufficient continuing injury to support standing for injunctive relief. The injury asserted was that Order 17 led to lawless behavior which may have been the motivation behind the kidnappings, and plaintiff feared that this would happen to him if he went back to Iraq to work again. The Ninth Circuit said this was too speculative and attenuated in affirming the dismissal for lack of standing.

The other policy challenged was that of the State Department, which prevented the family members from negotiating for the release of the victims and passing out flyers inquiring if anybody had any information related to the kidnappings. Plaintiffs alleged this policy violated their First Amendment rights. Like the first claim, the Ninth Circuit held these claims lacked continuing personal injury because plaintiffs' family members were already dead, and it could not be shown how these policies would adversely affect plaintiffs in the future.

Extended Summary:
Joshua Munns, John Young and John Cote were kidnapped and brutally murdered in 2008 while providing contract security services during the United States military occupation of Iraq. Family members of the victims alleged they were prevented from negotiating their release. Specifically, the State Department allegedly told them they could not meet a person who had information about the victims and their whereabouts. The State Department also allegedly blocked distribution of 90,000 flyers that offered a reward for information. The family members claimed this violated their First Amendment rights to free speech and free assembly, and sought injunctive relief from the government policies.

Gary Bjorlin was formerly employed as a contractor in Iraq and wishes to return, but feared he would be kidnapped and murdered because his family would not be able to aid his relief. He joined the victims' family members' First Amendment claims, and also asserted that Coalition Provisional Authority (CPA) Order 17 exceeded the executive branch's constitutional authority. This order was in place during the occupation of Iraq, and allegedly granted "blanket immunity" to contractors from U.S. prosecution for their actions in Iraq. It was also alleged that this policy led to lawless behavior by some security contractors and may have motivated the kidnappings. He sought an injunction preventing the government from implementing CPA Order 17 or a similar policy in the future.

The plaintiffs appealed from a district court judgment that dismissed their claims due to lack of standing and because they were nonjusticiable political questions. The dismissal with prejudice was reviewed de novo by the Ninth Circuit. The Court agreed that the plaintiffs lacked Article III standing to seek declaratory and injunctive relief, and did not address the political question issue.

The main issue was whether the plaintiffs had alleged an "injury in fact" that was sufficiently "concrete and particularized." The threat to Bjorlin from CPA Order 17 was too speculative to constitute an injury in fact. Even if it was presumed the government order actually caused lawless behavior and motivated the kidnappings, the order was no longer in effect. For the injury to occur Bjorlin would have to seek employment, be hired and sent to Iraq again, and CPA Order 17 or a similar order would have to be reinstated. The alleged injury was far too attenuated to be considered impending or to present a substantial risk of its occurrence.

Bjorlin's risk of injury was no less speculative than that of the plaintiff in City of Los Angeles v. Lyons, which did not satisfy standing for injunctive relief. 461 U.S. 95, 108 (1983) (Lyons was subject to an illegal police chokehold and feared he would be stopped again and subject to the same chokehold). Therefore Bjorlin's claims regarding CPA Order 17 were properly dismissed for lack of standing. Bjorlin's claims regarding the hostage response policies were based on the same type of injury, and were properly dismissed for the same reasons.

The family members did not allege that they are likely to be reinjured by the hostage response policies, only that the policies should be declared unlawful and prevented from being implemented in the future. Although they might have sought further communication with Iraq to determine who killed the victims, this was too speculative, especially because it was uncertain the government would apply the same policies. The Ninth Circuit affirmed the dismissal of the family members' claims for lack of standing.

Judge Reinhardt wrote a concurrence, which stated in part that the Ninth Circuit in no way opined on the proper policies for the government to follow regarding contractors in Iraq or terrorism.

To read the full opinion, please visit:

Panel: Reinhardt, Fisher, and Berzon

Argument Date:
September 11, 2014

Date of Issued Opinion: March 20, 2015

Docket Number: No. 12-15969

Decided: Affirmed

Case Alert Author: Matthew J. Gustin

William W. Palmer of the Law Offices of William W. Palmer, Sacramento, California for Plaintiffs - Appellants.

H. Thomas Byron, III, Michael Raab, Stuart F. Delery, Assistant Attorney General, Joyce R. Branda, Acting Assistant Attorney General, and Benjamin B. Wagner, United States Attorney, United States Department of Justice, Civil Division, Appellate Staff, Washington D.C., for Defendants - Appellees.

Author of Opinion: Judge Fisher

Circuit: Ninth

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 05/07/2015 11:42 PM     9th Circuit  

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