Before TAMM and MIKVA, Circuit Judges, and PHILIP NICHOLS, Jr.,* Judge, United States Court of Claims.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 79-1964).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NICHOLS
Opinion for the court filed by Judge NICHOLS.**
Plaintiffs/appellants are seven persons residing in Berlin, Germany, of whom two are U.S. citizens and the remainder German nationals. They petitioned in the U.S. District Court for the District of Columbia seeking declaratory and injunctive relief against the then Secretary of State, Secretary of Defense, Secretary of the Army, and the Commanding General of the U.S. Army in Europe, all in their official capacities. With some correction by the court of broader language in the complaint not warranted by the specifics, plaintiffs alleged in substance that the defendants denied them judicial process that was their due when plaintiffs wished to contest a German official's conclusion that a housing project for American troops was in conformity with German zoning law. On cross-motions for summary judgment, U.S. District Judge Barrington D. Parker held that five of the plaintiffs, the five aliens, lacked standing to sue, that the question at issue was a political one unsuited for judicial resolution, and that all the plaintiffs were barred from bringing the suit either by laches or because as aliens they lacked standing to sue in an American court. He therefore entered an order dismissing the suit, and this appeal followed.
The controversy is inseparably connected with the peculiar nature of the U.S. military presence in Berlin. The alleged constitutional violation is not directly the building of the housing project. That has been done by the West German government, which will continue to own it, and that government is not a party to this suit, nor are any of its officials. A German official, the Berlin Senator for Construction and Housing, determined that the construction of Dueppel Field would not violate German zoning law. When plaintiffs sought review of this decision in a German administrative court, the U.S. Mission in Berlin served notice that its consent to jurisdiction, which was required under the 1955 Declaration of Berlin and Occupation Laws Numbers 7 and 46, would not be granted. There was also on paper a United States Court for Berlin. Plaintiff Dostal tried to bring the case there, but U.S. Ambassador Stoessel notified U.S. Judge Stern that his jurisdiction did not include the case, and thereafter he effectively terminated Judge Stern's appointment, which existed only at his pleasure. Apparently there is no successor judge. It is not denied that local interests were consulted, even ad infinitum, but judicial review in the ordinary sense has not been had and apparently will not be available. Meanwhile, the project has been completed.
Thus, the only denial of due process alleged is that defendants prevented plaintiffs from litigating the legality of the project in any tribunal with jurisdiction over the actual builders. Defendants are not alleged to be impacting any right other than access to a court, any court. It is not denied that the U.S. has reserved the right to deny access in the case at bar if it has constitutional power to do so.
None of the plaintiffs allege they had any ownership interest in the land used for the project, Dueppel Field, which had been public property, or in any adjacent land. Dostal asserts that she leases a small plot elsewhere in the city which she would be hampered in using by dust and air pollution, during construction, and that heavy auto traffic would detract from enjoyment of her plot after the project is completed. The others allege no interest in any specific land, only general environmental injury: the project will prevent them from enjoying Dueppel Field which as an open area had previously been available to them and will preclude other, perhaps worthier, uses of the land. It seems fair to say that plaintiffs would sue, if they could, on environmental grounds, and would not allege legal injury to any specific liberty or property interest.
We hesitate to affirm on Judge Parker's threshold reasons: the difficult issues of laches, standing, and political question. Instead, we evaluate the merits of plaintiffs' fifth amendment claim. It is true that courts are normally reluctant to decide constitutional issues when the case can be disposed of on other grounds, such as laches, and that courts typically resolve standing and political question issues before reaching the merits of the case. Justice Frankfurter stated the proposition to be "(p)articularly when Congressional legislation is under scrutiny, every rational trail must be pursued to prevent collision between Congress and Court," concurring, in United States v. Lovett, 328 U.S. 303, 319, 66 S. Ct. 1073, 1080, 90 L. Ed. 1252 (1946). The reluctance to reach the merits of a constitutional issue loses much of its force, however, when the asserted constitutional right can be easily rejected, and it is unnecessary to strike down legislative or executive action. See, e. g., United States v. Augenblick, 393 U.S. 348, 89 S. Ct. 528, 21 L. Ed. 2d 537 (1968); Edwards v. Carter, 189 U.S.App.D.C. 1, 580 F.2d 1055, cert. denied, 436 U.S. 907, 98 S. Ct. 2240, 56 L. Ed. 2d 406 (1978); Monett v. United States, 190 Ct.Cl. 1, 419 F.2d 434 (1969), cert. denied, 400 U.S. 846, 91 S. Ct. 91, 27 L. Ed. 2d 82 (1970). In this case, if we determine that plaintiffs have no constitutional right to a judicial forum, the order of dismissal is correct and may be affirmed, whatever we may think of laches, political question, or standing. Plaintiffs allege no other basis for recovery than their constitutional contention and we perceive no other.
The crux of plaintiffs' case seems to be the proposition that everyone has a constitutional right to litigate every kind of issue, and that the right is protected by the due process clause against any executive branch action, even if otherwise lawful, to frustrate that right, assuming only that claimants allege an interest that courts would allow as "standing" in other contexts. Plaintiffs make no effort to show that their direct suit against the housing project, if brought, would vindicate a liberty or property interest, those expressly protected by the due process clause, which reads:
No person . . . shall be deprived of life, liberty, or property, without due process of law . . ..
The Supreme Court, however, has held in Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), that the due process clause is available to strike down official action only to those who have a liberty or property interest to protect.
The applicability of the constitutional guarantee of procedural due process depends in the first instance on the presence of a legitimate "property" or "liberty" interest within the meaning of the Fifth or Fourteenth Amendment. . . . (Justice Powell, concurring in Arnett v. ...