The case of the day is Lin v. United States (D.D.C. 2016). The plaintiffs were residents of Taiwan. Their claim was that in 1946, the government of the Republic of China—that is, the nationalist government that the United States, at the time, recognized as the government of China—issued decrees that had the effect of depriving people living in Taiwan of their Japanese nationality. They sued the Republic of China as well as the United States. The claim against the United States was that in 1946, the ROC government was the agent of the United States, making the United States vicariously liable. No one could accuse the plaintiff’s lawyer of lacking courage.
The defendants moved to dismiss for want of jurisdiction. The judge addressed both the standing issues and the FSIA issues. On the FSIA, the claim was that the court had jurisdiction under the exception covering cases “in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment,” 28 U.S.C. § 1605(a)(5). The fatal problem is that Taiwan is not in the United States. The plaintiffs tried to argue that Taiwan was “in the United States” for relevant purposes because in 1946 the United States occupied the country. But the precedents hold that the “United States,” for FSIA purposes, includes only “the continental United States and those islands that are part of the United States and its possessions.” It does not include areas outside the United States over which the United States exercises some jurisdiction.
That’s enough to dispose of the case against the Republic of China. But the claim against the United States failed for other obvious reasons. The question was a quintessential political question. The plaintiffs could not show that their injury was fairly traceable to the United States, because the government of the United States did not issue the decrees in question, and at most the US was aware of the decrees but did not authorize them. Nothing the court could order would remedy the harm.