United States District Court, N.D. Illinois, Eastern Division
July 6, 2005.
IN RE AFRICAN-AMERICAN SLAVE DESCENDANTS LITIGATION.
The opinion of the court was delivered by: CHARLES NORGLE, District Judge
OPINION AND ORDER
Before the court is Defendants' Joint Motion to Dismiss
Plaintiffs' Second Consolidated and Amended Complaint. For the
following reasons, the motion is granted with prejudice.
This case arises out of the institution of human chattel
slavery as it existed in the North American colonies and the
later formed United States of America. The allegations in
Plaintiffs' Second Consolidated and Amended Complaint ("SCAC" or
"Complaint") retell the generally acknowledged horrors of the
institution of slavery, and the malignant actions of the
sovereigns, entities, and individuals, foreign and domestic, that
supported that institution. Plaintiffs' Complaint asks the courts
to reexamine a tragic period in our Nation's history and to hold
various corporate defendants liable for the commercial activities
of their alleged predecessors before, during, and after the Civil
War in America. Defendants acknowledge that slavery marked a
deplorable period in our Nation's history. However, they assert
that Plaintiffs' claims, which arise from that period, cannot be
heard in 2005 in a court of law. II. HISTORICAL OVERVIEW OF SLAVERY IN AMERICA
In essence, Plaintiffs' Complaint is a claim for reparations
rooted in the historic injustices and the immorality of the
institution of human chattel slavery in the United States. To
elucidate the nature of this institution, the court undertakes an
analysis, necessarily brief, of the historical events surrounding
slavery, including the monumental event that ended the
institution of slavery in the United States, the Civil War. The
court also undertakes a brief analysis of the present day slave
reparations movement, in order to illuminate the larger political
context into which this case falls.
A. A Definition of Slavery
In January of 1865, General William Tecumseh Sherman of the
Union forces, along with Secretary of War Edwin Stanton, met with
former slaves. Ira Berlin, Generations of Captivity: A History
of African-American Slaves 2 (2003). The conversation focused on
two questions: from the point of view of the freed slave, what
was the nature of slavery, and what was the nature of freedom?
Id. Garrison Frazier, a sixty-seven year old former slave,
explained that "[s]lavery . . . is receiving by the irresistible
power the work of another man, and not by his consent." Id.
Freedom, Frazier indicated, "is taking us from the yoke of
bondage, and placing us where we could reap the fruits of our own
labor, take care of ourselves and assist the Government in
maintaining our freedom." Id. Frazier's definition reminds us
of the essential unfairness of slavery: the slaveowner takes, by
sheer violence and force, the slave's freedom and labor in order
to place himself at the top of a society's economic hierarchy.
Id. at 3. B. A Brief History of Slavery in the New World
While slavery seems to have been a part of human history since
the "dawn of civilization," African slave trafficking in the New
World began in the year 1502. Robert William Fogel, Without
Consent or Contract: The Rise and Fall of American Slavery 17-18
(1991). Europeans were historically drawn to Africa for two
reasons: gold and slaves. Edward Reynolds, Stand the Storm, A
History of the Atlantic Slave Trade 28 (1985). Those who
journeyed to Africa seeking slaves for the New World sometimes
simply kidnapped individuals who appeared before them by
happenstance. Herbert S. Klein, The Atlantic Slave Trade 103
(1999). However, historical evidence indicates that a great deal
(perhaps even the majority) of the slave trade was made possible
by African leaders who sold African slaves to European slave
traders. Id.; see also Reynolds, supra at 33-46
(providing a detailed explanation of the African slave market,
and the economic mechanisms used to facilitate the sale of slaves
from local African chiefs to slave traders). Local African
leaders acquired these slaves in several different ways: captives
were taken in local wars or raids, those imprisoned for crimes or
indebtedness were often forced into slavery, and large states
would exact slaves as "tribute" from smaller tribes under their
control. See Klein, supra at 117.
Upon their sale to slave traders, slaves were shipped to the
New World in what became known as the "Middle Passage." Slaves'
heads were shaved, their bodies were branded and stripped naked,
and their ankles were shackled. See Reynolds, supra at 47.
They were then led into the holds of slave ships, where they were
laid down alongside each other for the journey to the New World.
Id. at 48. The prevalence of disease, lack of sufficient food
and water, and constant confinement took its toll, with up to one-quarter of the
slaves on any given ship dying during the "Middle Passage." Id.
African slaves in the New World were initially sold into small
sugar production operations in Brazil, Mexico, Peru, Cuba, Haiti,
Jamaica, the British West Indies, and Dutch Guyana. Id. at
20-21. Other African slaves were set to work producing such crops
as cocoa, coffee, hemp, tobacco, and rice. Id. at 21. By the
1680s, the small farm with its traditional methods of operation
had given way to more efficient means of production, and the
concept of the large "plantation" was born. Id. at 23.
Inefficient methods of farming had been "replaced by large gangs
of slaves, working in lock step, and moving methodically across
vast fields." Id. With this change came an increase in the size
of slave operations. By the early part of the 1800s, many
plantations in Jamaica and the West Indies contained up to two
hundred and fifty slaves. Id.
Slavery in North America began more slowly than slavery in
South America and the Caribbean. In 1680, there were 7,000 slaves
in the British North American colonies. Id. at 29. Slavery as
an economic institution in North America, however, rapidly gained
momentum over the next fifty years. By the 1730s, roughly 120,000
slaves had been brought to the colonies and forced to work in
such industries as farming, tobacco production, and domestic
service. Id. By the middle of the 1700s, the institution of
slavery in the United States began to concentrate in the Southern
colonies. It was in these colonies that plantations emerged,
ready to take advantage of the inexpensive labor slaves provided
in the production of such crops as tobacco, rice, sugar, and
cotton. Id. at 31. During the years 1780 to 1810, the rapid expansion of these
industries was accompanied by a significant increase in the
number of slaves imported from Africa. Id. at 32. The increase
in the importation of slaves, along with the natural increase in
the slave population, soon gave the United States a dubious
distinction. By 1825, the population of slaves in the
United States was roughly 1,750,000, making the United States the
"leading user of slave labor in the new world." Id. at 33.
Slavery had become the dominant economic force in the Southern
United States. Historians cite numerous factors for this
development, but it seems that two factors are the most
significant. First, slave labor was inexpensive compared to other
sources of labor. Id. at 34. Second, slave masters in the
Southern states were willing to expend an "enormous, almost
unconstrained degree of force . . . to transform ancient modes of
labor into a new industrial discipline." Id. This "new
industrial discipline" was based on a division of labor scheme,
enforced by brutality, and legally sanctioned.
C. Slavery and American Law
This violent and oppressive system was supported by the
United States legal system for a long period of time. Thus slavery was
historically more than simply a social and economic institution.
It was also an established legal institution.*fn1 For
instance, Article I, Section 9 of the United States Constitution
has been traditionally understood to limit Congress' power to
regulate slavery.*fn2 It is thought that this Article meant
that Congress was denied the power to regulate the "internal slave trade, leaving only importation from Africa to be
prohibited after 1808." Walter Berns, The Constitution and the
Migration of Slaves, 78 YALE L.J. 198 (1968). Also, in 1850,
Congress passed a statute supporting the rights of slaveowners to
capture escaped slaves. The Fugitive Slave Act provided that:
[W]hen a person held to service or labor in any State
or Territory of the United States, has heretofore or
shall hereafter escape into another State or
Territory of the United States, the person or persons
to whom such service or labor may be due . . . may
pursue and reclaim such fugitive person . . . [and
may] take and remove such fugitive person back to the
State or Territory whence he or she may have escaped
The Fugitive Slave Act, ch. 60, § 6, 9 Stat. 462 (1850). This Act
also provided for fines and/or imprisonment for those who aided
escaped slaves, and stipulated that both law enforcement
personnel and ordinary citizens were bound by law to aid in the
capture of escaped slaves. Id. Finally, in the infamous case of
Dred Scott v. Sandford, Scott, a slave, brought suit to gain
his freedom. 60 U.S. 393
(1856). The Supreme Court of the
United States held that since Scott was a "negro, whose ancestors were
imported into this country, and sold as slaves," he could not be
a citizen of the United States, and hence had no standing to
bring suit in a United States court. Id. at 403-04.
D. Slavery and Morality
The immorality of the institution of slavery is obvious.
However, scholars have attempted to explain exactly what it is
about this institution that offends moral sensibilities. Two
moral indictments of the institution are significant. First,
"slavery permitted one group of people to exercise unrestrained
personal domination over another group of people." Fogel, supra
at 394. The slave was subject to abject cruelty, both physical and
psychological, by his or her masters in order for the master to
maintain domination. Id. In one sense, "[t]he extreme degree of
domination required by this system . . . is the essential crime."
Id. Second, the slave was denied the fruits of his or her
labor. Id. at 395. Slaves were forced to work at physically
grueling tasks for very long hours without pay, thus it was
impossible for the slave to improve his or her economic position
within society. Id. The slave simply had no resources or
"opportunity . . . to rise on the economic ladder by acquiring
land, labor skills, and other forms of capital." Id.
E. Slavery as a Cause of the Civil War
Historians have long debated whether slavery was the single
driving force behind the regional tensions in the United States
that eventually led to the Civil War. "Although some scholars
have held that slavery was the cause [of the Civil War], others
have developed complex analyses that draw distinctions between
immediate and ultimate causes and that explore a variety of ways
other than war that could have settled or at least contained the
issue of slavery." Id. at 411. This much, however, is clear: by
1861, tensions between the North and the South had escalated to
the extent that maintaining peace would have required that the
Northern states allow the permanent "existence of an independent
confederacy dedicated to the promotion of slavery." Id. at 413.
In other words, by 1861, tensions between the North and the South
had increased to such a pitch that the only way slavery would be
abolished throughout the entire nation was through armed
A great deal of the tension between the North and the South had
to do with the Northern states' promulgation of Personal Liberty
Laws. "In his annual message to Congress of December 3, 1860, [President] James Buchanan warned that the
South `would be justified in revolutionary resistance to the
Government of the Union' if northern states did not repeal their
Personal Liberty Laws." Thomas D. Morris, Free Men All: The
Personal Liberty Laws of the North 1780-1861 202 (1974). These
laws were devised and implemented by many Northern states to make
it very difficult for slave owners to capture escaped slaves who
had taken up residence in those states.
The court does not claim objective knowledge of the ultimate
cause of the Civil War. Certainly, however, tensions marked by
the North's moral outrage at the institution of chattel slavery,
and the South's indignation at the North's promulgation of
Personal Liberty Laws, contributed significantly to the advent of
F. The Civil War
Fort Sumter, located in the Charleston harbor, South Carolina,
was one of just four Federal fortifications left in Confederate
territory in 1861. Shelby Foote, The Civil War, A Narrative:
Fort Sumter to Perryville 44 (Vintage Books 1986) (1958). The
government of South Carolina had made protests to Washington
regarding the presence of a Federal fortification within its
borders, but those protests were ignored. Id. Instead,
Washington decided to reinforce Fort Sumter with men and
supplies. Id. However, when local gunmen opened fire on a Union
steamer attempting to bring these reinforcements to Fort Sumter,
the steamer was forced to turn away. Id. By March of 1861, Fort
Sumter was surrounded by Confederate forces, and was cut off from
fresh supplies. Id. By April of that year, the Federal forces
inside Fort Sumter were in danger of starving to death. Id. at
48. The time had come for Washington to make a decision abandon Fort Sumter, or again attempt to resupply it. Washington
was aware that another attempt to bring supplies to Fort Sumter
might well provoke an attack on the fort itself. Id. at 47.
This time, however, the attack would not come from local gunmen,
but from Confederate forces. Id. Washington decided not to cave
in to Confederate pressures, and attempted to bring fresh
provisions and reinforcements to the fort. Id. at 47. On the
morning of April 12, 1861, with Union supply ships within sight
of Fort Sumter, the Confederacy fired the first shot of the Civil
War. Id. at 49.
The four-year Civil War was fought by means of a series of
pitched battles, each one seemingly more horrific than the last.
The first true battle of the war, the battle of Bull Run,
resulted in the deaths of roughly 2,700 Union soldiers and 2,000
Confederate soldiers. The Price in Blood, Casualties in the
Civil War, at http://www.civilwarhome.com/casualties.htm. Other
battles, at places like Gettysburg, Antietam, Fredericksburg,
Wilson's Creek, Spotslyvania, Cold Harbor, and Franklin took the
lives of tens of thousands of Union and Confederate soldiers.
Id. The final campaign of the war, fought in the vicinity of
Appomattox, Virginia, resulted in a combined 17,500 battle
Following the Appomattox campaign, on April 9, 1865, Union
General Ulysses S. Grant received Confederate General Robert E.
Lee at Appomattox Courthouse, where the two generals agreed upon
the terms of Lee's surrender. Shelby Foote, The Civil War, A
Narrative: Red River to Appomattox 945-51 (Vintage Books 1986)
(1974). Shortly thereafter, Grant rode out towards his
headquarters, where Union batteries were firing in celebration.
Id. at 950-51. Grant insisted the batteries stop firing,
worried that the noise might spark a skirmish between his troops
and the nearby, and still armed, Confederate soldiers. Id. at
951. There was, however, another more important reason Grant considered it "unfitting" for his troops
to be firing their weapons at that point: "`The war is over,' he
told his staff. `The rebels are our countrymen again.'" Id.
All in all, approximately 620,000 Americans died in the Civil
War; Union forces fighting to end slavery suffered 360,000 of
these deaths. James M. McPherson, Battle Cry of Freedom: The
Civil War Era 854 (Oxford University Press 1988). There were
178,975 African-American Union troops that fought in the Civil
War, and 36,000 of those troops died during the war. The Price
in Blood, Casualties in the Civil War, at
http://www.civilwarhome.com/casualties.htm. An analysis as brief
as this cannot do justice to the tremendous sacrifices made by
both Union and Confederate soldiers in this war. Since the Civil
War, America has been involved in a number of armed conflicts,
but, by some estimates, the fatalities America suffered in the
Civil War exceeds the total number of fatalities America has
suffered in all its other wars. Id. The Civil War, the war that
ended the institution of chattel slavery in the United States,
was truly America's bloodiest war.
G. The Abolishment of Slavery
On January 1, 1863, in the midst of the Civil War, President
Abraham Lincoln issued the Emancipation Proclamation. That
document reads in part: "I do order and declare that all persons
held as slaves within said designated States . . . are, and
henceforward shall be free. . . ." Abraham Lincoln, The
Emancipation Proclamation, Exec. Proclamation No. 17 (Jan. 1,
1863), reprinted in 12 Stat. 1268 (1863).
Following the war, Congress acted to formally abolish slavery
by proposing the Thirteenth Amendment to the United States
Constitution. That Amendment was ratified on December 6, 1865. Section 1 of that Amendment reads: "Neither
slavery nor involuntary servitude, except as punishment for crime
whereof the party shall have been duly convicted, shall exist
within the United States, or any place subject to their
jurisdiction." U.S. Const. amend. XIII, § 1.
Also, the Fourteenth Amendment to the United States
Constitution was ratified on July 9, 1868. Section 1 of that
Amendment reads: "All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside."
U.S. Const. amend. XIV, § 1. In effect, the Fourteenth Amendment
overruled the Dred Scott decision, making freed slaves citizens
of the United States.
Following the Civil War, the South was bankrupt, and an
estimated four million African-Americans assumed the
responsibilities of freedom as nationalism emerged. These
lingering effects led to the Reconstruction era, a significant
period in our Nation's history, which addressed the numerous
issues raised by the abolition of slavery and the war fought to
achieve that end.
H. The Modern Slave Reparations Movement
Plaintiffs' Second Consolidated and Amended Complaint falls
within the broader context of a present and ongoing social and
political movement for slave reparations in America. In order to
properly place this suit within the context of that movement, the
court offers a brief analysis of recent efforts undertaken by
various groups to gain reparations for the historic injustices of
slavery. 1. A Definition of "Reparations"
A complete definition of the term "reparations" will answer, at
least, the following questions. What political, moral, or legal
justification is there for the assertion that descendants of
slaves are owed some sort of reparations? What are the arguments
against reparations? Assuming reparations are justified, what
form should these reparations take? Which specific individuals or
groups will pay these reparations? To which specific individuals
or groups will these reparations be paid?
In general, reparations advocates argue that reparations are
justified because America itself owes a debt to the descendants
of slaves. America owes this debt, advocates assert, simply
because the slaves themselves were never paid for their labor.
"[B]lack people worked long, hard, killing days, years, centuries
and they were never paid. . . . There is a debt here."
Randall Robinson, The Debt: What America Owes to Blacks 207
(2000). In other words, the basic moral principle of fairness,
and the fundamental legal principle that parties must repay their
debts, justifies reparations. "[B]elief in the fairness of
reparations requires at the intellectual level acceptance of the
principle that the victims of unjust enrichment should be
compensated. Under reparations, Blacks more readily may position
themselves as creditors seeking payment of an overdue debt,
rather than as racial supplicants seeking an undeserved
preference." Robert Westley, Many Billions Gone: Is It Time to
Reconsider the Case for Black Reparations?, 40 B.C.L. REV. 429,
Other advocates argue that reparations are justified as a way
to "repair a country by creating a sense of mutual, interracial
trust, respect, and shared destiny." Note, Bridging the Color Line: The Power of African-American Reparations to
Redirect America's Future, 115 HARV. L. REV. 1689, 1689-90
(2002) (hereinafter, "Note"). Still others argue that reparations
for descendants of slaves are justified because other groups that
have suffered historical harms have been able to obtain
reparations. See Alfred L. Brophy, Some Conceptual and Legal
Problems in Reparations for Slavery, 58 N.Y.U. ANN. SURV. AM. L.
497, 499 (2003) (hereinafter "Conceptual and Legal Problems")
(noting that "Native Americans, Holocaust victims, [and] Japanese
Americans interned during World War II" have obtained
However, opponents of slave reparations identify a number of
reasons, they assert, that reparations are unjust or unwise.
Alfred L. Brophy, The Cultural War over Reparations for
Slavery, 53 DEPAUL L. REV. 1181, 1201-02 (2004) (hereinafter
"Cultural War"); see also David Horowitz, Uncivil Wars:
The Controversy over Reparations for Slavery 12-16 (2002)
(identifying ten separate arguments against reparations). The
court will briefly summarize what seem to be the most cogent of
these arguments. Some assert that there is no genuine moral or
legal liability on the part of those who are currently asked to
pay the reparations. Cultural War, supra, at 1202-06. This
argument focuses on the fundamental notion that "one should be
liable only for the harms one causes. . . ." Id. at 1202. Since
today's Americans do not hold slaves, the argument goes, today's
Americans are not morally or legally liable for the evils of
slavery. Id. Others argue that the reparations asked for have,
in fact, already been paid.
Since the passage of the Civil Rights Act and the
advent of the Great Society in 1965, trillions of
dollars in transfer payments have been made to
African-Americans in the form of welfare benefits and
racial preferences (in contracts, job placements and
educational admissions). . . . It is said that
reparations are necessary to achieve a healing
between African-Americans and other Americans. If trillion-dollar restitutions and a wholesale
rewriting of American law (in order to accommodate
racial preferences) is not enough to achieve a
"healing," what is?
Horowitz, supra, at 14; see also CHICAGO, ILL., ORDINANCE
2-92-420 et seq. (providing that "Minority-owned business[es],"
including those businesses owned by African-Americans, are to
receive at least twenty-five percent of the dollar value of any
contract, purchase order, or agreement awarded by the City of
Chicago). Some also argue that the Civil War itself was payment,
in blood and human lives, for slavery. Cultural War, supra,
at 1208; see also Horowitz, supra, at 15 ("If not for the
sacrifices of white soldiers and a white American president who
gave his life to sign the Emancipation Proclamation, blacks in
America would still be slaves"). Finally, a common argument made
against reparations is that reparations talk is divisive, and
continues to enmesh African-Americans in a culture of victimhood.
Cultural War, supra, at 1209-10 ("[talk of reparations] makes
blacks think that whites as a group are their oppressors; it
makes whites who have no responsibility for the sins of the past
feel like oppressors and plays on feelings of guilt").
Advocates of reparations differ in their assessments of exactly
what form reparations ought to take. Some reparations advocates
assert that reparations should start with a formal apology from
America, as well as the establishment of "truth commissions" to
investigate the complicity of various groups or organizations in
slavery. Cultural War, supra, at 1185-1189; see also
CHICAGO, ILL., ORDINANCE 2-92-585 (requiring parties entering
into contracts with the city to search company records, and
provide "full and accurate disclosure to the public about any
slavery policies sold by any companies, or profits from slavery
by other industries (or their predecessors) who are doing
business with the city"); S. Res. 39, 109th Cong. (2005)
(formally apologizing for the Senate's failure to enact anti-lynching
legislation, and expressing sympathy to the descendants of
victims of lynching). Apologies, "truth commissions," and local
ordinances requiring companies to disclose ties to slavery, are
thought by some to be a first step along the road to full
reparations. "By preparing people to understand the nature of the
harm and why reparations are needed, they are a way of making the
claim before the public." Cultural War, supra, at 1188.
Most commonly, however, the term "reparations" simply means
some sort of financial compensation for descendants of slaves.
Some reparations advocates have proposed that reparations take
the form of a "trust . . . established for the benefit of all
Black Americans." Westley, supra, at 470; see also
Robinson, supra, at 244-45. This trust "should be financed by
funds drawn annually from the general revenue of the
United States," and the funds would "be expendable on any project or
pursuit aimed at the educational and economic empowerment" of
African-Americans. Westley, supra, at 470. Specifically,
advocates of reparations assert that trust funds should be used
to finance the creation of special schools for black children
found to be "at risk in unhealthy family and neighborhood
environments." Robinson, supra, at 244-45. These funds could
also be used to finance the work of black political and advocacy
groups. Id. at 245-46. Other reparations advocates propose that
reparations take "the form of subsidies to black-owned
businesses, investment in education programs and scholarships for
black youths, training programs for black workers, affirmative
action programs, resources for community-based organizations in
predominantly black communities, and development and
implementation of programs designed to educate the country about
the legacy of slavery." Note, supra, at 1690. The reparations movement has thus moved towards the notion that
reparations should be directed towards certain groups of people,
rather than specific individuals. "Pro-reparation positions more
readily see harm to entire groups and want to repair that
economic and psychological harm." Conceptual and Legal
Problems, supra, at 509; see also Robinson, supra, at
244-46 (advocating group reparations). The group entitled to
receive reparations would obviously consist of descendants of
slaves, and determining exactly who is and is not a member of
this group could be done in a number of different ways. See
Kevin Hopkins, Forgive U.S. Our Debts? Righting the Wrongs of
Slavery, 89 GEO. L.J. 2531, 2542 (2001) (proposing that
genealogical research, blood testing, or genetic mapping could be
used to determine whether one is a legitimate descendant of
However, there may well be no perfect method of determining
exactly who is a descendant of a slave, and thus a member of the
group entitled to receive reparations. See id. at 2542-2547.
Genealogical research "often fails to provide significant
information about a person's ancestry." Id. at 2543. The blood,
or "one-drop," test (whereby anyone with any trace of African
ancestry is deemed part of the group entitled to receive
reparations) "fails to differentiate between descendants of U.S.
slaves and those of other nationalities with African
heritage. . . ." Id. at 2544. Genetic mapping, or DNA testing,
is more promising than the above two methods, but "alone is
insufficient to provide a decisive link to a homeland. . . ."
Id. at 2547.
The question of who ought to pay the reparations is also
complex. The value of slaves' unpaid labor, reparations advocates
argue, was scattered amongst numerous entities: "plantation
owners, northern entrepreneurs, state treasuries, the
United States government." Robinson, supra, at 207. In the case presently before the court, the Plaintiffs
have chosen to bring suit against private entities, the
corporations who allegedly held slaves, and their successors in
interest. For example, the first named Defendant is FleetBoston
Corporation, which Plaintiffs allege is a successor in interest
to Providence Bank, which allegedly financed and profited from
the slave trade. SCAC, ¶¶ 116-126. Many reparations advocates,
however, focus their attention on the United States government as
the proper party to pay reparations. See Note, supra, at 1700
("Reparations are not intended to hold individual Americans
living today morally responsible for the acts of their
forefathers, but rather to insist that the country apologize for
its wrongful acts and take the necessary steps to bridge the
racial divide and to alleviate the economic and social
disparities that resulted from those acts."); see also
Hopkins, supra, at 2551-52 (advocating that the United States
government pay these reparations).
The following general definition of slave "reparations" thus
emerges. "[R]eparations mean truth commissions that document the
history of racial crimes and the current liability for those
crimes, apologies that acknowledge liability, and payments to
settle the account." Cultural War, supra, at 1190. These
payments may be made in the form of a trust, with the descendants
of slaves named as trust beneficiaries, or other forms of
subsidies given to the descendants, and could be made by private
entities who have allegedly profited from slavery (as the
plaintiffs in the instant suit urge). The reparations movement
more commonly insists, however, that the United States government
should make these payments. Reparations are justified, advocates
argue, on several grounds, including that of an alleged moral and
legal debt owed to descendants of slaves, and the historical
precedents of reparations for the victims of other historical
injustices. However, there are a number of cogent arguments
against reparations, including the arguments that present day Americans are not morally or legally liable for
historical injustices, that the debt to African-Americans has
already been paid, and that reparations talk is divisive,
immersing African-Americans in a culture of victimhood.
2. Previous Attempts at Slave Reparations
Reparations advocates identify five different time periods
during which reparations for slavery were seriously discussed in
one form or another. See Vincene Verdun, If the Shoe Fits,
Wear It: An Analysis of Reparations to African Americans, 67
TUL. L. REV. 597, 600 (1993). First, during and immediately after
the Civil War, both Congress and President Lincoln attempted to
confiscate property from former slaveowners, and to redistribute
that land to former slaves. Id. at 600-01. These attempts
ultimately failed in 1865, when President Johnson ordered that
lands be returned to their "pre-Civil War owners." Id. at 602.
The second period of attempts at slave reparations, occurring
near the turn of the century, included attempts to establish
pension funds for former slaves. Id. at 602-03. The third
attempt at reparations, occurring during World War II, was not a
proposal to pay African-Americans a sum of money; the proposal
was rather to "provid[e] for the migration and colonization of
negroes to newly acquired territories." Id. at 603. The fourth
period of attempts at reparations coincided with the civil rights
movement of the 1960's. Id. Various black activists such as
James Forman, Audley Moore, and Dr. Martin Luther King, Jr.,
demanded, or in some cases, hinted at, slave reparations for
African-Americans. Id. at 603-05. For example, in his
celebrated "I Have a Dream" speech, Dr. King asserted that
"America has given the Negro people a bad check, which has come
back marked `insufficient funds.'" Id. at 604. Finally, the fifth, and current period of attempts at slave
reparations began with the Civil Liberties Act of 1988. Id. at
605-06. This Act provided $20,000, and a formal apology from the
United States government to Japanese-Americans who were interned
during World War II. Pub.L. No. 100-383, 102 Stat. 903 (1988);
see also Korematsu v. United States, 323 U.S. 214 (1944)
(upholding the constitutionality of military and executive orders
issued during World War II which excluded individuals of Japanese
descent from the West Coast, and provided for the detention of
those individuals in "assembly or relocation centers"). Seizing
on what appeared to be Congress' willingness to right the wrongs
of history, reparations activists began their efforts anew.
Numerous grassroots organizations formed to advocate slave
reparations. Verdun, supra, at 606 nn. 26-27. In 1989, U.S.
Representative John Conyers introduced a bill that would have
established a commission to study the effects of slavery on
present day African-Americans, and to study whether reparations
would be appropriate. H.R. 3745, 101st Cong. (1989). The preamble
to Conyers' proposed legislation stated that its intent was
to acknowledge the fundamental injustice, cruelty,
brutality, and inhumanity of slavery in the
United States and the 13 American colonies between 1619 and
1865 and to establish a commission to examine the
institution of slavery, subsequent de jure and de
facto racial and economic discrimination against
African Americans, and the impact of these forces on
living African Americans, [and] to make
recommendations to the Congress on appropriate
remedies, and for other purposes.
Id. Conyers has introduced similar legislation to each Congress
since 1989, but none of these bills has made it out of committee.
See, e.g., H.R. 40, 108th Cong. (2003), H.R. 40, 107th Cong.
3. The Legislature as the Proper Forum to Achieve Slave
Reparations Despite Representative Conyers' lack of success before
Congress, some reparations activists today still assert that the
legislature, rather than the courts, is the best forum in which
to introduce their claims. See, Westley, supra, at 436 ("It
is Congress, and perhaps the legislatures of the former slave
states, that must be persuaded to enact reparations"); Note,
supra, at 1704 ("There are concrete benefits of working in the
legislative branch rather than the judicial branch"). Activists
acknowledge that there are significant problems involved with
bringing the issue of reparations for slavery before a court of
The specific problem with bringing this issue before a court is
that courts are equipped for, and charged with the responsibility
of, "dealing with claims by well-identified victims against
well-identified wrongdoers. . . ." See Conceptual and Legal
Problems, supra, at 502. Claims asserting harms against groups
of long dead victims, perpetrated by groups of long dead
wrongdoers, are particularly difficult to bring in modern
American courts of law. "First, the victims are making claims
against people who are not themselves wrongdoers. Furthermore,
that defendant class may not have any current benefit from the
harm. . . . Often the perpetrators cannot be identified with
specificity or are no longer alive." Id. at 503. For these
reasons, plaintiffs in reparations suits will inevitably face the
conceptual problems of standing and statutes of limitations.
Westley, supra, at 435. However, reparations advocates who
bring their claims before legislatures face no such problems.
"[L]egislatures may hold hearings, make findings, and pass
resolutions or laws on any matter affecting the public interest
and within the scope of constitutional power. Substantively,
legislatures provide a friendlier forum than courts for racial
remedies." Id. In addition to reparations offered to Japanese individuals
interred during World War II, at least one state legislature has
passed a bill authorizing reparations for past racial injustices.
See C. Jeanne Bassett, House Bill 591: Florida Compensates
Rosewood Victims and Their Families for a Seventy-One-Year-Old
Injury, 22 FLA. ST. U.L. REV. 503 (1994). In January 1923, the
small town of Rosewood, Florida, inhabited entirely by
African-Americans, was burned to the ground by a group of whites
after a white woman claimed she had been raped by an
African-American man. Id. at 505-07. In addition, at least
eight African-Americans were murdered. Id.; see also Martha
Minow, Not Only for Myself: Identity, Politics, and Law, 75 OR.
L. REV. 647, 679 (1996). In 1994, Florida passed House Bill 591,
which authorized compensation for the victims of this massacre,
and their direct descendants. Bassett, supra, at 517-18. The
compensation included up to $150,000 for each survivor, and
college scholarships for their descendants. Id.
Legislatures, both federal and state, are thus sometimes
inclined to award compensation to victims of historical
injustices. See Pub.L. No. 100-383, 102 Stat. 903 (1988)
(awarding compensation to Japanese individuals interred during
World War II); see also Bassett, supra, (describing how the
Florida legislature awarded compensation to victims and
descendants of victims of the 1923 Rosewood, Florida massacre).
Courts of law, however, are constrained by judicial doctrine and
precedent, including concepts of standing, statutes of
limitations, and the political question doctrine. Legislatures,
both state and federal, face no such conceptual and doctrinal
constraints. For that reason, advocates of slave reparations may
resolve to bring their concerns and demands to the legislative
and executive branches of the government, rather than the
adjudicative and adversarial judicial branch. III. OVERVIEW OF THE PROCEEDINGS
Beginning in 2002, a number of lawsuits were filed by
descendants of slaves seeking reparations from private
corporations that were alleged to have unjustly profited from the
institution of slavery. On October 25, 2002, the Judicial Panel
on Multidistrict Litigation transferred these actions to this
court for coordinated or consolidated pretrial proceedings
pursuant to 28 U.S.C. § 1407. See In re African-American Slave
Descendants Litigation, No. 1491, 231 F. Supp. 2d 1357 (Jud.
Pan. Mult. Lit., Oct. 25, 2002). This litigation then consisted
of nine individual lawsuits. As directed by the court, the
individual Plaintiffs filed a consolidated complaint, which, upon
later review, the court dismissed without prejudice. The court
held that the Plaintiffs had failed to state a cause of action,
had no standing to bring the suit, and that the suit was barred
by the political question doctrine and statutes of limitations.
See In re African-American Slave Descendants Litigation, No.
1491, 304 F. Supp. 2d 1027 (N.D. Ill. 2004). The court then
granted Plaintiffs leave to file a second amended complaint.
Plaintiffs have since filed their Second Consolidated and Amended
Complaint, which also consists of nine individual suits. See
SCAC.*fn3 The Plaintiffs in the SCAC include the following: Deadria Farmer-Paellmann,*fn4 Mary Lacey
Madison,*fn5 Andre Carrington,*fn6 John Bankhead, as
administrator of the Estate of Edlee Bankhead,*fn7 Richard
Barber, Sr.,*fn8 Hannah Hurdle-Toomey, as administrator of
the Estate of Andrew Jackson Hurdle,*fn9 Marcelle Porter, as
administrator of the Estate of Hettie Pierce,*fn10 Julie Mae
Wyatt-Kervin,*fn11 the Estate of Emma Marie Clark,*fn12
Ina Bell Daniels Hurdle McGee,*fn13 Cain Wall Sr., and seven
other individuals who assert they were formerly
enslaved,*fn14 and Antoinette Harrell Miller.*fn15
These named Plaintiffs (hereinafter collectively referred to as
"Plaintiffs"), on behalf of themselves and the classes they seek
to represent,*fn16 seek reparations on behalf of all
"formerly enslaved Africans and their descendants," and all living "former enslaved African-Americans
and their descendants. . . ." See SCAC, ¶ 48. Specifically,
Plaintiffs seek an accounting, disgorgement of profits, the
creation of an "independent historical commission" to study
Defendants' actions, a constructive trust, restitution, and
compensatory and punitive damages arising out of the named
Defendants' alleged past and continued wrongful conduct relating
to the institution of slavery. See id. ¶ 3.
The named Defendants (hereinafter collectively referred to as
"Defendants") are seventeen present-day companies whose
predecessors are alleged to have been unjustly enriched through
profits earned either directly or indirectly from the
Trans-Atlantic Slave Trade and slavery between 1619 and 1865, as
well as post-Emancipation slavery.
Defendants include the following companies: FleetBoston
Financial Corporation, CSX Corporation, Aetna Inc., Brown
Brothers Harriman & Company, New York Life Insurance Company,
Norfolk Southern Corporation, Lehman Brothers Corporation,
Lloyd's of London, Union Pacific Railroad, JP Morgan Chase, R.J.
Reynolds Tobacco Company, Brown and Williamson, Liggett Group
Inc., Canadian National Railway, Southern Mutual Insurance
Company, American International Group ("AIG"), and Loews
Plaintiffs allege that FleetBoston, through its predecessor
bank, made loans to slave traders and also collected custom
duties and fees on ships engaged in the slave trade. See id.
¶¶ 125-26. Plaintiffs further allege that "FleetBoston engaged in
a self-concealed business enterprise so that the Plaintiffs and
others similarly situated would not be aware of the existence of
this enterprise," and, in more recent times, "made various
misleading statements to the Press from March 2000 to February 2002, attempting to disassociate its
predecessor company from its current company." Id. ¶ 128.
Plaintiffs allege that CSX "is a successor-in-interest to
numerous predecessor railroad lines that were constructed or run,
at least in part, by slave labor." Id. ¶ 129. Plaintiffs
further allege that "CSX engaged in a self-concealed business
enterprise as the plaintiffs and others similarly situated would
not be aware of the existence of this enterprise," and, in more
recent times, "withheld information or made a misleading
statement to the Press regarding their participation in and
profiting from slavery." Id. ¶¶ 131-33.
Plaintiffs allege that "Aetna's predecessor in interest,
provided the instrumentality of slavery by underwriting insurance
policies for slave owners against the loss of their African
slaves. . . ." Id. ¶ 136. Plaintiffs further allege that "Aetna
engaged in a self-concealed business enterprise as the plaintiff
class and/or plaintiff ancestors would not be aware of the
existence of this enterprise. . . ." and, in more recent times,
"withheld information or made a misleading statement regarding
their participation in and profiting from slavery." Id. ¶¶
Plaintiffs allege that Brown Brothers Harriman "is the
successor corporation to Brown Brothers & Co.," which "loaned
millions directly to planters, merchants and cotton brokers
throughout the South." Id. ¶¶ 145-46. Plaintiffs also allege
that "Louisiana court records dating back to the 1840's . . .
reveal the firm's ownership of at least two cotton plantations
totaling 4,614 acres and the plantations' 346 slaves. . . ."
Id. ¶ 148. Plaintiffs further allege that "Brown Brothers
Harriman engaged in a self-concealed business enterprise as the
plaintiff class and/or plaintiff ancestors would not be aware of
the existence of this enterprise. . . ." and, in more recent
times, "withheld information or made a misleading statement based
on press reports in an attempt to disassociate itself from its
predecessor's business." Id. ¶¶ 151-52.
Plaintiffs allege that "New York Life's
predecessor-in-interest, Nautilus Insurance, earned premiums from
its sale of life insurance to slave owners." Id. ¶ 155.
Plaintiffs further allege that "New York Life engaged in a self-concealed business
enterprise as the plaintiff class and/or plaintiff ancestors
would not be aware of the existence of this enterprise. . . ."
and, in more recent times, "withheld information or made
misleading statements regarding their participation in and
profiting from slavery." Id. ¶¶ 159, 162.
Plaintiffs allege that Norfolk Southern "is a
successor-in-interest to numerous railroad lines that were
constructed or run, in part, by slave labor." Id. ¶ 163.
Plaintiffs further allege that Norfolk "participated in the
institution of slavery in that it derived the benefits of unpaid
slave labor and it provided financial supports to slave owners
and slave traders." Id. ¶ 165.
Plaintiffs allege that the founder of Lehman Brothers, Henry
Lehman, and his brothers "grew rich as middlemen in the
slave-grown cotton trade." Id. ¶ 168. Plaintiffs further allege
that Lehman Brothers owned slaves. Id. ¶ 171.
Plaintiffs allege that Lloyd's of London "insured ships
utilized for the Trans-Atlantic slave trade." Id. ¶ 173.
Plaintiffs further allege that "Lloyd's engaged in a
self-concealed business enterprise as the plaintiff class and/or
plaintiffs' ancestors would not be aware of the existence of this
enterprise. . . ." Id. ¶ 174.
Plaintiffs allege that Union Pacific "is a
successor-in-interest to numerous predecessor railroad lines that
were constructed or run in part by slave labor." Id. ¶ 177.
Plaintiffs further allege that "Union Pacific engaged in a
self-concealed business enterprise as the plaintiff class and/or
plaintiffs' ancestors would not be aware of the existence of this
enterprise. . . ." and, in more recent times, "withheld
information or made a misleading statement regarding their
participation in profiting from slavery." Id. ¶¶ 178-79. Plaintiffs allege that "two of [the] predecessor banks that
merged to become J.P. Morgan Chase were behind a consortium to
raise money to insure slavery." Id. ¶ 181. Plaintiffs further
allege that "J.P. Morgan Chase engaged in a self-concealed
business enterprise as the plaintiff class and/or plaintiffs'
ancestors would not be aware of the existence of this
enterprise," and, in more recent times, "withheld information or
made a misleading statement regarding their participation in and
profiting from slavery." Id. ¶ 182.
Plaintiffs allege that R.J. Reynolds Tobacco Company, Brown &
Williamson, Liggett Group, and Loews Corporation (parent company
of Lorillard Tobacco Company) were all once part of the American
Tobacco Company. Id. ¶ 197. As parts of this larger enterprise,
Plaintiffs assert, these Defendants are "all beneficiar[ies] of
assets acquired through the forced and uncompensated labors of
enslaved African-Americans." Id. ¶ 185; see also id. ¶¶
201, 204, and 210.
Plaintiffs allege that Canadian National Railway "is the
successor-in-interest to seven predecessor railroad lines, that
were constructed and/or run in part by slave labor." Id. ¶ 213.
Plaintiffs further allege that "Canadian National engaged in a
self-concealed business enterprise as the plaintiff class and/or
plaintiff ancestors would not be aware of the existence of this
enterprise. . . ." Id. ¶ 215.
Plaintiffs allege that Southern Mutual Insurance "issued
policies on the lives of slaves in Louisiana." Id. ¶ 219.
Plaintiff further alleges that Southern Mutual "aided and abetted
those who engaged in the maintenance of slavery through the
intentional infliction of emotional distress." Id. ¶ 218. Plaintiffs allege that AIG's predecessors "provided
instrumentalities of slavery by selling insurance policy [sic] to
cover the lives of enslaved Africans with slave owners as
beneficiaries." Id. ¶ 221. Plaintiffs further allege that AIG's
predecessors "aided and abetted those who engaged in the
maintenance of slavery." Id. ¶ 223.
As evidenced by Plaintiffs' allegations, and as the court shall
further discuss, their SCAC is devoid of any allegations that
connect the specifically named Defendants or their predecessors
and any of the Plaintiffs or their ancestors.
1. Factual Allegations of Plaintiffs' Second Consolidated and
Plaintiffs' SCAC begins with a narration of the historical
background of the Transatlantic Slave Trade in America. The
Complaint proceeds to describe the Slave Codes, which various
States enacted in order to perpetuate the institution of slavery.
The Complaint also chronicles how the forced labor of enslaved
Africans helped to build our Nation and enrich early American
industry, while simultaneously dismantling a culture and
impoverishing a race of fellow men and women.
The SCAC then outlines the beginnings of laws that outlawed the
trafficking and trade of slaves, which progressed into a body of
law that found the institution of slavery to be contrary to the
Natural Law of Man. The Complaint proceeds to allege that despite
this body of law that found the institution of slavery to be
contrary to the Natural Law of Man, the vestiges of slavery, in
the form of racism, have resulted in modern-day disparities
between descendants of slaves and the remainder of our society. Ultimately, the SCAC alleges that "Defendants' actions caused
Plaintiffs economic losses and cultural psychic scars and
heretofore without remedy." SCAC, ¶ 41. Plaintiffs allege that
the practice of slavery has caused the following specific social
twenty-six (26) percent of African-Americans in the
United States live in poverty compared to eight (8)
percent of whites. . . . 14.7 percent of
African-Americans have four-year college degrees,
compared with 25 percent of whites. . . . [A] black
person born in 1996 can expect to live, on average,
6.6 fewer years than a white person. . . .
African-Americans are more likely to go to jail, to
be there longer and . . . to receive the death
penalty. . . . [African-Americans] lag behind whites
according to every social yardstick: literacy, life
expectancy, income and education. They are more
likely to be murdered and less likely to have a
father at home. . . . Black families earn only $580
for every $1000 earned by white families.
Id. ¶ 41 n. 1.
2. Counts of Plaintiffs' Second Consolidated and Amended
Count I of Plaintiffs' SCAC is styled: "Conspiracy." Plaintiffs
allege that "[e]ach of the defendants acted individually and in
concert with their industry group and with each other, either
expressly or tacitly, to participate in a plan that was designed
in part to commit the tortious acts referred to herein." Id. ¶
Count II is styled: "Conversion." Plaintiffs allege that "[t]he
enslaved Africans had a property right in themselves." Id. ¶
270. Plaintiffs then allege that "[t]his property right was
wrongfully and illegally taken." Id. ¶ 271. Plaintiffs further
allege that "defendants have willfully and wrongfully
misappropriated and converted the value of [slave] labor and its
derivative profits into defendants' own property." Id. ¶ 278.
Plaintiffs' prayer for relief under Count II seeks an accounting
of profits earned from slave labor, a constructive trust imposed
on such profits, restitution, equitable disgorgement, and
punitive damages. See id. ¶ 280. Count III is styled: "Unjust Enrichment." Plaintiffs allege
that "[d]efendants' failure to pay for the labor provided by the
slaves without receiving any compensation, has allowed defendants
to retain a benefit at the expense of plaintiffs and their
ancestors." Id. ¶ 284. Plaintiffs further allege that
"[d]efendants have failed to account for and or return to
plaintiffs and the plaintiff class the value of their ancestors'
slave labor and/or the profits and benefits the defendants
derived therefrom. . . ." Id. ¶ 283. Plaintiffs' prayer for
relief under Count III seeks an accounting of profits earned from
slave labor, a constructive trust imposed on such profits,
restitution, equitable disgorgement, and punitive damages. See
id. ¶ 288.
Count IV is styled: "Replevin." Plaintiffs allege that
"defendants hold personal property that was never properly vested
in them . . . because the enslaved person's work was unpaid,
stolen, and forcibly held." Id. ¶¶ 290-91. Plaintiffs further
allege that defendants "fraudulently concealed the cause of
action from the heirs or the estates [of Plaintiffs], so that the
statute of limitations does not begin to accrue until the full
facts of the cause of action are revealed to the heirs and the
estate [of Plaintiffs]." Id. ¶ 296. Plaintiffs' prayer for
relief under Count IV seeks an accounting of profits earned from
slave labor, a constructive trust imposed on such profits,
restitution, equitable disgorgement, and punitive damages. Id.
A second Count IV is styled: "42 U.S.C. § 1982."*fn18
Plaintiffs allege that as a result of the Defendants' conduct in
denying slaves the value of their labor, and restricting slaves'
access to corporate records regarding Defendants' participation
in slavery, the Plaintiffs' ancestors' and their descendants'
rights to inherit and convey property have been violated in
contravention of 42 U.S.C. § 1982. Id. ¶ 300. Count V is styled: "Intentional Infliction of Emotional
Distress." Plaintiffs allege that "Defendants' predecessor
companies aided or abetted, or under other theories of secondary
liability . . ., participated in, allowed, or implicitly or
recklessly, sanctioned, and/or benefitted from an institution
that relied on the sexual exploitation, violent abuse and rape to
achieve its goals of a malleable and unpaid work force." Id. ¶
305. Plaintiffs further allege that "[t]he violence and crimes
against the enslaved group were done with the calculated intent
of demeaning, subjugating, and controlling the enslaved
population for the purposes of exploitation for profit and for
the direct benefit of commercial industries." Id. Plaintiffs'
prayer for relief under Count V seeks an accounting of profits
earned from slave labor, a constructive trust imposed on such
profits, restitution, equitable disgorgement, and punitive
damages. Id. ¶ 310.
Count VI is styled "Negligent Infliction of Emotional
Distress." Plaintiffs allege that, as a result of Defendants'
negligent conduct and omissions in relation to the slave trade
and the slavery industry, "Plaintiffs and their deceased enslaved
African ancestors suffered emotional distress and mental
anguish." Id. ¶ 314.
Counts VII-XIII*fn19 of the Plaintiffs' Complaint allege
violations of various state consumer protection laws.
Specifically, Count VII alleges violations of the New York
Consumer Protection from Deceptive Acts and Practices Law, NY
GEN. BUS. LAW §§ 349-350; Count IX alleges violations of the
Texas Deceptive Trade Practices and Consumer Protection Act, TEX.
BUS. & COM. CODE § 17.41 et seq.; Count X alleges violations of
California's Preservation and Regulation of Competition Law, CAL.
BUS. & PROF. CODE § 17200 et seq.; Count XI alleges violations of
the Illinois Consumer Fraud and Deceptive Business Practices Act,
815 ILL. COMP. STAT. 505/1 et seq.; Count XII alleges violations of the
Louisiana Unfair Trade Practices and Consumer Protection Law, LA.
REV. STAT. ANN. § 51:1401 et seq.; Count XIII alleges violations
of the New Jersey Unfair Trade Practices Law, N.J. STAT. ANN. §
56:8-1 et seq. See SCAC ¶¶ 315-366.
In essence, the Plaintiffs seek reparations from Defendants for
their alleged roles in the institution of human chattel slavery
as it existed in the United States from 1619 through 1865, to
3. Plaintiffs' Second Consolidated and Amended Complaint is
Not Materially Different from Plaintiffs' First Consolidated and
Plaintiffs' SCAC repeats many of the same factual and legal
allegations found in Plaintiffs' First Consolidated and Amended
Complaint ("FCAC"). The FCAC and the SCAC both begin with a
lengthy allegation of the historical background of the
Trans-Atlantic Slave Trade, the institution of slavery in the
colonies and the United States, the "state slave codes" which
gave legal sanction to slavery, the horrors of slavery, and the
eventual abolishment of slavery. Both Complaints then go on to
allege that the institution of slavery still negatively impacts
African-Americans. The Complaints allege, inter alia, that
African-Americans receive fewer college degrees than whites, have
less income than whites, and are more likely to be incarcerated
than whites. The Complaints further allege that Defendants'
participation in the slave trade and the institution of slavery
is a direct cause of these harms.
Both Complaints include the following Counts: Conspiracy,
Intentional Infliction of Emotional Distress, Conversion, Unjust
Enrichment, and 42 U.S.C. § 1982. The Conspiracy Counts are
generally materially similar, and they are virtually identical in
places. Compare FCAC, ¶¶ 215-17 with SCAC, ¶¶ 257-67. The Intentional
Infliction of Emotional Distress Counts again are generally
materially similar, and they are virtually identical in places.
Compare FCAC, ¶¶ 232-35 with SCAC, ¶¶ 304-10. The Conversion
Counts are also generally materially similar, and they are
virtually identical in places, although Plaintiffs now allege
that the slaves had a property interest in themselves as well as
a property interest in their labor. Compare FCAC, ¶¶ 239-42
with SCAC, ¶¶ 268-80. The Unjust Enrichment Counts as well are
materially similar, and are virtually identical in places.
Compare FCAC, ¶¶ 243-53 with SCAC, ¶¶ 281-88. The
42 U.S.C. § 1982 Count is virtually identical in both Complaints. Compare
FCAC, ¶¶ 254-60 with SCAC, ¶¶ 299-303. Both Complaints also
include numerous Counts alleging violations of various state
consumer fraud and fair trade statutes. Compare FCAC, ¶¶ 244-53
with SCAC, ¶¶ 315-66. Plaintiffs' allegations in the various
SCAC Counts are, in many places, word for word repetitions of
allegations made in FCAC Counts. Compare, e.g., FCAC, ¶ 255
with SCAC, ¶ 300.
The SCAC adds new Counts of Replevin and Negligent Infliction
of Emotional Distress. However, the fundamental problems
contained within the FCAC, Plaintiffs' lack of standing, the
political question issue, the statutes of limitations, and
Plaintiffs' failure to state a claim on which relief can be
granted, have not been resolved by the SCAC. Plaintiffs' SCAC
still fails to state a claim upon which relief could be granted,
and also fails to allege any facts that would indicate that
Plaintiffs have standing, that the issue of slave reparations is
not a political question, or that the applicable statutes of
limitations have not expired.
4. Defendants' Joint Motion to Dismiss Plaintiffs' Second
Consolidated and Amended Complaint Defendants have responded to Plaintiffs' Second Consolidated
and Amended Complaint with the present Joint Motion to Dismiss,
brought pursuant to Federal Rules of Civil Procedure 12(b)(1) and
(6).*fn20 See Defs.' Joint Mot. to Dismiss Pls.' Second
Consolidated and Amd. Compl., at 1. Defendants allege four
separate grounds which, they assert, warrant dismissal: (1)
Plaintiffs' claims fall short of both constitutional and
prudential standing requirements; (2) all of Plaintiffs' claims
are time-barred; (3) Plaintiffs' claims present a non-justiciable
political question; and (4) Plaintiffs fail to state any
cognizable claim. Id. at 1-2.
Defendants' Joint Motion to Dismiss Plaintiffs' Second
Consolidated and Amended Complaint is now fully briefed and
before the court.
A. Justiciability Doctrines
Article III, § 2 of the United States Constitution provides
that federal courts have jurisdiction only if presented with a
"Case" or "Controversy." The requirement of a case or controversy
imposes a "dual limitation" upon the federal courts. See Flast
v. Cohen, 392 U.S. 83, 94 (1968). First, the requirement of a
case or controversy serves to "limit the business of federal
courts to questions presented in an adversary context and in a
form historically viewed as capable of resolution through the
judicial process." Id. Second, the requirement of a case or
controversy serves to "define the role assigned to the judiciary
in a tripartite allocation of power to assure that the federal
courts will not intrude into areas committed to the other
branches of government." Id. This "dual limitation" found in
the requirement of a case or controversy is enforced by what have been termed the justiciability doctrines of
Article III, which state the fundamental limits on federal
judicial power in our system of government. See Allen v.
Wright, 468 U.S. 737, 750 (1984). "Concerns of justiciability go
to the power of the federal courts to entertain disputes, and to
the wisdom of their doing so." Renne v. Geary, 501 U.S. 312,
316 (1991). The justiciability doctrines include principles such
as the prohibition against advisory opinions, standing, ripeness,
mootness, and the political question doctrine. See generally
Erwin Chemerinsky, Constitutional Law: Principles and Policies
46 (Aspen Law & Business 1997). "The Article III doctrine that
requires a litigant to have `standing' to invoke the power of a
federal court is perhaps the most important of these doctrines."
Allen, 468 U.S. at 750.
Defendants first assert that Plaintiffs lack standing to bring
these claims in a federal court. Mem. in Supp. of Defs.' Joint
Mot. to Dismiss Pls.' Second Consolidated Amd. Compl., at 2-3
(hereinafter, "Mem. in Supp. of Defs.' Mot. to Dismiss
II").*fn21 The doctrine of standing ensures that a litigant
is the proper party to bring a matter before a federal court for
adjudication, by asking if that specific litigant has a
sufficient stake in the matter to invoke the federal judicial
process. This central principle of United States Supreme Court
jurisprudence has deep historical roots. See Miss. & M.R. Co.
v. Ward, 67 U.S. 485, 491 (1863) ("unless he shows that he has
sustained, and is still sustaining, individual damage, he cannot
be heard"). As the Supreme Court recently reiterated: "We have
consistently stressed that a plaintiff's complaint must establish that he has a `personal stake' in the alleged dispute,
and that the alleged injury suffered is particularized as to
him." Raines v. Byrd, 521 U.S. 811, 819 (1997).
a. Historical Overview of the Doctrine of Standing
The requirement that a litigant demonstrate standing a
personal stake in an alleged dispute to bring a matter before a
court for adjudication has been a bedrock principle in our system
of law, as well as the common law system from which our system of
law developed. The standing doctrine comes from the well-known
common law doctrine of locus standi, which translated from
Latin means "place of standing." In essence, the doctrine of
locus standi concerns whether an individual has the legal
capacity to institute proceedings. See, e.g., S.M. Thio,
Locus Standi and Judicial Review 13-14, 235-36 (1971)
(analyzing the doctrines of standing in the United States and in
other common law countries). The concept of standing, or locus
standi, was well known to the early federal courts. See,
e.g., Southern Exp. Co. v. Western N.C.R. Co., 99 U.S. 191,
201 (1878) (holding that since appellant had no legally
cognizable interest in the suit, appellant "can, therefore, have
no locus standi in a court of equity").
The standing doctrine serves to reinforce that "[t]he province
of the court is, solely, to decide on the rights of
individuals. . . ." Marbury v. Madison, 5 U.S. (1 Cranch) 137,
170 (1803). As stated in an authoritative nineteenth century
treatise: "The general rule is that the action should be brought
in the name of the party whose legal right has been affected,
against the party who committed or caused the injury, or by or
against his personal representative." Joseph Chitty, A Treatise
on Pleading and Parties to Actions 1 (G. & C. Merriam
1867). In specific reference to tort actions, that treatise
provides: The action for a tort must in general be brought in
the name of the person whose legal right has been
affected, and who was legally interested in the
property at the time the injury thereto was
committed; for he is impliedly the party injured by
the tort, and whoever has sustained the loss is the
proper person to call for compensation from the
Id. at 59 (emphasis in original and footnotes omitted). This
treatise was relied upon by the United States Supreme Court in
Tyler v. Judges of Court of Registration, 179 U.S. 405, 407
(1900), in which the Supreme Court discussed the proper parties
to litigation. In elucidating the standing doctrine's focus on
the rights of individuals, the Tyler Court stated:
The prime object of all litigation is to establish a
right asserted by the plaintiff or to sustain a
defense set up by the party pursued. Save in a few
instances where, by statute or the settled practice
of the courts, the plaintiff is permitted to sue for
the benefit of another, he is bound to show an
interest in the suit personal to himself, and even in
a proceeding which he prosecutes for the benefit of
the public, as, for example, in cases of nuisance, he
must generally aver an injury peculiar to himself, as
distinguished from the great body of his fellow
Id. at 406. In Tyler, the Court reiterated that the doctrine
of standing "has been announced in so many cases in this court
that it may not be considered an open question." Id.
This core aspect of the doctrine of standing that a litigant
must demonstrate a personal stake in an alleged dispute has
remained unchanged as the Supreme Court has elucidated the modern
formulation and rationale for the doctrine.
b. Modern Formulation of the Doctrine of Standing
The modern standing doctrine involves both constitutional
limitations on federal courts, based on Article III, and
prudential limitations on the exercise of federal court
jurisdiction. See, e.g., Warth v. Seldin, 422 U.S. 490, 498
(1975). "Article III standing . . . enforces the Constitution's
case or controversy requirement. . . ." Elk Grove Unified Sch.
Dist. v. Newdow, 124 S. Ct. 2301, 2308 (2004). The Supreme Court
has explained that "prudential standing encompasses `the general prohibition on a litigant's raising
another person's legal rights, the rule barring adjudication of
generalized grievances more appropriately addressed in the
representative branches, and the requirement that a plaintiff's
complaint fall within the zone of interests protected by the law
invoked.'" Id. at 2309 (quoting Allen v. Wright,
468 U.S. 737, 751 (1984)). Without the doctrine of standing, "the courts
would be called upon to decide abstract questions of wide public
significance even though other governmental institutions may be
more competent to address the questions. . . ." Id.
The modern formulation of the constitutional limitations of the
standing doctrine was elucidated in Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992), where the Supreme Court stated:
Over the years, our cases have established that the
irreducible constitutional minimum of standing
contains three elements. First, the plaintiff must
have suffered an injury in fact an invasion of a
legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not
conjectural or hypothetical. Second, there must be a
causal connection between the injury and the conduct
complained of the injury has to be fairly traceable
to the challenged action of the defendant and not the
result of the independent action of some third party
not before the court. Third, it must be likely, as
opposed to merely speculative, that the injury will
be redressed by a favorable decision.
Lujan, 504 U.S. at 560-61 (citations and internal quotations
omitted). The principle of standing is therefore commonly viewed
as requiring a legally sufficient relationship between the
parties in a suit. "Under the standing doctrine, the relationship
becomes legally important only if the defendant is in some way
both directly responsible for causing [plaintiff's] injury, and
able to redress it." Eric J. Miller, Representing the Race:
Standing to Sue in Reparations Lawsuits, 20 HARV. BLACKLETTER
L.J. 91, 93 (2004). "This triad of injury in fact, causation, and
redressability constitutes the core of Article III's
case-or-controversy requirement." Steel Co. v. Citizens For a Better Environment, 523 U.S. 83
, 103-04 (1998).
These constitutional limitations on standing "are not confined to
the facts of any particular case, but are broadly relevant to
standing in any Article III controversy." Plotkin v. Ryan,
239 F.3d 882
, 884 (7th Cir. 2001); see also Books v. Elkhart
County, Ind., 401 F.3d 857
, 861 (7th Cir. 2005).
The party seeking to invoke federal court jurisdiction has the
burden of establishing the elements of standing. See Lujan,
504 U.S. at 561. "[S]ince they are not mere pleading requirements
but rather an indispensable part of the plaintiff's case, each
element must be supported in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with the
manner and degree of evidence required at the successive stages
of the litigation." Id. The present motion is a motion to
dismiss brought pursuant to Federal Rule of Civil Procedure
12(b), and in this posture "we must presume that the general
allegations in the complaint encompass the specific facts
necessary to support those allegations." Citizens For a Better
Environment, 523 U.S. at 104. "However, [w]here standing is
challenged as a factual matter, the plaintiff bears the burden of
supporting the allegations necessary for standing with competent
proof." Perry v. Village of Arlington Heights, 186 F.3d 826,
829 (7th Cir. 1999) (quoting Retired Chicago Police Ass'n v.
City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996)) (internal
quotations omitted); see also McNutt v. General Motors
Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936)
(indicating that the party invoking federal court jurisdiction
must "allege in his pleading the facts essential to show
jurisdiction [and] [i]f he fails to make the necessary
allegations he has no standing"). "`Competent proof' requires a
showing by a preponderance of the evidence that standing exists."
Perry, 186 F.3d at 829 (quoting NLFC, Inc. v. Devcom
Mid-America, Inc., 45 F.3d 231, 237 (7th Cir. 1995)); see
also McNutt, 298 U.S. at 189 (stating that when "allegations of jurisdictional facts are
challenged . . . in any appropriate manner, [the party alleging
jurisdiction] must support them by competent proof;" and if
unchallenged, the federal courts "may demand that the party
alleging jurisdiction justify his allegations by a preponderance
c. Plaintiffs' Allegations in Support of their Standing to
Maintain this Suit
In general, Plaintiffs claim that the source of their injury is
the institution of slavery. Plaintiffs first point to four
distinct injuries which they allege are sufficient to confer them
standing to maintain this suit. Plaintiffs allege that they
currently suffer concrete, direct harm as descendants of slaves,
in that they presently do not have "the same opportunities as
[do] their white contemporaries, . . . [do] not have to overcome
barriers to their human right to development which their white
contemporaries [do] not, . . . suffer irreparable psychological
damage from the loss of their history, language and
culture," . . . and that they do not "know the actual birth names
of . . . their forebearers and, consequently, to this day do not
know their own real names." Pls.' Mem. in Opp. to Defs.' Joint
Mot. to Dismiss the Second Amended and Consolidated Compl., at
1-2 (hereinafter "Mem. in Opp. to Defs.' Mot. to Dismiss II").
Next, Plaintiffs allege that particular Plaintiffs, Cain Wall and
his children, and Emma Clark, were themselves actually enslaved
in the twentieth century. Id. at 2.*fn22 Plaintiffs
then allege that, as they have filed or will file the necessary
paperwork to become administrators of their ancestor's estates, they have suffered an actual, particularized injury by
being denied their rightful inheritances. Id.
Further, Plaintiffs allege that they have "suffered
segregation, lost opportunity, diminished self-worth and value,
loss of property rights, loss of derivative property rights, and
psychological harm. . . ." SCAC, ¶ 108. Plaintiffs also allege
that they are "presently consumers of Defendants" and have been
injured by certain communications made by the Defendants
concerning Defendants' respective roles in the institution of
slavery. See id. ¶ 104. Specifically, Plaintiffs allege that
"[d]ue to unconscionable, fraudulent and deceptive public
communications made by defendants, plaintiffs suffered the harm
of being misled, confused, and deceived about the roles the
defendants played in the enslavement of African people." Id.
Additionally, Plaintiffs allege injury through the Defendants'
alleged continuing violation of state consumer protection laws.
SCAC, Counts VII-XIII; Mem. in Opp. to Defs.' Mot. to Dismiss II,
However, "[e]ven if [Plaintiffs'] claimed injury is
sufficiently specific, it is not clear that [Plaintiffs
themselves are] harmed. The fact of having an enslaved ancestor,
even one transported, insured, or put to work by the defendants,
does not seem sufficient injury without something more." Miller,
supra, at 97 (commenting specifically on the instant case).
"[D]escent from slaves is not of itself an injury, rather the
sorts of legally relevant injuries are harms suffered by
individuals that are attributable to the ongoing effects of
slavery." Id. The type of injuries Plaintiffs are alleging in
this case therefore cannot be understood as run-of-the-mill,
traditional injuries as are commonly found in most tort claims.
Plaintiffs are alleging that injuries to their long-dead
ancestors are causing them concrete harm today. "[P]arties
suffering non-traditional injuries must prove, to a virtual certainty,
the causal link between the action challenged and the claimed
injury. . . ." Laveta Casdorph, The Constitution and
Reconstitution of the Standing Doctrine, 30 ST. MARY'S L.J. 471,
502 (1999) (emphasis added). Plaintiffs face insurmountable
problems in establishing "to a virtual certainty" that they have
suffered concrete, individualized harms at the hands of
Defendants. "[A]n essential prerequisite to bringing suit is the
plaintiff's ability to establish with precision her relationship
to the injury and the defendant." Miller, supra, at 93. In
terms of slavery reparations, the "`traditional' model . . .
seeks suit against a defendant or defendants on behalf of a
plaintiff class comprised of descendants of slaves." Id. In
such situations, plaintiffs "assume? that a familial
relationship between the ancestor victim and the descendant
plaintiff what might be called hereditary or genetic standing
is sufficient to bring suit." Id. An assumption such as this is
difficult to implement in practice. "The notion that standing can
be inherited (the `genetic' theory of standing) is . . . legally
. . . suspect; and the notion that groups, rather than
individuals, have standing to sue, is legally insupportable."
Id. at 94.
(1). Constitutional Limitations on Standing
(a). Derivative Harm
It is well-established that a plaintiff must "`show that he
personally has suffered some actual or threatened injury as a
result of the putatively illegal conduct of the defendant.'"
Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 454, 472 (1982)
(quoting Gladstone, Realtors v. Village of Bellwood,
441 U.S. 91, 99 (1979)). Plaintiffs cannot establish a personal injury by
merely identifying tort victims and alleging a genealogical
relationship. The illegal conduct at issue here, the institution
of slavery, is alleged to have directly affected Plaintiffs' ancestors. Plaintiffs now,
more than a century later, point to that horrific institution as
the source of their derivative injury.*fn23 However,
Plaintiffs' own choice of words, derivative, should be
sufficient to signify the standing problem in this case. See
SCAC, ¶ 114. Plaintiffs fail to allege that they have personally
suffered a concrete and particularized injury as a result of
Defendants' putatively illegal conduct; rather, Plaintiffs'
alleged injury is derivative of the injury inflicted upon
enslaved African-Americans over a century ago. See, e.g.,
id. ¶ 111 ("Each Plaintiff African-American slave descendant
has suffered by the Defendants' failure to pay their ancestors
for their labor as slaves or as sharecroppers, peons or even
slaves"). This is insufficient to establish standing, and
contrary to centuries of well-settled legal principles requiring
that a litigant demonstrate a personal stake in an alleged
dispute. See, e.g., Tyler, 179 U.S. at 406-07 (stating that
a plaintiff must "aver an injury peculiar to himself, as
distinguished from the great body of his fellow citizens");
Lujan, 504 U.S. at 560 (stating that a "plaintiff must have
suffered an injury in fact an invasion of a legally protected
interest which is . . . concrete and particularized"); Raines,
521 U.S. at 819 (stating that "a plaintiff's complaint must
establish that he has a `personal stake' in the alleged dispute,
and that the alleged injury suffered is particularized as to
him"); see also Antonin Scalia, The Doctrine of Standing as
an Essential Element of the Separation of Powers, 17 SUFFOLK
U.L. REV. 881, 881-82 (1983) ("I suggest that courts need to
accord greater weight than they have in recent times to the
traditional requirement that the plaintiff's alleged injury be a
particularized one. . . ."). To recognize Plaintiffs' standing in
this case "would transform the federal courts into `no more than a vehicle for the vindication of the value
interests of concerned bystanders.'" Allen, 468 U.S. at 756
(citing United States v. SCRAP, 412 U.S. 669, 687 (1973)).
In addition, the injury alleged cannot be "conjectural or
hypothetical." Lujan, 504 U.S. at 560. Plaintiffs allege injury
through being "denied the economic wealth of his or her
ancestors' labor;" Plaintiffs also allege they hold a "derivative
and inherited property right in their ancestors' lost pay. . . ."
SCAC, ¶¶ 113-14. However, Plaintiffs' claim to the economic
wealth of their ancestors' labor is conjectural. While most would
like to assume that they will be the beneficiaries of their
ancestors' wealth upon their demise, this is a mere assumption.
Plaintiffs can only speculate that their ancestors' estates would
have been passed on to them, and cannot say that they would have
inherited their ancestors' lost pay. This is insufficient to show
a personal injury to Plaintiffs.
Further, the Plaintiffs must allege a "causal connection
between the injury and the conduct complained of." Lujan,
504 U.S. at 560. "[T]he injury has to be fairly traceable to the
challenged action of the defendant, and not the result of the
independent action of some third party not before the
court. . . ." Id. The allegations of Plaintiffs' SCAC do not
link these Defendants to the alleged harm. Plaintiffs fail to
allege any facts in their Complaint that directly link the
specifically named Defendants to the alleged injuries suffered
by the Plaintiffs; nor does the Plaintiffs' Complaint allege a
direct connection between any of the named Defendants and any of
the Plaintiffs' ancestors. The named Plaintiffs who allege that
they are descendants of enslaved African-Americans fail to allege
that their ancestors were enslaved by any of the seventeen
specifically named Defendants. Likewise, the named Plaintiffs who
allege that they were slaves fail to allege that they were
enslaved by any of the seventeen specifically named Defendants. Plaintiffs' only response to this fundamental defect
is to allege that Defendants were engaged in "co-dependent"
industries and therefore are generally and vicariously liable for
the institution of slavery. However, Plaintiffs fail to allege
how their alleged harms are "not the result of the independent
action of some third party not before the court. . . ." See
Lujan, 504 U.S. at 560. Plaintiffs offer no allegations that
Defendants had any relationship with specific entities that
enslaved the named Plaintiffs or their ancestors. More than
"unadorned speculation" is required to establish standing. See
Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26,
(b). Continuing Injury
Plaintiffs' allegations that they suffer injury on a continuing
basis also fail to establish the requisite standing. Plaintiffs
claim a continuing injury through the allegation that "[t]hey
still endure daily indignities from the legacy of slavery,
including, but not limited to, racial profiling, racial slurs,
and improper and hurtful assumptions regarding their overall
status." SCAC, ¶ 115. Further, Plaintiffs allege that they
"continue? to be harmed to the present day, in that each . . .
are deprived job opportunities, caused psychic harm, denied
ability to inherit his or her fore-parents wealth." Id. ¶ 110
Plaintiffs' allegations of continuing harm are no different
than the allegations of continuing harm made by the plaintiffs in
Cato v. United States, 70 F.3d 1103 (9th Cir. 1995), and other
similar cases. In Cato, descendants of enslaved
African-Americans filed a complaint against the United States
government seeking damages due to the enslavement of, and
subsequent discrimination against, African-Americans. Cato,
70 F.3d at 1105. The plaintiffs in Cato alleged injuries based on
"disparities in employment, income, and education" between African-Americans and other racial groups. Id. at 1109. The
Cato court found that such allegations were insufficient to
establish an injury personal to the plaintiffs so as to establish
the plaintiffs' standing; rather, such injuries were "a
generalized, class-based grievance. . . ." Id. Other courts
faced with similar complaints have also found that those
plaintiffs had failed to establish their standing to litigate
claims based on continuing injuries alleged to be the result of
slavery. See, e.g., Bell v. United States, No. CIV. A.
301CV0338D, 2001 WL 1041792, at *2 (N.D. Tex. Aug. 31, 2001)
(plaintiff lacked standing to file suit against United States
government seeking damages for the enslavement of
African-Americans); Bey v. United States Department of Justice,
No. 95 CIV 10401, 1996 WL 413684, at *1 (S.D.N.Y. July 24, 1996)
(same); Langley v. United States, No. C 95-4227, 1995 WL
714378, at *2 (N.D. Cal. Nov. 30, 1995) (same); Himiya v.
United States, No. 94 C 4065, 1994 WL 376850, *2 (N.D. Ill. July 15,
1994) ("Although it is extremely regrettable that this country's
history, as well as the history of many other countries, includes
a significant history of slavery, the plaintiff does not have
proper standing under the law to recover damages for this
reprehensible time period"). Like the plaintiffs' allegations in
Cato and the other slavery reparations cases decided after
Cato, Plaintiffs' allegations of continuing harm in this case
do not establish a concrete and particularized injury-in-fact, as
these allegations are too speculative and generalized. See
Lujan 504 U.S. at 560-61.
Plaintiffs argue that the other lawsuits seeking reparations
for acts related to the institution of slavery are
distinguishable on the grounds that those cases were brought by
pro se plaintiffs, acting without the guidance of counsel, and
against the United States Government, protected from suit by the doctrine of sovereign
immunity.*fn24 These are distinctions without a difference.
Those pro se plaintiffs could have been represented by
attorneys and the result would not have changed.*fn25
Furthermore, the doctrine of sovereign immunity was only one of
many jurisdictional bars to suit in those cases, including
standing. The constitutional limitations on standing, including
an injury-in-fact, "are not confined to the facts of any
particular case, but are broadly relevant to standing in any
Article III controversy." Plotkin, 239 F.3d at 884. Like the
plaintiffs in those cases, Plaintiffs fail to allege any concrete
and particular injury-in-fact that they have suffered apart from
their race generally.
Further, Plaintiffs' Complaint is devoid of any allegations
that any specific conduct of the Defendants was a cause of the
continuing injuries of which Plaintiffs complain. Such
wide-ranging social ills are not even alleged "to be fairly
traceable to the challenged action of the defendant, and not the
result of the independent action of some third party not before
the court." Lujan, 504 U.S. at 560. Plaintiffs' allegations of
abstract stigmatic injury are not cognizable absent specific
allegations of conduct on behalf of the Defendants that has been
directed at Plaintiffs or their ancestors. Cf. Allen,
468 U.S. at 755-56.
(c). Miscellaneous Injury Lastly, Plaintiffs allege injury, in their status as consumers
of the Defendants, through being misled, confused, and deceived
about the roles the Defendants played in the enslavement of
African peoples, as a result of Defendants' public
communications. See SCAC, ¶ 104. Plaintiffs also allege harm
through the Defendants' "intentional misrepresentations" relating
to their involvement in securing profits from slavery. See
id. ¶ 227. These alleged injuries relate to causes of action
pled in Plaintiffs' Complaint as violations of various state
consumer protection laws. See id. Counts VII-XIII. Plaintiffs
argue that their allegations that Defendants have violated these
State consumer protection laws are sufficient to confer them
standing to pursue these claims. See Mem. in Opp. to Defs.'
Mot. to Dismiss II, § IV. Further, Plaintiffs argue that some of
these statutes do not even require that an injury be alleged, and
therefore their standing to pursue these claims is a given. See
Mem. in Opp. to Defs.' Mot. to Dismiss I, at 11.
This argument misses the mark. The assertion that a state
statute dispenses with the requirement that an injury be alleged
does not, and cannot, abrogate constitutional limitations imposed
by Article III that a personal injury-in-fact is a prerequisite
for standing to sue in a federal court. See, e.g., Burford
v. Sun Oil Co., 319 U.S. 315, 317 (1943) (holding that state
legislatures may not expand the jurisdiction of the federal
district courts); see also Rifkin v. Bear Stearns & Co.,
Inc., 248 F.3d 628, 631 (7th Cir. 2001) (same). These
constitutional limitations on standing cannot be altered by
either state or federal law. See Gladstone, Realtors,
441 U.S. at 100 (holding that Congress may not abrogate the
constitutional limitations on standing); Watson v. Tarpley,
59 U.S. 517, 520 (1855) (holding that "[state] laws cannot affect,
either by enlargement or diminution, the jurisdiction of the
courts of the United States as vested and prescribed by the
constitution and laws of the United States"); see also
U.S. Const. art. VI, cl. 2 (Supremacy Clause). Further, Plaintiffs cannot use their standing
to pursue one type of claim in a State court in order to
establish their standing to pursue all of the claims asserted in
the present case in a federal court. "The plaintiffs must
establish the district court's jurisdiction over each of their
claims independently; they are not permitted to use one count of
their complaint to establish federal subject matter jurisdiction
and a separate count to establish standing." Rifkin,
248 F.3d at 634.
Moreover, these injuries alleged in Plaintiffs' status as
consumers of Defendants do not establish a legally cognizable
injury. Aside from alleging a general state of confusion, the
Plaintiffs fail to allege any injury-in-fact that has come about
as a result of that confusion. "The injury alleged must be . . .
distinct and palpable, and not abstract or conjectural or
hypothetical." See Allen, 468 U.S. at 751 (citations
omitted). Additionally, "in ruling on standing, it is both
appropriate and necessary to look to the substantive issues . . .
to determine whether there is a logical nexus between the status
asserted and the claim sought to be adjudicated." Flast,
392 U.S. at 102. "Such inquiries into the nexus between the status
asserted by the litigant and the claim he presents are essential
to assure that he is a proper and appropriate party to invoke
federal judicial power." Id.
Plaintiffs allege that "defendants are engaging in continued
intentional misrepresentations and deceptive statements to the
consuming public about their roles in the enslavement of
Africans. They are unjustly enriched by these commercial acts and
omissions. . . ." SCAC, ¶ 227. Plaintiffs fail to allege that
Defendants have any cognizable duty to reveal any such
information, nor do Plaintiffs allege any concomitant right to
obtain such information. Moreover, Plaintiffs make this
conclusory statement without any specific factual allegations in support of it. Plaintiffs offer unsupported conclusions wrapped
in legally significant terms, such as "intentional
misrepresentation" and "unjust enrichment," which are
insufficient to establish standing. "The requirements of Article
III are not satisfied merely because a party requests a court of
the United States to declare its legal rights, and has couched
that request for forms of relief historically associated with
courts of law in terms that have a familiar ring to those trained
in the legal process." Valley Forge, 454 U.S. at 471. Again,
more than "unadorned speculation" and conclusory allegations are
required to establish standing. See Simon, 426 U.S. at 43-44.
In response to all these deficiencies, Plaintiffs argue that
"`[s]tanding can be supported by a very slender reed of injury.'"
Mem. in Opp. to Defs.' Mot. to Dismiss I, at 4 (citing 13 Charles
Allen Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3531.4 (2d ed. 1984)). Plaintiffs are
correct that standing can be supported by a very slender reed of
injury, as the cases which they cite provide. Yet, this "slender
reed" must still have its roots in the soil of an injury personal
to the Plaintiffs, not a "derivative harm" uprooted from the soil
of another's injury.
Plaintiffs wish to litigate the issue of slavery without
establishing that they have suffered some concrete and
particularized injury as a result of the putatively illegal
conduct of the Defendants. See Valley Forge, 454 U.S. at 472;
Lujan 504 U.S. at 560. However, "[t]he fundamental aspect of
standing is that it focuses on the party seeking to get his
complaint before a federal court and not on the issues he wishes
to have adjudicated." Flast, 392 U.S. at 99. "In other words,
when standing is placed in issue in a case, the question is
whether the person whose standing is challenged is a proper party
to request an adjudication of a particular issue and not whether the issue itself is justiciable." Id. at 99-100.
Plaintiffs cannot satisfy the first and most basic requirement of
constitutional standing a concrete and particularized personal
injury. See Lujan, 504 U.S. at 560. Plaintiffs cannot
establish a personal injury sufficient to confer standing by
merely alleging some genealogical relationship to
African-Americans held in slavery over one-hundred, two-hundred,
or three-hundred years ago. In attempting to litigate the
unopposed issue of slavery rather than their personal injuries,
Plaintiffs also cannot satisfy the second requirement of
constitutional standing injury that is fairly traceable to the
conduct of the defendants. See id. Plaintiffs do not allege
that they had any present property interest that was injured as a
result of these specific Defendants' actions, nor that any action
of the Defendants wronged them in any way that would be
cognizable under tort theory. Plaintiffs fail to allege any
conduct by the seventeen specifically named Defendants that
individually affected any of the Plaintiffs.
In sum, the allegations of Plaintiffs' Complaint fail to
support their standing to maintain this suit, as required by
Article III of the United States Constitution.
(2). Prudential Limitations on Standing
Beyond the constitutional limitations on the standing doctrine,
there are prudential limitations on the exercise of federal court
jurisdiction. See, e.g., Warth, 422 U.S. at 498. These
additional prudential limitations on standing may exist even
though the Article III requirements are met because "the
judiciary seeks to avoid deciding questions of broad social
import where no individual rights would be vindicated and to
limit access to the federal courts to those litigants best suited
to assert a particular claim." Gladstone, Realtors,
441 U.S. at 99-100. Like the constitutional limitations on the standing
doctrine, these prudential limitations ensure that federal courts adhere to the separation of powers concept and are
"founded in concern about the proper, and properly limited, role
of the courts in a democratic society." Warth, 422 U.S. at 498.
However, "unlike their constitutional counterparts, they can be
modified or abrogated by Congress." Bennett v. Spear,
520 U.S. 154, 162 (1997).
One of these prudential limits on standing is that a litigant
must normally assert his own legal interests rather than those of
third parties. See Singleton v. Wulff, 428 U.S. 106, 113-14
(1976); Warth, 422 U.S. at 499. Another is that the federal
courts should "refrain? from adjudicating `abstract questions of
wide public significance' which amount to `generalized
grievances,' pervasively shared and most appropriately addressed
in the representative branches." Valley Forge, 454 U.S. at 475
(citing Warth, 422 U.S. at 499-500).
(a). Plaintiffs Impermissibly Attempt to Assert the Legal
Rights of Absent Third Parties
As a general rule, a litigant must assert his own legal rights
and cannot assert the legal rights of a third-party. See,
e.g., Powers v. Ohio, 499 U.S. 400, 410 (1991); Singleton,
428 U.S. at 113-14. However, a litigant may assert the rights of
absent third-parties in certain limited situations. In
determining whether a litigant who seeks standing to assert the
legal rights of a third-party may do so, a two-part inquiry is
involved. See Caplin & Drysdale, Chartered v. United States,
491 U.S. 617, 623 n. 3 (1989). First, the litigant must have
personally suffered some injury-in-fact adequate to satisfy
Article III's case or controversy requirement. See id.; see
also Singleton, 428 U.S. at 112. Second, certain prudential
considerations must point in favor of permitting the litigant to
assert the third-party's legal rights. See Caplin,
491 U.S. at 623 n. 3. Among the prudential considerations to consider are
the requirements that the litigant must have a legally sufficient relation to the third-party, see Powers,
499 U.S. at 411; see also Craig v. Boren, 429 U.S. 190, 196
(1976), and there must exist some hindrance to the third-party's
ability to protect his or her own rights. See Powers,
499 U.S. at 411; see also Singleton, 428 U.S. at 115-116.
To the extent that Plaintiffs are attempting to assert the
legal rights of their ancestors, Plaintiffs cannot do so because
they themselves have failed to establish that they have
personally suffered some injury-in-fact adequate to satisfy
Article III's case-or-controversy requirement. See Singleton,
428 U.S. at 112. In addition, prudential considerations militate
against allowing such claims. First, Plaintiffs have not alleged
a legally sufficient relation to their ancestors. All that
Plaintiffs allege is a genealogical relationship, and more is
required under the law in order to confer third-party standing.
Cf. Gilmore v. Utah, 429 U.S. 1012, 1016-17 (1976)
(indicating that a mother had no standing to contest her son's
execution). Plaintiffs make no allegations of any relationship
sufficient, whether by common law or statute, to confer them
standing to pursue the claims of their deceased ancestors. Cf.
Whitmore v. Arkansas, 495 U.S. 149, 163 (1990) (recognizing a
next-friend's standing to sue in certain situations); United
Food & Comm. Workers Union Local 751 v. Brown Group,
517 U.S. 544, 558 (1996) (recognizing that the Worker Adjustment and
Retraining Notification Act, 29 U.S.C. § 2101 et seq., grants
unions standing to sue on behalf of its members). Furthermore,
Plaintiffs do not allege that they are assignees of a legally
cognizable claim against the named Defendants. Second, Plaintiffs
have not alleged that any hindrance existed to their ancestors'
ability to have protected their own rights over the last century.
Cf. Johnson v. McAdoo, 45 App. D.C. 440, 441 (D.C. 1916),
aff'd, 244 U.S. 643 (1917) (evidencing a claim for
slavery-based reparations nearly a century ago). In sum, Plaintiffs have not established third-party standing to
assert the legal rights of their ancestors.
(b). Plaintiffs Impermissibly Attempt to Litigate a
Generalized Grievance Which is Best Addressed in the
As currently framed, Plaintiffs' Complaint seeks to litigate a
generalized grievance over one of the most horrific chapters of
our Nation's history rather than a personal dispute, which the
federal courts are able to adjudicate. For the reasons stated in
the following section, such an "abstract question? of wide
public significance" should be left to the representative
branches of our system of government. See Valley Forge,
454 U.S. at 475.
2. The Political Question Doctrine
Defendants also argue that the court should dismiss Plaintiffs'
Complaint because the issue of reparations to former slaves
presents a non-justiciable political question. See Mem. in
Supp. of Defs.' Mot. to Dismiss II, at 3. Although the court has
dispositively determined that Plaintiffs lack standing to bring
the claims raised in their Complaint, with an abundance of
caution, the court will next determine whether the political
question doctrine provides an independent basis for dismissal.
a. Overview of the Political Question Doctrine
It is well-established that the federal courts will not
adjudicate questions that fall within the purview of the
political question doctrine. See Baker v. Carr, 369 U.S. 186,
210 (1962). Like standing, mootness and ripeness, the political
question doctrine is a justiciability limitation with its
prudential roots dating back to the 18th century. See, e.g.,
Hayburn's Case, 2 U.S. (2 Dall.) 408, 410 (1792) (invalidating
a statute authorizing the Executive branch to accept or reject federal court determinations of pension eligibility for
Revolutionary War veterans); Marbury, 5 U.S. (1 Cranch) at 170
("Questions, in their nature political, or which are, by the
constitution and laws, submitted to the executive, can never be
made in this court."). The political question doctrine restricts
judicial review that might interfere with other branches of the
federal government. See McIntyre v. Fallahay, 766 F.2d 1078,
1081 (7th Cir. 1985). Even in cases where the federal court has
subject matter jurisdiction, it could choose not to exercise its
jurisdiction to avoid interfering with decisions previously made
by the Executive or Legislative branches (hereinafter the
"Representative Branches"). See United States v.
Munoz-Flores, 495 U.S. 385, 393-94 (1990). When the court
reaches this conclusion, the question becomes non-justiciable
meaning not appropriate for judicial review. The
non-justiciability of a political question is based primarily on
the constitutional principle of separation of powers inherent in
the text of the Constitution and the policy of judicial
self-restraint. See Baker, 369 U.S. at 210; see also
Kashani v. Nelson, 793 F.2d 818, 827 (7th Cir. 1986); Flynn v.
Shultz, 748 F.2d 1186, 1189 (7th Cir. 1984); Calvin v.
Conlisk, 520 F.2d 1, 5 (7th Cir. 1975). Although the political
question doctrine is just one aspect of a broader justiciability
issue, it has been "applied in cases involving extremely diverse
issues." Flynn, 748 F.2d at 1189; see also Baker,
369 U.S. at 211-18.
However, not all issues having political implications or
significant political overtones are non-justiciable under the
political question doctrine. See Japan Whaling Ass'n v.
American Cetacean Soc., 478 U.S. 221, 229-30 (1986); see
also I.N.S. v. Chadha, 462 U.S. 919, 921 (1983). Rather the
Supreme Court has said that "`[i]n determining whether a question
falls within (the political question) category, the
appropriateness under our system of government of attributing
finality to the action of the political departments and also the
lack of satisfactory criteria for a judicial determination are dominant
considerations.'" Baker, 369 U.S. at 210 (quoting Coleman v.
Miller, 307 U.S. 433, 454-55 (1939)). To further frame the
issue, the Supreme Court has identified at least six factors
("Baker factors") the court should consider to determine
whether a matter raises a non-justiciable political question,
 a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or  a lack of judicially discoverable
and manageable standards for resolving it; or  the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial
discretion; or  the impossibility of a court's
undertaking independent resolution without expressing
lack of the respect due coordinate branches of
government; or  an unusual need for unquestioning
adherence to a political decision already made; or
 the potentiality of embarrassment from
multifarious pronouncements by various departments on
Baker, 369 U.S. at 217; see also Kashani,
793 F.2d at 827. When any one of the foregoing Baker factors is implicated,
the court should refrain from adjudicating the issue to prevent
unwarranted interference with decisions properly made by the
Representative Branches of the federal government. See
Munoz-Flores, 495 U.S. at 393-94; Baker, 369 U.S. at 217.
Following Baker, the Supreme Court "has not retreated from
the analytical framework it established." Alperin v. Vatican
Bank, 405 F.3d 727, 739 (9th Cir. 2005) (holding that dismissal
of victims of World War II war crimes Complaint was not warranted
because the court could resolve property claims without
expressing lack of respect for federal government's political
branches). Other recent decisions have elaborated on the Baker
criteria. Last Term, the Supreme Court revisited the Baker
decision, stating that the factors enumerated in that case are
"probably listed in descending order of both importance and
certainty." Vieth v. Jubelirer, 541 U.S. 267, 278 (2004)
(holding that political gerrymandering claims are
nonjusticiable). After Vieth, courts have taken a "slightly
different approach to interpreting the phrase `judicially discoverable and manageable standards.'" Alperin,
405 F.3d at 747. "Instead of focusing on the logistical obstacles, we ask
whether the courts are capable of granting relief in a reasoned
fashion or, on the other hand, whether allowing the . . .
[c]laims to go forward would merely provide `hope' without a
substantive legal basis for a ruling." Id. (citing Vieth,
541 U.S. at 304).
b. Application of the Political Question Doctrine
Before determining whether any of the Baker factors require
dismissal under the political question doctrine, the court must
first decide the applicability of the political question doctrine
based on the nature of Plaintiffs' claims. Plaintiffs argue that
the political question doctrine is inapplicable here because
their claims are private, not political. See Mem. in Opp.
to Defs.' Mot. to Dismiss I, at 25 (emphasis added); see also
Mem. in Opp. to Defs.' Mot. to Dismiss II, at 4. Specifically,
Plaintiffs assert that the doctrine does not apply because their
"claims are brought by private individuals against private
corporations for both tort and property harms that were
occasioned by defendants' particular acts of years past, as well
as their acts of today."*fn26 Mem. in Opp. to Defs.'s Mot.
to Dismiss I, at 25. The court rejects Plaintiffs' argument for
two reasons. First, there are numerous cases where the federal courts
have dismissed claims by private plaintiffs against private
defendants on the basis of the political question doctrine. The
majority of these cases arise in the context of reparations
claims arising out of World War II. See, e.g., Kelberine v.
Societe Internationale, 363 F.2d 989, 995 (D.C. Cir. 1966); In
re Nazi Era Cases Against German Defendants Litig.,
129 F. Supp. 2d 370, 382 (D.N.J. 2001); Iwanowa v. Ford Motor Co.,
67 F. Supp. 2d 424, 489 (D.N.J. 1999); Burger-Fischer v. Degussa AG,
65 F. Supp. 2d 248, 282-85 (D.N.J. 1999).
Second, although Plaintiffs couch their claims as tort or
property claims for acts committed by private corporate
defendants, this alone does not preclude the application of the
political question doctrine. The Supreme Court has stated that
the identity of the litigants is immaterial to the questions
raised by the political question doctrine. See Munoz-Flores,
495 U.S. at 394. Additionally, when determining whether the
political question doctrine applies, the court must look to the
nature of the underlying litigation, not the specific claims
enumerated in the complaint. See Renne, 501 U.S. at 316 (to
determine justiciability, the court must examine the "pleadings
and record to determine the nature of the dispute and the
interests of the parties in having [the issue] resolved"); see
also Baker, 369 U.S. at 217 (indicating the need for a
"discriminating inquiry into the precise facts and posture of the
particular case" when distinguishing between "political
questions" and "political cases"). Thus, the issue becomes
whether Plaintiffs' claims are the type of claims that have been
committed to the Representative Branches for resolution. See
In re Nazi Era Cases Against German Defendants Litig.,
129 F. Supp. 2d at 378. Finally, Plaintiffs assert that the issue of reparations is a
distinct and separate issue from issues of "[e]quality under the
law and freedom from discrimination." Mem. in Opp. to Defs.' Mot.
to Dismiss II, at 4. In other words, Plaintiffs argue that the
legislation Congress has passed granting African-Americans full
citizenship and equality under the law does not amount to, or
serve as a substitute for, legitimate and meaningful reparations
for slavery. Id. Plaintiffs therefore argue that the political
question doctrine does not apply to the issue of slave
reparations. Id. at 4-5. It is clear, however, that Congress
has considered the issues of reparations for slavery numerous
times, in contexts distinct from that of equal rights under the
law. See, e.g., H.R. 40, 108th Cong. (2003) and H.R. 40,
107th Cong. (2001) (proposing a Congressional committee to study
the effects of slavery on the present African-American
community); An Act to Establish a Bureau for the Relief of
Freedmen and Refugees, ch. 90, 13 Stat. 507 (March 3, 1865)
(creating the Freedman's Bureau, which was to provide former
slaves with, inter alia, food, clothing, and job placement);
H.R. 29, 40th Cong. § 1, 2 (1867) (proposing that Confederate
property be seized and distributed to former slaves).
Plaintiffs' Complaint indicates that the underlying nature of
their lawsuit seeks reparations for Defendants' participation in
slavery dating back as far as the year 1619. See SCAC, ¶ 5.
Although Plaintiffs request both equitable and legal relief, the
bulk of this relief centers on Plaintiffs' claim for restitution.
For example, Plaintiffs seek, among other things, the following
remedies: (1) an accounting of the "monies, profits, and/or
benefits derived by defendants" from the slave trade and slavery;
(2) "a constructive trust in the value of said monies, profits,
and/or benefits," (3) "full restitution in the value of all
monies, profits, and/or benefits derived by defendants' use of
slave labor," (4) "equitable disgorgement" of these "monies, profits, and/or benefits," and (5) any other appropriate
damages. See id. ¶¶ 288, Prayer for Relief. These remedies
collectively provide the basis for calculating and distributing
the amount of restitution sought; that is the amount in which
Plaintiffs claim that Defendants wrongfully benefitted from
Plaintiffs' ancestors' unpaid slave labor. See United States
v. Shepard, 269 F.3d 884, 885 (7th Cir. 2001) (defining
restitution as usually meaning the return of ill-gotten gains to
which the holder is not legally entitled). Courts have
consistently held that claims seeking restitution for forced
labor are claims for reparations. See Iwanowa,
67 F. Supp. 2d at 485 n. 84; see also Burger-Fischer,
65 F. Supp. 2d at 281-82. Such claims clearly raise a question as to whether the
Judicial branch of the federal government is best suited to
resolve the issue. See Cato, 70 F.3d at 1110 (holding that
plaintiffs' claims for slavery reparations presented a
non-justiciable political question); see also Kelberine,
363 F.2d at 995 (concluding that plaintiffs' claims for
reparations against private corporate defendant for its
involvement in a "Nazi Conspiracy" during World War II were
barred by political question doctrine).
To further support this conclusion, in a recent action seeking
relief from a German company and its American subsidiaries for
damages resulting from the plaintiffs' forced labor in Nazi
Germany during World War II, the District Court for the District
of New Jersey rejected the very same argument that Plaintiffs
raise here. See In re Nazi Era Cases Against German Defendants
Litig. 129 F. Supp. 2d at 375 (rejecting the plaintiffs'
argument that the political question doctrine cannot preclude a
claim for reparations brought by an individual against a private
company when the underlying abuse alleged was "fundamentally
interrelated with the Nazi war effort"). As a result, Plaintiffs' assertions that their claims are
private rather than political, and that the issue of
reparations is different from the issue of equal rights under the
law, do not preclude the court from inquiring into whether this
case presents a non-justiciable political question. Further,
given the nature of Plaintiffs' claims, an analysis of the
political question doctrine is necessary. Having reached this
conclusion, a review of Plaintiffs' Complaint reveals that all of
the Baker factors are present in the underlying litigation.
(1). A Textually Demonstrable Constitutional Commitment of the
Issue to a Coordinate Political Department
The Constitution commits to the Representative Branches of the
United States Government the authority to resolve the issue of
reparations to former slaves resulting from the Nation's role in
the institution of slavery. As stated above, historians have long
debated whether the issue of slavery was the actual cause of the
Civil War. See infra, Part II.E. However, regardless of what
actually caused the Civil War, it is clear that the abolition of
slavery as an institution was a fundamental concern of the
Representative Branches both during and after the war. See,
e.g., Donald G. Nieman, Promises to Keep: African-Americans
and the Constitutional Order, 1776 to the Present 54 (Oxford
University Press 1991). Under the Constitution, the war powers
are reserved to the Representative Branches of the federal
government. See U.S. Const. art. I, § 8; U.S. Const.
art. II, § 2; see also Doe v. Bush, 323 F.3d 133, 137 (1st Cir. 2003).
These powers not only include the power to declare and prosecute
war, but also extend to the power to ensure a just and lasting
peace following the conclusion of a war. See Ladue & Co. v.
Brownell, 220 F.2d 468, 472 (7th Cir. 1955) (holding that
Congress may reserve the power to seize property following a
formal declaration of peace). By exclusively entrusting such
powers to the Representative Branches, the Constitution restricts judicial
review or interference on many war-related decisions made by
Congress and the President both during and after a war. See
Harisiades v. Shaughnessy, 342 U.S. 580, 589-90 (1952).
In this case, there is a strong historical record indicating
that the relief sought, reparations to former slaves following
the Civil War, was considered and rejected by the Representative
Branches in lieu of other forms of relief. This relief came in
many forms, including wartime and post-war legislation, civil
rights legislation, and constitutional amendments all intended
to ensure the liberty of the newly freed slaves and benefit them
For example, prior to the end of the Civil War, Congress passed
the Federal Confiscation Acts designed to punish those who
participated in the rebellion by confiscating their property.
See An Act to Confiscate Property Used for Insurrectionary
Purposes, ch. 60, 12 Stat. 319 (Aug. 6, 1861), as amended by, An
Act to Suppress Insurrection, to Punish Treason and Rebellion, to
Seize and Confiscate the Property of Rebels, and for Other
Purposes, ch. 195, 12 Stat. 589 (July 17, 1862). The Confiscation
Acts also freed tens of thousands of slaves who had fled to Union
forces by the summer of 1862. See id. Shortly thereafter,
following a series of Union victories, President Lincoln, using
his constitutional authority as Commander-in-Chief, issued the
Emancipation Proclamation on January 1, 1863. See Abraham
Lincoln, The Emancipation Proclamation, Exec. Proclamation No. 17
(Jan. 1, 1863), reprinted in 12 Stat. 1268 (1863). The
Emancipation Proclamation freed all slaves in the states under
Confederate control. Id.
Other wartime efforts to ensure the well-being of the newly
freed slaves included Congress' creation of the Freedman's Bureau
in March 1865. See An Act to Establish a Bureau for the Relief
of Freedmen and Refugees, ch. 90, 13 Stat. 507 (March 3, 1865).
Congress created the Freedman's Bureau pursuant to the war powers to provide
former slaves food, clothing, supplies, job placement,
educational facilities, and homestead land. Id.; see also
Albert P. Blaustein and Robert L. Zangrando, Civil Rights and
the American Negro: A Documentary History 210 (Washington Square
Press, Inc., New York 1968). The Bureau had the authority to rent
or sell to freed slaves land abandoned or confiscated in the
Confederacy. Id. Although Congress initially intended for the
Bureau's authority to expire one-year after the completion of the
Civil War, Congress voted to extend the Bureau's powers over
President Johnson's veto. See An Act to Continue in Force and
to Amend An Act to Establish a Bureau for the Relief of Freedmen
and Refugees, and for Other Purposes, ch. 200, 14 Stat. 173 (July
16, 1866); An Act to Continue the Bureau for the Relief of
Freedmen and Refugees, and for Other Purposes, ch. 135, 15 Stat.
83 (July 6, 1868); see also George R. Bentley, A History of
the Freedmen's Bureau 133 (Octagon Books 1970) (1955).
Congress also passed numerous Civil Rights Acts between the
period of 1866-1875. Specifically, the Civil Rights Acts of 1866,
1870, 1871, and 1875 were enacted to secure civil rights for the
newly freed slaves. Most notably, the Civil Rights Act of 1866
declared "[a]ll persons" to be citizens of the United States and
guaranteed them legal equality throughout the nation.*fn27
See Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (April 9,
1866). The Act provided that "[a]ll persons . . . shall have the
same right in every State . . . as is enjoyed by white citizens."
Id. § 1 (currently codified, as amended, at 42 U.S.C. § 1981). Additionally, Congress ratified three constitutional amendments
(hereinafter collectively referred to as the "Civil War
Amendments") between the period of 1865 to 1870 to ensure the
liberty of the newly freed slaves. The Thirteenth Amendment,
ratified on December 6, 1865, provides, in part: "Neither slavery
nor involuntary servitude . . . shall exist within the
United States, or any place subject to their jurisdiction." U.S. Const.
amend. XIII, § 1. This amendment formally abolished slavery
within the United States by prohibiting individual states from
enacting legislation authorizing the use of slavery within their
borders. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439
(1968) (noting that the Thirteenth Amendment effectively
abolished slavery and gave Congress the "power to pass all laws
necessary and proper for abolishing all badges and incidents of
slavery in the United States") (internal quotations omitted).
Congress then ratified the Fourteenth Amendment on July 9, 1868,
declaring among other things, that all persons born or
naturalized in the United States were United States citizens and
citizens of the state in which they resided. See U.S. Const.
amend. XIV, § 1. Section 1 of this Amendment effectively
overruled the Supreme Court's Dred Scott*fn28 decision,
ultimately making freed slaves citizens of the United States.
Finally, on February 3, 1870, Congress ratified the
Fifteenth Amendment with the intention of granting African-Americans the
right of suffrage.*fn29 The Fifteenth Amendment provides, in
part: "The right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous
condition of servitude." U.S. Const. amend XV, § 1. Concerned
with the possibility that individual states may attempt to
circumvent the purpose behind the Civil War Amendments, Congress
included an enabling clause in all three of the Civil War
Amendments giving it the exclusive power to enforce the
Amendments with appropriate legislation. See U.S. Const.
amend XIII, § 2; see also U.S. Const. amend XIV, § 5; U.S. Const.
amend XV, § 2.
More directly on point, the Representative Branches considered
the issue of reparations to freed slaves for harms suffered as a
result of the institution of slavery.*fn30 Congressman
Thaddeus Stevens proposed a bill that would have utilized the
Confiscation Acts to seize public and private real property
within the former Confederate States. See H.R. 29, 40th Cong. §
1, 2 (1867). The confiscated property would have been distributed
to freed slaves. See id. § 4. Specifically, the text of that
bill provided, inter alia:
That out of the lands thus seized and confiscated the
slaves who have been liberated by the operations of
the war and the amendment to the Constitution or
otherwise, who reside in said "confederate States" on
the 4th day of March, A.D. 1861, or since, shall have
distributed to them as follows, namely: to each male person who is the head of a family, forty acres; to
each adult male, whether the head of a family or not,
forty acres; to each widow who is the head of a
family, forty acres to be held by them in
fee-simple, but to be inalienable for the next ten
years after they come seized thereof.
Id. In addition, each freed slave would have also been entitled
to a monetary grant for the purpose of erecting buildings on
these distributed lands. See id. § 5.
Stevens passionately advocated for passage of this bill.
Stevens indicated that H.R. 29 was designed to help several
classes of persons, including freed slaves, stating:
[H.R. 29] is important to four millions of injured,
oppressed, and helpless men, whose ancestors for two
centuries have been held in bondage and compelled to
earn the very property a small portion of which we
propose to restore to them, and who are now
destitute, helpless, and exposed to want and
starvation under the deliberate cruelty of their
former masters. . . . The cause of the war was
slavery. We have liberated the slaves. It is our duty
to protect them and provide for them while they are
unable to provide for themselves. Have we not a
right, in the language of Vattel, `to do ourselves
justice respecting the object which has caused the
war,' by taking lands for homesteads for these
`objects' of the war?
CONG. GLOBE, 40th Cong., 1st Sess. 204 (1867) (statement of
Congressman Stevens). According to Stevens, passage of H.R. 29
would have served two objectives. First, the bill would have
served to punish the Confederate States for their treasonous war.
As Stevens stated: "You behold at your feet a conquered foe, an
atrocious enemy. Tell him on what terms he may arise and depart
or remain loyal. But do not embrace him too hastily. Be sure
first that there is no dagger in his girdle." Id. at 205.
Second, the bill would have served to place freed slaves on the
path to economic independence. As Stevens stated:
Four million persons have just been freed from a
condition of dependence, wholly unacquainted with
business transactions, kept systematically in
ignorance of all their rights and of the common
elements of education, without which none of any race
are competent to earn an honest living, to guard
against the frauds which will always be practiced on
the ignorant, or to judge of the most judicious
manner of applying their labor. Id.
In the Senate, Senator Charles Sumner also championed this
vision of land distribution as a form of reparations to freed
slaves. See CONG. GLOBE, 40th Cong., 1st Sess. 15, 49-56, 79,
114, 147, 203-08, 304-08, 463 (1867) (statements of Senator
Sumner). According to Sumner, "all who are now familiar with the
process of reconstruction have felt that our work would be
incomplete unless in some way or another we secured to the
freedmen a piece of land." CONG. GLOBE, 40th Cong., 1st Sess. 50
(1867) (statement of Senator Sumner). One particular proposed
resolution of Sumner's provided, inter alia: "Not less
important than education is the homestead, which must be secured
to the freedmen, so that at least every head of a family may have
a piece of land." Id. (reading text of proposed resolution,
Miscellaneous Document No. 1, § 5).
The idea of land distribution was also a plan of the Bureau of
Refugees, Freedmen, and Abandoned Land. See generally
Bentley, supra at 49. However, the idea of land distribution
was ultimately abandoned, with President Andrew Johnson pursuing
a plan to pardon Confederate sympathizers and restore their
property rights. See Claude F. Oubre, Forty Acres and a Mule:
The Freedmen's Bureau and Black Land Ownership 61 71 (1978).
The words of Senator Sumner, lamenting the decision not to
extend monetary or property reparations to freed slaves, is
hauntingly prophetic of the continued post-Emancipation
reparations movement: "I do not like to play the part of
Cassandra;*fn31 but I cannot forbear declaring my conviction
that we shall regret hereafter that we have not done more." CONG.
GLOBE, 40th Cong., 1st Sess. 165 (1867) (statement of Senator
Sumner). Yet, that does not change the fact that the Representative Branches considered the
issue of reparations to former slaves, and the chosen vessels of
reparations came in the form of constitutional and legislative
enactments guaranteeing equality under the law and freedom from
discrimination. It is the political question doctrine that
militates that this court attribute finality to those decisions,
and not posit itself as the ultimate authority on the issue by
second guessing those decisions. See Baker, 369 U.S. at 210.
It is not the province of this court to say that more could have
been done in the past, as such decisions are in the nature of
political questions committed to the Representative Branches.
In conclusion, based on the historical record presented here,
it is clear that both during and after the Civil War the issue of
reparations to former slaves was one committed to the
Representative Branches of the federal government. It was the
President and Congress who prosecuted the military and political
aspects of the Civil War, ultimately leading to the conclusion of
the war. With a goal of preserving the Union and securing an
acceptable and lasting peace, it again was the President and
Congress who chose to amend the Constitution and enact civil
rights legislation in an effort to provide legal equality to the
newly freed slaves. Although the Representative Branches decided
to take this particular course of conduct in lieu of providing
reparations to former slaves, the historical record clearly
demonstrates that the Constitution commits this decision to the
Representative Branches. See Alperin v. Vatican Bank,
242 F. Supp. 2d 686, 692 (N.D. Cal. 2003) (noting that "a court must
consider the totality of the circumstances in determining whether
a claim is one committed to the political branches for
resolution"). By requiring the court to second-guess the
decisions of the Representative Branches made more than a century
ago, Plaintiffs' Complaint presents a non-justiciable political question. See Cato, 70 F.3d at 1110 (affirming the
dismissal of plaintiffs' slavery reparations complaint on
political question grounds based on Congress' desire "to prevent
judicial second guessing of legislative and administrative
decisions grounded in social, economic, and political policy
through the medium of an action in tort") (internal quotations
and citations omitted).
(2). Judicially Discoverable and Manageable Standards
There also exists a lack of "judicially discoverable and
manageable standards" for resolving Plaintiffs' claims in this
case. Baker, 369 U.S. at 217. Defendants argue, and the court
agrees, that the historical issues raised in Plaintiffs'
Complaint "involve too broad a span of conduct over too broad an
expanse of time to be susceptible to any manageable judicial
standards for resolution." See Mem. in Supp. of Defs.' Mot. to
Dismiss I, at 35; Mem. in Supp. of Defs.' Mot. to Dismiss II, at
3. As stated in the Complaint, the relevant events took place as
far back as the year 1619. See SCAC, ¶ 5. Absent a political
framework, the court is ill-equipped to determine many issues
posed in a dispute covering a period of almost 400 years. This
includes, for example, determining such issues as consanguinity
and apportionment of liability given the multiple generations
associated with the litigation. See, e.g., Eric A. Posner and
Adrian Vermeule, Reparations For Slavery and Other Historical
Injustices, 103 COLUM. L. REV. 689, 702 (2003) (discussing the
limited effect of the restitutionary theory of reparations where
the claim is made several generations removed from the actual
In support of their claims, Plaintiffs rely on In re Holocaust
Victim Assets Litig., 105 F. Supp. 2d 139 (E.D.N.Y. 2000), to
support their assertion that this type of case is "extremely well
suited to judicial resolutions." See Mem. in Opp. to Defs.'
Mot. to Dismiss I, at 30 n. 47; see also Mem. in Opp. to
Defs.' Mot. to Dismiss II, at 1. In the Holocaust Victim case,
the district court approved a class action settlement between Holocaust victims and
two leading Swiss banks after the plaintiffs brought suit
alleging, among other things, that the defendants "collaborated
with and aided the Nazi regime in furtherance of war crimes,
crimes against humanity, crimes against peace, slave labor and
genocide." 105 F. Supp. 2d at 141. However, the Holocaust
Victim case is clearly distinguishable from the present action
because in its Opinion, the court noted that because the
settlement was reached while the defendants' motions to dismiss
were pending, the court did not have to decide the issues raised
in the motions. Id. at 142. Thus, the Holocaust Victim court
never considered whether the issues raised in the plaintiffs'
complaint implicated a non-justiciable political question.
Moreover, although it can be argued that in certain cases such
issues similar to those presented in Plaintiffs' Complaint are
not entirely inappropriate for judicial resolution, this case
does not present such issues. Because the events surrounding the
institution of slavery and the Civil War are so deeply rooted in
our Nation's history, the issues that may appear to be capable of
judicial resolution in an ordinary case move beyond the province
of this court given the magnitude of the events that preceded
them. Cf. Nazi Era Cases Against German Defendants Litig.,
129 F. Supp. 2d at 389 (stating that the magnitude of World War
II has placed plaintiffs' claims for reparations beyond the
province of judicial determination and "into the political
Ultimately, the court is persuaded by the reasoning adopted by
other courts that have considered the issue in the context of
reparations for forced labor during World War II and have held
that such claims are not suitable for judicial resolution. See,
e.g., Kelberine, 363 F.2d at 995; Iwanowa,
67 F. Supp. 2d at 489; Burger-Fischer, 65 F. Supp. 2d at 283-84; Alperin,
242 F. Supp. 2d at 695; Anderman v. Federal Republic of Austria,
256 F. Supp. 2d 1098, 1115 (C.D. Cal. 2003). In Kelberine, while
discussing whether a private corporation should be liable for its
involvement in the Nazi conspiracy of 1933-45, the Appeals Court
for the D.C. Circuit stated:
We are of the opinion the thesis is not presently
susceptible of judicial implementation. It may be
that the Congress might enact a program and a
procedure by which the objectives prayed for could be
achieved. But we think the courts alone cannot do it.
As presently framed, the problem is not within the
established scope of judicial authority. . . . The
span between the doing of the damage and the
application of the claimed assuagement is too vague.
The time is too long. The identity of the alleged
tortfeasors is too indefinite. The procedure sought
adjudication of some two hundred thousand claims for
multifarious damages inflicted twenty to thirty years
ago in a European area by a government then in power
is too costly, to justify undertaking by a court
without legislative provision of the means wherewith
to proceed. . . . The events, the witnesses, the
guilty tortfeasors, their membership in the
conspiracy are all so potentially vague at this point
as to pose an insoluble problem if undertaken by the
courts without legislative or executive guidance,
authorization or support. The whole concept is too
uncertain of legal validity to sustain the
self-establishment of the proceedings by a court in
the absence of specific legislative or executive
Kelberine, 363 F.2d at 995.
The issues raised by the Kelberine court, particularly those
relating to the impracticality of judicially resolving disputes
covering vast time periods and containing numerous unidentifiable
tortfeasors, are clearly present in the underlying litigation.
Although Plaintiffs attempt to distinguish the World War II
reparation cases from their case, many of the issues raised in
Kelberine and its progeny are plentiful in the underlying
litigation. As such, the second Baker factor also requires
dismissal of Plaintiffs' Complaint.
(3). Remaining Baker Factors
As stated above, the issues raised in Plaintiffs' Complaint
involve events that have had a significant impact on our Nation's
historical development. See infra Part II. Both during and after the Civil War, the Representative Branches implemented
various policies aimed at resolving the problems and challenges
stemming from the abolition of slavery within the United States.
These policies included, among others, the enactment of several
Civil Rights Acts and the ratification of the Civil War
Amendments all of which were intended to provide legal equality
to the newly freed slaves. Even throughout the twentieth century,
the Representative Branches continued to establish these policies
by enacting further civil rights legislation and by implementing
various relief programs intended to benefit minorities many of
whom are descendants of former slaves.
By bringing their claims for slavery reparations before the
court, Plaintiffs require the court to criticize or question
actions or decisions or policies made by the Representative
Branches over a period spanning more than a century. Given our
constitutional structure, policy determinations of this type are
for elected officials, not the courts. Moreover, during and after
the bloodiest war in this country's history, the Representative
Branches grappled with these issues while simultaneously trying
to conclude the war and ensure lasting peace. Allowing
Plaintiffs, through private litigation, to seek reparations for
wrongs committed prior to and during the Civil War clearly
expresses a lack of respect for the Representative Branches and
their attempted resolution of such issues over the past century
and one-half.*fn32 Although Plaintiffs question the choices made by the Representative
Branches and the effectiveness of these decisions in providing
equality to descendants of former slaves, the fact remains that
these are political questions which the court must decline to
determine. Cf. Burger-Fischer, 65 F. Supp. 2d at 282
(concluding that courts cannot re-examine the adequacy of
reparation agreements between the United States and other World
War II combatants because doing so implicates a political
question in which the court must decline to intervene).
(4) Efficiency and Legitimacy
Principles of efficiency and legitimacy also play an important
role in the political question doctrine. Prudential limits on the
exercise of power protect the separate branches of government
from the potential embarrassment of being unnecessarily overruled
by one another, and from the inherent waste that would result
from one branch conducting the business of another. See
Baker, 369 U.S. at 210. The drafters of the Constitution
understood that various branches of our federal government would
be better equipped, more knowledgeable, and have greater
resources to deal with certain specific matters than other
branches. See Saldano v. O'Connell, 322 F.3d 365, 369 (5th
For example, the drafters assigned the judicial branch a very
small role in the arena of foreign relations. See United
States v. Plummer, 221 F.3d 1298, 1309 (11th Cir. 2000) ("the
role of the judiciary in foreign affairs is limited: `Matters
relating to the conduct of foreign relations . . . are so
exclusively entrusted to the political branches of government as
to be largely immune from judicial inquiry or interference'")
(quoting Regan v. Wald, 468 U.S. 222, 242 (1984)). Issues
related to foreign affairs are thus best left to Congress, as it
has the resources and tools necessary to handle foreign policy
issues. The House or Senate thus has the power to convene hearings or conduct investigations in any foreign relations area.
To allow judicial intervention in foreign policy areas that are
designated to the Representative branch would be an ineffective
allocation of resources, and render the Congressional role in
foreign policy moot. See Ungaro-Benages v. Dresdner Bank AG,
379 F.3d 1227, 1235 (11th Cir. 2004).
The federal court system is insulated from the political
process by, in part, granting federal judges lifetime
appointments. These lifetime appointments are thought to insure
that federal judges remain objective and neutral in their
interpretation of the law.
By freeing federal judges from continuing review by
appointing authorities, conflicts of interest are
minimized. An independent judiciary is the hallmark
of the constitutional state. . . . From an
interbranch conflict of interest perspective, this
requirement ensures that judges confine themselves to
concrete cases and do not needlessly decide matters
that are the business of political branches.
Paul R. Verkuil, The American Constitutional Tradition of Shared
and Separated Powers: Separation of Powers, The Rule of Law and
the Idea of Independence, 30 WM. & MARY L. REV. 301, 308 (1989)
It is undisputed that Congress has taken the initiative to deal
with issues arising from the slave trade in the decades after the
Civil War. See e.g., CONG. GLOBE, 40th Cong., 1st Sess. 15,
49-56, 79, 114, 147, 203-08, 304-08, 463 (1867) (statements of
Senator Sumner advocating land distribution to freed slaves).
Moreover, in recent years, Congress has considered and rejected
Representative Conyers' calls for the establishment of a
commission to study the effects of slavery on the modern day
African-American community. See, e.g., H.R. 40, 108th Cong.
(2003), H.R. 40, 107th Cong. (2001). This district court will
therefore not substitute its judgment for that of Congress on the
matter of slave reparations. See Baker, 369 U.S. at 210; see also Kashani v. Nelson, 793 F.2d 818, 827 (7th Cir.
1986); Flynn v. Shultz, 748 F.2d 1186, 1189 (7th Cir. 1984);
Calvin v. Conlisk, 520 F.2d 1, 5 (7th Cir. 1975) (all
emphasizing the constitutional principle of separation of powers,
and the policy of judicial self-restraint).
It is also worthwhile in this context to again mention that,
for the past 60 years, when the issue of reparations has arisen
in regard to other minority groups, Congress has dealt with the
issue. In 1946, Congress created the first reparations program
"in order to redress a wide range of claims pressed by Indian
tribes, including violations of treaties for which a judicial
remedy was denied, and the loss of lands under treaties signed
under duress." Posner and Vermeule, supra, at 695 (quoting Nell
Jessup Newton, Compensation, Reparations, & Restitution: Indian
Property Claims in the United States, 28 GA. L. REV. 453, 468
(1993)). In addition, in 1988, Congress authorized payment to
Japanese-Americans interred during World War II. See Eric K.
Yamamoto, Racial Reparations: Japanese American Redress and
African American Claims, 40 B.C.L. REV. 477, 477-78 (1998).
In sum, the issues raised in Plaintiffs' Complaint are more
properly addressed by Congress and state legislatures. The
question of slave reparations, and reparations for other historic
injustices perpetrated on minority groups, has been addressed
numerous times by various legislative branches of our government.
See H.R. 40, 108th Cong. (2003), H.R. 40, 107th Cong. (2001);
C. Jeanne Bassett, House Bill 591: Florida Compensates Rosewood
Victims and Their Families for a Seventy-One-Year-Old Injury, 22
FLA. ST. U.L. REV. 503 (1994) (explaining how the Florida
legislature passed a bill granting reparations to
African-American victims, and their descendants, of the 1923
Rosewood, Florida massacre). Most importantly, however,
Plaintiffs' Complaint implicates all of the factors established
by the Supreme Court identifying a non-justiciable political question. See Baker, 369 U.S. at 217. As such, each
Baker factor provides a separate and independent basis for the
court to dismiss Plaintiffs' Complaint under the well-settled
political question doctrine. See id.
B. Failure to State a Claim Upon Which Relief Can be Granted
As discussed infra, Part IV, A.1., one of the fundamental
defects of Plaintiffs' Complaint is lack of standing, as the
Complaint fails to allege any constitutionally cognizable injury
that is fairly traceable to Defendants. As an additional argument
in support of dismissal, Defendants argue that Plaintiffs'
Complaint fails to state a claim upon which relief can be
granted. Although the court has dispositively determined that
Plaintiffs lack standing to bring the claims raised in their
Complaint, and that these claims present a non-justiciable
political question, with an abundance of caution, the court will
next determine whether the Complaint fails to state a claim upon
which relief can be granted as an independent basis for
The sufficiency of a complaint may be tested in a number of
ways pursuant to Federal Rule of Civil Procedure 12: a motion to
dismiss for failure to state a claim pursuant to Rule 12(b)(6); a
motion for a more definite statement of a vague or ambiguous
complaint pursuant to Rule 12(e); or a motion to strike
redundant, immaterial, impertinent, or scandalous matter in a
complaint pursuant to Rule 12(f). In this matter, Defendants have
elected to proceed pursuant to Rule 12(b)(6), challenging whether
Plaintiffs' Complaint states a claim upon which relief can be
Pursuant to Federal Rule of Civil Procedure 8(a)(2), a
complaint must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." FED. R. CIV. P.
8(a)(2); see also Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 162, 168 (1993) (discussing "notice pleading" standards
under the Federal Rules of Civil Procedure). Under this liberal
notice pleading standard, "`[a] court may dismiss a complaint
only if it is clear that no relief could be granted under any set
of facts that could be proved consistent with the allegations."
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting
Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984)).
The main function to be performed by the complaint is to "give
the defendant fair notice of what the plaintiff's claim is and
the grounds upon which it rests." Conley v. Gibson,
355 U.S. 41, 47 (1957). "While federal notice-pleading allows for a
generous reading of a complaint, in order to resist a motion to
dismiss, the complaint must at least set out facts sufficient to
`outline or adumbrate' the basis of the claim." Panaras v.
Liquid Carbonic Industries Corp., 74 F.3d 786, 792 (7th Cir.
1996). The Federal Rules of Civil Procedure require the plaintiff
to disclose adequate information regarding the basis of the claim
for relief as distinguished from a bare averment that the
plaintiff wants relief and is simply entitled to it. See 5
Charles Allen Wright & Arthur R. Miller, Federal Practice and
Procedure: Civil 2d § 1202 (2d ed. 1990). A complaint contains
adequate information regarding the basis of the claim for relief
if it contains even "the bare minimum facts necessary to put the
defendant on notice of the claim so that he can file an answer."
Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). To provide
a defendant with fair notice, "a complaint must allege facts
bearing on all material elements necessary to sustain a recovery
under some viable legal theory." Looper Maintenance Service,
Inc. v. City of Indianapolis, 197 F.3d 908, 911 (7th Cir. 1999)
Plaintiffs claim that Defendants illegally profited from
slavery without identifying the act or acts claimed to support
this broad charge. This is insufficient to state a claim even
under liberal notice-pleading standards. See Higgs,
286 F.3d at 439. As already indicated, Plaintiffs' Complaint fails to connect
any alleged injury of any one of the Plaintiffs or their
ancestors to alleged conduct by any one of the Defendants or
their predecessors. Rather, Plaintiffs seek to hold Defendants
liable for an entire era of history simply because their alleged
predecessors were purportedly doing business in nineteenth
century America. Plaintiffs' Complaint can be reduced to the
following syllogism: Defendants or their predecessors allegedly
profited from the unpaid labor of former slaves, and Plaintiffs
are descendants of former slaves, therefore, Plaintiffs are
entitled to some of Defendants' profits. However, the allegations
in a complaint must be those relating to the plaintiff, not those
of someone else. See Kyle v. Morton High School,
144 F.3d 448, 455 (7th Cir. 1998). The broad allegations of Plaintiffs'
Complaint fail to give Defendants fair notice of what conduct is
alleged to have injured which persons, in what manner, and when
over the past four centuries covered in the Complaint.
In light of this omission failing to link any alleged conduct
of Defendants or their alleged predecessors to Plaintiffs or
their ancestors, Plaintiffs' Complaint relies in part on a
conspiracy theory. Plaintiffs' Complaint alleges that Defendants
or their alleged predecessors conspired with certain unnamed
malefactors to violate the legal rights of certain unnamed
victims presumably all persons held in slavery and thus are
somehow liable based on a theory of third-party liability.
However, Plaintiffs' Complaint fails to allege even the faintest
outline of this conspiracy, let alone its members and
Defendants', or their predecessors', alleged roles in that
conspiracy. Even under liberal notice pleading standards, the
pleading of a conspiracy requires a plaintiff to "indicate the
parties, general purposes, and approximate date, so that the
defendant has notice of what he is charged with." Walker v.
Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002). Plaintiffs' conspiracy theory is similar to that in
Albiero v. City of Kankakee, 122 F.3d 417, 420-21 (7th Cir.
1997), where the plaintiffs alleged a conspiracy, but did not
elaborate or provide any other allegations to support the
Plaintiffs' SCAC also brings two new common law claims
replevin and negligent infliction of emotional distress. Replevin
is a cause of action "which lies to gain possession of personal
chattels which have been taken from the plaintiff unlawfully."
In re Braun, 3 F.2d 247, 249 (7th Cir. 1924) (emphasis added).
In other words, replevin actions seek the return of tangible
items to their rightful owner. See 66 AM. JUR. 2d Replevin §
1 (2004) ("Replevin is a remedy stemming from the common law and
it is a proceeding by which the owner or one who has an interest
in a chattel taken or detained seeks to recover possession of the
chattel"); see also Smith v. United States, 293 F.3d 984, 987
(7th Cir. 2002); Ruslan Shipping Corp. v. Coscol Petroleum
Corp., 635 F.2d 648, 650 n. 5 (7th Cir. 1980); Phillips v.
Money, 503 F.2d 990, 993 (7th Cir. 1974). In this case,
Plaintiffs identify no specific, tangible items that have been
taken or detained by Defendants. See SCAC, ¶ 290. To the extent
that Plaintiffs seek the return of money from Defendants, such
recovery is generally not allowed under replevin. See 66 AM.
JUR. 2d Replevin § 9 (2004) ("Money is not subject to replevin
unless it is marked or designated in some manner so as to become
specific, as it regards the power of identification, such as
being in a bag or package"); see also Daenzer v. Wayland
Ford, Inc., 193 F. Supp. 2d 1030, 1041 (W.D. Mich. 2002)
("replevin is an action used to effect the return of the subject
property taken, not for the return of money"). Plaintiffs' new
count of Replevin therefore fails to state a claim upon which
relief could be granted. See Looper, 197 F.3d at 911. Claims of negligent infliction of emotional distress can only
succeed if the plaintiff can establish that the defendant owed
plaintiff a particular, identifiable, duty of care. See
Schrott v. Bristol-Myers Squibb Co, 403 F.3d 940, 944 (7th Cir.
2005); Corgan v. Muehling, 574 N.E.2d 602, 606 (Ill. 1991)
(finding that a psychologist owed his client such a duty of
care). In this case, Plaintiffs fail to allege any facts from
which the court could find that Defendants' pre-civil war actions
breached any duty of care to the present day Plaintiffs.
Plaintiffs' new count of negligent infliction of emotional
distress therefore fails to state a claim upon which relief could
be granted. See Looper, 197 F.3d at 911.
Plaintiffs also, in their SCAC, include new allegations that
certain Defendants made "intentional misrepresentations" in
connection with alleged violations of various state consumer
protection laws. SCAC, ¶¶ 227-256. Plaintiffs, however, still
fail to allege a specific, concrete harm or an ascertainable loss
as a result of Defendants' alleged violations of these statutes.
See SCAC, ¶ 104 ("Some or all of the Plaintiffs are presently
consumers of defendants. Due to the unconscionable, fraudulent
and deceptive public communications made by defendants,
plaintiffs suffered the harm of being misled, confused, and
deceived about the roles the defendants played in the enslavement
of African people"); SCAC, ¶ 106 ("Some or all of the Plaintiffs
have suffered the harm of being unconscionably denied the
benefits of a competitive market for the goods and services they
purchase from defendants"); SCAC, ¶¶ 321, 331, 339, 348, 357, 365
(alleging that these misrepresentations caused "monetary and
other economic damages to Plaintiffs"). Plaintiffs thus fail to
state a claim upon which relief can be granted under the state
consumer protection statutes of New York, Texas, Illinois, and
Louisiana. See, e.g., Stutman v. Chemical Bank,
95 N.Y.2d 24, 29 (N.Y. 2000); Chandler v. Gene Messer Ford, Inc.,
81 S.W.3d 493, 501 (Tx.App. 2002); Jenkins v. Mercantile Mortg. Co.,
231 F. Supp. 2d 737, 747 (N.D. Ill. 2002); Inka's S'Coolwear, Inc.
v. School Time, L.L.C. 725 So. 2d 496, 501 (La.Ct.App. 1998)
(all indicating that plaintiffs must have suffered actual,
ascertainable damages in order to sue under state consumer
In addition, Plaintiffs fail to allege that any Defendant made
any allegedly false representation to a Plaintiff regarding a
specific product or service; Plaintiffs thus fail to state a
claim under Illinois' deceptive advertising and misleading trade
identification statute. See Lynch Ford, Inc. v. Ford Motor
Co., 957 F. Supp. 142, 147 (N.D. Ill. 1997). Plaintiffs also
fail to allege any commercial practice with the capacity to
mislead any Plaintiff regarding identifiable products or
services; Plaintiffs thus fail to state a claim under New
Jersey's state consumer protection statutes. See Island
Mortgs. v. 3M, 373 N.J. Super. 172, 177 (N.J.Super.Ct. Law
Div. 2004). Finally, Plaintiffs' allegations as outlined in
paragraphs 227-256 of the SCAC indicate only that Defendants have
responded publicly to Plaintiffs' claims. The making of these
public statements in response to a lawsuit is simply not
"immoral, unethical, oppressive, unscrupulous or substantially
injurious to consumers;" Plaintiffs thus fail to state a claim
under California's consumer protection statutes. See Wolfe v.
State Farm, 46 Cal. App. 4th 554, 561 (Cal.Ct.App. 1996). The
court therefore dismisses all of these state law claims. See
Goetzke v. Ferro Corp., 280 F.3d 766, 779 (7th Cir. 2002) ("If
a state substantive law has denied a plaintiff a remedy for his
cause of action, the district court must dismiss the complaint
for failure to state a claim upon which relief may be granted").
Plaintiffs' Complaint in its entirety thus fails to meet the
notice pleading requirements set forth in the Federal Rules of
Civil Procedure. "This is not a case where the plaintiff has been tripped up by `mere technicalities,' but rather, the plaintiff
has omitted the gravamen of his complaint." Kyle,
144 F.3d at 457. Plaintiffs' Complaint is a pastiche of the generally
acknowledged horrors of slavery, totally devoid of allegations of
concrete, specific, ascertainable injury to the Plaintiffs or
corresponding conduct committed by Defendants. "This glaring gap
in the complaint leaves total speculation as the only alternative
for the court to come up with any set of facts justifying
relief." Id. at 454. Defendants cannot be deemed to have fair
notice of Plaintiffs' claims when they are based solely on
speculation. Further, the court cannot indulge this speculation
and attempt to determine whether Plaintiffs' Complaint could set
forth any set of facts justifying relief, as "[t]hat is not the
court's job." Id. In short, Plaintiffs fail to present a
well-pleaded complaint that can withstand scrutiny under Rule
12(b)(6), even under liberal notice pleading standards.
C. Statutes of Limitations
As an additional argument in support of dismissal, Defendants
argue that Plaintiffs' claims are time-barred by operation of
various statutes of limitations. Once again, although the court
has dispositively determined that Plaintiffs lack standing to
bring the claims raised in their Complaint, that these claims
present a non-justiciable political question, and fail to state a
claim upon which relief can be granted, with an abundance of
caution, the court will also determine whether statutes of
limitations defenses would also constitute an independent basis
1. Overview of Statutes of Limitations
The concept of limitations periods to the bringing of legal
actions has been well-established in the law for centuries.
Limitations on actions can be traced back to early Roman law.
See Developments in the Law: Statutes of Limitations 63 HARV.
L. REV. 1177 (1950) (citing Sohm, The Institutes of Roman Law 318-22 (Ledlie's
trans., 3d ed. 1907)). As part of our Anglo-American common law
system of law, statutes of limitations can be traced as far back
as 1189 for actions concerning property right disputes. See
Thomas E. Atkinson, Some Procedural Aspects of the Statute of
Limitations, 27 COLUM. L. REV. 157, 162 (1927) (chronicling the
history of statutes of limitations). While the concept of
statutes of limitations has evolved over the centuries well
beyond the realm of property law, the general principles behind
this concept remain the same.
One principle behind statutes of limitations is the promotion
of justice. In his work The Path of the Law, Oliver Wendell
Holmes reflected on statutes of limitations, asking: "What is the
justification for depriving a man of his rights, a pure evil as
far as it goes, in consequence of the lapse of time?" Oliver W.
Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 476
(1897).*fn33 To answer Holmes' question, the justification
is fairness to litigants. This fairness is achieved through two
goals of statutes of limitations: first, to provide the defendant
notice of the plaintiff's claims; and second, to provide repose
to the defendant. "Statutes of limitations . . . in their
conclusive effects are designed to promote justice by preventing
surprises through the revival of claims that have been allowed to
slumber until evidence has been lost, memories have faded, and
witnesses have disappeared." Order of Railroad Telegraphers v.
Railway Express Agency, 321 U.S. 342, 348-49 (1944). Statutes of
limitations are based on "[t]he theory that even if one has a
just claim it is unjust not to put the adversary on notice to
defend within the period of limitation and that the right to be free of stale
claims in time comes to prevail over the right to prosecute
them." Id. at 349. In addition, the Supreme Court has explained
Statutes of limitations find their justification in
necessity and convenience rather than in logic. They
represent expedients, rather than principles. They
are practical and pragmatic devices to spare the
courts from litigation of stale claims, and the
citizen from being put to his defense after memories
have faded, witnesses have died or disappeared, and
evidence has been lost. [citation omitted] They are
by definition arbitrary, and their operation does not
discriminate between the just and the unjust claim,
or the voidable and unavoidable delay. They have come
into law not through the judicial process but through
legislation. They represent a public policy about the
privilege to litigate. Their shelter has never been
regarded as what is now called a `fundamental' right
or what used to be called a `natural' right of the
individual. [Plaintiffs] may, of course, have the
protection of the policy while it exists, but the
history of pleas of limitations shows them to be good
only by legislative grace and to be subject to a
relatively large degree of legislative control.
Chase Sec. Corp., 325 U.S. at 314.
The procedural requirements established by various legislatures
for gaining access to the courts are not to be disregarded out of
a vague sympathy for particular litigants. See National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 2071
(2002) (citing Baldwin County Welcome Center v. Brown,
466 U.S. 147, 152 (1984)). "Statutes of limitations are not arbitrary
obstacles to the vindication of just claims, and therefore they
should not be given a grudging application." Cada v. Baxter
HealthCare Corp., 920 F.2d 446, 453 (7th Cir. 1990). Statutes of
limitations are regulations set by the legislature, designed to
set a time period in which to file an action. "They protect
important social interests in certainty, accuracy, and repose."
Id. "Though rarely the subject of sustained scholarly
attention, the law concerning statute of limitations fairly
bristles with subtle, intricate, and often misunderstood
issues. . . ." Wolin v. Smith Barney Inc., 83 F.3d 847, 849
(7th Cir. 1996). A plaintiff may not base [the] suit on conduct that
occurred outside the statute of limitations unless it
would have been unreasonable to expect the plaintiff
to sue before the statute ran on that conduct, as in
a case in which the conduct could constitute, or be
recognized, as actionable harassment only in the
light of events that occurred later, within the
period of the statute of limitations.
National R.R. Passenger Corp., 536 U.S. at 117 (quoting
Galloway v. General Motors Service Parts Operations,
78 F.3d 1164 (7th Cir. 1996)).
Two important concepts frequently addressed by litigants when
dealing with statutes of limitations are accrual and tolling.
Accrual denotes the point in time when an action can be
maintained. "A cause of action `accrues' when a suit may be
maintained thereon, and the law in this regard differs from
state-to-state and by nature of action." Deluxe Black's Law
Dictionary, 6th edition at 21 (1990). The proverbial clock
starts to run when the action accrues. It is not the date on
which the wrong that injures the plaintiff occurs, but the date
often the same, but sometimes later on which the plaintiff
discovers that he has been injured. While discovery of the injury
in some cases may be complex, in others it would be immediately
obvious, as in the case of the brutal application of the lash,
the turning of the screw, or the tightening of the leg chains
nightly to a post. As a complement to accrual, tolling is a
concept which suspends the running of a limitations period to an
accrued action. The proverbial clock is stopped when the action
2. Statutes of Limitations as Applied to Plaintiffs' Claims
Since statutes of limitations are defenses to claims, a
plaintiff ordinarily need not anticipate or attempt to defuse
these defenses in a complaint. See Gomez v. Toledo,
446 U.S. 635, 640 (1980). However, "[a] litigant may plead itself out of
court by alleging (and thus admitting) the ingredients of a
defense. . . ." United States Gypsum Co. v. Indiana Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003) (citation omitted);
see also Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir.
1998) ("Litigants may plead themselves out of court by alleging
facts that establish defendants' entitlement to prevail."); Soo
Line R.R. Co. v. St. Louis S.W. Ry. Co., 125 F.3d 481, 483 (7th
Cir. 1997) (indicating that a "plaintiff can plead himself out of
court by alleging facts which show that he has no claim, even
though he was not required to allege those facts").
The allegations of Plaintiffs' Complaint do admit the
ingredients of a statute of limitations defense. Plaintiffs
allege that their claims arise out of the institution of human
chattel slavery as it existed in America, and acknowledge that
this institution ended in 1865. SCAC, ¶ 5. Plaintiffs, however,
claim that these injuries are recurring as long as Defendants do
not provide a proper accounting of the profits allegedly gained
by them or their predecessors throughout the years from
commercial activities relating to the institution of slavery.
See, e.g., id. ¶ 58, 3(a) (demanding that Defendants
"provide a full accounting of their actions, including, but not
limited to, turning over all documents in their possession
related in any way to the slave trade and slavery").
Plaintiffs' claims fall into three groups: common law claims,
state statutory claims, and federal statutory claims.*fn34
Plaintiffs' common law claims include: Count I: Conspiracy, Count
II: Conversion, Count III: Unjust Enrichment, Count IV: Replevin,
Count V: Intentional Infliction of Emotional Distress, and Count VI: Negligent
Infliction of Emotional Distress. Plaintiffs sole federal
statutory claim is Count IV: 42 U.S.C. § 1982.*fn35
Plaintiffs' state statutory claims, included in Counts VII
through XIII, allege violations of consumer protection laws in
New York, Texas, California, Illinois, Louisiana, and New Jersey.
Defendants point to the law of Illinois as an example to show
that Plaintiffs' state common law claims are time-barred by many
years, and extrapolate that all of Plaintiffs' claims would also
be time-barred under any conceivable choice of law analysis using
the law of any given state, or federal law. Mem. in Supp. of
Defs.' Mot. to Dismiss II, at 1, 4. Plaintiffs fail to object to
Defendants' argument, and do not argue that there is any material
conflict among the various state choice of law principles that
could be applied in this case. Therefore the statutes of
limitations for Plaintiffs' claims are as follows:
Civil Conspiracy five years. See e.g.,
Wilson v. Giesen, 956 F.2d 738, 740-41 (7th Cir.
Conversion five years. See, e.g.,
Bontkowski v. Smith, 305 F.3d 757, 763 (7th Cir.
2002); 735 ILL. COMP. STAT. 5/13-205.
Unjust Enrichment five years. See, e.g.,
Burns Philp Foods, Inc. v. Cavalea Cont'l Freight,
Inc., 135 F.3d 526, 527 (7th Cir. 1998); 735 ILL.
COMP. STAT. 5/13-205.
Replevin five years. See, e.g., Hitt v.
Stephens, 675 N.E.2d 275, 277 (Ill.App.Ct. 1996);
735 ILL. COMP. STAT. 5/13-205.
Intentional Infliction of Emotional Distress
two years. See, e.g., Dahl v. Fed. Land Bank
Ass'n of W. Ill., 572 N.E.2d 311, 314 (Ill.App.Ct.
1991); 735 ILL. COMP. STAT. 5/13-202. Negligent Infliction of Emotional Distress two
years. See 735 ILL. COMP. STAT. 5/13-202.
42 U.S.C. § 1982 two years. See, e.g.,
Honorable v. The Easy Life Real Estate Sys., Inc.,
182 F.R.D. 553, 563 (N.D. Ill. 1998).
New York Consumer Protection from Deceptive Acts
and Practices Laws, N.Y. Gen. Bus. Law §§ 348, 350
three years. See, e.g., Soskel v. Handler,
736 N.Y.S.2d 853, 855 (N.Y. Sup. Ct. 2001);
N.Y.C.P.L.R. § 214.
Texas Deceptive Trade Practices and Consumer
Protection Act, Tex. Bus. & Com. Code Ann. § 17.41
two years. See TEX. BUS. & COM. CODE § 17.565.
California Business and Professions Code § 17200
et seq. four years. CAL. BUS. & PROF CODE §
Illinois Consumer Fraud and Deceptive Business
Act, 815 Ill. Comp. Stat. 505/1 three years.
See, e.g., Dreisilker Elec. Motors, Inc. v.
Rainbow Elec. Co., 562 N.E.2d 970, 972-3
(Ill.App.Ct. 1990); 815 ILL. COMP. STAT. 505/10a(e).
Louisiana Unfair Trade Practices and Consumer
Protection Law, La Rev. Stat. Ann. § 51:1401
one year. See LA. REV. STAT. § 51:1409(e).
New Jersey Unfair Trade Practice Law, N.J. Stat.
Ann. § 56:8-1 six years. See, e.g., Mirra
v. Holland Am. Line, 751 A.2d 138, 140 (N.J.Super.
Ct. App. Div. 2000).
Given that the institution of chattel slavery in the
United States ended in 1865, Plaintiffs' century-old claims would have
accrued by 1865 at the latest. The longest limitations period for
any of Plaintiffs' century-old claims is five years, which would
have run well over a century prior to the filing of the instant
Complaint. If cognizable claims ever existed, those claims were
owned by former slaves themselves, and became time-barred when
the statutes of limitations expired in the nineteenth century. As
such, Plaintiffs' century-old claims are barred by the statutes
of limitations in every jurisdiction. Plaintiffs, however, also allege that Defendants are currently
making intentional misrepresentations regarding Defendants' past
involvement in the institution of slavery, and that these
misrepresentations presently violate various state consumer laws.
The court finds, however, that Plaintiffs have not alleged that
any concrete, material misrepresentations were made to any
specific Plaintiffs within the various statutory periods.
Plaintiffs' allegations of continuing misrepresentations by
Defendants include the following. "Two years ago, Aetna expressed
regret for `any involvement' it `may have' had in insuring
slaves. Today it stands by that statement and says it has been
able to find only seven policies insuring 18 slaves." SCAC, ¶
230. "While abhorring slavery, Richmond, Virginia-based CSX
offered an online statement that noted the lawsuit filed against
it and `other corporations demanding financial reparations is
wholly without merit and should be dismissed.'" Id. ¶ 233.
"J.P. Morgan spokesman Thomas Johnson said that the `allegations
are without merit' and that the company's archives don't support
the claims in the litigation." Id. ¶ 236. "CN's Chicago-based
spokesperson, Jack Burke, denies up and down that the company, or
any of its predecessors, profited from slave labor." Id. ¶ 239.
"A FleetBoston spokesman said it appears there is no connection
to Brown's bank, though FleetBoston doesn't have records that
date back 200 years." Id. ¶ 243. "R.J. Reynolds spokeswoman
Maura Payne said the allegations are `completely without merit'
because the company was founded in 1876, a decade after slavery
was abolished." Id. ¶ 245.
In essence, Plaintiffs allege that Defendants have made
intentional misrepresentations about their involvement with
slavery for many years, and that Defendants continue to do so
today. However, the specific statements alleged in Plaintiffs'
Complaint, as listed in paragraphs 227-256, reveal no more than
that Defendants have made generalized denials of the merits of Plaintiffs' lawsuit. Plaintiffs point to no concrete instances of
material misrepresentations that have been made by Defendants
within any of the statutory periods prescribed under the state
consumer law counts. See Harley-Davidson Motor Co. v.
Powersports, Inc., 319 F.3d 973, 989 (7th Cir. 2003) (a
misrepresentation occurs where a party makes an assertion "that
does not accord with facts as they exist"); Neder v.
United States, 527 U.S. 1, 22 (1999) (a statement is material if a
reasonable individual would believe it to be important in
"determining [a] choice of action. . . ."). Plaintiffs, in fact,
fail to allege that Defendants have engaged in any actionable
fraudulent or deceptive business practice under the respective
state statutes within the respective statutory time frames. See
infra IV.B. Plaintiffs' state law consumer claims are therefore
barred by the above cited statutes of limitation.*fn36
3. Doctrines to Extend Statutes of Limitations Periods
Plaintiffs attempt to avoid having their claims deemed
time-barred by arguing a number of doctrines. Specifically,
Plaintiffs contend that all of the respective statutes of
limitations should be categorically tolled based on several
undeveloped theories, including either the discovery rule, the
continuing violation doctrine, equitable estoppel, or equitable
tolling. Mem. in Opp. to Defs.' Mot to Dismiss I, 16-24; Mem. in
Opp. to Defs.' Mot. to Dismiss II., 1, 5-8. These four
principles, in one way or another, allow a plaintiff to bring a
claim that on its face falls outside a statute of limitations.
Both the discovery rule and the continuing violations doctrine deal with when the accrual of a claim is established. In
contrast, the doctrines of equitable estoppel and equitable
tolling allow a plaintiff to assert a claim after it has accrued
by tolling the respective statutes of limitations. However, as
the court will discuss below, these doctrines cannot revive
claims already barred by a statute of limitations.
a. Discovery Rule
The discovery rule postpones the beginning of a limitations
period until such time as the plaintiff discovers the injury, or
through reasonable diligence should have discovered the injury.
See Cada, 920 F.2d at 450. The discovery rule thus keeps a
claim from accruing until the plaintiff knows or through
reasonable diligence should have known of the injury. See TRW
Inc. v. Andrews, 534 U.S. 19, 27 (2001).
In support of their argument that the discovery rule should
delay accrual of their claims, Plaintiffs argue that "[slaves]
were not privy to every legal harm they suffered, nor the causes
and extent of those harms." SCAC, ¶ 44. Specifically, Plaintiffs
argue that "in their miserable condition which was a direct
result of slavery . . . although intimately familiar with their
pitifully horrific condition, [they] were not aware of the nature
of the investments, insurance policies, joint ventures and other
schemes and conspiracies developed and utilized by these
defendants . . . to profit from slavery." Mem. in Opp. to Defs.'
Mot. to Dismiss I, at 17; Mem. in Opp. to Defs.' Mot. to Dismiss
II, at 1.
In response, Defendants assert that Plaintiffs' Complaint fails
to allege any act committed by any specifically named Defendant
or their predecessors which was intended to conceal any cause of
action from any Plaintiffs or their ancestors. Mem. in Supp. of
Defs.' Mot. to Dismiss II, at 5. Further, Defendants argue that
since the alleged injuries were known, or knowable, to Plaintiffs' ancestors over a century ago, the discovery rule is
simply inapplicable in this case. Mem. in Supp. of Defs.' Mot. to
Dismiss I, at 23-24.
Plaintiffs are attempting to recover for injuries incurred by
their ancestors over a century ago. Plaintiffs' ancestors knew or
should have known that they were being brutalized and wrongfully
forced to work for people, plantations, companies, and industries
without being compensated. If they did not know of their exact
injury at the time it occurred, they certainly should have known
of it after the Civil War, the passing of the Civil War
Amendments, or even the Civil Rights Movement of the 1960s.
Furthermore, there is evidence that other former slaves were
aware of their injuries and previously have attempted to recover
for them well before this action was filed. See, e.g.,
Johnson v. McAdoo, 45 App. D.C. 440 (D.C. 1916) (evidencing a
claim for slavery reparations nearly a century ago).
Plaintiffs would have the Court extend the applicable statutes
of limitations indefinitely, or at least until all of the
discovery Plaintiffs desire is completed. "By tying the start of
the limitations period to a plaintiff's reasonable discovery of a
pattern rather than to the point of injury or its reasonable
discovery the [discovery] rule would extend the potential for
most . . . cases well beyond the time when a plaintiff's cause of
action is complete." Rotella v. Wood, 528 U.S. 549, 558 (2000).
The mere fact that Plaintiffs' ancestors did not know exactly how
much profit was made from their slave labor is not enough to
establish that the discovery rule should apply in this case. "The
federal common law discovery rule does not permit the plaintiff
to delay filing its lawsuit until all foreseeable harms arising
from the injury are actually experienced, but only until the
plaintiff discovers the predicate injury." Brademas v. Indiana
Housing Finance Authority, 354 F.3d 681, 687 (7th Cir. 2004).
The predicate injury in this instance was the institution of slavery itself. Plaintiffs make a veiled attempt
to tie the beginning of the statutes of limitations periods to
the discovery of the damages that flowed from slavery, rather
than the predicate injury itself. Again, the discovery doctrine
only extends the statutes of limitations until the predicate act
is discovered, not until all discovery of its consequences is
completed. See Rotella, 528 U.S. at 558. Therefore, the
discovery rule, when applied in this instance, does not delay
accrual of the claims alleged.
b. Continuing Violation Doctrine
The continuing violations doctrine, although slightly different
from the discovery rule, allows the plaintiff to file an action
when there is a continuous series of injuries stemming from the
same injury. Under this doctrine, the statutes of limitations are
not tolled per se, but rather left open until a final injury
has accrued. See Heard v. Sheahan, 253 F.3d 316, 319 (7th
Cir. 2001). "The plaintiff must show a `continuing violation,'
which the Seventh Circuit has described as a `continuous series
of events giving rise to a cumulative injury.'" Hoagland v. Town
of Clear Lake, Ind., 344 F. Supp. 2d 1150, 1162 (N.D. Ind. 2004)
(quoting Heard, 253 F.3d at 320). "The continuing violation
doctrine allows a complainant to obtain relief for a time-barred
act of discrimination by linking it with acts that fall within
the statutory limitations period." Filipovic v. K&R Exp.
Systems, Inc., 176 F.3d 390, 396 (7th Cir. 1999) (citing Selan
v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992)). Courts will then
treat the series of acts as one continuous act ending within the
limitations period. See id. "Unlike tolling principles, this
doctrine is not equitable in nature; rather, it is `best
described as a doctrine governing the accrual of a claim.'"
Macklin v. United States, 300 F.3d 814, 824 (7th Cir. 2002)
(quoting Pitts v. City of Kankakee, 267 F.3d 592, 595 (7th Cir.
2001)). The continuing violation doctrine is applicable only if it would have been unreasonable to expect the plaintiff
to sue before the statute ran on the conduct. See id.; see
also Galloway v. General Motors Serv. Parts Operations,
78 F.3d 1164, 1167 (7th Cir. 1996). "In other words, a plaintiff who
feels discriminated against by a discrete act, but fails to
timely file charges on that act, cannot later reach back to those
events when the statute of limitations expires in order to form a
continuing violation claim." Tinner v. United Ins. Co. of
Amer., 308 F.3d 697, 708 (7th Cir. 2002).
As a preliminary matter, Plaintiffs assert that the continuing
violation doctrine should be applied to their demand for an
accounting. See Mem. in Opp. to Defs.' Mot. to Dismiss II., at
78-. Plaintiffs assert that they are continually hurt because
they have not received an accounting of the monies owed to them
and their ancestors for work they did while enslaved, and that
Defendants continue to profit from the revenue they earned from
the labor of Plaintiffs' ancestors. In support of their argument
that the continuing violations doctrine should delay accrual of
their claims, Plaintiffs argue that Defendants' failure to
provide a proper accounting of the profits allegedly gained by
them or their predecessors throughout the years from commercial
activities relating to the institution of slavery constitutes a
continuing violation. In response, Defendants argue that
Plaintiffs do not allege a continuing violation; rather, they are
alleging a single event with purported continuing injuries. Mem.
in Supp. of Defs.' Mot. to Dismiss I, at 25; Mem. in Supp. of
Defs.' Mot. to Dismiss II, at 1.
With respect to this assertion, the underlying injury concerns
the denial of payments for the forced labor of Plaintiffs'
ancestors. All of the other ills and consequences that flowed
from this injury, no matter how dreadful, do not constitute new
or continuing claims. They are merely the alleged effects of an
injury that occurred over a century ago, and not a continuing
series of acts. See Diliberti v. United States, 817 F.2d 1259, 1264
(7th Cir. 1987) (citing Ward v. Caulk, 650 F.2d 1144, 1147 (9th
Cir. 1981) ("A continuing violation is occasioned by continual
unlawful acts, not by continual ill effects from an original
violation."); Oppenheim v. Campbell, 571 F.2d 660, 662 (D.C.
Cir. 1978) (without any continuing unlawful actions by defendant,
plaintiff's claim accrued when he was "first harmed")).
Plaintiffs also assert that Defendants' present day failure to
produce an accounting of whether they profited from the slave
trade constitutes a new and continuing violation. Mem. in Opp. to
Def.'s Mot. to Dismiss II, at 7-8. Again, Plaintiffs' assertions
are incorrect. Plaintiffs' assertions are merely a veiled attempt
to circumvent the statutes of limitations for their underlying
claims. Plaintiffs have not alleged any new unlawful conduct by
Defendants; but have merely alleged a continuing adverse
consequence of prior unlawful conduct. See Diliberti,
817 F.2d at 1264. Therefore, the continuing violation doctrine, when
applied in this instance, does not delay the accrual of the
c. Equitable Estoppel
Equitable estoppel allows a plaintiff to bring a cause of
action after a statute of limitations has expired when the
"`defendant takes active steps to prevent the plaintiff from
suing on time.'" Brademas, 354 F.3d at 686-87 (quoting Sharp
v. United Airlines, Inc., 236 F.3d 368, 372 (7th Cir. 2001));
see Lucas v. Chicago Transit Auth., 367 F.3d 714, 722 (7th
Cir. 2004). For example, a defendant can prevent a plaintiff from
filing his or her claim on time either by informing the plaintiff
that the defendant will not assert the statute of limitations as
a defense, or by fraudulently concealing the injury after the
fact. See Holmberg v. Armbrecht, 327 U.S. 392, 396-97 (1946);
Brademas, 354 F.3d at 686-87 (citing Sharp, 236 F.3d at 372).
"The `granting of equitable estoppel should be premised on a
defendant's improper conduct as well as a plaintiff's actual and reasonable reliance thereon.'" Hentosh v. Herman M.
Finch Univ. of Health Sci./The Chicago Medical School,
167 F.3d 1170, 1174 (7th Cir. 1999) (quoting Wheeldon v. Monon
Corp., 946 F.2d 533, 537 (7th Cir. 1991)).
Plaintiffs do not assert, nor is there any indication, that
Plaintiffs failed to file their claims within the appropriate
time limitations because Defendants promised not to plead the
statutes of limitations as a defense. Rather, Plaintiffs assert
that they did not properly file their claims within the
appropriate time frame because of Defendants' unwillingness to
divulge information about their ties to slavery, and that
Defendants actively misled them; in other words, Plaintiffs
allege that Defendants fraudulently concealed their involvement
with slavery. See SCAC, ¶ 227; Mem. in Opp. to Defs.' Mot. to
Dismiss I, at 22-23. Specifically, Plaintiffs assert that:
(1) defendants withheld documents and information
related to their illegal profits from slavery and/or
lied about their participation in slavery; (2) the
fact that the defendants benefitted from concealing
the information and that the concealment was so
complete, provides a sufficient basis to conclude
that they were aware of the concealment; (3)
plaintiffs did not know of the defendants conduct or
illegal profits and therefore could not have known of
the concealment and/or misrepresentations; (4)
defendants in concealing the information knew that
this concealment would protect them from
accountability for their actions; (5) plaintiffs'
lack of information was reasonable and in good faith
given the nature of defendants' conduct and
plaintiffs' conditions; and (6) clearly justice would
not be served by allowing the defendants to benefit
from their concealing behavior as measured against
the extreme harm suffered by plaintiffs and their
Mem. in Opp. to Defs.' Mot. to Dismiss I, at 23. In response,
Defendants assert that Plaintiffs fail to plead, let alone
particularize, the required elements of equitable estoppel.
Plaintiffs have not asserted any facts alleging that any
Defendant concealed information in a way that would have
prevented Plaintiffs' ancestors from asserting their claims
within the proscribed statutes of limitations periods. Plaintiffs
do not allege that Defendants concealed the injury. In fact, the injury was not concealed, but rather quite
obvious when inflicted. Plaintiffs merely make vague
generalizations about Defendants and their perceived practices.
Plaintiffs' vague assertions are not enough to satisfy the
requirements for equitable estoppel. See Hentosh,
167 F.3d at 1174; see also Williamson v. Indiana Univ., 345 F.3d 459,
463 (7th Cir. 2003) (denying equitable estoppel based on
plaintiff's failure to present any evidence that defendant took
active steps to prevent her from bringing her charge within the
allotted time). Therefore, equitable estoppel, when applied in
this instance, does not toll the statutes of limitations. See
Martin v. Consultants & Adm'rs, Inc., 966 F.2d 1078, 1095 (7th
Cir. 1992) (fraudulent concealment requires some sort of trick or
contrivance by a defendant).
d. Equitable Tolling
"Equitable tolling applies when a plaintiff, despite due
diligence, is unable to obtain enough information to conclude
that there is a basis for a claim." Brademas,
354 F.3d at 686-87 (citing Sharp, 236 F.3d at 373). As distinguished from
equitable estoppel, equitable tolling "permits a plaintiff to sue
after the statute of limitations has expired if through no fault
or lack of diligence on his part he was unable to sue before,
even though the defendant took no active steps to prevent him
from suing." Singletary v. Continental Ill. Nat'l. Bank & Trust
Co., 9 F.3d 1236, 1241 (7th Cir. 1993) (citing Heck v.
Humphrey, 997 F.2d 355, 357 (7th Cir. 1993)); see also
Cada, 920 F.2d at 451 (indicating that equitable tolling does
not require a finding of any conduct on the part of the
defendant). "Equitable tolling is frequently confused with both
fraudulent concealment [equitable estoppel] on the one hand and
with the discovery rule governing, as we have seen, accrual
on the other hand." Cada, 920 F.2d at 451. Equitable tolling "halts the running of the limitations period
so long as the plaintiff uses reasonable care and diligence in
attempting to learn the facts that would disclose the defendant's
fraud or other misconduct." 4 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedures § 1056, at 239 (3d. ed.
2002); see also Cada, 920 F.3d at 451. When dealing with
equitable tolling between two innocent parties, "the negligence
of the party invoking the doctrine can tip the balance against
its application. . . ." Jackson v. Rockford Housing Auth.,
213 F.3d 389, 397 (7th Cir. 2000) (quoting Cada, 920 F.2d at 453).
A plaintiff invoking equitable tolling to suspend the statute of
limitations must bring suit within a reasonable time after he has
obtained, or by due diligence could have obtained, the necessary
Plaintiffs assert that in this instance the only relevant
question as to equitable tolling is "whether the circumstances
preventing the plaintiffs from gaining equal access to the
justice system over the past decades are sufficiently
extraordinary to justify application of the equitable tolling
doctrine." Mem. in Opp. to Defs.' Mot. to Dismiss I, at 19.
Plaintiffs base this assertion on the fact that they were only
recently able to obtain the necessary information to assert their
claims, as a result of the "uniquely catastrophic historical
context from which their class is still seeking to advance and
from which the defendants are still profiting." Id. at 20.
It is true that because of the institution of slavery, the Jim
Crow laws, and the lingering bigotries and separatist views
following the Civil War, African-Americans were obstructed from
obtaining necessary information on their claims and in some
instances access to the legal system. Nevertheless, Plaintiffs'
ancestors knew of their injury at the time that it occurred. They
knew, or should have known, that they were wrongfully being
forced to work without compensation, and that somebody was making
a profit from their labor. Yet, neither Plaintiffs nor their ancestors ever asserted these claims in a court of law until now.
Plaintiffs have not shown that they acted with all due diligence
in attempting to obtain vital information about their claims, and
assert them timely. See Marbury, 5 U.S. at 163 ("The very
essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he
receives an injury").
Plaintiffs' contentions fly in the face of numerous
well-settled legal principles and history. African-Americans, as
well as various other ethnic groups, have previously brought
claims seeking reparations in one form or another, against both
public and private entities. See Johnson,
45 App. D.C. at 440; see also Deutsch, 317 F.3d at 1028-29 (affirming
dismissal of slave labor claims against private corporations as,
inter alia, time-barred), amended by 324 F.3d 692; Wolf,
95 F.3d at 544 (dismissing claims against private defendant on
standing grounds); Kelberine, 363 F.2d at 992 (dismissing on
justiciability and statute of limitations grounds reparations
claims for World War II era slave labor against a private
company); In re Nazi Era Cases Against German Defendants
Litig., 129 F. Supp. 2d at 389 (dismissing slave and forced
labor claims as nonjusticiable); Iwanowa,
67 F. Supp. 2d at 424; Burger-Fischer, 65 F. Supp. 2d at 248. Plaintiffs merely
make vague assertions and generalizations as to their claims and
the state of the legal system. Plaintiffs' vague assertions and
generalizations are not enough to toll the statutes of
limitations on their claims. Plaintiffs' Complaint is nothing
more than an attempt to by-pass the various statutes of
limitations by chronicling the social inequities and injustices
that have befallen African-Americans as a result of slavery. The
statutes of limitations, however, "are not to be disregarded by
courts out of a vague sympathy for particular litigants."
Morgan, 122 S. Ct. at 2071. The doctrine of equitable tolling
therefore does not apply in this instance. 4. Conclusion
Plaintiffs' attempt to bring claims over a century old are
barred by the applicable statutes of limitations. Plaintiffs have
failed to assert any factual or legal basis for allowing them to
proceed with their cause of action in light of when their claims
accrued or when, with due diligence, Plaintiffs found that they
would have accrued. Plaintiffs attempt to avoid this legal
reality by pleading vague factual generalities and chronicling
the social and economic injustices that have befallen
African-Americans due to slavery. However, statutes of
limitations serve to promote justice for litigants, see
Donaldson, 325 U.S. at 314, which cannot be disregarded out of
vague sympathy for Plaintiffs and their claims. See Morgan,
122 S. Ct. at 2071. Therefore, the court finds that Plaintiffs'
claims are barred by the applicable statutes of limitations.
It is beyond debate that slavery has caused tremendous
suffering and ineliminable scars throughout our Nation's history.
No reasonable person can fail to recognize the malignant impact,
in body and spirit, on the millions of human beings held as
slaves in the United States. Neither can any reasonable person,
however, fail to appreciate the massive, comprehensive, and
dedicated undertaking of the free to liberate the enslaved and
preserve the Union. Millions fought in our Civil War.
Approximately six hundred and twenty thousand died. Three hundred
and sixty thousand of these individuals were Union troops. Union
soldiers, sailors, and marines gave their lives on bloody
battlefields and the sea to maintain one sovereign nation in
which slavery would be eradicated. The impact of this struggle on
the families of the wounded and the dead was immeasurable and
lasting. The victorious and the vanquished together shared the
cup of suffering. Death deprived the youthful warriors of the
opportunities that survivors of the War would enjoy. The impact of this struggle on the Union as a whole
was also significant. The enslavers in the United States who
resisted or failed to end human chattel slavery sustained great
personal and economic loss during and following the four years of
the War. Generations of Americans were burdened with paying the
social, political, and financial costs of this horrific War.
Finally, in 1865, this great human and economic tragedy ended.
The ultimate objectives, the preservation of the Union and the
eradication of slavery, were accomplished. The "yoke of bondage"
was removed from Garrison Frazier, to whom we earlier referred,
and millions of other slaves. The freed slaves then began another
journey, this time not from captivity to slavery, but from
slavery to citizenship and equality under the law. All of the
participants had endured great suffering in this momentous
conflict. It takes little imagination to understand the
tremendous disruption and destabilization the Civil War caused
America's existing social and political institutions. And yet,
the dark clouds following the War were giving way to a future
brighter than the great majority could have imagined in 1865. The
extremely difficult task of amending the Constitution three times
was accomplished in approximately five years, granting former
slaves freedom, citizenship, and the right to vote. The citizens
of the Union would move onward to meet the challenge made by
President Lincoln on March 4, 1865, "to achieve and cherish a
just and lasting peace, among ourselves and with all nations."
Plaintiffs' Complaint, which seeks reparations for Defendants'
alleged roles in chattel slavery, the institution that
precipitated this great conflict, fails based on numerous
well-settled legal principles. First, Plaintiffs' claims are
beyond the constitutional authority of this court. Without
alleging any specific connection between themselves and the named
Defendants, Plaintiffs lack essential constitutional standing requirements to
bring their claims. Second, prudential limitations prohibit the
court from deciding such broad questions of social importance
when such claims are brought on behalf of absent third parties,
as Plaintiffs attempt here. Third, the long-standing and
well-reasoned political question doctrine bars the court from
deciding the issue of slavery reparations, an issue that has been
historically and constitutionally committed to the Legislative
and Executive branches of our government. Fourth, Plaintiffs'
claims are untimely. Conceding that many of the torts alleged in
the Complaint occurred prior to the formal end of slavery,
Plaintiffs fail to show how any of these claims fall within the
applicable statutes of limitations. Finally, under the rules of
procedure which guide the federal judicial system, Plaintiffs'
Complaint fails to state a claim upon which relief can be
granted, a serious defect the court cannot overlook regardless
how egregious the circumstances giving rise to the claims.
In summary, Plaintiffs' attempt to bring these claims more than
a century after the end of the Civil War and the formal abolition
of slavery fails; this determination is consistent with the
position taken by numerous courts which have considered the issue
over the last century. Ultimately, the legal obstacles
prohibiting judicial resolution of such claims cannot be
circumvented by the courts. Moreover, from the onset of the Civil
War until present, the historical record clearly shows that the
President and Congress have the constitutional authority to
determine the nature and scope of the relief sought in this case,
not the courts. This is historically manifested in the signing of
the Emancipation Proclamation, the enactment of the Thirteenth,
Fourteenth, and Fifteenth Amendments to the United States
Constitution, and the promulgation of over a century of civil
rights legislation and governmental programs. The sensitive ear has heard the collective "thank you" from those who
were freed, as well as the historic apologies in words and deeds
from persons of good will for the evils of slavery.
The court therefore finds that the defects in Plaintiffs'
Second Consolidated and Amended Complaint cannot be cured by
further amendment. For the foregoing reasons, Defendants' Joint
Motion to Dismiss brought pursuant to Federal Rules of Civil
Procedure 12(b)(1) and (6) is granted with prejudice.
IT IS SO ORDERED.