Indigenous People of Biafra v. Blinken ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
INDIGENOUS PEOPLE OF BIAFRA,
Plaintiff, Civil Action No. 21-2068 (JMC)
v.
ANTONY BLINKEN, Secretary of State, and
LLOYD AUSTIN, III, Secretary of Defense,
in their official capacities.
Defendants.
MEMORANDUM OPINION
In 2017, President Donald Trump approved the sale of twelve A-29 Super Tucano Aircraft
to the government of Nigeria. 1 About four years later, the Biden administration delivered the first
six of those aircraft. Plaintiff, an organization going by the name of Indigenous People of Biafra
(IPOB), filed this action on behalf of its members, seeking an injunction that would bar the delivery
of the remaining six aircraft and direct Defendants to seek the return of the six that were already
delivered. This matter is before the Court on Defendants’ Motion to Dismiss for lack of standing
and for failure to state a claim.
According to IPOB’s Complaint, the Biafran people—a religious and ethnic minority
living in Nigeria—have suffered for decades at the hands of a remote and hostile government. One
1
Unless otherwise indicated, the formatting of quoted materials has been modified throughout this opinion, for
example, by omitting internal quotation marks and citations, and by incorporating emphases, changes to capitalization,
and other bracketed alterations therein. All pincites to documents filed on the docket are to the automatically generated
ECF Page ID number that appears at the top of each page.
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can imagine their dismay upon learning that the United States would supply that government with
military-grade aircraft. Now, IPOB turns to the federal courts for relief. But the relief it seeks is
relief that no American court can provide. Because IPOB lacks standing to sue, intervention in this
dispute is beyond the power granted to this Court by Article III of the United States Constitution.
Accordingly, Defendants’ Motion to Dismiss is GRANTED.
I. BACKGROUND
IPOB’s Complaint alleges the following. In August 2017, President Donald Trump
approved the sale of twelve A-29 Super Tucano Aircraft to the Nigerian Government. ECF 1 ¶ 32.
In July 2021, the Biden administration delivered six of the twelve aircraft. ECF 1 ¶ 34. The
Complaint alleges no specific plan to deliver the remaining aircraft, nor does it suggest when that
delivery might occur.
IPOB is a community interest organization advocating for an independent Biafran nation,
separate and independent from Nigeria. Id. ¶ 4. The Biafran people are a religious and ethnic
minority living predominantly in southeastern Nigeria. Id. ¶¶ 18–20. According to IPOB, the
Biafran people have for decades been subject to human rights abuses at the hands of the nation’s
majority government, id. ¶ 20, including, in recent years, several aerial bombardments of Biafran
population centers, id. ¶¶ 24–26. IPOB brings this suit on behalf of ten anonymous IPOB members
(referred to in the Complaint as John Does 1–10) who, IPOB alleges, “reside . . . on land
historically occupied by Biafrans” and “reasonably fear[] death, bodily injury, or destruction of
[their] property by [the] aircraft if the planes are delivered by the United States to the Government
of Nigeria . . . to assist in the ongoing genocide of Biafrans.” Id. ¶¶ 5–14.
IPOB—citing the “Leahy Amendments” to the Foreign Assistance Act, see 22 U.S.C.
§ 2378d and 10 U.S.C. § 2249e, and the Administrative Procedure Act, 5 U.S.C. § 706—seeks the
following relief: (1) a declaratory judgment that the sale and delivery of the A-29 Aircraft violates
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the Leahy Amendments; (2) an injunction prohibiting any further delivery of the aircraft to the
Nigerian government; (3) an injunction ordering Defendants to seek the return of the aircraft that
have already been delivered; and (4) costs. ECF 1 at 13. Defendants filed a Motion to Dismiss for
lack of subject matter jurisdiction and failure to state a claim. ECF 11. Plaintiff filed an Opposition,
ECF 13, and Defendants filed a Reply, ECF 14.
II. LEGAL STANDARD
“[N]o principle is more fundamental to the judiciary’s proper role in our system of
government than the constitutional limitation of federal-court jurisdiction to actual cases or
controversies.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). One element of this
limitation is that, in order to bring suit, a plaintiff must have standing to sue. Id. The standing
requirement is “built on separation-of-powers principles” and “serves to prevent the judicial
process from being used to usurp the powers of the political branches.” Id. Because standing is a
threshold question that “springs from the nature and limits of the judicial power,” it is “inflexible
and without exception.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998).
To establish standing, a plaintiff “must state a plausible claim that [they have] suffered an
injury in fact fairly traceable to the actions of the defendant that is likely to be redressed by a
favorable decision on the merits.” Humane Soc’y of the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir.
2015). The injury must be “concrete” and “particularized.” Clapper, 568 U.S. 398 at 409. When a
plaintiff relies on imminent (i.e., prospective) injury, it is not enough to allege that an injury is
merely possible; rather, the plaintiff must establish that the injury is “certainly impending,” id., or,
at the very least, that there is both a “substantial probability” and “substantially increased risk of
harm.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 914 (D.C. Cir. 2015). “When the
existence of one or more of the essential elements of standing depends on” the actions of a third
party not before the court, “it becomes substantially more difficult to establish.” Am. Freedom L.
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Ctr. v. Obama, 821 F.3d 44, 48–49 (D.C. Cir. 2016). That is especially true where the third party
is a foreign government. See Cierco v. Mnuchin, 857 F.3d 407, 419 (D.C. Cir. 2017) (“We have
been particularly reluctant to find standing where the third party upon whose conduct redressability
depends is a foreign sovereign.”); Fryshman v. U.S. Comm’n for Pres. of Am.’s Heritage Abroad,
422 F. Supp. 3d 1, 8 (D.D.C. 2019) (“Federal courts are simply not well-suited to draw the types
of inferences regarding foreign affairs and international responses to U.S. policy that Plaintiffs’
theory of causation posits.”).
An organization can establish standing “by showing either an injury to itself”
(organizational standing) or “a cognizable injury to one or more of its members” (associational
standing). Kingman Park Civic Ass’n v. Bowser, 815 F.3d 36, 39 (D.C. Cir. 2016). Where, as here,
an organization seeks to establish associational standing, it must show that “(a) its members would
otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane
to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977).
A motion to dismiss for lack of standing is evaluated under Fed. R. Civ. P. 12(b)(1). Food
& Water Watch, 808 F.3d at 913. When reviewing a Rule 12(b)(1) motion, the Court must “treat
the complaint’s factual allegations as true” and grant “all inferences that can be derived from the
facts alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000).
III. ANALYSIS
Defendants move to dismiss IPOB’s Complaint for lack of standing, among other reasons.
ECF 11. They argue that, even assuming IPOB is a membership organization that is capable of
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bringing suit on behalf of the John Does, 2 the Complaint does not allege that any of those
individuals face an imminent injury that is fairly traceable to the challenged actions or redressable
in court. Id. at 30–38. In response, IPOB accuses Defendants of minimizing the “atrocities” that
have been suffered by the Biafran people, and “blithely” asking the Court “to throw the dice with
the lives” of its members. ECF 13 at 8–9. IPOB urges the Court to take seriously the danger of the
situation, going so far as to argue that “[s]tanding requirements should be relaxed . . . when human
lives are at stake.” Id. at 9.
As a preliminary matter, therefore, the Court is obligated to emphasize that—
notwithstanding the gravity of IPOB’s claims—the Court has no power to relax the requirements
for standing in any case. See Steel Co., 523 U.S. at 94–95. That is not a matter of discretion or
deference; the Court’s authority to intervene is strictly bound by the “cases and controversies”
requirement of Article III of the United States Constitution. Accordingly, the Court must evaluate
whether Plaintiffs have demonstrated standing as it would with any other complaint—by
considering the three “prongs” of standing in turn.
A. Injury in fact
IPOB maintains that the Nigerian government will respond to the delivery of the A-29
Aircraft by launching attacks against the persons and property of one or more of the John Does.
ECF 1 ¶¶ 5–14, 35. That is a difficult contention to evaluate, for two reasons. First, IPOB provides
no specifics about the John Does on whose behalf it claims to be bringing this action, except to
say that each is an anonymous member who “reasonably fears” injury at the hands of the Nigerian
2
Defendants do not concede this point. They argue that IPOB has failed to establish that it is a membership
organization at all, that the John Does are members of IPOB, or that IPOB is representing the John Does’ interests.
Id. at 26–30. Because the Court finds that, even assuming IPOB is legitimately representing the John Does, IPOB has
failed to show, as it must, that any of those individuals would have “standing to sue in their own right,” Hunt, 432
U.S. at 343, the Court does not reach that issue.
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government. 3 ECF 1 ¶¶ 5–14. Although it is possible, under some circumstances, to establish
associational standing at the pleading stage without specifically naming the injured individuals,
see, e.g., Young Am.’s Found. v. Gates, 560 F. Supp. 2d 39, 49–50 (D.D.C. 2008), here the lack of
any substantive detail about the John Does’ circumstances makes it all but impossible to determine
whether any of the John Does, as individuals, face imminent injury.
Another reason it is difficult to evaluate IPOB’s alleged injury is that, in order to determine
that IPOB’s members face “death, bodily injury, or destruction of his property by A-29 Super
Tucano military aircraft,” ECF 1 ¶¶ 5–14, the Court would be required to predict what actions the
Nigerian government will take in response to the United States’ actions. Courts are hesitant to find
injury when doing so would require “speculation about the decisions of independent actors.”
Clapper, 568 U.S. at 414. Here, the relevant actions are not those of just any third party, but those
of a foreign government. The Court is not well-suited to such speculation in the realm of foreign
affairs. See Fryshman, 422 F. Supp. 3d at 8 (D.D.C. 2019).
Even if the Court were to overlook the above deficiencies, it would still conclude that IPOB
has failed to establish an imminent injury. Although past injuries may provide some evidence of
“a real and immediate threat of repeated injury,” City of Los Angeles v. Lyons, 461 U.S. 95, 102
(1983), allegations of past harm are not enough, without more, to establish future injury, id. at
105–06. The Court credits, as it must, IPOB’s allegations describing the decades-long persecution
of the Biafran people at the hands of the Nigerian government. See, e.g., ECF 1 ¶¶ 20–26.
Unfortunately, the Complaint offers little more. Indeed, the only non-conclusory allegation in the
Complaint that speaks directly to prospective injury is a since-deleted Tweet from the Nigerian
3
Other courts in this jurisdiction have previously ruled that “specific fear arising from a foreign policy . . . cannot
constitute an injury-in-fact without a concrete harm.” Bernstein v. Kerry, 962 F. Supp. 2d 122, 127 (D.D.C. 2013).
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President. ECF 1 ¶¶ 27–28. That is simply not enough, even considering the history of the Biafran
people, to establish that IPOB’s members face a “certainly impending injury.” Clapper, 568 U.S.
398 at 409. Nor does the Complaint offer any reason to conclude that the delivery of the aircraft
will lead to a “substantially increased risk of harm.” Food & Water Watch, 808 F.3d at 914.
Accordingly, the Court concludes that IPOB has failed to establish an injury in fact.
B. Causation
To show causation, a plaintiff must establish that “it is substantially probable that the
challenged acts of the defendant, not of some absent third party, will cause the particularized injury
of the plaintiff.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996). Where, as
here, “the alleged injury flows not directly from the challenged agency action, but rather from
independent actions of third parties,” the plaintiff must show “that the agency action is at least a
substantial factor motivating the third parties’ actions.” Am. Freedom L. Ctr., 821 F.3d at 49. “The
more attenuated or indirect the chain of causation between the government’s conduct and the
plaintiff’s injury, the less likely the plaintiff will be able to establish a causal link sufficient for
standing.” Ctr. for Bio. Diversity v. Dep’t of Interior, 563 F.3d 466, 478 (D.C. Cir. 2009).
Here, the alleged injury does not flow directly from the delivery of the aircraft, but from
the actions of the Nigerian government. In order to conclude that Defendants’ actions are the cause
of an imminent injury to IPOB’s members, the court would have to speculate as to whether the
Nigerian government will decide to conduct additional aerial raids against Biafran population
centers, whether aircraft supplied by the United States will be used to perform those raids, and
whether those aircraft will cause particularized injury to the John Does that they would not
otherwise suffer. Cf. Bernstein v. Kerry, 962 F. Supp. 2d 122, 129 (D.D.C. 2013) (finding no
traceability where plaintiffs claimed foreign aid delivered to the Palestinian Authority and other
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non-governmental groups in the West Bank and Gaza would lead to increased fear of terrorist
attacks). Even assuming that the Court could find standing based on such an attenuated chain of
causation, the Complaint contains no allegations to support any of those conclusions. For example,
the Complaint is silent as to the capabilities of the A-29 Aircraft as compared to those already in
Nigeria’s Airforce, or why the government would be likely to use those aircraft to conduct raids
against Biafrans in the regions where the John Does reside.
Further undermining causation are the Complaint’s numerous allegations of past abuse—
including several aerial raids conducted against the Biafran people in recent years. By definition,
any injury that would have occurred regardless of the delivery of the A-29 Aircraft is not caused
by that delivery. Here, IPOB’s allegations of longstanding persecution actually lend support to the
contrary proposition that any injuries inflicted on its members would have occurred even in the
absence of the challenged conduct. That further attenuates the chain of causation. Cf. Fed. Forest
Res. Coal. v. Vilsack, 100 F. Supp. 3d 21, 39–40 (D.D.C. 2015) (finding that a pre-existing
downward trend in the amount of timber harvested clearly undermines plaintiffs’ standing
argument by nullifying any assertion that the challenged action is the cause of the decline).
Accordingly, the Court concludes that IPOB has failed to establish that the injuries suffered by the
John Does would be fairly traceable to the challenged conduct.
C. Redressability
To show redressability, a plaintiff must establish that there is a “substantial probability that
if the court affords the relief requested, the injury will be removed.” Cato Inst. v. SEC, 4 F.4th 91,
94–95 (D.C. Cir. 2021). Redressability and causation are closely linked, particularly where the
requested relief is an injunction. After all, if a plaintiff cannot demonstrate that the challenged
conduct is the cause of their injury, there is no reason to conclude that an injunction barring that
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conduct would prevent the injury. Thus, for the same reasons the Court cannot say that supplying
the A-29 Aircraft will cause an injury to IPOB’s members that would not have otherwise occurred,
it cannot conclude that preventing (or even undoing) the delivery of the aircraft would prevent it.
Moreover, even if the Court were to determine that it had the legal authority to overrule a
foreign policy decision made by the political branches, the six aircraft that have already been
delivered to the Nigerian government can only be recovered if Nigeria agrees to return them.
“Courts do not lightly speculate how independent actors not before them might exercise their . . .
discretion,” West v. Lynch, 845 F.3d 1228, 1237 (D.C. Cir. 2017), particularly when the
independent actors are foreign sovereigns over whom the Court exercises no authority, Cierco,
857 F.3d at 419. The Court has no tools at its disposal to compel the Nigerian government to return
the aircraft. And, although IPOB points to the “vast leverage” the political branches might use to
pressure the Nigerian government to return the aircraft, ECF 13 at 10, the successful recovery of
the aircraft would still rely on Nigeria’s decision to comply. In other words, even were the Court
to grant the relief IPOB requests, IPOB has not established that there is a “substantial probability”
that the relief would result in the removal of its injury. IPOB has given the Court no reason to
believe that Nigeria cannot do with six planes what it would have done with twelve. And any
argument that Nigeria would voluntarily return the aircraft is pure conjecture. “When conjecture
is necessary, redressability is lacking.” West, 845 F.3d at 1237.
IV. CONCLUSION
Because the Court finds that IPOB lacks standing to sue, the Court grants Defendants’
Motion to Dismiss. Having determined that IPOB lacks standing, the Court need not reach
Defendants’ other arguments that IPOB has failed to state a claim.
An Order consistent with this Memorandum Opinion is issued separately.
SO ORDERED.
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DATE: October 31, 2022
Jia M. Cobb
U.S. District Court Judge
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