Abulhawa v. United States Department of the Treasury , 239 F. Supp. 3d 24 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SUSAN ABULHAWA, et al.,
Plaintiffs,
v.
Civil Action No. 15-2186 (RDM)
UNITED STATES DEPARTMENT OF THE
TREASURY, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs, a group of individuals sharing “mutual concerns” about Israeli settlements in
the West Bank and East Jerusalem, bring this “declaratory judgment” action against the
Department of the Treasury and Secretary of the Treasury Steven Mnuchin.1 They allege that the
Treasury Department has granted tax-exempt status under 26 U.S.C. § 501(c)(3) to
“approximately 200 U.S. pro-Israeli-settlement” organizations that “either fund[] or engag[e] in
. . . criminal activities abroad,” and that, despite this “criminal conduct,” the Department has
failed to “challeng[e] or [to] revok[e] [the organizations’] tax-exempt status.” Dkt. 7 at 4–5
(Am. Compl.). According to Plaintiffs, this failure by the Treasury Department has led to—and,
absent correction, will continue to lead to—the infliction of an array of wrongs against the
Palestinian people. Id. As a remedy, Plaintiffs seek an order requiring the Treasury Department
“to . . . initiate an investigation into any and all tax-exempt entities based in America which
transmit $20,000 or more on an annual basis to any country in the world;” to “revoke the
1
The amended complaint names former Secretary of the Treasury Jacob Lew as a defendant in
this case. Pursuant to Federal Rule of Civil Procedure 25(d), the current Secretary of the
Treasury, Steven Mnuchin, is automatically substituted in place of Secretary Lew.
entit[ies’] tax-exempt status” where “appropriate;” and to “refer all tax fraud and money
laundering findings to the [Internal Revenue Service] and/or U.S. Department of Justice for
criminal prosecution.” Id. at 74–75.
Three motions are currently before the Court. First, Defendants move to dismiss the first
amended complaint for lack of Article III standing and for failure to state a claim. Dkt. 10 at 1–
2. Second, Plaintiffs seek leave to file a second amended complaint, which would join five
additional plaintiffs and detail the harms that they have allegedly suffered (or will allegedly
suffer) due to Defendants’ failure to monitor the actions of the U.S.-based tax-exempt entities.
Dkt. 18. Finally, Sam Abrams, a U.S. taxpayer and resident of New York State, moves to
intervene, asserting that, if the Treasury Department is required “to investigate pro-Israel
charities,” it should “also investigate . . . charities . . . hostile to Israel.” Dkt. 13 at 2–3. In
opposing the latter two motions, Defendants extend their jurisdictional defense to the claims that
the five additional putative plaintiffs and Abrams seek to assert.
As explained below, the Court agrees that the existing Plaintiffs, the five additional
putative plaintiffs, and Abrams all lack Article III standing. The Court, accordingly, will grant
Defendants’ motion to dismiss the first amended complaint for lack of jurisdiction, will deny
Plaintiffs’ motion to file a second amended complaint as futile, and will deny Abrams’ motion
for leave to intervene on the ground that neither he nor any other party has standing to assert his
proposed claim.
I. BACKGROUND
Because Defendants “challenge[] the adequacy of [the first amended] complaint and
[exhibits] to support [Plaintiffs’] standing,” the Court “accept[s] [their] well-pleaded factual
allegations as true and draw[s] all reasonable inferences from those allegations in [Plaintiffs’]
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favor.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015); see also West v. Lynch, 845 F.3d
1228, 1231 (D.C. Cir. 2017). The same standard applies, moreover, to the Court’s consideration
of whether Plaintiffs’ proposed second amended complaint contains allegations sufficient to
establish Article III standing, or whether, instead, the proposed amendment is futile. See
Williams v. Lew, 819 F.3d 466, 471–73 (D.C. Cir. 2016). Because the issues presented in
Defendants’ motion to dismiss and in their opposition to Plaintiffs’ motion for leave to amend
overlap, and because the proposed second amended complaint is identical to the first amended
complaint, save for the addition of one paragraph that details the allegations of the five plaintiffs
seeking to join the suit, compare Dkt. 7 with Dkt. 18-2, the Court will focus on (and cite to) the
factual allegations set forth in the proposed second amended complaint.
A. Factual Allegations
Plaintiffs, a group of thirty-seven individuals, “join[ed] in this litigation” due to their
“concerns” over the “explosive settlement expansion” by Israelis in the West Bank and East
Jerusalem. Dkt. 18-2 at 1–3, 8 (Second Am. Compl. ¶ 6). They allege that organizations in the
United States that were granted tax-exempt status under 26 U.S.C. § 501(c)(3) based on their
“‘charitable’ or ‘educational’ . . . nature[s]” actually serve as “financial ‘pass-throughs’” from
“wealthy U.S. donors” to Israeli entities committed to “the forcible expulsion of indigenous non-
Jewish Palestinians,” the “theft of private property,” the malicious destruction of private
property, and the “murder[]” of Palestinians. Id. at 4–5. Plaintiffs allege that the actions of these
U.S. nonprofit organizations “violate[] numerous . . . [§] 501(c)(3) regulations” and “at least
eight federal criminal statutes.” Id. at 5–6. Plaintiffs also allege that, [d]espite the[se] rampant”
violations of law, the Treasury Department has “not challenged or revoked the[] tax-exempt
status” of the “approximately 200 U.S. pro-Israeli-settlement [§] 501(c)(3) [organizations].” Id.
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at 4–5. And Plaintiffs further allege that, because the Treasury Department has failed to
“investigate the criminal activities that these tax-exempt entities have been funding or engaging
in for at least the last [forty] years,” the entities continue “to openly solicit[] tax-deductible
contributions” in order to fund “the various settlements they have chosen to adopt.” Id. at 6.
Of the thirty-seven plaintiffs, the proposed second amended complaint contains specific
allegations about only eight of them. As they also alleged in the first amended complaint,
Plaintiffs allege that “John Doe” “has been concerned about [the Treasury Department’s] failure
to monitor” the § 501(c)(3) organizations described above “for a number of years” and has
“heard from various Palestinian friends and neighbors” about “the atrocities that are being
committed” which, he asserts, are being “largely subsidized by the American taxpayer.” Id. at 9
(Second Am. Compl. ¶ 7). Plaintiffs allege that Susan Abulhawa is also “concerned about [the
Treasury Department’s] ongoing failure to . . . prevent the criminal activities engaged in by th[e]
pro-settlement tax-exempt entities,” and, more significantly, that Israel “[has] dislocat[ed]” her
from the “patch of earth” in Jerusalem “where [her] family ha[d] dwelt for centuries.” Id. at 10
(Second Am. Compl. ¶ 9). They further allege that Michael Several “has visited Israel on many
occasions and [has] seen first-hand what settlement expansion has meant to the ordinary
Palestinian citizen.” Id. (Second Am. Compl. ¶ 10). And, they allege that Several, who has
performed “significant research on U.S. donors and pro-settlement tax-exempt entities,” “firmly
believes that financial support rendered by” those entities has “promoted widespread violence
against Palestinians” and has “perpetuated the environment and conditions that give[] rise to
violent resistance to the Israeli occupation.” Id. at 10–11 (Second Am. Compl. ¶¶ 10–11).
The proposed second amended complaint would add allegations about five more
plaintiffs who seek to join the litigation. Most notably, Plaintiffs allege (or, more precisely, seek
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leave to allege) that putative plaintiff Linda Kateeb “owns six plots of land in the West Bank;”
that an “Israeli settler organization . . . supported by funds provided by U.S. tax-exempt entities”
recently “purported to purchase two” of her plots from “violent Israeli settlers who had set up
outposts on [her] land;” and that she “is worried that if [the Treasury Department] continues to
allow so-called tax-exempt funds to flow to the organization, she will lose her remaining four
plots of land.” Dkt. 18-2 at 11 (Second Am. Compl. ¶ 13(a)). Plaintiffs also seek leave to allege
that Abbas Hamideh “similarly has lost, and fears that he will continue to lose, . . . family land in
the West Bank” if U.S.-based nonprofits “are permitted to provide funds to violent settlers.” Id.
They seek leave to allege that Doa’a Abu Amer “lost fourteen family members when the Israeli
army bombed the daycare center [in Gaza] in which they sought refuge,” id. at 12 (Second Am.
Compl. ¶ 13(b)), and that Ahmed Al-Zeer was “beaten by violent settlers while on his own
property outside [of a] segregated settlement” in the West Bank, id. (Second Am. Compl.
¶ 13(c)). Finally, Plaintiffs seek leave to allege that Danny Awad “lost the Christian center” he
managed in the West Bank due to an “illegal transaction” involving “a settler organization and
its U.S. backers.” Id. at 12–13 (Second Am. Compl. ¶ 13(d)).
Aside from these paragraphs detailing plaintiff-specific factual allegations, see id. at 9–13
(Second Am. Compl. ¶¶ 7–13), the remaining 113 numbered paragraphs of the proposed second
amended complaint include a litany of allegations of wrongdoing by the U.S.-based § 501(c)(3)
entities that, Plaintiffs claim, the Treasury Department has failed to regulate. Among other
allegations, the proposed second amended complaint addresses the “history of settlement
expansion funded by U.S. donors and tax-exempt entities,” id. at 15–25 (Second Am. Compl.
¶¶ 18–34); the “United States public policy regarding settlement expansion activity;” id. at 26–
30 (Second Am. Compl. ¶¶ 35–37), and the “statutory violations” that Plaintiffs contend that
5
“U.S. tax-exempt entities and their donors have all conspired to” commit, including money
laundering, wire fraud, racketeering, and “war crimes,” id. at 42–50 (Second Am. Compl. ¶¶ 59–
73). Plaintiffs claim that scores of § 501(c)(3) organizations have engaged in these purported
violations of law “with the express knowledge of” the Treasury Department and despite the
Department’s duty “to ensure that the perpetrators of [such] activities . . . [are] sanctioned to the
fullest extent of the law.” Id. at 72–73 (Second Am. Compl. ¶¶ 111, 113).
B. Procedural History
Plaintiffs brought suit on December 16, 2015, Dkt. 1, and filed their first amended
complaint on February 5, 2016, Dkt. 7. Then, on April 4, 2016—four days before Defendants
moved to dismiss the first amended complaint—Plaintiffs purported to file a second amended
complaint adding five plaintiffs. Dkt. 9. Plaintiffs did not seek leave of the Court or consent
from Defendants before doing so. In their reply brief in support of their motion to dismiss,
Defendants argued that the Court “should disregard the second amended complaint” for failure to
comply with Federal Rule of Civil Procedure 15(a)(2), but, “[o]ut of an abundance of caution,”
they nevertheless addressed the merits, arguing that the additional plaintiffs and allegations
would not cure the jurisdictional defects they had identified. Dkt. 16 at 3. Recognizing their
procedural misstep, Plaintiffs then moved for leave to file their second amended complaint,
arguing that granting them leave to file the proposed second amended complaint would not
prejudice Defendants, would best serve judicial economy, and would be in the interest of justice.
Dkt. 18.
While the parties were briefing Defendants’ motion to dismiss, Abrams moved to
intervene. Dkt. 13. He argues that, in the event that the Court “open[s] the floodgates” to
complaints like the one filed by Plaintiffs, he should be permitted to seek an order compelling
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Defendants to “investigate the tax status” of “charities that are hostile to Israel.” Id. at 2–3. The
Court ordered Defendants to respond to Abrams’s motion and, in particular, to address whether
Abrams has standing to intervene. See Minute Order, May 21, 2016. In response, Defendants
filed a memorandum arguing that Abrams lacks standing and that, accordingly, he should not be
permitted to intervene. Dkt. 17 at 2.
II. LEGAL STANDARD
A. Motion to Dismiss Under 12(b)(1)
Because “[f]ederal courts are courts of limited jurisdiction, possessing only that power
authorized by Constitution and statute,” Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (quotation
marks omitted), they have “an affirmative obligation to consider whether the constitutional and
statutory authority exist for [them] to hear each dispute” brought before them, James Madison
Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quotation marks omitted). If
the “court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss
the action.” Fed. R. Civ. P. 12(h)(3).
“[D]efect[s] of standing” constitute “defect[s] in subject matter jurisdiction.” Haase v.
Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). The “plaintiff bears the burden of . . . establishing
the elements of standing,” and 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.’” Arpaio, 797 F.3d at 19 (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Accordingly, “[t]o survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim
[of standing] that is plausible on its face.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)) (alterations in original). “[T]hreadbare recitals of the elements of [standing], supported
7
by mere conclusory statements, [will] not suffice,” id. (quoting Iqbal, 556 U.S. at 678) (second
alteration in original), and the Court need not “assume the truth of legal conclusions” nor must it
“‘accept inferences that are unsupported by the facts set out in the complaint,’” id. (quoting
Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007)).2
B. Motion for Leave to File an Amended Complaint Under Rule 15(a)
After a party has amended its complaint “once as a matter of course” pursuant to Rule
15(a)(1), it may only further amend “with the opposing party’s written consent or the court’s
leave.” Fed R. Civ. P. 15(a)(2). Although courts “should freely give leave [to amend] when
justice so requires,” id., in “deciding whether to allow a party to amend a complaint, . . . courts
may consider ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, [and] futility of amendment,’” Mahon v.
Anesthesia Bus. Consultants, LLC, No. 15-cv-1227, 2016 WL 1452333, at *9 (D.D.C. April 13,
2016) (quoting Forman v. Davis, 371 U.S. 178, 182 (1962)). “Courts may deny a motion to
amend a complaint as futile . . . if the proposed claim would not survive a motion to dismiss.”
James Madison Ltd., 82 F.3d at 1099.
C. Motion to Intervene Under Rule 24(b)(2)
“Permissive intervention is governed by Federal Rule of Civil Procedure 24(b), which
provides, in pertinent part, that . . . ‘the court may permit anyone to intervene who . . . has a
claim or defense that shares with the main action a common question of law or fact.’” Aristotle
Int’l, Inc. v. NGP Software, Inc., 714 F. Supp. 2d 1, 18 (D.D.C. 2010) (second alteration in
2
Although a Court may “elicit information outside the pleadings” in “considering [a plaintiff’s]
standing under [Rule] 12(b)(1),” Haase, 835 F.2d at 908, the parties here have not requested that
the Court do so.
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original). “In order to litigate a claim on the merits” under Rule 24(b), “the putative intervenor
must ordinarily present: (1) an independent ground for subject matter jurisdiction; (2) a timely
motion; and (3) a claim or defense that has a question of law or fact in common with the main
action.” EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998). “In
exercising its discretion” to decide whether permissive intervention is warranted, the Court
“must consider whether the intervention will unduly delay or prejudice the adjudication of the
original parties’ rights.” Fed. R. Civ. P. 24(b)(3). “[P]ermissive intervention is an inherently
discretionary enterprise,” and district courts are afforded “wide latitude” in determining whether
a third-party should be permitted to intervene. Nat’l Children’s Ctr., 146 F.3d at 1046.
III. ANALYSIS
A. Motion to Dismiss Under Rule 12(b)(1) and Motion for Leave to Amend
The first two motions before the Court—Defendants’ motion to dismiss and Plaintiffs’
motion for leave to file the proposed second amended complaint—raise the same threshold
question: Are the factual allegations contained in either pleading, if accepted as true, sufficient
to establish that at least one plaintiff or putative plaintiff has Article III standing to pursue this
litigation? If the first amended complaint fails this test, then it must be dismissed. And, if the
proposed second amended complaint fails the test, the proposed amendment would be futile and,
thus, the motion for leave to amend should be denied. The Court’s task in answering these
questions, moreover, is simplified by the fact that the proposed second amended complaint
differs from the first amended complaint in only one meaningful way—the addition of
allegations pertaining to the five additional plaintiffs that the proposed pleading seeks to join.
Because the Court concludes that, even if these additional allegations are considered, no plaintiff
has standing to pursue this action, the Court can consider—and resolve—both motions together.
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“Article III of the Constitution limits the jurisdiction of federal courts to ‘actual cases or
controversies between proper litigants.’” Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir.
2014) (quoting Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 661 (D.C. Cir. 1996) (en banc)).
Among other things, this means that the Court lacks power to resolve a dispute unless at least
one plaintiff has standing. See Del. Dep’t of Natural Res. & Envtl. Control v. EPA, 785 F.3d 1, 8
(D.C. Cir. 2015). And, at the motion to dismiss stage, it means that “the plaintiff must
sufficiently allege a ‘concrete and particularized’ injury that is ‘fairly traceable to the challenged
action of the defendant’ and ‘likely’ to be ‘redressed by a favorable decision.’” West, 845 F.3d
at 1230 (quoting Lujan, 504 U.S. at 560–61). “Injury in fact is the ‘invasion of a legally
protected interest which is . . . actual or imminent, not conjectural or hypothetical;’” the “‘causal
connection between the injury and the conduct complained of’ must be” attributable to the
defendant, “‘and not the result of the independent action of some third party not before the
court;’” and the injury must be redressable (or “‘likely’” redressable) “‘by a favorable decision.’”
Arpaio, 797 F.3d at 19 (quoting Lujan, 504 U.S. at 561). Together, these three elements—injury
in fact, causation, and redressability—constitute the “irreducible constitutional minimum of
standing.” Lujan, 504 U.S. at 560.
1. Injury in Fact
Defendants concede that the lead plaintiff, Susan Abulhawa, has alleged a “concrete and
particularized injury-in-fact”—namely, the loss of certain real property, Dkt. 10-1 at 14 n.2 —
and they do not contest that the five plaintiffs added in the proposed second amended complaint
have also alleged concrete injuries in fact, see Dkt. 16 at 4. The Court need not resolve the
question whether Abulhawa, the five additional putative plaintiffs, or any of the remaining thirty-
one plaintiffs have alleged cognizable injuries in fact, however, because none of the thirty-seven
10
plaintiffs and putative plaintiffs have alleged facts sufficient to meet the causation or
redressability prongs of the governing standard. See West, 845 F.3d at 1235.
2. Causation
Defendants argue that “[P]laintiffs cannot establish a causal link between an alleged
injury and the challenged conduct;” that is, they have not alleged facts sufficient to “show that
the alleged criminal activity” carried out by the U.S.-based nonprofits in coordination with
Israeli settlers “would not have occurred but for the grant of, and failure to investigate or revoke,
tax-exempt status by the United States.” Dkt. 10-1 at 15. Plaintiffs disagree, arguing that a
“simple chain of causation” supports Kateeb’s claim to standing and that this same reasoning
applies to other plaintiffs as well. Dkt. 15 at 8. As they explain the theory applicable to
Kateeb’s claims, two plots of land located in the West Bank belonging to Kateeb were
purportedly sold to an “Israeli settler organization” by “violent Israeli settlers supported by funds
provided by U.S. tax-exempt entities (most likely American Friends of Bet El Yeshiva or
Christian Friends of Israeli Communities).” Id. at 6. “The theft of . . . Kateeb’s property”—or,
at the time, her father’s property—“would not have occurred” but for the following alleged
events: (1) the U.S. § 501(c)(3) “entities receive[d] massive donations from wealthy donors in
the United States;” (2) those entities “then transfer[ed] those monies abroad into . . . Israel-based
charity bank accounts;” (3) the Israel-based charities then transfered the “monies . . . to settler
officials;” (4) the “settler officials” then used the funds to “set up armed militia units;” and,
finally, (5) the militia units then injured Kateeb by “annex[ing]” her father’s land. Dkt. 15 at 8.3
3
Plaintiffs allege similar chains of causation for other plaintiffs. For example, Amer alleges that
one U.S.-based § 501(c)(3) organization donated funds to the Israeli Defense Forces (IDF); the
IDF used those funds to “deploy its troops” for a bombing attack; and Amer’s family sustained
injuries as a result of one of those bombing attacks. Dkt. 15 at 10. Without the funds provided
by the U.S. § 501(c)(3) organization, Amer alleges, the IDF’s “operations would have been
11
Most importantly for present purposes, all of this turned, in Plaintiffs’ view, on the predicate that
the Treasury Department did not exercise its authority to revoke the tax-exempt status of those
§ 501(c)(3) organizations that provide funding to groups that support the Israeli settlers. In short,
“[w]ithout having . . . [§] 501(c)(3) status bestowed on them by the [Internal Revenue Service],
these [U.S.-based] organizations would not have been able to solicit contributions and transfer
funds to the settlement[s],” which, in turn, would mean that those donated funds would not be
available “to arm violent settlers” or “fund the illegal theft of . . . property,” and, accordingly,
Plaintiffs would not have been injured. Id. at 8–9, 11.
Standing arguments of this type are not new. Most notably, the Supreme Court
considered whether a similar “chain of causation between the challenged Government conduct
and the asserted injury” gave rise to constitutional standing in Allen v. Wright. 468 U.S. 737,
759 (1984). There, “[p]arents of black public school children” alleged that “the Internal Revenue
Service (IRS) ha[d] not adopted sufficient standards and procedures to fulfill its obligation to
deny tax-exempt status to racially discriminatory private schools” and that, by this omission, the
IRS “harm[ed] them directly and interfere[d] with the ability of their children to receive an
education in desegregated public schools.” Id. at 739–40. The parents’ theory was that: (1) the
IRS’s conferral of tax-exempt status on schools that were admitting only white students
“facilitate[d] the raising of funds to organize [such] schools and expand [the] existing schools;”
(2) white students left desegregated public schools in order to attend these white-only private
curtailed,” and, possibly, he would not have sustained injuries due to the bombing attack. Id.Similarly, Al-Zeer alleges that, but for contributions funneled through an American § 501(c)(3)
to an Israeli settlement organization, the settlers never would have “been able to purchase [the]
expensive military hardware” they used to attack him. Id.
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schools; and (3) the black children of the plaintiff parents were thereby deprived of the
opportunity to attend desegregated schools. See id. at 746, 758 (quotation marks omitted).
In rejecting this theory, the Supreme Court concluded that the “line of causation between
[the IRS’s] conduct and desegregation of [the black children’s] schools [wa]s attenuated at best,”
id. at 757, and that the “links in the chain of causation . . . [we]re far too weak for the chain as a
whole to sustain [the parents’] standing,” id. at 759. The Court emphasized that the hypothesized
chain of events “involve[d] numerous third parties”—for example, the “officials of racially
discriminatory schools receiving tax exemptions and the parents of children attending such
schools”—whose “independent decisions may not collectively have [had] a significant effect on
the ability of public school students to receive a desegregated education.” Id. at 759. Despite the
“constitutional importance of curing” one of “the most serious injuries recognized in our legal
system”—the “diminished ability to receive an education in a racially integrated school”—the
Court concluded that it could not redress plaintiffs’ injury because it was “not fairly traceable to
the Government conduct . . . challenge[d] as unlawful.” Id. at 756–57.
The same conclusion holds here. The chain of causation linking the Treasury
Department’s alleged “failure to monitor” the § 501(c)(3) status of U.S.-based charities and the
injuries sustained by Plaintiffs “is attenuated at best,” id. at 759, and, as in Allen, that chain relies
on a series of speculative inferences about the “independent action[s] of some third part[ies] not
before the [C]ourt,” id. at 757 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 42
(1976)). Plaintiffs speculate, for example, that (1) the donors to the U.S.-based § 501(c)(3)
organizations made their contributions only because those entities are tax-exempt; (2) the U.S.
charities would be unable to find alternative sources of funding; (3) the Israeli settlers could not
obtain other sources of funding; and (4) absent the continued influx of funding from U.S.
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charities, the Israeli settlers would be unable to acquire new land and might even give up the land
that they currently possess. At each of these links, a third-party actor could break the causal
chain—a donor might decide to donate to one of the U.S.-based § 501(c)(3) organizations
because he or she supports its goals, not because it is tax exempt; other donors might take the
place of any donors who will contribute only to tax-exempt groups; the Israeli settlers may
already possess the “weapons” and “equipment” that they need to remain in the disputed areas;
or they may be committed to staying put, regardless of the support they receive from U.S.-based
charities. Although, in general, the Court “must take the complaint’s allegations of facts,
historical or otherwise demonstrable, as true,” that presumption does not extend to allegations,
like those at issue here, that speculate about future events and that purport to predict how third
parties might someday react to changed circumstances. Arpaio, 797 F.3d at 21 (quotation marks
omitted); Osborn v. Visa, Inc., 797 F.3d 1057, 1064 (D.C. Cir. 2015).
Plaintiffs’ “reliance on the anticipated action[s] of unrelated third parties makes it
considerably harder to show the causation required to support standing.” Arpaio, 797 F.3d at 20.
“Although ‘standing is not precluded’ in a case that turns on third-party conduct, ‘it is ordinarily
substantially more difficult to establish,’” id. (quoting Lujan, 504 U.S. at 562), and the D.C.
Circuit “ha[s] required ‘substantial evidence of a causal relationship between the government
policy and the third-party conduct, leaving little doubt as to causation,’” id. (quoting Nat’l
Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 941 (D.C. Cir. 2004)). Here,
Plaintiffs’ theory of causation is based on speculation upon speculation about how third parties
might act.
To be sure, the precise contours of Article III standing are “not susceptible of precise
definition.” Allen, 468 U.S. at 751. But, as the Supreme Court explained in Allen v. Wright, this
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“hardly leaves courts at sea” because individual cases can often be resolved “by comparing the
allegations of the particular complaint to those made in prior standing cases.” Id. at 751–52.
That observation is particularly apt here because Allen itself provides such a close comparator to
the present case. Indeed, if anything, the chain of events that Plaintiffs posit is more attenuated
and more uncertain than the one relied upon by the respondents—and rejected by the Supreme
Court—in Allen.
This case also finds a close comparator in Khalaf v. Regan, No. 83-cv-2963, 1985 WL
392 (D.D.C. Jan. 8, 1985), a case that, like this one, was brought by a group of individuals
seeking to challenge the tax-exempt status of a number of organizations that allegedly supported
Israeli settlement efforts in the West Bank. As in this case, some of the plaintiffs alleged that
they owned land in the West Bank that had “been confiscated by Israeli authorities” for use as
“Jewish settlements” and that these “expropriations [had] been financed in substantial part with
funds obtained from contributions to the subject organizations.” Id. at *2. Relying on Allen, the
district court concluded that the plaintiffs lacked standing, id. at *3, and the D.C. Circuit
confirmed that “no sensible jurisprudence could allow th[at] case to proceed while disallowing
for want of standing cases like Allen” and others, Khalaf v. Regan, No. 85-5274, 1986 U.S. App.
LEXIS 33734 (D.C. Cir. Sept. 19, 1986). Five years later, the D.C. Circuit reaffirmed that
conclusion in Fulani v. Brady, 935 F.2d 1324, 1328 (D.C. Cir. 1991). There, the D.C. Circuit
cited Khalaf with approval and, more generally, observed that, “where a party is seeking simply
to remove a third party’s entitlement to a tax exemption, the exemption likely will not bear
sufficient links of traceability . . . to the alleged injury to warrant standing under Allen v.
Wright.” Id. There is nothing about the present case that would warrant an exception to this
general rule.
15
The Court, accordingly, concludes that Plaintiffs—in both their amended complaint and
proposed second amended complaint—have failed to carry their “burden of . . . establishing the
[causation] element[] of standing.” Arpaio, 797 F.3d at 19.
3. Redressability
Both the first amended and proposed second amended complaints fail for a second reason
as well: Neither complaint alleges facts sufficient to meet the redressability prong of the
standing test. “Redressability examines whether the relief sought, assuming that the court
chooses to grant it, w[ould] likely alleviate the particularized injury alleged by the plaintiff.”
West, 845 F.3d at 1235 (quoting Fla. Audubon Soc’y, 94 F.3d at 663–64). “The key word is
‘likely,’” id. (quoting Lujan, 504 U.S. at 561), and thus “the prospect of obtaining relief from the
injury as a result of a favorable ruling” cannot be “too speculative,” Allen, 468 U.S. at 752. As
with the causation analysis, when redressability “depends on the unfettered choices made by
independent actors not before the court[] and whose exercise of broad and legitimate discretion
the courts cannot presume either to control or to predict, it becomes substantially more difficult
to establish standing.” Scenic Am., Inc. v. U.S. Dep’t of Trans., 836 F.3d 42, 50 (D.C. Cir. 2016)
(quotation marks omitted). “Courts do not lightly speculate how independent actors not before
them might” act, and, “[w]hen conjecture is necessary, redressability is lacking.” West, 845 F.3d
at 1237 (quotation marks and alterations omitted).
The starting point in the redressability analysis is necessarily the relief sought. In this
case, that relief is purely prospective. Plaintiffs do not seek damages for any losses or injuries
they have already sustained, but rather seek or order (1) “requiring [the] Treasury [Department]
to . . . initiate an investigation into any and all tax-exempt entities based in [the United States,]
which transmit $20,000 or more on an annual basis to any country in the world” and requiring
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that the Department, “where appropriate, revoke the entit[ies’] tax-exempt status;” (2) requiring
that the Treasury Department “refer all tax fraud and money laundering findings to the IRS
and/or U.S. Department of Justice for criminal prosecution;” (3) requiring that the Treasury
Department’s Financial Crimes Enforcement Network “investigate the entities . . . who have
engaged in [the alleged] money laundering activities;” and (4) requiring that the Treasury
Department “initiate a long-overdue investigation of all of the financial sponsorship of and
commission of the [alleged] violent activities . . .on the part of U.S. tax exempt entities, their
donors, and [Israeli Defense Forces].” Dkt. 18-2 at 77–78.
For those plaintiffs alleging past injuries—for example, the loss of property already taken
or a physical assault already suffered—an order from this Court compelling Defendants to
investigate the § 501(c)(3) status of U.S.-based charities will do nothing to redress their alleged
injuries. Even if Defendants were to revoke the § 501(c)(3) status of U.S. entities, if any, found
to have financially supported illegal activity in the West Bank or East Jerusalem, those actions
would not make Plaintiffs whole; neither the investigation, the revocation of tax-exempt status,
nor even the prosecution of U.S. nonprofit organizations would result in the return of any
illegally obtained property in the West Bank or East Jerusalem or in the payment of damages for
physical assaults that occurred in those territories. “Absent a sufficient likelihood that [they] will
again be wronged in a similar way,” Plaintiffs are “no more entitled to an injunction” or
declaratory judgment than anyone else, and “a federal court may not entertain a claim by any or
all citizens who no more than assert that certain” agency action—or inaction—is unlawful. City
of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
For Plaintiffs alleging future injuries —for example, Kateeb’s fear that “if [Defendants]
continue[] to allow so-called tax-exempt funds to flow to [an Israeli settler] organization, she
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will lose her remaining four plots of land,” Dkt. 18-2 at 11 (Second Am. Compl. ¶ 13(a))—the
redressability is a closer call, but only slightly closer. It is conceivable, Plaintiffs argue, that if
the Treasury Department investigates a particular U.S.-based § 501(c)(3) organization, the
Department might revoke the organization’s tax-exempt status, which might decrease the
financial contributions made to that organization, which might lead to fewer funds sent by that
organization to Israeli-based nonprofits, which might lead those Israeli nonprofits to reduce
expenditures in support of West Bank or East Jerusalem settlers, who, in turn, might have fewer
funds to take steps that might ultimately injure Plaintiffs. But as this chain of inferences lays
bare, the likelihood that the requested relief would actually redress an imminent harm to any of
the plaintiffs is both speculative and remote. It requires the Court to “pile conjecture on
conjecture,” West, 845 F.3d at 1237, forcing it to assume, for example, that donors would stop
contributing funds to U.S.-based nonprofits stripped of their tax-exempt status; that Israel-based
nonprofits would not find some other funding source to fill any gap created by a reduction in
U.S. financial support; and, most importantly, that the individual actors—the settlers in the West
Bank and East Jerusalem—would refrain from taking actions that could injure Plaintiffs. Such
“unadorned speculation as to the existence of a relationship between the challenged government
action and the third-party conduct will not suffice to invoke the federal judicial power.” Scenic
America, 836 F.3d at 50 (quotation marks omitted).
Plaintiffs can only “establish the redressability prong required for standing” if they can
show that the “declaratory judgment sought w[as] the sine qua non for, or would ‘significantly
increase [their] likelihood’ of” staving off the future injuries they detail in their proposed second
amended complaint. Hispanic Affairs Project v. Perez, 15-cv-1562, 2016 WL 4734350, at *9
(D.D.C. Sept. 9, 2016) (quoting Lichoulas v. FERC, 606 F.3d 769, 775 (D.C. Cir. 2010)). Even
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accepting the allegations contained in Plaintiffs’ proposed second amended complaint as true,
they have failed to satisfy the redressability requirement of Article III standing.
* * *
Because Plaintiffs have failed to allege facts sufficient to meet two essential elements of
constitutional standing, the Court will grant Defendants’ motion to dismiss Plaintiffs’ amended
complaint under Rule 12(b)(1).4 Dkt. 10. For the same reasons, moreover, the Court will deny
Plaintiffs’ motion for leave to file a second amended complaint, Dkt. 18, as futile. See James
Madison Ltd., 82 F.3d at 1099 (“Courts may deny a motion to amend a complaint as futile . . . if
the proposed claim would not survive a motion to dismiss.”).
B. Motion to Intervene Under Rule 24(b)
Finally, the Court addresses Abrams’s motion to intervene under Rule 24(b). See Dkt.
13. “In order to litigate a claim on the merits under Rule 24(b)(2), the putative intervenor must
ordinarily present,” among other things, “an independent ground for subject matter jurisdiction.”
EEOC v. Nat’l Children’s Ctr., 146 F.3d 1042, 1046 (D.C. Cir. 1998). This requirement stems
“from the basic principle that a court may not adjudicate claims over which it lacks subject
matter jurisdiction,” and because the “typical [third-party] movant asks the district court to
adjudicate an additional claim on the merits.” Id. at 1046. Although it “remains an open
question in this circuit whether Article III standing is required for permissive intervention,”
Defenders of Wildlife v. Perciasepe, 714 F.3d 1317, 1327 (D.C. Cir. 2013) (quotation marks and
4
Because the Court grants Defendants’ motion to dismiss under Rule 12(b)(1) for lack of
subject matter jurisdiction, it need not—and should not—address Defendants’ merits-based
arguments. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“Without
jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law,
and when it ceases to exist, the only function remaining to the court is that of announcing the fact
and dismissing the cause.” (quotation marks omitted)).
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alteration omitted), no amount of “flexibil[ity]” in the interpretation of Rule 24, see Nat’l
Children’s Center, Inc., 146 F.3d at 1045–46, can overcome the constitutional hurdle posed
when no party to the litigation has standing and thus there is no “case or controversy” within the
meaning of Article III.
Here, no one—not even Abrams—argues that Abrams has sustained, or is likely to
sustain, (1) an injury in fact (2) that is fairly traceable to the wrong he alleges (3) that would be
redressed by a favorable ruling. To the contrary, Abrams asserts that “[i]t appears, based on
precedent, that the [o]riginal [p]laintiffs lack standing to assert their claims in this Court,” and he
merely asks that, “if this Court is of a mind to open the floodgates,” it should permit him to press
his claim as well. Dkt. 13 at 1–2. As explained above, the Court agrees that Plaintiffs lack
standing. That conclusion, moreover, extends with even greater force to Abrams, who has not
even alleged that he has suffered, or is likely to suffer, a particularized injury in fact, much less
that any such injury is fairly traceable to the tax-exempt status of Doctors Without Borders or
that IRS review of that organization’s tax-exempt status would redress any such injury. The
“floodgates” will thus remain closed to both Plaintiffs and Abrams.
The Court will, accordingly, deny Abrams motion for permissive intervention.
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CONCLUSION
The Court will, accordingly, GRANT Defendants’ motion to dismiss Plaintiffs’ amended
complaint, Dkt. 10, DENY Plaintiffs’ motion for leave to file a second amended complaint, Dkt.
18, and DENY Abrams’s motion to intervene, Dkt. 13.
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: March 4, 2017
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