Sweis v. United States Foreign Claims Settlement Commission

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JULIET SWEIS,

Plaintiff,

v.

UNITES STATES FOREIGN Civil Action No. 13-366 (GK)
CLAIMS SETTLEMENT
COMMISSION, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Juliet Sweis ("Sweis" or "Plaintiff") brings this

action against the United States Foreign Claims Settlement

Commission ( "FCSC" or "Commission") , its Commissioners, Rafael

Martinez and Anuj Desai, the United States Department of State

("State Department"), John Kerry in his official capacity as

Secretary of State, the Department of Justice ( "DOJ") , Eric

Holder in his official capacity as Attorney General, the United

States Department of Treasury ("Treasury Department"), and Jacob

Lew in his official capacity as Secretary of the Department of

Treasury (collectively, "Defendants" or "Government"). Plaintiff

alleges violations of the Administrative Procedure Act ( "APA") ,

5 U.S.C. § 551 et seq., and separation-of-powers principles.
 This matter is presently before the Court on Plaintiff's

Motion and Memorandum in Support Thereof for a Preliminary

Injunction [Dkt. No. 8]. Upon consideration of the Motion,

Opposition [Dkt. No. 12], and the entire record herein, and for

the reasons stated below, Plaintiff's Motion is denied.

I . BACKGROUND

On December 27, 1985, Sweis was injured when four Abut

Nidal Organization terrorists opened fire in the Rome

International Airport. Complaint ( "Compl.") ~ 13. She was seven

years old at the time and suffered "hand grenade shrapnel and

concussion injuries to her head, resulting in permanent physical

injuries." Id. ~ 20.

On April 21, 2006, a group of individuals, including

members of Sweis's family, were named as plaintiffs in a lawsuit

in this Court, Buonocore v. Great Socialist People's Libyan Aeab

Jamahiriya, Case No. 06-727 ("Buonocore"). Compl. ~ 26. Sweis

was not a named plaintiff. On July 9, 2007, that complaint was

dismissed without prejudice. [Case No. 06-727, Dkt. No. 34]

On March 28, 2008, an amended complaint was filed in

Buonocore. Compl. ~ 30. Sweis was added as a named plaintiff,

but did not allege any physical injuries. Id.

On August 4, 2008, President George W. Bush signed into law

the Libyan Claims Resolution Act ("LCRA"), Pub. L. No. 110-301,
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122 Stat. 2999 (2008). Id. ~~ 36, 45. The stated purpose of the

LCRA is to provide for "fair compensation to all nationals of

the United States who have terrorism-related claims against

Libya through a comprehensive settlement of claims by such

nationals against Libya pursuant to an international agreement

between the United States and Libya." Id. ~ 45.

On August 14, 2008, the United States and Libya entered

into an international claims agreement, the US-Libya Claims

Settlement Agreement ( "LCSA") . Id. ~ 4 6. The LCSA intended to

settle all claims, terminate pending claims, and preclude future

claims. Defs.' Mot. to Dismiss & Opp' n to Pl.'s Mot. for a

Prelim. Inj. ( "Defs.' Opp' n") Ex. 2, p. 3.

On October 31, 2008, President George W. Bush signed

Executive Order 13,477. Id. ~ 47. The Executive Order declared

that all terrorism-related claims of U.S. nationals against

Libya were settled by the LCSA and terminated pending suits in

U.S. courts. Id. ~ 48. On December 24, 2008, this Court granted

the Libyan Defendants' Motion to Dismiss with prejudice in

Buonocore, as a result of the LCRA and the Executive Order.

[Case No. 06-727, Dkt. No. 78]

On December 11, 2008, the State Department referred certain

claims to the FCSC, a quasi-judicial, independent agency within

the Department of Justice ("First Referral") . Compl. ~~ 52, 55.
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The First Referral created jurisdiction in the FCSC over the

claims of U.S. nationals who were named plaintiffs who had pled

physical injury in pending litigation, including Buonocore. Id.

~ 55. On March the Commission announced the

commencement of its adjudication of the claims contained in the

First Referral. Id. ~ 58 (citing 74 Fed. Reg. 12,148).

Sweis filed a timely claim under the First Referral. Compl.

~ 59. On February 18, 2010, the FCSC entered a Proposed Decision

declaring that it did not have jurisdiction over Sweis's claim

because she had not pled a physical injury in the Buonocore

complaint. Id. ~ 62.

On March 1, 2012, Sweis filed a motion to amend the

Buonocore complaint nunc pro tunc to March 28, 2008, the date of

the original filing. The purpose of the amendment was to include

allegations regarding the physical injuries suffered by Sweis

during the Rome Airport Attack. Compl. ~ 61. On April 2, 2010,

this Court granted that motion. [Case No. 06-727, Dkt No. 81]

Sweis objected to the FCSC's Proposed Decision, and

provided the Commission with this Court's nunc pro tunc order

permitting her to amend her complaint. Compl. ~ 63. On September

the Commission held a hearing devoted to this

particular jurisdictional issue. Id. ~ 64.

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 On December 12 1 2012/ the Commission issued a Final

Decision refusing to assert jurisdiction over SweiS S claim. 1
It

concluded that the First Referral 1 s explicit exclusion of

individuals who had alleged only emotional injuries would be

rendered meaningless if such claimants could retroactively amend

their claims to include allegations of physical injury. Pl. s
1

Mot. & Mem. in Support Thereof for a Prelim. Inj . ("Pl. s Mot.
1 11
)

Ex. 8 1 pp. 5-6. The Commission also considered the nunc pro tunc

Order 1 but held that such orders could not be used to change

substantive rights or jurisdictional facts. Id. pp. 11-12. Thus 1

it concluded that the Order did not change the jurisdictional

fact that Sweis had not alleged a physical injury in a pending

case at the time of the First Referral. Id. pp. 12-13.

On January 15 1 2009/ the State Department referred

additional claims to the FCSC ("Second Referral 11 ) . Compl. ~ 71.

These claims were divided into multiple categories. Id.

"Category W 1
included U.S. nationals who had been physically

injured in Libyan terrorist attacks who had not been named as

plaintiffs in pending litigation. Id. On July 71 2009 1 the

Commission announced the commencement of its adjudication of the

claims contained in the Second Referral. Id. ~ 73 (citing 74

Fed. Reg. 32 1 193).

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 Sweis filed a claim under the State Department's Second

Referral. On December 12, 2012, the Commission issued a Proposed

Decision declaring that it did not have jurisdiction over her

claim under Category E, because Sweis had been a named plaintiff

in the Buonocore complaint. Compl. ~ 75. On February 16, 2013,

the Commission issued its Final Decision denying Sweis's Second

Referral Claim. Id. ~ 76.

On March 21, 2013, Sweis filed the instant complaint. On

March 27, 2013, she filed a Motion for Preliminary Injunction

[Dkt. No. 8] . On April 8, 2 013, Defendants filed a Motion to

Dismiss and Opposition to Plaintiff's Motion for a Preliminary

Injunction [Dkt. No. 12]

II. STANDARD OF REVIEW

A preliminary injunction is an "extraordinary and drastic

remedy," Munaf v. Geren, 553 U.S. 674, 689 (2008) (citation

omitted) , and "may only be awarded upon a clear showing that the

plaintiff is entitled to such relief." Sherley v. Sebelius, 644

F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Natural Res.

Def. Council, Inc., 555 U.S. 7, 22 (2008)); see Mazurek v.

Armstrong, 520 U.S. 968, 972 (1997) (noting that "the movant, by

a clear showing, carries the burden of persuasion") (emphasis in

original) .

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 A party seeking a preliminary injunction must establish

"[1] that [she] is likely to succeed on the merits, [2] that

[she] is likely to suffer irreparable harm in the absence of

preliminary relief, [3] that the balance of the equities tips in

[her] favor, and [4] that an injunction is in the public

interest." Winter, 555 U.S. at 20.

In the past, these four factors "have typically been

evaluated on a 'sliding scale[,]' "such that "[i]f the movant

makes an unusually strong showing on one of the factors, then

[she] does not necessarily have to make as strong a showing on

another factor." Davis v. Pension Benefit Guar. Corp., 571 F.3d

1288, 1291-92 (D.C. Cir. 2009) (citing Davenport v. Int'l Bhd.

of Teamsters, AFL-CIO, 166 F.3d 356, 361 (D.C. Cir. 1999)).

The continued viability of the sliding scale approach is

uncertain as the Supreme Court and the D.C. Circuit have

strongly suggested, without holding, that plaintiffs are

required to independently demonstrate a likelihood of success on

the merits. Sherley, 644 F.3d at 392-33; see also Davis, 571

F.3d at 1292.

However, this Court does not need to address that issue

because our Court of Appeals has always held that "the sine qua

non of the preliminary injunction inquiry," is some showing of

irreparable injury in the absence of an injunction. Trudeau v.

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F.T.C., 384 F. Supp. 2d 281, 296 (D.D.C. 2005) I aff'd, 446 F.3d

178 (D.C. Cir. 2006); see
-----
also Davis, 571 F.3d at 1296

(declaring that plaintiff "must show a likelihood of irreparable

harm") (Kavanaugh, J. , concurring) . A court can refuse to issue

an injunction without considering any other factors if

irreparable harm is not demonstrated. See Chaplaincy of Full

Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)

("A movant's failure to show any irreparable harm is

grounds for refusing to issue a preliminary injunction, even if

the other three factors entering the calculus merit such

relief") ; see also Winter, 555 U.S. at 22 (holding there was no

need to address underlying merits of plaintiffs' claims after

finding that there was no likelihood of irreparable harm and

that the balance of the equities and consideration of the public

interest weighed in favor of the defendants) .

III. ANALYSIS

Sweis seeks a permanent injunction "against Defendants to

ensure the retention of [the] funds necessary to

compensate Plaintiff under the Libya Claims Settlement Program."

Pl.'s Mot. 1-2. She insists that the Commission should set aside

$3 million, the amount that physically-injured claimants have

received under the LCRA. Id. at 15-16; Pl.'s Mot. Ex. 5, p. 3.

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 Sweis claims that she will be irreparably injured if the

money is not set aside because "it is not known what the U.S.

government plans to do" with the funds that remain after the

Commission "has confirmed that all claims have been finalized,"

and "it is possible that the remaining funds would leave the

jurisdiction of the United States while the proceeding is being

heard by this Court" (emphasis added). Pl.'s Mot. at 2. These

allegations clearly do not establish a likelihood that Sweis

will be irreparably harmed in the absence of an injunction.

Our Court of Appeals has set a high standard for

irreparable injury. Chaplaincy of Full Gospel Churches v.

England, 454 F.3d 290, 297-98 (D.C. Cir. 2006). The injury "must

be both certain and great; it must be actual and not

theoretical." Wise. Gas Co. v. F.E.R.C., 758 F.2d 669, 674 (D.C.

Cir. 1985) (per curiam) ; Winter, 555 U.S. at 22 (holding that

irreparable injury must be likely, "not just a possibility"). An

injunction is not warranted when a movant alleges injuries

"merely 'feared.'" Comm. in Solidarity with the People of El

Salvador (CISPES) v. Sessions, 929 F.2d 742, 745-46 (D.C. Cir.

1991) (quoting Exxon Corp. v. F.T.C., 589 F.2d 582, 594 (D.C.

Cir. 1978)).

Sweis's allegations are based on nothing more than fear and

possibility. She admits that she does not know what the

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government will do with any surplus funds but notes that "it is

possible~~ that the remaining funds might be removed from the

jurisdiction of the United States. Pl.'s Mot. at 2. Later in her

motion, Sweis alleges that "[t]here is no doubt that the surplus

funds will be either returned to Libya or disbursed otherwise

should the Court not require the maintenance of · a sufficient

amount by granting this motion. 11
Pl. 's Mot. 14-15. However, she

provides no support for this proposition. See Mazurek, 520 U.S.

at 972 (noting that burden of persuasion is on movant) .

The mere fact that the Government has control over any

surplus funds and has not indicated what it intends to do with

them does not establish a likelihood of irreparable harm to

Sweis. See Stand Up For California! v. Dep' t of the Interior,

Case No. 12-2039, 2013 WL 324035, at *26 (D.D.C. Jan. 29, 2013)

(finding no likelihood of harm when plaintiffs focus was on what

defendant "will have the ability to do 11
rather than what they

would, in fact, do). The Government has asserted that it does

not know the precise amount of funds that remain, but that the

next step would be to "consider referring additional categories

of claims to the FCSC, 11
including possibly referring "claims

that were rejected by the FCSC on jurisdictional grounds 11
like

Sweis's. Defs.' Opp'n, Ex. 13, Declaration of Lisa J. Grosh ~~

7-9. Thus, there is a "possibility that adequate compensatory or
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other corrective relief will be available at a later date,"

which "weighs heavily against a claim of irreparable harm."

Chaplaincy of Full Gospel Churches, 454 F.3d at 297-98 (citation

omitted) .

Moreover, our Court of Appeals has established that

"economic loss does not, in and of itself, constitute

irreparable harm." Wise. Gas Co., 758 F.2d at 674; see also

Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1295 (D.C.

Cir. 2009) (noting "general rule that economic harm does not

constitute irreparable injury") . Thus, because the only injury

that Sweis alleges is economic, she has not met her burden of

showing the possibility of an "irreparable harm," much less

established that such harm is likely to occur.

Sweis insists that her separation-of-powers claim

independently justifies an injunction, because "the loss of

constitutional freedoms, 'for even minimal periods of time,

unquestionably constitutes irreparable injury.'" Mills v. Dist.

of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (quoting Elrod

v. Burns, 427 U.S. 3 4 7, 3 73 ( 19 7 6) ) However, our Court of

Appeals has indicated that merely raising a constitutional claim

is insufficient to warrant a presumption of irreparable injury.

Moreover, when a party is seeking a mandatory injunction,

as here, that would alter the status quo rather than preserve
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it, "the moving party must meet a higher standard than in the

ordinary case by showing 'clearly' that he or she is entitled to

relief or that 'extreme or very serious damage will result from

the denial of the injunction.'" Nat' 1 Conf. on Ministry to

Armed Forces v. James, 278 F. Supp. 2d 37, 43 (D.D.C. 2003)

(quoting Columbia Hosp. for Women Foundation v. Bank of Tokyo-

Misabishi, Ltd., 15 F. Supp. 2d 1, 4 (D.D.C. 1997), aff'd 159

F.2d 636 (D.C. Cir. 1998)).

Rather, a movant must indicate that a particular

constitutional interest is "either threatened or in fact being

impaired at the time" the movant seeks injunctive relief.

Chaplaincy of Full Gospel Churches, 454 F. 3d at 302 (quoting

Elrod, 427 U.S. at 373 (plurality opinion)) (emphasis added) .

Sweis's constitutional argument is that the Commission violated

the separation-of-powers principles inherent in the Constitution

when it "ignored" this Court's nunc pro tunc Order and the

Federal Rules of Civil Procedure in its Final Decision.

Even if an injunction to bar the government from disposing

of the $3 million was granted, the alleged constitutional

violation - the Commission's decision - would remain in effect.

Because granting this injunction would do nothing to prevent

"the loss of [constitutional] freedoms, for even minimal periods

of time," the presumption of irreparable harm is inappropriate.

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harm is inappropriate. See Time Warner Entm't Co. L.P. v.

F.C.C., 810 F. Supp. 1302, 1304 (D.D.C. 1992) aff'd in part, 93

F.3d 957 (D.C. Cir. 1996) (refusing to grant presumption of

irreparable harm when "record clearly reveals that no

deprivation of defendants' making is presently occurring, and

none is likely to occur before the merits of this controversy

are decided"). In this case, no constitutional interest is

"either threatened or in fact being impaired at the time."

Sweis now seeks injunctive relief.

Sweis has failed to show any likelihood of irreparable harm

in the absence of a preliminary injunction. Because this showing

is "the sine qua non of the preliminary injunction inquiry,"

Trudeau, 384 F. Supp. 2d at 296, the Court does not need to

address the other preliminary injunction requirements. 1

1
The Court is particularly hesitant to address the likelihood of
Sweis's success on the merits because she has moved for leave to
file an Amended Complaint. That Motion is not ripe, but, if
granted, will render the Complaint a nullity, Hollie v. Smith,
813 F. Supp. 2d 214, 216 n.2 (D.D.C. 2011), and Defendants'
current Motion to Dismiss moot. See Gray v. D.C. Public School,
688 F. Supp. 2d 1, 6 (D.D.C. 2010) (citation omitted).
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IV. CONCLUSION

For the foregoing reasons, Plaintiff's Motion for a

Preliminary Injunction is denied. An Order shall accompany this

Memorandum Opinion.

June f?_, 2013 Gladyfi:~~
United States District Judge

Copies to: attorneys on record via ECF

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