Alsheikh v. Lew et al
Filing
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ORDER GRANTING MOTION TO DISMISS by Judge Jon S. Tigar granting 21 Motion to Dismiss. (wsn, COURT STAFF) (Filed on 4/7/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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ABDULLAH SALEH ALSHEIKH,
Case No. 3:15-cv-03601-JST
Plaintiff,
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v.
ORDER GRANTING MOTION TO
DISMISS
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JACOB LEW, ET AL.,
Re: ECF No. 21
Defendant.
United States District Court
Northern District of California
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In this action for declaratory and injunctive relief, Plaintiff Abdullah Saleh Alsheikh
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alleges that certain provisions of the Foreign Account Tax Compliance Act, 26 U.S.C. §§ 1471–
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74, are unconstitutional. The government moves to dismiss Plaintiff’s Compliant on several
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grounds, including standing. Because the Court concludes that Plaintiff lacks Article III standing,
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the Court grants the government’s motion.
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I.
BACKGROUND
“Congress passed the Foreign Accounts Tax Compliance Act ('FATCA') in 2010 to
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improve compliance with tax laws by U.S. taxpayers holding foreign accounts.” Crawford v.
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United States Dep’t of the Treasury, No. 15-cv-250, 2015 WL 5697552, at *1 (S.D. Ohio Sept. 29,
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2015). “FATCA accomplishes this through two forms of reporting: (1) by foreign financial
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institutions (FFIs) about financial accounts held by U.S. taxpayers or foreign entities in which
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U.S. taxpayers hold a substantial ownership interest, 26 U.S.C. § 1471; and, (2) by U.S. taxpayers
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about their interests in certain foreign financial accounts and offshore assets. 26 U.S.C. § 6038D.”
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Id.
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Plaintiff Abdullah Saleh Alsheikh is a U.S. citizen working abroad in the Kingdom of
Saudi Arabia. ECF No. 1 at 2. Plaintiff, proceeding pro se, filed a Complaint on August 06, 2015,
seeking to invalidate certain provisions of FATCA on five grounds. Id. at 4–13. According to
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Plaintiff, FATCA “threatens the privacy rights of United States Citizens who own foreign bank
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accounts, including American expats, by requiring banks to disclose priv[ate] information of the
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account owner without any chance for the citizen to object, and without any suspicion of wrong
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doing by the citizen.” Id. at 1. Claim one alleges that FATCA violates the Tenth Amendment of
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the U.S. Constitution and cannot be justified under Congress’ commerce or tax powers. Id. at 4–5.
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Claim two challenges FATCA on the basis that the information it requires foreign institutions to
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provide to the U.S. government constitutes an unlawful search under the Fourth Amendment. Id.
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at 7–8. Claims three through five seek to invalidate FATCA because the law allegedly violates
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Plaintiff’s procedural due process, substantive due process, and equal protection rights. Id. at 8–
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United States District Court
Northern District of California
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13.
On November 3, 2015, the government moved the Court to dismiss this action under Rules
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12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 21. The government
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argues the Court should dismiss Plaintiff’s suit for lack of subject matter jurisdiction because
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Plaintiff has failed to establish Article III standing and the relief Plaintiff seeks is barred by the
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Anti-Injunction Act, 26 U.S.C. § 7421(a). The government also asserts that the Complaint fails to
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state a claim upon which relief can be granted.
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II.
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LEGAL STANDARDS
“[T]he irreducible constitutional minimum of standing contains three elements. First, the
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plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is
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(a) concrete and particularized . . . and (b) actual or imminent, not conjectural or
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hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal citations
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omitted) (internal quotation marks omitted). An injury is “actual or imminent” if it is “certainly
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impending,” because “[a]llegations of possible future injury are not sufficient.” Clapper v.
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Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (internal citations omitted). “Second, there
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must be a causal connection between the injury and the conduct complained of — the injury has to
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be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . the result [of] the
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independent action of some third party not before the court.” Lujan, 504 U.S. at 560 (citing Simon
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v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976)) (alterations in original). “Third, it
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must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable
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decision.” Id. at 560–61 (internal citations omitted) (internal quotation marks omitted).
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Each element of standing “must be supported in the same way as any other matter on
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which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required
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at the successive stages of the litigation.” Id. at 561. “At the pleading stage, general factual
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allegations of injury resulting from the defendant’s conduct may suffice.” Id. A “court’s
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obligation to take a plaintiff at its word at that stage in connection with Article III standing issues
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is primarily directed at the injury in fact and causation issues, not redressability.” Levine v.
Vilsack, 587 F.3d 986, 996–97 (9th Cir. 2009) (citing Lujan, 504 U.S. at 561). “[I]t is within the
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United States District Court
Northern District of California
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trial court’s power to allow or to require the plaintiff to supply, by amendment to the complaint or
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by affidavits, further particularized allegations of fact deemed supportive of plaintiff’s standing.”
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Warth v. Seldin, 422 U.S. 490, 501–02 (1975).
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III.
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ANALYSIS
The Government moves to dismiss Plaintiff’s Complaint on a number of grounds. The
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Court concludes that it lacks subject matter jurisdiction over Plaintiff’s claims because Plaintiff
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has not shown that he has Article III standing. The Court will therefore grant the government’s
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motion on that basis and will decline to reach the government’s remaining arguments.
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A.
Article III Standing
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The “injury in fact” element “requires more than an injury to a cognizable interest. It
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requires that the party seeking review be himself among the injured.” Lujan, 504 U.S. at 563
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(quoting Sierra Club v. Morton, 405 U.S. 727, 734 (1972)). The purpose of requiring direct injury
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is the judicial system’s “rough attempt to put the decision as to whether review will be sought in
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the hands of those who have a direct stake in the outcome.” Morton, 405 U.S. at 740. As a result,
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“a plaintiff raising only a generally available grievance about government—claiming only harm to
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his and every citizen’s interest in proper application of the Constitution and laws, and seeking
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relief that no more directly and tangibly benefits him than it does the public at large—does not
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state an Article III case or controversy. ” Lujan, 504 U.S. at 573–74.
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Here, Plaintiff has not identified any particular injury that he has suffered. The Complaint
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contains only two sentences specifying how FATCA has allegedly harmed Plaintiff. First,
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Plaintiff alleges that he “is damaged since [FATCA] forces financial institutions in Saudi Arabia
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to disclose constitutionally protected information.” ECF No. 1 at 2. Second, Plaintiff alleges that
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he has been injured in that he “is an American expat who is affected by [FATCA] since he has
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foreign bank accounts.” ECF No. 1 at 4. However, Plaintiff does not allege any facts detailing
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whether any financial institution in Saudi Arabia, or otherwise, has, in fact, been required under
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FATCA to provide Plaintiff’s financial information to the U.S. government. Moreover, as the
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government notes, “Plaintiff does not allege that he has had any application for an account denied
or any account closed.” ECF No. 21-1 at 9. As a result, Plaintiff has failed to allege that he
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United States District Court
Northern District of California
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“himself [is] among the injured.” Lujan, 504 U.S. at 563
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The remainder of Plaintiff’s complaint raises “a generally available grievance about the
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government,” Lujan, 504 U.S. at 573. See, e.g., ECF No. 1 at 1 (“The act threatens the privacy
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rights of United States Citizens who own foreign bank accounts, including American expats, by
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requiring banks to disclose priv[ate] information of the account owner without any chance for the
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citizen to object, and without any suspicion of wrong doing by the citizen. ”); ECF No. 1 at 2
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(“The act violates the fourth amendment right of foreign financial institutions and account holders
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by requiring American payers to withhold payments for the government.”); ECF No. 1 at 5
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(“FATCA imposes penalties on foreign financial institutions and in some cases o[n] persons who
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fail to comply with the act. The act also requires the closure of accounts of citizens who fail to
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give a waiver of privacy wherever required by law. Closure of bank accounts causes a lot of
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problems to such people. ”). Such “generally available grievance[s]” do not constitute injury-in-
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fact. Lujan, 504 U.S. at 573.
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In his Opposition Brief, Plaintiff offers no argument to support a finding that he “himself
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[is] among the injured.” Lujan, 504 U.S. at 563; see ECF No. 27 at 11–14. Accordingly, the
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Court concludes that Plaintiff lacks Article III standing because he has failed to sufficiently allege
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injury-in-fact.1
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IV.
CONCLUSION
Plaintiff has not established that he has Article III standing. Accordingly, the Court grants
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the government’s motion to dismiss without prejudice. Plaintiff may file an amended complaint
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within 30 days of the filing date of this order.
IT IS SO ORDERED.
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Dated: April 7, 2016
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______________________________________
JON S. TIGAR
United States District Judge
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United States District Court
Northern District of California
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Because the Court concludes that Plaintiff does not meet the injury-in-fact requirement, the
Court declines to address the causation and redressability requirements for Article III standing.
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