SWEIS v. UNITED STATES FOREIGN CLAIMS SETTLEMENT COMMISSION et al

Filing 23

MEMORANDUM OPINION to Order denying Plaintiff's Motion for a Preliminary Injunction. Signed by Judge Gladys Kessler on 6/17/13. (CL, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JULIET SWEIS,
Plaintiff,
v.

UNITES STATES FOREIGN
CLAIMS SETTLEMENT
COMMISSION, et al.,

Civil Action No. 13-366 (GK)

Defendants.

MEMORANDUM OPINION

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

against

Commission

the

( "FCSC"

Martinez and Anuj
("State

United
or

"Commission") ,

Desai,

Department"),

Secretary

of

State,

States

Claims

Settlement

its Commissioners,

Rafael

the United States Department of State

John
the

Foreign

Kerry

in his

Department

of

official
Justice

capacity as
( "DOJ") ,

Holder in his official capacity as Attorney General,

Eric

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
5 U.S.C.

§

( "APA") ,

551 et seq., and separation-of-powers principles.

This matter is presently before
Motion

and

Injunction

Memorandum
[Dkt.

in

No.

Support

8].

Upon

the

Court on Plaintiff's

Thereof

for

consideration

a
of

Preliminary
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
Nidal

December

27,

1985,

Organization

Sweis

terrorists

International Airport.

Complaint

was

injured

opened

when

fire
~

( "Compl.")

Abut

the

in

four

Rome

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.
On

April

~

20.
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").

was not a named plaintiff. On July 9,
dismissed without prejudice.
On

March

Buonocore.

28,

Compl.

2008,
~

30.

Compl.

2007,

~

26.

Sweis

that complaint was

[Case No. 06-727, Dkt. No. 34]

an

amended

complaint

Sweis was added as

a

was

filed

in

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
-2-

("LCRA"),

Pub. L. No.

110-301,

122 Stat. 2999

(2008).

~~

Id.

36, 45. The stated purpose of the

LCRA is to provide for

"fair compensation to all nationals of

the

have

United

Libya

States

through

a

who

terrorism-related

comprehensive

settlement

of

claims
claims

against
by

such

nationals against Libya pursuant to an international agreement
~

between the United States and Libya." Id.
On August
into

an

14,

2008,

international

Settlement Agreement

45.

the United States

claims

agreement,

( "LCSA") .

Id.

~

4 6.

and Libya entered

the

US-Libya

Claims

The LCSA intended to

settle all claims, terminate pending claims, and preclude future
claims.

Defs.'

Prelim. Inj.
On

Mot.

to

October

all

&

Opp' n

to

Pl.'s

Mot.

George

W.

Bush

for

a

( "Defs.' Opp' n") Ex. 2, p. 3.
31,

2008,

Executive Order 13,477.
that

Dismiss

President
~

Id.

terrorism-related

47.

claims

signed

The Executive Order declared
of

U.S.

nationals

against

Libya were settled by the LCSA and terminated pending suits in
U.S. courts.
the

Libyan

Buonocore,

Id.

~

48. On December 24, 2008,

Defendants'
as

a

result

Motion

to

of

LCRA and

the

Dismiss

this Court granted
with

the

prejudice

Executive

in

Order.

[Case No. 06-727, Dkt. No. 78]
On December 11, 2008, the State Department referred certain
claims to the FCSC,

a quasi-judicial,

the Department of Justice

independent agency within

("First Referral") . Compl.
-3-

~~

52,

55.

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,
~

On

55.

March

the

including Buonocore.
announced

Commission

Id.
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

complaint. Id.
On

March

~

not

pled a

physical

injury

in

the

Buonocore

62.

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

during the Rome Airport Attack.
this Court granted that motion.
Sweis

objected

to

the

injuries

Compl.

~

61.

suffered by Sweis
On April 2,

2010,

[Case No. 06-727, Dkt No. 81]
FCSC's

Proposed

Decision,

and

provided the Commission with this Court's nunc pro tunc order
permitting her to amend her complaint. Compl.
the

Commission

held

a

particular jurisdictional issue. Id.

-4-

hearing
~

64.

~

63. On September
devoted

to

this

On

December

12 1

2012/

the

Commission

issued

a

Final

Decision refusing to assert jurisdiction over SweiS S claim.

It

concluded

of

1

that

the

who

had

individuals

First

Referral 1 s

explicit

alleged only emotional

exclusion

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 .

Ex. 8

1

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

Order

1

but held that

1

11

)

such orders could not be used to change

substantive rights or jurisdictional facts.
it

("Pl. s Mot.

concluded that the Order did not

Id. pp. 11-12. Thus 1

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

the

2009/

15 1

State

Department

additional claims to the FCSC

("Second Referral 11 ) .

These

into

multiple

nationals

who

claims

"Category W

1

were

divided

included U.S.

had

referred

Compl.

~ 71.

categories.

Id.

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.

Fed. Reg. 32 1 193).

-5-

Id.

~

73

(citing

74

Sweis

filed

a

claim

Referral. On December 12,
Decision declaring

that

claim under Category E,

under
2012,

it

the

State

Department's

Second

the Commission issued a Proposed

did not

have

jurisdiction over her

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,

March 27,

2013,

[Dkt.

8] .

No.

Dismiss

2013,

she

Sweis

filed

On April

8,

and Opposition to

the

Motion

a

filed

for

2 013,

instant

complaint.

Preliminary

Defendants

filed

Plaintiff's Motion for

a
a

On

Injunction
Motion to
Preliminary

Injunction [Dkt. No. 12]

II.

STANDARD OF REVIEW
A preliminary

remedy,"

Munaf

v.

injunction
Geren,

is

553

an

"extraordinary and drastic

U.S.

674,

689

(2008)

(citation

omitted) , and "may only be awarded upon a clear showing that the
plaintiff is entitled to such relief."
F.3d 388,
Def.

392

(D.C.

Cir.

2011)

Council,

Inc.,

555

U.S.

Armstrong,

520 U.S.

a clear showing,

968,

972

Sherley v.

Sebelius,

(quoting Winter v.
7,

(1997)

22

(2008));

see

-6-

Natural Res.
Mazurek

v.

(noting that "the movant, by

carries the burden of persuasion")

original) .

644

(emphasis in

A
"[1]

party

seeking

a

preliminary

that

is

likely to

is

[she]

[she]
likely

to

suffer

injunction

succeed on the

irreparable

harm

must

establish

merits,
in

the

[2]

that

absence

of

preliminary relief,

[3]

that the balance of the equities tips in

[her]

[4]

that

favor,

and

an

injunction

is

in

the

public

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

the

past,

evaluated on a

these

four

factors

'sliding scale[,]'

"have

"such that

typically

"[i]f the movant

makes

an unusually strong showing on one of

[she]

does not necessarily have to make as strong a

another factor."
1288,

1291-92

Davis v.

(D.C.

Cir.

the

Pension Benefit Guar.
2009)

been

factors,

showing on

Corp.,

(citing Davenport v.

then

571 F.3d

Int'l Bhd.

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

continued viability

uncertain

as

the

Supreme

strongly

suggested,

of

the

Court

without

sliding

and

the

holding,

scale
D.C.

that

approach

is

Circuit

have

plaintiffs

are

required to independently demonstrate a likelihood of success on
the

merits.

Sherley,

644

F.3d

at

Court

does

not

392-33;

see

also

Davis,

571

F.3d at 1292.
However,

this

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.
-7-

Trudeau v.

F.T.C.,
178

384 F. Supp. 2d 281,

(D.C.

Cir.

2006);

296

see

(D.D.C. 2005)

also

-----

Davis,

446 F.3d

aff'd,

I

571

at

F.3d

1296

(declaring that plaintiff "must show a likelihood of irreparable
harm")
an

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

injunction

irreparable

without

harm

is

Gospel Churches v.
("A movant's

considering

not

demonstrated.

England,

failure

to

See

454 F.3d 290,

show

any

other

any

factors

Chaplaincy of
297

irreparable

(D.C.

Cir.

harm

other

three

factors

relief") ; see also Winter,

entering

the

555 U.S. at 22

calculus

address underlying merits of plaintiffs'

finding

that

no

likelihood of

2006)

even if

merit

such

(holding there was no

need to

there was

Full

is

grounds for refusing to issue a preliminary injunction,
the

if

claims

irreparable

after

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
ensure

the

retention

injunction "against Defendants to

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.

-8-

Sweis

claims

money is not
government

that

she will

be

set aside because

plans

to

do"

with

"it

the

irreparably injured if

the

is not known what the U.S.
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
allegations

Court"

clearly

(emphasis
do

not

added).

establish

Pl.'s Mot.
a

at

These

that

likelihood

2.

Sweis

will be irreparably harmed in the absence of an injunction.
Our

Court

irreparable
England,
be

of

Appeals

Chaplaincy

injury.

454 F.3d 290,

both

certain

297-98

and

set

has
of

(D.C.

Full

must

theoretical." Wise. Gas Co. v. F.E.R.C.,
Cir.

1985)

(per curiam) ;

Winter,

injunction

is

not

"merely

'feared.'"

Salvador

(CISPES)

1991)

warranted
Comm.
v.

in

(quoting Exxon Corp.

Churches

actual

758 F.2d 669,
at

a

22

movant

Solidarity with
929

v.

for
v.

and
674

not
(D.C.

(holding that

"not just a possibility"). An

when

Sessions,

standard

Gospel

be

555 U.S.

irreparable injury must be likely,

high

Cir. 2006). The injury "must

it

great;

a

F.2d 742,

F.T.C.,

589

alleges
the

injuries

People

745-46

F.2d 582,

of

El

(D.C.

Cir.

594

(D.C.

Cir. 1978)).
Sweis's allegations are based on nothing more than fear and
possibility.

She

admits

that

she

-9-

does

not

know

what

the

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

possible~~

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

amount by granting this motion.

11

of · a

sufficient

Pl. 's Mot. 14-15. However,

provides no support for this proposition. See Mazurek,

she

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
Sweis.

not

establish

a

likelihood

See Stand Up For California!

Case No.

of

v.

irreparable

Dep' t

12-2039, 2013 WL 324035, at *26

harm

to

of the Interior,

(D.D.C. Jan.

29,

2013)

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

"will have the ability to do

in fact,

do).

11

rather than what they

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
Sweis's.

Defs.'

Opp'n,

Ex.

13,

Declaration of Lisa J.

11

like

Grosh

~~

7-9. Thus, there is a "possibility that adequate compensatory or
-10-

other

corrective

which

"weighs

relief

heavily

will

be

against

available

later

date,"

claim

a

at

irreparable

harm."

of

a

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

(citation

omitted) .
our

Moreover,
"economic

loss

irreparable
Davis v.
Cir.

Court

does

harm."

of

not,

Wise.

Appeals
in

Gas

and

Co.,

2009)

(noting

"general

rule

of

758

Pension Benefit Guar. Corp.,

has

established
itself,

F.2d at

that

constitute

674;

see

also

571 F.3d 1288, 1295

that

(D.C.

economic harm does

not

constitute irreparable injury") .

Thus,

that Sweis alleges is economic,

she has not met her burden of

showing

"irreparable

the

possibility

of

an

because the only injury

harm,"

much

less

established that such harm is likely to occur.
Sweis

insists

independently

her

that

justifies

an

injunction,

of

Dist.

v.

Burns,

427

U.S.

3 4 7,

3 73

periods

loss

unquestionably constitutes irreparable injury.'" Mills v.
of Columbia, 571 F.3d 1304, 1312

minimal

"the

time,

freedoms,

even

because

of

constitutional

'for

claim

separation-of-powers

(D.C. Cir. 2009)
( 19 7 6) )

However,

(quoting Elrod
our

Court

of

Appeals has indicated that merely raising a constitutional claim
is insufficient to warrant a presumption of irreparable injury.
Moreover,
as here,

when a party is seeking a mandatory injunction,

that would alter the status quo rather than preserve
-11-

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

the

denial

Armed

of

Forces

v.

injunction.'"

James,

278

(quoting Columbia Hosp.
Misabishi,
F.2d 636

Ltd.,

15

F.

Nat' 1
Supp.

Conf.

2d

37,

on
43

for Women Foundation v.

F.

Supp.

2d 1,

4

(D.D.C.

Ministry
(D.D.C.

to

2003)

Bank of Tokyo-

1997),

aff'd 159

(D.C. Cir. 1998)).

Rather,

a

constitutional
impaired

at

interest
the

Chaplaincy

of

Elrod,

U.S.

427

movant
is

time"

Full
at

must

373

particular

a

that

"either threatened or in fact

the

Gospel

indicate

movant

seeks

Churches,

454

injunctive

F. 3d

(plurality opinion))

at

302

(emphasis

being

relief.
(quoting
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

violation Because

million

of time,"

granted,

the

the Commission's decision -

granting

"the loss of

was

this

injunction

[constitutional]

would

freedoms,

alleged

constitutional

would remain in effect.
do

nothing

to

prevent

for even minimal periods

the presumption of irreparable harm is inappropriate.
-12-

harm

is

inappropriate.

See

Time

F.C.C., 810 F. Supp. 1302, 1304
F.3d

957

(D.C.

irreparable

Cir.

harm

deprivation of

1996)

when

Entm't

Co.

L.P.

(D.D.C. 1992) aff'd in part,

(refusing
"record

defendants'

Warner

making

to

grant

93
of

that

no

presently occurring,

and

clearly
is

presumption

v.

reveals

none is likely to occur before the merits of this controversy
are

decided").

"either

In

threatened

this
or

in

case,

no

fact

constitutional

being

impaired

at

interest
the

is

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

Trudeau,

sine
384

qua non of
F.

Supp.

the preliminary injunction inquiry,"

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).
-13-

IV.

CONCLUSION

For

the

foregoing

reasons,

Plaintiff's

Motion

for

a

Preliminary Injunction is denied. An Order shall accompany this
Memorandum Opinion.

June

f?_,

Gladyfi:~~

2013

United States District Judge
Copies to: attorneys on record via ECF

-14-