UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
____________________________________ ) NEW YORK CENTER FOR FOREIGN ) POLICY AFFAIRS, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 20-3847 (PLF) ) UNITED STATES DEPARTMENT OF ) STATE, and ANTONY BLINKEN, in ) his official capacity as Secretary of the ) Department of State, ) ) Defendants. ) ____________________________________)
OPINION
This matter arises from a group of individual, associational, and organizational
plaintiffs’ challenge to the U.S. Department of State’s alleged “rushed authorization of a
weapons sale to the United Arab Emirates (‘UAE’).” Am. Compl. ¶ 1. Plaintiffs allege that the
Department of State violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq.,
by failing to “provide a reasoned explanation for its [authorization of the arms sale], address[]
any change in its prior policy[, or] show[] a rational connection between the facts considered and
the ultimate conclusion.” Am. Compl. ¶ 6. Plaintiffs seek a declaratory judgment that the
Department of State’s authorization of the arms sale to the UAE was invalid and an injunction
“requiring the Defendants to rescind the authorization” of the sale. Id.
Pending before the Court is defendants’ motion to dismiss the Amended
Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiffs filed a response opposing defendants’ motion to dismiss, and defendants filed a reply in support of their motion. At the Court’s request, the parties also filed supplemental briefs. The
motion to dismiss is now ripe. Upon careful consideration of the parties’ written submissions
and the relevant authorities, the Court will grant defendants’ motion and dismiss the Amended
Complaint. Because the Court dismisses this case for lack of subject matter jurisdiction under
Rule 12(b)(1), it need not consider defendants’ arguments under Rule 12(b)(6).1
I. BACKGROUND
Plaintiffs’ Amended Complaint challenges the U.S. Department of State’s alleged
“rushed authorization of a weapons sale to the United Arab Emirates.” Am. Compl. ¶ 1. The
statute at issue is the Arms Export Control Act (“AECA”) of 1976, which regulates, among other
things, the sale of “defense articles” and “defense services” – including weapons and military
equipment – to foreign governments. See 22 U.S.C. § 2751 et seq. Such a sale is initiated by a
foreign government’s request to purchase certain weapons or military equipment from the United
States. The sale cannot proceed under the AECA unless the Executive Branch determines that
the sale “will strengthen the security of the United States and promote world peace.” Am.
Compl. ¶ 4 (quoting 22 U.S.C. § 2753(a)(1)). The AECA also requires that Congress be notified
before the United States enters into any sales agreement. See 22 U.S.C. § 2776(b). The Senate
Committee on Foreign Relations or the House Committee on Foreign Affairs may request
additional information about the proposed sale, including whether the sale would “contribute to
1 The Court has reviewed the following documents in connection with the pending motion: Amended Complaint for Declaratory and Injunctive Relief (“Am. Compl.”) [Dkt. No. 8]; Defendants’ Motion to Dismiss (“Mot.”) [Dkt. No. 10]; Plaintiffs’ Opposition to Defendants’ Motion to Dismiss (“Opp.”) [Dkt. No. 11]; Defendants’ Reply in Support of Their Motion to Dismiss (“Reply”) [Dkt. No. 12]; Defendants’ Notice of Supplemental Authority [Dkt. No. 13]; Plaintiffs’ Supplemental Memorandum in Opposition to Defendants’ Motion to Dismiss (“Pls.’ Supp. Mem.”) [Dkt. No. 20]; and Defendants’ Supplemental Memorandum in Support of Their Motion to Dismiss (“Defs.’ Supp. Mem.”) [Dkt. No. 21].
2 an arms race,” “support international terrorism,” or “increase the possibility of an outbreak or
escalation of conflict.” Id. § 2776(b)(1)(D). Under the AECA, Congress does not need to
affirmatively approve the sale. If Congress enacts a joint resolution prohibiting the proposed
sale, however, the sale may not proceed unless the President vetoes the joint resolution and
Congress fails to override the veto. See id. § 2776(b)(1)(P). If there is no joint resolution
prohibiting the proposed sale within 30 days of notice of the sale to Congress, the Executive
Branch may proceed with the sale. See id.
At issue in this case is the Department of State’s 2020 authorization of the sale of
weapons and military equipment to the UAE. The Amended Complaint alleges that there is a
risk of the UAE using these weapons and military equipment in Yemen, which has been in the
throes of a civil war since 2015, and in Libya, where armed conflict is also ongoing. See Am.
Compl. ¶¶ 22, 31, 32, 44. The UAE joined in March 2015 a Saudi Arabia-led coalition of
countries that have conducted military operations in Yemen. See id. ¶ 22. According to the
Amended Complaint, estimates from the Yemen Data Project show that the coalition “has
conducted more than 22,180 airstrikes on Yemen since the war began.” Id. ¶ 25. In October
2020, the UAE announced that it was ending its military involvement in Yemen. Id. ¶ 30. But
the Amended Complaint states that, as of February 2021, “reports indicate that [the UAE] has
not in fact done so.” Id. In addition, plaintiffs allege that the UAE is active in the conflict in
Libya, including by conducting air and drone strikes. See id. ¶¶ 32, 37. United Nations reports
have found that the UAE has supplied weapons to armed groups in Libya. See id. ¶¶ 32, 33.
On November 10, 2020, Secretary of State Mike Pompeo announced that the
Department of State had notified Congress of the agency’s intent to authorize the UAE’s
proposed purchase of “up to 50 F-35 Lightning II aircraft, valued at $10.4 billion”; “up to 18
3 MQ-9B Unmanned Aerial Systems, valued at $2.97 billion”; and “a package of air-to-air and
air-to-ground munitions, valued at $10 billion.” Am. Compl. ¶ 49. That same day, Congress
received three notifications identifying “proposed Letter(s) of Offer and Acceptance” with the
UAE, which specified that the transaction included aircraft, aircraft engines, missiles, munitions,
and explosives. See id. ¶ 50. On December 9, 2020, Congress voted on resolutions to invalidate
the sale, but those resolutions ultimately failed. See id. ¶ 51. Without a joint resolution from
Congress, the Executive Branch was free to proceed with the sale. See 22 U.S.C.
§ 2776(b)(1)(P).
Plaintiffs allege that the Department of State “failed to make the required
findings” under the AECA and failed to “provide a reasoned explanation for its rushed sale of
sensitive weapons systems to the UAE.” Am. Compl. ¶ 5. Plaintiffs argue that, for this reason,
the Department of State violated the APA, which requires the agency to “provide a reasoned
explanation for its decision, addressing any change in its prior policy and showing a rational
connection between the facts considered and the ultimate conclusion.” Id. ¶ 6. Plaintiffs seek a
declaratory judgment that the Department of State’s authorization of the arms sale to the UAE
was invalid because it was “arbitrary and capricious” under the APA, as well as an injunction
“requiring the Defendants to rescind the authorization [of the arms sale] and refrain from acting
in a manner inconsistent with such a rescission.” Id.
The individual plaintiffs in this case consist of fifteen people who are survivors of
two July 2, 2019 air raids that targeted a detention center for refugees and migrants in Tajoura,
Libya. See Am. Compl. ¶ 13.2 Plaintiffs assert that “independent reporting has linked the attack
2 These individuals are: Aref Mohamed Radwan Hussein, Shaker Ali Ali Shamsan, Abdulhamid Mahmoud Nasr Al-Din, Abdullah Abubaker Ishao, Almeldeen Mohamed Eisa Ahmed, Omar Jumaa Adam, Omar Abdu Osman, Gamar Addin Ebrahim Khamess, Mubarak
4 to the UAE.” Id. At the time of the filing of the Amended Complaint in April 2021, the
individual plaintiffs were housed in detention centers outside of Tripoli, Libya. See id. The
individual plaintiffs contend that they “have already suffered significant harm due to the actions
of the UAE.” Id. ¶ 82. They assert that if the sale of “highly sophisticated weaponry, including
planes and drones capable of repeating the air strike at the detention center” to the UAE proceed,
they will face “an unacceptable risk of harm” from additional air strikes, id., because “there is a
high likelihood that the UAE will transfer some of those weapons to forces in Libya or use the
weapons itself to conduct military activities in Libya.” Id. ¶ 44.
The associational plaintiffs in this case are the Organization of the Families of
Martyrs and Wounded of the Military College (“OFMWMC”) and the Al’Abria’ League for
Families of Martyrs and Injured of Egyptian & Emirati Aggression (the “Al’Abria’ League”).
OFMWMC is an association of families of cadets of the Military College of Tripoli who were
killed or injured on January 4, 2020 by an air attack from a “UAE operated, Chinese
manufactured, drone.” Am. Compl. ¶ 11. According to plaintiffs, “[t]he guided missile killed 34
cadets and injured 26.” Id. The spokesperson for the organization is Othman Salim Benammara,
the father of Muthafir Othman Salim, a cadet who was killed in the attack. See id. The
Al’Abria’ League is an association of families of victims who were killed or injured on
August 18 and 23, 2014 in or near Tripoli, Libya, by air raids carried out by “UAE F16 fighter
jets.” Id. ¶ 12. Plaintiffs allege that five locations in Tripoli were hit, killing twenty-one people
and injuring eighty. See id.
Abdulatif Yusuf Momahed, Motdaser Mohamed Adam Borma, Walid Musaad Saeed Aldubaisi, Adam Ahmad Yahya, Tawfiq Ahmed Albahri, Jaber Yaqoub Jaber Bushara, and Hamed Ahmed Suleiman. Am. Compl. ¶ 13.
5 The organizational plaintiffs in this case are the New York Center for Foreign
Policy Affairs (“NYCFPA”) and Human Rights Solidarity (“HRS”). NYCFPA is a nonprofit
and nonpartisan “policy, research, and educational organization” headquartered in New York
State, with an office in Washington, D.C. Am. Compl. ¶ 9. It is “devoted to conducting in-depth
research and analysis on every aspect of American foreign policy and its impact around the
world” and it “advocate[s] for peace around the world, with a specific focus on bringing an end
to ongoing conflicts in the Middle East, such as the humanitarian disasters in Yemen and Libya.”
Id. HRS is a “non-governmental organization” founded in 1999 by Libyan expatriates living in
Switzerland. Id. ¶ 10. HRS is focused on “the [h]uman [r]ights situation in Libya,” and since its
founding, it has “performed work on national reconciliation and transitional justice” in the
country. Id. According to the Amended Complaint, since the armed attacks in Benghazi and
Tripoli in May 2014, HRS “has been unable to engage in its chosen work, and has had to refocus
its activities and resources on monitoring and reporting violations” of international human rights
law and international humanitarian law. Id.
II. LEGAL STANDARD
Federal courts are courts of limited jurisdiction, possessing only those powers
authorized by the Constitution and an act of Congress. See, e.g., Janko v. Gates, 741 F.3d
136, 139 (D.C. Cir. 2014); Abulhawa v. U.S. Dep’t of the Treasury, 239 F. Supp. 3d 24, 30
(D.D.C. 2017). The plaintiffs bear the burden of establishing that the Court has jurisdiction. See
Walen v. United States, 246 F. Supp. 3d 449, 452 (D.D.C. 2017). In determining whether to
grant a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure, the Court must construe the complaint in plaintiffs’ favor and
6 treat all well-pleaded factual allegations as true. See Attias v. CareFirst, Inc., 865 F.3d 620, 627
(D.C. Cir. 2017). Although the Court must grant plaintiffs the benefit of all reasonable
inferences, it “need not accept factual inferences drawn by plaintiffs if those inferences are not
supported by facts alleged in the complaint,” and the Court need not accept plaintiffs’ legal
conclusions. Disner v. United States, 888 F. Supp. 2d 83, 87 (D.D.C. 2012) (quoting Speelman
v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006)). Finally, in determining whether a
plaintiff has established jurisdiction, the Court may consider materials beyond the pleadings
where appropriate. See Cumis Ins. Soc’y, Inc. v. Clark, 318 F. Supp. 3d 199, 207 (D.D.C. 2018).
B. Standing
“Article III of the Constitution confines the jurisdiction of federal courts to
‘Cases’ and ‘Controversies.’” FDA v. Alliance for Hippocratic Med., 602 U.S. 367, 378 (2024).
To establish standing, “a plaintiff must demonstrate (i) that she has suffered or likely will suffer
an injury in fact, (ii) that the injury likely was caused or will be caused by the defendant, and
(iii) that the injury likely would be redressed by the requested judicial relief.” Id. at 380 (citing
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009); Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-561 (1992)). The alleged injury must be concrete and particularized and
actual or imminent, not conjectural, speculative, or hypothetical. See TransUnion LLC v.
Ramirez, 594 U.S. 413, 423-24 (2021); Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016); Lujan
v. Defenders of Wildlife, 504 U.S. at 560; Worth v. Jackson, 451 F.3d 854, 858 (D.C. Cir. 2006).
As with other motions to dismiss under Rule 12(b)(1), “threadbare recitals of the elements of
standing, supported by mere conclusory statements, do not suffice,” and courts “do not assume
the truth of legal conclusions” nor “accept inferences that are unsupported by facts set out in the
complaint.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (cleaned up). If a plaintiff
7 cannot demonstrate all three requirements for standing, the Court must dismiss the plaintiff’s
lawsuit. Hoffman v. Jeffords, 175 F. Supp. 2d 49, 53 (D.D.C. 2001), aff’d, No. 02-5006, 2002
WL 1364311 (D.C. Cir. May 6, 2002); see Warth v. Seldin, 422 U.S. 490, 502 (1975).
An organization can establish standing by showing either “a cognizable injury to
one or more of its members” – what is called associational standing – or “by showing . . . an
injury to itself” – what is called organizational standing. See Kingman Park Civic Ass’n v.
Bowser, 815 F.3d 36, 39 (D.C. Cir. 2016). An organization seeking to establish associational
standing “must have the ‘indicia of a traditional membership association,’” such as members
who “finance the organization, guide its activities, or select its leadership.” Viasat, Inc. v. FCC,
47 F.4th 769, 780-81 (D.C. Cir. 2022) (quoting Sorenson Commc’ns v. FCC, 897 F.3d 214, 225
(D.C. Cir. 2018)). When an organization seeks associational standing to litigate on behalf of its
members, it must satisfy the standard established in Hunt v. Washington State Apple Advertising
Commission, 432 U.S. 333 (1977). See Viasat, Inc. v. FCC, 47 F.4th at 781. Under Hunt, an
organization has associational standing only if (1) at least one of its members “would otherwise
have standing to sue in [the member’s] own right”; (2) “the interests it seeks to protect are
germane to the organization’s purpose”; and (3) “neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State
Apple Advert. Comm’n, 432 U.S. at 343; accord Nat’l Ass’n of Home Builders v. EPA, 667 F.3d
6, 12 (D.C. Cir. 2011).
A plaintiff seeking to establish organizational standing “sue[s] on its own behalf
‘to vindicate whatever rights and immunities the [organization] itself may enjoy.’” Common
Cause v. FEC, 108 F.3d 413, 417 (D.C. Cir. 1997) (quoting Warth v. Seldin, 422 U.S. at 511).
“To determine organizational standing, [courts] ‘conduct the same inquiry as in the case of an
8 individual.’” Viasat, Inc. v. FCC, 47 F.4th at 780-81 (quoting Havens Realty Corp. v. Coleman,
455 U.S. 363, 378 (1982)); accord FDA v. Alliance for Hippocratic Med., 602 U.S. at 394-95. In
other words, the organization must show that it suffered a concrete, imminent injury traceable to
the defendant that is redressable by the judicial relief it requests. Viasat, Inc. v. FCC, 47 F.4th
at 781; see Havens Realty Corp. v. Coleman, 455 U.S. at 378-80; Equal Rights Ctr. v. Post
Props., Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011). “A mere ‘setback to the organization’s
abstract social interests’ is not enough.” Viasat, Inc. v. FCC, 47 F.4th at 781 (quoting Havens
Realty Corp. v. Coleman, 455 U.S. at 378). Rather, the organization “must prove that its
‘discrete programmatic concerns are being directly and adversely affected.’” Id. (quoting People
for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087, 1093 (D.C. Cir. 2015)). Under
the D.C. Circuit’s two-part test for analyzing whether an organization suffered an injury, a court
must determine “whether the agency’s action or omission to act ‘injured the [organization’s]
interest’” and “whether the organization ‘used its resources to counteract that harm.’” People for
the Ethical Treatment of Animals v. USDA, 797 F.3d at 1094 (alteration in original) (quoting
Equal Rights Ctr. v. Post Props., Inc., 633 F.3d at 1140).
For all three types of plaintiffs – individual, associational, and organizational –
“[s]tanding is ‘substantially more difficult to establish’ where the parties invoking federal
jurisdiction are not ‘the object of the government action or inaction’ they challenge.” Public
Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1289 (D.C. Cir. 2007)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. at 562); see FDA v. Alliance for Hippocratic
Med., 602 U.S. at 382-83. In addition, “claims for declaratory or injunctive relief carry ‘a
significantly more rigorous burden to establish standing.’” Matthews v. D.C., 507 F. Supp. 3d
9 203, 208 (D.D.C. 2020) (quoting Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235, 240 (D.C.
Cir. 2015)).
III. DISCUSSION
Defendants argue that the Court lacks jurisdiction to adjudicate plaintiffs’ claims
because none of the plaintiffs have Article III standing to challenge the Department of State’s
authorization of the arms sale to the UAE. See Mot. at 9. For the following reasons, the Court
agrees with defendants that none of the individual, associational, or organizational plaintiffs have
Article III standing.
A. Individual Plaintiffs
1. Injury
Defendants argue that the individual plaintiffs have not demonstrated that they
will suffer from an imminent injury as a result of the United States government’s actions. See
Mot. at 16. In the Amended Complaint, the individual plaintiffs allege that while residing at a
refugee detention center in Libya in July 2019, they were attacked by the UAE with a U.S.-made
F-16 aircraft. See Am. Compl. ¶¶ 13, 40, 82. Defendants contend that the individual plaintiffs
have not established standing for prospective relief because these allegations fail to demonstrate
more than a “‘possible future injury’ allegedly caused by the United States.” Mot. at 16 (quoting
Whitmore v. Arkansas, 495 U.S. 158 (1990)). Plaintiffs respond that their allegations are “based
upon evidence of how the UAE has already acted and continues to act.” Opp. at 11 (citing Am.
Compl. ¶¶ 22-44). They argue that “[i]t is not ‘speculation’ to conclude that a party who has
used the weapons at its disposal to participate in attacks that harmed civilians and has sent
weapons to combatants in violation of an arms embargo will continue that course of action.” Id.
at 12. According to plaintiffs, the UAE and Libya “are merely continuing their existing conduct,
10 and the actions the United States intends to take will enable the UAE to continue a course that
threatens injury to plaintiffs.” Id.
The Court concludes that the individual plaintiffs have not demonstrated that they
will suffer from an imminent injury. When “a plaintiff ‘seeks prospective declaratory and
injunctive relief, . . . he may not rest on past injury,’” but rather “must rely on concrete and
particular current or future injuries-in-fact to establish standing.” Williams v. Lew, 819 F.3d
466, 472 (D.C. Cir. 2016) (quoting Arpaio v. Obama, 797 F.3d at 19); see Murthy v. Missouri,
219 L. Ed. 2d 604, 617-18 (U.S. 2024). A future injury must be “‘certainly impending,’ or there
[must be] a ‘substantial risk’ that the harm will occur.” Susan B. Anthony List v. Driehaus,
573 U.S. 149, 158 (2014) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401, 415 n.5
(2013)). The mere possibility of injury – even where an “objectively reasonable likelihood” of
injury exists – is insufficient. Clapper v. Amnesty Int’l USA, 568 U.S. at 410. Rather, “the
constitutional requirement of imminence . . . necessarily compels a very strict understanding of
what increases in risk and overall risk levels can count as substantial.” Food & Water Watch,
Inc. v. Vilsack, 808 F.3d 905, 915 (D.C. Cir. 2015) (alteration in original) (quoting Public
Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d at 1296). To establish
imminence, a plaintiff must show both “(i) a substantially increased risk of harm and (ii) a
substantial probability of harm with that increase taken into account.” Public Citizen, Inc. v.
Nat’l Highway Traffic Safety Admin., 489 F.3d at 1295; accord Food & Water Watch, Inc. v.
Vilsack, 808 F.3d at 914.
Here, the individual plaintiffs’ allegations fail to meet either prong of the D.C.
Circuit’s test, showing neither substantial probability of harm nor substantially increased risk of
harm. While the Amended Complaint states that there is an “unacceptable risk” of harm from a
11 future UAE airstrike, Am. Compl. ¶ 82, plaintiffs do not allege any facts that demonstrate that
this risk – let alone that the increase in risk – is “substantial.” See Public Citizen, Inc. v. Nat’l
Highway Traffic Safety Admin., 489 F.3d at 1295 (emphasis removed). Instead, they attempt to
bootstrap this showing through two facts, see Opp. at 11: first, that, in the past, they were
residents of a refugee detention center targeted by UAE airstrikes, Am. Compl. ¶ 13; and second,
that they presently live in “a refugee housing facility that is in all material respects identical to
their previous facility targeted and bombed by the UAE.” Opp. at 13; see Am. Compl. ¶ 82.
“[B]ecause the plaintiffs are seeking only forward-looking relief, the past injuries are relevant
only for their predictive value.” Murthy v. Missouri, 219 L. Ed. 2d at 617. But the fact that the
individual plaintiffs were attacked by the UAE once does little to show that they will be attacked
again.
Missing from plaintiffs’ allegations is any reason to believe that the UAE is
specifically targeting refugee detention centers or that UAE airstrikes hit detention centers at a
high enough frequency that the individual plaintiffs are at substantial risk of further attacks.
Plaintiffs’ own analogy is instructive. “If Party A is throwing rocks at Party B and the
government provides Party A with more rocks,” they argue, “it is not speculative to conclude
that Party A will use those rocks to continue attacking Party B.” Opp. at 12. Maybe so. But if
Party A once threw rocks at a house where Party B lived with numerous others, and Party B then
moves to a different but similar house, it is speculative to conclude that Party A will imminently
throw rocks at the house where Party B now resides. This is closer to the situation the individual
plaintiffs have alleged, and does not show future injury-in-fact.
Also instructive are the facts of the Supreme Court case in which the Court
articulated the modern standard for likelihood of future injury, Clapper v. Amnesty International
12 USA, 568 U.S. 398. There, a group of attorneys, journalists, and others alleged that they were
injured because their sensitive communications with individuals located abroad were likely to be
unlawfully surveilled by the United States government. Id. at 406. The plaintiffs’ foreign
contacts included those the United States believed to be associated with terrorism, those located
in areas that were a focus of the government’s counterterrorism and diplomatic efforts, and those
who engaged in activism opposing foreign governments supported by the United States. Id. But
the plaintiffs could not carry their burden to show a substantial risk that their communications
would be intercepted because they had “set forth no specific facts demonstrating that the
communications of their foreign contacts will be targeted.” Id. at 412; see also TransUnion LLC
v. Ramirez, 594 U.S. at 424 (“[T]he plaintiff’s injury in fact [must] be ‘concrete’ – that is, ‘real,
and not abstract.’” (quoting Spokeo, Inc. v. Robins, 578 U.S. at 340)). Here, too, the individual
plaintiffs have not shown a substantial risk that they will be subject to future attacks by the UAE
because they have set forth no specific facts demonstrating that the detention centers where they
reside will be targeted in the future.
In addition, the D.C. Circuit has “repeatedly held that litigants cannot establish an
Article III injury based on the independent actions of some third party not before [the] court.”
Turlock Irrigation Dist. v. FERC, 786 F.3d 18, 25 (D.C. Cir. 2015); see Murthy v. Missouri,
219 L. Ed. 2d at 616; see also Indigenous People of Biafra v. Blinken, 639 F. Supp. 3d 79, 85
(D.D.C. 2022) (rejecting theory of future harm that required assumption that Nigeria would use
the military aircrafts sold to it by the United States to attack plaintiffs). “This is because
‘predictions of future events (especially future actions taken by third parties)’ are too speculative
to support a claim of standing.” Turlock Irrigation Dist. v. FERC, 786 F.3d at 25 (quoting
United Transp. Union v. ICC, 891 F.2d 908, 912 (D.C. Cir. 1989)). Here, the individual
13 plaintiffs’ alleged injury depends on the decisions and actions of the UAE. For all of these
reasons, their allegations are insufficient to show that the individual plaintiffs will suffer the
requisite injury-in-fact.
2. Causation
Defendants argue that the individual plaintiffs have failed to demonstrate that the
State Department’s action will cause their alleged future injury. See Mot. at 11. Defendants
assert that “the injuries alleged are the direct result of actions alleged to have been taken by the
UAE, not the United States Government.” Id. Defendants argue that it will be up to the UAE to
decide how to use the weapons and other military equipment approved for sale, and that the
individual plaintiffs are asking the Court “to speculate on how the UAE may use the procured
defense articles.” Id. at 12. In response, plaintiffs assert that the U.S. government’s actions “do
not have to be the sole cause of the [individual plaintiffs’] potential future harm.” Opp. at 14.
They argue that the UAE has already injured the individual plaintiffs, and “the massive quantity
of sophisticated weapons to be sent to the UAE will enable it to continue and even increase its
activities” in Yemen and Libya. Id.
The Court agrees with defendants. “It is well established that causation, or
‘traceability,’ examines whether it is substantially probable that the challenged acts of the
defendant, not of some absent third party, will cause the particularized injury of the plaintiff.”
Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 176 (D.C. Cir. 2012) (cleaned up). Courts are
“reluctant to endorse standing theories that require guesswork as to how independent
decisionmakers will exercise their judgment.” Murthy v. Missouri, 219 L. Ed. 2d at 616 (quoting
Clapper v. Amnesty Int’l USA, 568 U.S. at 413). Instead, “to establish causation, the plaintiff
must show a predictable chain of events leading from the government action to the asserted
14 injury – in other words, that the government action has caused or likely will cause injury in fact
to the plaintiff.” FDA v. Alliance for Hippocratic Med., 602 U.S. at 385. Where, as here, “the
alleged injury flows not directly from the challenged agency action, but rather from independent
actions of third parties,” a plaintiff must demonstrate that “the agency action is at least a
substantial factor motivating the third parties’ actions.” Am. Freedom L. Ctr. v. Obama, 821
F.3d 44, 49 (D.C. Cir. 2016) (quoting Tozzi v. Dep’t of Health & Human Servs., 271 F.3d 301,
308 (D.C. Cir. 2001)).
The individual plaintiffs’ allegations fail to show that the United States’ arms sale
to the UAE is a substantial factor motivating potential future UAE airstrikes on refugee centers
in Libya. See Mot. at 12-13. Their alleged injury “depends on whether the conflict in Libya
remains ongoing when the defense articles arrive, and, if so, that these Plaintiffs continue to live
in detention centers, and that UAE officials, who are not before the Court, decide to use the
procured defense articles in Libya or transfer them to Libyan forces . . . and the UAE or Libyan
forces attack the detention center using the defense articles procured from the sales at issue in
this case to cause death or bodily injury to the individual plaintiffs.” Id. at 18. Only after this
series of events – dependent on the decisions of foreign nations – would the individual plaintiffs
face injury. The Court concludes that this “highly attenuated chain of possibilities” is not
sufficient to establish causation. Clapper v. Amnesty Int’l USA, 568 U.S. at 410; see Indigenous
People of Biafra v. Blinken, 639 F. Supp. 3d at 86 (plaintiffs’ alleged injury was not traceable to
arms sale because theory of causation required assumption that Nigerian government would use
sold arms to conduct airstrikes against plaintiffs).
15 3. Redressability
Defendants argue that the individual plaintiffs’ alleged injuries are not redressable
through the declaratory and injunctive relief sought by the plaintiffs. See Mot. at 14. They
contend that “[e]ven if this Court were to order Defendants to terminate the authorization for the
sales of defense articles to the UAE,” it would be speculation “to conclude that individuals and
governments half-a-world-away would change their behavior in response to an order from this
Court against Defendants, let alone change their behavior in a way that had any effect on the
Individual Plaintiffs.” Id. Plaintiffs respond that “we already have evidence regarding how the
UAE has acted and continues to act.” Opp. at 13.
The Court agrees with defendants. Redressability requires that it “be ‘likely,’ as
opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’”
Lujan v. Defenders of Wildlife, 504 U.S. at 561 (quoting Simon v. E. Kentucky Welfare Rts.
Org., 426 U.S. 26, 38, 43 (1976)). “[I]t is a bedrock principle that a federal court cannot redress
‘injury that results from the independent action of some third party not before the court.’”
Murthy v. Missouri, 219 L. Ed. 2d at 616 (quoting Simon v. E. Kentucky Welfare Rts. Org.,
426 U.S. at 41-42). Here, plaintiffs are seeking an injunction “requiring the Defendants to
rescind the authorization” of the arms sale. Am. Compl. ¶ 6. But they have not shown that this
relief would reduce their alleged risk of future attacks by the UAE. For one, they have not
alleged that the UAE’s ability to conduct airstrikes depends on the arms the United States agreed
to sell to them through the challenged authorization. And even if it did, it is not at all clear
whether rescinding the authorization would have any effect on the availability of the arms to the
UAE. If the arms are already in the UAE’s possession, then redressability would depend on
whether the UAE decides to return the arms to the United States. The individual plaintiffs
16 therefore have failed to establish the redressability prong of Article III standing. See Indigenous
People of Biafra v. Blinken, 639 F. Supp. 3d at 87 (plaintiffs’ alleged injury was not redressable
because military aircrafts already in Nigeria’s possession only could be recovered if Nigeria
agreed to return them); Bernstein v. Kerry, 962 F. Supp. 2d 122, 130 (D.D.C. 2013) (plaintiffs
residing in Israel, some of whom had been previously injured by terrorist attacks in Jerusalem,
lacked standing because they could not show that the requested reduction in aid to the Palestinian
Authority would reduce the threat of terrorism).
B. Associational Plaintiffs
The two associational plaintiffs – the Al’Abria’ League and OFMWMC – raise
allegations similar to those of the individual plaintiffs. Both associational plaintiffs allege that
their “members . . . have suffered direct harm from the activities of the UAE in Libya” and
“remain at risk of additional UAE strikes if the United States provides the UAE with fighter
planes and drones with which to carry out its military activities.” Am. Compl. ¶¶ 80, 81. To
establish associational standing, an organization must demonstrate that “(a) its members would
otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane
to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.” Hunt v. Wash. Apple Advert. Comm’n,
432 U.S. at 343. For the following reasons, the Court concludes that the associational plaintiffs
fail to establish the first prong of this test. The Court does not reach a conclusion regarding the
second or third prong.
Defendants argue that the associational plaintiffs have not adequately alleged that
any of their members would have standing to sue in their own right. Mot. at 22-23. The Court
agrees. OFMWMC is comprised of the families of cadets who were killed or injured in a
17 particular UAE airstrike. Am. Comp. ¶ 11. The Al’Abria’ League is comprised of the families
of victims of a different UAE airstrike. Id. ¶ 12. The associational plaintiffs assert that their
members “remain at risk of additional UAE strikes if the United States provides the UAE with
fighter planes and drones with which to carry out its military activities.” Id. ¶¶ 80, 81. But as
with the individual plaintiffs, see supra Section III.A, these bare assertions of risk are insufficient
to show injury-in-fact, causation, or redressability. If anything, the risks to the members of the
associational plaintiffs are even more speculative and attenuated than those to the individual
plaintiffs because none of the members were themselves victims of UAE airstrikes.
Defendants also argue that the associational plaintiffs have failed the first prong
of the Hunt test because they have not demonstrated that they have members on whose behalf
they can invoke associational standing. See Mot. at 20-22; Reply at 6-7. Plaintiffs identify one
member of OFMWMC by name – Othman Salim Benammara, the spokesperson for the
organization. See Am. Comp. ¶ 11. Plaintiffs do not identify any members of the Al’Abria’
League by name. Id. ¶ 12; see Mot. at 21. Defendants assert that plaintiffs’ failure to
specifically identify a member of Al’Abria’ League, or to allege more facts about Mr.
Benammara’s relationship to OFMWMC, are fatal to their claims of associational standing. Mot.
at 20-22. Plaintiffs respond that where, as here, an association’s membership is “small and
narrowly defined” and “every member of the [association] is injured by the complained of act or
omission,” establishing associational standing does not require a plaintiff to identify specific
injured members by name. Opp. at 16.
Defendants really are making two separate arguments: first, that the associational
plaintiffs have not sufficiently alleged that Al’Abria’ League and OFMWMC are membership
organizations capable of invoking associational standing; and second, that they have failed to
18 show associational standing because they did not sufficiently identify at least one of their
individual members. The Court agrees on the first point. “To assert associational standing, an
organization must have the ‘indicia of a traditional membership association.’” Viasat, Inc. v.
FCC, 47 F.4th at 781 (quoting Sorenson Commc’ns v. FCC, 897 F.3d at 225). The associational
plaintiffs in this case “offer nothing to suggest that they are in fact membership organizations.”
Def. Supp. Mem. at 4. They do not allege that their members play a financial or operational role,
and “a bare assertion of membership” is not enough. Viasat, Inc. v. FCC, 47 F.4th at 782. The
associational plaintiffs therefore have not shown that they are the type of organizations capable
of asserting claims on behalf of their members.
Evaluating the second argument is more complicated. “[A]t least three courts in
this district have required an associational plaintiff to identify an injured member by name at the
motion to dismiss stage.” Conference of State Bank Supervisors v. Office of Comptroller of
Currency, 313 F. Supp. 3d 285, 298-99 (D.D.C. 2018) (collecting cases). But this view is not
unanimous. Other courts have rejected challenges to associational standing even though
plaintiffs did not specifically identify members in their complaints. See Ranchers-Cattlemen
Action Legal Fund, United Stockgrowers of Am. v. USDA, 573 F. Supp. 3d 324, 335-36 (D.D.C.
2021); Ass’n of Am. Physicians & Surgeons, Inc. v. Sebelius, 901 F. Supp. 2d 19, 31 (D.D.C.
2012), aff’d, 46 F.3d 468 (D.C. Cir. 2014). As Judge Moss concluded in one case: “Since
[defendants] ha[ve] not contested the factual basis for the Court’s standing in its motion to
dismiss, the Court must take [plaintiffs’] allegations to be true and must also ‘presum[e] that
general allegations embrace those specific facts that are necessary to support the claim.’”
Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of Am. v. USDA, 573 F. Supp. 3d
at 336 (quoting Lujan v. Defenders of Wildlife, 504 U.S. at 561 (alteration in original)). Either
19 way, the associational plaintiffs lack Article III standing for the independent reasons that they
have not sufficiently alleged that they are membership organizations, and that they have not
demonstrated that any of their alleged members would have standing to sue in their own right.
C. Organizational Plaintiffs
To establish organizational standing, an organization must demonstrate that it
itself suffered or will imminently suffer a concrete injury caused by the challenged action that is
redressable by the relief sought. See Viasat, Inc. v. FCC, 47 F.4th at 781; Nat’l Ass’n of Home
Builders v. EPA, 667 F.3d at 11. For an organizational plaintiff to establish injury-in-fact, it
must meet a two-part test set forth by the D.C. Circuit in Food & Water Watch, Inc. v. Vilsack,
808 F.3d 905. First, the defendant’s action must have “injured the [organization’s] interest” such
that it “perceptibly impaired the organization’s ability to provide services.” Id. at 919 (alteration
in original) (quoting Turlock Irrigation Dist. v. FERC, 786 F.3d at 24). “[T]he Court’s task is to
differentiate between ‘organizations that allege that their activities have been impeded’ – which
suffices for standing purposes – ‘from those that merely allege that their mission has been
compromised’ – which does not.” Citizens for Resp. & Ethics in Wash. v. U.S. Office of Special
Couns., 480 F. Supp. 3d 118, 127-28 (D.D.C. 2020) (quoting Abigail All. for Better Access to
Developmental Drugs v. Eschenbach, 469 F.3d 129, 133 (D.C. Cir. 2006)). Second, the
organization must “plausibly allege that it ‘used its resources to counteract [the alleged] harm.’”
Texas Low Income Hous. Info. Serv. v. Carson, 427 F. Supp. 3d 43, 53 (D.D.C. 2019) (alteration
20 in original) (quoting Food & Water Watch, Inc. v. Vilsack, 808 F.3d at 919). For the following
reasons, both NYCFPA and HRS fail to establish an Article III injury.3
1. NYCFPA
Defendants argue that NYCFPA has failed to establish either prong of the D.C.
Circuit’s test. See Mot. at 29. With respect to the first prong, defendants contend that
NYCFPA’s allegations do not demonstrate that the State Department’s arms sale authorization
“perceptibly impaired [its] ability to provide services.” Id. (alteration in original) (quoting
Turlock Irrigation Dist. v. FERC, 786 F.3d at 24). In the Amended Complaint, NYCFPA alleges
that the State Department’s actions have required it to “address the potential impact [of the
authorization] on its mission” and to “expend significant resources tracking and countering the
effects” of the arms sale authorization. Am. Compl. ¶ 78. Defendants argue that these efforts
amount to “advocacy work” that cannot give rise to Article III injury, Mot. at 30, and that the
allegations “merely show a shift in [NYCFPA’s] research focus,” rather than an “impairment of
NYCFPA’s daily operations.” Id. at 29. In response, plaintiffs emphasize that their Amended
Complaint states that NYCFPA has been “countering the effects” of the arms sale. Opp. at 19
(quoting Am. Compl. ¶ 78).
The Court agrees with defendants that NYCFPA’s “generic recitation of interests”
fails the first prong of the D.C. Circuit’s injury-in-fact test. Mot. at 31. NYCFPA’s allegations
that it has had to track and address the effects of the authorization do not establish that its daily
operations are inhibited “in a concrete way.” Citizens for Resp. & Ethics in Wash. v. U.S. Office
3 For the reasons explained with regard to the individual plaintiffs, see supra Sections III.A.2, III.A.3, NYCFPA and HRS have also failed to establish causation and redressability.
21 of Special Couns., 480 F. Supp. 3d at 127. “[A]n organization that has not suffered a concrete
injury caused by a defendant’s action cannot spend its way into standing simply by expending
money to gather information and advocate against the defendant’s action.” FDA v. Alliance for
Hippocratic Med., 602 U.S. at 370. As for NYCFPA’s allegation that it has “counter[ed]” the
effects of the arms sale, Am. Compl. ¶ 78, this assertion does little more than repeat the relevant
legal standard that a plaintiff organization must have “used its resources to counteract [the
alleged] harm.” Texas Low Income Hous. Info. Serv. v. Carson, 427 F. Supp. 3d at 53
(alteration in original) (quoting Food & Water Watch, Inc. v. Vilsack, 808 F.3d at 919). Such
bare repetition cannot suffice to show Article III injury. See Reply at 8. At best, NYCFPA has
shown “a setback to the organization’s abstract social interest,” which does not establish injury-
in-fact. Havens Realty Corp. v. Coleman, 455 U.S. at 379; see Food & Water Watch, Inc. v.
Vilsack, 808 F.3d at 919 (“[F]rustration of an organization’s objective ‘is the type of abstract
concern that does not impart standing.’” (quoting Nat’l Taxpayers Union v. United States,
68 F.3d at 1433)).
With respect to the second prong of the test, defendants argue that NYCFPA has
not demonstrated or sufficiently alleged that it has had to divert resources to respond to the State
Department’s authorization in the form of “‘operational costs beyond those normally expended’
to carry out its advocacy mission.” Nat’l Ass’n of Home Builders v. EPA, 667 F.3d at 12
(quoting Nat’l Taxpayers Union v. United States, 68 F.3d at 1434); see Mot. at 32. In the
Amended Complaint, NYCFPA alleges that it has had to “divert resources away from its
research of other essential topics in order to address the potential impact of the Arms Sale on its
mission and to try to understand the justification for the Arms Sale.” Am. Compl. ¶ 78.
NYCFPA also asserts that it “must continue to divert the organization’s resources from its
22 broader research goals, so long as the Arms Sale remains authorized.” Id. But as with
NYCFPA’s allegations corresponding to the first prong of the test, these statements provide little
information beyond the relevant legal standard. In addition, they do not establish that the alleged
expenditures were abnormal, as is required to show injury to an organization. See Ranchers-
Cattlemen Action Legal Fund, United Stockgrowers of Am. v. USDA, 573 F. Supp. 3d
at 342-44; Texas Low Income Hous. Info. Serv. v. Carson, 427 F. Supp. 3d at 54-56. As
defendants point out, NYCFPA’s efforts to research the effects of the arms sale authorization
“fall[] neatly within the core set of activities it has long performed.” Citizens for Resp. & Ethics
in Wash. v. U.S. Office of Special Couns., 480 F. Supp. 3d at 133 (quoting Int’l Acad. of Oral
Med. & Toxicology v. FDA, 195 F. Supp. 3d at 258). The Court agrees with defendants that
NYCFPA has failed to satisfy the second prong of the test.
2. HRS
Defendants argue that HRS also has failed to satisfy either prong of the D.C.
Circuit’s injury-in-fact test for organizations. See Mot. at 26. In the Amended Complaint, HRS
alleges that the authorization of the arms sale to the UAE “will permit the UAE to continue or
even expand its activities” in Libya, which would continue to impede HRS’s ability to “work on
national reconciliation and transitional justice.” Am. Compl. ¶¶ 10, 79. Defendants contend that
HRS has not explained how its current operations are impeded by the arms sale authorization.
See Mot. at 26. Plaintiffs respond that no such showing is necessary. See Opp. at 18-19.
Plaintiffs are incorrect. Without allegations that demonstrate an impediment to its current
operations, HRS cannot show how the State Department’s actions “‘perceptibly impaired’ [its]
ability to provide services.” Turlock Irrigation Dist. v. FERC, 786 F.3d at 24 (quoting Equal
Rights Ctr. v. Post Props., Inc., 633 F.3d at 1138-39). HRS acknowledges that since 2014, it has