Fryshman v. U.S. Comm'n for the Pres. of America's Heritage Abroad

422 F.Supp.3d 1

Bernard FRYSHMAN, PhD et al., Plaintiffs,

v.UNITED STATES COMMISSION FOR the PRESERVATION OF AMERICA’S HERITAGE ABROAD, Defendant.

Case No. 18-cv-02632 (APM)

United States District Court, District of Columbia.

Signed October 22, 2019

Gregory A. Beck, Greg Beck Law Office, Washington, DC, for Plaintiffs.

Christopher Charles Hair, Damon William Taaffe, Doris Denise Coles-Huff, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

Amit P. Mehta, United States District Court Judge

I. INTRODUCTION

Plaintiffs in this case, Dr. Bernard Fryshman and Mr. Boruch Pines, seek to compel the United States Commission for the Preservation of America’s Heritage Abroad ("Commission") to prevent the Lithuanian government from building a convention center and concert hall on a historic Jewish cemetery located in Lithuania’s capital, Vilnius. The Commission has moved to dismiss the case for lack of standing and failure to state a claim under the Administrative Procedure Act. In the alternative, the Commission asserts it is entitled to summary judgment on Plaintiffs' claims.

The court concludes that Plaintiffs lack standing because they have not plausibly shown that their injuries are caused by the Commission’s inaction, or that a favorable decision is likely to redress their harms. In addition, and for the sake of comprehensiveness, the court further holds that Plaintiffs have failed to identify a "discrete agency action" that the Commission is "required to take" sufficient to compel agency action under the Administrative Procedure Act. Because the court grants the Commission’s Motion to Dismiss, it does not reach the Commission’s alternate Motion for Summary Judgment.

II. BACKGROUND

A. The Commission

Observing that the "fabric of a society is strengthened by visible reminders of the historical roots of the society," Congress established the Commission in 1985 to "encourage the preservation and protection of the cemeteries, monuments, and historic buildings associated with the foreign heritage of United States citizens." Pub. L. 99–83, § 1303(a), 99 Stat. 190, 280 (1985) (codified at 54 U.S.C. § 312301 et seq. ). The Commission consists of 21 members appointed by the President of the United States. 54 U.S.C. § 31203(b). It has three duties:

(1) [I]dentify and publish a list of those cemeteries, monuments, and historic buildings located abroad which are associated with the foreign heritage of United States citizens from eastern and central Europe, particularly those cemeteries, monuments, and buildings which are in danger of deterioration or destruction;

(2) [E]ncourage the preservation and protection of such cemeteries, monuments, and historic buildings by obtaining, in cooperation with the Department of State, assurances from foreign governments that the cemeteries, monuments, and buildings will be preserved and protected; and

(3) [P]repare and disseminate reports on the condition of and the progress toward preserving and protecting such cemeteries, monuments, and historic buildings.

Id. § 312304.

B. The Šnipiškes Cemetery

The cemetery that is the subject of this action is located in the Šnipiškes neighborhood of Vilnius. The cemetery was established in the fifteenth century and holds the remains of thousands of Lithuanian Jews. Compl., ECF No. 1, ¶ 11 [hereinafter Compl.]. The Nazis seized the cemetery during World War II. Later, it came under the control of the Soviet Union, which removed gravestones and erected a sports hall on the grounds. Compl. ¶ 12.

In 2015, Lithuania announced plans to develop the currently abandoned sports hall into a concert hall and convention center. Compl. ¶ 15. Lithuania made this announcement despite the fact that it had executed an agreement with the Commission in 2002—titled Agreement on the Protection and Preservation of Certain Cultural Properties between the United States and Lithuania [hereinafter the 2002 Agreement]—in which it committed to "take appropriate steps to protect and preserve" cemeteries and other culturally significant sites. Compl. ¶ 13.

According to the Commission, it has taken multiple actions to secure preservation of the Šnipiškes cemetery. See Gov't Mem. in Supp. of Mot. to Dismiss or Summ. J., ECF No. 8, at 2–3 [hereinafter Gov't Mot.]. Namely, in January 2018, Commission Chairman Paul Packer met with the Lithuanian Ambassador to the United States to discuss the Commission’s opposition to the cemetery’s development. See Gov't Mot., Decl. of Paul Packer, ECF No. 8-1, ¶ 7 [hereinafter Packer Decl.]. Mr. Packer also made several visits to the Šnipiškes cemetery during which he met with the Mayor of Vilnius and other local officials and worked with them to develop plans to preserve and commemorate the site. Packer Decl. ¶¶ 8–9, 12. Mr. Packer then sent a letter to the Mayor of Vilnius in August 2018, which memorialized the commitments the City had made to protect the site. Id. ¶ 10; see also id. , Gov't Exhibits, ECF No. 9-2, at B [hereinafter Gov't Ex.]. The Mayor responded in a letter dated September 27, 2018, affirming the City’s commitment to preserving the Šnipiškes cemetery but clarifying that the sports hall was under the jurisdiction of a Lithuanian government institution, not the City of Vilnius. See Gov't Ex. D. Accordingly, the Mayor suggested that various preservation measures the Commission had requested—including the recovery of human remains, containment of the new development within the existing confines of the old sports hall, and a prohibition on plumbing and electrical work requiring excavation—were beyond the City’s control. Id.

Plaintiffs do not dispute the occurrence of any of these actions taken by the Commission, see Pls.' Mem. of P&A in Opp'n to Gov't Mot., ECF No. 12 [hereinafter Opp'n Mem.], at 14–17, but they contend that because the development of the sports hall falls under the national Lithuanian government’s jurisdiction, the "Commission and Vilnius [have done] nothing to protect the cemetery from the impending desecration," id. at 16. To the contrary, Plaintiffs assert, the Commission has "remained publicly silent about the [cemetery’s] development plans, without so much as sending a letter to Lithuania’s government opposing the project," id. at 2; see also Compl. ¶ 17, and its "silence has been interpreted by Lithuania as the assent of the United States to those plans," Compl. ¶ 17. Unless the Commission "immediately take[s] steps to protect the cemetery," Plaintiffs fear that "construction on the cemetery grounds is likely to begin imminently." Id. ¶ 18.

C. Plaintiffs

Mr. Fryshman is an orthodox Jew and executive vice president of the Association of Advanced Rabbinical and Talmudic Schools. Id. ¶ 3. He believes that a Jewish cemetery’s land is sacred and owned communally by all Jewish people, and that to disturb the remains of the dead is a form of sacrilege. Id. For Mr. Pines, the development of the Šnipiškes cemetery is personal; he is a descendant of Jews buried in the cemetery, and he is deeply offended by the planned development. Id. ¶ 4.

D. Procedural History

Plaintiffs filed the present Complaint on November 15, 2018. They contend that the Commission’s "failure to take steps to preserve and protect the Jewish cemetery in Vilnius" violates the Commission’s duty to " ‘obtain[ ] ... assurances from foreign governments’ that sites like the [Šnipiškes] cemetery are preserved and protected." Compl. ¶ 20 (quoting 54 U.S.C. § 312304(a)(2) ). Plaintiffs seek a court order (1) declaring that the Commission’s "failure to act" violates the Administrative Procedure Act ("APA") and the agency’s organic statute, and (2) compelling the agency to "immediately take reasonable steps to obtain the assurances that the law requires." Id. at 7.

On February 25, 2019, the Commission moved to dismiss the case under Federal Rule of Civil Procedure ("Rule") 12(b)(1) for lack of standing and Rule 12(b)(6) for failure to state a claim under the APA. Gov't Mot. at 1. In the alternative, the Commission seeks summary judgment on the ground that it has fulfilled its statutory duties with respect to the cemetery. Id.

III. LEGAL STANDARD

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility" that the defendant has acted unlawfully and that that unlawful action—or inaction as the case may be—has injured the plaintiff in such a way that can be redressed by a favorable decision of the court. Id. at 678, 129 S.Ct. 1937. At the motion to dismiss stage, the court must accept as true Plaintiffs' well-pleaded factual contentions and draw all reasonable inferences therefrom, but it need not accept thread-bare recitals of the elements of standing or legal conclusions couched as factual averments. See Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015).

IV. DISCUSSION

A. Plaintiffs Lack Standing

The court begins, as it must, with Plaintiffs' standing. See West v. Lynch , 845 F.3d 1228, 1230 (D.C. Cir. 2017) ("The Constitution limits [the court’s] ‘judicial Power’ to ‘Cases’ and ‘Controversies,’ and there is no justiciable case or controversy unless the plaintiff has standing." (quoting U.S. Const. art. III, § 2)). A plaintiff in federal court bears the burden of showing that she meets the "irreducible constitutional minimum" of Article III standing: (1) injury in fact, (2) causation, and (3) redressability. Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To establish standing at the motion to dismiss stage, the plaintiff "must state a plausible claim that [she has] suffered an injury in fact fairly...