N.Y. Ctr. for Foreign Policy Affairs v. United States Dep't of State

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NEW YORK CENTER FOR FOREIGN POLICY AFFAIRS, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, and ANTONY BLINKEN, in his official capacity as Secretary of the Department of State, Defendants.

Civil Action No. 20-3847 (PLF)

United States District Court, District of Columbia

July 12, 2024

OPINION

PAUL L. FRIEDMAN UNITED STATES DISTRICT JUDGE

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 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 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 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.

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...