Faktor v. United States
| Docket Number | Civil Action No. 20-263 (CKK) |
| Decision Date | 10 March 2022 |
| Citation | 590 F.Supp.3d 287 |
| Parties | Solange FAKTOR, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. District Court — District of Columbia |
Harriet Tamen, Pro Hac Vice, Stephen T. Rodd, Pro Hac Vice, Abbey Gardy, L.L.P., New York, NY, Marc Eric Miller, Elisabeth T. Kidder, Watkinson Miller, PLLC, Washington, DC, for Plaintiff.
Sian Jones, U.S. Department of Justice, Washington, DC, for Defendant.
Plaintiff Solange Faktor brings this lawsuit challenging a decision by the United States Department of State to deny her claim for compensation pursuant to the Agreement between the United States and France on Compensation of Certain Victims of Holocaust-Related Deportations In her Amended Complaint, Plaintiff claims that the denial of her claim was arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq.
Before the Court is the United States’ [29] Motion to Dismiss to Plaintiff's Amended Complaint, in which the United States argues that the Court lacks subject matter jurisdiction and that Plaintiff's Amended Complaint fails to state a claim upon which relief may be granted. Upon review of the pleadings,1 the relevant legal authorities, and the record as a whole, the Court shall GRANT Defendant's Motion to Dismiss the Amended Complaint.
In 2014, the United States and France executed an "Agreement for Compensation on Certain Victims of Holocaust-Related Deportations from France Who Are not Covered by French Programs."2 See Def.’s Mot. Ex. A ("Agreement"), ECF No. 29-2. The Agreement was established to provide "an exclusive mechanism for compensating persons who survived deportation from France [during World War II], their surviving spouses, or their assigns." Agreement § 2(1). Pursuant to the Agreement, the French government transferred $60 million to the United States to create a fund for Holocaust deportation claims ("Fund"). Id. § 4(1). The United States has the "sole discretion" to administer the Fund, "according to criteria which it shall determine unilaterally" and "for which it shall be solely responsible." Id. § 6(1).
The Agreement carves out four categories of claimants who are ineligible to receive payments from the Fund for Holocaust deportation claims: (1) French nationals; (2) nationals of other countries who "have received or are eligible to receive" compensation under another international agreement made by France addressing Holocaust deportation claims; (3) persons who "have received or are eligible to receive" compensation under France's reparation measure for orphans whose parents died in deportation; and (4) persons who have received compensation under "another State's program providing compensation specifically for Holocaust deportation." Id. §§ 3(1)–(4), 6(2)(b). The Agreement requires the United States to "declare inadmissible" and "reject any ... claim" from an individual within one of these four categories. Id. § 6(2)(b). Annexed to the Agreement is a "Form of Written Undertaking" ("Form") which a claimant must sign before receiving any payment from the Fund. See Agreement Annex. The Form requires the claimant to provide "documentation establishing nationality" and to declare under penalty of perjury that he or she had not received compensation related to a Holocaust deportation claim from any French programs or any other State's compensation program. Id. The Agreement directs that the United States "shall rely" on the sworn statements included in the Form to determine whether the claimant falls within one of the four categories not covered by the Agreement. Agreement § 6(2)(c). The Agreement provides that "[a]ny dispute arising out of the interpretation or performance of this Agreement shall be settled exclusively by way of consultation between the parties." Id. § 8 (emphasis added).
Plaintiff Solange Faktor filed a claim with the U.S. Department of State to receive compensation from the Fund. Am. Compl. ¶ 10. Plaintiff's mother was deported to the Auschwitz concentration camp on July 31, 1943, where she was killed. Id. ¶ 9. Plaintiff's father survived and passed away in France in 1980. Id. Plaintiff filed the claim on behalf of her father's estate. Id. ¶ 10. Although Plaintiff notes that her father died in France, she indicates that he was "stateless" when he died.3 Id. ¶¶ 10, 12. Plaintiff does not have a death certificate for her father. Id. ¶¶ 12, 13.
On April 3, 2018, Plaintiff received notice that the State Department had rejected her claim. Id. ¶ 5. Plaintiff alleges that the State Department rejected her claim because she had not submitted documentary evidence that her father was "stateless" and because she did not submit a copy of his death certificate. Id. ¶ 10. Plaintiff filed with her original claim form a sworn affidavit "including the information that her father was stateless, and the date of his death, was true and correct." Id. ¶ 11. She later submitted a second affidavit, "again swearing that her father was stateless, that he passed away in 1980 and that she did not have a copy of his death certificate." Id. ¶ 12. Plaintiff contends that her affidavits were "in the form specifically required in accordance with the terms of the Agreement," and should have been sufficient to entitle her to compensation under the Agreement. Id. ¶ 11. She also notes that her counsel provided a letter to the State Department "regarding the difficulty in trying to prove statelessness." Id. ¶ 14. According to Plaintiff, the State Department's rejection of her claim—based on its rejection of her "sworn affidavit evidence"—"violates" the Agreement and constitutes an "arbitrary and capricious" agency action under the APA. Id. ¶¶ 17, 18.
Plaintiff seeks an order pursuant to the APA and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. , declaring that the United States failed to "honor the terms of the Agreement," that her claim "should be approved based on the evidence" she provided, and that its denial "was arbitrary and capricious and should be overturned." Am. Compl. at 6–7. She further seeks an order declaring that she is entitled to receive compensation "in the amount that would otherwise be paid ... had she been initially approved as eligible," as well as "supplemental payments paid to all eligible claimants" of the same status. Id. at 7.
Plaintiff filed her Original Complaint in this action on January 31, 2020. Compl., ECF No. 1. The Original Complaint asserted a claim under the Federal Tort Claims Act ("FTCA"), based on the same facts presented above. The United States moved to dismiss Plaintiff's Complaint for lack of subject matter jurisdiction arguing that Plaintiff had failed to establish that the United States waived sovereign immunity for her claim under the FTCA. The Court granted Defendant's Motion to Dismiss. See Order, ECF No. 23; Mem. Op., ECF No. 24. However, consistent with other courts in this jurisdiction, the Court allowed Plaintiff to file a motion for leave to amend the complaint to assert an APA claim. Id. The United States consented to Plaintiff's motion to amend her complaint. See ECF No. 28.
The United States has again moved to dismiss the Amended Complaint, contending that the Court lacks subject matter jurisdiction and that the Complaint fails to state a claim upon which relief may be granted. See generally Def.’s Mot. That motion is now ripe.
A court must dismiss a case when it lacks subject matter jurisdiction pursuant to Federal Rule of Civil procedure 12(b)(1). To determine whether there is jurisdiction, the Court may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta , 333 F. 3d 193, 198 (D.C. Cir. 2003) (citations omitted); see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin. , 402 F.3d 1249, 1253 (D.C. Cir. 2005) ().
In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts must accept as true all factual allegations in the complaint and construe the complaint liberally, granting the plaintiff the benefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). Despite the favorable inferences afforded to a plaintiff on a motion to dismiss, it remains the plaintiff's burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. Environmental Prot. Agency, 121 F. Supp. 2d 84, 90 (D.D.C. 2000). "Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff[’s] factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wright v. Foreign Serv. Grievance Bd. , 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks omitted) (quoting Grand Lodge of Fraternal Order of Police v. Ashcroft , 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001), aff'd , 2008 WL 4068606 (D.C. Cir. Mar. 17, 2008) ). A court need not accept as true "a legal conclusion couched as a factual allegation" or an inference "unsupported by the facts set out in the complaint." Trudeau v. Fed. Trade Comm'n , 456 F.3d 178, 193 (D.C. Cir. 2006) (internal citation and quotation marks omitted).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may...
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