Klayman v. Obama

• Decision Date: 21 August 2015
• Docket Number: Civil Action No. 14–cv–1484 (TSC)
• Citation: 125 F.Supp.3d 67
• Parties: Larry Klayman, et al., Plaintiffs, v. Barack Hussein Obama, et al., Defendants.
• Court: U.S. District Court — District of Columbia

125 F.Supp.3d 67

Larry Klayman, et al., Plaintiffs,

v.Barack Hussein Obama, et al., Defendants.

Civil Action No. 14–cv–1484 (TSC)

United States District Court, District of Columbia.

Signed August 21, 2015

Larry E. Klayman, Law Offices of Larry Klayman, Washington, DC, for Plaintiffs.

April Denise Seabrook, William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendants.

Hamas, pro se.

Malik Obama, pro se.

Ban Ki–Moon, pro se.

MEMORANDUM OPINION

TANYA S. CHUTKAN, District Judge

Plaintiff Larry Klayman visited Israel in 2014, when violence related to the Palestinian organization Hamas erupted. He and seven anonymous plaintiffs allege they (or their decedents) were "subject to the crimes of attempted murder and of assault by HAMAS...." (Am. Compl. ¶¶ 16–18, ECF No. 7). The Plaintiffs allege a scheme to "funnel money from within the United States of America" in order to "finance terrorism by HAMAS and its parent the Muslim Brotherhood...." (Id. ¶ 20). Plaintiffs have sued Hamas, President Obama, Secretary of State John Kerry, former Secretary of State Hillary Clinton, United Nations Secretary–General Ban Ki–Moon, and Malik Obama, bringing a litany of claims under RICO, the Anti–Terrorism Act, the Constitution, and common law. The President and Secretaries of State (the "Federal Defendants"), the only Defendants who have been served with the Complaint and have entered appearances, have moved to dismiss the Complaint. For the following reasons, the court GRANTS the motion (ECF No. 9) and dismisses all claims against the Federal Defendants.¹

Three defendants have not entered an appearance: Malik Obama, Secretary–General Ban Ki–Moon, and Hamas. As of April 27, 2015 no proof of service had been filed as to those defendants and on that day the court ordered Plaintiffs to show cause, on or before May 11, 2015, as to why the court should not dismiss the claims against those defendants for failure to effect service. (Minute Order to Show Cause, Apr. 27, 2015). Plaintiffs responded that service was made on Ban Ki–Moon and requested additional time within which to serve Hamas and Malik Obama. (Pls.' Service Response, ECF No. 19).² As discussed in Section III.G, infra, the request for additional time will be GRANTED.

On June 22, 2015 the court ordered Plaintiffs to show cause why Ban Ki–Moon should not be dismissed from this case in light of the immunity granted to him under the Vienna Convention on Diplomatic Relations and 22 U.S.C. § 254d. (Minute Order to Show Cause, June 22, 2015). At the court's invitation, the United States submitted a statement of interest pursuant to 28 U.S.C. § 517. For the reasons set forth in Section III.H, infra, all claims against Ban Ki–Moon will be DISMISSED.

I. FACTUAL ALLEGATIONS

Plaintiffs Larry Klayman and John Does 1 through 4 were physically present in Israel in the summer of 2014, when violence erupted in that country. (Am.Compl.¶¶ 16–17). They allege that, due to their presence in the country at that time, they were "subject to the crimes of attempted murder and of assault by HAMAS" and were "subject to terroristic threats, fear, intimidation and blackmail from HAMAS...." (Id. ).³ Three additional Jack Roe plaintiffs are the parents of children killed in Israel and the Gaza Strip during the 2014 conflict. (Id. ¶ 18). The Plaintiffs allege that the Federal Defendants, along with Malik Obama and Ban Ki–Moon, have aided and abetted acts of terrorism committed by Hamas by providing funds and tacit support for those acts.

Resolution of the Federal Defendants' motion to dismiss turns, in almost all respects, on the nature of the conduct purportedly undertaken by those Defendants. Plaintiffs' Amended Complaint rises or falls on the extent to which the Federal Defendants' actions are deemed to be within the scope of each Federal Defendant's authority as an official of the United States. The court's focus in reciting the factual background is therefore on the nature of the Federal Defendants' alleged conduct and that conduct's relationship to each Defendant's authority as an official of the United States.

A. President Obama

The Amended Complaint alleges that in 2009, President Obama "ordered that $900 million be sent to Gaza" purportedly in the form of humanitarian aid, with the knowledge (and, possibly, the intention) that the money would be used to fund Hamas' terrorism. (Id. ¶ 39). Plaintiffs allege that bags of U.S. dollars found in the wreckage of an Israeli military strike against a Hamas leader "were provided to HAMAS at the direction of Barack Hussein Obama from the U.S. State Department ‘slush fund.’ " (Id. ¶ 44). This "slush fund" is a discretionary fund established at Secretary Clinton's request for use in North Africa and the Middle East. (Id. ¶ 132).⁴ President Obama is alleged to have "corruptly misused and abused his position while President of the United States to cause funding and material support to be transferred to HAMAS...." (Id. ¶ 47).⁵ Plaintiffs allege the President has "personally collaborated with, conspired with, aided and abetted HAMAS' money laundering of funds," (id. ¶ 55), and, in his role as commander in chief, "threatened Israel that U.S. aid would be cut off if [Israel] does not make peace with HAMAS...." (Id. ¶ 54; see also id. ¶ 49 (President Obama has "personally caused military weapons of the United States military, Libyan military and benefactors of the Libyan uprising called the ‘Arab Spring’ to be transferred from the territory of Libya to the Muslim Brotherhood generally")). Overall, "[a]s President and Commander in Chief, Defendant Barack Hussein Obama has intentionally and deliberately used the resources of the United States of America government to strengthen the Muslim Brotherhood and HAMAS around the world...." (Id. ¶ 73).⁶

President Obama is also alleged to support the efforts of his half-brother, defendant Malik Obama, to raise money through the Barack H. Obama Foundation (the "Foundation"). The Amended Complaint alleges that this Foundation operates in the name of President Obama. (Id. ¶¶ 105–08). However, a news article cited in the Amended Complaint as proof of this link (id. at 26 n.24) includes a screen shot of the Foundation's website, which makes clear that the Foundation is named in honor of President and Malik Obama's father, Barack H. Obama, Sr., and "is not dependent on the endorsement of" President Obama." (Id. ).⁷ Given the disavowal by the Foundation of any link to the President, the court disregards allegations that the President approves the Foundation's use of his name as a fundraising tool.⁸

B. Secretaries Clinton and Kerry

The Amended Complaint alleges that despite sanctions imposed on Hamas by the United States, then-Secretary of State Hillary Clinton, "under color of law," caused funds from the Department of State to be sent to Hamas. (Id. ¶ 131–34). Together with President Obama, through the U.S. consulate in Benghazi, Secretary Clinton directed a flow of U.S. weapons from Libya into Syria and Gaza. (Id. ¶ 136–37).⁹ Similarly, current Secretary of State John Kerry has "continued the pattern and practices of his predecessor Hillary Clinton by providing funding to HAMAS" and "has actively sought to interfere with attempts by Israel to stop the violence." (Id. ¶¶ 148–49).

II. LEGAL BACKGROUND

A. Subject–Matter Jurisdiction

Federal courts are courts of limited jurisdiction. See Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C.Cir.2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.") The law presumes that "a cause lies outside [the court's] limited jurisdiction" unless the party asserting jurisdiction establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). When a defendant files a motion to dismiss a complaint for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C.2002).

"Under the doctrine of sovereign immunity, the United States is immune to suit unless it explicitly consents to being sued." Russell v. Dupree, 844 F.Supp.2d 46, 49 (D.D.C.2012) (citing United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) ). To survive a Rule 12(b)(1) motion, plaintiff must show that sovereign immunity has been waived. Id. (citing Jackson v. Bush, 448 F.Supp.2d 198, 200 (D.D.C.2006) ). Claims brought against an official in his or her official capacity are, "in all respects other than name, to be treated as a suit against the" United States, Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), and, "[a]bsent a specific waiver by the government, sovereign immunity bars" those claims. Keyter v. Bush, No. 03–cv–2496 (EGS), 2004 WL 3591125, at *2 (D. D.C. Aug. 6, 2004) (citing Clark v. Library of Congress, 750 F.2d 89, 103 (D.C.Cir.1984) ); Abou–Hussein v. Mabus, 953 F.Supp.2d 251, 262 (D.D.C.2013) ("Sovereign immunity bars suits for money damages against the government itself, and against public officials sued in their official capacities") (internal quotation and alteration omitted).

Suits against a federal official in his or her official capacity must be distinguished from suits against a federal official in his or her individual (personal) capacity for acts taken in the course of official duties or while acting under the color of law. Hurst v. Socialist People's Libyan Arab Jamahiriya, 474 F.Supp.2d 19, 29 (D.D.C.2007) (citing Hafer v. Melo, 502 U.S. 21, 26, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) ). In some circumstances, the claims are one and the same. For instance, tort claims against individual officials of the United States for conduct undertaken while performing their official duties may be deemed to be claims against the United States...