Lawyers Comm. for 9/11 Inquiry, Inc. v. Barr
| Decision Date | 24 March 2021 |
| Docket Number | 19 Civ. 8312 (PGG) |
| Parties | LAWYERS COMMITTEE FOR 9/11 INQUIRY, INC.; ARCHITECTS AND ENGINEERS FOR 9/11 TRUTH; JEANNE EVANS; RICHARD GAGE; COMISSIONER CHRISTOPHER GIOIA; DIANA HETZEL; ROBERT MCILVAINE; and MICHAEL J. O'KELLY, Plaintiffs, v. WILLIAM P. BARR, Attorney General of the United States, GEOFFREY BERMAN, United States Attorney for the Southern District of New York, and U.S. DEPARTMENT OF JUSTICE, Defendants. |
| Court | U.S. District Court — Southern District of New York |
In this action, Plaintiffs seek an order compelling the Attorney General of the United States and the United States Attorney for the Southern District of New York,1 pursuant to either a writ of mandamus or the Administrative Procedure Act ("APA"), to present certain information to a federal grand jury, as provided in 18 U.S.C. § 3332(a). Plaintiffs also seek the release of certain grand jury records and injunctive relief for alleged violations of their First Amendment rights. Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 28) For the reasons stated below, Defendants' motion will be granted.
Plaintiff Lawyers' Committee for 9/11 Inquiry ("Lawyers' Committee") is a non-profit corporation committed to "promote transparency and accountability regarding the tragic events of September 11, 2001." (Am. Cmplt. (Dkt. No. 20) ¶ 12) The Lawyers' Committee believes that the destruction of three buildings at the World Trade Center ("WTC") on September 11, 2001 ("9/11") was the result of the detonation of "pre-placed" "explosives and/or incendiaries." (Id. ¶¶ 54-55) According to the Lawyers' Committee, "as a matter of science, as a matter of logic, and as a matter of law," the evidence "is conclusive that explosive and/or incendiary devices that had been pre-placed at the WTC were detonated causing the complete collapse of the . . . Twin Towers on 9/11." (Id. ¶ 55) According to the Lawyers' Committee, "the family members of the victims of the tragic crimes of 9/11 have a compelling right to know the full truth of what happened to their loved ones . . . ." (Id. ¶ 12)
On April 10, 2018, the Lawyers' Committee delivered a petition to the United States Attorney's Office for the Southern District of New York ("USAO") setting forth "factual information and evidence . . . regarding certain federal crimes . . . related to the attacks on the [WTC]." (Id.¶¶ 14, 50) The Lawyers' Committee delivered an amended petition on July 30, 2018. (Id. ¶¶ 16, 54) Both petitions include information that the Lawyers' Committee believes supports its allegations. (Id. ¶¶ 15-16) In each petition, the Lawyers' Committee asks the United States Attorney to empanel a grand jury to consider this information, pursuant to 18 U.S.C. § 3332(a). (Id. ¶¶ 51-53, 56) In a November 7, 2018 letter, the USAO assured the Lawyers'Committee that the USAO would comply with its obligations under 18 U.S.C. § 3332(a). (Id. ¶ 59)
In June 2019, the Lawyers' Committee contacted the USAO to inquire about the status of the petitions. The USAO provided no further information to the Lawyers' Committee, citing the secrecy requirements of Federal Rule of Criminal Procedure Rule 6(e). (Id. ¶ 60)
On August 30, 2019, the Lawyers' Committee submitted the same information set forth in the petitions to the United States Department of State, as part of an application to the State Department's "Rewards for Justice" program, which is a Counter-Terrorism Rewards Program that "offers rewards or bounties for information leading to the arrest of persons engaged in terrorism." (Id. ¶¶ 61-63)
The Amended Complaint further alleges that the Department of Justice ("DOJ") funds "local and state terrorism programs that attempt to discredit" the Lawyers' Committee and Plaintiff Architects and Engineers for 9/11 Truth ("Architects") by circulating communications that try to "convince citizens that organizations that question the government's explanation for the 9/11 attacks . . . are to be treated as suspected terrorists." (Id. ¶ 66) Plaintiffs claim that these alleged DOJ-funded communications hamper their recruitment, fundraising, and communication efforts, and are "potentially defamatory." (Id. ¶¶ 67-68) In support of their claims, Plaintiffs have attached as an exhibit to the Amended Complaint a flyer issued by the Columbus, Ohio Division of Police, Homeland Security Section, Terrorism Early Warning Unit, entitled "Communities Against Terrorism." The flyer lists as an "[a]ttitude [i]ndicator[]" that citizens should "[c]onsider [s]uspicious" any "[c]onspiracy theories about Westerners (e.g. the CIA arranged for 9/11 to legitimize the invasion of foreign lands)." (Am. Cmplt., Ex. 9 (Ohio Police Flyer) (Dkt. No. 20-9) at 1).
Plaintiff Richard Gage is an architect who signed the Lawyers' Committee petition to the USAO. He is the founder and president of Plaintiff Architects & Engineers for 9/11 Truth, a non-profit organization whose mission is to "establish[] the truth about the events of September 11, 2001." (Am. Cmplt. (Dkt. No. 20) ¶¶ 17, 19) Architects "authorized the Lawyers' Committee to add its name as an organization to the list" of organizations that signed the petition to the USAO, and joined the Lawyers' Committee's Rewards for Justice application. (Id. ¶¶ 21-22)
Plaintiff Jeanne Evans' brother, Robert Evans, was an FDNY firefighter who died alongside members of Engine 33 and Ladder 9 responding to the WTC attack. (Id. ¶ 23) Plaintiff Diana Hetzel's husband, Thomas J. Hetzel, was a firefighter with Ladder 13, who died inside the North Tower. (Id. ¶¶ 33-34) Plaintiff Robert McIlvaine lost his son, Bobby McIlvaine, who was at the WTC for a banking conference on the morning of 9/11. (Id. ¶¶ 37-38)
Plaintiff Christopher Gioia, is the Fire Commissioner of the Franklin Square and Munson Fire Department, and was among the first responders on 9/11. (Id. ¶ 28) Several of Gioia's friends and co-workers from the Franklin Square and Munson Fire Department were killed on 9/11, and several others are battling cancer as a result of exposure to deadly toxins at the WTC site. (Id. ¶¶ 29-30) Plaintiff Michael J. O'Kelly was a member of the FDNY who spent a month at the WTC site engaged in rescue and recovery efforts. He subsequently developed respiratory problems, including asthma, from inhaling toxins at the WTC site. (Id. ¶¶ 43-45)
Evans, Gioia, and McIlvaine authorized the Lawyers' Committee to add their names to the petition sent to the USAO. (Id. ¶¶ 27, 32, 41) Gage, McIlvaine, and O'Kelly have submitted declarations in support of the Amended Complaint's claim that the 9/11 tragedy wasthe result of explosives planted at the WTC site. (Gage Decl. (Dkt. No. 20-2); McIlvaine Decl. (Dkt. No. 20-6); O'Kelly Decl. (Dkt. No. 20-7)) Evans, Gioia, and Hetzel have submitted declarations in support of the Lawyers' Committee petition to the USAO. (Evans Decl. (Dkt. No. 20-3); Gioia Decl. (Dkt. No. 20-4); Hetzel Decl. (Dkt. No. 20-5))
The Amended Complaint asserts four claims: (1) a request to disclose grand jury records pursuant to common law rights, the Court's inherent authority, the First Amendment, and Rule 6 of the Federal Rules of Criminal Procedure (Am. Cmplt. (Dkt. No. 20) ¶¶ 69-83); (2) violation of Plaintiffs' First Amendment right to petition for redress and request for injunctive relief (id. ¶¶ 84-91); (3) mandamus relief to compel presentation of the amended petition to a grand jury pursuant to 28 U.S.C. § 1361 (id. ¶¶ 92-98); and (4) mandamus relief to compel presentation of the amended petition to a grand jury pursuant to the APA, 5 U.S.C. § 706(1). (Id. ¶¶ 99-102).
On May 8, 2020, Defendants moved to dismiss. (Dkt. No. 28) Defendants contend that Plaintiffs lack standing to compel the USAO to present information to the grand jury. (Def. Br. (Dkt. No. 29) at 10)2 Defendants further argue that, even if Plaintiffs had standing, they have not stated a claim under the First Amendment, the APA or the mandamus statute for the relief they seek - an order compelling the USAO to present certain evidence to a grand jury. (Id. at 23; Def. Reply Br. (Dkt. No. 30) at 13) Defendants also contend that Plaintiffs are not entitled to release of grand jury material under Rule 6(e) of the Federal Rules of Criminal Procedure. (Def. Br. (Dkt. No. 29) at 25-27)
"[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit ([i.e.,] subject-matter jurisdiction)." Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
Where subject matter jurisdiction is challenged, a plaintiff "bear[s] the burden of 'showing by a preponderance of the evidence that subject matter jurisdiction exists.'" APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (quoting Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003)); see also Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002)) ("The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence."). And "[u]nder Rule 12(b)(1), even 'a facially sufficient complaint may be dismissed for lack of subject matter jurisdiction if the asserted basis for jurisdiction is not sufficient.'" Castillo v. Rice, 581 F. Supp. 2d 468, 471 (S.D.N.Y. 2008) (quoting Frisone v. Pepsico Inc., 369 F. Supp. 2d 464, 469 (S.D.N.Y. 2005)).
In considering a Rule 12(b)(1) motion, a court "must accept as true all material factual allegations in the complaint." J.S. ex rel. N.S. v. Attica Cent....
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