U.S. v. Holy Land Foundation for Relief, No. 04-11282.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtCarl E. Stewart
Citation445 F.3d 771
Docket NumberNo. 04-11282.
Decision Date04 April 2006
PartiesUNITED STATES of America, Plaintiff-Appellee, v. HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, etc., et al., Defendants, David J. Strachman, in his capacity as Administrator of the Estate of Yaron Ungar; Dvir Ungar; Yishai Ungar; Judith Ungar; Meir Ungar; Michal Cohen; Amichai Ungar; Dafna Ungar, Appellants.

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445 F.3d 771
UNITED STATES of America, Plaintiff-Appellee,
v.
HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, etc., et al., Defendants,
David J. Strachman, in his capacity as Administrator of the Estate of Yaron Ungar; Dvir Ungar; Yishai Ungar; Judith Ungar; Meir Ungar; Michal Cohen; Amichai Ungar; Dafna Ungar, Appellants.
No. 04-11282.
United States Court of Appeals, Fifth Circuit.
April 4, 2006.

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Lewis Stanley Yelin (argued), Douglas N. Letter, U.S. Dept. of Justice, Civ. Div.-App. Staff, Washington, DC, for U.S.

David J. Strachman (argued), McIntre, Tate, Lynch & Holt, Providence, RI, pro se and Stephen Cass Weiland, Patton Boggs, Dallas, TX, for Appellants.

Appeal from the United States District Court for the Northern District of Texas.

Before BENAVIDES, STEWART and OWEN, Circuit Judges.

CARL E. STEWART, Circuit Judge:


David J. Strachman, in his capacity as administrator of the Estate of Yaron Ungar; Dvir Ungar; Yishai Ungar; Judith Ungar; Meir Ungar; Michal Cohen; Amichai Ungar; and Dafna Ungar, challenges a Texas federal district court's restraining order that indefinitely freezes specific bank accounts that allegedly had been levied pursuant to writs of execution, issued by New York, South Carolina, and Washington federal district courts, in order to satisfy a judgment the appellants obtained against assets of the Holy Land Foundation For Relief and Development. The allegedly levied bank accounts are only some of the assets specified in, or otherwise covered by, the restraining order. Additionally, Strachman urges this court to grant a Motion for Summary Disposition and Vacatur obviating our consideration of the merits of the appeal. For the following reasons, we deny the Motion for Summary Disposition, and vacate and remand to the district court for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

A forty-two count indictment, filed July 26, 2004, charged Holy Land Foundation for Relief and Development ("HLF") with material support of a terrorist organization, tax evasion, and money laundering and sought forfeiture of HLF property. The Government obtained an ex parte restraining order, on September 24, 2004, from the District Court for the Northern District of Texas in order to preserve HLF's assets for the forfeiture requested in the indictment. The restraining order indefinitely freezes the assets of HLF and its financial agents.

Appellant David Strachman represents the estates of husband and wife, Yaron and Efrat Ungar, who were killed during a terrorist attack. In February 2004, Strachman, along with members of the Ungar family and their representatives, ("the Ungars") obtained a $116,409,123 default judgment against Hamas1 in Rhode Island's federal district court pursuant to the civil provisions of the Antiterrorism Act of 1991, 18 U.S.C. § 2333.2 See Estates

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of Ungar ex rel. Strachman v. Palestinian Auth., 304 F.Supp.2d 232, 238, 242 (D.R.I.2004). The Rhode Island federal district court determined that its judgment was enforceable against the assets of HLF. Id. at 241. Based on this judgment, federal district courts in New York, South Carolina, and Washington issued writs of execution against HLF that the Ungars allege were levied in the respective jurisdictions on or before September 13, 2004.

The Ungars appeal the restraining order against HLF, requesting that it be vacated, that the district court be directed to refrain from entering further orders that restrain the property and, in the alternative, that this court direct the district court to conduct a hearing and provide the Ungars an opportunity to brief and argue these issues.

II. STANDARD OF REVIEW

Although we review a district court's order of injunction for abuse of discretion, where the district court's decision to grant a motion for injunction turns on the application of statutes or procedural rules, our review of that interpretation is de novo. Cf. Castillo v. Cameron County, Tex., 238 F.3d 339, 347 (5th Cir.2001) ("Although the district court's decision to continue the injunctions is to be reviewed for an abuse of discretion, because the district court's decision to terminate or continue the injunctions turns on the application of § 3626(b) of the [Prison Litigation Reform Act of 1995], that interpretation is reviewed de novo." (citations omitted)).

III. DISCUSSION

A. Overview

The assets at issue are the funds in certain "blocked" HLF bank accounts located in New York, South Carolina, and Washington that were specified, by state and account number, in the Texas district court's restraining order.3 The Ungars assert that, before the Texas district court entered this restraining order on September 24, 2004, they had levied writs of execution on these funds pursuant to judgments obtained in New York, South Carolina, and Washington federal district courts. According to the Ungars, this placed these funds in the possession of those courts and thereby divested the Texas district court of jurisdiction to enter this restraining order.

The Ungars appeal, contending that this court should vacate the restraining order because the Texas district court was without jurisdiction to enter it, and/or because the attachment provision of the Terrorism Risk Insurance Act of 2002 ("TRIA") section 201(a), 28 U.S.C. § 1610(f)(1)(A) (2000), overrides criminal forfeiture provisions. The Ungars further contend that they are entitled to have this ex parte restraining order vacated because it was directed toward them yet, in violation of

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their Fifth Amendment due process rights, they were given no notice or hearing. Accordingly, we must determine (1) whether the Texas district court had jurisdiction to enter this order restraining funds that were subject to a levied writ of execution issued by a federal district court in each of three other states and, if so, whether the provisions of TRIA supercede the criminal forfeiture provisions attendant to this § 853(e)(1)(A) order; and (2) whether the Federal Rule of Civil Procedure 65 notice provisions apply to this 21 U.S.C. § 853(e)(1)(A) restraining order and, if so, whether the Ungars possess the Fifth Amendment rights they claim were violated by the absence of notice and hearing.

In addition to their appeal, however, the Ungars filed a Motion for Summary Disposition and Vacatur asking this court not to reach the merits of their appeal and, instead, to summarily render judgment in their favor because this ex parte restraining order had expired on its face and did not comply with Federal Rule of Civil Procedure 65 hearing and notice requirements. The motion also requests that this court direct the district court to provide the Ungars an opportunity to be heard and to present their arguments in opposition, if the Government seeks a new restraining order.

The Government opposes summary disposition and contends that the Ungars lack standing to appeal the restraining order. The Government also argues that this case does not meet the standard for summary disposition.

Prior to reaching the merits, we first address the Ungars' standing to appeal the restraining order, then examine whether this case is appropriate for summary disposition.

B. The Ungars' Standing to Appeal

The Ungars assert that they have standing to appeal the restraining order because it affects their interests. The Ungars also argue that they are the main targets of the restraining order, yet they have had no opportunity to oppose, contest, or be heard. The Ungars contend that their interests are perfectly aligned against the interests of the defendant and the Government, therefore neither party will raise and protect their rights if they are not permitted to do so themselves.

By contrast, the Government argues that the Ungars are statutorily barred from asserting HLF's rights in a forfeiture proceeding. The Government asserts that third parties may participate in forfeiture proceedings only (1) in hearings concerning post-indictment restraint on forfeitable property where they can assert their own due process claims or claims of irreparable injury, and (2) in post-conviction ancillary proceedings, where they can assert their interest in the forfeitable property.

"[W]hen standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable." Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The three requirements that constitute the "irreducible constitutional minimum" of standing are "injury in fact," causation, and redressability. Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (citations omitted). The first, "injury in fact," requires that the appellant show personal harm that is concrete, distinct and palpable, as well as actual or imminent. Whitmore v. Ark., 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). To satisfy the second requirement, the appellant "must establish a causal connection

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between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of some third party not before the court." McConnell v. Fed. Election Comm'n, 540 U.S. 93, 225, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) (internal quotation marks, alterations, and citation omitted). The third requirement, redressability, is present if there is a "substantial likelihood that the requested relief will remedy the alleged injury in fact." Id. (internal quotation marks omitted, citing Stevens, 529 U.S. at 771, 120 S.Ct. 1858); see also Valley Forge Christian Coll. v. Ams. United for Separation...

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75 practice notes
  • McCollum v. Livingston, CIVIL ACTION NO. 4:14-CV-3253
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 3, 2017
    ...in federal courts are "injury in fact, causation, and redressability." United States v. Holy Land Foundation for Relief and Development, 445 F.3d 771, 779-80 (5th Cir. 2006); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In order to establish......
  • Applicability of Tax Levies Under 26 U.S.C. § 6334 To Thrift Savings Plan Accounts, 10-5
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • May 3, 2010
    ...the state’s practice, is used to apply a debtor’s property to payment of his debts”); United States v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 782-85 (5th Cir. 2006) (discussing levies imposed on certain bank account assets under New York, South Carolina, and Washington state law ......
  • Belle Co. v. U.S. Army Corps of Eng'rs, No. 13–30262.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 30, 2014
    ...[761 F.3d 397]the APA must satisfy ... Article III's standing requirements.”); United States v. Holy Land Foundation for Relief and Dev., 445 F.3d 771, 780 (5th Cir.2006) (explaining that to establish redressability, a plaintiff must show that there is a substantial likelihood that the requ......
  • Weininger v. Castro, No. 05 Civ. 7214(VM).
    • United States
    • U.S. District Court — Southern District of New York
    • November 17, 2006
    ...any other provision of law" language specifically addresses immunity. See United States v. Holy Land Found. For Relief & Dev., 445 F.3d 771, 787 (5th Cir.2006) ("We conclude that the `notwithstanding' language ... appears to target statutory immunities to execution."); Smith ex rel. Estate ......
  • Request a trial to view additional results
75 cases
  • McCollum v. Livingston, CIVIL ACTION NO. 4:14-CV-3253
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 3, 2017
    ...in federal courts are "injury in fact, causation, and redressability." United States v. Holy Land Foundation for Relief and Development, 445 F.3d 771, 779-80 (5th Cir. 2006); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In order to establish......
  • Applicability of Tax Levies Under 26 U.S.C. § 6334 To Thrift Savings Plan Accounts, 10-5
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • May 3, 2010
    ...the state’s practice, is used to apply a debtor’s property to payment of his debts”); United States v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 782-85 (5th Cir. 2006) (discussing levies imposed on certain bank account assets under New York, South Carolina, and Washington state law ......
  • Belle Co. v. U.S. Army Corps of Eng'rs, No. 13–30262.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 30, 2014
    ...[761 F.3d 397]the APA must satisfy ... Article III's standing requirements.”); United States v. Holy Land Foundation for Relief and Dev., 445 F.3d 771, 780 (5th Cir.2006) (explaining that to establish redressability, a plaintiff must show that there is a substantial likelihood that the requ......
  • Weininger v. Castro, No. 05 Civ. 7214(VM).
    • United States
    • U.S. District Court — Southern District of New York
    • November 17, 2006
    ...any other provision of law" language specifically addresses immunity. See United States v. Holy Land Found. For Relief & Dev., 445 F.3d 771, 787 (5th Cir.2006) ("We conclude that the `notwithstanding' language ... appears to target statutory immunities to execution."); Smith ex rel. Estate ......
  • Request a trial to view additional results

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