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9,264,883 | 1,564,332 | 2003-08-29 | United States District Court for the Northern District of Georgia | Larios v. Perdue | Larios v. Perdue, 306 F. Supp. 2d 1190 (2003) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an invasion of a legally protected interest which is ... concrete and particularized. | 521 U.S. at 86, 117 S.Ct. at 1933.
In this case, there is little question that each individual plaintiff lives in at least one underrepresented district, whether it is a congressional, state Senate or state House district. Accordingly, each plaintiff can challenge the redistricting plan that created his or her district. First, the plaintiff must have suffered an “injury in fact,” or “an invasion of a legally protected interest which is... concrete and particularized. |
1,499,370 | 1,564,332 | 2004-04-12 | United States District Court for the Southern District of New York | Transport Workers Union of America v. New York City Transit Authority | Transport Workers Union of America v. New York City Transit Authority, 342 F. Supp. 2d 160 (2004) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an ‘injury in fact’ - an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. | Indeed, Title I contains the same enforcement language as does Title II, specifying that the “powers, remedies, and procedures” provided to “any person alleging discrimination on the basis of disability” are supplied by Title YII of the Civil Rights Act of 1964. And even if one looks to the language of Title VII, as the Authority urges, that statute provides a remedy for any “person aggrieved,” language just as sweeping, if not broader, than that used in the ADA itself. Indeed, such language has consistently been interpreted - in Title VII as well as other statutes - by appellate courts as conferring standing on all persons who otherwise have standing under Article III of the Constitution.
In sum, neither Title I nor Title II of the ADA imposes a statutory standing requirement. The only question, therefore, is whether the Unions have Article III standing.
2. Constitutional Standing
The Unions advance two independent bases for their standing. First, the Unions argue that they have standing in their own right, as a party aggrieved by the Authority’s sick leave policy. Second, they argue that they also have associational standing to sue on behalf of their members, who are subject to the challenged policy and unquestionably have standing. The Unions’ Standing in Their Own Right
The Supreme Court has explained the elements of Article III standing as follows:
It is by now well settled that “the irreducible constitutional minimum of standing contains three elements. |
3,469,995 | 1,564,332 | 2007-06-19 | United States Court of Appeals for the Third Circuit | Russell v. DeJongh | Russell v. DeJongh, 491 F.3d 130 (2007) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | must have suffered an ‘injury in fact,’ | ” Specifically, Senator Russell asserted that the Governor’s power to call special sessions under § 7(a) of the Organic Act, 48 U.S.C. § 1573(a), is limited to doing so for the purpose of considering legislation, and that he may not call a special session for the purpose of having his judicial nominees considered. The District Court dismissed Senator Russell’s complaint. As to Count I, the Court applied the principles set forth in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), and held that the statute setting forth the deadline does not confer a private right of action on Senator Russell. As to Count II, the District Court held that Senator Russell lacked standing under Article III of the Constitution because he had not suffered an injury in fact. Senator Russell now appeals. Legislators, like other litigants in federal court, must satisfy the jurisdictional prerequisites of Article III standing, including the requirement that the plaintiff “ |
3,469,995 | 1,564,332 | 2007-06-19 | United States Court of Appeals for the Third Circuit | Russell v. DeJongh | Russell v. DeJongh, 491 F.3d 130 (2007) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. | Legislators, like other litigants in federal court, must satisfy the jurisdictional prerequisites of Article III standing, including the requirement that the plaintiff “must have suffered an ‘injury in fact,’ ” constituting “ |
3,563,291 | 1,564,332 | 2007-08-20 | United States Court of Appeals for the Eleventh Circuit | Dillard v. Chilton County Commission | Dillard v. Chilton County Commission, 495 F.3d 1324 (2007) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an injury in fact — an invasion of a legally protected interest which is concrete and particularized and actual or imminent, not conjectural or hypothetical. | Among the three requirements of this “irreducible constitutional minimum,” first and foremost is an allega tion of “ |
3,563,291 | 1,564,332 | 2007-08-20 | United States Court of Appeals for the Eleventh Circuit | Dillard v. Chilton County Commission | Dillard v. Chilton County Commission, 495 F.3d 1324 (2007) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not conjectural or hypothetical | ” (Rec. Doc. 7 at 11 (Complaint ¶ 28).) The gravamen of this claim is that Commission members' rights against invidious racial classification are being violated by the consent decree provision, as enforced by the district court. And, like the other claimed violations of the Intervenors' "constitutional and voting rights” (id. at ¶ 29), this is a generalized grievance shared in common by all voters in Chil-ton County based on the Intervenors’ asserted interest in seeing that the law is followed. Accordingly, it too falls under the rule of Lance.
Count V suffers from the further defect that it fails to allege that the provision has ever been invoked to offer an African-American commissioner the chairmanship, that any such offer has been accepted, or that any potential offer is likely to be accepted in the future. Absent such allegations of “ |
4,065,317 | 1,564,332 | 2008-08-01 | United States Court of Appeals for the District of Columbia Circuit | Chaplaincy of Full Gospel Churches v. United States Navy | Chaplaincy of Full Gospel Churches v. United States Navy, 534 F.3d 756 (2008) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an invasion of a legally protected interest | ” Hein v. Freedom From Religion Foundation, Inc., — U.S.-, 127 S.Ct. 2553, 2562, 168 L.Ed.2d 424 (2007) (internal quotation marks and alteration omitted). The three factors establishing the “irreducible constitutional minimum” of standing are well established. First and most relevant here is injury-in-fact: A would-be plaintiff must have suffered “ |
12,274,493 | 1,564,332 | 2017-03-23 | United States District Court for the Middle District of Pennsylvania | Wayne Land & Mineral Group, LLC v. Delaware River Basin Commission | Wayne Land & Mineral Group, LLC v. Delaware River Basin Commission, 247 F. Supp. 3d 477 (2017) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | plaintiff must have suffered an injury in fact—an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical | As discussed, it is well-settled that three elements must be satisfied to meet “the irreducible constitutional minimum of standing”: (1) a “ |
5,679,009 | 1,564,332 | 2007-06-19 | United States Court of Appeals for the Third Circuit | Russell v. DeJongh | Russell v. DeJongh, 48 V.I. 1062 (2007) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | must have suffered an ‘injury in fact, | ” Specifically, Senator Russell asserted that the Governor’s power to call special sessions under § 7(a) of the Organic Act, 48 U.S.C. § 1573(a), is limited to doing so for the purpose of considering legislation, and that he may not call a special session for the purpose of having his judicial nominees considered. The District Court dismissed Senator Russell’s complaint. As to Count I, the Court applied the principles set forth in Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975), and held.that the statute setting forth the deadline does not confer a private right of action on Senator Russell. As to Count II, the District Court held that Senator Russell lacked standing under Article III of the Constitution because he had not suffered an injury in fact. Senator Russell now appeals. Legislators, like other litigants in federal court, must satisfy the jurisdictional prerequisites of Article III standing, including the requirement that the plaintiff “ |
5,679,009 | 1,564,332 | 2007-06-19 | United States Court of Appeals for the Third Circuit | Russell v. DeJongh | Russell v. DeJongh, 48 V.I. 1062 (2007) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. | Legislators, like other litigants in federal court, must satisfy the jurisdictional prerequisites of Article III standing, including the requirement that the plaintiff “must have suffered an ‘injury in fact,”’ constituting “ |
3,822,349 | 1,564,332 | 2008-04-28 | United States Court of Appeals for the Eighth Circuit | Nolles v. State Committee for the Reorganization of School Districts | Nolles v. State Committee for the Reorganization of School Districts, 524 F.3d 892 (2008) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. | ” Hein, 127 S.Ct. at 2562 (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 613, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (Kennedy, J., concurring)). At a “ ‘constitutional minimum,’ ” standing requires three elements: (1) injury in fact, (2) causation, and (3) redressability. Injury in fact requires the party bringing suit to have “ |
4,177,741 | 1,564,332 | 2011-05-11 | United States District Court for the District of Nevada | United States v. Alpine Land & Reservoir Co. | United States v. Alpine Land & Reservoir Co., 788 F. Supp. 2d 1209 (2011) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. | ” Id., 385 Fed.Appx. 770; United States v. Orr Water Ditch Co., 600 F.3d 1152, 1160 (9th Cir.2010). The Court’s jurisdiction to review these types of decisions of the State Engineer does not, however, establish that this Court has jurisdiction to hear such an appeal when brought by a person who lacks standing.
As summarized by the Supreme Court:
The federal courts are under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines.’ ”
It is by now well settled that “the irreducible constitutional minimum of standing contains three elements. |
3,750,288 | 1,564,332 | 2011-07-08 | United States District Court for the District of Columbia | LaRoque v. Holder | LaRoque v. Holder, 650 F.3d 777 (2011) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical, | Nw. Austin Mun. Util. Dist. No. One v. Holder, -U.S.-, 129 S.Ct. 2504, 2510,174 L.Ed.2d 140 (2009). The Supreme Court upheld section 5’s original enactment and those three reauthorizations as permissible exercises of Congress’s Fifteenth Amendment enforcement power. See Katzenbach, 383 U.S. at 334-35, 86 S.Ct. 803; see also Nw. Austin, 129 S.Ct. at 2510. The Court, however, has yet to rule on the constitutionality of Congress’s most recent extension, this one enacted in 2006. See Nw. Austin, 129 S.Ct. at 2511-13; see also Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub.L. No. 109-246, § 4, 120 Stat. 577, 580 (reauthorizing section 5 for twenty-five years). To satisfy the minimum standing requirements implicit in Article Ill’s limitation of the federal judicial power to actual “Cases” and “Controversies,” U.S. Const, art. Ill, § 2, plaintiffs must establish “ |
3,750,288 | 1,564,332 | 2011-07-08 | United States District Court for the District of Columbia | LaRoque v. Holder | LaRoque v. Holder, 650 F.3d 777 (2011) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | ‘actual or imminent, not conjectural or hypothetical.’ | Appellants’ Opening Br. 7. For one thing, it doubted that Nix had sufficiently alleged injuries that were “ ‘actual or imminent, not conjectural or hypothetical. |
5,666,629 | 1,564,332 | 2006-11-22 | United States Court of Appeals for the Eleventh Circuit | Scott v. Taylor | Scott v. Taylor, 470 F.3d 1014 (2006) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | suffered an injury in fact— an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. | ”
II. STANDARD OF REVIEW
We review de novo an order dismissing a case for lack of standing. Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1351 (11th Cir.2005). DISCUSSION
To show standing, Scott must first show that she “ |
4,126,547 | 1,564,332 | 2011-12-22 | United States District Court for the District of Columbia | LaRoque v. Holder | LaRoque v. Holder, 831 F. Supp. 2d 183 (2011) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an invasion of a legally protected interest which is (a) concrete and particularized, |
To establish the “irreducible constitutional minimum of standing,” a plaintiff must allege (1) an “injury in fact,” defined as “ |
4,126,547 | 1,564,332 | 2011-12-22 | United States District Court for the District of Columbia | LaRoque v. Holder | LaRoque v. Holder, 831 F. Supp. 2d 183 (2011) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not conjectural or hypothetical |
To establish the “irreducible constitutional minimum of standing,” a plaintiff must allege (1) an “injury in fact,” defined as “an invasion of a legally protected interest which is (a) concrete and particularized,” and (b) “ |
4,134,211 | 1,564,332 | 2011-09-30 | United States District Court for the District of New Mexico | Hill v. Vanderbilt Capital Advisors, LLC | Hill v. Vanderbilt Capital Advisors, LLC, 834 F. Supp. 2d 1228 (2011) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not ‘conjectural’ or ‘hypothetical,’ | United States v. Hays, 515 U.S. 737, 743, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) (citations omitted). The Supreme Court of the United States has established the minimal constitutional requirements for standing, which include three essential elements. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, the plaintiff must have suffered an “injury in fact.” An “injury in fact” is an invasion of a legally protected interest which is (i) concrete and particularized, Allen v. Wright, 468 U.S. 737, 756, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); and (ii) “ |
4,134,211 | 1,564,332 | 2011-09-30 | United States District Court for the District of New Mexico | Hill v. Vanderbilt Capital Advisors, LLC | Hill v. Vanderbilt Capital Advisors, LLC, 834 F. Supp. 2d 1228 (2011) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | invasion of a legally protected interest, | ” (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. at 343-44, 126 S.Ct. 1854)). Because redressing the Plaintiffs’ alleged injury of increased retirement age and contribution requirements requires a third party’s actions, the increase in retirement eligibility and contribution requirements cannot establish standing.
3. The Plaintiffs’ Allegations that They were Injured by the Loss of Principal, Lost Income, and Fees and Expenses Do Not Establish an Injury in Fact Fairly Traceable to the Defendants. The ERB Defendants argue that, without a threat to the Fund members’ defined benefit, there is no “ |
3,622,422 | 1,564,332 | 2012-09-10 | United States Court of Appeals for the Seventh Circuit | Center for Individual Freedom v. Madigan | Center for Individual Freedom v. Madigan, 697 F.3d 464 (2012) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not ‘conjectural’ or ‘hypothetical.’ | In July 2010, the Center brought suit against the Illinois Attorney General and members of the Illinois State Board of Elections in their official capacities, see Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), seeking to invalidate and enjoin Article 9’s disclosure requirements as unconstitutional restrictions of free speech. After the district court denied the Center’s motion for a preliminary injunction, 735 F.Supp.2d 994 (N.D.Ill.2010), and this court denied its request for an injunction pending appeal, the Center’s appeal was dismissed by agreement without prejudice. In January 2011, the Center filed an amended complaint containing the same allegations but taking into account changes to Article 9 that took effect on January 1, 2011. The state moved to dismiss, and the Cen ter moved for summary judgment. The parties did not dispute any material facts. The district court denied the Center’s motion for summary judgment and granted the state’s motion to dismiss. This appeal followed.
II. Standing
We begin, as we must, with the state’s argument that the Center lacks standing to bring a constitutional challenge against Article 9. Although the state did not raise this issue in the district court, standing is a jurisdictional requirement that is not subject to waiver. United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995); National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994).
The standing requirement of Article III is part of the restriction of the federal judicial power to “Cases” and “Controversies.” Constitutional standing imposes three core requirements:
First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical. |
12,271,446 | 1,564,332 | 2016-11-21 | United States District Court for the Western District of Wisconsin | Whitford v. Gill | Whitford v. Gill, 218 F. Supp. 3d 837 (2016) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not ‘conjectural’ or ‘hypothetical.’ | The party invoking federal jurisdiction, here the plaintiffs, bears the burden of establishing Article III standing. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006).
The constitutional requirements for standing are well-established:
First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly... tracefable] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some third party not before the court. |
6,927,827 | 1,564,332 | 2014-02-11 | United States District Court for the Middle District of Louisiana | Lewis v. Ascension Parish School Board | Lewis v. Ascension Parish School Board, 996 F. Supp. 2d 450 (2014) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. | ” An injury in fact is “ |
3,619,861 | 1,564,332 | 2013-06-13 | United States Court of Appeals for the Eleventh Circuit | United States v. ADT Security Services, Inc. | United States v. ADT Security Services, Inc., 522 F. App'x 480 (2013) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | ‘injury in fact’ — an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical | If claimant shows that interest, the well-known three-factor test for standing requires: (1) claimant’s having suffered an “ |
3,649,141 | 1,564,332 | 2006-06-19 | United States District Court for the Eastern District of Pennsylvania | Geisenberger v. Gonzales | Geisenberger v. Gonzales, 346 B.R. 678 (2006) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. | Thus, at the outset of a lawsuit, a plaintiff must establish he or she has allegedly suffered an “ |
3,773,935 | 1,564,332 | 2008-01-24 | United States Court of Appeals for the Third Circuit | Policastro v. Kontogiannis | Policastro v. Kontogiannis, 262 F. App'x 429 (2008) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | The three elements necessary to establish the irreducible constitutional minimum of standing are: (1) the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. | Policastro Brief at 5. Accordingly, we will affirm the District Court’s denial of Policastro’s overbreadth challenge.
B.
Policastro also claims the Mailbox Policy is unconstitutional as it was applied to him. But Kontogiannis testified at trial that she removed the memorandum because of a disruption among the teachers that threatened to disrupt the school’s program. There is no evidence in the record demonstrating the Mailbox Policy was the cause of the memorandum’s removal. Accordingly, Policastro has not shown he suffered any injury under the policy or that the policy has ever in fact been applied to him. We will affirm the District Court’s denial of Policastro’s “as applied” challenge to the Mailbox Policy.
III.
Policastro also claims his First Amendment right to free speech was violated whether or not Kontogiannis removed the subject memorandum under the Mailbox Policy. He did not seek damages. He seeks declaratory and injunctive relief only, which, for the reasons set forth below, are forms of relief we have no authority to provide on the facts here. Therefore, we will dismiss this claim as non-justiciable, because even if meritorious, we could not redress it.
To bring and maintain a lawsuit through adjudication, Policastro must have standing. “ |
3,087,471 | 1,564,332 | 2008-07-21 | United States District Court for the District of Delaware | Neuberger v. Gordon | Neuberger v. Gordon, 567 F. Supp. 2d 622 (2008) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | (1) the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. | To establish constitutional standing, a plaintiff must satisfy three elements: “ |
4,067,058 | 1,564,332 | 2009-10-16 | United States Court of Appeals for the Sixth Circuit | School District v. Secretary of the United States Department of Education | School District v. Secretary of the United States Department of Education, 584 F.3d 253 (2009) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an invasion of a legally protected interest. | Warshak v. United States, 532 F.3d 521, 525 (6th Cir.2008) (en banc). This controversy implicates two of these doctrines — standing and ripeness.
1. Standing
First, we must decide whether Plaintiffs have standing to challenge NCLB under the Spending Clause. We review the question of standing de novo. Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 573 (6th Cir.2004). Plaintiffs, as the parties now asserting federal jurisdiction, have the burden of establishing standing. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). To satisfy the constitutional requirement of standing,
a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. The injury suffered must be “ |
3,952,655 | 1,564,332 | 2010-04-06 | United States District Court for the Northern District of Texas | Enviroglas Products, Inc. v. Enviroglas Products, LLC | Enviroglas Products, Inc. v. Enviroglas Products, LLC, 705 F. Supp. 2d 560 (2010) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not ‘conjectural’ or ‘hypothetical.’ | As the Supreme Court explained in Lujan, the “irreducible constitutional minimum of standing” has three elements:
First, the plaintiffs] must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical. |
4,037,387 | 1,564,332 | 2009-06-05 | United States Court of Appeals for the Second Circuit | In re Chrysler LLC | In re Chrysler LLC, 576 F.3d 108 (2009) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not conjectural or hypothetical.’ | Id. at 561, 112 S.Ct. 2130.
An injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not conjectural or hypothetical. |
4,313,845 | 1,564,332 | 2013-08-02 | United States District Court for the Middle District of Alabama | Caucus v. Alabama | Caucus v. Alabama, 988 F. Supp. 2d 1285 (2013) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical. | Bóchese v. Town of Ponce Inlet, 405 F.3d 964, 974-975 (11th Cir.2005) (internal quotation marks and citations omitted). “ |
4,313,845 | 1,564,332 | 2013-08-02 | United States District Court for the Middle District of Alabama | Caucus v. Alabama | Caucus v. Alabama, 988 F. Supp. 2d 1285 (2013) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | A plaintiff is deemed to have suffered an injury in fact — ‘an invasion of a judicially cognizable interest’ — when he demonstrates a harm that is ‘(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.’ | Id. at 561, 112 S.Ct. at 2136 (internal quotation marks omitted).
The Black Caucus plaintiffs cannot satisfy any of these elements for their claim under the Equal Protection Clause. And the failure to satisfy any of these elements is fatal to the justiciability of their claim. The Black Caucus plaintiffs cannot establish an actual or imminent injury, causation, or redressability. “A plaintiff is deemed to have suffered an injury in fact — ‘an invasion of a judicially cognizable interest’ — when he demonstrates a harm that is ‘(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. |
3,867,415 | 1,564,332 | 2012-07-18 | United States District Court for the District of Columbia | Belmont Abbey College v. Sebelius | Belmont Abbey College v. Sebelius, 878 F. Supp. 2d 25 (2012) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. | Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (emphasis in original) (citing Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). At its “irreducible constitutional minimum,” the doctrine requires a plaintiff to prove three elements: (1) a concrete and imminent injury-in-fact, (2) a causal relationship between the injury and defendants’ challenged conduct, and (3) a likelihood that the injury suffered will be redressed by a favorable decision. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130. Organizations suing on their own behalf, like individuals, must also satisfy these three requirements. See Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C.Cir.1995) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)).
Here, Defendants contend that Plaintiff fails the first prong — namely, -it has not alleged an injury sufficient to support standing. To satisfy the “injury-in-fact” requirement, a plaintiff must establish that it has suffered (or will suffer) “ |
12,270,762 | 1,564,332 | 2016-12-09 | United States District Court for the Middle District of Pennsylvania | Sprague v. Cortés | Sprague v. Cortés, 223 F. Supp. 3d 248 (2016) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | plaintiff must have suffered an injury in fact—an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical | It is well settled that three elements must be satisfied to meet “the irreducible constitutional minimum of standing”: (1) a “ |
4,069,207 | 1,564,332 | 2008-01-07 | United States Court of Appeals for the Sixth Circuit | School District v. Secretary of the United States Department of Education | School District v. Secretary of the United States Department of Education, 512 F.3d 252 (2008) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an invasion of a legally protected interest. | “[Plaintiffs, as the parties now asserting federal jurisdiction,” have the burden of establishing standing. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 126 S.Ct. 1854, 1861, 164 L.Ed.2d 589 (2006). To satisfy the constitutional requirement of standing,
a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. The injury suffered must be “ |
4,067,448 | 1,564,332 | 2007-12-28 | United States Court of Appeals for the Ninth Circuit | Bates v. United Parcel Service, Inc. | Bates v. United Parcel Service, Inc., 511 F.3d 974 (2007) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not conjectural or hypothetical, |
We likewise have jurisdiction to consider the district court’s denial of UPS’s Rule 52(c) motion for judgment on partial findings or, in the alternative, for class decertification under Rule 23(c)(1) and (d), because the district court’s determinations as to both motions are inextrica bly intertwined with the permanent injunction. Paige v. California, 102 F.3d 1035, 1039-40 (9th Cir.1996) (reviewing class certification order under § 1292(a)(1) because order was “inextricably intertwined” with permanent injunction granting class-wide relief); Marathon Oil, 807 F.2d at 764-65 (reviewing summary judgment and partial dismissal under § 1292(a)(1) where orders were “inextricably bound up” with findings and conclusions in support of permanent injunction).
II. Article III Standing
The district court did not grapple with the Article III standing issue, apparently because UPS did not raise a standing challenge below but instead framed its challenge as one to Bates’s failure to prove his prima facie case. Standing is a threshold matter central to our subject matter jurisdiction. We must assure ourselves that the constitutional standing requirements are satisfied before proceeding to the merits. United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995); Casey v. Lewis, 4 F.3d 1516, 1524 (9th Cir.1993).
In a class action, standing is satisfied if at least one named plaintiff meets the requirements. See Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir.2001). The plaintiff class bears the burden of showing that the Article III standing requirements are met. As we know from the oft-repeated passages in Lujan, standing requires that (1) the plaintiff suffered an injury in fact, i.e., one that is sufficiently “concrete and particularized” and “ |
12,001,000 | 1,564,332 | 1997-03-27 | United States District Court for the Southern District of New York | Kessler v. Grand Central District Management Ass'n | Kessler v. Grand Central District Management Ass'n, 960 F. Supp. 760 (1997) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. | Id. Rather, the “irreducible constitutional minimum of standing” requires that Plaintiffs prove three separate elements. First, they must show that they have suffered “ |
11,689,621 | 1,564,332 | 1998-07-29 | United States District Court for the Middle District of Alabama | American Energy Solutions, Inc. v. Alabama Power Co. | American Energy Solutions, Inc. v. Alabama Power Co., 16 F. Supp. 2d 1346 (1998) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. | Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (citing Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); Warth, 422 U.S. at 508, 95 S.Ct. 2197; Sierra Club v. Morton, 405 U.S. 727, 740-41, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)).
The most important of these is the injury requirement. Cone Corp. v. Florida Dep’t of Transportation, 921 F.2d 1190, 1203 (11th Cir.1991). It is well-settled that the party invoking the federal court’s jurisdiction bears the burden of establishing these three elements. United States v. Hays, 515 U.S. 737, 743, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995); Lujan, 504 U.S. at 561, 112 S.Ct. 2130; Warth, 422 U.S. at 518, 95 S.Ct. 2197.
The Supreme Court requires strict compliance with the jurisdictional standing requirement. Raines, — U.S. at --•, 117 S.Ct. at 2317. In a case such as this, where the court is asked to determine the constitutionality of a state statute, the court’s standing inquiry is especially rigorous. See Raines, — U.S. at-, 117 S.Ct. at 2317; Cone Corp., 921 F.2d at 1205 n. 47 (citing Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)). Thus, before.considering the merits of the case, the court must determine whether Plaintiffs have met their burden of establishing that their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable. Plaintiffs must at least establish that they have suffered an injury in fact — namely an “ |
11,439,068 | 1,564,332 | 2002-09-27 | United States Court of Appeals for the Fifth Circuit | Paterson v. Texas | Paterson v. Texas, 308 F.3d 448 (2002) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. | The class attorneys estimate that, if the State were to obtain custody of unclaimed settlement proceeds due to Texas citizens, these proceeds might amount to $40,000 to $50,000 out of national settlement proceeds of more than $6,000,000 available to the class.
The State brings this appeal.
DISCUSSION
We do not decide the issue of whether, in this federal class action suit, the reach of Texas substantive law governs that portion of the nationwide settlement which settles claims of Texas citizens. We also need not decide whether, as a matter of state substantive law and assuming that Texas law applies, funds which by the terms of the settlement agreement would otherwise revert to Western Union are subject to section 74.301 of the Texas Property Code. Instead, we turn first to the jurisdictional question of the State’s standing to object to the settlement. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (holding that federal courts should not assume jurisdiction over a claim and then reject it on the merits, but should decide jurisdiction first).
There are no unclaimed funds at present and no one knows which members of the class, if any, will fail to claim their payments. The parties, including all of the class through appointed attorneys, have agreed to the disposition and ownership of this money. That includes every dollar, if any, eventually retained by Western Union. Because the State can only speculate what might be unclaimed, what it is demanding is that Western Union can only settle this case by agreeing to a different disposition of possibly unclaimed money. The “irreducible constitutional minimum of standing” is composed of three elements, the first of which is that “ |
11,426,403 | 1,564,332 | 2002-09-16 | United States District Court for the Central District of California | Chamber of Commerce of the U.S. v. Lockyer | Chamber of Commerce of the U.S. v. Lockyer, 225 F. Supp. 2d 1199 (2002) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of .... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. | Preliminary Issues
Defendants and Intervenors argue the Court should not consider the merits of the case because Plaintiffs lack standing and Plaintiffs’ claims are barred by the Eleventh Amendment and the abstention doctrine.
1. 11th Amendment
Defendants argue the Eleventh Amendment prevents the Court from considering Plaintiffs’ claim based on violations of the California Constitution..The Eleventh Amendment has been interpreted as a grant of sovereign immunity to the states against suit in federal court. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). State officials may be subject to suits for declaratory and injunctive relief where enforcement of state law would violated the U.S. Constitution or federal statutes, Ex Parte Young, 209 U.S. 123, 166, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 281, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997), but the Eleventh Amendment bars suits in federal court against state officials based on claimed violations of state law. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 121, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Central Reserve Life of North America Ins. Co. v. Struve, 852 F.2d 1158, 1161 (9th Cir.1988). The Court will not take into account arguments based on violation of state law in considering the parties’ motions for summary judgment. Standing
Three components compose the constitutional minimum of Article III standing:
“First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. |
11,089,915 | 1,564,332 | 2001-06-18 | United States Court of Appeals for the Fifth Circuit | James v. City of Dallas | James v. City of Dallas, 254 F.3d 551 (2001) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. | ” Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). If the litigant fails to establish standing, he or she may not seek relief on behalf of himself or herself or any other member of the class.
The Supreme Court has recognized three requirements of Article III standing:
It is by now well settled that “the irreducible constitutional minimum of standing contains three elements. |
9,447,548 | 1,564,332 | 2002-04-08 | United States District Court for the District of Columbia | Giles v. Ashcroft | Giles v. Ashcroft, 193 F. Supp. 2d 258 (2002) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not conjectural or hypothetical, | Gonzalez v. Automatic Emp. Credit Union, 419 U.S. 90, 95, 95 S.Ct. 289, 42 L.Ed.2d 249 (1974); Wertheimer v. FEC, 268 F.3d 1070, 1072 (D.C.Cir.2001) (lack of standing “is, of course, jurisdictional” and would not require a three-judge court).
The Court finds that convening a three-judge court to address Giles’s claims in his Amended Complaint is unwarranted. As discussed below, Giles does not have standing to bring claims challenging the constitutionality of Section 5 of the Voting Rights Act; those claims are precluded by the decision in his prior Mississippi suit; this Court also does not have jurisdiction over Giles’s constitutional challenge to the federal court redistricting plan in Mississippi; and Giles does not have standing to raise that claim either. Because Section 5 has been upheld repeatedly — and recently' — by the United States Supreme Court, that challenge is entirely baseless and, as Judge Lee put it, “completely without merit.” Giles v. Ashcroft, No. 3:01CV392WS, at 6 n. 6. The Supreme Court’s previous decisions upholding the Voting Rights Act have in effect foreclosed such challenges to Section 5, leaving no room for Giles’s current challenges. Given that these threshold issues are controlling, a three-judge court is not warranted. Wertheimer, 268 F.3d at 1072.
2. Section 5 of the Voting Rights Act
Giles asks this Court to rule that Section 5 of the Voting Rights Act is unconstitutional and to enjoin its enforcement in Mississippi. However, he does not have standing to raise his constitutional challenges to Section 5. Moreover, he cannot relitigate the standing issue here since it was conclusively decided against him in his Mississippi suit.
a. To establish standing, a complainant must show (1) a personal “injury in fact” that is concrete and particularized and “ |
9,405,588 | 1,564,332 | 2002-04-05 | United States District Court for the District of Utah | Natural Arch & Bridge Society v. Alston | Natural Arch & Bridge Society v. Alston, 209 F. Supp. 2d 1207 (2002) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | suffered an ‘injury in fact’ ... which is ... concrete and particularized. | (Deposition of Evelyn Johnson, at 29:3-6.) The ranger did not demand that Ms. Johnson and her group leave the area; instead, he “asked very nicely,” (id. at 38:25), in the form of a “request.” (Id. at 42:12.) The ranger did not threaten Ms. Johnson nor a member of her group with citation if they chose not to leave the area. (Id. at 31:17-18.) The ranger did not specifically state why he was asking Ms. Johnson and her group to leave the area. (Id. at 29:2-7.) From the deposition excerpts submitted with the parties’ motions, it is unclear whether Ms. Johnson or members of her group were sitting in an area closed for revegetation. Ms. Johnson either did not notice or read signs notifying the public that certain areas around the bridge were closed due to revegetation efforts, (id. at 28:11-22; 31:6-13), nor signs requesting or mandating that people not walk underneath the bridge. (Id. at 31:11-13.)
Although it is clear that Ms. Johnson and her group voluntarily chose to comply with the ranger’s request and leave the area, it is unclear whether the ranger’s request stems from the Park Service’s policy of asking that people voluntarily comply with not walking underneath the bridge or the Park Service’s revegetation efforts. Ms. Johnson did not allege in her complaint nor state in her deposition testimony that the ranger requested her depar ture from the bridge because of the Park Service’s voluntary policy. Ms. Johnson has failed to bear her burden to establish the “irreducible constitutional minimum of standing” that she has “suffered an ‘injury in fact’... which is... concrete and particularized. |
9,101,471 | 1,564,332 | 2003-06-09 | United States District Court for the Western District of Louisiana | Matte v. Sunshine Mobile Homes, Inc. | Matte v. Sunshine Mobile Homes, Inc., 270 F. Supp. 2d 805 (2003) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not conjectural or hypothetical. | ” (Par. 15 Subparagraph 5, p. 20);
Again, this section contains no allegation that any named plaintiff suffered an injury or other harm as a result of the alleged defects. While Paragraph 16 does set out a list of “various health problems” caused by the alleged defects, they are general in nature: no specific plaintiff alleges that he or she has suffered such an injury. Paragraph 16 reads as follows:
16.
Also as a result of the above-described defective design, construction and composition of said mobile homes, the infiltration of moisture and other elements provides an environment conducive to the formation and growth of toxic mold spores which infiltrate the indoor environment of said mobile homes, producing various health problems, including, but not limited to chronic sinus infections, nose bleeds, headaches, cognitive problems and other serious and life threatening ailments, rendering said mobile homes unreasonably dangerous and unfit for their intended purpose. Clearly, the allegations in this paragraph fall far short of the constitutional requirement that plaintiffs establish an “injury in fact” which is “concrete and particularized,” as well as “ |
72,804 | 1,564,332 | 2006-01-12 | United States District Court for the Central District of California | D’Lil v. Best Western Encina Lodge & Suites | D’Lil v. Best Western Encina Lodge & Suites, 415 F. Supp. 2d 1048 (2006) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not ‘conjectural or hypothetical.’ | See also City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (“those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. Ill of the Constitution by alleging an actual case or controversy”). First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest, which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural or hypothetical. |
9,012,626 | 1,564,332 | 2005-04-07 | United States Court of Appeals for the Eleventh Circuit | Bochese v. Town of Ponce Inlet | Bochese v. Town of Ponce Inlet, 405 F.3d 964 (2005) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | [t]o satisfy the constitutional requirements of standing, a plaintiff must make three showings: First, the plaintiff must have suffered an ‘injury in fact’- — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural | This single mention of diminution in property value in Bochese’s monetary damages claim is open-ended and could theoretically be construed as a claim for the reduction in value as a result of the application of the 35-foot rule; however, we cannot fairly read it that way for several reasons. For one thing, at no point in the complaint or even subsequent to its filing does Mr. Bóchese in any way elaborate on this isolated reference to diminished property value, let alone attribute it to the height restriction. Moreover, Mr. Boehese’s complaint strongly says that he believes any economic loss he has suffered ■ resulted from the removal of his property from PLPI’s PUD and consequent “down-zoning” to T-l status. In fact, he repeatedly quantifies his loss as $950,000, precisely the potential value of his contract with PLPI. Finally, his plea for injunctive relief — seeking to bar the Town from down-zoning his land from T-l to PUD — makes plain that Mr. Bóchese is challenging the rescission of the Fourth Contract Amendment, not the Town’s 35-foot building height restriction. R. 44, 47.
At no point in the complaint does Mr. Bóchese assert that he is challenging or that he has been injured in any way by the Town’s April 18, 2001 adoption of Ordinance 2001-08, implementing an across-the-board 35-foot building height limit; by the Town’s readoption of its charter, effective December 1, 2001, to reflect this height restriction; or by any action of the Town other than its rescission of the Fourth Contract Amendment on February 27, 2002. Based on the allegations that are contained in Mr. Bochese’s complaint, we conclude that all he has challenged here is the Town’s rescission of the Fourth Contract Amendment to its Development Agreement with PLPI. We analyze his standing accordingly.
It is by now well established that; “ |
9,012,626 | 1,564,332 | 2005-04-07 | United States Court of Appeals for the Eleventh Circuit | Bochese v. Town of Ponce Inlet | Bochese v. Town of Ponce Inlet, 405 F.3d 964 (2005) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not ‘conjectural’ or ‘hypothetical,’ | Warth, 422 U.S. at 499, 95 S.Ct. 2197 (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973)). Because Mr. Bochese was neither a party to nor an intended beneficiary of the Fourth Contract Amendment, he has not himself suffered a legally cognizable injury as a result of its rescission; thus, even though he might benefit collaterally from the reinstatement of that agreement, he lacks standing to bring this challenge.
Mr. Bóchese has also failed to establish that any harm he suffered was “ |
9,036,924 | 1,564,332 | 2005-01-31 | United States Court of Appeals for the Seventh Circuit | O’Sullivan v. City of Chicago | O’Sullivan v. City of Chicago, 396 F.3d 843 (2005) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical | Any plaintiff seeking to invoke the power of a federal court bears the burden of demonstrating: (1), an “ |
556,343 | 1,564,332 | 2005-12-23 | United States Court of Appeals for the District of Columbia Circuit | Judicial Watch, Inc. v. United States Senate | Judicial Watch, Inc. v. United States Senate, 432 F.3d 359 (2005) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | invasion of a legally protected interest. | ” Judicial Watch, 340 F.Supp.2d at 32. As delay appears to be the only specific impairment of efficient function alleged, we will focus on it.
The district court found that Judicial Watch failed to show any of the three elements of Article III standing. In rejecting Judicial Watch’s claim of injury-in-fact it relied heavily on language in Lujan describing the requisite injury as “ |
9,096,677 | 1,564,332 | 2002-10-22 | United States District Court for the Northern District of Texas | International Transactions, Ltd. v. Embotelladora Agral Regiomontana, S.A. de C.V. | International Transactions, Ltd. v. Embotelladora Agral Regiomontana, S.A. de C.V., 277 F. Supp. 2d 670 (2002) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent; |
The Supreme Court has held that Article III standing, at its “irreducible constitutional minimum,” requires that a plaintiff demonstrate: (1) “ |
4,178,605 | 1,564,332 | 2014-12-11 | United States District Court for the Eastern District of Pennsylvania | National Ass'n for the Advancement of Multijurisdictional Practice v. Castille | National Ass'n for the Advancement of Multijurisdictional Practice v. Castille, 66 F. Supp. 3d 633 (2014) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not ‘conjectural’ or ‘hypothetical,’ | Fed.R.Civ.P. 56(a). By filing their cross motions, both parties have claimed there is no material factual dispute and that each is entitled to judgment as a matter of law.
After reading the parties’ briefs, including their joint statement of undisputed facts, and hearing oral argument from counsel, I am satisfied there is no genuine dispute as to any material fact. The sole question is which party is entitled to judgment as a matter of law.
Plaintiffs contend that Rule 204 violates many provisions of the Constitution, beginning with Article I, Section 8’s Commerce Clause, and continuing all the way through to the Fourteenth Amendment. Defendants offer several responses. First, Defendants contend that Plaintiffs lack standing to challenge Rule 204. Second, Defendants argue that even if Plaintiffs have standing, Defendants are immune from Plaintiffs’ challenge. Finally, Defendants argue that even if Plaintiffs have standing, and there is no immunity, Rule 204 does not violate any part of the Federal Constitution.
II. Standing
A Standing Generally
I will consider Plaintiffs’ standing first. The Federal Constitution prohibits courts from taking jurisdiction over disputes that do not involve a justiciable case or controversy. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Supreme Court outlined three necessary elements of standing in Lujan:
First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized... and (b) “ |
5,700,620 | 1,564,332 | 2011-05-05 | United States Court of Appeals for the Fifth Circuit | Osterweil v. Edmonson | Osterweil v. Edmonson, 424 F. App'x 342 (2011) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, ... and (b) actual or imminent, not conjectural or hypothetical^] ... Second, there must be a causal connection between the injury and the conduct complained of[.] ... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. | PER CURIAM:
Alfred G. Osterweil appeals the district court’s Rule 12(b)(1) dismissal of his complaint for lack of standing. We review the district court’s decision de novo, see Cornerstone Christian Schs. v. Univ. Interscholastic League, 563 F.3d 127, 133 (5th Cir.2009), and we AFFIRM.
Osterweil alleged in his complaint that Louisiana’s statutes and regulations for obtaining a concealed handgun permit violate the right to bear arms under the Second Amendment. We agree with the district court that Osterweil has failed to show an injury in fact.
The party seeking to invoke federal jurisdiction has the burden of establishing standing. Standing is composed of three elements: “First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized,... and (b) actual or imminent, not conjectural or hypothetical^] |
4,314,207 | 1,564,332 | 2013-12-20 | United States District Court for the Middle District of Alabama | Alabama Legislative Black Caucus v. Alabama | Alabama Legislative Black Caucus v. Alabama, 989 F. Supp. 2d 1227 (2013) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. | “First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. |
4,108,315 | 1,564,332 | 2010-07-14 | United States District Court for the District of Nebraska | Planned Parenthood of Heartland v. Heineman | Planned Parenthood of Heartland v. Heineman, 724 F. Supp. 2d 1025 (2010) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. | Nolles v. State Comm, for Reorg. of Sch. Dist., 524 F.3d 892, 898 (8th Cir.2008) (internal marks omitted). Injury-in-Fact
To establish injury-in-fact, the party bringing suit must have a “ |
3,785,656 | 1,564,332 | 2006-09-14 | United States District Court for the District of New Jersey | Carton v. Choice Point & Choice Point Services, Inc. | Carton v. Choice Point & Choice Point Services, Inc., 450 F. Supp. 2d 489 (2006) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | The three elements necessary to satisfy the irreducible constitutional minimum of standing are: (1) the plaintiff must have suffered an injury in fact an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. | ” Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir.2006).
A.
“ |
4,115,186 | 1,564,332 | 2009-06-05 | United States Court of Appeals for the Second Circuit | In re Chrysler LLC | In re Chrysler LLC, 411 B.R. 108 (2009) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not conjectural or hypothetical. | Id. at 561, 112 S.Ct. 2130.
An injury in fact is “ |
4,083,332 | 1,564,332 | 2014-01-10 | United States Court of Appeals for the Eleventh Circuit | I.L. v. Alabama | I.L. v. Alabama, 739 F.3d 1273 (2014) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. | Id. at 779.
Our discussion of this complicated case is divided into three parts. First, we consider whether the plaintiffs have standing for the various claims they assert. Second, we address Alabama’s contention that the action is barred by the Tax Injunction Act and principles of comity. Finally, we conclude with the merits of the claims properly before us.
II
Alabama argues, as it did below, that the plaintiffs lack standing. Standing is one of the Article III case or controversy requirements, see Stalley ex ret. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir.2008), and must therefore be established “as a threshold matter,” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). To have standing, the plaintiffs must demonstrate injury in fact, causation, and redressability. See, e.g., DiMaio v. Democratic Nat’l Comm., 520 F.3d 1299, 1301-02 (11th Cir.2008). Failure to satisfy any of these three requirements is fatal. See Fla. Wildlife Fed., Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296,1302 (11th Cir.2011).
We review the plaintiffs’ standing de novo. See DiMaio, 520 F.3d at 1301. The State contends that the plaintiffs lack a cognizable injury and cannot show that any alleged injury would be redressed by the relief they request. See Appellees’ Br. at 17-21.
A
An injury in fact is “ |
3,724,119 | 1,564,332 | 2009-06-18 | United States District Court for the Northern District of Texas | Bell v. American Traffic Solutions, Inc. | Bell v. American Traffic Solutions, Inc., 633 F. Supp. 2d 305 (2009) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not ‘conjectural’ or ‘hypothetical.’ | As the Supreme Court explained in Lujan, the “irreducible constitutional minimum of standing” has three elements:
First, the plaintiff[s] must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical. |
3,864,316 | 1,564,332 | 2011-12-14 | United States Court of Appeals for the Third Circuit | Doe ex rel. Doe v. Lower Merion School District | Doe ex rel. Doe v. Lower Merion School District, 665 F.3d 524 (2011) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not conjectural or hypothetical. | To satisfy the Article III case or controversy requirement, a plaintiff must establish that he or she has suffered an “injury in fact” that is both “concrete and particularized” and “ |
4,287,919 | 1,564,332 | 2015-07-30 | United States Court of Appeals for the Ninth Circuit | Novak v. United States | Novak v. United States, 795 F.3d 1012 (2015) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an invasion of a legally protected interest | Id. at 561, 112 S.Ct. 2130. Injury in Fact
“[A]n injury in fact” is “ |
4,287,919 | 1,564,332 | 2015-07-30 | United States Court of Appeals for the Ninth Circuit | Novak v. United States | Novak v. United States, 795 F.3d 1012 (2015) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not conjectural or hypothetical. | Injury in Fact
“[A]n injury in fact” is “an invasion of a legally protected interest” that is “concrete and particularized” and “ |
4,362,836 | 1,564,332 | 2015-07-02 | United States District Court for the Northern District of Iowa | Hughes v. City of Cedar Rapids | Hughes v. City of Cedar Rapids, 112 F. Supp. 3d 817 (2015) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not conjectural or hypothetical. | As the Supreme Court explains:
An injury sufficient to satisfy Article III must be “concrete and particularized” and “ |
12,273,004 | 1,564,332 | 2018-01-09 | United States District Court for the Middle District of North Carolina | Common Cause v. Rucho | Common Cause v. Rucho, 279 F. Supp. 3d 587 (2018) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, ... and (b) ‘actual or imminent, not conjectural or hypothetical.’ | To establish standing, a plaintiff first must demonstrate “an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized,... and (b) ‘actual or imminent, not conjectural or hypothetical. |
3,821,218 | 1,564,332 | 2006-08-11 | United States District Court for the District of Oregon | Olsen v. Gonzales | Olsen v. Gonzales, 350 B.R. 906 (2006) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | an invasion of a legally protected interest | ’ ” U.S. v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995). Plaintiffs bear the burden of demonstrating that this suit involves a “case or controversy.” In Arizonans For Official English v. Arizona, the United States Supreme Court stated:
Article III, § 2, of the Constitution confines federal courts to the decision of “Cases” or “Controversies.” To qualify as a party with standing to litigate, a person must show, first and foremost, “ |
4,362,401 | 1,564,332 | 2015-07-16 | United States District Court for the Northern District of California | Mehr v. Féderation Internationale de Football Ass'n | Mehr v. Féderation Internationale de Football Ass'n, 115 F. Supp. 3d 1035 (2015) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | invasion of a legally protected interest |
To qualify as a party with standing to litigate, a plaintiff must- show injury in the form of “ |
4,362,401 | 1,564,332 | 2015-07-16 | United States District Court for the Northern District of California | Mehr v. Féderation Internationale de Football Ass'n | Mehr v. Féderation Internationale de Football Ass'n, 115 F. Supp. 3d 1035 (2015) | 1995-06-29 | Supreme Court of the United States | United States v. Hays | United States v. Hays, 515 U.S. 737 (1995) | 1564332_2 | actual or imminent, not ‘conjectural’ or ‘hypothetical.’ | Plaintiffs assert that they are required to plead only a “short and plain statement of the claim” showing that they are entitled to relief, and that there is no requirement to plead injury resulting from defendants’ conduct in any detail. Under Lujan, plaintiffs are required to allege an injury that is “concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical. |
11,682,303 | 11,714,381 | 1998-10-06 | United States Court of Appeals for the Second Circuit | Filetech S.A. v. France Telecom S.A. | Filetech S.A. v. France Telecom S.A., 157 F.3d 922 (1998) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | foreign state shall be immune from the jurisdiction of the courts of the United States and of the States, | Although the FSIA provides that a “ |
11,682,303 | 11,714,381 | 1998-10-06 | United States Court of Appeals for the Second Circuit | Filetech S.A. v. France Telecom S.A. | Filetech S.A. v. France Telecom S.A., 157 F.3d 922 (1998) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | is based upon a commercial activity carried on in the United States by [a] foreign state, |
Accordingly, Fileteeh first contends that its action “ |
11,682,303 | 11,714,381 | 1998-10-06 | United States Court of Appeals for the Second Circuit | Filetech S.A. v. France Telecom S.A. | Filetech S.A. v. France Telecom S.A., 157 F.3d 922 (1998) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | act[s] outside the territory of the United States in connection with [its] commercial activity ... elsewhere ... [that] cause[ ] a direct effect in the United States. |
By virtue of its complaint allegations, Fileteeh also contends that its action is based upon France Telecom S.A.’s “act[s] outside the territory of the United States in connection with [its] commercial activity... elsewhere... [that] cause[ ] a direct effect in the United States. |
11,683,554 | 11,714,381 | 1998-08-05 | United States District Court for the Southern District of New York | U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co. | U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 16 F. Supp. 2d 326 (1998) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | in connection with a commercial activity | See 991 F.2d at 1020 (“if [the plaintiff] is found to be a third party beneficiary to the Charter Party, it may be proper for the district court to enforce the arbitration agreement against [the defendant]”); see also 9 U.S.C. § 206 (allowing court to order arbitration under the FAA). According to Cargill, the FSIA must be read with the FAA to give the Convention a broad interpretation. Accordingly, the Court concludes that it has subject matter jurisdiction to determine whether the parties entered into a binding charter party agreement that required arbitration in London.
2.
The Court concludes that Guangzhou’s actions, taken in China, caused a “direct effect” in the U.S. and that those of its broker, Seagos, were taken “ |
11,683,554 | 11,714,381 | 1998-08-05 | United States District Court for the Southern District of New York | U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co. | U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 16 F. Supp. 2d 326 (1998) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | in connection with a commercial activity |
In order for an act taken “ |
11,683,554 | 11,714,381 | 1998-08-05 | United States District Court for the Southern District of New York | U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co. | U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 16 F. Supp. 2d 326 (1998) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | an act [taken] outside the ... United States, | ’” Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992) (quoting Weltover, Inc. v. Republic of Argentina, 941 F.2d 145, 152 (2d Cir.1991)). The act of making and directing this correspondence was “an act [taken] outside the... United States,” “in connection with a commercial activity... elsewhere,” that caused Titan allegedly to suffer a “direct effect” — $1 million in damages — in the U.S. |
11,683,554 | 11,714,381 | 1998-08-05 | United States District Court for the Southern District of New York | U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co. | U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 16 F. Supp. 2d 326 (1998) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | in connection with a commercial activity ... elsewhere, | The act of making and directing this correspondence was “an act [taken] outside the... United States,” “in connection with a commercial activity... elsewhere,” that caused Titan allegedly to suffer a “direct effect” — $1 million in damages — in the U.S. |
287,693 | 11,714,381 | 1998-06-24 | United States Court of Appeals for the Second Circuit | Hanil Bank v. Pt. Bank Negara Indonesia | Hanil Bank v. Pt. Bank Negara Indonesia, 148 F.3d 127 (1998) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | in connection with a commercial activity, | Under the FSIA, a foreign state is immune from suit in the United States with respect to its “sovereign or public” acts, but not immune from suit for those acts characterized as its “private or commercial” acts. See Nelson, 507 U.S. at 359-60, 113 S.Ct. 1471. If a state’s acts do not qualify for immunity under the FSIA, district courts have original jurisdiction over the action pursuant to 28 U.S.C. § 1330(a), so long as the state was properly served under § 1608. See 28 U.S.C. § 1330(b).
B. Commercial Activity Exception
The single most important exception to foreign state immunity under the FSIA is the “commercial activity” exception. That exception provides that a foreign state will not be immune from suit in any case
[ 1] in which the action is based upon a commercial activity earned on in the United States by the foreign state; or [2] upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or [3] upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.
28 U.S.C. § 1605(a)(2).
The district court ruled that when BNI failed to pay the letter of credit, such action had a “direct effect” in the United States. See Hanil Bank, 1997 WL 411465 at *3. Thus, it found that the “commercial activity” exception to the foreign state’s sovereign immunity applied. See id. We review that ruling of law de novo.
The third clause of § 1605(a)(2) excepts a foreign state from sovereign immunity where suit is based upon an act that occurs outside the United States, that was taken “ |
11,584,961 | 11,714,381 | 1998-10-13 | United States District Court for the Northern District of California | Morgan Equipment Co. v. Novokrivorogsky State Ore Mining & Processing Enterprise | Morgan Equipment Co. v. Novokrivorogsky State Ore Mining & Processing Enterprise, 57 F. Supp. 2d 863 (1998) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | an act performed in the United States in connection with a commercial activity of the foreign state elsewhere | Aside from these negotiations, the Court can find no evidence that the Mine has conducted commercial activities in the United States at all. The first part of the commercial activity exception to the FSIA is inapplicable. Acts Performed in the United States
Because Morgan’s argument under the second prong of the commercial activity exception — for cases involving “ |
11,584,961 | 11,714,381 | 1998-10-13 | United States District Court for the Northern District of California | Morgan Equipment Co. v. Novokrivorogsky State Ore Mining & Processing Enterprise | Morgan Equipment Co. v. Novokrivorogsky State Ore Mining & Processing Enterprise, 57 F. Supp. 2d 863 (1998) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | direct effect in the United States. | Acts Performed in the United States
Because Morgan’s argument under the second prong of the commercial activity exception — for cases involving “an act performed in the United States in connection with a commercial activity of the foreign state elsewhere” — is predicated on its contention that the material portion of negotiations took place in San Francisco and not Ukraine, the Court similarly finds that this second part.of the commercial activity exception is inapplicable. 28 U.S.C. § 1605(a)(2). Acts With Direct Effects in the United States
Lastly, Morgan argues that even if the Court finds that the negotiations took place in Ukraine, jurisdiction is still proper under the third part of Section 1605(a)(2) because the Mine’s commercial activity had a “ |
10,515,397 | 11,714,381 | 1994-06-24 | United States Court of Appeals for the District of Columbia Circuit | Goodman Holdings v. Rafidain Bank | Goodman Holdings v. Rafidain Bank, 26 F.3d 1143 (1994) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | based upon a commercial activity carried on in the United States by the foreign state, |
First, we agree with the district court that, under the facts alleged, Rafidain as a branch of the Iraqi government enjoys statutory sovereign immunity from this action. The immunity statute provides foreign governments with blanket immunity from suit in United States courts, subject only to specific exceptions:
Immunity of a foreign state from jurisdiction
Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.
28 U.S.C. § 1604. It is undisputed that Rafi-dain, as a branch of the Iraqi government, is a foreign state generally entitled to immunity under this section. Goodman contends, however, that this particular action comes within both the commercial activity and direct effect exceptions, set out in the first and third clauses of subsection 1605(a)(2). That subsection provides:
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—
(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States;
28 U.S.C. § 1605(a)(2).
Goodman first invokes the commercial activity exception, asserting this action is “ |
10,515,397 | 11,714,381 | 1994-06-24 | United States Court of Appeals for the District of Columbia Circuit | Goodman Holdings v. Rafidain Bank | Goodman Holdings v. Rafidain Bank, 26 F.3d 1143 (1994) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | the action is based ... upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. | ”).
Goodman next contends its suit comes within the “direct effect” exception in subsection 1605(a)(2)’s third clause because “the action is based... upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. |
10,532,178 | 11,714,381 | 1994-08-29 | United States Court of Appeals for the Tenth Circuit | United World Trade, Inc. v. Mangyshlakneft Oil Production Ass'n | United World Trade, Inc. v. Mangyshlakneft Oil Production Ass'n, 33 F.3d 1232 (1994) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. | WESLEY E. BROWN, District Judge.
The issue in this case is whether the defendants are immune from the jurisdiction of the U.S. District Court under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq. The district court held that the defendants were entitled to immunity and dismissed the complaint. 821 F.Supp. 1405.
Under the FSIA, foreign states are generally immune from the jurisdiction of the courts of the United States. 28 U.S.C. § 1604. One exception to this general rule is found in § 1605(a)(2), which provides in part that a foreign state shall not be immune from jurisdiction in cases in which the action is based “ |
10,532,178 | 11,714,381 | 1994-08-29 | United States Court of Appeals for the Tenth Circuit | United World Trade, Inc. v. Mangyshlakneft Oil Production Ass'n | United World Trade, Inc. v. Mangyshlakneft Oil Production Ass'n, 33 F.3d 1232 (1994) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | in which the action is based ... upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. | ” The exception relied upon by the plaintiff in this case provides that a foreign state is not immune from suit in any case “in which the action is based... upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. |
10,532,178 | 11,714,381 | 1994-08-29 | United States Court of Appeals for the Tenth Circuit | United World Trade, Inc. v. Mangyshlakneft Oil Production Ass'n | United World Trade, Inc. v. Mangyshlakneft Oil Production Ass'n, 33 F.3d 1232 (1994) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | direct effect in the United States. | Appellant alleges that payment in U.S. dollars could only be accomplished by having the proceeds of the sale of defendants’ oil transferred from a European bank to a United States bank for conversion of the proceeds into U.S. dollars. This is precisely what happened, appellant contends, with respect to the first two shipments of oil. The refiner ISAB forwarded payment for those shipments to the London Branch of the San Paolo Bank — which had been selected by UWT as the “European/USA Bank” specified in the contract. The San Paolo Bank then transferred the funds to its New York branch, which in turn transferred the funds through CitiBank of New York to be converted into U.S. dollars. The defendants’ share of the proceeds was then credited to the defendants’ account with a bank in Paris and UWT’s share was transferred to its account in Denver.
Appellant’s brief identifies several alleged “direct effects” that were brought about by MOP’s refusal to supply any more oil under the contract. Foremost of these appears to be the fact that no additional oil proceeds were transferred to the United States for conversion into U.S. dollars. Appellant notes that CitiBank of New York did not receive a commission for the conversion of funds that it otherwise would have obtained. Appellant’s losses in connection with providing ISAB a contractual guarantee are also cited by appellant as a direct effect of the defendants’ actions. Additionally, appellant alleges that UWT suffered financial loss in the United States in the form of lost profits as a result of the defendants’ actions.
At the outset, we must concede that we have struggled to identify objective standards that would aid in determining what does and does not qualify as a “ |
10,532,178 | 11,714,381 | 1994-08-29 | United States Court of Appeals for the Tenth Circuit | United World Trade, Inc. v. Mangyshlakneft Oil Production Ass'n | United World Trade, Inc. v. Mangyshlakneft Oil Production Ass'n, 33 F.3d 1232 (1994) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | a direct effect in the United States | See also Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 241 (2nd Cir.1994) (Foreign state’s failure to remit funds in New York, as they were contractually bound to do, had a direct effect in the United States.) Nor is the fact that UWT is an American corporation that suffered a financial loss sufficient to place the direct effect of the defendants’ actions “in the United States.” Appellant would have us interpret § 1605(a)(2) in a manner that would give the district courts jurisdiction over virtually any suit arising out of an overseas transaction in which an American citizen claims to have suffered a loss from the acts of a foreign state. We think that the language of § 1605(a)(2) limiting jurisdiction to cases where there is a “direct effect” in the United States makes it unlikely that this was Congress’ intent.
The allegations set forth by appellant do not demonstrate that the defendants’ actions caused “ |
1,859,403 | 11,714,381 | 1991-10-28 | United States Court of Appeals for the Second Circuit | Antares Aircraft, L.P. v. Federal Republic of Nigeria | Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90 (1991) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | direct effect in the United States | ALTIMARI, Circuit Judge:
Plaintiff-appellant Antares Aircraft, L.P. (“Antares”), a Delaware limited partnership with its principal place of business in New York, appeals from a judgment of the United States District Court for the Southern District of New York (John S. Martin, Jr., Judge), dismissing its claim against de fendants-appellants the Federal Republic of Nigeria (“FRN”) and the Nigerian Airports Authority (“NAA”) for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act of 1976 (“FSIA”). See 28 U.S.C. §§ 1330, 1332(a)(2)-(4), 1441(d), and 1602-1611 (1988). Antares brought the underlying action to recover damages for the alleged conversion of its aircraft in Nigeria, claiming that the NAA, a Nigerian corporation established pursuant to governmental decree and responsible for the operation and management of all airports in Nigeria, wrongfully detained its aircraft in Nigeria until Antares paid certain airport parking and landing fees that its lessee allegedly owed to the NAA. Antares paid these fees using funds from its New York bank account. Antares attributed the NAA’s conduct to the FRN by arguing that the NAA is not truly a separate entity, but is owned and operated by the FRN and is essentially the FRN’s agent.
The defendants moved to dismiss the complaint, contending that the district court lacked subject matter jurisdiction under the FSIA because neither the FSIA’s “commercial activity” exception, see 28 U.S.C. § 1605(a)(2), nor its “expropriation” exception, see 28 U.S.C. § 1605(a)(3), applied. The court reasoned that the “commercial activity” exception did not apply because the alleged conversion of Antares’ aircraft in Nigeria did not have a “ |
1,859,403 | 11,714,381 | 1991-10-28 | United States Court of Appeals for the Second Circuit | Antares Aircraft, L.P. v. Federal Republic of Nigeria | Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90 (1991) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | direct effect in the United States | The court reasoned that the “commercial activity” exception did not apply because the alleged conversion of Antares’ aircraft in Nigeria did not have a “direct effect in the United States” within the meaning of § 1605(a)(2). The court thus rejected Antares’ contention that the financial loss it suffered as a result of the defendants’ conduct overseas was alone sufficient to satisfy the “ |
1,859,403 | 11,714,381 | 1991-10-28 | United States Court of Appeals for the Second Circuit | Antares Aircraft, L.P. v. Federal Republic of Nigeria | Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90 (1991) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | a direct effect in the United States | The court thus rejected Antares’ contention that the financial loss it suffered as a result of the defendants’ conduct overseas was alone sufficient to satisfy the “direct effect in the United States” test of § 1605(a)(2). The court further held that the “expropriation” exception did not apply because the NAA did not conduct any commercial activity in the United States, a necessary element of this exception.
Antares appeals from the judgment of dismissal, contending, among other things, that the district court erred in finding that the financial loss Antares incurred in the United States as a result of the alleged conversion of its aircraft in Nigeria was not “ |
1,859,403 | 11,714,381 | 1991-10-28 | United States Court of Appeals for the Second Circuit | Antares Aircraft, L.P. v. Federal Republic of Nigeria | Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90 (1991) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | direct effect in the United States |
Five months later, Antares commenced the underlying action against the FRN and the NAA in the United States District Court for the Southern District of New York to recover damages stemming from the detention and alleged conversion of the aircraft in Nigeria. The complaint alleged that the NAA wrongfully detained the aircraft as part of a scheme to extort payments from Antares. While Antares did not claim that the FRN participated directly in this undertaking, it sought to hold the FRN liable on the theory that the FRN owned and operated the NAA and that the NAA was, in effect, an agent of the FRN, and not a separate corporate instrumentality-
The defendants moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction under the FSIA. Under the FSIA, federal and state courts are without subject matter jurisdiction to entertain an action against a “foreign state,” as defined in 28 U.S.C. § 1603(a), unless the claim falls under one of the statutory exceptions set forth in 28 U.S.C. §§ 1605-1607. See 28 U.S.C. § 1604; Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 687, 102 L.Ed.2d 818 (1989); Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1017 (2d Cir.1991). The parties agreed that the alleged actions qualify as the activities of a “foreign state,” and thus the FRN and the NAA were entitled to immunity unless one of the FSIA exceptions applied.
With regard to the “commercial activity” exception, the court found that the detention and alleged conversion of the aircraft in Nigeria did not cause a “ |
1,859,403 | 11,714,381 | 1991-10-28 | United States Court of Appeals for the Second Circuit | Antares Aircraft, L.P. v. Federal Republic of Nigeria | Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90 (1991) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | commercial activity in the United States, |
With regard to the “commercial activity” exception, the court found that the detention and alleged conversion of the aircraft in Nigeria did not cause a “direct effect in the United States” within the meaning of the statute. According to the district court, the direct effect of the NAA’s conduct occurred in Nigeria where the plane was detained and where it supposedly suffered damage from exposure to the elements. Although the alleged conversion may have caused Antares financial loss in the United States to the extent that it had to pay the parking and landing fees out of its New York bank account, the court concluded that this loss was an indirect consequence of the defendants’ activity. The district court thus rejected Antares’ claim that the financial loss it suffered in the United States as a result of the defendants’ conduct overseas was alone a sufficient jurisdictional nexus to this country to satisfy § 1605(a)(2).
The district court also held that the “expropriation” exception did not apply because Antares failed to allege sufficient facts from which it could be inferred that the NAA conducted “ |
1,859,403 | 11,714,381 | 1991-10-28 | United States Court of Appeals for the Second Circuit | Antares Aircraft, L.P. v. Federal Republic of Nigeria | Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90 (1991) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | in which the action is based ... upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. | ” Weltover, Inc. v. Republic of Argentina, 941 F.2d 145, 148 (2d Cir.1991).
It is undisputed that the activities of the NAA and the FRN are those of a “foreign state” within the meaning of the FSIA. See 28 U.S.C. § 1603(a)-(b). Therefore, unless one of the FSIA exceptions applies, there is no subject matter jurisdiction in the instant action. Under the FSIA, the foreign state has the burden of proving that it is entitled to sovereign immunity, i.e., that its conduct is not covered by a FSIA exception. See, e.g., L’Europeenne de Banque v. La Republica de Venezuela, 700 F.Supp. 114, 119 (S.D.N.Y.1988); Braka v. Bancomer, S.A., 589 F.Supp. 1465, 1467 (S.D.N.Y.1984), aff'd, 762 F.2d 222 (2d Cir.1985); see also H.R.Rep. No. 1487, 94th Cong., 2d Sess. 7, reprinted in 1976 U.S.C.C.A.N. 6604, 6616. For purposes of this appeal, the two relevant exceptions are the “commercial activity” exception, see 28 U.S.C. § 1605(a)(2), and the “expropriation” exception, see 28 U.S.C. § 1605(a)(3).
A.
The “commercial activity” exception provides in relevant part that subject matter jurisdiction exists in a case “in which the action is based... upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. |
1,859,403 | 11,714,381 | 1991-10-28 | United States Court of Appeals for the Second Circuit | Antares Aircraft, L.P. v. Federal Republic of Nigeria | Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90 (1991) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | direct effect in the United States. | 28 U.S.C. § 1605(a)(2). The primary issue on appeal is thus whether the detention of Antares’ aircraft in Nigeria caused a “ |
1,859,403 | 11,714,381 | 1991-10-28 | United States Court of Appeals for the Second Circuit | Antares Aircraft, L.P. v. Federal Republic of Nigeria | Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90 (1991) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | direct effect in the United States | Weltover, 941 F.2d at 152 (citation omitted).
This Court has not squarely confronted the issue of whether there is a “ |
1,859,403 | 11,714,381 | 1991-10-28 | United States Court of Appeals for the Second Circuit | Antares Aircraft, L.P. v. Federal Republic of Nigeria | Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90 (1991) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | a direct effect in the United States | See Australian Gov’t Aircraft Factories v. Lynne, 743 F.2d 672, 675 (9th Cir.1984) (direct effect of plane crash in Indonesia was in that country, where the plane was destroyed and its functional use lost, and not in the United States where the American corporate plaintiff incurred financial loss as a result of the crash), cert. denied, 469 U.S. 1214, 105 S.Ct. 1189, 84 L.Ed.2d 335 (1985); cf. Martin v. Republic of South Africa, 836 F.2d 91, 94-95 (2d Cir.1987) (although plaintiff returned to the United States disabled as a result of defendant’s conduct in South Africa, the direct effect of that conduct occurred in South Africa, not in the United States). The transfer of funds out of Antares’ New York bank account, and the resultant financial loss to the partnership, are not by themselves sufficient to place the effect of the defendants’ conduct “in the United States” within the meaning of § 1605(a)(2). See Gregorian v. Izvestia, 871 F.2d 1515, 1527 (9th Cir.), cert. denied, 493 U.S. 891, 110 S.Ct. 237, 107 L.Ed.2d 188 (1989); Zedan, 849 F.2d at 1515.
Antares contends, however, that the effect “in the United States” was not limited to its financial loss. It claims that the NAA directed it to make at least one payment into a California bank account. According to Antares, this contact, in conjunction with its financial loss, places the direct effect of the defendants’ conduct in the United States. We disagree.
Even assuming that the NAA directed that a portion of the money be deposited into the American bank account of a third party, this effect would not alone, or together with Antares’ general financial loss, constitute a sufficiently direct effect in this country to satisfy the statute. See Rafidain Bank, 893 F.2d at 12 (foreign defendant’s direction that money be deposited into its New York bank account does not satisfy “direct effect” test). Thus, absent some legally significant act occurring in this country, the mere financial loss suffered by an American plaintiff, such as Antares, as a result of a defendant’s conduct abroad, is by itself insufficient to cause “ |
1,859,403 | 11,714,381 | 1991-10-28 | United States Court of Appeals for the Second Circuit | Antares Aircraft, L.P. v. Federal Republic of Nigeria | Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90 (1991) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | direct effect in the United States | Thus, absent some legally significant act occurring in this country, the mere financial loss suffered by an American plaintiff, such as Antares, as a result of a defendant’s conduct abroad, is by itself insufficient to cause “a direct effect in the United States” within the meaning of § 1605(a)(2) of the FSIA.
In sum, the NAA’s detention of Antares’ aircraft in Nigeria, and Antares’ subsequent transfer of funds from its New York bank, did not cause a “ |
1,859,403 | 11,714,381 | 1991-10-28 | United States Court of Appeals for the Second Circuit | Antares Aircraft, L.P. v. Federal Republic of Nigeria | Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90 (1991) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | is present in the United States in connection with a commercial activity carried on in the United States by the foreign state, | Under the statute, assuming that rights in property have been taken in violation of international law, then the “expropriation” exception applies if (1) the property taken or any property exchanged therefore “ |
10,525,207 | 11,714,381 | 1993-11-29 | United States Court of Appeals for the Second Circuit | Drexel Burnham Lambert Group Inc. v. Committee of Receivers for A.W. Galadari | Drexel Burnham Lambert Group Inc. v. Committee of Receivers for A.W. Galadari, 12 F.3d 317 (1993) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | in which the action is based upon ... an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. |
We also conclude that the district court’s ruling that the Committee was the “real party in interest” with respect to the nonbank- ing assets of Galadari and Commodities, and that the Emirate should be so regarded with respect to the' Union shares that Galadari pledged to Drexel, see Drexel VII, 810 F.Supp. at 1384, cannot form an alternate basis for a finding of implied waiver of FSIA immunity. The thrust of this ruling is to deprecate the Committee’s claims that it appeared in a representative capacity in behalf of Galadari and Commodities until the Committee and the Emirate were explicitly named as defendants in the amended and supplemental complaints in the consolidated action. The view taken regarding the “real party in interest” question, however, does not materially affect the nature of the Committee’s involvement in the earlier stages of the litigation. Assuming arguendo that the Committee, despite its intention to appear in a representative capacity, should be deemed to have appeared generally because it was the “real party in interest,” the question remains whether, given its understanding of its position, the Committee adequately sig-nalled the present or future invocation of FSIA immunity. However its participation is regarded, the Committee consistently invoked FSIA immunity, or reserved the right to do so in the future, to an extent that precludes a determination that FSIA immunity was unambiguously and unmistakably waived.
C. The Commercial Activity Exception. This exception provides for subject matter jurisdiction in cases “in which the action is based upon... an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. |
10,525,207 | 11,714,381 | 1993-11-29 | United States Court of Appeals for the Second Circuit | Drexel Burnham Lambert Group Inc. v. Committee of Receivers for A.W. Galadari | Drexel Burnham Lambert Group Inc. v. Committee of Receivers for A.W. Galadari, 12 F.3d 317 (1993) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | in connection with a commercial activity |
We did not ignore the difficulty of distinguishing “‘purposé’ (i.e., the reason why the foreign state engages in the activity) from ‘nature’ (i.e., the outward form of the conduct that the foreign state performs or agrees to perform),” but recognized that the [FSIA] “unmistakably commands” us to observe the distinction. 504 U.S., at -, 112 S.Ct., at 2167 (emphasis in original).
Nelson, — U.S. at-, 1.13 S.Ct. at 1479. Because the exercise of police power had historically been understood to be a “peculiarly sovereign” function, the Court concluded that the plaintiffs had failed to state a claim based upon § 1605(a)(2) “commercial activity.” Id.
Weltover was an action brought by bondholders for breach of contract in response to a unilateral rescheduling of the bond payments by the Republic of Argentina..The unanimous Court ruled that Argentina’s rescheduling of this debt was undertaken “ |
10,525,207 | 11,714,381 | 1993-11-29 | United States Court of Appeals for the Second Circuit | Drexel Burnham Lambert Group Inc. v. Committee of Receivers for A.W. Galadari | Drexel Burnham Lambert Group Inc. v. Committee of Receivers for A.W. Galadari, 12 F.3d 317 (1993) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | direct effect in the United States | We do not read the Supreme Court’s rulings in Nelson and Weltover to support such a construction of § 1605(a)(2). L’Europeenne addressed only the “ |
10,534,426 | 11,714,381 | 1993-12-28 | United States Court of Appeals for the Third Circuit | Federal Insurance v. Richard I. Rubin & Co. | Federal Insurance v. Richard I. Rubin & Co., 12 F.3d 1270 (1993) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | “in connection with a commercial activity elsewhere that cause[d] a direct effect in the United States.’ |
Defendant ABP financed USA One Associates’ acquisition of a sixty-five percent interest in E/R Associates through an unsecured loan of $96,300,000 at a market interest rate of ten percent. The loan was executed pursuant to the laws of the Netherlands, and payments were made to ABP in the Netherlands in U.S. dollars. Once USA One Associates acquired its interest in E/R Associates, it retained defendant Rodin Investment Administration Company (“Rodin”) to oversee the daily operations of this investment, including making management and operations decisions concerning One Meridian Plaza. Defendant U.S. Alpha, Inc. later replaced Rodin in its capacity to make decisions regarding the management of the building.
B.
In the Federal Insurance litigation case, ABP and USA Holding (jointly the “Dutch parent corporations”) moved to dismiss all claims brought against them because they are agencies or instrumentalities of a foreign state, and are immune from suit in the United States because none of the FSIA exceptions waiving immunity is' applicable. The motion was made pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2) for lack of subject matter and personal jurisdiction. The district court denied this motion in an unpublished opinion, finding that the Dutch parent corporations engaged in commercial activity within the meaning of the commercial activity exception to the FSIA. Federal Ins. Co., No. 92-4177, 1993 WL 21327, at *5-6. With respect to USA Holding, the district court held that this corporation engaged in commercial activity in the United States, within the meaning of the first clause of this exception, by virtue of its ownership of USA One B.V. and USA Two B.V. Id. at *5. First, the court held that ABP committed acts outside the U.S. “ “in connection with a commercial activity elsewhere that cause[d] a direct effect in the United States. |
10,534,426 | 11,714,381 | 1993-12-28 | United States Court of Appeals for the Third Circuit | Federal Insurance v. Richard I. Rubin & Co. | Federal Insurance v. Richard I. Rubin & Co., 12 F.3d 1270 (1993) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | commercial activity carried on in the United States, | This provision states that:
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case... in which the action is based upon [1] a commercial activity carried on in the United States by the foreign state; or [2] upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or [3] upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.
Id. Our discussion of the applicability of this exception in the Federal Insurance litigation case will follow the analysis employed by the district court.
1. Commercial Activity of USA Holding
In analyzing the commercial activity exception with respect to USA Holding, the district court first found that USA Holding engaged in commercial activity as defined in the FSIA by virtue of its ownership interest in USA One B.V. and USA Two B.V., which were incorporated in the Netherlands to invest in U.S. real estate. Second, the district court concluded that this commercial activity was sufficient to constitute “ |
10,534,426 | 11,714,381 | 1993-12-28 | United States Court of Appeals for the Third Circuit | Federal Insurance v. Richard I. Rubin & Co. | Federal Insurance v. Richard I. Rubin & Co., 12 F.3d 1270 (1993) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | the action is based upon a commercial activity carried on in the United States. | We recognize that there are two major exceptions to the Bancec rule, namely, the independent corporate status of government-owned entities should be disregarded (1) “where a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created;” or (2) where to give effect to the separate instrumentalities “ “would work fraud or injustice.’ ” 462 U.S. at 629, 103 S.Ct. at 2601 (quoting Taylor v. Standard Gas & Elec. Co., 306 U.S. 307, 322, 59 S.Ct. 543, 550, 83 L.Ed. 669 (1939)). See also Hercaire, 821 F.2d at 565; de Letelier v. Republic of Chile, 748 F.2d 790, 794 (2d Cir.1984), cert. denied, 471 U.S. 1125, 105 S.Ct. 2656, 86 L.Ed.2d 273 (1985). However, the district court never articulated factual findings or a legal justification sufficient for this court to uphold disregarding the independent juridical status of USA One B.V., USA Two B.V., and USA One Associates. Thus,, the district court erred when it attributed the commercial activities of USA One Associates, the Pennsylvania partnership, and USA One B.V. and USA Two B.V., the Netherlands corporations, undertaken in the United States, to their parent USA Holding.
In short, the single act of creating two Dutch corporations, which later formed a U.S. partnership to acquire a significant ownership interest in One Meridian Plaza, was insufficient commercial activity for the district court to conclude it had subject matter jurisdiction over USA Holding. We hold that a district court cannot exercise jurisdiction over a foreign state under the first clause of the FSIA commercial activity exception unless it finds a sufficient jurisdictional connection or nexus between the commercial activity engaged in by that particular foreign entity and the United States. Such an undertaking is made necessary by the language of the statute, which allows for an exception to sovereign immunity only when “ |
9,407,677 | 11,714,381 | 2002-06-24 | United States District Court for the Eastern District of New York | Garb v. Republic of Poland | Garb v. Republic of Poland, 207 F. Supp. 2d 16 (2002) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. | Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993): Once the plaintiff has produced evidence showing that one of the Act’s specified exceptions applies, the burden shifts to the foreign state to establish that it is immune from the jurisdiction of the United States courts. Cargill Int’l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir.1993).
The commercial activity exception, & 1605(a)(2), provides, in pertinent part, for the exercise of jurisdiction over a cause of action against a foreign state based “ |
2,164,101 | 11,714,381 | 2004-02-18 | United States Court of Appeals for the Second Circuit | Kato v. Ishihara | Kato v. Ishihara, 360 F.3d 106 (2004) | 1991-08-13 | United States Court of Appeals for the Second Circuit | Weltover, Inc. v. Republic of Argentina | Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (1991) | 11714381_26 | based upon [ ] commercial activity carried on in the United States .... | JOSÉ A. CABRANES, Circuit Judge.
The principal question presented by this appeal is whether, in the circumstances alleged, defendants — the governor and municipal government of the city of Tokyo, Japan — are immune under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq., from plaintiffs sexual harassment suit. We consider an appeal from a judgment of the United States District Court for the Southern District of New York (Richard M. Berman, Judge), Kato v. Ishihara, 239 F.Supp.2d 359 (S.D.N.Y.2002), which granted defendant Tokyo Metropolitan Government’s (“TMG’s”) motion to dismiss plaintiffs complaint. Plaintiff alleged that she was the victim of sexual harassment and retaliation during the course of her employment by TMG, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., as well as of New York state and local human rights laws.
The FSIA codifies the “restrictive theory of sovereign immunity,” Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983), under which foreign sovereigns and their “agencies] or instrumentalit[ies],” 28 U.S.C. § 1603, enjoy immunity from suit in United States courts, subject to a few, enumerated statutory exceptions. Among these exceptions, the FSIA provides that sovereigns have no immunity from suits “based upon [ ] commercial activity carried on in the United States....” |