                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


JULIET SWEIS,

                Plaintiff,

     v.

UNITES STATES FOREIGN                          Civil Action No. 13-366 (GK)
CLAIMS SETTLEMENT
COMMISSION, et al.,

                Defendants.


                                   MEMORANDUM OPINION

     Plaintiff Juliet Sweis ("Sweis" or "Plaintiff") brings this

action     against     the        United    States   Foreign    Claims      Settlement

Commission       ( "FCSC"    or    "Commission") ,    its Commissioners,             Rafael

Martinez and Anuj           Desai,      the United States Department of State

("State    Department"),           John    Kerry   in his    official     capacity as

Secretary       of   State,       the   Department   of     Justice     ( "DOJ") ,     Eric

Holder in his official capacity as Attorney General,                        the United

States Department of Treasury ("Treasury Department"), and Jacob

Lew in his official capacity as Secretary of the Department of

Treasury (collectively,             "Defendants" or "Government"). Plaintiff

alleges violations of the Administrative Procedure Act                         ( "APA") ,

5 U.S.C.    §    551 et seq., and separation-of-powers principles.
        This matter is presently before                              the   Court on Plaintiff's

Motion       and    Memorandum              in    Support       Thereof           for        a     Preliminary

Injunction          [Dkt.        No.       8].    Upon       consideration              of       the    Motion,

Opposition [Dkt. No. 12], and the entire record herein, and for

the reasons stated below, Plaintiff's Motion is denied.

I .     BACKGROUND

        On   December         27,      1985,          Sweis    was     injured          when         four   Abut

Nidal        Organization              terrorists             opened       fire          in          the    Rome

International Airport.                     Complaint         ( "Compl.")      ~       13. She was seven

years old at the time and suffered "hand grenade shrapnel and

concussion injuries to her head, resulting in permanent physical

injuries." Id.         ~    20.

        On    April        21,       2006,       a     group     of     individuals,                   including

members of Sweis's family, were named as plaintiffs in a lawsuit

in this Court, Buonocore v. Great Socialist People's Libyan Aeab

Jamahiriya,         Case No.           06-727         ("Buonocore").          Compl.             ~   26.    Sweis

was not a named plaintiff. On July 9,                                 2007,       that complaint was

dismissed without prejudice.                         [Case No. 06-727, Dkt. No. 34]

        On   March      28,          2008,       an    amended        complaint              was       filed   in

Buonocore.         Compl.        ~   30.     Sweis was added as                   a    named plaintiff,

but did not allege any physical injuries. Id.

      On August 4, 2008, President George W. Bush signed into law

the Libyan Claims Resolution Act                             ("LCRA"),     Pub. L. No.                 110-301,
                                                       -2-
122 Stat. 2999              (2008).       Id.    ~~    36, 45. The stated purpose of the

LCRA is to provide for                     "fair compensation to all nationals of

the    United     States           who      have       terrorism-related                    claims      against

Libya       through     a        comprehensive           settlement                   of   claims      by     such

nationals against Libya pursuant to an international agreement

between the United States and Libya." Id.                                    ~   45.

        On August           14,     2008,        the United States                     and Libya entered

into    an     international              claims        agreement,               the       US-Libya      Claims

Settlement Agreement                  ( "LCSA") .       Id.       ~   4 6.       The LCSA intended to

settle all claims, terminate pending claims, and preclude future

claims.       Defs.'        Mot.     to     Dismiss          &   Opp' n          to    Pl.'s     Mot.       for   a

Prelim. Inj.          ( "Defs.' Opp' n") Ex. 2, p. 3.

       On     October         31,     2008,           President          George            W.   Bush        signed

Executive Order 13,477.                    Id.     ~   47.       The Executive Order declared

that    all     terrorism-related                  claims         of     U.S.          nationals        against

Libya were settled by the LCSA and terminated pending suits in

U.S. courts.          Id.    ~    48. On December 24, 2008,                            this Court granted

the    Libyan     Defendants'               Motion       to       Dismiss             with      prejudice         in

Buonocore,       as     a    result         of    the    LCRA and                the       Executive     Order.

[Case No. 06-727, Dkt. No. 78]

       On December 11, 2008, the State Department referred certain

claims to the FCSC,                 a quasi-judicial,                  independent agency within

the Department of Justice                        ("First Referral") . Compl.                      ~~    52,    55.
                                                       -3-
The       First     Referral           created     jurisdiction in the                    FCSC over the

claims of U.S. nationals who were named plaintiffs who had pled

physical injury in pending litigation,                                 including Buonocore.               Id.

~   55.        On     March                            the           Commission           announced       the

commencement of its adjudication of the claims contained in the

First Referral. Id.                   ~   58 (citing 74 Fed. Reg. 12,148).

          Sweis filed a timely claim under the First Referral. Compl.

~   59. On February 18, 2010, the FCSC entered a Proposed Decision

declaring that it did not have jurisdiction over Sweis's claim

because         she    had       not      pled a     physical          injury        in   the   Buonocore

complaint. Id.              ~   62.

          On    March       1,        2012,    Sweis      filed        a   motion         to    amend     the

Buonocore complaint nunc pro tunc to March 28, 2008, the date of

the original filing. The purpose of the amendment was to include

allegations           regarding            the physical          injuries        suffered by Sweis

during the Rome Airport Attack.                           Compl.       ~   61.   On April 2,            2010,

this Court granted that motion.                        [Case No. 06-727, Dkt No. 81]

          Sweis       objected            to   the     FCSC's          Proposed           Decision,       and

provided the Commission with this Court's nunc pro tunc order

permitting her to amend her complaint. Compl.                                    ~    63. On September

                      the       Commission         held      a       hearing         devoted     to      this

particular jurisdictional issue. Id.                             ~   64.



                                                     -4-
        On     December       12 1     2012/     the    Commission        issued            a   Final

Decision refusing to assert jurisdiction over SweiS S claim.                       1
                                                                                                   It

concluded        that       the      First     Referral 1 s    explicit        exclusion           of

individuals          who    had      alleged only emotional           injuries          would be

rendered meaningless if such claimants could retroactively amend

their claims to             include allegations of physical                   injury.           Pl. s
                                                                                                   1




Mot.    &    Mem. in Support Thereof for a Prelim. Inj .                      ("Pl. s Mot.
                                                                                        1          11
                                                                                                        )




Ex. 8   1    pp. 5-6. The Commission also considered the nunc pro tunc

Order   1    but held that           such orders could not be used to change

substantive rights or jurisdictional facts.                         Id. pp. 11-12. Thus 1

it   concluded that the Order did not                      change the         jurisdictional

fact that Sweis had not alleged a physical injury in a pending

case at the time of the First Referral. Id. pp. 12-13.

        On     January        15 1     2009/     the    State       Department              referred

additional claims to the FCSC                    ("Second Referral 11 ) .          Compl.       ~ 71.

These        claims        were      divided     into    multiple         categories.             Id.

"Category W      1
                      included U.S.            nationals      who   had   been physically

injured in Libyan terrorist attacks who had not been named as

plaintiffs       in     pending        litigation.      Id.    On    July     71       2009 1     the

Commission announced the commencement of its adjudication of the

claims       contained       in the      Second Referral.           Id.   ~   73       (citing     74

Fed. Reg. 32 1 193).



                                                -5-
        Sweis    filed       a    claim        under        the       State    Department's             Second

Referral. On December 12,                  2012,       the Commission issued a Proposed

Decision declaring               that     it    did not              have   jurisdiction over her

claim under Category E,                  because Sweis had been a named plaintiff

in the Buonocore complaint.                        Compl.        ~    75.   On February 16,               2013,

the Commission issued its Final Decision denying Sweis's Second

Referral Claim. Id. ~ 76.

        On March       21,       2013,    Sweis       filed           the   instant         complaint.        On

March 27,       2013,    she       filed       a     Motion          for    Preliminary              Injunction

[Dkt.    No.    8] .   On April          8,     2 013,      Defendants              filed       a    Motion to

Dismiss    and Opposition to                   Plaintiff's Motion for                       a       Preliminary

Injunction [Dkt. No. 12]

II.     STANDARD OF REVIEW

        A preliminary            injunction          is     an       "extraordinary and drastic

remedy,"       Munaf    v.       Geren,        553    U.S.           674,     689     (2008)          (citation

omitted) , and "may only be awarded upon a clear showing that the

plaintiff is entitled to such relief."                                 Sherley v.           Sebelius,         644

F.3d 388,       392    (D.C.      Cir.     2011)          (quoting Winter v.                    Natural Res.

Def.    Council,       Inc.,       555     U.S.        7,     22       (2008));        see          Mazurek   v.

Armstrong,      520 U.S.         968,    972       (1997)        (noting that "the movant, by

a clear showing,         carries the burden of persuasion")                                     (emphasis in

original) .



                                                     -6-
        A     party     seeking         a    preliminary           injunction          must    establish

"[1]    that       [she]    is    likely to           succeed on the                merits,     [2]    that

[she]       is    likely    to    suffer           irreparable          harm    in    the     absence    of

preliminary relief,               [3]       that the balance of the equities tips in

[her]        favor,      and     [4]        that     an        injunction       is     in     the    public

interest." Winter, 555 U.S. at 20.

        In       the    past,     these        four        factors        "have       typically        been

evaluated on a             'sliding scale[,]'                   "such that           "[i]f the movant

makes       an unusually strong showing on one of                                the    factors,       then

[she]       does not necessarily have to make as strong a                                     showing on

another factor."            Davis v.          Pension Benefit Guar.                   Corp.,    571 F.3d

1288,       1291-92      (D.C.    Cir.       2009)        (citing Davenport v.                Int'l Bhd.

of Teamsters, AFL-CIO, 166 F.3d 356, 361 (D.C. Cir. 1999)).

        The      continued viability                 of    the     sliding       scale      approach      is

uncertain         as     the     Supreme           Court        and     the    D.C.      Circuit       have

strongly          suggested,            without           holding,        that       plaintiffs          are

required to independently demonstrate a likelihood of success on

the    merits.         Sherley,        644    F.3d        at    392-33;       see    also     Davis,     571

F.3d at 1292.

        However,        this     Court        does    not        need    to    address        that     issue

because our Court of Appeals has always held that "the sine qua

non of the preliminary injunction inquiry,"                                    is some showing of

irreparable injury in the absence of an injunction.                                           Trudeau v.

                                                     -7-
F.T.C.,     384 F. Supp. 2d 281,               296    (D.D.C. 2005)     I    aff'd,    446 F.3d

178      (D.C.   Cir.      2006);        see
                                         -----
                                                also     Davis,     571       F.3d     at     1296

(declaring that plaintiff "must show a likelihood of irreparable

harm")     (Kavanaugh, J. , concurring) . A court can refuse to issue

an     injunction         without        considering       any      other           factors     if

irreparable        harm    is   not      demonstrated.      See     Chaplaincy of             Full

Gospel Churches v.          England,         454 F.3d 290,        297       (D.C.    Cir.    2006)

("A movant's        failure      to      show    any    irreparable         harm      is

grounds for refusing to issue a preliminary injunction,                                    even if

the    other     three      factors        entering       the     calculus          merit     such

relief") ; see also Winter,                555 U.S. at 22         (holding there was no

need to      address underlying merits of plaintiffs'                           claims       after

finding     that    there was         no    likelihood of         irreparable          harm and

that the balance of the equities and consideration of the public

interest weighed in favor of the defendants) .

III. ANALYSIS

       Sweis seeks a permanent                  injunction "against Defendants to

ensure     the     retention        of                   [the]     funds       necessary        to

compensate Plaintiff under the Libya Claims Settlement Program."

Pl.'s Mot. 1-2. She insists that the Commission should set aside

$3    million,     the    amount      that      physically-injured claimants                  have

received under the LCRA. Id. at 15-16; Pl.'s Mot. Ex. 5, p. 3.



                                                -8-
        Sweis      claims      that        she will          be    irreparably injured if                         the

money is not            set aside because               "it       is not known what the U.S.

government         plans      to     do"    with       the    funds          that      remain        after        the

Commission "has confirmed that all claims have been finalized,"

and     "it   is    possible         that     the      remaining             funds      would        leave        the

jurisdiction of the United States while the proceeding is being

heard by this            Court"          (emphasis      added).             Pl.'s Mot.          at    2.     These

allegations         clearly         do     not    establish             a       likelihood       that        Sweis

will be irreparably harmed in the absence of an injunction.

        Our     Court         of     Appeals           has        set       a     high       standard             for

irreparable         injury.          Chaplaincy              of       Full       Gospel       Churches             v.

England,      454 F.3d 290,              297-98       (D.C.       Cir. 2006). The injury "must

be     both     certain            and     great;        it        must          be     actual        and         not

theoretical." Wise. Gas Co. v. F.E.R.C.,                                    758 F.2d 669,             674     (D.C.

Cir.    1985)      (per curiam) ;            Winter,         555 U.S.             at   22    (holding that

irreparable injury must be likely,                            "not just a possibility"). An

injunction         is    not        warranted          when       a     movant         alleges         injuries

"merely       'feared.'"           Comm.     in       Solidarity with                  the   People          of    El

Salvador      (CISPES)         v.    Sessions,          929       F.2d 742,            745-46        (D.C.    Cir.

1991)     (quoting Exxon Corp.                   v.    F.T.C.,          589       F.2d 582,          594      (D.C.

Cir. 1978)).

        Sweis's allegations are based on nothing more than fear and

possibility.            She    admits        that        she          does       not     know        what         the

                                                      -9-
government will do with any surplus funds but notes that "it is

possible~~     that    the     remaining            funds   might         be    removed from the

jurisdiction of the United States. Pl.'s Mot. at 2. Later in her

motion, Sweis alleges that "[t]here is no doubt that the surplus

funds will be either returned to Libya or disbursed otherwise

should the      Court not        require            the maintenance              of · a   sufficient

amount by granting this motion.                     11
                                                         Pl. 's Mot. 14-15. However,                   she

provides no support for this proposition. See Mazurek,                                      520 U.S.

at 972 (noting that burden of persuasion is on movant) .

      The     mere    fact     that       the       Government          has     control     over       any

surplus funds and has not indicated what it intends to do with

them does      not     establish          a    likelihood          of     irreparable       harm        to

Sweis.   See Stand Up For California!                        v.        Dep' t   of the Interior,

Case No.      12-2039, 2013 WL 324035, at *26                           (D.D.C. Jan.      29,        2013)

(finding no likelihood of harm when plaintiffs focus was on what

defendant      "will have the ability to do                       11
                                                                        rather than what they

would,   in fact,       do).    The Government has asserted that it does

not know the precise amount of funds that remain,                                    but that the

next step would be to "consider referring additional categories

of   claims    to     the    FCSC,   11
                                          including possibly                    referring    "claims

that were rejected by the FCSC on jurisdictional grounds                                        11
                                                                                                      like

Sweis's.     Defs.'    Opp'n,     Ex.         13,    Declaration of Lisa J.                 Grosh       ~~

7-9. Thus, there is a "possibility that adequate compensatory or
                                                -10-
other    corrective          relief         will      be        available       at   a    later       date,"

which     "weighs         heavily      against             a    claim     of    irreparable           harm."

Chaplaincy of Full Gospel Churches, 454 F.3d at 297-98                                           (citation

omitted) .

        Moreover,         our     Court          of        Appeals        has     established           that

"economic          loss     does       not,           in        and     of      itself,         constitute

irreparable         harm."       Wise.       Gas      Co.,        758    F.2d at         674;    see    also

Davis v.      Pension Benefit Guar. Corp.,                             571 F.3d 1288, 1295             (D.C.

Cir.    2009)      (noting       "general          rule         that     economic harm does              not

constitute irreparable injury") .                              Thus,    because the only injury

that Sweis alleges is economic,                                she has not met her burden of

showing      the    possibility             of     an          "irreparable       harm,"        much     less

established that such harm is likely to occur.

       Sweis        insists          that           her           separation-of-powers                 claim

independently         justifies             an     injunction,            because        "the     loss     of

constitutional            freedoms,          'for       even       minimal       periods         of    time,

unquestionably constitutes irreparable injury.'" Mills v.                                              Dist.

of Columbia, 571 F.3d 1304, 1312                               (D.C. Cir. 2009)          (quoting Elrod

v.   Burns,     427       U.S.     3 4 7,    3 73       ( 19 7 6) )      However,        our     Court     of

Appeals has indicated that merely raising a constitutional claim

is insufficient to warrant a presumption of irreparable injury.

       Moreover,      when a party is seeking a mandatory injunction,

as here,      that would alter the status quo rather than preserve
                                                    -11-
it,    "the moving party must meet                           a    higher standard than in the

ordinary case by showing 'clearly' that he or she is entitled to

relief or that                 'extreme or very serious damage will result from

the    denial        of        the    injunction.'"               Nat' 1       Conf.        on     Ministry      to

Armed     Forces          v.    James,        278     F.    Supp.        2d    37,     43        (D.D.C.     2003)

(quoting Columbia Hosp.                       for Women Foundation v.                       Bank of Tokyo-

Misabishi,           Ltd.,       15    F.    Supp.     2d 1,       4     (D.D.C.       1997),            aff'd 159

F.2d 636        (D.C. Cir. 1998)).

        Rather,            a     movant            must      indicate              that        a     particular

constitutional             interest           is    "either threatened or in fact                            being

impaired        at        the        time"     the        movant       seeks         injunctive            relief.

Chaplaincy           of    Full       Gospel        Churches,          454     F. 3d      at       302    (quoting

Elrod,        427    U.S.       at     373     (plurality opinion))                    (emphasis           added) .

Sweis's constitutional argument is that the Commission violated

the separation-of-powers principles inherent in the Constitution

when     it     "ignored"             this     Court's       nunc        pro       tunc     Order         and   the

Federal Rules of Civil Procedure in its Final Decision.

        Even if an injunction to bar the government from disposing

of     the     $3     million           was        granted,        the        alleged          constitutional

violation -           the Commission's decision -                         would remain in effect.

Because       granting           this        injunction          would        do    nothing          to    prevent

"the loss of              [constitutional]            freedoms,          for even minimal periods

of time,"           the presumption of irreparable harm is inappropriate.

                                                      -12-
harm    is     inappropriate.           See    Time     Warner    Entm't    Co.        L.P.   v.

F.C.C., 810 F. Supp. 1302, 1304                    (D.D.C. 1992) aff'd in part,                93

F.3d    957    (D.C.      Cir.      1996)      (refusing     to   grant    presumption        of

irreparable          harm      when         "record     clearly      reveals       that        no

deprivation of            defendants'         making    is   presently occurring,             and

none is likely to occur before the merits of this controversy

are    decided").         In     this      case,   no    constitutional         interest       is

"either       threatened       or     in    fact   being     impaired      at    the     time."

Sweis now seeks injunctive relief.

       Sweis has failed to show any likelihood of irreparable harm

in the absence of a preliminary injunction. Because this showing

is    "the    sine   qua non of             the preliminary injunction inquiry,"

Trudeau,      384    F.    Supp.     2d at      296,    the Court does not need to

address the other preliminary injunction requirements. 1




1
  The Court is particularly hesitant to address the likelihood of
Sweis's success on the merits because she has moved for leave to
file an Amended Complaint. That Motion is not ripe, but, if
granted, will render the Complaint a nullity, Hollie v. Smith,
813 F. Supp. 2d 214, 216 n.2 (D.D.C. 2011), and Defendants'
current Motion to Dismiss moot. See Gray v. D.C. Public School,
688 F. Supp. 2d 1, 6 (D.D.C. 2010) (citation omitted).
                               -13-
IV.    CONCLUSION

       For     the   foregoing   reasons,     Plaintiff's   Motion   for   a

Preliminary Injunction is denied. An Order shall accompany this

Memorandum Opinion.




June   f?_,   2013                          Gladyfi:~~
                                            United States District Judge


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