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Emergency Coalition to Defend Educational Travel v. United States Dep't of the Treasury

July 30, 2007

EMERGENCY COALITION TO DEFEND EDUCATIONAL TRAVEL, ET AL., PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF THE TREASURY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

This suit challenges a 2004 regulation promulgated by the Office of Foreign Assets Control ("OFAC") of the United States Department of Treasury, which tightened restrictions on educational programs offered in Cuba by U.S. academic institutions. (1st Am. Compl. ¶ 19.) Plaintiffs, who include college students, professors, and an organization of "higher education professionals" interested in teaching and attending courses conducted by U.S. universities in Cuba, have challenged the regulation under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706, and the First and Fifth Amendments of the Constitution. Defendants OFAC, the Department of the Treasury, and the Director of OFAC and Secretary of the Treasury, who have been sued in their official capacities, have moved to dismiss the complaint, or in the alternative, for summary judgment, on the grounds that plaintiffs lack standing; the regulation has a rational basis and must be upheld under Chevron's deferential standard; and the regulation does not violate plaintiffs' constitutional rights. As explained herein, the Court denies defendants' jurisdictional challenge, but grants the motion on the merits.

BACKGROUND

Beginning in 1963, and continuing to the present day, the United States government has restricted travel to Cuba by persons subject to U.S. jurisdiction as part of a broad trade embargo against Cuba under the Trading with the Enemy Act ("TWEA"), 50 U.S.C. App. § 5(b), and the Cuban Assets Control Regulations ("CACR"), 31 C.F.R. Part 515, which ban nearly all economic transactions with Cuban nationals. The stated purpose of the CACR is to "isolate the Cuban government economically and deprive it of U.S. dollars." OFFICE OF FOREIGN ASSETS CONTROL, U.S. DEP'T OF TREASURY, WHAT YOU NEED TO KNOW ABOUT THE U.S. EMBARGO:

AN OVERVIEW OF THE CUBAN ASSETS CONTROL REGULATIONS 1 (2004), http://www.treas.gov/offices/enforcement/ofac/programs/cuba/cuba.pdf. OFAC is the office within Treasury responsible for implementing the CACR. (See 1st Am. Compl. ¶11.) The exact contours of the travel restrictions have changed over time, but in their current form the CACR permit limited categories of people -- including certain types of journalists and academic researchers -- to travel to Cuba under general licenses without obtaining prior approval from OFAC. See 31 C.F.R. §§ 515.560(a), 515.563(a), 515.564(a). All others seeking to travel to Cuba must first obtain a specific license from OFAC. Id. § 515.60(a). Specific licenses are available on a case-by-case basis for purposes such as family visits, humanitarian projects, and religious and educational activities. Id. Since 1999, accredited U.S. academic institutions have been able to obtain specific licenses under § 515.565 of the CACR to permit their students and employees to participate in specified educational activities in Cuba, including "structured educational program[s]" offered by U.S. colleges and universities in Cuba. Id. § 515.565.

At issue in this case are several 2004 amendments to § 515.565 that further restricted the availability of specific licenses for the structured educational programs that U.S. academic institutions may offer in Cuba. (Id. ¶ 19.) Prior to 2004 there was no durational requirement for educational travel to Cuba, but under § 515.565 as amended, educational programs conducted by U.S. schools in Cuba must last at least ten weeks. 31 C.F.R. § 515.565(a)(1). The 2004 amendments also require that any student using an institution's license for educational travel to Cuba be enrolled in an undergraduate or graduate degree program at that institution. Id. § 515.565(a). In addition, plaintiffs claim that the 2004 amendment added a requirement that the teachers of U.S. institutions' structured programs in Cuba must be full-time, permanent faculty who are regularly employed in a teaching capacity at that licensed institution. (1st Am. Compl. ¶25(iii).) See 31 C.F.R. § 515.565(a)(4). However, defendants argue that this requirement existed in § 515.565 prior to the 2004 amendments, and that the language of the 2004 amendments only served to "further clarif[y]" this pre-existing requirement. (Defs.' Mem. at 11.) See 69 Fed. Reg. 33770 (noting that the regulation was "amended to clarify that employees who travel under an institution's license must be full-time permanent employees of the licensed institution").

The new rules implemented recommendations contained in a report by the Commission for Assistance to a Free Cuba, an interagency commission formed by President Bush in 2003 and tasked with exploring how the United States could best "[b]ring about a peaceful, near-term end" to the Castro dictatorship. See U.S. Dep't of State, Mission and Members of Commission for Assistance to a Free Cuba, http://www.state.gov/p/wha/rt/cuba/c12238.htm (last visited July 26, 2007). (1st Am. Compl. ¶¶ 21-25.) The Commission concluded that the educational travel provisions of the CACR were being abused by some travelers and educational institutions as "disguised tourism." (A.R. at 63 [COMMISSION FOR ASSISTANCE TO A FREE CUBA, REPORT TO THE PRESIDENT (2004)].) In particular, the report cited short-term "study-tour programs" offered by U.S. institutions, open to students not enrolled at the institution, which often included "lengthy unscheduled time periods to permit largely tourist activities to be accomplished." (Id.) Emphasizing the importance of depriving the Castro regime of U.S. revenues from tourism, the Commission recommended the new educational travel restrictions as a means of "foster[ing] genuine academic study in Cuba" and curtailing the abuses of study-tour programs. (Id. at 61-63, 65.)

Plaintiff Emergency Coalition to Defend Educational Travel ("ECDET") is an organization of higher education professionals affiliated with U.S. colleges and universities. (1st Am. Compl. ¶ 4.) It was formed in response to the 2004 CACR amendments, and its stated purpose is to "defend the freedom of U.S. professors and students to design, teach, and attend courses in Cuba free of U.S. goverment diktat." (Pls.' Opp'n at 3.) Plaintiff Wayne Smith is the Chairman of ECDET and an adjunct professor of Latin American Studies at Johns Hopkins University. (1st Am. Compl. ¶ 5.) He serves as the Director of Johns Hopkins' Cuban Exchange Program, and in every year from 1997 to 2004, he taught inter-session courses in Cuba of two- to three-weeks duration. (Id.; Smith Decl. ¶¶ 1, 7.) Smith claims that as a result of the 2004 amendments, Johns Hopkins was forced to cancel all of its Cuban Exchange programs, and he is therefore no longer able to teach in Cuba. (Smith Decl. ¶¶ 8, 9.) Plaintiff John Cotman is an associate professor of Political Science at Howard University. His academic specialties are comparative politics and international relations of the Caribbean, and he has conducted extensive research on Cuba's foreign relations. (1st Am. Compl. ¶ 6.)

Plaintiffs Jessica Kamen and Adnan Ahmad were, at least at the time this lawsuit was filed, undergraduate students at Johns Hopkins. (Id. ¶¶ 7, 8.) They both expected to graduate in 2007.*fn1 (Id.) Plaintiff Abby Wakefield is currently a sophomore at Johns Hopkins.*fn2 (Id. ¶ 9.) These three students claim that they have an interest in participating in the two-week inter-sessional courses in Cuba of the sort that Johns Hopkins offered prior to the 2004 amendments. (Id. ¶¶ 7-9; Ahmad Decl. ¶¶ 1, 3; Kamen Decl. ¶¶ 1, 3.) Ahmad, who has already participated in one Johns Hopkins inter-session program in Cuba, and Kamen both state that were it not for the 2004 amendments and the cancellation of all of Johns Hopkins' Cuba programs, they "certainly" would have studied in Cuba in the future. (Ahmad Decl. ¶¶ 1-3; Kamen Decl. ¶¶ 2, 3.) Wakefield states that she was informed by Plaintiff Smith, in his capacity as the Director of Johns Hopkins' Cuban Exchange Program, that "Johns Hopkins' inter-sessional courses will resume immediately upon the rescission of the OFAC rulemaking challenged in this case," and that "she has been accepted for enrollment in the first such resumed course." (1st Am. Compl. ¶ 9.)

According to plaintiffs, the 2004 amendments to the CACR have led to the "almost unanimous decision of U.S. colleges and universities to end their academic programs in Cuba." (Pls.' Opp'n at 25.) Prior to 2004, college students could attend educational programs in Cuba conducted by other universities and receive course credit at their own institutions towards their degrees. (See id. at 4-5.) This permitted a school to be able to finance a Cuba program by servicing interested students from other schools, even if there was not enough interest among its own undergraduate students to support such programs. Plaintiffs argue that the new requirement that only students of the school that runs the program may attend makes offering study abroad programs in Cuba economically infeasible for almost every school. (Id. at 5.) Plaintiffs also argue that most American college students are not able to attend ten-week programs in Cuba if they hope to graduate "on time." (Id. at 5; Smith Decl. ¶ 8.)

Plaintiffs claim that the 2004 amendments to the CACR educational travel provisions unconstitutionally violate their First Amendment right of "academic freedom" and their Fifth Amendment right to travel internationally. (1st Am. Compl. ¶¶ 34, 36; Pls.' Opp'n at 41-42.) They also argue that the amendments violate the APA because they are "in direct contravention of the intention of Congress;" are arbitrary and capricious; and are not rationally related to the purpose of the TWEA. (1st Am. Compl. ¶¶ 31, 32.) Defendants argue that each of these plaintiffs lacks standing to challenge the amendments; that the amendments are a reasonable interpretation of TWEA under the APA and well within the Executive's inherent authority in the realm of foreign affairs; and that plaintiffs have not been deprived of their First or Fifth Amendment rights.

ANALYSIS

I. Standing

To meet the requirements for Article III standing, a plaintiff bears the burden of showing that: (1) he or she has suffered an injury-in-fact which is (i) concrete and particularized, and (ii) actual or imminent, not conjectural or hypothetical; (2) there is a causal connection between the alleged injury and conduct that is fairly traceable to the defendant, and not the result of the independent action of some third party not before the court; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). "These requirements together constitute the 'irreducible constitutional minimum' of standing, which is an 'essential and unchanging part' of Article III's case-or-controversy requirement." Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (quoting Lujan, 504 U.S. at 560). If "plaintiff[s'] standing does not adequately appear from all materials of record, the complaint must be dismissed." Warth v. Seldin, 422 U.S. 490, 502 (1975).

Where the plaintiff is an association seeking to sue on behalf of its members, "that plaintiff must demonstrate that (1) at least one of its members would have standing to sue in his own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires that an individual member of the association participate in the lawsuit." Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 937 (D.C. Cir. 2004) (citing Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977)). Plaintiff Smith is a member of ECDET, and the parties agree that ...


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