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Bernstein v. Kerry

United States District Court, District Circuit

August 26, 2013

RACHEL BERNSTEIN, et al., Plaintiffs,
v.
JOHN F. KERRY, et al., [1] Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiffs Rachel Bernstein and other American citizens who live in Israel have filed suit against the Secretary of State and other government officials claiming that defendants have violated the law by providing money and other resources to the Palestinian Authority and other non-governmental groups in the West Bank and Gaza without following statutory requirements. (Complaint, Nov. 26, 2012 [ECF No. 1] ("Compl.") ¶¶ 1-5.) Defendants have moved to dismiss for lack of jurisdiction. (Motion to Dismiss, Apr. 1, 2013 [ECF. No. 15].) For the reasons stated herein, this Court will grant defendants' motion on the grounds of lack of standing.

BACKGROUND

Plaintiffs are twenty-four American citizens who reside in Israel, two of whom have been injured in terrorist attacks in Jerusalem. (Compl. ¶¶ 10-33.) Plaintiffs "live in fear of Palestinian terrorist attacks" and allege that defendants have failed to comply with a variety of statutes that were enacted for the "purpose of protecting the Plaintiffs and others similarly situated." ( Id. ¶¶ 34-36.) Among the statutes at issue, plaintiffs claim that defendants have violated the Department of State, Foreign Operations, and Related Programs Appropriations Act of 2012 ("SFOAA"), Pub. L. No. 112-74, 125 Stat. 786. Section 7036 of SFOAA provides that funds may not be used to support a Palestinian state unless the Secretary of State determines and certifies to the appropriate congressional committee that:

(1) the governing entity of a new Palestinian state-
(A) has demonstrated a firm commitment to peaceful co-existence with the State of Israel;
(B) is taking appropriate measures to counter terrorism and terrorist financing in the West Bank and Gaza, including the dismantling of terrorist infrastructures, and is cooperating with appropriate Israeli and other appropriate security organizations; and
(2) the Palestinian Authority (or the governing entity of a new Palestinian state) is working with other countries in the region to vigorously pursue efforts to establish a just, lasting, and comprehensive peace in the Middle East that will enable Israel and an independent Palestinian state to exist within the context of full and normal relationships, which should include-
(A) termination of all claims or states of belligerency;
(B) respect for and acknowledgment of the sovereignty, territorial integrity, and political independence of every state in the area through measures including the establishment of demilitarized zones;
(C) their right to live in peace within secure and recognized boundaries free from threats or acts of force;
(D) freedom of navigation through international waterways in the area; and
(E) a framework for achieving a just settlement of the refugee problem.

Id. § 7036(a). Section 7039 prohibits assistance under the West Bank and Gaza Program to be "made available for the purpose of recognizing or otherwise honoring individuals who commit, or have committed acts of terrorism." Id. § 7039(c). Section 7040 prohibits funds to be provided to the Palestinian Authority unless the President certifies that the waiving of the prohibition "is important to the national security interests of the United States." Id. §§ 7040(a), (b). The President exercised this waiver in 2012, and "certif[ied] that it is important to the national security interests of the United States to waive the [prohibition] in order to provide funds... to the Palestinian Authority." Pres. Determ. No. 2012-07, 77 Fed. Reg. 33, 947 (Apr. 25, 2012). As part of the certification, President Obama directed the Secretary of State to file a report with the Committee on Appropriations in compliance with § 7040(d) of SFOAA. See id. Such a report must detail "the justification for the waiver, the purposes for which the funds will be spent, " and "the steps the Palestinian Authority has taken to arrest terrorists, confiscate weapons and dismantle the terrorist infrastructure." SFOAA § 7040(d). While plaintiffs claim not to ...


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