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Fryshman v. United States Commission For Preservation of America's Heritage Abroad

United States District Court, District of Columbia

October 22, 2019

BERNARD FRYSHMAN, PhD et al., Plaintiffs,
v.
UNITED STATES COMMISSION FOR THE PRESERVATION OF AMERICA'S HERITAGE ABROAD Defendant.

          MEMORANDUM OPINION

          Amit P. Mehta United States District Court Judge.

         I. INTRODUCTION

         Plaintiffs in this case, Dr. Bernard Fryshman and Mr. Boruch Pines, seek to compel the United States Commission for the Preservation of America's Heritage Abroad (“Commission”) to prevent the Lithuanian government from building a convention center and concert hall on a historic Jewish cemetery located in Lithuania's capital, Vilnius. The Commission has moved to dismiss the case for lack of standing and failure to state a claim under the Administrative Procedure Act. In the alternative, the Commission asserts it is entitled to summary judgment on Plaintiffs' claims.

         The court concludes that Plaintiffs lack standing because they have not plausibly shown that their injuries are caused by the Commission's inaction, or that a favorable decision is likely to redress their harms. In addition, and for the sake of comprehensiveness, the court further holds that Plaintiffs have failed to identify a “discrete agency action” that the Commission is “required to take” sufficient to compel agency action under the Administrative Procedure Act. Because the court grants the Commission's Motion to Dismiss, it does not reach the Commission's alternate Motion for Summary Judgment.

         II. BACKGROUND

         A. The Commission

         Observing that the “fabric of a society is strengthened by visible reminders of the historical roots of the society, ” Congress established the Commission in 1985 to “encourage the preservation and protection of the cemeteries, monuments, and historic buildings associated with the foreign heritage of United States citizens.” Pub. L. 99-83, § 1303(a), 99 Stat. 190, 280 (1985) (codified at 54 U.S.C. § 312301 et seq). The Commission consists of 21 members appointed by the President of the United States. 54 U.S.C. § 31203(b). It has three duties:

(1) [I]dentify and publish a list of those cemeteries, monuments, and historic buildings located abroad which are associated with the foreign heritage of United States citizens from eastern and central Europe, particularly those cemeteries, monuments, and buildings which are in danger of deterioration or destruction;
(2) [E]ncourage the preservation and protection of such cemeteries, monuments, and historic buildings by obtaining, in cooperation with the Department of State, assurances from foreign governments that the cemeteries, monuments, and buildings will be preserved and protected; and
(3) [P]repare and disseminate reports on the condition of and the progress toward preserving and protecting such cemeteries, monuments, and historic buildings.

Id. § 312304.

         B. The Šnipiškės Cemetery

         The cemetery that is the subject of this action is located in the Šnipiškės neighborhood of Vilnius. The cemetery was established in the fifteenth century and holds the remains of thousands of Lithuanian Jews. Compl., ECF No. 1, ¶ 11 [hereinafter Compl.]. The Nazis seized the cemetery during World War II. Later, it came under the control of the Soviet Union, which removed gravestones and erected a sports hall on the grounds. Compl. ¶ 12.

         In 2015, Lithuania announced plans to develop the currently abandoned sports hall into a concert hall and convention center. Compl. ¶ 15. Lithuania made this announcement despite the fact that it had executed an agreement with the Commission in 2002-titled Agreement on the Protection and Preservation of Certain Cultural Properties between the United States and Lithuania [hereinafter the 2002 Agreement]-in which it committed to ...


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