United States District Court, District of Columbia
P. Mehta United States District Court Judge.
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.
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.
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
(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.
The Šnipiškės Cemetery
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.
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 ...