15‐4018‐cv Sikhs for Justice Inc. v. Kerry

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of October, two thousand sixteen.

PRESENT: DENNY CHIN, SUSAN L. CARNEY, Circuit Judges, RICHARD M. BERMAN, District Judge.*

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SIKHS FOR JUSTICE INCORPORATED, MICHAEL MASIH, HASIM ALI, KULWINDER SINGH, Plaintiffs‐Appellants,

v. 15‐4018‐cv

JOHN KERRY, in his official capacity as U.S. Secretary of State, Defendant‐Appellee.

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* The Honorable Richard M. Berman, of the United States District Court for the Southern District of New York, sitting by designation. FOR PLAINTIFFS‐APPELLANTS: GURPATWANT SINGH PANNUN, Pannun the Firm, P.C., Jackson Heights, New York.

FOR DEFENDANT‐APPELLEE: CHRISTOPHER CONNOLLY, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Swain, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiffs‐appellants Sikhs for Justice Inc. (ʺSFJʺ), Michael Masih, Hasim

Ali, and Kulwinder Singh appeal a December 4, 2015 judgment of the district court

dismissing their First Amended Complaint (the ʺComplaintʺ). By memorandum

opinion and order dated December 3, 2015, the district court granted the motion of

defendant Secretary of State John Kerry (the ʺSecretaryʺ) pursuant to Federal Rule of

Civil Procedure 12(b)(1) to dismiss for lack of subject matter jurisdiction. We assume

the partiesʹ familiarity with the Complaint, procedural history, and issues on appeal.

As alleged in the Complaint, SFJ is a not‐for‐profit organization that is

ʺdedicated [to] advocacy of human rights particularly rights and issues pertaining to . . .

religious minorities.ʺ D. App. 32. The other plaintiffs are Indian nationals residing in

the United States who allege that they and their family members have been persecuted

‐ 2 ‐ on account of their Christian and Islamic religious beliefs by members of Rashtriya

Swayamsevak Sangh (ʺRSSʺ), an Indian Hindu nationalist organization.

On December 24, 2014, SFJ sent a letter to the Secretary, urging him to

designate RSS as a ʺforeign terrorist organizationʺ under

and a

ʺSpecifically Designated Global Terroristʺ entity under Executive Order No. 13,224,

(Sept. 23, 2001) (ʺEO 13224ʺ) and related federal statutes. When it

received no response to its letter, SFJ and the other plaintiffs filed this lawsuit on

January 21, 2015.

The Complaint alleges that RSS and certain of its members have harassed

plaintiffs and their families and threatened to physically harm them if they do not

convert to Hinduism. It further alleges that the Secretary owes a duty to plaintiffs to

designate RSS as a foreign terrorist organization and a Specifically Designated Global

Terrorist entity. His failure to do so allegedly breached such duty and injured plaintiffs.

The district court granted the Secretaryʹs motion to dismiss on the

grounds that the Complaint does not present a ʺcase or controversyʺ under Article III of

the Constitution because plaintiffs lack standing and their claims present a non‐

justiciable ʺpolitical question.ʺ This appeal followed.

We review de novo a district courtʹs dismissal for lack of subject matter

jurisdiction. Mahon v. Ticor Title Ins. Co.,

(2d Cir. 2012). To establish

standing under Article III of the Constitution, plaintiffs must show that they suffered an

‐ 3 ‐ ʺinjury in fact,ʺ a ʺcausal connectionʺ between the injury and the challenged conduct,

and a likelihood that the injury will be ʺredressed by a favorable decision.ʺ Lujan v.

Defenders of Wildlife,

, 560‐61 (1992). An injury in fact must be both

ʺparticularizedʺ ‐‐ i.e., ʺit must affect the plaintiff in a personal and individual wayʺ ‐‐

and ʺconcreteʺ ‐‐ i.e., ʺit must actually exist.ʺ Spokeo, Inc. v. Robins,

(2016).

Federal law provides that the Secretary ʺis authorized to designate an

organization as a foreign terrorist organization . . . if [he] finds that . . . the organization

. . . engages in terrorist activity [which] threatens the security of United States nationals

or the national security of the United States.ʺ

(a)(1)(B)‐(C). Likewise,

EO 13224 provides that any individual or entity ʺdetermined by the Secretary of State

. . . to have committed, or to pose a significant risk of committing, acts of terrorism that

threaten the security of U.S. nationals or the national security, foreign policy, or

economy of the United Statesʺ may be designated as a ʺSpecifically Designated Global

Terrorist.ʺ EO 13224 § 1(b), pmbl. (citing United Nations Participation Act of 1945, 22

U.S.C. § 287c, National Emergencies Act,

et seq., and International

Emergency Economic Powers Act,

et seq.).

Assuming he makes the requisite findings, these provisions of federal law

plainly authorize the Secretary to designate an entity as a terrorist organization, but the

decision to do so is entirely discretionary. See

(a)(1) (ʺauthoriz[ing] [the

‐ 4 ‐ Secretary] to designateʺ foreign terrorist organizations (emphasis added)); EO 13224

§ 1(b) (blocking entities ʺdetermined by the Secretaryʺ to be terrorist organizations

(emphasis added)). While a ʺdesignated organizationʺ may contest its designation in

this regard, the Secretary owes no duty to so designate an organization at the request of

another. See

(a)(4)(B), (c); EO 13224 § 9 (ʺNothing contained in this order

[creates] any right, benefit, or privilege, substantive or procedural, enforceable at law by

a party against the United States, its agencies, officers, employees or any other person.ʺ).

Cf. United States v. Garavito‐Garcia,

, 250‐51 (2d Cir. 2016) (noting in the

criminal context that ʺonce the Secretaryʹs designation becomes effective, ʹa defendant in

a criminal action . . . shall not be permitted to raise any question concerning the validity

of the issuance of such designation as a defense or an objection at any trial or hearingʹʺ

(citing

(a)(8)).

Here, plaintiffs have not demonstrated standing. They have not alleged a

particularized or concrete injury in fact caused by the Secretaryʹs failure to designate

RSS as a terrorist organization. Moreover, plaintiffsʹ contention that such a designation

would remedy the injuries they allege RSS has caused them is entirely speculative. The

district court correctly held that plaintiffs lack standing.

Because we conclude that plaintiffs lack standing, we do not reach the

question of whether their claims present only a non‐justiciable political question.

‐ 5 ‐ We have reviewed plaintiffsʹ remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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