125 F. Supp. 3d 67
D.D.C.2015Background
- Plaintiffs (Larry Klayman and anonymous John/Jack Roe plaintiffs) sued Hamas, President Obama, Secretaries Clinton and Kerry, U.N. Secretary‑General Ban Ki‑Moon, and Malik Obama, alleging they aided and abetted Hamas terrorism during the 2014 Israel/Gaza conflict and funneled U.S. funds to Hamas.
- Federal Defendants (President Obama, Secretaries Clinton and Kerry) were served and moved to dismiss; several defendants (Hamas, Malik Obama, Ban Ki‑Moon) had not appeared and service issues were addressed separately.
- Plaintiffs alleged RICO, Anti‑Terrorism Act (ATA), constitutional (Bivens), FTCA/tort, and other common‑law claims; many allegations concerned U.S. foreign‑policy decisions and alleged misuse of U.S. funds and resources.
- The United States submitted a Westfall certification (28 U.S.C. § 2679) that the Federal Defendants acted within the scope of employment, and the U.S. filed a statement of interest on diplomatic immunity for Ban Ki‑Moon.
- Court evaluated jurisdictional bars (sovereign immunity, FTCA exceptions, § 2337 ATA immunity), presidential and qualified immunity, standing for RICO, adequacy of service, and diplomatic immunity for Ban Ki‑Moon.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sovereign immunity for official‑capacity claims (RICO/ATA/etc.) | Federal officials can be sued individually; misconduct (terrorism) removes immunity | Official‑capacity claims are suits against U.S.; no waiver for RICO; ATA bars suits against U.S./officials acting in official capacity | Dismissed: sovereign immunity bars official‑capacity RICO and ATA claims |
| ATA individual‑capacity liability / "under color of legal authority" | Financing terrorism is beyond any official’s authority, so individual suits permitted | Actions alleged (funds, policy, military direction) were taken under color of federal authority; §2337 immunity applies | Dismissed: individual‑capacity ATA/RICO claims barred because acts were under color of authority |
| FTCA / tort claims (assault, wrongful death, IIED) | Claims brought individually, not against the U.S. | Westfall certification substitutes the U.S.; FTCA bars intentional torts and claims for injuries in foreign country | Dismissed: Westfall applies; FTCA exceptions (intentional‑tort and foreign‑country) bar tort claims |
| Presidential and qualified immunity for individual RICO claims | President and Secretaries are accountable despite alleged illegality; standing exists (Klayman’s business injury) | President has absolute immunity for official acts; Secretaries have qualified immunity; Plaintiffs lack RICO standing | Dismissed: President absolutely immune; Secretaries entitled to qualified immunity (uncontested); RICO standing lacking (no business/property injury) |
| Bivens / constitutional claims | Complaint invokes Bivens (1st, 4th, 5th, 14th) | Complaint fails to identify specific constitutional violations or requisite intent | Dismissed: Plaintiffs failed to plead a cognizable Bivens claim |
| Diplomatic immunity for Ban Ki‑Moon | UN Secretary‑General not covered by Vienna/General Convention immunity here | General Convention and Vienna Convention confer near‑absolute immunity on Secretary‑General; 22 U.S.C. §254d mandates dismissal | Dismissed: Ban Ki‑Moon immune; claims against him dismissed |
| Service of process and anonymous plaintiffs | Plaintiffs attempted service and used pseudonyms citing safety concerns | Service was inadequate for some defendants; anonymous plaintiffs failed to seek leave to proceed pseudonymously | Dismissed: inadequate service on several defendants; anonymous plaintiffs’ claims dismissed (but may move ex parte for pseudonym leave and time to serve Hamas/Malik) |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (jurisdictional presumption against federal jurisdiction)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (plaintiff bears burden to establish standing/jurisdiction)
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility pleading standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must raise claim above speculative level)
- Nixon v. Fitzgerald, 457 U.S. 731 (absolute presidential immunity for official acts)
- Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (RICO standing requires injury to business or property)
- West v. Atkins, 487 U.S. 42 ("under color" analysis for official‑action cases)
- Sosa v. Alvarez‑Machain, 542 U.S. 692 (FTCA foreign‑country exception controls by place of injury)
- Pearson v. Callahan, 555 U.S. 223 (qualified immunity two‑step analysis)