Nguyen v. United States

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6 SAN JOSE DIVISION

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8 MAI-TRANG THI NGUYEN, Case No. 23-cv-06047-VKD

9 Plaintiff,

ORDER GRANTING DEFENDANT’S

10 v. MOTION TO DISMISS

11 UNITED STATES OF AMERICA, Re: Dkt. No. 18

Defendant.

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14 Plaintiff Mai-Trang Thi Nguyen, who is representing herself, filed this lawsuit claiming

15 that the United States’ support of Israel in its military campaign against Hamas in the Gaza Strip

16 violates the First Amendment. Dkt. No. 7.1 The United States moves to dismiss Ms. Nguyen’s

17 first amended complaint (“FAC”) for lack of subject matter jurisdiction pursuant to Rule 12(b)(1)

18 and for failure to state a claim pursuant to Rule12(b)(6). Dkt. No. 18. Ms. Nguyen opposes this

19 motion. Dkt. No. 23.2

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1 All named parties have expressly consented that all proceedings in this matter may be heard and

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finally adjudicated by a magistrate judge. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; Dkt. Nos. 5, 17.

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2 Ms. Nguyen’s opposition includes a single page “revised claim” under the First Amendment.

Dkt. No. 23 at ECF 11. To the extent that this is an attempt to file an amended complaint, see Fed.

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R. Civ. P. 15(a)(1)(B), (a)(2), it violates Civil Local Rule 10-1, requiring that “[a]ny party filing or

moving to file an amended pleading must reproduce the entire proposed pleading and may not

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incorporate any part of a prior pleading by reference.” However, even if the Court were to

consider Ms. Nguyen’s reference to a “revised claim” as a request for leave to amend, such

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amendment would be futile.

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After briefing on the United States’ motion to dismiss was completed, Ms. Nguyen made several

additional filings with the Court. See Dkt. No. 32 (“Evidence for Dismissal Hearing”); Dkt. No.

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33 (“Second Evidence for Dismissal Hearing”). These filings are not permitted by the Civil Local

1 The Court previously found this motion suitable for determination without oral argument.

2 See Civil L.R. 7-1(b); Dkt. No. 29. Upon consideration of the moving papers and the applicable

3 law, the Court grants the United States’ motion to dismiss for lack of subject matter jurisdiction

4 and dismisses Ms. Nguyen’s FAC without leave to amend. The Court does not reach the United

5 States’ argument that the FAC should be dismissed for failure to state a claim.

6 I. BACKGROUND

7 Ms. Nguyen filed her original complaint in this action, along with an application to

8 proceed in forma pauperis (“IFP”), on November 22, 2023. Dkt. Nos. 1, 2. She alleged that, after

9 hearing about the Hamas attacks on Israeli civilians on October 7, 2023, she did “some research”

10 on the internet and “learned that Israel is an apartheid government” and that “the U.S. government

11 . . . has been supporting this apartheid government of Israel by sending them at least $3 billions

12 [sic] of military aid each year.” Dkt. No. 6 at 1 (quoting Dkt. No. 1 ¶ 6). Claiming that this aid

13 violated the establishment clause of the First Amendment, the Declaration of Independence, and

14 several statutes, she requested: “$5 trillion[] if a WWIII erupts; however since America is in debt

15 of $31 trillion[], I’ll take a letter of apology [and end of U.S. aid to Israel] or $25,000 for turning

16 in this lawsuit.” Id. at 1-2 (quoting Dkt. No. 1 ¶ 18).

17 The Court issued an order provisionally denying Ms. Nguyen’s IFP application and

18 screening her complaint pursuant to 28 U.S.C. § 1915(e). See Dkt. No. 6. Although the Court

19 found that Ms. Nguyen’s claims were “frivolous and [had] no plausible basis in law or fact,” it

20 granted her leave to file an amended complaint addressing the deficiencies it identified. Id. at 4-5.

21 Abandoning her request to proceed IFP, Ms. Nguyen paid the filing fee and filed the FAC.

22 Dkt. Nos. 7, 8. The factual allegations in the FAC are substantially similar to those in Ms.

23 Nguyen’s original complaint. The FAC alleges that Israel is an “apartheid government” and

24 receives billions of dollars in military aid from the U.S. government. See Dkt. No. 7 at 4. Ms.

25 Nguyen asserts that this aid violates the establishment clause of the First Amendment because

26 “Israel is a state of Judaism religion.” Id. at 5. She also asserts that aid to Israel violates the

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1 “Leahy Law,” because Israel has committed “gross violation[s] of human rights.”3 Id. at 12.

2 However, Ms. Nguyen abandoned her “Leahy Law” claims in her opposition the motion to

3 dismiss. See Dkt. No. 23 at ECF 20. As in her original complaint, Ms. Nguyen requests

4 $5 trillion dollars, “if a WWIII erupts,” a letter of apology and an end of U.S. military aid to Israel,

5 or $25,000. Dkt. No. 7 at 25.

6 II. LEGAL STANDARD

7 A Rule 12(b)(1) motion to dismiss challenges a federal court’s jurisdiction over the subject

8 matter of the plaintiff’s complaint. A jurisdictional challenge under Rule 12(b)(1) may be made

9 either on the face of the pleadings (a “facial attack”) or by presenting extrinsic evidence (a “factual

10 attack”). Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citing

11 White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). The Court construes the United States’

12 motion to dismiss as raising a facial attack on jurisdiction. “In a facial attack, the challenger

13 asserts that the allegations contained in a complaint are insufficient on their face to invoke federal

14 jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In resolving a

15 facial attack on jurisdiction, the record is limited to the complaint and materials that may be

16 judicially noticed. See Hyatt v. Yee, 871 F.3d 1067, 1071 n.15 (9th Cir. 2017). Additionally, the

17 Court accepts the well-pled allegations of the complaint as true, draws all reasonable inferences in

18 plaintiff’s favor, and determines whether the allegations are sufficient to support jurisdiction. Id.

19 As the party asserting federal subject matter jurisdiction, Ms. Nguyen bears the burden of

20 establishing its existence. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

21 III. DISCUSSION

22 The United States argues for dismissal on four separate grounds: (1) Ms. Nguyen lacks

23 Article III standing because she asserts only a generalized grievance against U.S. foreign policy;

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3 The Leahy Amendments bar the State Department and the Department of Defense from

“providing congressionally appropriated funds to any unit of a foreign country’s security forces if

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there [is] credible evidence that the unit ‘has committed gross violations of human rights.’”

Cameranesi v. United States Dep’t of Def., 856 F.3d 626, 631 (9th Cir. 2017) (cleaned up); see

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also 22 U.S.C. § 2378d (State Department Leahy Amendment); 10 U.S.C. § 362 (Department of

1 (2) Ms. Nguyen’s claims raise nonjusticiable political questions; (3) the Court lacks subject matter

2 jurisdiction over Ms. Nguyen’s First Amendment claim because it is based on non-parties’

3 religious interests; and (4) Ms. Nguyen has failed to state a claim on which relief can be granted.

4 See Dkt. No. 18 at 1. It also argues that the Court should dismiss Ms. Nguyen’s FAC without

5 leave to amend. Id.

6 Because the Court concludes that Ms. Nguyen’s claims are barred by either of the first two

7 grounds and cannot be cured by amendment, it does not address the United States’ remaining

8 arguments.

9 A. Standing

10 Under Article III of the Constitution, federal courts have jurisdiction to decide only actual

11 “Cases” or “Controversies.” U.S. Const., art. III, § 2. To have standing to sue, a plaintiff must

12 have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the

13 defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v.

14 Robins, 578 U.S. 330, 338 (2016); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

15 (1992). The claimed injury must be both “particularized” and “concrete.” A “particularized”

16 injury is one that “‘affect[s] the plaintiff in a personal and individual way.’” Spokeo, Inc., 578

17 U.S. at 339 (quoting Lujan, 504 U.S. at 560 n.1). A “concrete” injury “must actually exist” and

18 must be “real, and not abstract.” Id. at 340. Standing is a jurisdictional issue properly addressed

19 under Rule 12(b)(1). Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004).

20 In its order screening Ms. Nguyen’s original complaint, the Court concluded that Ms.

21 Nguyen lacked Article III standing because the complaint expressed only a “generalized grievance

22 against allegedly illegal government conduct.” Dkt. No. 6 at 4 (quoting Nguyen v. United States,

23 No. 22-16074, 2023 WL 4486747, at *1 (9th Cir. July 12, 2023)). The United States argues that

24 the same is true of the FAC. Dkt. No. 18 at 5. The Court agrees.

25 Ms. Nguyen does not allege she has suffered an injury in fact caused by the United States.

26 As the Court concluded in its screening order, her claims about the unconstitutionality of U.S. aid

27 to Israel raise only “only a generally available grievance about government—claiming only harm

1 at 573; see also Latham v. Biden, No. 23-cv-12834-JEK, 2024 WL 923501, at *2 (D. Mass. Mar.

2 4, 2024) (“[Plaintiff’s objection] to President Biden’s support for Israel and to the use of ‘funds

3 from Congress’ to support Israel in the aftermath of the October 7, 2023 attack by Hamas [] asserts

4 only a generalized grievance about the President’s and Congress’s policies with respect to

5 Israel.”); Lindsay v. N. Atl. Treaty Org., No. 23-cv-0546-KKE, 2024 WL 248705, at *1-2 (W.D.

6 Wash. Jan. 23, 2024) (stating the same).

7 In the FAC and in her other submissions to the Court, Ms. Nguyen details various ways

8 that she claims to be personally impacted by U.S. aid to Israel, including the fact that she “suffers

9 immense anxiety and fear” and “as a disabled [person],” she is concerned that she “would be the

10 first to die in a Jihadi’s event in America, mass shooting in American, [and] especially in a

11 WWIII.” Dkt. No. 7 at 23. She also claims to have “changed her way of living by jailing herself

12 at home” and “chose[n] to relinquish her American Citizen[ship] to return to Vietnam because

13 Vietnam might be a safe country to go to if there is a [WWIII.]” Id. To the extent these

14 allegations could constitute injuries in fact, none of them are fairly traceable to the constitutional

15 violations Ms. Nguyen alleges. Her concerns about a “WWIII” and other negative consequences

16 from U.S. aid to Israel invoke a “speculative chain of possibilities” and “rest on speculation about

17 the decisions of independent actors.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 (2013).

18 As for Ms. Nguyen’s allegations about actions she has taken herself, these fail to support standing

19 as a plaintiff “cannot manufacture standing merely by inflicting harm on [herself] based on [her]

20 fears of hypothetical future harm.” Id. at 416.

21 Because Ms. Nguyen fails to allege a concrete and particularized injury that is fairly

22 traceable to the misconduct alleged in her FAC, she lacks standing under Article III and there is no

23 justiciable case or controversy.

24 B. Political Question

25 “The political question doctrine excludes from judicial review those controversies which

26 revolve around policy choices and value determinations constitutionally committed for resolution

27 to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am.

1 independent tests for determining whether a dispute presents a political question:

2 Prominent on the surface of any case held to involve a political

question is found [1] a textually demonstrable constitutional

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commitment of the issue to a coordinate political department; or [2]

4 a lack of judicially discoverable and manageable standards for

resolving it; or [3] the impossibility of deciding without an initial

5 policy determination of a kind clearly for nonjudicial discretion; or

[4] the impossibility of a court’s undertaking independent resolution

6 without expressing lack of the respect due coordinate branches of

government; or [5] an unusual need for unquestioning adherence to

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a political decision already made; or [6] the potentiality of

8 embarrassment from multifarious pronouncements by various

departments on one question.

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10 369 U.S. 186, 217 (1962). “[D]isputes involving political questions lie outside of the Article III

11 jurisdiction of federal courts.” Corrie v. Caterpillar, Inc., 503 F.3d 974, 980 (9th Cir. 2007).

12 The United States argues that the “the central issue [of Ms. Nguyen’s complaint]—whether

13 the U.S. should provide assistance to Israel—presents a non-justiciable political question.” Dkt.

14 No. 18 at 7. The Court agrees.

15 “The conduct of the foreign relations of our government is committed by the Constitution

16 to the executive and legislative branches and the propriety of what may be done in the exercise of

17 this political power is not subject to judicial inquiry or decision.” Corrie, 503 F.3d at 982

18 (quoting Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918)). While “[not] every case or

19 controversy which touches foreign relations lies beyond judicial cognizance,” the “resolution of

20 such issues frequently turn[s] on standards that defy judicial application[,] involve[s] the exercise

21 of a discretion demonstrably committed to the executive or legislature[, or] uniquely demand[s a]

22 single-voiced statement of the Government’s views.” Baker, 369 U.S. at 211.

23 As the United States notes, Ms. Nguyen is not the first to challenge the legality of U.S. aid

24 to Israel, before or after the events of October 7, 2023. See Dkt. No. 18 at 7-8. Reviewing a

25 challenge to the U.S. government’s provision of bulldozers to the Israeli Defense Forces, the Ninth

26 Circuit determined that it was a political question under several of the tests identified in Baker v.

27 Carr. Corrie, 503 F.3d at 983 (“Whether to grant military or other aid to a foreign nation is a

1 can succeed only if a court ultimately decides that Caterpillar should not have sold its bulldozers

2 to the IDF. . . [T]hat foreign policy decision is committed under the Constitution to the legislative

3 and executive branches.”); id. (“Plaintiffs’ action also runs head-on into the fourth, fifth, and sixth

4 Baker tests because whether to support Israel with military aid is not only a decision committed to

5 the political branches, but a decision those branches have already made.”); see also Abusharar v.

6 Hagel, 77 F. Supp. 3d 1005, 1006 (C.D. Cal. 2014) (challenge to U.S. military aid based on

7 human rights abuses in Gaza was political question). In recent months, other courts have reached

8 similar conclusions regarding challenges to U.S. military aid to Israel in the context of Israel’s

9 current war in Gaza. See Def. for Child. Int’l-Palestine v. Biden, No. 23-cv-05829-JSW, 2024 WL

10 390061, at *4 (N.D. Cal. Jan. 31, 2024) (quoting Haig v. Agee, 453 U.S. 280, 292 (1981))

11 (“Plaintiffs’ request to have this Court enjoin the government of the United States from providing

12 military or financial assistance to Israel invokes matters are ‘intimately related to foreign policy

13 and national security’ and are ‘largely immune from judicial inquiry and interference.’”); Latham,

14 2024 WL 923501, at *2 (Plaintiff’s request to “direct the defendant, President Joseph Biden, to

15 stop supporting Israeli Prime Minister Benjamin Netanyahu” was “foreclosed by the political

16 question doctrine.”).

17 Ms. Nguyen’s FAC suffers from these same deficiencies. She asks the Court to second

18 guess foreign policy decisions that the Constitution has expressly committed to the political

19 branches. See Corrie, 503 F.3d at 982; see also Mobarez v. Kerry, 187 F. Supp. 3d 85, 92 (D.D.C.

20 2016) (Ketanji Brown Jackson, J.) (“[I]f the court is being called upon to serve as a forum for

21 reconsidering the wisdom of discretionary decisions made by the political branches in the realm of

22 foreign policy or national security, then the political-question doctrine is implicated, and the court

23 cannot proceed.”) (cleaned up). Because these questions are “inextricable” from the factual

24 allegations and legal claims in Ms. Nguyen’s FAC, these clams must be dismissed. See Alperin v.

25 Vatican Bank, 410 F.3d 532, 544 (9th Cir. 2005) (quoting Baker, 369 U.S. at 217).

26 IV. CONCLUSION

27 For the foregoing reasons, Ms. Nguyen does not have standing to assert a First

1 the Court grants the United States’ motion to dismiss for lack of subject matter jurisdiction.

2 Ordinarily, “a district court should not dismiss a pro se complaint without leave to amend

3 unless it is absolutely clear that the deficiencies of the complaint could not be cured by

4 amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (cleaned up). Here, Ms.

5 Nguyen has already been granted leave to amend once, see Dkt. No. 6, and her opposition does not

6 indicate that she is able to cure the deficiencies identified above, see Dkt. No. 23. Under these

7 circumstances, it is absolutely clear that the deficiencies in the FAC could not be cured by

8 amendment. Thus the Court dismisses this action without leave to amend.

9 The Clerk of Court is directed to close the file.

10 IT IS SO ORDERED.

11 Dated: April 1, 2024

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VIRGINIA K. DEMARCHI

United States Magistrate Judge

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