The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
IRAN THALASSEMIA SOCIETY, a No. 3:22-cv-1195-HZ
nonprofit organization; EB HOME, a nonprofit
organization; H.K., an individual; A.M., an OPINION & ORDER
individual; S.N., an individual; M.M., an individual;
FZ.H., an individual; F.E., an individual; and NO
CHILD SHOULD SUFFER, a nonprofit organization,
Plaintiffs,
v.
OFFICE OF FOREIGN ASSETS CONTROL;
JANET YELLEN, in her official capacity as
Secretary of the Treasury; and ANDREA GACKI,
in her official capacity as Director of the Office of
Foreign Assets Control,
Defendants.
Thomas H. Nelson
Thomas H. Nelson & Associates
20820 E. Glacier View Road
Zigzag, OR 97049
Brandon Mayfield
The Law Office of Brandon Mayfield
14631 SW Millikan Way
Beaverton, OR 97003
Attorneys for Plaintiff
Brian M. Boynton
Principal Deputy Assistant Attorney General
Alexander K. Haas
Director, Federal Programs Branch
Diane Kelleher
Assistant Director, Federal Programs Branch
Stephen M. Elliott
Stuart J. Robinson
Senior Counsel
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L St. NW
Washington, D.C. 20005
Natalie K. Wight
United States Attorney
U.S. Attorney’s Office, District of Oregon
1000 SW Third Ave., Ste 600
Portland, OR 97204
Attorneys for Defendants
HERNÁNDEZ, District Judge:
This case concerns some of the unfortunate side effects that can result from foreign
policy decisions of the political branches of our nation’s government. Plaintiffs are an Iranian
organization representing the interests of individuals in Iran suffering from thalassemia, a genetic
blood disorder; an Iranian organization representing the interests of individuals in Iran suffering
from epidermolysis bullosa (“EB”), a genetic skin disorder; six Iranian citizens suffering from
EB; and an Oregon domestic nonprofit formed to support Iranian children impacted by the
United States Government’s sanctions on Iran. Plaintiffs claim that Defendants’ imposition of
“maximum pressure” sanctions on Iran has cut off the delivery of needed medication and
medical supplies to children in Iran afflicted with thalassemia and EB, leading to increased
suffering and, in some cases, death. Am. Compl. ¶¶ 2, 8, ECF 6. They seek a preliminary
injunction enjoining Defendants from imposing sanctions on any entity that provides
humanitarian aid in the form of medical supplies and medications to Iran. The Court held oral
argument on the Motion on September 23, 2022. While the Court is sympathetic to the plight of
the impacted children, any solution is beyond the Court’s power to grant. The Court therefore
denies Plaintiffs’ Motion for Preliminary Injunction [2].
BACKGROUND
In 2018, then-President Donald Trump reimposed certain economic sanctions with
respect to Iran. Pl. Mem. 1-2, ECF 2-1; Def. Opp. 1, ECF 7. These sanctions, which Plaintiffs
refer to as “maximum pressure” sanctions, imposed new restrictions on Iranian banking entities.
Pl. Mem. 2-3; Def. Opp. 5-6. Defendant Office of Foreign Assets Control (“OFAC”) administers
the sanctions programs. Def. Opp. 2. Plaintiffs allege that these sanctions resulted in so-called
secondary sanctions on non-Iranian banks seeking to do business with Iran, which has made it
virtually impossible for entities wishing to provide humanitarian aid to Iran to do so. Pl. Mem. 3.
Defendants counter that the sanctions do not prohibit humanitarian aid and that OFAC has
developed mechanisms to facilitate aid. Def. Opp. 18-22. According to Defendants, third parties
are choosing not to do business in Iran. Id. at 22-23.
Plaintiffs focus specifically on the impact of the secondary sanctions on Iranians with two
medical conditions: thalassemia and epidermolysis bullosa (“EB”). According to Plaintiffs,
“[t]halassemia major is a hereditary disease or disorder that causes anemia.” Pl. Mem. Ex. 1
(Medical Report of Dr. Nourbakhsh) at 1, ECF 2-2. Individuals diagnosed with thalassemia
require blood transfusions, which in turn increase the iron load in the body. Id. They must
regularly take iron-releasing drugs, or “iron chelators,” to counteract this effect. Id. Without
these drugs, individuals with thalassemia may suffer from heart or liver failure resulting in death.
Id. at 3. Plaintiffs allege that Desferal, the most effective iron-chelating drug, is no longer
available in Iran due to the sanctions. Pl. Mem. 3. Desferal is manufactured by Novartis, a Swiss-
American pharmaceutical company. Id. Plaintiffs allege that Desfonac, the Iranian version of the
drug, is less effective and causes several serious side effects. Am. Compl. ¶ 9. Plaintiffs allege
that approximately 617 individuals with thalassemia in Iran have died since May 2018 because
they were unable to access Desferal. Id.
EB is a recessive genetic skin disorder that results in painful blisters forming on the skin.
Pl. Mem. Ex. 3A (Parvizi Decl.) ¶ 6, ECF 2-3. Those diagnosed with EB require “daily wound
care, bandaging, and pain management.” Id. Wounds may cover the majority of the individual’s
body. Id. ¶ 10. Plaintiffs allege that the “maximum pressure” sanctions led a Swedish entity,
Mölnlycke Health Care, to cease providing Mepilex, a specialized wound dressing, to Iranian
buyers. Pl. Mem. 3; Pl. Mem. Ex. 4, ECF 2-3 (letter to Plaintiff EB Home from Kristin Hedlund,
Executive Vice President, stating that Mölnlycke Health Care is currently not doing business
related to Iran due to the sanctions). Without the dressings, EB patients “are suffering
excruciating pain as their wound dressings are changed.” Pl. Mem. 3. Plaintiffs represent that
other wound dressings are not acceptable substitutes. Pl. Mem. Ex. 3A ¶¶ 11-12.
Based on these harms, Plaintiffs filed a complaint against OFAC; its director, Andrea
Gacki; and Treasury Secretary Janet Yellen. Plaintiffs allege two causes of action. Count I
alleges violations of provisions of three federal statutes governing the President’s authority to
impose economic sanctions: the International Emergency Economic Powers Act (“IEEPA”),
specifically 50 U.S.C. § 1702(b)(2)1; the Trade Sanctions Reform and Export Enhancement Act
(“TSREEA”), specifically 22 U.S.C. § 7202; and the Iran financial sector sanctions statute,
specifically 22 U.S.C. § 8513a(d)(2). The provisions of these three statutes, Plaintiffs argue,
prohibit the President from regulating or prohibiting humanitarian aid to Iran. Am. Compl. ¶¶ 45-
54. Count II alleges negligence under the Alien Tort Claim Act, also known as the Alien Tort
Statute (“ATS”), based on a breach of Defendants’ duty toward Plaintiffs under the United
Nations Convention on the Rights of the Child (“UNCRC”). Id. ¶¶ 55-63.
Plaintiffs seek an injunction that “prohibit[s] OFAC from imposing sanctions on any
entity, including but not limited to producers and their financial intermediaries, that engage[s] in
the provision of humanitarian medical supplies and drugs to Iran.” Pl. Mem. 16. In the
alternative, they seek “an injunction that would prohibit OFAC from imposing sanctions on any
entity that provides or assists in providing medical treatments for thalassemia and epidermolysis
bullosa.” Id.
STANDARDS
A preliminary injunction is an “extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction must show (1) that he or she
is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence
of preliminary relief; (3) the balance of the equities tips in his or her favor; and (4) an injunction
is in the public interest. Id. at 20. The third and fourth factors merge when the Government is the
party opposing the injunction. Nken v. Holder, 556 U.S. 418, 435 (2009).
1 At oral argument, counsel for Plaintiffs clarified that Plaintiffs were not alleging a violation of
IEEPA but rather the statute shows the importance of humanitarian aid.
In the Ninth Circuit, courts may apply an alternative “serious questions” test, which
allows for a preliminary injunction where a plaintiff shows that “serious questions going to the
merits” were raised and the balance of hardships tips sharply in the plaintiff’s favor, assuming
the other two elements of the Winter test are met. Alliance for the Wild Rockies v. Cottrell, 632
F.3d 1127, 1131-32 (9th Cir. 2011). This formulation applies a sliding scale approach where a
stronger showing of one element may offset a weaker showing in another element. Id. at 1131.
Nevertheless, the party requesting a preliminary injunction must carry its burden of persuasion
by a “clear showing” of the four elements set forth above. Lopez v. Brewer, 680 F.3d 1068, 1072
(9th Cir. 2012). “Likelihood of success on the merits is the most important factor; if a movant
fails to meet this threshold inquiry, [the Court] need not consider the other factors.” California v.
Azar, 911 F.3d 558, 575 (9th Cir. 2018) (citation omitted).
The parties disagree on whether the heightened standard for mandatory injunctions
applies in this case. Def. Opp. 9; Pl. Reply 2. A mandatory injunction is one that “orders a
responsible party to take action.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015)
(internal quotations omitted). It “goes well beyond simply maintaining the status quo pendente
lite [and] is particularly disfavored.” Id. (internal quotations omitted). A plaintiff seeking a
mandatory injunction “must establish that the law and facts clearly favor [their] position.” Id.
(emphasis in original).
The Court finds that Plaintiffs seek a mandatory injunction in this case. In their complaint
and memorandum in support of a preliminary injunction, Plaintiffs allege that Defendants are
currently imposing sanctions on Iran in a manner that has effectively prevented entities that
provide humanitarian aid to Iranian children suffering from thalassemia and EB from providing
the needed medication and supplies. Am. Compl. ¶ 2; Pl. Mem. 1-2. Plaintiffs seek a preliminary
injunction requiring Defendants to change the manner in which the sanctions are imposed.
Therefore, Plaintiffs must show that the law and facts clearly favor their position.
DISCUSSION
Plaintiffs have not shown a likelihood of success on the merits, or serious questions going
to the merits. Plaintiffs lack Article III standing, Plaintiffs have no enforceable rights under the
federal statutes regulating the President’s authority to impose economic sanctions, and Plaintiffs
have no cause of action under the ATS. Accordingly, the Court denies Plaintiffs’ motion for a
preliminary injunction and declines to address the remaining Winter factors.
This decision illustrates that federal courts are courts of limited jurisdiction, and that
some harms, even very serious harms, are beyond their power to redress. Defendants stated in
their briefing and at oral argument that OFAC can and does provide guidance to individuals and
entities seeking to navigate the sanctions and provide humanitarian aid in Iran. Def. Opp. 2.
Today’s decision does not mean that no resolution is possible, only that it beyond the Court’s
power to grant.
I. Article III Standing
Article III of the Constitution limits the subject matter jurisdiction of federal courts to
“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. “[S]tanding is an essential and
unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). A plaintiff must show three elements to establish standing.
First is “an injury in fact,” i.e., “an invasion of a legally protected interest which is (a) concrete
and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S.
at 560 (quotation marks and citations omitted). Second, that injury must be “fairly traceable to
the challenged action of the defendant,” and not “the result of the independent action of some
third party not before the court.” Id. (quotation marks and alternations omitted). Third, “it must
be likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.” Id. at 561 (internal quotations omitted). “The party invoking federal jurisdiction bears
the burden of establishing these elements.” Id. (citations omitted).
Defendants argue that Plaintiffs have not established causation and redressability, and
that the institutional Plaintiffs have further failed to establish an injury in fact. Def. Opp. 11-16.
The Court concludes that the Iranian institutional Plaintiffs have established an injury in fact, but
all Plaintiffs have failed to establish causation and redressability.
A. Injury in Fact for the Institutional Plaintiffs
Defendants argue that the three institutional Plaintiffs—Iran Thalassemia Society, EB
Home, and No Child Should Suffer—lack organizational standing because they have failed to
demonstrate an injury in fact.2 Def. Opp. 14-16. “[A]n organization may establish injury in fact
if it can demonstrate: (1) frustration of its organizational mission; and (2) diversion of its
resources to combat the particular [injurious behavior] in question.” Rodriguez v. City of San
Jose, 930 F.3d 1123, 1134 (9th Cir. 2019). In their reply, Plaintiffs Iran Thalassemia Society and
EB Home allege that their missions of supporting individuals suffering from the respective
diseases has been frustrated due to the sanctions. Pl. Reply 6-7. They allege that members have
suffered and even died due to the unavailability of necessary medication and medical supplies.
Id. They allege that they “had to scramble to find second-best solutions because OFAC sanctions
removed the best treatment.” Id. at 7. Younos Arab, the Secretary of the Thalassemia Society,
states that the Society provides medicine to thalassemia patients and that currently there is no
medicine available. Pl. Mem. Ex. 2A (Arab Decl.) ¶ 7. Plaintiff EB Home provided evidence that
2 Defendants do not dispute that the individual plaintiffs can demonstrate an injury in fact.
it has corresponded with Mölnlycke Health Care, a Swedish entity, in order to attempt to
convince it to continue providing specialized dressings to EB patients in Iran. Pl. Reply 5 (citing
to news article); Pl. Mem. Ex. 4, ECF 2-3 (letter from Mölnlycke Health Care). These allegations
demonstrate that the organizations’ missions have been frustrated and that they have diverted
resources to combat the problem. They are sufficient to establish an injury in fact for the two
Iranian institutional Plaintiffs.
With respect to Plaintiff No Child Should Suffer, however, Plaintiffs’ Amended
Complaint, Motion for Preliminary Injunction, and Reply provide insufficient factual allegations
to establish standing. Beyond a single sentence in the Amended Complaint, almost nothing is
said about this plaintiff. Am. Compl. ¶ 19 (“Plaintiff No Child Should Suffer is an Oregon
domestic nonprofit corporation formed for the purpose of supporting Iranian children suffering
as a result of OFAC’s maximum pressure sanctions.”). At oral argument, Plaintiffs did not even
address No Child Should Suffer. Because Plaintiffs have failed to explain No Child Should
Suffer’s role in this lawsuit beyond making venue proper in Oregon, Am. Compl. ¶ 24, the Court
finds that this plaintiff has failed to establish an injury in fact, or, indeed, any of the elements of
Article III standing.
B. Causation and Redressability
Defendants focus primarily on the causation and redressability elements of standing,
arguing that Plaintiffs have not established those elements because relief hinges on the
independent responses of third parties. Def. Opp. 11-14. “To plausibly allege that the injury was
not the result of the independent action of some third party, the plaintiff must offer facts showing
that the government’s unlawful conduct is at least a substantial factor motivating the third
parties’ actions.” Mendia v. Garcia, 768 F.3d 1009, 1013 (9th Cir. 2014) (citation and quotation
marks omitted). In Novak v. United States, the plaintiffs alleged that the cabotage provisions of
the Jones Act allowed two companies (which were not party to the suit) “to establish a duopoly
whereby they are able to dominate the Hawaii shipping market and charge exorbitant rates.” 795
F.3d 1012, 1019 (9th Cir. 2015). The district court held that the plaintiffs failed to establish
causation, as their own complaint acknowledged that the Hawaii shipping market had features
that made it easy to keep prices high independent of the Jones Act. Id.
Similarly, redressability is not established where relief “depends on the unfettered
choices made by independent actors not before the courts and whose exercise of broad and
legitimate discretion the courts cannot presume either to control or to predict.” ASARCO Inc. v.
Kadish, 490 U.S. 605, 615 (1989). To illustrate, in San Diego County Gun Rights Committee v.
Reno, 98 F.3d 1121, 1124 (9th Cir. 1996), individuals and organizations challenged the
constitutionality of the Violent Crime Control and Law Enforcement Act of 1994. The plaintiffs
alleged that the Act caused a steep increase in the price of certain firearms, burdening their
constitutional rights. Id. at 1130. The Ninth Circuit held that the plaintiffs failed to establish
redressability because third-party gun manufacturers, not the government defendants, raised the
price of firearms. Id.
Here, Plaintiffs allege that the “maximum pressure” sanctions on Iran’s banking sector
have led third parties to cease providing the needed medications and medical supplies to Iran
because it is difficult for them to do business with Iranian banks. Am. Compl. ¶¶ 11, 37, 44; Pl.
Mem. 2-3; Pl. Reply 7-8. Plaintiffs assert that the third parties’ choices are not “unfettered” but
rather the only realistic response to the sanctions. Pl. Reply 7-8. Defendants counter that third
parties’ risk-avoidance policies, including excessive compliance with the sanctions, are a major
factor in the shortage of medical supplies. Def. Opp. 12-13. They further argue that OFAC
continues to permit such entities to provide humanitarian aid. Id. at 18.3 In short, the parties
agree that the sanctions have had a “chilling effect” on third parties’ provision of aid but disagree
on whether ordering a change in the sanctions would redress Plaintiffs’ harms.
This case is a closer call than Novak or San Diego County Gun Rights Committee, but it
ultimately falls within the same category. The Court cannot be confident that third party
businesses would provide the required medical supplies to Iran if the “maximum pressure”
sanctions were lifted. Many factors influence the decision of whether to do business in a
particular country, and as Plaintiff acknowledges, the nation of Iran presents unique and
changing circumstances for reasons other than the “maximum pressure” sanctions, even if the
sanctions contributed to those changes. See Am. Compl. ¶ 36 (discussing the Iranian
government’s shift in global political positioning in the last year, which involves associating
more closely with China and Russia). Ultimately, a redress of Plaintiffs’ harms requires the
cooperation of third parties not before this Court, and the Court cannot predict how they will
respond. Plaintiffs lack standing in this matter.
II. No Private Right of Action for Count I
Plaintiffs’ first claim, as modified at oral argument, alleges that the “maximum pressure”
sanctions violate provisions of two federal statutes governing the President’s power to impose
economic sanctions: the Trade Sanction Reform and Export Enhancement Act (“TSREEA”),
specifically 22 U.S.C. § 7202; and the Iran financial sector sanctions statute, specifically 22
U.S.C. § 8513a(d)(2). Defendants argue that these statutes do not provide a private right of
action. Def. Opp. 17-18. Plaintiffs respond that they do not need a right of action because the
3 Defendants also assert that a delivery of the necessary thalassemia medication to Iran is in
progress, Def. Opp. 14, which Plaintiffs refute, Pl. Reply 4.
Court has inherent authority to issue equitable relief. Pl. Reply 8-9. The Court concludes that
Plaintiffs lack a right of action here.
“Like substantive federal law itself, private rights of action to enforce federal law must be
created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). “The judicial task is to
interpret the statute Congress has passed to determine whether it displays an intent to create not
just a private right but also a private remedy.” Id. In Alexander, the Supreme Court signaled that
courts should hesitate before implying a private right of action. See id. at 287-89. If the text and
structure of the statute do not indicate that Congress intended to create a private right of action,
then the court should not imply one. See id. at 288-89. “Statutes that focus on the person
regulated rather than the individuals protected create ‘no implication of an intent to confer rights
on a particular class of persons.’” Id. at 289 (quoting California v. Sierra Club, 451 U.S. 287,
294 (1981)).
The two statutes on which Plaintiffs rely do not indicate an intent to create a private right
of action for a class of persons encompassing Plaintiffs. Nor does the Court possess inherent
authority to grant the requested relief apart from any statutory basis. The Court addresses each
argument in turn.
A. Statutes
The relevant section of TSREEA provides that, subject to certain exceptions, “the
President may not impose a unilateral agricultural sanction or unilateral medical sanction against
a foreign country or foreign entity” without submitting a report to Congress that Congress then
approves. 22 U.S.C. § 7202. The language and structure of the statute indicate that its purpose is
to protect Congress’s role in the process when the President seeks to impose such unilateral
sanctions. It focuses on the person regulated—the President—rather than a class of persons to be
protected. The interest protected is Congress’s interest as one of the political branches of
government. The statute does not indicate any congressional intent to create a private right of
action, and it does not create or enforce a right to receive humanitarian aid.
The second statute Plaintiffs rely on for their first cause of action authorizes the President
to impose sanctions on Iranian financial institutions. 22 U.S.C. § 8513a(d)(1). The relevant
provision states: “The President may not impose sanctions under paragraph (1) with respect to
any person for conducting or facilitating a transaction for the sale of agricultural commodities,
food, medicine, or medical devices to Iran.” Id. § 8513a(d)(2). The language of the statute
restricts the President’s actions with respect to the person who conducts or facilitates the
transaction. The text and structure of this statute do not indicate that Congress intended to create
a private right of action, as the statute focuses on restricting the scope of the President’s authority
rather than protecting a class of persons. Even if it did create a private right of action, that right
would not apply to individuals seeking to receive aid. The statute does not create a right to
receive aid.
In sum, the two federal sanctions statutes on which Plaintiffs rely for their first cause of
action do not provide them with a right of action.
B. Inherent Power
In their reply brief and at oral argument, Plaintiffs asserted that the Court has inherent
authority to issue the requested injunction under its equitable powers. Pl. Reply 8-9. They cite
two cases in support of this proposition. The first, Armstrong v. Exceptional Child Center, Inc.,
575 U.S. 320 (2015), in fact illustrates why the Court lacks authority to grant the relief sought. In
Armstrong, providers of habilitation services to Medicaid recipients in Idaho sued two state
officials in federal court for an alleged violation of § 30(A) of the Medicaid Act, seeking
injunctive relief. Id. at 323-24. The Supreme Court first rejected the Ninth Circuit’s conclusion
that the Supremacy Clause of the Constitution gave the providers an implied right of action. Id.
at 324-25. It next rejected the providers’ argument that the federal court’s inherent equitable
powers allowed it to issue the requested injunction, stating, “In our view the Medicaid Act
implicitly precludes private enforcement of § 30(A), and respondents cannot, by invoking our
equitable powers, circumvent Congress’s exclusion of private enforcement.” Id. at 328.
Similarly, here the statutes on which Plaintiffs rely give no indication that they were
intended to permit private enforcement. The Court has no evidence that Congress intended to
permit prospective recipients of humanitarian aid abroad to enforce statutes governing the
nation’s diplomatic and economic policies. Plaintiffs cannot escape this conclusion by invoking
the Court’s general equitable powers.
The other case Plaintiffs cite is Harmon v. Brucker, 355 U.S. 579, 580 (1958), which
addresses several former members of the Army who received discharges other than “honorable”
and challenged the Secretary of the Army’s action in so discharging them as beyond his statutory
authority. The Secretary did not dispute that the relevant statutes protected the plaintiffs’
interests in their discharge status; rather, he argued that the congressionally-created Army
Review Board was the exclusive mechanism for the plaintiffs to seek review of their discharge
determinations and that the district court had no jurisdiction to review the findings of the
administrative proceedings. Id. at 581. In a short per curiam opinion, the Supreme Court held
that the district court had authority to (1) interpret the applicable statutes to determine if the
Secretary had exceeded his authority, and (2) grant relief, i.e., order the Army to issue
certificates of honorable discharge. Id. at 582. Plaintiffs rely on a single sentence from this case:
“Generally, judicial relief is available to one who has been injured by an act of a government
official which is in excess of his express or implied powers.” Id. at 582-83. This sentence must
be read in context: the plaintiffs in Harmon challenged the Secretary’s actions as exceeding his
authority under a statute that protected the plaintiffs’ interests in their discharge status. In
contrast, the statutes on which Plaintiffs rely here do not create or protect a right to receive
humanitarian aid. Harmon does not support Plaintiffs’ argument that the Court may issue the
requested injunction under its general equitable powers.
The Court concludes that it lacks authority to issue Plaintiffs’ requested relief under
Count I. Plaintiffs are not likely to succeed on Count I and do not raise serious questions on the
merits on Count I.
III. No Cause of Action Under ATS for Count II
Plaintiffs’ second claim alleges negligence under the Alien Tort Statute (“ATS”).
Defendants argue that the Court lacks jurisdiction to reach Plaintiffs’ ATS claim because the
Government has not waived sovereign immunity. Def. Opp. 24. Plaintiffs reply that section 702
of the APA provides the requisite waiver. Pl. Reply 13. APA § 702 is a broad waiver of
sovereign immunity for suits in equity against a federal agency or federal officer acting in his or
her official capacity, regardless of whether the suit itself is under the APA. Navajo Nation v.
Dep’t of the Interior, 876 F.3d 1144, 1171 (9th Cir. 2017); Trudeau v. Fed. Trade Comm’n, 456
F.3d 178, 185-86 (D.C. Cir. 2006). As Defendant acknowledges, “The D.C. Circuit has indicated
that ATS claims seeking non-monetary relief might proceed against the head of an Executive
agency” under this waiver. Def. Opp. 24 n.9. Plaintiffs seek non-monetary relief against an
agency and an agency head acting in her official capacity. The Court has jurisdiction over this
matter.
Where this claim falls short is on the merits. To be actionable under the ATS, the tort
alleged must be “committed in violation of the law of nations or a Treaty of the United States.”
28 U.S.C. § 1350. Plaintiffs cite to the United Nations Convention on the Rights of the Child
(“UNCRC”) as the basis for the legal duty in their negligence claim. Am. Compl. ¶ 59. Plaintiffs
acknowledge that the U.S. Senate has not ratified the UNCRC and thus it is not a “Treaty of the
United States.” Id. It is a basic principle of international law that “a State only becomes bound
by—that is, becomes a party to—a treaty when it ratifies the treaty.” Avero Belgium Ins. v. Am.
Airlines, Inc., 423 F.3d 73, 80 (2d Cir. 2005) (internal quotations omitted). “A treaty not ratified
by the United States at the time of the alleged events cannot form a basis for an ATS claim.”
Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 738 (9th Cir. 2008).
Plaintiffs attempt to overcome this impediment by arguing that because the vast majority
of UN members have ratified the treaty, it has become the law of nations. Am. Compl. ¶ 60; Pl.
Reply 13. This argument is creative but is foreclosed by precedent. First, as Defendants correctly
observe, the mere fact that a treaty has many signatories does not convert it into the law of
nations. Abagninin, 545 F.3d at 738-39. Second, the Supreme Court has prescribed a narrow
interpretation of the law of nations actionable under the ATS that does not encompass Plaintiffs’
claim. In Sosa v. Alvarez-Machain, the Supreme Court suggested that causes of action under the
ATS are generally confined to three historical torts: “violation of safe conducts, infringement of
the rights of ambassadors, and piracy.” 542 U.S. 692, 724 (2004). Recently, in Nestle USA, Inc.
v. Doe, the Supreme Court went a step further and concluded “that federal courts should not
recognize private rights of action for violations of international law beyond the three historical
torts identified in Sosa.” 141 S. Ct. 1931, 1939 (2021). Plaintiffs do not allege any of the three
historical torts, so their ATS claim cannot proceed as a violation of the law of nations.
At oral argument, Plaintiffs suggested that their negligence claim might qualify as a claim
for violation of safe conduct. Plaintiffs did not plead a violation of safe conduct in their
complaint and did not provide analysis in their briefing or at oral argument. The Court briefly
addresses the issue. A safe conduct is “1. A privilege granted by a belligerent allowing an
enemy, a neutral, or some other person to travel within or through a designated area for a
specified purpose. 2. A document conveying this privilege.” Black’s Law Dictionary (11th ed.
2019). In the understanding of the Framers of the Constitution, “a safe conduct signified a
sovereign obligation on the part of the United States to prevent injury to the person or property
of an alien within its territory and also abroad where it had a military presence.” Thomas H.
Lee, The Safe-Conduct Theory of the Alien Tort Statute, 106 Colum. L. Rev. 830, 873 (2006).
Plaintiffs’ allegations do not state a claim for a violation of safe conduct. First, they do
not allege that the United States is “a belligerent” with respect to Iran—that is, “[a] country
involved in a war or other armed international conflict.” Black’s Law Dictionary. Rather, they
allege that the United States has imposed excessively draconian economic sanctions on Iran. Am.
Compl. ¶¶ 2, 6, 8. Second, Plaintiffs have not alleged that they—or their members in the case of
the institutional Plaintiffs—have been given a formal privilege to travel that has not been
respected. Any privilege that might exist here would be held by a party not before the Court: a
person or entity that wishes to transport humanitarian aid to Iran and finds itself unable to do so
because of the sanctions. With neither the facts nor the relevant party before the Court to support
its recasting as a violation of safe conduct, Plaintiffs’ claim must proceed as pled: a negligence
claim, which the ATS cannot support.
Accordingly, Plaintiffs’ ATS claim seeks relief it is beyond the Court’s power to grant.
The Constitution assigns the making and ratification of treaties to the Executive and the Senate,
respectively. U.S. Const. art. II, § 2, cl. 2 (The President “shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present
concur.”). The Supreme Court has decided that it is for Congress, not the federal courts, to
recognize new causes of action under the ATS for violations of the law of nations. Plaintiffs have
failed to allege a violation of the law of nations or a treaty of the United States. Plaintiffs’ Count
II is not likely to succeed on the merits and does not raise serious questions about success on the
merits.
In sum, Plaintiffs are not likely to succeed on the merits on either of their claims, nor do
they raise serious questions about success on the merits. They have therefore failed to meet the
high standard required to grant a preliminary injunction.
CONCLUSION
The Court DENIES Plaintiff’s Motion for a Preliminary Injunction [2].
IT IS SO ORDERED.
DATED:___O_c_t_o_b_e_r_ 1__4_, _2_0_2_2______.
______________________________
MARCO A. HERNÁNDEZ
United States District Judge