Khalid Mourtaga, et al. v. Donald J. Trump, in his official capacity as President of the United States, et al.

THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

KHALID MOURTAGA, et al., )

)

Plaintiffs, ) No. 24 C 13038

v. )

) Chief Judge Virginia M. Kendall

DONALD J. TRUMP, in his official )

capacity as President of the United States, )

et al. )

)

Defendants. )

)

MEMORANDUM OPINION AND ORDER

Plaintiffs, a group of U.S. citizens and lawful permanent residents (“LPR”) representing

either themselves or their immediate family members, seek an order from the Court compelling

the President of the United States, the Secretary of State, and the Secretary of Defense to

“coordinate the emergency evacuation of Plaintiffs and others” from the Gaza Strip. (See Dkt. 1 at

30). Because resolving Plaintiffs’ two-count Complaint would require the Court to evaluate the

executive branch’s delicate foreign policy decisions without any judicially discoverable standards,

jurisdiction is lacking. Accordingly, Defendants’ Motion to Dismiss [20] is granted.

BACKGROUND

I. Factual Allegations

Plaintiffs are a collection of nine U.S. citizens and LPRs of Palestinian origin. At the time

their Complaint was filed, three of them were stranded in Gaza.1 (See Dkt. 1 ¶¶ 12–13, 20). The

1 As of June 3, 2025, the date on which this Court heard oral argument on Plaintiffs’ Motion for Preliminary Injunction,

only one of the Plaintiffs remained in Gaza, Salsabeel ElHelou. (Dkt. 34 at 61:9–13 (Hearing Transcript)). The Court

has not received any further updates from the Plaintiffs since June on ElHelou’s current location, or the locations of

the remaining Plaintiffs’ family members who were stranded in Gaza.

remaining six were safely in the United States but seeking relief on behalf of their spouses, parents,

children, and siblings who remained in the war zone. (Id. ¶¶ 14–19). Plaintiffs allege a series of

harms flowing from the ongoing humanitarian crisis in Gaza and the U.S. government’s failure to

evacuate them to safety.

After Hamas killed more than 1,000 people in southern Israel on October 7, 2023, Israeli

Prime Minister Benjamin Netanyahu declared Israel was at war. Retaliatory airstrikes into Gaza

began almost immediately, followed by a full-scale ground invasion. On October 11, 2023, the

U.S. Department of State declared Gaza “unsafe” and warned U.S. citizens not to travel there.

(Dkt. 1 ¶ 34). The next day, President Joe Biden’s National Security Communications Advisor

indicated that, although evacuation efforts for Americans stranded in Israel were ongoing, those in

Gaza could not leave. (Id. ¶ 38). Eventually, the State Department made a “crisis intake form”

available on its website for U.S. citizens, their spouses, unmarried children under the age of 21,

parents, and siblings under the age of 21, along with LPRs, their spouses, and unmarried children

under the age of 21 who were in Gaza. (Id. ¶¶ 39–40). The purpose of the form was to identify

individuals in need of assistance, determine where in Gaza they were located, and confirm their

eligibility for evacuation. (Id. ¶ 41). Each of the Plaintiffs and their eligible family members

completed the intake form. (Id. ¶ 39). After completing the form, all the Plaintiffs could do was

wait for the State Department to contact them about whether and when they could leave. (Id. ¶¶ 42–

46).

In the months that followed, many U.S. citizens were cleared to leave Gaza via the Rafah

border crossing into Egypt. (Id. ¶ 44). Others received evacuation clearance and instructions to

rendezvous with government officials and aid workers at a hospital in Gaza, after which they would

be transported through Israel and into Jordan—where they could eventually board flights to the

United States. (See, e.g., Dkt. 34 at 25:12–26:13). Some of these people left Gaza. Others were

approved for evacuation, but chose to stay because one or more of their immediate family members

were not approved. For example, Plaintiff Salsabeel ElHelou was included on the Rafah crossing

list on March 22, 2024, along with her seven- and twelve-year-old children. (Id. ¶¶ 128, 130). But

her fifteen-year-old son was not, leaving ElHelou with “no choice but to remain in Gaza to avoid

separation.” (Id.) ElHelou’s story is not particularly unique, even among the relatively small class

of Plaintiffs. (See, e.g., Dkt. 34 at 22:4–12, 24:12–23).

Those Americans who have either not been cleared to leave Gaza—or who have decided

to stay behind until their immediate family members are also cleared—have faced extraordinary

hardship. Their homes have been destroyed, forcing them to live in crowded tent cities that have

often been the targets of Israeli airstrikes. (See Dkt. 1 ¶¶ 117, 119). Food shortages have placed

them on the “brink of starvation.” (Id. ¶¶ 85, 99). Strains on the medical system have left them

without needed blood pressure and diabetes medication, or treatment for significant health

conditions. (See id. ¶¶ 105, 110). And the years of fighting has left others dead, like Plaintiff Sahar

Harara’s father. (Id. ¶ 90). In addition to the physical trauma these Plaintiffs have endured, the

mental anguish that accompanies that trauma is virtually unimaginable.

The Plaintiffs allege that in the face of this danger, harm, and death, the United States

government has turned its back on them based on their Palestinian national origin and in dereliction

of a “mandatory, non-discretionary duty to evacuate Palestinians from Gaza.” (Id. ¶¶ 137–42).

II. Procedural History

Plaintiffs filed their two-count Complaint on December 19, 2024. (Dkt. 1). Count One

alleges Defendants have violated the Equal Protection Clause of the Fifth Amendment in that they

have steadfastly evacuated Americans of different nationalities from comparable conflict zones

while denying Palestinian Americans that same relief. (See Dkt. 1 ¶¶ 143–54). According to

Plaintiffs, Defendants have “created a two-tier system sending a clear signal about the

prioritization of its citizens, effectively endorsing discriminatory policies that disproportionately

disadvantage Palestinian Americans.” (Id. ¶ 147). Count Two of Plaintiffs’ Complaint alleges that

the Defendants’ failure to evacuate all Palestinian Americans from Gaza violates the

Administrative Procedures Act. 5 U.S.C. § 706(2)(A); (Dkt. 1. ¶ 155–66). They argue there is a

“specific mandatory directive that requires Defendants to protect and evacuate Plaintiffs and other

United States citizens stranded in Gaza,” that Defendants’ failure to act constitutes a “final agency

action,” and that the government’s conduct is “willful, arbitrary, capricious, an abuse of discretion,

otherwise not in accordance with law, and . . . unlawful.” (Dkt. 1 ¶¶ 158–59, 161). On March 6,

2025, Plaintiffs moved for a preliminary injunction. (Dkt. 16). Both Plaintiffs’ Complaint and

Motion for Preliminary Injunction seek a declaratory judgment from the Court finding the

Defendants have failed to fulfill their nondiscretionary evacuation duties and that those failures

constitute an equal protection violation, along with an injunction requiring Defendants to

“coordinate the emergency evacuation of Plaintiffs and others in Gaza.” (Dkt. 1 at 30; Dkt. 16 at

6–7). The Court heard oral argument on Plaintiffs’ Motion for Preliminary Injunction on June 3,

2025, during which several of the Plaintiffs testified. (See generally Dkt. 34).

Defendants moved to dismiss Plaintiffs’ Complaint in its entirety on March 20, 2025. (Dkt.

20; Dkt. 21). They contend there are at least three reasons compelling dismissal. First, Plaintiffs’

case raises nonjusticiable political questions that have been “constitutionally committed for

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

v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986); (Dkt. 21 at 5–8). Second, that Plaintiffs lack

standing to pursue their requested relief. (Dkt. 21 at 8–10). And third, even if Plaintiff can

overcome these threshold inquiries, they still fail to state any claims upon which relief can be

granted. (Id. at 10–14).

LEGAL STANDARD

The political-question doctrine implicates this Court’s jurisdiction to hear a case at all, and

is appropriately analyzed under Fed. R. Civ. P. 12(b)(1). Judge v. Quinn, 624 F.3d 352, 357–58

(7th Cir. 2010) (noting political-question doctrine claims “affect[] our jurisdiction and cannot be

forfeited”); see also Mobarez v. Kerry, 187 F. Supp. 3d 85, 89 (D.D.C. 2016) (Brown Jackson, J.).

“Federal courts are courts of limited jurisdiction. They possess only that power authorized by

Constitution and statute, . . . which is not to be expanded by judicial decree.” Kokkonen v.

Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). The party invoking jurisdiction always bears

the “burden of showing its existence.” Page v. Democratic Nat’l Comm., 2 F.4th 630, 634 (7th

Cir. 2021). In determining whether jurisdiction exists, the court looks “beyond the jurisdictional

allegations of the complaint and consider[s] any evidence submitted on the issue.” Farnik v.

F.D.I.C., 707 F.3d 717, 721 (7th Cir. 2013).2

The Defendants also move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). To survive a

Rule 12(b)(6) motion, “a plaintiff’s complaint must contain allegations that plausibly suggest that

the plaintiff has a right to relief, raising that possibility above a speculative level.” Kubiak v. City

of Chicago, 810 F.3d 476, 480 (7th Cir. 2016) (citation modified). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Courts must construe the complaint “in a light most favorable to the nonmoving party, accept well-

2 While the government is correct that the June 3, 2025 hearing was on Plaintiffs’ Motion for Preliminary Injunction,

(Dkt. 34 at 66:1–6), to the extent evidence from that hearing bears on the jurisdictional questions at issue case, the

Court will consider that evidence, even if missing from the operative pleading.

pleaded facts as true, and draw all inferences in the non-moving party’s favor.” Bell v. City of

Chicago, 835 F.3d 736, 738 (7th Cir. 2016). “Legal conclusions or bare conclusory allegations,

however, are insufficient to state a claim.” Diedrich v. Ocwen Loan Servicing, LLC, 839 F.3d 583,

589 (7th Cir. 2016) (citing Iqbal, 556 U.S. at 678, 680).

DISCUSSION

Plaintiffs seek an order from this Court directing the executive branch to immediately

facilitate the evacuation of any U.S. citizen, LPR, and eligible family member who remains in

Gaza. The Defendants’ leading argument in opposition to this broad and extraordinary request for

relief is that the Plaintiffs’ claims present nonjusticiable issues under political-question doctrine.

Because the Court agrees, it does not proceed to Defendants’ remaining arguments favoring

dismissal or to the merits of Plaintiffs’ Motion for Preliminary Injunction.

Article III of the Constitution vests this Court with the power to resolve all cases and

controversies arising under the Constitution and laws of the United States. U.S. Const. art. III, § 2.

But there are several limits on this power. For example, the Court can only exercise its Article III

power in situations where Congress has explicitly conferred jurisdiction. Kline v. Burke Constr.

Co., 260 U.S. 226, 234 (1922). Plaintiffs must also have “standing,” or a “personal stake” in a case

before the Court can weigh in on the merits. TransUnion LLC v. Ramirez, 594 U.S. 413, 423

(2021). The Court’s Article III power is also limited in more structural ways including by the

separation of powers between the executive, legislative, and judicial branches. While it is not often

that Article III conflicts with the separation of powers, the Supreme Court has long recognized that

there is a narrow category of claims that the federal judiciary is incapable of resolving based on

their tendency to encroach upon the powers of coequal branches.

The political-question doctrine is “designed to restrain the Judiciary from inappropriate

interference in the business of the other branches of Government.” United States v. Munoz-Flores,

495 U.S. 385, 394 (1990). But its boundaries must be strictly enforced based on the judiciary’s

“responsibility to decide cases properly before it, even those it ‘would gladly avoid.’ ” Zivotofsky

ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 194–95 (2012) (quoting Cohens v. Virginia, 19 U.S.

264, 404 (1821)). “A controversy is nonjusticiable” when the issue presented in a plaintiff’s case

involves “a textually demonstrable constitutional commitment of the issue to a coordinate political

department; or a lack of judicially discoverable and manageable standards for resolving it.” Nixon

v. United States, 506 U.S. 224, 228 (1993) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). If

either one of these two factors are “[p]rominent on the surface of any case,” the Court must not

proceed. Baker, 369 U.S. at 217; see also Mobarez, 187 F. Supp. 3d at 91; Schneider v. Kissinger,

412 F.3d 190, 194 (D.C. Cir. 2005) (noting the Court “need only conclude that one factor is

present, not all”).

Sensitive foreign policy decisions are “committed by the Constitution to the executive and

legislative departments—‘the political’ departments of the government and the propriety of what

may be done in the exercise of this political power is not subject to judicial inquiry or decisions.”

Flynn v. Shultz, 748 F.2d 1186, 1190 (7th Cir. 1984) (quoting Oetjen v. Central Leather Co.,

246 U.S. 297, 302 (1918)). But that is not to say that all cases, claims, or questions that touch on

foreign affairs are incapable of judicial review. “The Supreme Court in Baker clearly required a

‘discriminating inquiry into the precise facts and posture’ of each case and stated that ‘it is error

to suppose that every case or controversy which touches on foreign relations lies beyond judicial

cognizance.’ ” Flynn, 748 F.2d at 1190 (quoting Baker, 369 U.S. at 211). A question’s justiciability

on foreign policy grounds often turns on whether the plaintiff’s claim calls for garden variety

statutory analysis or instead would demand a judicial veto of discretionary policy decisions. As

Plaintiffs rightly observe, claims requiring a determination on whether “taking military action was

wise” stand in stark contrast to those “presenting purely legal issues.” El-Shifa Pharm. Indus. Co.

v. United States, 607 F.3d 836, 856 (D.C. Cir. 2010); (Dkt. 16 at 15).

Plaintiffs argue this case is governed by an unambiguous statutory and policy scheme and,

thus, straightforward legal analysis is all that is required to resolve it. (See Dkt. 16 at 15 (“The

statute that establishes Defendants’ duty to evacuate Plaintiffs is unambiguous.”)). The relevant

scheme is comprised of one statute, one executive order, and one Memorandum of Agreement

between the Departments of State and Defense. (See Dkt. 1 ¶¶ 24–33). Title 22 U.S.C. § 4802(b)

provides that “[t]he Secretary of State shall develop and implement policies and programs to

provide for the safe and efficient evacuation of United States Government personnel, dependents,

and private United States citizens when their lives are endangered.” A 1988 Executive Order

directs the Secretary of State to “carry out Department of State responsibilities in the conduct of

the foreign relations of the United States during national security emergencies, under the direction

of the President . . . including, but not limited to . . . [p]rotection or evacuation of United States

citizens and nationals abroad,” and the Secretary of Defense to “[a]dvise and assist the Secretary

of State . . . as appropriate, in planning for the protection, evacuation, and repatriation of United

States citizens in threatened areas overseas[.]” Exec. Order No. 12656, 53 Fed. Reg. 47491,

47503–04 (Nov. 18, 1988). Finally, the Memorandum of Agreement between State and Defense

states it is the “policy of the United States Government” to evacuate U.S. citizens and nationals

“when necessary and feasible,” and to “[r]educe to a minimum” the number of U.S. nationals in

“probable or actual combat areas.” (Ex. A, Dkt. 21-1 at 2).

The central problem with Plaintiffs’ position is that they cannot point to any language in

§ 4802, E.O. 12,656, or the memorandum of agreement setting forth a clear and unambiguous

command. Instead, executive discretion is plainly baked into each. For example, § 4802 does not

require the Secretary of State to evacuate all U.S. citizens and their family members from areas

where their lives are in danger within a certain amount of time. (See Dkt. 34 at 55:14–18 (“[I]f I

had a law that said . . . the U.S. government must evacuate . . . a U.S. citizen in a war zone, and

they must have their whole family evacuated together, we would have a legal decision to make.”)).

Instead, it only directs the Secretary to “develop and implement policies and programs” for

evacuations, which shall include “assess[ing] the transportation and communications resources in

the area being evacuated” and developing voluntary evacuation request mechanisms. §

4802(b)(2)–(3). And the joint memorandum of agreement is replete with conditional and

discretionary phrases, indicating it is the official policy of the United States government to

evacuate its citizens and other designated nationals only “when necessary and feasible.” As then-

Judge Ketanji Brown Jackson observed in a very similar case involving evacuation efforts for

Americans stranded in Yemen, “it is clear to this Court that none of these provisions solves

Plaintiffs’ political-question problem, because none sets forth the kind of stark, obligatory action—

entirely devoid of discretion.” Mobarez, 187 F.3d at 96 (emphasis in original). As a result,

Plaintiffs’ claims inescapably call for an inquiry into the executive branch’s discretionary foreign

policy decisions.

Even assuming the government had some statutory or constitutional duty to evacuate all

Plaintiffs from Gaza, analyzing its compliance with that duty would “require ascertainment of facts

and standards of decision that are beyond judicial discovery and management.” Flynn, 748 F.2d at

1193.

This case involves numerous facts not in evidence and questions to which neither the Court,

nor the parties know the answer. See id. at 1192 (quoting Holtzman v. Schlesinger, 484 F.2d 1307,

1312 (2d Cir. 1973)) (recognizing dismissal under the political-question doctrine is often

appropriate when a claim “involves diplomatic and military intelligence which is totally absent in

the record before” the court). Many of these unknown facts and unanswerable questions were

drawn to the fore at the June 2025 oral argument held in this case. How does the lack of a U.S.

diplomatic presence in Gaza complicate evacuation procedures, especially compared to other

overseas conflicts? (See Dkt. 34 at 64:22–25). What level of coordination with neighboring nation-

states including Israel, Jordan, and Egypt is required to facilitate extraction efforts and flights back

to the United States? (See id. at 45:18–22). What individual characteristics or other external factors

are the State Department considering when determining that a U.S. citizen is cleared for

evacuation, but that citizen’s immediate family member is not? (See id. at 48:25–49:8). How many

people can be shepherded through so-called “red zones”—where Palestinians are ordinarily

instructed not to travel given extremely high risk of shelling—on a given day? (See id. Dkt. 45:18–

46:1). Endeavoring to answer these questions—and many more like them—from the comfort of

chambers is both undoable and would also invade the political branches’ constitutionally

committed tasks of determining when, how, and under what circumstances evacuations from war

zones should proceed.

Moreover, the evidence that is available demonstrates the U.S. government has developed

a program to coordinate evacuations from Gaza. Plaintiffs confirm in their Complaint that all of

them were able to complete the State Department’s crisis evacuation form. (Dkt. 1 ¶ 39). Khalid

Mourtaga testified that, as early as December 2023, many Palestinian–Americans were being

approved to exit Gaza via the Rafah Border Crossing, (Dkt. 34 at 19:19–25, 24:3–18); that the U.S.

government was routinely in contact with applicants for evacuation about upcoming opportunities

to leave Gaza, (id. at 25:9–19); and that the U.S. government at times had to cancel, reschedule,

or otherwise adjust evacuations based on unknown developments in the region, (id. at 31:2–32:25).

Indeed, when the Court held oral argument in June 2025, every named Plaintiff had either been

evacuated from Gaza or rejected a prior evacuation offer because an immediate family was not

also approved. (See id. at 61:9–25). Again, there is no practical way for this Court to evaluate these

efforts, weigh them against the statutory and constitutional obligations imposed on the executive,

and issue a ruling on the merits of Plaintiffs’ case.

These rationales apply with equal, if not greater, force to Plaintiffs’ equal protection claim.

Untethered to any statutory duty or official policy, that claim would require the Court to second-

guess the discretionary evacuation decisions the U.S. government has made not just in Gaza, but

also in Afghanistan, Lebanon, Sudan, Libya, and elsewhere, without access to the individualized

facts underlying those foreign policy determinations. (See Dkt. 1 at 47–70); cf. Sadi v. Obama,

2015 WL 3605106 (E.D. Mich. June 8, 2015) (finding Yemeni-Americans failed to state an equal

protection claim because they had not shown they were “similarly situated” to Americans

evacuated from other conflict zones, or that the current conditions in Yemen were “similar to the

conditions then-presented in those other countries”).

One final point merits brief discussion—Plaintiffs’ contention, based on the Supreme

Court’s recent decision in Noem v. Abrego Garcia. 145 S. Ct. 1017 (2025), that this Court need

only order the government to “facilitate” the evacuation of all covered persons still in Gaza. (See,

e.g., Dkt. 34 at 52:25–53:9; Dkt. 29). This argument conflates Plaintiffs’ requested remedy with

their right to relief. As the court in Mobarez aptly concluded, it “makes no difference” in this

context whether a plaintiff seeks an order directing the executive to take a specific course of

conduct or to merely facilitate their evacuation. Mobarez, 187 F. Supp. 3d at 93. When considering

the sufficiency of evacuation procedures in foreign conflict zones, the relevant political-question

doctrine hurdle has less to do with the relief sought and everything to do with the second-guessing

of discretionary decisions the executive branch has already made (i.e., not to evacuate certain

persons) that would be necessary to arrive at that relief. See id. It is this distinction between right

and remedy that distinguishes Plaintiffs’ case from Abrego Garcia’s.

In Abrego Garcia, the Court upheld a district court’s order requiring the U.S. government

to “facilitate” Kilmar Armando Abrego Garcia’s return to the United States after he was illegally

removed to El Salvador. Abrego Garcia, 145 S. Ct. at 1018. Plaintiffs are correct that, to the extent

the Abrego Garcia case raised any separation of powers problems at all, it was only insofar as the

district court originally ordered the government to both “facilitate” and “effectuate” Abrego

Garcia’s return. Id. (“The intended scope of the term ‘effectuate’ in the District Court’s order is,

however, unclear, and may exceed the District Court’s authority. The District Court should clarify

its directive, with due regard for the deference owed to the Executive Branch in the conduct of

foreign affairs.”). But Plaintiffs’ request for a similar form of relief that the Supreme Court in

Abrego Garcia approved of only gets them so far because the posture of their case is completely

different. See Baker, 369 U.S. at 217 (emphasizing the “necessity for discriminating inquiry into

the precise facts and posture” of each political-question doctrine case). The underlying claim in

Abrego Garcia involved the straightforward task of determining whether a noncitizen was

unlawfully removed—a “familiar judicial exercise.” Zivotofsky, 566 U.S. at 196. Indeed, the

government had even conceded that the removal was illegal. Abrego Garcia, 147 S. Ct. 1018. All

that remained was the discussion of remedy. Here, by contrast, there have been no concessions on

the legality of the U.S. government’s action or inaction in Gaza. It is that threshold determination

of whether Plaintiffs have a right to relief in the first instance that is bound up with discretionary

foreign policy decisions and, thus, nonjusticiable under the political-question doctrine. See

Zivotofsky, 566 U.S. at 196 (distinguishing between cases that call for the court’s “unmoored

determination of what United States policy” should be toward foreign countries and those that

simply seek enforcement of a “specific statutory right”).

The executive branch, in coordination with foreign governments throughout the Middle

East have made determinations about when evacuations from Gaza are practical, how they should

be executed, and who should benefit on what timelines. Although the Court sympathizes with the

impossible positions in which many of the Plaintiffs have found themselves, it does not have the

power or the tools to review those determinations.

CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss [20] is granted, and

Plaintiffs’ Complaint [1] is dismissed with prejudice. Accordingly, Plaintiffs’ Motion for

Preliminary Injunction [16] is denied as moot.

HY OO

TEE if oda’

dited States District Judge

Date: January 8, 2026

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