cross-posted from ADCSovereignty blog
Chronology of events …
On July 14, 2015, a post at the Isaac Brock Society, detailed the pleadings in the @FATCALawsuit. In late summer, @FATCALawsuit brought a motion for a preliminary injunction to enjoin the effects of FATCA on Americans abroad. The Obama administration defended the “injunction application” (in part) on the basis that any harm to Americans abroad was the result of “self-inflicted wounds“. The application was brought before Judge Thomas Rose of the United States District Court for the Southern District of Ohio, Western Division, at Dayton. On September 30, 2015 Judge Rose denied the plaintiffs application for an injunction. On April 25, 2016, Judge Thomas Rose terminated the @FATCALawsuit brought by Jim Bopp and organized by Republicans Overseas.
The complete decision may be read here:
An early response is here:
This post should be read with my previous post of October 1, 2014 about Judge Rose’s denial of the preliminary injunction. That post was the subject of commentary at the Isaac Brock Society.
The complete decision is a relatively short 27 pages. The “guts of the decision” is at the the end and includes:
4. Motion to Amend
Plaintiffs bring their Motion for Leave to Amend pursuant to Fed. R. Civ. P. 15(a)(2). “Rule 15(a)(2) provides that leave to amend is to be freely given when justice so requires.” Riverview Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 520 (6th Cir. 2010).
“However, a motion for leave to amend may be denied where there is ‘undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the Case: 3:15-cv-00250-TMR Doc #: 42 Filed: 04/26/16 Page: 25 of 27 PAGEID #: 652 amendment, futility of amendment, etc.’” Id. (quoting Foman v. Davis, 371 U.S. 178, 182 (1962) (emphasis in original). A proposed amendment is futile if the amendment could not withstand a motion to dismiss. Riverview Health, 601 F.3d at 520 (citing Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000)) (quotations omitted); Thiokel Corp. v. Dep’t of Treasury, Revenue Div., 987 F.2d 376, 383 (6th Cir. 1993).
Here, analyzing each Plaintiff individually, the Court finds that none of the Plaintiffs has standing to sue Defendants. No individual Plaintiff has suffered an invasion of a legally protected interest, which is concrete and particularized, and actual or imminent, not conjectural or hypothetical. Moreover, no alleged injury is fairly traceable to the actions of the Defendants, but rather, the actions of an independent third party. Finally, there are no allegations that it is likely that the alleged injury will be redressed by a favorable decision. See Lujan, 504 U.S. at 560–61. In reaching these holdings, the Court analyzed the proposed Amended Verified Complaint, (doc. 32-1), which could not withstand Defendants’ Motion to Dismiss, (doc. 26); therefore, the proposed amendments are futile.
Accordingly, all claims are DISMISSED for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1), against all Defendants, without prejudice.
III. MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(6)
In addition to challenging Plaintiffs’ standing pursuant to Fed. R. Civ. P. 12(b)(1), Defendants’ Motion to Dismiss, (id.), challenged Plaintiffs’ proposed Amended Verified Complaint, (doc. 32-1), under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. 26.) Because the Court has dismissed all claims under Rule 12(b)(1), the Court does not reach Defendants’ Rule 12(b)(6) arguments.
Case: 3:15-cv-00250-TMR Doc #: 42 Filed: 04/26/16 Page: 26 of 27 PAGEID #: 653
For the reasons set forth above, the Court DENIES Plaintiffs’ Motion for Leave to File an Amended Verified Complaint, (doc. 32), and the Court GRANTS Defendants’ Motion to Dismiss, (doc. 26), Plaintiffs’ Complaint. The captioned case is hereby TERMINATED upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.7
DONE and ORDERED in Dayton, Ohio, this Monday, April 25, 2016.
s/Thomas M. Rose
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
Leaving aside the “legal gobbledygook”, Judge Rose is saying two things:
1. The plaintiffs simply do not have any “standing” to sue. This means that because of who the plaintiffs are and/or the way they have (not) been affected by the laws in question, they do NOT have the right to ask the court for relief.
2. In the event that one or more of the plaintiffs DID have standing, it would make no difference anyway. Why not? Well, because the United States Government has caused NO harm to the plaintiffs. Any harm suffered by the plaintiffs was caused by the actions taken by Foreign Financial Institutions. (Don’t forget the claim of Obama lawyers that if any harm has been suffered (which they deny), that harm is the result of “self-inflicted wounds“.)
My thoughts (important to separate the “anger” from the “thoughts”)
Judge Rose’s decision is clearly written from one or more of two perspectives:
Do Homelanders justify #CookvTait on the basis that they don't know #Americansabroad pay tax where they live? https://t.co/KLupPpZmiB
— Citizenship Lawyer (@ExpatriationLaw) April 27, 2016
1. Either there is no world outside the United States; or
2. If there is a world outside the United States then “U.S. Persons” don’t live in that world; or
3. If there is a world outside the United States and there are “U.S. Persons” living in that world, then they do NOT engage in that world or live in that world. In other words: “When in Rome Live As A Homelander”
The only people affected by these are “Homelanders Abroad”. The decision reflects a complete denial of the reality that many (probably the vast majority) of “Americans abroad” are citizens and residents of other nations.
Although this is disappointing for Americans abroad, homelanders really need to take note. This decision is an absolute and complete endorsement of the view that (1) exactly the same laws (2) interpreted in exactly the same way (3) should be applied to all Americans regardless of where they live.
How this decision can be used …
Once again, we have confirmation that these issues are difficult to explain. My impression is that the pleadings, framed the facts in a manner that described the issues from the perspective of “Homelanders Abroad” and NOT from the perspective of “dual citizens” who are residents of the country of second citizenship.
Therefore, the “FATCA Opposition” must frame the issues in terms of how this affects:
1. Those who are citizens and residents of other nations (and just happen to be “deemed U.S. Persons”); and
2. By enforcing CBT, FATCA is a direct attack on the treasuries and sovereignty of other nations.
The lessons from this decision must be incorporated into the FATCA Canada lawsuit.
The lessons from this decision must be incorporated into the FATCA Canada lawsuit. The Alliance For The Defence of Canadian Sovereignty lawsuit is about (1) how FATCA affects Canadian citizens resident in Canada and (2) why the Government of Canada cannot accept that one group of Canadians is really the property of the U.S. Government!
Barbara: “the US Federal Court has spoken” and said: if harm is being caused to US persons abroad, the problem resides abroad. Judge Rose did not say no harm had been caused, but that the harm is the responsibility of ‘foreign’ institutions and governments. Thus, in this case, it is entirely a Canadian matter, and the Canadian courts and government can’t pass the buck back across the border.”
Right on! Stephen, please take this excellent argument to Joseph Arvay! The U.S. court has provided him with some serious ammunition.
Donna-Lane Nelson, one of the plaintiffs in the FATCA lawsuit, has a problem with the Forbes article in which she is mentioned …
May seem unrelated, but there are, to me, parallels to the reaction by a brave woman to the *apology* for criminal sexual assault to her (link in this Canadian CBC story of her employer’s, CBC, now resultant apology to her though they trivialized and excused it and let it happen, looking the other way in the first place):
At least the CBC apologized, which is a lot more than we can ever expect from our tax overlords (if that’s what you mean, Calgary411).
It’s the CBC the former plaintiff should be suing. Our tax dollars hard at work.
The CBC was the enabler, turning a blind eye. How many Canadian government blind eyes are turned to our situations as our Canadian Charter Rights are ignored, referring to us as *Americans who happen to abide in Canada* and *the law is the law* – especially when it is US law that threatens Canada’s financial institutions’ well-being? There has been speculation that the former plaintiff may sue the enabler and perhaps, therefore, the CBC apology. Just pointing out or thinking outloud about what, to me, appear to be similarities — and I am sure to other than ours as well.