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.
IV. CONCLUSION
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
Perspective A:
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”
Perspective B:
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!
The problem is that most U.S. citizens living abroad are not willing to travel back to the “Homeland” and take part in a court case even if it may help them (and instead a senator with questionable standing was named as the main plaintiff of the case). Maybe if we could get a few expats to take part in a case where they genuinely have standing we could get one that would put a dent in FATCA (as well as the likely illegal/unconstitutional renunciation fee, and optimistically maybe even CBT altogether).
We are seemingly in a judicial no-man’s land.
“The illegal we do immediately. The unconstitutional takes a little longer.” (Henry Kissinger)
The unconstitutional doesn’t take long at all now.
The era of the expat american is dead.
This really comes as no surprise to me. This case would never be impartially judged from within the United States. Few cases there are, irrespective of what it concerns, including death penalty cases. U.S. citizens and U.S. persons living abroad either must accept that they will never have any justice from the U.S. itself and that they must silently accept being double taxed (very often), being excluded from “overseas” partnerships, not be able to invest in mutual funds like their fellow residents wherever they may live outside of the U.S., not be able to benefit from tax exemptions and other beneficial fiscal incentives wherever they may live outside of the U.S. and lastly, they must accept that all of their problems are “self inflicted”.
Any person who would accept all of the above actually deserves whatever consequences are thrust upon them. The U.S. is no longer the place we once knew, or imagined we knew. A place where we took for granted justice, a right to be heard and a place where fairness and equality was paramount. That doesn’t exist there anymore. Just renounce and be rid of this noose around your necks. Join a freer world and profit from the opportunities that you will have once you get rid of your unwanted citizenship, from a place that treats its “own” like chattel, gives them no representation and just wants their money or will impose fines and penalties on them. It all starts to sound a bit like North Korea. At least for now, you can still get out. That may change one day and I really wouldn’t be surprised the way it all seems to be going.
@Allen
Renouncing would be great if it in fact was guaranteed to take you to a position of neutrality – but with all the increase in punishment the US dishes out against those who dare leave – I wouldn’t be surprised if they dusted off the old Reed Amendment to punish those who do and have already done so.
Republicans overseas says that Bopp will appeal the sentencing….so we’ll see
Basically the judge was told or has been so inclined from the beginning of his judgeship to follow the agenda and the agenda is to create and maintain the chattel of the USA, no matter their location in the world. Here’s one US judge though with different ideas …
http://humansarefree.com/2016/04/judge-calls-for-us-marshals-and-fbi-to.html
This is not the first time I’ve come across this assertion that the USA is a privately-owned corporation and it does make puzzle pieces start to fit together for me but I’m sure others here will not agree.
Anyway, last night I re-read all of the plaintiff’s testimonies again and I could easily see “standing” all over the place. This verdict should be appealed because not all US judges are following the agenda and maybe the next judge (it would be a different one, right?) will see that these plaintiffs do have standing and the source of the harm and potential harm comes from the FATCA legislation. The harm is NOT self-inflicted and it is absurd to imply that it is. As for the financial institutions, they are merely the conduit for the flow of harm spewed out by the FATCA legislation.
The only response worthy of this debacle is a unified “FUCK YOU!” to any government colluding with the United States and that’s pretty much all of them. Period.
Complying does us more financial damage.
@The_Animal1970
>>Complying does us more financial damage.<<
100% agree, complying is the absolute worse thing we can do, it'll encourage these criminals to abuse us even more to no end.
As tragic as it is, consider the beheading of the Canadian hostage in the Philippines: The ONLY reason why these criminals are continuously taking new hostages is because they have been successfully extracting ransom payments from previous abductions. Only after the payments stop (or the criminal gang is wiped out by military action), will the hostage taking end, it's as simple as that.
If we give in to CBT, the criminals behind it will continue to ask for more and it will never end. Stop being held hostage by these criminals – DO NOT COMPLY!
“Any harm NOT caused by USG but by foreign banks!”
Perhaps because foreign banks are forced to cause harm due to threats of financial sanctions from the United States government? Stupid American judge, typical…
@Duality
Yeah, that idiot judge is passing on the “harm” hot potato from the USG to the foreign bank to the final victim. What major area of his brain is missing in that he cannot connect the “harm” back to its original source? Unreal, but not unexpected.
We must be prepared for the same kind of twisted logic here in Canada from our court system, we all know who those judges will bow down to, but we must not let them get away with it. The fight will not end with a twisted judgement that agrees with discrimination, we have the Charter on our side, and if a group of judge refuse to do their duty and enforce the Charter, then it’s up to the citizens to enforce it!
Jack Townsend will take great pleasure in this.
Yup, it’s all the fault of those mean banks who think FATCA is just the greatest thing since sliced bread:
https://www.finextra.com/blogposting/12528/fatca-remediation-are-you-buried-in-an-avalanche
>>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!<<
I agree about separating out the anger, the issue here is not what the USG is doing, it's what the Canadian government is doing.
We have to focus exclusively on the parts of the problem that are within the control of the Canadian government. For example, CBT and FATCA are US laws, therefore Canada has no jurisdiction over that insane mess, that's a problem for the USG to sort out, and an item of concern for the cowardly UN to condemn as a human rights issue.
In many ways the US judge ruled correctly, i.e., the foreign banks can either pay up the 30% withholding tax, or get the hell out of the US. The "harm" being done to the banks are being passed on by the foreign banks to the sovereign nation the bank resides in. If a foreign government chooses to enable the harm and pass it down to their own citizens, then that's not the USG's problem. It's hard to argue against that logic, as twisted as it may seem.
On the other hand, what the Canadian government definitely does have full jurisdiction over, is the IGA and other enabling legislation that enables the banks and the CRA to discriminate and abuse victims of FATCA.
Perhaps we should not even mention FATCA because that's a door opening into obfuscating the actual issues that the Canadian government has control over.
From the Canadian perspective, the discrimination comes through state sanctioned identification of certain Canadian citizens based on their previous nationality and/or place of birth, thus labeling them as being "US Persons" and subjecting them to discriminatory treatment based on the identification scheme.
In addition to previous nationality and place of birth, there are other criteria used to identify and label certain citizens of Canada as being "US Persons". Once the "US Person" label is branded onto a Canadian Citizen, he/she may now be discriminated against based on the label of nationality, real or not.
An example of this would be to arbitrarily label a dark skinned woman, as being a "Nigerian Person", and therefore subjecting that person to treatment that is different from every other Canadian citizen. If that is not obvious state sanction discrimination, then I don't know what discrimination is.
We must focus on the fact that within the jurisdiction of Canada, it is not the USG that is labeling Canadian citizens as being "US Persons", it is in fact the Canadian government that is doing all of the identification and labeling! Arguing over why the Canadian government is doing the discriminatory labeling is nothing but a distraction from the root cause of the harm.
Standing is always a really hard test to meet. It’s not just Americans abroad who have trouble with it; however, it is still early days with FATCA and,for better or worse, more people in the future will be damaged by FATCA without having had any way of avoiding the damage. In an earlier case, wasn’t there a person in Switzerland who came very close to having standing, but lacked it because he had had to renounce his citizenship in the meantime and this meant that it was no longer a current problem for him (which it has to be for standing)?
Many expats had sincere hopes the lawsuit would bring relief. With those hopes now dashed, American expats renouncing US citizenship will certainly be picking up momentum. Thanks Judge Rose, you schmuck!
A Canadian is a Canadian is a Canadian…but a Rose is an IRS agent is a bankster.
@Dash1729
But the Canadian Civil Service will say they respect the “sovereign” right of the United States as a “sovereign” country to appoint judges.
‘The “harm” being done to the banks are being passed on by the foreign banks to the sovereign nation the bank resides in. If a foreign government chooses to enable the harm and pass it down to their own citizens, then that’s not the USG’s problem.’
Fine. But as pointed out in a foreign lawsuit about a foreign Charter, a foreign government is enabling the harm and passing it down to its own citizens. The foreigners, oops US persons in that foreign country, oops citizens of that foreign country who are treated as US persons in that foreign country instead of citizens of that foreign country, need to incorporate this rosy lesson into their Charter lawsuit.
So it looks like we all agree on this:
>>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!<<
Continuing on what Norman Diamond just wrote, it occurs to me that the dismissal of this lawsuit could actually strengthen the Canadian anti-FATCA case. It weakens any potential Canadian government argument that FATCA consequences are purely a matter of US jurisdiction. Before, regarding FATCA, Canadian ministers shrugged and said, “Congress has spoken.” Yeah, right. In this case, “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.
I’d love the Canadian government argue that the US made them do it – while at the same time argue that they’re doing it in the spirit of tax-cooperation!
@Norman and Barbara
Very good points. The Canadian gov no longer can pass the buck down south, not when the US courts are saying that it’s the foreign governments fault, i.e., Canada is doing all the harm, at least in terms of what the Canadian government has jurisdiction over.
You can see that Morneau’s “pass the blame” arguments hold absolutely no weight, and if that’s the governments legal arguments “the US is doing all the harm, not us”, it should be child’s play to pick it apart, especially when the US courts say “No, it’s not us, it’s the [insert foreign gov here] that’s doing all the harm”.
We know that many completely innocent lives have been turned upside down because of this mess, and it’s a mess 100% the fault of the Canadian government for cooperating with the USG and their amoral CBT and FATCA identification scheme.
Big issue is that we must of course show harm, which is where all of those required witnesses come into play. We also know that the FATCA spin doctors will delay the worse of the harm until their trap is fully spring loaded. But there is harm already caused by fear induced stress over personal financial matters and the harm caused through the “US Persons” hunt and labeling process, plus some data has already been transferred. I bet that data transfer is full of holes that can be used against the governments defense, if only we could get a hold of a leaked copy.
@Bubblebustin
In fact, Morneau’s reply letter attempts to make that contradictory argument.
Nina Olsen said “Why are we TORMENTING our expats so?” Maybe they should have summoned her as a witness?