Federal Judge: Plaintiffs suing American Studies Association over BDS “may have meritorious claims,” but must file in state court
Plaintiffs have “not decided yet whether they will appeal judge’s decision or will go directly to state court. What is not on the table is walking away from the case.”
In December 2013, the American Studies Association (ASA) became the first, and so far the only, major American academic association to adopt the academic boycott of Israel, part of the Boycott, Divestment and Sanctions (BDS).
As I have documented, the BDS movement is a continuation of the anti-Jewish boycotts of the 1920s and 1930s in the then British Mandate for Palestine, the Arab League boycott of Jewish businesses (even prior to Israel’s independence) and later of Israel, and the gross antisemitic activism at the 2001 Tehran and Durban conferences which launched boycotts in the current form.
The claim that BDS was a response to a 2005 call from Palestinian civil society is a demonstrable lie. That was the cover story to repackage an anti-Jewish boycott in the language of ‘social justice’, as documented in my lecture, The REAL history of the BDS movement:
The fallout from the December 2013 ASA resolution was swift. The ASA action, which is considered a violation of academic freedom by the American Association of University Professors, was condemned by over 250 university presidents and numerous university associations. ASA tried to exclude Israelis from its annual meeting in California, but the threat of legal action caused ASA to back down.
In April 2016, ASA and its leaders were sued in federal court in D.C. by other ASA members, claiming irregularities in the way ASA adopted the boycott.
We have covered the various events in the litigation in prior posts, which you can read for full legal background:
- American Studies Association and its leaders sued over Israel boycott
- Judge: Lawsuit against American Studies Assoc over BDS can move forward
- Lawsuit: BDS movement engineered takeover of American Studies Association
- Court allows expanded lawsuit against American Studies Association and lead faculty activists over Israel Boycott
- In blow to anti-Israel profs, lawsuit against American Studies Association over BDS to stay in federal court
One issue that has troubled the Judge, as expressed in prior opinions, was whether there was federal jurisdiction for the case to be in federal court under what is called “diversity jurisdiction.”
I explained the issue in a prior post regarding the Judge’s decision to allow the case to move forward:
In that [prior] ruling, however, the Court raised an issue the parties had not raised, whether the federal court had “subject matter” jurisdiction. What that means is that federal courts are courts of limited jurisdiction. You need to show either that there is a federal question involved in the case, or that there is diversity jurisdiction (none of the plaintiffs are citizens of the same state as any of the defendants) and there is at least $75,000 in controversy. Absent one of those types of jurisdiction, the court could not hear the case and it would have to be litigated in state or D.C. courts.
The Court stayed the litigation while it decided the issue of subject matter jurisdiction.
After several months, the Court finally ruled, and held that there was subject matter jurisdiction, so the case can be reactivated and continued in federal court…
Federal subject matter jurisdiction is something a court is required to consider throughout the case, even during trial. It’s clearly an issue that continued to trouble the court, as is issued an Opinion on February 4, 2019 (pdf.)(full embed at bottom of this post), dismissing the case for lack of subject matter jurisdiction, even though the court found that plaintiffs might have meritorious claims. Plaintiffs will have to file those claims, the Judge ruled, in a court other than federal court.
Here are some key passages from the Opinion:
Currently before the Court are Defendants’ motions to dismiss the action, along with other miscellaneous motions. Having reviewed the briefing, the Court concludes that Plaintiffs may have meritorious claims arising from their individual injuries as ASA members. However, the Court also concludes that Plaintiffs cannot seek relief for ASA’s injuries, because ASA is not a plaintiff and Plaintiffs do not and cannot assert derivative claims on its behalf. Without that relief, Plaintiffs cannot meet the amount-in-controversy necessary to pursue their action in federal court. Accordingly, and for the reasons stated below, the Court will grant Defendants’ motion to dismiss without prejudice.
* * *
As noted, Plaintiffs contend that this Court has subject matter jurisdiction under 28 U.S.C. § 1332(a). SAC ¶ 11. That statute provides that “district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between,” among others, “citizens of different states.” 28 U.S.C. § 1332(a). Defendants argue that the Court’s previous holdings have made it legally impossible for Plaintiffs’ claims to exceed the $75,000 amount-in-controversy required to maintain this action under § 1332(a).6 More specifically, Defendants argue that Plaintiffs cannot seek remedies arising from injuries to ASA, and that in the absence of those remedies the damages, declaratory relief, and injunctive relief that Plaintiffs seek cannot be valued at greater than $75,000. See Original Defs.’ Mot. at 1. Defendants thus move to dismiss the action in its entirety for lack of jurisdiction. See id.
* * *
As Plaintiffs note, the parties and the Court have danced around the key issue—Plaintiffs’ ability to satisfy the amount-in-controversy required by § 1332(a)—for multiple rounds of briefing and opinions. See Bronner III, 317 F. Supp. 3d at 289; Bronner I, 249 F. Supp. 3d at 37–38. The waltz has now reached its crescendo, and Plaintiffs have been found wanting. As explained below, having evaluated the parties’ arguments, the Court concludes that Plaintiffs lack standing to seek damages arising from ASA’s alleged injuries. Although Plaintiffs may seek damages arising from injuries they suffered directly, those damages do not approach $75,000. And Plaintiffs have failed to demonstrate that the value of the injunctive and declaratory relief they seek, combined with those damages, exceeds $75,000. Thus, because it appears to a legal certainty that Plaintiffs cannot meet 28 U.S.C. § 1332(a)’s requirements if they prevail, the Court must dismiss this action without prejudice for lack of subject matter jurisdiction.
* * *
Plaintiffs lack standing to seek damages on behalf of ASA and it is clear, to a legal certainty, that their remaining claims do not raise an amount-in-controversy exceeding $75,000. Accordingly, the Court concludes that it lacks subject matter jurisdiction under 28 U.S.C. § 1332(a).14 See St. Paul Mercury Indem. Co., 303 U.S. at 289. Plaintiffs have raised allegations and presented evidence indicating that they may have meritorious claims, but they must assert those claims before the proper tribunal.
As can be seen from the plain wording of the opinion, the dismissal was not based on the merits. To the contrary, the court noted that the plaintiffs may have meritorious claims, based on what he has seen. Rather, the dismissal was solely jurisdictional based on the “amount in controversy” under federal decisions defining that concept.
Also, the decision had nothing to do with whether ASA and the individuals had a constitutional right to boycott Israel — that simply was not an issue, the court previously having permitted the lawsuit to move forward pending resolution of the “amount in controversy” issue. The Court previously ruled:
This case does not present a First Amendment issue because the Court’s passive enforcement of the obligations expressly assumed by the parties does not constitute state action. Plaintiffs take issue with actions by Defendants that were allegedly inconsistent with the ASA’s organizational purpose, constitution, and bylaws. See Compl. ¶ 1 (“An academic boycott of a foreign country is simply outside of the ASA’s authority to act.”). Thus, Plaintiffs ask the Court to enforce the contract that the Plaintiffs and Defendants freely entered into when they voluntarily subjected themselves to the constitution and bylaws of the ASA. See Meshel, 869 A.2d at 361. Defendants, Plaintiffs argue, voluntarily assumed certain obligations toward the ASA when they took on leadership positions within the organization, and that they violated those obligations through their roles in passage of the boycott resolution. See Compl. ¶¶ 79–80, 83–84, 88–89, 92–93.
Plaintiffs’ claims all arise under generally-applicable laws. See Armenian Genocide Museum & Mem’l, Inc. v. Cafesjian Family Found., Inc., 607 F. Supp. 2d 185, 190–91 (D.D.C. 2009) (setting forth the elements of breach of fiduciary duty); Adamski v. McHugh, No. 14-cv-0094 (KBJ), 2015 WL 4624007, at *6 (D.D.C. July 31, 2015) (describing the law governing ultra vires claims); Daley, 26 A.3d at 730 (describing the doctrine of waste); Compton v. Alpha Kappa Alpha Sorority, Inc., 64 F. Supp. 3d 1, 16 (D.D.C. 2014) (setting forth the elements of breach of contract), aff’d, 639 F. App’x 3 (D.C. Cir. 2016); D.C. Code § 29-405.24 (outlining the procedures all nonprofit organizations must follow). They also only seek to enforce rights created at the initiation of private parties; Individual Defendants voluntarily assumed roles where their right to expression would be limited by bylaws, the common law, and statute. Because Defendants voluntarily assented to these laws and the ASA’s constitution and bylaws, the Court’s interference with speech is passive and incidental to enforcement of a contract. Thus, enforcement of Plaintiffs’ rights derived from that contract would not constitute state action as contemplated under Sullivan and Shelley, meaning there would be no First Amendment issue with a judgment for Plaintiffs
The reality of the Judge’s Opinion has not stopped anti-Israel activists from claiming this was a decision on the merits and an judicial endorsement of the right to boycott.
“I’m thrilled that this baseless case has been dismissed. It served no purpose other than persecuting those who dare to criticize Israeli policy and seek to end the occupation through peaceful means,” said Dr. Salaita. “Our victory further illustrates that it’s important to stand firm against attempts to silence those devoted to the cause of justice.”
The Center for Constitutional Rights, which acts as de facto counsel to the BDS movement, also claimed a substantive victory:
“These desperate lawsuits brought to silence advocates of Palestinian rights are not only losers—they’re helping to grow the movement by making even clearer who’s on the wrong side of history, who is the aggressor, who is unreasonable, and who wants to silence debate,” said Center for Constitutional Rights Deputy Legal Director Maria LaHood. “Freedom, justice and equality have always been on the right side of history.”
The Electronic Intifada reported on additional reactions portraying the win as substantive:
“The court basically said, in no uncertain words, that the plaintiffs suing ASA lied when they claimed to have ‘suffered significant economic and reputational damage.’” Radhika Sainath, senior attorney with the civil rights group Palestine Legal, told The Electronic Intifada. “But, as the court explained, ‘nowhere’ in the lawsuit could could the plaintiffs explain what that damage was. It didn’t pass the smell test.” ….
“The Zionists can’t accept the extent of revulsion over Israel’s crimes so they imagine that any group that stands up for justice has been tricked and manipulated into doing so,” Mark Kleiman, the attorney for J. Kehualani Kaunui and Jasbir Puar, told The Electronic Intifada.
“This blindness partially stems from their own reliance on tricks, bribes and subterfuge to slow down what is rapidly becoming a mass movement,” Kleiman added.
“In this lawsuit they simply made up accusations and then pretended they had been harmed by the things they imagined people had done.”
The case is not over, however, though it may be over in federal court.
According to Jennie Gross, one of the lawyers for the plaintiffs, the plaintiffs “certainly going to continue the litigation” but have “not decided yet whether they will appeal judge’s decision or will go directly to state court. What is not on the table is walking away from the case.”
In a lengthy press release, the Plaintiffs’ lawyers vowed to continue the fight:
When the American Studies Association adopted an academic boycott of Israel, several members of the ASA filed a lawsuit against that form of economic warfare against Israel, which discriminates against Israeli academics and violates fundamental principles of academic freedom. We represent those brave members.
Now, three years after the filing of this lawsuit, and upon review of the claims, the federal district court in the District of Columbia found only one reason to put off our clients’ claims – not because there was no substantive basis for the lawsuit, not because the current leadership of the ASA was justified for dragging its association into a bigoted effort to sabotage Israeli academics and institutions, but solely because it held that the amount in controversy requirement for federal court, $75,000, was not yet met.
The court recognized the value of our substantive claims, noting the case can be filed in state court: “Plaintiffs have raised allegations and presented evidence indicating that they may have meritorious claims, but they must assert those claims before the proper tribunal.” Order at 19.
We fully intend to go forward with this lawsuit, whether in federal court, should we choose to appeal the amount in controversy dismissal, or in state court, where there is no amount in controversy requirement.
In fact, since the initial filing, far more grievous conduct by the defendants has been uncovered, including a secret plot to overtake the authority of the ASA for the sole purpose of pursuing this hateful academic boycott, and to divert ASA funds to support their nefarious behavior. This plot was uncovered by our review of the defendants’ own documents, which we obtained in discovery.
Many of the defendants’ uncovered secret documents are quoted in a subsequent amended complaint which alleges, as the court describes: “that Defendants coopted an apolitical educational organization and, against its members’ wishes, turned that organization into a mouthpiece of the Israel boycott movement.” Order at 1.
The amended complaint reveals the defendants’ secret scheme to pack the national council with directors whose primary intention was to pass the academic boycott of Israel. It also describes how defendants manipulated the vote on the boycott, by freezing the rolls of the ASA membership to minimize the number of opponents able to vote, and how the defendants silenced dissenting voices – to the point where it refused to share letters opposing the boycott, including a letter from Association of American University Professors, among others.
Later, evidence of the financial damage to the ASA became apparent. Since the boycott was adopted, $294,000 has been withdrawn from the ASA’s trust fund. This information was gleaned from only two years’ worth of materials produced by defendants. Previously, there had been no withdrawals from the capital of the ASA’s trust fund. Defendants’ own documents show that these withdrawals were made to pay expenses related to the boycott. The ASA’s most recent tax return reflects an association deep in the red.
Our clients are four esteemed professors of American Studies. They include lifetime honorary members of the ASA, winners of the ASA’s Turpie Award, and a former editor of the ASA’s Encyclopedia of American Studies. They brought this case because they believe that the ASA’s academic boycott of Israel violates cherished principles of academic freedom. They opposed the academic boycott on the same grounds as the American Association of University Professors, the presidents of dozens of universities, numerous former presidents of the ASA, and many, many others. They also believe that the individual defendants violated democratic principles and the ASA Constitution and Bylaws in the adoption of the academic boycott.
We will present these claims and look forward to a decision on the merits.
Jerome M. Marcus
Marcus & Auerbach, LLP
The Deborah Project, Inc.
Barnes & Thornburg, LLP
The Louis D. Brandeis Center for Human Rights Under Law
We will continue to follow this case if and when it moves either to appeal or a different court.
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