On April 25, 2016, the United States District Court for the
Southern District of Ohio, Western Division, dismissed a challenge
that had been brought by United States Senator Rand Paul and
several other plaintiffs in Crawford, No.
3:15-CV-00250 (S.D. Ohio 4/26/16) that had sought a
declaratory and injunctive relief against enforcement of
US Foreign Account Tax Compliance Act (FATCA),
the Canadian, Czech, Israeli, French, Danish, and Swiss
intergovernmental agreements (IGAs) entered into under FATCA, and
Report of Foreign Bank and Financial Accounts
(FBAR) administered by the US Treasury's Financial Crimes
Enforcement Network (FinCEN). We previously reported on an earlier related
Judge Thomas M. Rose granted a motion to dismiss in favour
of the United States Department of the Treasury, the United
States Internal Revenue Service and FinCEN, (collectively, the
Defendants) on the basis that the plaintiffs lacked standing
to institute the proceedings, with the result that the Court
did not address the merits of the lawsuit.
Specifically Judge Rose stated that standing contains
"First, plaintiffs must have
suffered an injury in fact—an invasion of a legally protected
interest which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical. Second, there must
be a causal connection between the injury and the conduct
complained of—the injury has to 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. Third,
it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision."
Referring to plaintiff Senator Paul, who was a party
to the lawsuit in his capacity as senator, the Court
concluded that Senator Paul had neither been authorized to sue on
behalf of the Senate nor could he base his standing on a more
generalized interest in "vindication of the rule of
law". Instead, Senator Paul had an adequate remedy
to challenge the reporting requirements and penalties that he
opposed in this lawsuit by working to repeal these laws
through the legislative process.
Also included amongst the other plaintiffs was Mark Crawford,
who objected to the law's effect on him because his brokerage
firm did business with a non-US bank that was refusing to
take US citizens as clients. He also lacked standing
because the action of a third party (the foreign bank) was not
part of the lawsuit.
The other plaintiffs were US citizens and former US citizens
currently living in Canada, the Czech Republic, Israel, and/or
Switzerland. However, similar to Crawford, each of these plaintiffs
lacked standing because they failed to establish the concrete,
particular injury each had suffered.
"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. ... Accordingly, all claims are DISMISSED for lack
of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1),
against all Defendants, without prejudice."
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