Responding to the law suit filed in the District Court of District of Columbia requesting to obtain a declaratory judgment to force the United States to oppose Sri Lanka’s pending IMF loan application, the lawyers representing the defendants, Timothy Geithner, Secretary of the Treasury, and Meg Lundsager, Executive Director of the IMF, filed a motion in the Court to dismiss the case on the grounds that the plaintiff has no standing, the court lacks jurisdiction, there is no private right of action to enforce "policy goals," and under federal law both defendants are immune from legal prosecution, Bruce Fein, counsel for the plaintiff said.
On March 30, 2009, Tamils Against Genocide (TAG) filed a lawsuit against the Secretary of Treasury and United States Executive Director of the International Monetary Fund (IMF) seeking a declaratory judgment that United States law prohibited voting in favor of a pending $1.9 billion IMF loan request by the Government of Sri Lanka (GOSL) because of its pattern of gross violations of internationally recognized human rights.
Group representatives said that Counsel Bruce Fein is reviewing the legal brief considering the developments on this matter in the light of developments in the last several weeks.
In the interim, the U.S. Secretary of State and the British Foreign Minister issued statements to the effect that the time was no right for the loan because of the human rights misbehavior of the GOSL.
A pending amendment in the United States Senate filed by Senators Patrick Leahy and Sherrod Brown would prohibit the IMF balance of payments loan absent a certification by the Secretary of Treasury that the assistance is "necessary to prevent significant and imminent hardship among the general population."
Also, while the complaint detailed the human rights violations until March 30th, and recorded the information as part of filed documents, Rights organizations and the international community have become more aware of the rights abuses by Sri Lanka during the last six weeks including possible war crimes exposed from images provided by the private and military satellites.
Mr. Fein said that he is considering a response, but leaning towards dismissing the IMF lawsuit voluntarily and let the political processes unfold. "The resources needed to provide an effective rebuttal to the Government’s position is very high," Fein added.
The Defendants’ brief said that plaintiff’s argument, that voting against the loan application would result in diminishing of rights violations of relatives in Sri Lanka, is only a "speculation about a series of remote contingencies involving third parties not before the Court," and does "not satisfy the redressability, causation, and injury prongs of the standing inquiry," and therefore, the "complaint must be dismissed for lack of standing."
Secondly, the brief said, "this Court lacks jurisdiction because the plaintiff’s complaint presents a political question. Plaintiff seeks to have this court make decisions about propriety of foreign aid expenditures and the best way to prevent alleged human rights abuses. But such foreign policy decisions are inherently political, and the Constitution has committed such decisions solely to political branches."
Thirdly, responding to the plaintiff’s contention that the court should create a private right of action because the "Congress did not expressly preclude judicial review," the Defendants said,"the plaintiff has the governing standard precisely backwards. Because Congress did not create a private right of action expressly, and because, indeed, it creates alternative mechanisms for Congress itself to monitor the Executive Branch’s actions, plaintiff simply has no private action."
Lastly, the Defendants’ legal memorandum pointed out 22 USC 286h, and argued that the immunity from legal process of IMF officials are incorporated into United States domestic law, and therefore, "both defendants are immune from legal processes for acts committed in their official capacities as Governor and Executive Director of the IMF."
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