Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify

the Clerk of any formal errors in order that corrections may be made

before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 22, 2003 Decided June 20, 2003

No. 02-5307

HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT,

APPELLANT

v.

JOHN D. ASHCROFT, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 02cv00442)

John D. Cline argued the cause for appellant. With him on

the briefs was John W. Boyd.

Douglas Letter, Terrorism Litigation Counsel, U.S. Department of Justice, argued the cause for appellees. With him on

the brief were Roscoe C. Howard, Jr., U.S. Attorney, H.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Thomas Byron III, Attorney, U.S. Department of Justice,

and David D. Aufhauser, General Counsel, U.S. Department

of Treasury.

Before: GINSBURG, Chief Judge, and SENTELLE and

HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: In December 2001, the Office of

Foreign Asset Control (‘‘OFAC’’) designated Holy Land

Foundation (‘‘HLF’’) as a ‘‘Specially Designated Global Terrorist’’ (‘‘SDGT’’) pursuant to an Executive Order issued

under the International Emergency Economic Powers Act, 50

U.S.C. § 1701 et seq. (‘‘IEEPA’’). This designation was accompanied by an order blocking all of the organization’s

assets. HLF brought an action in the district court challenging this designation and before us now appeals the lower

court’s decision which affirmed OFAC’s actions and dismissed

the complaint in substantial part. For the reasons explained

below, we hereby affirm the district court’s dismissal in part,

and order summary judgment for the government.

I. Background

The IEEPA, 50 U.S.C. § 1701 et seq., authorizes the President to declare a national emergency when an extraordinary

threat to the United States arises that originates in substantial part in a foreign state. Such a declaration clothes the

President with extensive authority set out in 50 U.S.C.

§ 1702. Under that section he may investigate, regulate, or

prohibit transactions in foreign exchange, banking transfers,

and importation or exportation of currency or securities by

persons or with respect to property, subject to the jurisdiction of the United States. § 1702(a)(1)(A). Of further special concern to the Holy Land Foundation, he may

investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or

prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or
3

privilege with respect to, or transactions involving, any

property in which any foreign country or a national

thereof has any interest by any person, or with respect to

any property, subject to the jurisdiction of the United

StatesTTTT

§ 1702(a)(1)(B).

In 1995, the President issued Executive Order 12,947 pursuant to the IEEPA. Exec. Order No. 12,947 (60 Fed. Reg.

5079 (Jan. 23, 1995)). That order designated certain terrorist

organizations, including the Palestinian organization Hamas,

as ‘‘Specially Designated Terrorists,’’ or SDTs, and blocked

all of their property and interests in property. The order

also allowed for additional designations if an organization or

person is found to be ‘‘owned or controlled by, or to act for or

on behalf of’’ an SDT. Id.

In 2001, as part of his response to the attacks of September

11, the President issued Executive Order 13,224, similar to

Order 12,947, pursuant to the IEEPA. Exec. Order No.

13,224 (66 Fed. Reg. 49,079 (Sept. 23, 2001)). Order 13,224

designated specified terrorist organizations, again including

Hamas, as ‘‘Specially Designated Global Terrorists,’’ or

SDGTs, and blocked all of their property and interests in

property subject to the jurisdiction of the United States.

That order also allowed for additional SDGTs to be designated if organizations or persons are found to ‘‘act for or on

behalf of’’ or are ‘‘owned or controlled by’’ designated terrorists, or they ‘‘assist in, sponsor, or provide TTT support for,’’

or are ‘‘otherwise associated’’ with them. Id.

HLF was originally established as the Occupied Land Fund

and incorporated as a tax-exempt organization in California in

1989. In 1991 it changed its corporate name to the Holy

Land Foundation for Relief and Development and moved to

Texas. It describes itself as ‘‘the largest Muslim charity in

the United States.’’ In December 2001, OFAC, a division of

the Department of the Treasury, acting pursuant to the

IEEPA and the two Executive Orders (13,224 and 12,947),

designated HLF as both an SDT and an SDGT and blocked

all of its assets. The designations were based on information
4

supporting the proposition that HLF was closely linked to

Hamas. Soon thereafter, HLF filed a complaint in district

court challenging its designations as a terrorist organization

and the seizure of its assets, and alleging that its rights under

the First, Fourth, and Fifth Amendments, its right to free

exercise of religion under the Religious Freedom Restoration

Act, 42 U.S.C. § 2000bb et seq. (‘‘RFRA’’), and its rights

under the Administrative Procedure Act, 5 U.S.C. § 701 et

seq. (‘‘APA’’), had all been violated. HLF also filed a motion

for a preliminary injunction, seeking to enjoin the government from blocking or freezing its assets. In support of the

motion, HLF attached exhibits purportedly showing that it

was not linked to Hamas and therefore not a terrorist organization. Subsequently, in May 2002, the OFAC redesignated

HLF as an SDT and an SDGT, and filed with the district

court an administrative record which included HLF’s motion

for a preliminary injunction with attached exhibits.

In response to HLF’s pleadings, the government moved for

summary judgment on the APA claim and to dismiss the

remaining claims for failure to state a claim. HLF then filed

an opposition to the government’s motion, attaching additional exhibits and seeking discovery. The government moved to

strike all of HLF’s exhibits that were not part of the administrative record and to bar an evidentiary hearing.

The district court conducted a hearing, consisting entirely

of oral argument by counsel, on the motions. The court then

issued its decision. It granted summary judgment on the

HLF’s APA claim; dismissed, under Rule 12(b)(6), the remaining claims except for one aspect of the Fourth Amendment claim; and granted the government’s motion to strike

HLF’s exhibits. Holy Land Found. for Relief & Dev. v.

Ashcroft, 219 F. Supp. 2d 57 (D.D.C. 2002).

II. The District Court’s Opinion

The Holy Land Foundation attempted to supplement the

record before the district court by the addition of exhibits

attached to its opposition to the defendants’ motion to dismiss. The government moved in limine to strike the supple-
5

mental material. The district court granted the government’s

motion, holding that APA review ‘‘must ordinarily be confined

to the administrative record.’’ Id. at 65 (citing Camp v. Pitts,

411 U.S. 138, 142 (1973)). The court further rejected HLF’s

argument that the IEEPA authorizes the blocking of property only where a foreign country or foreign national has a

legally enforceable interest in that property, by recognizing

that the text of the statute and the cases which have interpreted it impose no restraint on the broad phrase ‘‘any

interest’’ and that the Treasury Department’s regular interpretation of that term to mean ‘‘an interest of any nature

whatsoever, direct or indirect’’ had been repeatedly upheld by

the courts. See Holy Land, 219 F. Supp. 2d at 67 (citing

Regan v. Wald, 468 U.S. 222, 224, 225–26, 233–34 (1984)).

The court then commenced a detailed review of the administrative record and reiterated the evidence on which the

Treasury Department relied in making its determination to

designate HLF as an SDGT. See Holy Land, 219 F. Supp.

2d at 69–75. It found that the record contained ‘‘ample

evidence that (1) HLF has had financial connections to Hamas since its creation in 1989; (2) HLF leaders have been

actively involved in various meetings with Hamas leaders; (3)

HLF funds Hamas-controlled charitable organizations; (4)

HLF provides financial support to the orphans and families of

Hamas martyrs and prisoners; (5) HLF’s Jerusalem office

acted on behalf of Hamas; and (6) FBI informants reliably

reported that HLF funds Hamas.’’ Id. at 69. The court

concluded, based on the substantial evidence in the record,

Treasury’s determination that HLF acts for or on behalf of

Hamas was not arbitrary and capricious, and therefore, upheld the agency’s reasonable determination.

The court then turned to the remainder of HLF’s claims,

and dismissed all but one under Federal Rule of Civil Procedure 12(b)(6). First, the court rejected HLF’s contention

that its due process rights had been violated because the

government failed to provide notice and a hearing before its

assets were blocked. The court found that postponement of

notice and hearing were justified in this case, under factors

previously articulated by the Supreme Court. See id. at 76–
6

77 (citing Calero-Toledo v. Pearson Yacht Leasing Co., 416

U.S. 663, 679–80 (1974)). The district court also rejected

HLF’s claim under a substantive due process theory, holding

that the designation and blocking were not arbitrary and

capricious and ‘‘did not rise to the level of a constitutional

violation.’’ See id. at 77. The court dismissed HLF’s constitutional claims finding that the designation and blocking

order did not violate the entity’s First Amendment right to

freedom of association, stating that they ‘‘do not prohibit

membership in Hamas or endorsement of its views, and

therefore do not implicate HLF’s associational rights.’’ Id. at

81. Additionally, the court found that HLF’s freedom of

speech First Amendment rights had not been violated because designation and blocking of funds promote the important and substantial governmental interest in combating terrorism by undermining its financial base, and there is no

other, narrower means of ensuring that charitable contributions to a terrorist organization are used for a legitimate

purpose. See id. at 81–82.

Finally, the district court concluded that HLF lacked the

ability to invoke its own free exercise rights under the

Religious Freedom Restoration Act because it had not alleged

it was a religious organization or that it engaged in an ‘‘actual

exercise of religion’’ as an organization. Id. at 83. Likewise,

the court held that HLF lacked standing to invoke the free

exercise rights of third parties, such as its donors and employees. See id. at 83–84. The court denied the requested

preliminary injunction because HLF had failed to demonstrate a substantial likelihood of success on the merits and

because injury to the government and the public interest

supported the executive’s use of designation and blocking as a

means to advance the government’s foreign policy and national security. Id. at 84.

III. Analysis

We review the district court’s dismissal for failure to state

a claim under Rule 12(b)(6) de novo. See Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Additionally, the
7

actions of the Treasury Department in designating HLF as a

SDGT are governed by the judicial review provisions of the

APA, 5 U.S.C. § 706(2)(A). Therefore, if the OFAC’s actions

were not arbitrary and capricious, and were based on substantial evidence, we must affirm.

As a first matter, we reject HLF’s claim that its designation exceeded Treasury’s authority under the APA, and affirm the district court’s dismissal of that claim. The district

court correctly reviewed the actions of the Treasury Department under the highly deferential ‘‘arbitrary and capricious’’

standard. See Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 416 (1971). The district court noted that

this standard does not allow the courts to undertake their

own factfinding, but to review the agency record to determine

whether the agency’s decision was supported by a rational

basis. See Holy Land, 219 F. Supp. 2d at 67 (citing Camp,

411 U.S. at 142).

As demonstrated by the district court’s survey in the

opinion below, Treasury’s decision to designate HLF as an

SDGT was based on ample evidence in a massive administrative record. HLF attacks the reasonableness of this determination by contending that Treasury relied on hearsay evidence to reach its conclusion. This argument is unavailing as

it is clear that the government may decide to designate an

entity based on a broad range of evidence, including intelligence data and hearsay declarations. See National Council

of Resistance v. Dep’t of State, 251 F.3d 192, 196 (D.C. Cir.

2001) (‘‘NCOR’’). HLF also argues that Treasury was arbitrary and capricious in relying on information that predated

the 1995 designation of Hamas as a terrorist organization.

However, as the district court noted, it was clearly rational

for Treasury to consider HLF’s genesis and history, which

closely connect it with Hamas. See Holy Land, 219 F. Supp.

2d at 74. There was no plausible evidence presented which

showed that these ties had been severed. The HLF officers

and directors who dealt with Hamas until 1995 remained with

HLF in their respective capacities until HLF itself was

designated. See id. There was ample record evidence, in

any case, that HLF continued beyond 1995 to maintain its
8

ties with Hamas and continued to give money to entities

controlled by and associated with Hamas. This evidence

included the testimony of numerous FBI sources and findings

by both Israeli and Palestinian governmental authorities.

Finally, the district court correctly rejected HLF’s argument that the IEEPA permits blocking of property only

where there is a ‘‘legally enforceable’’ interest to be blocked.

See Holy Land, 219 F. Supp. 2d at 67. The plain text of the

statute belies HLF’s contention because it authorizes the

blocking of property in which the designated foreign national

or country has ‘‘any interest.’’ 50 U.S.C. § 1702(a)(1)(B).

The language therefore imposes no limit on the scope of the

interest, and OFAC has defined this statutory term, pursuant

to explicit authorization from Congress, 50 U.S.C. § 1704, to

mean, ‘‘an interest of any nature whatsoever, direct or indirect.’’ 31 C.F.R. § 500.311–.312. We have upheld Treasury’s

authority to define these interests. See Consarc Corp. v.

Iraqi Ministry, 27 F.3d 695, 701 (D.C. Cir. 1994) (Treasury

‘‘may choose and apply its own definition of property interests, subject to deferential judicial review.’’). The Seventh

Circuit eloquently dealt with the applicability of the IEEPA

to more than traditional ‘‘legal interests’’ in Global Relief

Foundation, Inc. v. O’Neal, 315 F.3d 748 (7th Cir. 2002). In

that case, the Global Relief Foundation, like the HLF in the

present case, argued that the word ‘‘interest’’ in

§ 1702(a)(1)(B) ‘‘refer[red] to a legal interest, in the way that

a trustee is legal owner of the corpus even if someone else

enjoys the beneficial interest.’’ Id. at 753 (emphasis in original). The Global Relief Foundation court rejected that construction as do we, reasoning that ‘‘[t]he statute is designed to

give the President means to control assets that could be used

by enemy aliens.’’ Id. That risk is at least as much raised

by the prospect of the foreign terrorists holding the beneficial

interest, or an interest not defined in traditional common law

terms as it is by a legal interest which might be a pure fiction.

We find the reasoning of the Seventh Circuit unassailable and

join it. The interest need not be a legally protected one in

order to be caught within the net of § 1702. In this case,

there was ample evidence of foreign ‘‘interests’’ in HLF’s
9

assets. There was evidence demonstrating that HLF operated as a fundraiser for Hamas in the United States and that

Hamas officials provided HLF with funds. Therefore, OFAC

did not exceed its authority when it blocked the assets after

the designation, because OFAC needed only to determine

that Hamas had an interest in HLF’s property, and the

record provided substantial evidence to support that conclusion.

The district court also properly disposed of HLF’s due

process claims under Rule 12(b)(6). First, OFAC’s designation of HLF as an SDGT was not arbitrary and capricious, as

demonstrated above. See Holy Land, 219 F. Supp. 2d at 77.

Nor was the designation in any other way so egregiously

unfair as to violate any constraints due process may place

upon the substance of the agency’s decision. Additionally,

HLF was accorded all the administrative process it was due

when it was redesignated as an SDGT. Even if Treasury’s

initial designation arguably violated HLF’s due process

rights, HLF’s funds are blocked currently by a redesignation

which Treasury applied in accordance with the requirements

we outlined in NCOR, 251 F.3d 192.

In NCOR, we considered a due process challenge to the

Secretary of State’s designation of two foreign entities as

foreign terrorist organizations under 8 U.S.C. § 1189. A

designation under that statute carries a similar implication to

those under the Executive Order at issue in this case. In the

record before us in NCOR, the Secretary of State had

afforded the entities neither a predesignation notice nor an

opportunity to comment on the evidence against them. We

held that the Constitution requires that the Secretary, in

designating organizations as foreign terrorist organizations

under that statute, must ‘‘afford to the entities under consideration [for designation] notice that the designation is impending,’’ except that ‘‘[u]pon an adequate showing to the

court, the Secretary may provide this notice after the designation where earlier notification would impinge upon the

security and other foreign policy goals of the United States.’’

NCOR, 251 F.3d at 208. Additionally, the Secretary must

‘‘afford to entities considered for imminent designation the
10

opportunity to present, at least in written form, such evidence

as those entities may be able to produce to rebut the administrative record or otherwise negate the proposition that they

are foreign terrorist organizations.’’ Id. at 209.

In the present case, HLF was initially designated in 2001,

in an action taken under the IEEPA-based sanctions program, flowing from a presidentially declared national emergency, as recognized by the district court. See Holy Land,

219 F. Supp. 2d at 76–77. However, in April, 2002, Treasury

notified both Holy Land and the district court that it was

reopening the administrative record and considering whether

to redesignate HLF as an SDGT, on the basis of additional

evidence linking HLF and Hamas. Holy Land was then

given thirty-one days to respond to the redesignation and the

new evidence. Holy Land did respond and the Treasury

considered its response as well as the new evidence before

deciding to redesignate HLF in May 2002. Therefore, Treasury provided HLF with the requisite notice and opportunity

for response necessary to satisfy due process requirements.

As we stated in NCOR, we do not require an agency to

provide procedures which approximate a judicial trial, 251

F.3d at 209; therefore, HLF has no right to confront and

cross-examine witnesses. Additionally, the notice ‘‘need not

disclose the classified information to be presented in camera

and ex parte to the court under the statute. This is within

the privilege and the prerogative of the executive, and we do

not intend to compel a breach in the security which that

branch is charged to protect.’’ Id. at 208–09. The IEEPA

expressly authorizes ex parte and in camera review of classified information in ‘‘any judicial review of a determination

made under this section [that] was based on classified information.’’ 50 U.S.C. § 1702(c).

We have had recent occasion to consider a claim that the

use of classified information disclosed only to the court ex

parte and in camera in the designation of a foreign terrorist

organization under the AEDPA was violative of due process.

In rejecting that claim, we recalled that ‘‘[t]he due process

clause requires only that process which is due under the

circumstances of the case.’’ People’s Mojahedin Organiza-
11

tion of Iran v. Dep’t of State, F.3d (D. C. Cir. May 9,

2003) (slip op. at 8) (citing Morrissey v. Brewer, 408 U.S. 471,

481 (1972)). We further held that the standard set forth in

NCOR applies not only to the notice provisions governing

classification but to the full process of classification and that

therefore ‘‘due process required the disclosure of only the

unclassified portions of the administrative record.’’ Id. at 7

(emphasis in original). Again, we emphasized the primacy of

the Executive in controlling and exercising responsibility over

access to classified information, and the Executive’s ‘‘ ‘compelling interest’ in withholding national security information

from unauthorized persons in the course of executive business.’’ Id. at 7–8 (citations omitted). That the designation

comes under an Executive Order issued under a different

statutory scheme makes no difference. HLF’s complaint, like

that of the Designated Foreign Terrorists Organizations in

the earlier cases, that due process prevents its designation

based upon classified information to which it has not had

access is of no avail.

HLF argues that the government violated its First Amendment rights of freedom of association and freedom of speech

and its right to equal protection under the Fourteenth

Amendment. HLF argued below that the government had

violated its First Amendment rights by prohibiting it from

making any humanitarian contributions by blocking its assets.

See, e.g., FEC v. Colorado Republican Federal Campaign

Committee, 533 U.S. 431, 440 (2001) (contributions of money

fall within the First Amendment’s protection of speech and

political association). The district court dismissed these

claims pursuant to Rule 12(b)(6), ruling that HLF failed to

state a claim because ‘‘there is no constitutional right to

facilitate terrorism.’’ Holy Land, 219 F. Supp. 2d at 81

(quoting Humanitarian Law Project v. Reno, 205 F.3d 1130,

1133 (9th Cir. 2000)). HLF argues before us now that the

district court erred in its disposition of these claims because

the court should not have considered evidence beyond those

allegations contained in the complaint in order to reach its

conclusion and a necessary element in the court’s reasoning

on all three claims was that the HLF did support Hamas.
12

On review of a 12(b)(6) motion a court ‘‘must treat the

complaint’s factual allegations as true TTT and must grant

plaintiff the benefit of all inferences that can be derived from

the facts alleged.’’ Sparrow v. United Air Lines, Inc., 216

F.3d 1111, 1113 (D.C. Cir. 2000) (internal quotation omitted).

Additionally, the liberal federal pleading standard requires

that complaints need only contain ‘‘a short and plain statement of the claim showing that the pleader is entitled to

relief.’’ FED. R. CIV. P. 8(a)(2); see also Browning, 292 F.3d

at 242. The amended complaint submitted by HLF on which

the claims should have been considered, alleged that HLF

had no knowing affiliation with Hamas or any other terrorist

organization. In order to reach the outcome it did, that there

is no constitutional right to fund terrorism, the district court

first had to find that the HLF funds terrorism.

We agree with HLF that the district court could not have

reached its conclusion without either improperly applying a

heightened pleading standard or extending the scope of the

12(b)(6) review. As HLF reminds us, if in considering a

motion to dismiss under Rule 12(b)(6) for failure of the

complaint to state a claim for relief, ‘‘matters outside the

pleading are presented to and not excluded by the court, the

motion shall be treated as one for summary judgment and

disposed of as provided in Rule 56, and all parties shall be

given reasonable opportunity to present all material made

pertinent to such a motion by Rule 56.’’ FED. R. CIV. P.

12(b). HLF argues that that is just what the court did in this

case but without converting the proceeding to a Rule 56

proceeding and permitting HLF to either conduct discovery

or come forward with additional evidence. It appears that

HLF is correct. The district court apparently did consider

the administrative record before it, but did not provide the

opportunities for the presentation of additional material contemplated by Rule 12(b). This failure to comply with the

procedures set forth in the Federal Rules of Civil Procedure

constituted an abuse of discretion. Nonetheless, we find this

error to be harmless, as HLF suffered no prejudice as a

result. See 28 U.S.C. § 2111.
13

HLF could have suffered prejudice only if the failure of the

court to convert the proceeding prevented it from coming

forward with evidence sufficient to create a substantial question of fact material to the governing issues of the case.

Specifically, could HLF have produced evidence upon which a

reasonable trier of fact could have found that the designation

and the blocking of assets violated its First or Fifth Amendment rights? See Anderson v. Liberty Lobby, 477 U.S. 242,

248 (1986). In this case, it could not have. As set forth in

other portions of this opinion, the law is established that

there is no constitutional right to fund terrorism. The ample

record evidence (particularly taking into account the classified

information presented to the court in camera) establishing

HLF’s role in the funding of Hamas and of its terrorist

activities is incontrovertible. While not in accordance with

proper procedures, HLF has had every opportunity to come

forward with some showing that that evidence is false or even

that its ties to Hamas had been severed. HLF’s presentations at the administrative stage did not reach this goal, even

when HLF was given an additional thirty-one days to respond

to its redesignation and to the new evidence in April of 2002.

Even following the district court’s judgment, while HLF

attempted to supplement the record on appeal, the supplementary material could not have defeated the proposition

established by the record evidence that Holy Land was a

funder of the terrorist organization Hamas. Perhaps the

supplemental evidence offered, while properly rejected from

the administrative review claim should have been admitted

for the unannounced summary judgment proceeding we now

review. But it would have made no difference.

We do not propose that in every case in which a district

court improperly goes beyond the pleadings in granting a

motion to dismiss without affording the protections contemplated in Rule 12(b), a losing party will lose once more on

appeal because of its inability to show what it would have

produced had it been given the opportunity. In a general

case, perhaps the opportunity for discovery might have produced precisely that which was lacking. However, this is not

a general case. This is a specific case involving sensitive
14

issues of national security and foreign policy. In addition to

the classified evidence that we have reviewed, all evidence

from the government that is unclassified and otherwise discoverable is in the record before us, as is the evidence HLF

produced in an effort to create a genuine factual dispute.

Despite the district court’s failure to follow the proper procedures, HLF had every opportunity and incentive to produce

the evidence sufficient to rebut the ample evidence supporting

the necessary conclusion that it was a funder of Hamas but

could not do so. Thus, we review an adequate record and

conclude that while the district court’s conclusion may have

been based upon improper procedure, there is no substantial

question as to the material facts necessary to support the

district court’s judgment. Again, we hold as other courts

have that there is no First Amendment right nor any other

constitutional right to support terrorists, and that the record

supports no conclusion that the designation or blocking violated any constitutional right of the HLF. See, e.g., Humanitarian Law Project, 205 F.3d at 1133.

IV. The RFRA Claim

Similar reasoning supports a grant of summary judgment

for the government on HLF’s claim that the designation and

blocking order substantially burden its exercise of religion in

violation of the Religious Freedom Restoration Act

(‘‘RFRA’’), 42 U.S.C. § 2000bb–1. RFRA bars the government from placing a ‘‘substantial[ ] burden’’ on a person’s

exercise of religion ‘‘even if the burden results from a rule of

general applicability,’’ unless the government demonstrates a

‘‘compelling governmental interest,’’ and uses the ‘‘least restrictive means’’ of furthering that interest. 42 U.S.C.

§ 2000bb–1(a), (b). Congress enacted RFRA in 1993 in

response to the Supreme Court’s decision in Employment

Division, Dep’t of Human Resources of Oregon v. Smith, 494

U.S. 872 (1990). The Smith decision had held that ‘‘neutral,

generally applicable laws may be applied to religious practices even when not supported by a compelling government

interest.’’ City of Boerne v. Flores, 521 U.S. 507, 514 (1997).

In passing RFRA, Congress expressed its purpose as being
15

‘‘to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder,

406 U.S. 205 (1972), and to guarantee its application in all

cases where free exercise of religion is substantially burdened.’’ 42 U.S.C. § 2000bb.

Although the City of Boerne case held the RFRA unconstitutional as applied to state government action, we have held

that without doubt ‘‘the portion [of RFRA] applicable to the

federal government TTT survived the Supreme Court’s decision striking down the statute as applied to the States.’’

Henderson v. Kennedy, 265 F.3d 1072, 1073 (D.C. Cir. 2001).

That the statute constitutionally applies against the federal

government, however, only raises the question: does the

present designation with its consequences substantially burden the exercise of religion on the facts before the district

court and now before this court? Like the district court, we

conclude that it does not.

The district court held that the Foundation could not state

a viable RFRA claim on its own behalf because it had

‘‘define[d] itself as a ‘non-profit charitable corporation’ without any reference to its religious character or purpose.’’

Holy Land, 219 F. Supp. 2d at 83. Effectively then, the court

held that such a corporation is not ‘‘a person’’ within the

meaning of 42 U.S.C. § 2000bb-1(c), which provides judicial

relief to ‘‘a person whose religious exercise has been burdened in violation’’ of RFRA. That may be, but we do not so

decide today. We decide only that even if it is such a person,

its religious exercise has not been burdened in violation of the

statute. Congress in enacting RFRA only sought to provide

process and standards for the protection of religious exercise.

It did not purport to extend the definition of that term, and

indeed defined the term ‘‘exercise of religion’’ only as meaning ‘‘the exercise of religion under the First Amendment to

the Constitution.’’ 42 U.S.C. § 2000bb–2(4). Even accepting

the dubious proposition that a charitable corporation not

otherwise defined can exercise religion as protected in the

First Amendment, preventing such a corporation from aiding

terrorists does not violate any right contemplated in the

Constitution or the RFRA. No one on behalf of Holy Land
16

Foundation has forwarded the proposition that the fomenting

and spread of terrorism is mandated by the religion of Islam.

At most they argue a right to charitable giving as a pillar of

that religion. Cf. Henderson v. Kennedy, 253 F.3d 12, 17

(D.C. Cir. 2001) (holding that a general religious mandate ‘‘to

spread the gospel by ‘all available means’ ’’ does not provide

RFRA protection to the sale of T-shirts). Acting against the

funding of terrorism does not violate the free exercise rights

protected by RFRA and the First Amendment. There is no

free exercise right to fund terrorists. The record clearly

supports a conclusion that HLF did. There is no evidence

that Congress intended to create such a right within the

RFRA. Therefore, HLF’s activities do not fall within the

RFRA’s protection, and based on the evidence already in the

record, summary judgment for the government is warranted.

V. Conclusion

Therefore, we uphold the district court’s affirmance of the

Treasury Department’s decision to designate HLF as an

SDGT and to block its assets. We also affirm the district

court’s dismissal of HLF’s due process claims. Although we

hold that the district court erred in not converting the

government’s 12(b)(6) motion for dismissal to a motion for

summary judgment, we find that error to be harmless because the government should have been granted summary

judgment, as we hereby do, on the basis of the administrative

record.