Bauer v. Marmara, Civil Action No. 11–1267 (RC).

• Decision Date: 18 April 2013
• Docket Number: Civil Action No. 11–1267 (RC).
• Citation: 942 F.Supp.2d 31
• Parties: Alan J. BAUER, Plaintiff, v. Mavi MARMARA et al., Defendants.
• Court: U.S. District Court — District of Columbia

942 F.Supp.2d 31

Alan J. BAUER, Plaintiff,

v.Mavi MARMARA et al., Defendants.

Civil Action No. 11–1267 (RC).

United States District Court, District of Columbia.

April 18, 2013.

Asher Perlin, Law Offices of Asher Perlin, Miami, FL, Robert Joseph Tolchin, The Berkman Law Office, LLC, Brooklyn, NY, for Plaintiff.

MEMORANDUM OPINION

RUDOLPH CONTRERAS, District Judge.

I. INTRODUCTION

This lawsuit arises from the Israeli naval blockade of the Gaza Strip in 2006. The plaintiff claims to have identified several ships that violated the blockade in order to provide assistance to terrorist groups in the Palestinian territories. The plaintiff thus brought suit under the Neutrality Act, a law that was enacted in 1794 and has rarely been invoked since. Because the Neutrality Act lacks a private cause of action, the court dismisses the case.

II. LEGAL AND FACTUAL BACKGROUND

A. The Neutrality Act of 1794

The Neutrality Act bears an impeccable historical pedigree: “The act of 1794, which has been generally recognized as the first instance of municipal legislation in support of the obligations of neutrality, and a remarkable advance in the development of international law, was recommended to congress by President Washington in his annual address on December 3, 1793, was drawn by Hamilton, and passed the senate by the casting vote of Vice President Adams.” The Three Friends, 166 U.S. 1, 52–53, 17 S.Ct. 495, 41 L.Ed. 897 (1897). The Neutrality Act was designed to keep the United States from getting dragged into the conflict between England and France. Thomas H. Lee, The Safe–Conduct Theory of the Alien Tort Statute, 106 Colum. L. Rev. 830, 847 (2006) (describing the “young Republic's neutrality crisis” as the Founders precariously navigated “between the Scylla of Britain and the Charybdis of France.”). Thus, the Act appears to be a legislative enactment of President Washington's warning—made famous in his farewell address—that the young nation should remain free from entangling alliances. George Washington, Farewell Address (Sept. 19, 1796), reprinted in S. Doc. No. 106–21 (2000) ( “Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice? ... After deliberate examination, with the aid of the best lights I could obtain, I was well satisfied that our country, under all the circumstances of the case, had a right to take, and was bound in duty and interest to take, a neutral position.”).

The Neutrality Act is one of many “bounty” or “informer” statutes that were passed in the early days of the Republic. These provisions promised a financial reward to citizens who came forward with information of wrongdoing. See generally Vt. Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 774–79, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (providing a lengthy history of informant statutes). The bounty mechanism was born of necessity, as the then-nascent federal government often lacked sufficient means to investigate or prosecute illegal activity. U.S. ex rel. Marcus v. Hess, 317 U.S. 537, 560, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (Jackson, J., dissenting) (describing “law-enforcement in a nation which had not yet established a Federal Department of Justice, which did not then have a Federal Bureau of Investigation, or a Treasury investigating force, and in which the activities of the Federal Government were so circumscribed that they had not been found necessary.”); Pamela H. Bucy, Information as a Commodity in the Regulatory World, 39 Hous. L. Rev. 905, 910 (2002) (explaining that “in colonial America, informer actions were needed because there was no police force or prosecuting authority”); Evan Caminker, The Constitutionality of Qui Tam Actions, 99 Yale L.J. 341, 341 n. 1 (1989) (noting that “prior to the growth of the modern executive, the responsibility for enforcing legal obligations necessarily fell to private citizens [through qui tam actions] rather than public officers”).

Congress's reliance on the “bounty” or “informer” mechanism waned somewhat in the early to mid-nineteenth century, in response to the steady expansion of the federal government's prosecutorial machinery. Thus, few of these statutes remain on the books; even fewer are invoked in today's courts. See Evan Caminker, The Constitutionality of Qui Tam Actions, 99 Yale L.J. 341, 341 n. 1 (1989) (“Most early qui tam statutes have long been repealed; of those remaining, most lie essentially dormant.”). Of course, this would not be the first time that an enterprising plaintiff has resuscitated a long-dormant statute. In Filartiga v. Pena–Irala, 630 F.2d 876 (2d Cir.1980), the plaintiffs rescued the Alien Tort Statute—passed by the first Congress in 1789—from nearly two hundred years of disuse. This case presents a similar question: namely, whether the Neutrality Act of 1794 may be invoked by a plaintiff today without the government's involvement.

B. Factual Background

Dr. Bauer is an American citizen who was injured in a 2002 terrorist attack that was committed in Jerusalem. According to the complaint, the terrorist organization Hamas seized power in the Gaza Strip in 2007 and began carrying out attacks against civilian targets in Israel soon thereafter. Israel responded by imposing a naval blockade on the Gaza Strip. The plaintiff alleges that “anti-Israel organizations” in the United States and other countries retaliated by organizing efforts to breach the blockade and to provide support to Hamas. Compl. ¶¶ 9–11.

The plaintiff alleges that several organizations and individuals in the U.S. (such as the “Free Gaza Movement” and the “U.S. Boat to Gaza Project”) raised funds that were ultimately used to equip the defendant vessels with the means to commit hostilities against the state of Israel. Id. ¶¶ 11–16.¹ Dr. Bauer relayed this allegationto the Attorney General. Id. ¶¶ 4, 5; see id., Ex. A. The plaintiff then filed suit under a forfeiture provision of the Neutrality Act, 18 U.S.C. § 962, which provides as follows:

Whoever, within the United States, furnishes, fits out, arms, or attempts to furnish, fit out or arm, any vessel, with intent that such vessel shall be employed in the service of any foreign prince, or state, or of any colony, district, or people, to cruise, or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace; or

Whoever issues or delivers a commission within the United States for any vessel, to the intent that she may be so employed

Shall be fined under this title or imprisoned not more than three years, or both.

Every such vessel, her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores which may have been procured for the building and equipment thereof, shall be forfeited, one half to the use of the informer and the other half to the use of the United States.

The plaintiff alleges that the defendant vessels are subject to forfeiture under this provision, and that as an “informer” he is entitled to one half of the proceeds should the ships be seized. Compl. ¶¶ 3, 6.

The plaintiff asks that the court enter an order decreeing that these vessels are now U.S. property. Id. at 7 (Prayer for Relief) (asking for a decree of forfeiture). The court asked for the views of the Justice Department under 28 U.S.C. § 517, and the government argues that the plaintiff's claim should be dismissed for failure to state a claim. The court agrees.

III. ANALYSIS

A. Subject–Matter Jurisdiction

The judicially created doctrine of standing derives from Article III of the U.S. Constitution, which confines the federal courts to adjudicating actual “Cases” and “Controversies.” The doctrine “is built on a single basic idea—the idea of separation of powers.” Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Thus, a showing of standing “is an essential and unchanging” predicate to any exercise of this court's jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). And a federal court should first determine that it has jurisdiction over a case before ruling on the merits. Al–Zahrani v. Rodriguez, 669 F.3d 315, 317–18 (D.C.Cir.2012).

Ordinarily, to show standing a plaintiff must establish “three constitutional minima”: (1) that the party has suffered an “injury in fact,” (2) that the injury is “fairly traceable” to the challenged action of the defendant, and (3) that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Grocery Mfrs. Ass'n v. EPA, 693 F.3d 169, 174 (D.C.Cir.2012) (citing Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130) (internal quotation marks omitted). At first glance, it would appear that the plaintiff has failed to meet the first two prongs of this test. After all, the plaintiff does not assert that he suffered any particularized injury that stems from the Gaza blockade and its aftermath, nor does he allege that any such injury could be fairly traceable to the defendants' actions.

But failure to meet this test does not necessarily deprive the court of subject-matter jurisdiction. Although the court has “packaged the requirements of constitutional ‘case’ or ‘controversy’ somewhat differently in the past 25 years—an era rich in three-part tests—the point has always been the same: whether a plaintiff ‘personally would benefit in a tangible way from the court's intervention.’ ” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 n. 5, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citing Warth v. Seldin, 422 U.S. 490, 505, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). And “history is particularly relevant to the constitutional standing inquiry,” because “Article III's restriction of the judicial power to ‘Cases' and ‘Controversies' is properly understood to mean ‘cases and...