Bauer v. Marmara, No. 13–7081.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtEDWARDS
Citation774 F.3d 1026
Docket NumberNo. 13–7081.
Decision Date19 December 2014
PartiesAlan J. BAUER, Dr., Appellant v. Mavi MARMARA, and All Right, Title and Interest Therein, et al., Appellees.

774 F.3d 1026

Alan J. BAUER, Dr., Appellant
Mavi MARMARA, and All Right, Title and Interest Therein, et al., Appellees.

No. 13–7081.

United States Court of Appeals,
District of Columbia Circuit.

Argued Sept. 15, 2014.
Decided Dec. 19, 2014.

[774 F.3d 1027]

Appeal from the United States District Court for the District of Columbia, (No. 1:11–cv–01267).

Asher Perlin argued the cause and filed the briefs for appellant.

Vijay Shanker, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Mythili Raman, Acting Assistant Attorney General.

Before: SRINIVASAN, Circuit Judge, EDWARDS, Senior Circuit Judge, and SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge:

The Neutrality Act (“Act”), 18 U.S.C. § 962, was initially passed in 1794. It “has

[774 F.3d 1028]

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.” The Three Friends, 166 U.S. 1, 52, 17 S.Ct. 495, 41 L.Ed. 897 (1897). The Act makes it unlawful to furnish, fit out, or arm a vessel within the United States with the intent of having the vessel used in the service of a foreign state or people to commit hostilities against another foreign state or people with whom the United States is at peace. Any person who violates the Act “[s]hall be fined ... or imprisoned not more than three years, or both.” 18 U.S.C. § 962. In addition, vessels that are covered by the Act are subject to forfeiture, and persons who give information leading to the seizure of such vessels may recover a bounty, with “one half to the use of the informer and the other half to the use of the United States.” Id.

On July 11, 2011, appellant, Dr. Alan J. Bauer, filed a complaint in the District Court to pursue a claim under the Neutrality Act. The complaint asserted that Dr. Bauer had informed the United States Government of vessels that had been funded, furnished, and fitted by anti-Israel organizations in the United States, together with violent and militant anti-Israel organizations from other countries, in violation of the Act. The complaint further averred that the vessels were to be employed in the service of Hamas, a terrorist organization in the Gaza Strip, to commit hostilities against Israel. Dr. Bauer claimed that he had the right, as an informer, to condemn the vessels for forfeiture and to share in the bounty.

The District Court dismissed the complaint, on the ground that:

18 U.S.C. § 962 lacks an express private cause of action, and the court declines the plaintiff's invitation to imply one. Accordingly, this case must be dismissed for the plaintiff's failure to state a claim upon which relief may be granted.

Bauer v. Mavi Marmara, 942 F.Supp.2d 31, 43 (D.D.C.2013). In its brief to this court, the United States (“Government”), appearing as an interested party, agrees that “[a] private individual has no authority to bring an action under Section 962.” United States Br. 10. “Moreover,” according to the Government, “even assuming a private party can bring a forfeiture action under the statute, the government's participation would be required, and the government here declines to participate in Dr. Bauer's suit.” Id. During oral argument before this court, Government counsel also argued that Dr. Bauer's suit should be dismissed for lack of standing.

Dr. Bauer concedes that the Neutrality Act does not provide an express cause of action. He insists, however, that a private cause of action may be judicially implied. In support of this position, Dr. Bauer contends that statutes that contain a bounty provision and that do not forbid a private cause of action should be understood to implicitly grant a private cause of action to informers. In his briefs to this court, Dr. Bauer does not directly address standing. He seems to assume that if a party has a private cause of action to sue, he necessarily has standing.

It is well understood that a party who seeks to pursue an action in federal court must first establish Article III standing. As the Supreme Court explained in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992):

[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff 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,

[774 F.3d 1029]

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.

Id. at 560–61, 112 S.Ct. 2130 (citations, internal quotation marks, and alterations omitted).

We recognize that when a plaintiff's alleged injury arises solely from a statute, questions concerning standing and the availability of a private cause of action under the statute may be intertwined. Nevertheless, standing and a failure to state a cause of action are not the same.

The question whether a federal statute creates a claim for relief is not jurisdictional. Nw. Airlines, Inc. v. Cnty. of Kent, Mich., 510 U.S. 355, 365, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994). Therefore, an objection to a party's failure to state a claim upon which relief can be granted can be forfeited if it is not properly raised. Arbaugh v. Y & H Corp., 546 U.S. 500, 507, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). On the other hand, standing is jurisdictional and it can never be forfeited or waived. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “Standing can be raised at any point in a case proceeding and, as a jurisdictional matter, may be raised, sua sponte, by the court.” Steffan v. Perry, 41 F.3d 677, 697 n. 20 (D.C.Cir.1994) (en banc). And “[w]hen there is doubt about a party's constitutional standing, the court must resolve the doubt, sua sponte if need be.” Lee's Summit, Mo. v. Surface Transp. Bd., 231 F.3d 39, 41 (D.C.Cir.2000) (first emphasis added). Given this mandate, we have carefully focused on the requirements of Article III and concluded that Dr. Bauer's suit must be dismissed for want of standing, not for failure to state a cause of action.

Our decision here is informed by the Supreme Court's decision in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). In Stevens, the Court held that bounty hunters like Dr. Bauer have standing to sue only through “the doctrine that the assignee of a claim has standing to assert the injury in fact suffered by the assignor.” Id. at 773, 120 S.Ct. 1858. That case concerned the False Claims Act, 31 U.S.C. §§ 3729–3733, which expressly authorizes private parties who are aware of fraud against the Government to sue on behalf of the Government and collect restitution and penalties from the fraudsters, keeping part of the recovery for themselves. Id. § 3730(b)(1). The Stevens Court found that

the statute gives the relator himself an interest in the lawsuit, and not merely the right to retain a fee out of the recovery. Thus, it provides that “[a] person may bring a civil action for a violation of section 3729for the person and for the United States Government, § 3730(b) (emphasis added); gives the relator “the right to continue as a party to the action” even when the Government itself has assumed “primary responsibility” for prosecuting it, § 3730(c)(1); entitles the relator to a hearing before the Government's voluntary dismissal of the suit, § 3730(c)(2)(A); and prohibits the Government from settling the suit over the relator's objection without a judicial determination of “fair[ness], adequa[cy] and reasonable[ness],” § 3730(c)(2)(B).

[774 F.3d 1030]

Stevens, 529 U.S. at 772, 120 S.Ct. 1858. In light of these statutory provisions, the Court held that the False Claims Act “can reasonably be regarded as effecting a partial assignment of the Government's damages claim.” Id. at 773, 120 S.Ct. 1858. It reached this conclusion in part because the False Claims Act “gives the relator himself an interest in the lawsuit, and not merely the right to retain a fee out of the recovery.” Id. at 772, 120 S.Ct. 1858.

There is no such assignment under the Neutrality Act. An informer under the Neutrality Act has nothing more than an inchoate and conditional interest in a bounty, which hinges on whether the Government pursues a forfeiture action. Therefore, an informer like Dr. Bauer cannot establish either injury-in-fact or redressability and has no standing to pursue this action on his own to enforce the Government's interests in neutrality in foreign affairs.

I. Background
A. The Neutrality Act

Congress passed the Neutrality Act in 1794. Act of June 5, 1794, ch. 50, 1 Stat. 381. The Act

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. [It] 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).

Bauer, 942...

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