Alan Bauer v. Mavi Marmara

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 2014 Decided December 19, 2014
No. 13-7081
ALAN J. BAUER, DR.,
APPELLANT
v.
MAVI MARMARA, AND ALL RIGHT, TITLE AND INTEREST
THEREIN, ET AL.,
APPELLEES
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.
2
EDWARDS, Senior Circuit Judge: The Neutrality Act
(“Act”), 18 U.S.C. § 962, was initially passed in 1794. It “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.” The Three Friends, 166 U.S. 1, 52 (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:
3
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 (1992):
4
[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, 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 (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 (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 (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 (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
5
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 (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. 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 3729 for 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).
6
Stevens, 529 U.S. at 772. 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. 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.
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
7
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 F. Supp. 2d at 33 (citation and internal quotation
marks omitted); see also The Three Friends, 166 U.S. at 52–
53.
As noted above, the Act criminalizes certain actions
committed in the United States that support a foreign state or
people against any other foreign state or people with whom
the United States is at peace. Though repeatedly amended,
and very rarely invoked, much of the original Act remains in
force to this day.
The section of the Neutrality Act at issue in this case
states:
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; . . . [s]hall be fined under this
title or imprisoned not more than three years, or both.
18 U.S.C. § 962. The Act further provides that
Every such vessel, her tackle, apparel, and furniture,
together with all materials, arms, ammunition, and stores
8
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.
Id.
Bounty statutes such as the Neutrality Act were popular
immediately after the ratification of the Constitution.
Although there is no evidence that the Colonies allowed
common-law qui tam actions (which . . . were dying out
in England by that time), they did pass several informer
statutes expressly authorizing qui tam suits. Moreover,
immediately after the framing, the First Congress enacted
a considerable number of informer statutes. Like their
English counterparts, some of them provided both a
bounty and an express cause of action; others provided a
bounty only.
Stevens, 529 U.S. at 776–77 (citation and footnotes omitted).
The Neutrality Act was a “bounty only” statute. As we
explain below, no judicial decision of which we are aware has
ever construed the Neutrality Act to afford standing to a
private party to prosecute an alleged criminal infraction or to
independently pursue a forfeiture claim.
B. The Gaza Flotilla and Dr. Bauer’s Lawsuit
According to Dr. Bauer’s complaint, his lawsuit arises
from the 2007 rise to power of Hamas, a terrorist organization
in the Gaza Strip. After Hamas seized power in Gaza and
began carrying out systematic rocket and missile attacks
against civilian targets in Israel, Israel imposed a maritime
9
blockade to limit Hamas’s ability to receive material support
that would facilitate the attacks.
Dr. Bauer alleges that, in response to the blockade, anti-
Israel organizations in the United States, together with violent
and militant anti-Israel organizations from other countries,
initiated efforts to breach Israel’s blockade, to harm Israeli
security, and to support the Hamas-controlled government in
the Gaza Strip. These groups allegedly raised money within
the United States and through U.S. bank accounts, which they
used to “furnish[] and fit[] out and attempt[] to furnish and fit
out the Defendant Vessels, with the intent that the Defendant
Vessels be employed in the service of a colony, district, or
people [Hamas-controlled Gaza], to cruise and commit
hostilities against” Israel, “with whom the United States is at
peace.” Compl. ¶ 18, reprinted in App. 6.
On June 13, 2011, Dr. Bauer sent a letter to Attorney
General Eric Holder, identifying the alleged violation of the
Neutrality Act and providing the names of 14 vessels that
were involved. On July 11, he filed a complaint in the District
Court, setting out the allegations above and requesting that the
court commence forfeiture proceedings against the vessels.
On its own motion, the District Court issued an order to
show cause why Dr. Bauer’s complaint should not be
dismissed for lack of standing. The court also requested,
pursuant to 28 U.S.C. § 517, that the Department of Justice
file a statement of interest on standing in the case. After
receiving submissions from Dr. Bauer and the Government,
the District Court dismissed the complaint on the ground that
the Neutrality Act did not authorize a private suit for
forfeiture and, therefore, Dr. Bauer had failed to state a claim
on which relief could be granted. Bauer, 942 F. Supp. 2d at
43. Dr. Bauer now appeals.
10
II. ANALYSIS
A. Introduction – The Critical Threshold Requirement of
Article III Standing
The District Court and the parties have focused on the
question whether Dr. Bauer’s complaint states a cause of
action. To assess the case in these terms is to assume that Dr.
Bauer has standing, which is a threshold jurisdictional
requirement. We do not accept this assumption. As the Court
noted in Bender v. Williamsport Area School District, 475
U.S. 534 (1986):
Federal courts are not courts of general jurisdiction; they
have only the power that is authorized by Article III of
the Constitution and the statutes enacted by Congress
pursuant thereto. For that reason, every federal appellate
court has a special obligation to satisfy itself not only of
its own jurisdiction, but also that of the lower courts in a
cause under review, even though the parties are prepared
to concede it. And if the record discloses that the lower
court was without jurisdiction this court will notice the
defect, although the parties make no contention
concerning it. When the lower federal court lacks
jurisdiction, we have jurisdiction on appeal, not of the
merits but merely for the purpose of correcting the error
of the lower court in entertaining the suit.
Id. at 541 (citations, internal quotation marks, and brackets
omitted). Under Article III, a party who invokes the court’s
authority “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.” Lujan, 504 U.S. at 560 (citations and internal
11
quotation marks omitted). And “it must be likely, as opposed
to merely speculative, that the injury will be redressed by a
favorable decision.” Id. at 561 (internal quotation marks
omitted). In this case, Dr. Bauer has failed to show that he has
suffered or been assigned any injury in fact, and he cannot
show that his alleged injury will be redressed by a favorable
action of the court. Therefore, we are obliged to dismiss his
complaint because we have no jurisdiction to hear it.
Critical to this holding is our finding that a person who
claims to be an informer under the Neutrality Act has nothing
more than an inchoate and conditional interest in collecting a
bounty, which does not ripen unless the Government seeks
forfeiture of the vessels identified by the purported informer.
By default, a member of the public has no more legal interest
in forfeiting property associated with a crime than with
prosecuting the crime itself. It is therefore hardly surprising
that under the Neutrality Act, as with most criminal statutes,
the Government alone determines whether to prosecute
offenders. See Linda R.S. v. Richard D., 410 U.S. 614, 619
(1973) (holding that “a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of
another”). Dr. Bauer does not dispute this. Similarly, although
the Act also authorizes a civil action for forfeiture, it does not
afford standing to purported informers to pursue forfeiture on
their own. An informer like Dr. Bauer can point to no
concrete injury. An inchoate, conditional interest in a bounty
is not enough to demonstrate injury in support of standing.
Dr. Bauer is also unable to satisfy the redressability
prong of Article III standing because the court cannot compel
the Government to pursue action to seek forfeiture of the
disputed vessels. Without such action by the Government, Dr.
Bauer has nothing to claim under the Neutrality Act. An
informer may be disappointed if the Government declines to
12
pursue forfeiture, but disappointment of this sort is a far cry
from the injury and redressability required to prove Article III
standing. See, e.g., Miami Bldg. & Constr. Trades Council v.
Sec’y of Def., 493 F.3d 201, 202, 205–06 (D.C. Cir. 2007)
(holding that “disappointment” at a “lost opportunity” is not
enough for standing where the possibility for redress rests in
the discretion of a third party who has declined to take action
necessary to serve the plaintiff’s interests); see also Lujan,
504 U.S. at 562 (no standing if an element of standing
“depends on the unfettered choices made by independent
actors not before the courts and whose exercise of broad and
legitimate discretion the courts cannot presume either to
control or to predict” (citation and internal quotation marks
omitted)).
In the analysis below, we show that the language,
purpose, and historical context of the Neutrality Act support
our finding that informers have no standing to sue for
forfeiture on their own.
B. The Language and Purpose of the Neutrality Act Show
That Private Parties Do Not Have Standing to Pursue
Forfeiture on Their Own Under the Neutrality Act
“It is settled law that an informer can in no case sue in his
own name to recover a forfeiture given in part to him, unless
the right to sue is accorded by the statute raising the
forfeiture. That is why the terms and structure of the
particular statute are decisive.” Conn. Action Now, Inc. v.
Roberts Plating Co., 457 F.2d 81, 84 (2d Cir. 1972) (citation
and internal quotation marks omitted). Focusing on the terms
and structure of a statute also ensures fealty to the proper
judicial role: “Raising up causes of action where a statute has
not created them may be a proper function for common-law
courts, but not for federal tribunals.” Alexander v. Sandoval,
13
532 U.S. 275, 287 (2001) (citation and internal quotation
marks omitted).
The Neutrality Act was one of many bounty statutes
passed in the early days of the Republic, and many of those
statutes explicitly authorized informers to sue. The express
inclusion in some statutes of language granting private parties
a right to sue certainly suggests that Congress did not intend
for such a right to be implied in the absence of express
authorization.
For example, a few months before the Neutrality Act was
passed, Congress enacted the Slave Trade Act of 1794, which
made it illegal to “build, fit, equip, load or otherwise prepare
any ship or vessel” within the United States for the purpose of
carrying on the slave trade. Act of Mar. 22, 1794, ch. 11, § 1–
2, 1 Stat. 347, 347–48. The Slave Trade Act was passed by
the same Congress that passed the Neutrality Act, yet the
terms of the statutes are very different with respect to whether
a private party has standing to pursue a claim. The Slave
Trade Act provided, explicitly, that the bounty went to “the
use of him or her who shall sue for and prosecute.” Id. § 2, 1
Stat. at 349 (emphasis added). When Congress passed the
Neutrality Act several months later, it did not include any
language of this sort. Many other bounty statutes from this
era, unlike the Neutrality Act, also explicitly afforded private
parties a right to sue to claim bounties allegedly owed to
them. See Stevens, 529 U.S. at 777 n.6 (collecting examples).
The Neutrality Act stands out because of what it does not say.
The absence of any provision in the Neutrality Act
affording standing to private parties to pursue actions for
forfeiture on their own is unsurprising in light of the
Government’s primacy in the management of international
affairs. See United States v. Curtiss-Wright Export Corp., 299
14
U.S. 304, 320 (1936); Olivier v. Hyland, 186 F. 843, 843 (5th
Cir. 1911) (per curiam) (“The enforcement of the neutrality
laws of the United States is of necessity under the control of
the government of the United States . . . .”). As the Supreme
Court has reminded us, courts must be “particularly wary of
impinging on the discretion of the Legislative and Executive
Branches in managing foreign affairs” because of the
“potential implications for the foreign relations of the United
States.” Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004).
And as this court has previously noted in the context of a
separate provision of the Neutrality Act (albeit one without a
bounty provision), it would “be doubly difficult to find a
private damage action within the Neutrality Act, since this
would have the practical effect of eliminating prosecutorial
discretion in an area where the normal desirability of such
discretion is vastly augmented by the broad leeway
traditionally accorded the Executive in matters of foreign
affairs.” Sanchez-Espinoza v. Reagan, 770 F.2d 202, 210
(D.C. Cir. 1985) (Scalia, J.) (citation omitted); see also Smith
v. Reagan, 844 F.2d 195, 201 (4th Cir. 1988) (courts should
be wary of “tread[ing] on matters of foreign policy which
have long been recognized as the exclusive province of the
political branches,” and courts “must be especially certain of
congressional intent before inferring a private cause of action”
in the realm of foreign affairs).
In sum, there is nothing in the language or purpose of the
Neutrality Act that supports Dr. Bauer’s position in this case.
15
C. There Is No Case in Which the Supreme Court or Any
Federal Appellate Court Has Held That Private Parties
Have Standing to Pursue Forfeiture on Their Own
Under the Neutrality Act
Dr. Bauer claims that, despite the absence of any
language in the statute to support his standing to pursue a
forfeiture action, the Neutrality Act always has been
understood to endorse private causes of action by purported
informers. This, according to Dr. Bauer, confirms his standing
in this case. We can find no creditable evidence to support
this view.
Dr. Bauer has not cited a single decision issued by the
Supreme Court or any federal appellate court in which a
private party has been allowed to prosecute either a criminal
action or a forfeiture pursuant to the Neutrality Act. Indeed,
historical practice has been manifestly to the contrary.
Because “private citizen[s] lack[] a judicially cognizable
interest in the prosecution or nonprosecution of another,”
Linda R.S., 410 U.S. at 619, criminal actions under the
Neutrality Act have been pursued only by Government
prosecutors. See, e.g., United States v. Quincy, 31 U.S. 445
(1832) (Government criminal prosecution for violations of the
Neutrality Act); United States v. Reyburn, 31 U.S. 352 (1832)
(same); United States v. Trumbull, 48 F. 99 (S.D. Cal. 1891)
(same). Neutrality Act forfeitures have likewise been pursued
only by Government officials. See, e.g., The Three Friends,
166 U.S. 1 (seizure and forfeiture by the Government);
Gelston v. Hoyt, 16 U.S. 246, 320 (1818) (noting that only a
Government official has the “authority to make the seizure, or
to enforce the forfeiture”); The Laurada, 98 F. 983 (3d Cir.
1900), affirming The Laurada, 85 F. 760 (D. Del. 1898)
(action filed on behalf of the United States praying that vessel
be condemned and declared forfeited for an alleged violation
16
of the Neutrality Act); The City of Mexico, 28 F. 148 (S.D.
Fla. 1886) (decree of forfeiture issued in favor of the
Government).
As the court held in Olivier:
The enforcement of the neutrality laws of the United
States is of necessity under the control of the government
of the United States. Where a seizure is made on
complaint of an informer for violation of [the Neutrality
Act], and the United States, through its proper
representatives, intervenes, disavows, and declines to
ratify the seizure, as in the instant case, the informer can
have no such inchoate or other interest as will permit the
further prosecution of the case in his behalf.
186 F. at 843.
In an effort to overcome the overwhelming weight of
authority against him, Dr. Bauer points to dictum in a footnote
in the Supreme Court’s decision in United States ex rel.
Marcus v. Hess, 317 U.S. 537 (1943). The footnote describes
qui tam actions generally, and then states that “[s]tatutes
providing for a reward to informers which do not specifically
either authorize or forbid the informer to institute the action
are construed to authorize him to sue.” Id. at 541 n.4 (citing
Adams v. Woods, 6 U.S. (2 Cranch) 336 (1805)). This dictum
has never been applied or otherwise followed by the Supreme
Court or any federal appellate court.
It is telling that Adams v. Woods, which is the lone
citation offered by the Court in Hess to support the dictum,
includes nothing to support Dr. Bauer’s argument. Dr. Bauer
suggests that the dictum in Hess refers to the Adams Court’s
statement that when “the statute which creates the forfeiture
17
does not prescribe the mode of demanding it[,] either debt or
information would lie.” 6 U.S. (2 Cranch) at 341. We are not
convinced of this statement’s relevance. Indeed, Adams has
nothing to do with whether a private party can pursue a
forfeiture action under the Neutrality Act. Rather, Adams
confronted the question of which causes of action were
covered by a statute of limitations that applied to, inter alia,
“forfeiture.” 6 U.S. (2 Cranch) at 336–40. The Court read the
statute of limitations to apply to all causes of action normally
implied by a forfeiture statute: not only the “informations”
specifically mentioned by the statute of limitations, but also
“actions of debt” that were not mentioned. The Court’s
statement merely recognized that when a statute provides for
forfeiture, the prosecuting party can normally bring either an
information or an action of debt – two distinct causes of
action at common law.
The Court in Adams said nothing about who could bring
these actions. Indeed, that question was not contested: the
statute at issue in the case, the Slave Trade Act of 1794,
explicitly authorized a private party to sue. § 2, 1 Stat. at 349.
Neither does the Court’s statement that forfeiture implies an
action of debt compel the conclusion that private parties may
pursue forfeiture claims on their own under the Neutrality
Act. On this score, the Supreme Court has made it clear that
the United States itself can bring a civil action of debt to
recover forfeited property. Stockwell v. United States, 80 U.S.
531, 542–43 (1871).
Given Adams’s lack of support for the dictum in Hess, it
is unsurprising that courts have criticized and declined to
follow the cryptic sentence in footnote 4 in Hess. See, e.g.,
Jacklovich v. Interlake, Inc., 458 F.2d 923, 927 n.10 (7th Cir.
1972); Conn. Action Now, Inc., 457 F.2d at 84–85 & n.5; Bass
Anglers Sportsman’s Soc. of Am. v. Scholze Tannery, Inc.,
18
329 F. Supp. 339, 344–45 (E.D. Tenn. 1971) (collecting
additional cases rejecting the Hess dictum); see also Diane D.
Eames, Comment, The Refuse Act of 1899: Its Scope and Role
in Control of Water Pollution, 58 CALIF. L. REV. 1444, 1460–
61 & n.106 (1970) (“It is not clear that Hess correctly
interpreted the Adams dicta.” Id. at 1460.). The Supreme
Court itself has noted that the sentence in footnote 4 in Hess is
merely “dictum,” Stevens, 529 U.S. at 777 n.7, and the Court
has never given it effect in any case.
Dr. Bauer also points to some cases for their dicta
regarding an informer’s right to seize a vessel. Apart from the
fact that the right to seize is not at issue here, none of the
cases cited stands for the proposition that a Neutrality Act
informer can prosecute the forfeiture itself. See Olivier, 186 F.
at 843 (noting that an informer’s “seizure” can be disavowed
by the government; not recognizing any informer’s right to
execute forfeiture); The Venus, 180 F. 635, 635 (E.D. La.
1910) (“express[ing] no opinion” as to whether an informer
can institute an action of seizure); The City of Mexico, 28 F. at
148 (governmental seizure); see also Gelston, 16 U.S. at 310,
319–20 (discussing the right of an informer “to seize” a
vessel, but distinguishing between seizure and forfeiture).
We end where we started: Dr. Bauer has failed to cite a
single decision issued by the Supreme Court or any federal
appellate court in which a private party has been afforded
standing to prosecute either a criminal action or a forfeiture
pursuant to the Neutrality Act. In short, there is no good
authority to support Dr. Bauer’s standing in this case.
19
D. The History of Enforcement Actions Brought Pursuant
to Informer Statutes Does Not Support Dr. Bauer’s
Standing in This Case
The foregoing analysis does not precisely focus on
bounty or informer statutes, as such, but it nonetheless makes
it plain that Dr. Bauer has failed to meet his burden of proving
standing in this case. Because the Neutrality Act is an
informer statute, we proceed to explain why the history of
enforcement actions brought pursuant to such statutes does
not support Dr. Bauer’s standing here.
As the Supreme Court has noted, the violation of a law
such as the Neutrality Act does not injure the informer
directly; the violation injures only the Government. See
Stevens, 529 U.S. at 771–73 (identifying both “the injury to
[the Government’s] sovereignty arising from violation of its
laws . . . and [any] proprietary injury resulting from the”
crime). Therefore, it is clear that Dr. Bauer himself was not
directly, concretely, and specifically injured by the acts of the
Gaza flotilla organizers that he alleged in his complaint. A
bounty may give an informer such as Dr. Bauer a “concrete
private interest in the outcome of [the] suit,” but such an
interest is “unrelated to injury in fact [and] insufficient to give
[an informer] standing.” Id. at 772 (first alteration in original)
(citations and internal quotation marks omitted). Because Dr.
Bauer suffered no injury to a legally protected right from the
alleged violation of the law, he does not have personal
standing to bring a claim arising from the asserted violation.
There is more to it, however, because the Court in
Stevens made it clear that an informer in a qui tam action may
have standing through “the doctrine that the assignee of a
claim has standing to assert the injury in fact suffered by the
assignor.” Id. at 773. Thus, in Stevens, the Court held that the
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False Claims Act “effect[ed] a partial assignment of the
Government’s damages claim” by granting private plaintiffs
the right (subject to government control) to bring a qui tam
action against those who defrauded the government. See id.
The assignment in the False Claims Act context is “partial”
because the Government retains the right in those cases to
intervene and dismiss the claim. “Dismissal ends the
assignment.” See Swift v. United States, 318 F.3d 250, 254 n.*
(D.C. Cir. 2003). The controlling question in this case, then, is
whether the Neutrality Act is a qui tam statute comparable to
the False Claims Act and other such statutes. That is, does the
Neutrality Act include an assignment of all or a portion of the
Government’s interest in the statutory bounty sufficient to
confer standing on an informer like Dr. Bauer? We hold that it
does not.
Since the time of our Nation’s founding, Congress has
passed numerous informer statutes. As noted above, however,
Dr. Bauer has not identified any decision issued by the
Supreme Court or a federal appellate court in which a private
informer was allowed to pursue forfeiture pursuant to a statute
that did not explicitly grant or clearly imply a private cause of
action. We can find no such case. Several courts and scholars
have extensively surveyed the field and have found near-
universal agreement that a statute must clearly indicate a
private cause of action, and that language such as that in the
Neutrality Act is insufficient. See, e.g., Conn. Action Now,
Inc., 457 F.2d at 84 (“All of the past rulings (of which we are
aware) upholding a private right to sue turned on language
which stated expressly or clearly implied that the informer
could begin the proceeding without waiting for governmental
action.”); id. at 84 & n.4 (collecting cases and statutes);
Omaha & R.V.R. Co. v. Hale, 63 N.W. 849, 850–51 (Neb.
1895) (surveying examples and finding no “serious conflict”
on this point); Drew v. Hilliker, 56 Vt. 641, 645 (1884)
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(discussing typical linguistic formulations that trigger a
private cause of action); William H. Rodgers, Jr., Industrial
Water Pollution and the Refuse Act: A Second Chance for
Water Quality, 119 U. PA. L. REV. 761, 787–88 & nn.171–74
(1971) (surveying authorities).
We have found only one, one-hundred-fifty year old,
state court decision whose holding appears to support Dr.
Bauer’s position. Chi. & Alton R.R. Co. v. Howard, 38 Ill. 414
(1865). In that case, the Illinois Supreme Court interpreted a
state statute with informer language similar to the language in
the Neutrality Act, and held that it afforded an informer a
right to pursue a qui tam action for the recovery of various
statutory penalties. Courts and commentators have noted the
aberrant nature of the decision, repudiated it, and occasionally
even offered theories for how it is consistent with the general
rule. Rodgers, Industrial Water Pollution, supra, at 788 &
nn.173–74 (singling Howard out as aberrant and repudiated);
Hale, 63 N.W. at 850–51 (disagreeing with Howard); Conn.
Action Now, Inc., 457 F.2d at 85 n.6 (characterizing Howard’s
reasoning as consistent with the general rule). In any event,
the decision is neither controlling nor convincing, so it offers
no solace to Dr. Bauer here.
CONCLUSION
For the reasons discussed above, we affirm the judgment
of the District Court dismissing the complaint. We do so,
however, on the ground that Dr. Bauer lacks standing to
pursue his action under the Neutrality Act.
So ordered.