Academic journal article Suffolk Transnational Law Review

Informer Lacks Standing to Bring Complaint under S. 962 of the Neutrality Act

Academic journal article Suffolk Transnational Law Review

Informer Lacks Standing to Bring Complaint under S. 962 of the Neutrality Act

Article excerpt

FEDERAL CIVIL PROCEDURE--Informer Lacks Standing to Bring Complaint Under [section] 962 of the Neutrality Act--Bauer v. Marmara, 774 F.3d 1026 (D.C. Cir. 2014).

Under [section] 962 of the Neutrality Act of 1794 (codified at 18 U.S.C. [section] 962), an informer, who notifies the federal government of another person's efforts from within the United States to outfit a vessel for the sole purpose of attacking a friendly nation, is entitled to half the value of the vessel and its associated goods once they have been forfeited. (1) A private person may obtain standing under federal informer statutes through Article III of the United States Constitution or, if the statute is a qui tam statute, from the language of the statute itself. (2) In Bauer v. Marmara, (3) the United States Court of Appeals for the District of Columbia Circuit considered whether a [section] 962 informer can meet the three requirements for Article III standing or if he has standing under [section] 962 as a qui tam statute. (4) The Court ultimately dismissed the complaint for lack of standing because the federal government declined to pursue the action, and because the language of [section] 962 did not provide a private individual with standing. (5)

On June 13, 2011, Dr. Alan Bauer, an American citizen, wrote to the Attorney General regarding what he believed to be a violation of [section] 962 of the Neutrality Act. (6) He alleged that anti-Israeli organizations in the United States provided financial support to the Hamas organization, who in turn used the funds to outfit vessels in order to attack Israel. (7) Less than a month later, on July 11, 2011, Dr. Bauer filed a complaint in district court under [section] 962 based on these allegations. (8) According to Dr. Bauer, [section] 962 required the district court to order forfeiture of these vessels. (9) He also claimed that [section] 962 gave him, as an informer, the right to share half of the profits from the forfeited vessels with the federal government. (10)

The district court questioned whether Dr. Bauer had standing to bring suit under [section] 962. (11) Dr. Bauer was ordered to show cause for why the court should not dismiss his complaint due to a lack of standing and the court requested a statement of interest on standing from the Department of Justice. (12) The district court held that Dr. Bauer failed to state a claim because a private party cannot bring suit under [section] 962 and dismissed his complaint. (13) On appeal, the United States Court of Appeals for the District Court of Columbia affirmed the dismissal but on the grounds that Dr. Bauer lacked standing. (14)

The purpose of the requirement of Article III standing is to ensure that plaintiffs only bring real controversies before federal courts. (15) Federal courts have consistently held that a plaintiff must satisfy three requirements to have Article III standing: injury in fact, causation, and redressability. (16) The first requirement states that an injury is actual and concrete if it is not "hypothetical" or merely anticipated. (17) Further, causation cannot be established if a third party is the source of the conduct: in that situation, the connection between the injury and the conduct is insufficient because it is not "fairly traceable to the defendant's challenged conduct." (18) Finally, if a decision in favor of the plaintiff would not solve the alleged injury, that injury fails to meet the redressability requirement. (19)

When a private person's interest is insufficient to meet the requirements for Article III standing, he may still have standing through the statute under which he brought the action if it is a qui tam statute. (20) A qui tam statute is one that, unlike [section] 962, explicitly authorizes a private person to bring suit under it. (21) In a qui tam action, the private person shares in any recovered penalty. (22) United States ex rel. Marcus v. Hess, (23) an action that the federal government and a private citizen brought under the False Claims Act (FCA), is the only federal appellate case to imply that statutes including awards to informers also provide informers with standing. …

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