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GREENBERG v. BUSH

July 5, 2001

RABBI EPHRAIM GREENBERG AND MARK J. SIEDENBERG, BOTH INDIVIDUALLY AND AS CLASS REPRESENTATIVES, PLAINTIFFS,
V.
GEORGE W. BUSH, INDIVIDUALLY AND AS PRESIDENT OF THE UNITED STATES, RICHARD B. CHENEY, INDIVIDUALLY AND AS VICE-PRESIDENT OF THE UNITED STATES, COLIN L. POWELL, INDIVIDUALLY AND AS SECRETARY OF STATE OF THE UNITED STATES, AND THE UNITED STATES DEPARTMENT OF STATE, DEFENDANTS.



The opinion of the court was delivered by: Garaufis, District Judge.

  MEMORANDUM & ORDER

Now before this court is Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiffs allege that the Executive Branch of the U.S. Government failed to abide by House Joint Resolution 322 of the 67th Congress of the United States ("HJR 322"), and seek relief pursuant to the Declaratory Judgment Act and the Mandamus Act. Plaintiffs seek a temporary restraining order, preliminary and permanent injunctions and declaratory relief. Defendants argue for dismissal of the complaint on the following grounds: (1) Plaintiffs' claim presents a nonjusticiable political question; (2) HJR 322 did not create a private right of action; and (3) Plaintiffs lack standing under Article III of the Constitution to bring this action. For the reasons set forth below, Defendants' motion is granted.

I. Factual Background and Procedural History

HJR 322, adopted in 1922, states in its entirety as follows:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the United States of America favors the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of Christian and all other non-Jewish communities in Palestine, and that the holy places and religious buildings and sites in Palestine shall be adequately protected. H.R.J. Res. 322, 67th Cong., 2d Sess., Ch. 372 (1922).

II. Discussion

HJR 322 declares a general policy supporting the creation of a homeland for the Jewish people. The measure does not give rise to any judicially enforceable rights. Although the unavailability of a private right of action under HJR 322 is alone sufficient to grant Defendants' motion to dismiss, further bases for dismissal are discussed below.

A. Private Right of Action

Congress did not create a private right of action under HJR 322. Traditionally courts look first to the face of a legislative enactment to determine whether or not a private right of action exists. On its face, HJR 322 includes no language indicating that any party, public or private, may bring suit thereunder. Absent such explicit language, courts may nevertheless infer a private right of action if clearly intended by Congress. See Cannon v. Univ. of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (acknowledging that courts may infer private rights of action where appropriate).

In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court established a four-factor analysis for determining whether or not Congress intended to make available a private right of action. Those factors are: (1) whether the plaintiff is a member of the class for whose benefit the statute was enacted; (2) whether there is any indication of legislative intent, explicit or implicit, to create or deny such a remedy; (3) whether the private right of action would be consistent with or frustrate the purposes of the legislative scheme; and (4) whether the cause of action is traditionally relegated to state law in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law. See Cort, 422 U.S. at 78, 95 S.Ct. 2080. In private right of action cases decided after Cort v. Ash, the Supreme Court has stressed the centrality of legislative intent. The first, third and fourth Cort factors are thus viewed as mere proxies for the second. See, e.g., Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988); Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); McClellan v. Cablevision of Conn., Inc., 149 F.3d 161, 164 (2d Cir. 1998); DiLaura v. Power Auth. of N.Y., 982 F.2d 73, 77 (2d Cir. 1992).

The legislative history of HJR 322 gives no indication of any intent on the part of Congress to provide a private right of action. The report issued by the Committee on Foreign Affairs in connection with HJR 322 makes clear that the purpose of the resolution was to articulate a general policy favoring the creation of a Jewish state.*fn1 "This report expresses our moral interest and our favorable attitude toward the establishment in Palestine of a national home for the Jewish people. . . . The realization of this hope should be given the moral encouragement of the American people speaking through their Representatives in Congress." H.R.Rep. No. 1038, at 1-3 (1922) (emphasis added). Nothing more is even hinted at in the Committee Report, which declares that HJR 322 "commits us to no foreign obligation or entanglement." Id. at 1. This unambiguous curtailment of the scope of HJR 322 is conclusive: "[u]nless congressional intent is clearly stated or can reasonably be inferred, `the essential predicate for implication of a private remedy simply does not exist.'" Wedlake v. Power Azuth, of the State of N.Y., 982 F.2d 73, 77 (2d Cir. 1992) (emphasis added) (citing Karahalios v. Nat. Fed'n of Fed. Employees, Local 1263, 489 U.S. 527, 533, 109 S.Ct. 1282, 103 L.Ed.2d 539 (1989)). Because Congress' intent is unambiguous, this court need not consider the three remaining Cort factors. See Merrill Lynch, Fenner & Smith, Inc. v. Czrran, 456 U.S. 353, 388, 102 S.Ct. 1825, 72 L.Ed.2d 182 (1982) (quoting Cal. v. Sierra Club, 451 U.S. 287, 302, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981)). In an excess of caution, however, I touch briefly on each in the following paragraphs.

The first Cort factor asks whether Plainitffs are members of the class for whose benefit the statute was passed. A close reading of HJR 322 demonstrates that it was not passed for the benefit of any specific class of persons. Rather, its moral encouragement was directed at a certain ideal, namely, the creation of a Jewish state. Whether such a goal could reasonably be said to establish and encompass a distinct class of intended beneficiaries is doubtful, not least of all because when Congress passed HJR 322, the vision of an independent Jewish homeland was widely shared. See H.R.Rep. No. 1038, at 1-3. But that is an historical, rather than a judicial, inquiry. The adjudication of this case cannot, in any event, be said to turn on its outcome, since Congress gave no indication that HJR 322 was intended to protect anyone.

The third Cort factor, whether a private right of action would be consistent with the legislative scheme, further demonstrates the futility of trying to infer a private right of action here. HJR 322 does not set forth a legislative scheme; it is a statement of policy, and nothing more. There is ...


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