United States District Court, S.D. New York
OPINION AND ORDER
L. CARTER, JR., UNITED STATES DISTRICT JUDGE.
Robert Steven Manning, a dual U.S.-Israeli citizen currently
incarcerated in Arizona, brings an action seeking to
challenge the decision of the United States Department of
Justice ("DO J") to deny him transfer to Israel to
serve the remainder of his life sentence. Manning, under the
Declaratory Judgment Act or the All Writs Act, or in the
alternative for writ of mandamus or for equitable estoppel,
effectively seeks to compel his transfer to Israel.
Defendants, various DOJ officials, seek to dismiss the action
for lack of subject matter jurisdiction under Fed.R.Civ.P.
12(b)(1), for failure to state a claim under Fed.R.Civ.P.
12(b)(6), and for improper venue under Fed.R.Civ.P. 12(b)(4).
Because the Court finds that Manning lacks standing, as
detailed further below, the Court GRANTS Defendants'
motion to dismiss.
1994, Manning was sentenced to life imprisonment after a
conviction for murder by mail bomb in California. Compl.
¶ 13. Manning is currently serving a life sentence at a
Bureau of Prisons facility in Phoenix. Id. ¶
26. Since his imprisonment, the Federal Bureau of
Investigations ("FBI") has sought information
concerning a separate bombing that killed an individual named
Alex Odeh, but Manning has consistently responded that he has
no information concerning Odeh's death. Id.
a dual U.S.-Israeli citizen, has "made numerous
requests" for a transfer to serve the remainder of his
sentence in Israel. Id. ¶ 22. The Israeli
Government "at all times made it unequivocally clear
that Israel would accept the transfer." Id.
Despite written support from an Israeli government official,
his previous requests have been denied. Id.
September 1, 2015, the DO J approved Manning's request
for transfer to Israel to serve the rest of his sentence.
Id. ¶¶ 26-27 & Ex. 1. However, on
October 16, 2015, the DOJ informed Manning that it was
withdrawing the approval of the transfer until the DOJ
reviewed additional information in order to make a
determination. Id. ¶¶ 28-29 & Ex. 2.
Since that period of time, the DOJ has neither made a
determination on the transfer request nor updated Manning on
the status of his request. Id. ¶ 30.
deciding a motion for dismiss, whether for lack of subject
matter jurisdiction (under Rule 12(b)(1)) or for failure to
state a claim (under Rule 12(b)(6)), the court accepts the
factual allegations in the complaint as true. See, e.g.,
Tsirelman v. Dairies, 19 F.Supp.3d 438, 446-47 (E.D.N.Y.
2014). The standard of review for 12(b)(1) motions is
"substantively identical" to Rule 12(b)(6) motions,
but the key difference is that the movant bears the burden of
proof on a 12(b)(6) motion but the plaintiff invoking the
court's jurisdiction bears the burden on a 12(b)(1)
motion. See Lerner v. Fleet Bank, N.A., 318 F.3d
113, 128 (2d Cir. 2003); Keepers, Inc. v. City of
Milford, 807 F.3d 24, 39 (2d Cir. 2015) ("The party
invoking federal jurisdiction bears the burden of
establishing prudential and constitutional
standing..."). Dismissal for lack of subject matter
jurisdiction is proper when the district court "lacks
the statutory or constitutional power to adjudicate" a
case. Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir.
Law and Treaty
transfer of prisoners held in the United States to serve the
remainder of their sentences in other countries is governed
by the Transfer of Offenders to or from Foreign Countries Act
(the "Act"), 18 U.S.C. § 4100 et seq.
Pursuant to the Act, the United States has the authority to
transfer a prisoner to a foreign country "when a treaty
providing for such a transfer is in force, and shall only be
applicable to transfers of offenders to and from a foreign
country pursuant to such a treaty." Id. §
4100(a). Only the Attorney General or a designated DOJ
official is authorized to approve or disapprove individual
transfer requests. See Id. § 4102(1), (3),
(11). The United States and Israel are parties to a covered
treaty, the Convention on the Transfer of Sentenced Persons
(the "Convention"), T.I.A.S. No. 10, 824, 22 I.L.M.
530, 1983 WL 179013(1983).
Convention provides that an individual incarcerated in one
country may "express his interest" in a potential
transfer either to the "sentencing State"
(i.e., the country in which the sentence was
imposed) or the "administering State"
(i.e., the country to which the transfer is sought).
Id. arts. 1(c)-(d), 2(2). The actual transfer
decision, however, requires the approval of both the
sentencing and administering States, in addition to the
prisoner. Id. art. 3(1)(d), (f). A transfer may be
requested by the prisoner, the sentencing State, or the
administering State. Id. art. 2(2)-(3). After a
country receiving a request for transfer is notified of a
request for transfer, the Convention requires that this
country promptly inform the other State (usually the
administering State) of its decision. See Id. art.
5(4). The Convention does not provide any guidelines or
factors that either country must consider in determining
whether a requested transfer is appropriate.
doctrine of standing asks whether a litigant is entitled to
have a federal court resolve his grievance. This inquiry
involves both constitutional limitations on federal-court
jurisdiction and prudential limits on its exercise."
United States v. Suarez,791 F.3d 363, 366 (2d Cir.
2015) (quoting Kowalski v. Tesmer,543 U.S. 125, 128
(2004)) (internal quotation marks omitted). Plaintiff has the
burden of showing standing. Rajamin v. Deutsche Bank
Nat'l Trust Co.,757 F.3d 79, 84 (2d Cir. 2014).
Article III or constitutional standing requires, inter
alia, that plaintiff suffer "an injury in fact. . .
which is (a) concrete and particularized . . . and (b) actual
or imminent, not conjectural or hypothetical."
Id. at 85 (quoting Lujan v. Defenders of
Wildlife,504 U.S. 555, 560 (1992)). In contrast to
constitutional standing, prudential ...