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January 28, 1997

FREDERICO V. PENA, et al., Defendants.

The opinion of the court was delivered by: SPORKIN

 Plaintiffs Seariver Maritime Financial Holdings, Inc., Seariver International, Inc. and Seariver Maritime, Inc. challenge on constitutional grounds a statute that prevents them from operating the supertanker S/R Mediterranean, formerly the Exxon Valdez, in Alaska's Prince William Sound. This matter is now before the Court on the motion of the Defendants, Secretary of Transportation, U.S. Department of Transportation, Attorney General and U.S. Department of Justice, to transfer this case to the United States District Court for the District of Alaska or, in the alternative, to dismiss, and Plaintiffs' opposition thereto.

 Factual Background

 On March 24, 1989, the Exxon Valdez ran aground and spilled approximately 11,000,000 gallons of oil into Prince William Sound. On August 18, 1990, President Bush signed into law the Oil Pollution Act of 1990 ("CPA"). Section 5007 of the OPA reads:

Notwithstanding any other law, tank vessels that have spilled more than 1,000,000 gallons of oil into the marine environment after March 22, 1989, are prohibited from operating on the navigable waters of Prince William Sound, Alaska.

 33 U.S.C. § 2737. In September 1991, Exxon entered into a consent decree with the United States and the State of Alaska which effectively settled all pending civil and criminal matters arising out of the spill.

The [U.S. District Court for the District of Alaska] shall retain jurisdiction of this matter for the purpose of entering such further orders, direction, or relief as may be appropriate for the construction, implementation, or enforcement of this Agreement.

 Consent Decree at 29.

 Plaintiff Seariver Maritime, Inc. was formerly Exxon Shipping, and is thus a signatory to the consent decree. As a result of the OPA, Seariver has not reentered Prince William Sound and has been operating the Exxon Valdez, now renamed the S/R Mediterranean, in the Mediterranean Sea. Seariver now wishes to return the ship under its new name to the Prince William Sound where it would join an identical sister ship in transporting oil from Alaska to the 48 contiguous states. Under the stated terms of Section 5007 of the OPA, the S/R Mediterranean can no longer operate in Prince William Sound. Plaintiffs challenge Section 5007, claiming it (1) violates the due process and double jeopardy clauses of the Fifth Amendment; (2) constitutes a Bill of Attainder in violation of Article I, Section 9 of the Constitution; and (3) operates as an ex post facto law in violation of Article I, Section 9.

 Plaintiffs first brought this action in the Southern District of Texas. The Texas court ruled that venue was not proper in Texas, but would be proper in either the District of Columbia or Alaska. The Texas court initially dismissed the matter and Plaintiffs refiled in the District of Columbia. The Texas court then reconsidered, choosing instead to transfer the case to this Court. In transferring the case, the Court noted that it was not taking a position that the District of Columbia was a better forum than Alaska -- just that it is a proper venue under 28 U.S.C. § 1391(e).

 Defendants move for transfer to Alaska pursuant to 28 U.S.C. § 1406(a) which states that a "district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." Alternatively, they move for transfer under 28 U.S.C. § 1404(a) which provides "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Plaintiffs claim that the Texas court's ruling that the District of Columbia is proper venue precludes any finding under § 1406(a) by this Court that it is the "wrong" district. They also assert that Defendants have not met their burden in showing that a transfer would be in the "interest of justice," pursuant to § 1404(a).

 Plaintiffs present a serious claim -- essentially that Congress enacted a statute with the specific and only intent of punishing Exxon for the Exxon Valdez disaster. Defendants claim that in light of the Consent Decree, Plaintiffs have waived their right to pursue any additional claims arising out of the Exxon Valdez disaster whether it be a constitutional claim or otherwise. The Court takes very serious a claim that a party may not make non-frivolous invocations of their constitutional rights. The Court, however, does recognize that in certain instances, a party, for whatever reason, may choose to make an informed waiver. See D.H. Overmyer v. Frick Company, 405 U.S. 174, 185, 31 L. Ed. 2d 124, 92 S. Ct. 775 (recognizing that party may waive Constitutional right to due process).

 Under 28 U.S.C. § 1406(a), this Court must transfer or dismiss this case if it determines it is the "wrong" district to hear the case. Under Defendants' theory, the District of Alaska retained jurisdiction to enforce and interpret the consent decree and therefore must determine whether Plaintiffs' constitutional claims are precluded by the decree. Since, however, the U.S. District Court for the Southern District of Texas has already ruled that the District of Columbia is ...

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