Julius Goldstein and Peter Gingold, victims of the Nazi Holocaust during World War II, sue the United States for its failure, in 1944 and thereafter, to take affirmative actions to prevent the deaths of family members and other Jews and for the alleged 1945 theft of the assets of Hungarian Jews by United States troops. Pending before the Court is the government's Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1). The government argues that the United States is immune from this suit and that there is no basis to find any waiver of its sovereign immunity. The United States further argues that this case presents non-justiciable political questions, and should be dismissed for that reason as well. The Court finds that the claims that Messrs. Goldstein and Gingold assert are barred by the doctrine of sovereign immunity and, therefore, the Court does not address the political question argument posited by the government. Because transfer to another federal court will not remedy this jurisdictional defect, the government's Motion to Dismiss will be granted.
The complaint states that Mr. Goldstein is a"former forced laborer and Auschwitz survivor" and that Mr. Gingold's brother and sister were killed in Auschwitz. Compl. at 1. Acting pro se, these gentlemen seek damages under the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350, asserting that the United States failed to"undertake a humanitarian Auschwitz intervention" during World War II. Messrs. Goldstein and Gingold allege that the common law, Executive Order No. 9417, the U.S. Constitution, the Law of Nations, and the Law of Nuremberg imposed a duty on the United States to intervene at Auschwitz. They argue that intervention by the United States in April 1944 would have saved the lives of 400,000 European Jews. The complaint also alleges that"in early 1945 the US Military stole a large part of the property of the Hungarian Jews" from a "Goldtrain." Compl. at 2. Messrs. Goldstein and Gingold filed this action for themselves and on behalf of a putative class of Auschwitz survivors, robbed victims, and their heirs. As recompense for mental distress, physical harm, and financial suffering, they seek the establishment of a $40 billion compensation fund.
When deciding a motion to dismiss for lack of subject matter jurisdiction, the Court must liberally construe all the factual allegations in the complaint in the favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Peters v. Nat'l R.R. Passenger Corp., 966 F.2d 1483 (D.C. Cir. 1992). However, the Court need not accept as true legal conclusions couched as factual allegations. See Papasan v. Allain, 478 U.S. 265, 286 (1986). "[A] federal court should not dismiss a complaint either for lack of subject matter jurisdiction or for failure to state a claim 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Caribbean Broad Sys. Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C. Cir. 1998) (citations omitted). The Plaintiffs have the burden of proving subject matter jurisdiction over their claims. Id. Because the Plaintiffs are proceeding pro se, the Court will liberally construe the complaint and pleadings. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
Messrs. Goldstein and Gingold have raised two distinct claims and seek the establishment of a common compensation fund as a remedy for both. The Court will first analyze the claims based on the failure of the United States to intervene at Auschwitz and then turn to the "Goldtrain" claims to determine whether this Court has jurisdiction over either set of claims.
I. Sovereign Immunity and the Failure to Intervene
The United States argues that neither this Court, nor any other federal court, has jurisdiction over the claims that the United States failed to intervene at Auschwitz ("failure-to-intervene" claims) because the government has not waived its sovereign immunity. It is black-letter law that the United States is immune from suit except to the extent that Congress has specifically waived its sovereign immunity. See United States v. Mitchell, 445 U.S. 535, 538 (1980). Any waiver of immunity must be unequivocally expressed and will not be implied. Id. Federal courts are courts of limited jurisdiction and may exercise jurisdiction only in the manner authorized by Article III of the Constitution and by the laws of Congress enacted pursuant to the Constitution. See, e.g., Rasul v. Bush, 215 F. Supp. 2d 55, 61 (D.D.C. 2002). Therefore, absent a congressional waiver of sovereign immunity, federal courts do not have jurisdiction to entertain a suit against the United States. Contrary to the repeated assertions of Messrs. Goldstein and Gingold, absent a congressional waiver, this immunity applies even in Holocaust cases. With this background in mind, the Court will determine whether Congress has ever clearly waived the sovereign immunity of the United States with respect to the failure-to-intervene claims raised by Messrs. Goldstein and Gingold.
A. Alien Tort Claims Act ("ATCA")
The complaint predicates jurisdiction on the ATCA. Compl. ¶ 4. This statute provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." However, the ATCA is jurisdictional only, allowing such suits in federal and not state courts, and "itself does not provide a waiver of sovereign immunity." Industria Panificadora, S.A. v. United States, 957 F.2d 886, 887 (D.C. Cir. 1992); see also Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985); Rasul, 215 F. Supp. 2d at 64 n.11. To proceed under the ATCA, the Plaintiffs must point to an independent basis for a waiver of sovereign immunity. Because Messrs. Goldstein and Gingold are proceeding pro se, the Court will examine other statutes that the Plaintiffs do not cite to discern whether Congress has waived sovereign immunity for the failure-to-intervene claims.
B. Federal Tort Claims Act ("FTCA")
The FTCA, 28 U.S.C. § 2671, et seq., contains a limited waiver of sovereign immunity. See 28 U.S.C. § 2674 ("The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages."). Coupled with this waiver are procedural requirements, see 28 U.S.C. §§ 2401, 2675, and a number of exceptions, two of which are particularly relevant to this analysis: (1) the discretionary function exception, see 28 U.S.C. § 2680(a), and (2) the combatant activities exception, see 28 U.S.C. § 2680(j). "If a ...