Sai v. Trump

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
DAVID KEANU SAI, Ph.D., pro se )
)
)
Plaintiff, )
)
v. ) Civil Action No. 18-cv-1500 (TSC)
)
DONALD J. TRUMP, et al. )
)
Defendants. )
)

MEMORANDUM OPINION

Before the court is David Keanu Sai’s pro se Petition against Donald J. Trump, President

of the United States of America; Philip S. Davidson, Commander of the Indo-Pacific Command

of the United States Navy; and David Ige, Governor of the State of Hawaii. Sai describes

himself as the “Chairman of the acting Council of Regency” representing the Hawaiian Kingdom

as a sovereign and body politic.” Petition ¶ 16. He alleges that the United States committed

War Crimes, 18 U.S.C. § 2441, as well as acted in derogation of the Hague Convention, the

Geneva Convention, and “international humanitarian laws,” when it “invaded Hawaii” in 1893

and subsequently made the island a part of the U.S. See, e.g., Petition ¶¶ 5, 8, 79-92, 169-205.

Citing the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, and the All Writs Act, 28

U.S.C. § 1651(a), Sai asks this court to enjoin the President from continuing any actions with

respect to Hawaii that allegedly violate these laws.

Sai also names roughly thirty-four heads of state, leaders of the United Nations, and the

Chairperson of the Administrative Council of the Permanent Court of Arbitration as “Nominal

Respondents. . . not ‘because any specific relief is demanded as against [them], but because

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[their] connection with the subject-matter is such that the [Petitioner’s] actions would be

defective . . . if [they] were not joined.’” Petition ¶ 14 (internal quotations and alterations in the

original). Sai appears to contend that these foreign officials, entities and bodies failed to remain

neutral with respect to U.S. and Hawaii relations, thereby becoming parties to the “war” between

the United States and Hawaii and, consequently, violating both the Hague and Geneva

Conventions. See id. ¶¶ 16, 18, 109. 1

For the reasons set forth below, the court will dismiss Sai’s Petition sua sponte.

I. ANALYSIS

A. The All Writs Act

The All Writs Act, in relevant part, states that “all courts established by Act of Congress

may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable

to the usages and principles of law.” 28 U.S.C. § 1651. However, a court must first determine if

it has jurisdiction to issue a writ of mandamus. See In re Asemani, 455 F.3d 296, 299 (D.C. Cir.

2006) (“Before considering whether mandamus relief is appropriate, . . . we must be certain of

our jurisdiction.”). “In other words, there must be an ‘independent’ statute that grants us

jurisdiction before mandamus can be said to ‘aid’ it.” In re Al-Nashiri, 791 F.3d 71, 76 (D.C.

Cir. 2015). As discussed below, Sai has not cited to a statute that grants this court jurisdiction to

hear his claims. Accordingly, he cannot proceed under the All Writs Act.

B. 18 U.S.C. § 2441

Sai seeks relief against Defendants pursuant to 18 U.S.C. § 2441, which criminalizes

various war crimes. But “[c]ourts are ‘quite reluctant to infer a private right of action from a

1
Because the court is dispensing with Sai’s claims on other grounds, the court need not address
whether there is legal authority to bring claims against the international leaders.

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criminal prohibition alone.’” Peavey v. Holder, 657 F. Supp. 2d 180, 190–91 (D.D.C. 2009),

aff’d, No. 09-5389, 2010 WL 3155823 (D.C. Cir. Aug. 9, 2010) (alterations omitted) (citing

Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 190 (1994)).

Accordingly, “unless a specific statute provides for a private right of action, courts have found

that violations of Title 18 are properly brought by the United States government through criminal

proceedings and not by individuals in a civil action.” Hallal v. Mardel, No.

116CV01432DADSAB, 2016 WL 6494411, at *3 (E.D. Cal. Nov. 2, 2016) (citing Abou–

Hussein v. Gates, 657 F. Supp. 2d 77, 79 (D.D.C. 2009); Prunte v. Universal Music Grp., 484 F.

Supp. 2d 32, 42 (D.D.C. 2007); Smith v. Gerber, 64 F. Supp. 2d 784, 787 (N.D. Ill. 1999)).

Moreover, at least one other court has held that Section 2441 does not create a private

cause of action, Jawad v. Gates, 113 F. Supp. 3d 251, 259 (D.D.C. 2015), and Sai has not cited

to any provision of Title 18 which would authorize such an action under Section 2441.

Accordingly, the court will dismiss Sai’s Section 2441 claim.

C. Hague Convention and Geneva Convention

“[T]he Geneva Convention does not [generally] create a right of action for private

individuals to enforce its terms.” Nattah v. Bush, 770 F. Supp. 2d 193, 204 (D.D.C 2011) (citing

Tel–Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C. Cir. 1984). While the Supreme

Court in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) held that the Geneva Convention can provide

prisoners of war with a claim against the government in a petition for habeas corpus, Nattah v.

Bush, 541 F. Supp. 2d 223, 233 (D.D.C. 2008), rev’d in part on other grounds 605 F.3d 1052

(D.C. Cir. 2010), that ruling is inapplicable to Sai’s claims here.

Likewise, the Hague Convention does not afford relief for private individuals. Nattah,

770 F. Supp. 2d at 206 (“The Hague Conventions cannot be construed to afford individuals the

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right to judicial enforcement as they have never been regarded as law private parties could

enforce.”) (alterations and internal quotation marks omitted) (citing Tel–Oren, 726 F.2d at 810).

Therefore, Sai may not seek relief under the Hague or the Geneva Conventions.

D. Political Question Doctrine

The political question doctrine “excludes from judicial review those controversies which

revolve around policy choices and value determinations constitutionally committed for resolution

to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am.

Cetacean Soc’y, 478 U.S. 221, 230 (1986). “The principle that the courts lack jurisdiction over

political questions that are by their nature ‘committed to the political branches to the exclusion of

the judiciary’ is as old as the fundamental principle of judicial review.” Schneider v. Kissinger,

412 F.3d 190, 193 (D.C. Cir. 2005) (citation omitted).

Relying on this principle, another judge on this court dismissed a similar lawsuit Sai filed

against then Secretary of State, Hillary Clinton and other US officials. Sai v. Clinton, 778 F.

Supp. 2d 1, 6 (D.D.C. 2011) (hereinafter “Sai I”). Although Sai relied on different legal theories

in that lawsuit, his purpose there was the same as his purpose here: to challenge the United

States’ recognition of the “Republic of Hawaii as a sovereign entity” and its “exercise of

authority over Hawaii following annexation.” Id. at 6–7. Given this purpose, the court found

that it did not have jurisdiction to review the case because the Constitution commits foreign

relations authority to the executive and legislative branches. Id. at 7 (citing Oetjen v. Cent.

Leather Co., 246 U.S. 297, 302 (1918)); see U.S. Const., Art. IV, § 3, cl. 2 (“The Congress shall

have Power to dispose of and make all needful Rules and Regulations respecting the Territory or

other Property belonging to the United States. . . .”). The Court of Appeals affirmed, finding that

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“[t]he merits of the parties’ positions [were] so clear as to warrant summary action.” Sai v.

Obama, No. 11-5142, 2011 WL 4917030 (D.C. Cir. Sept. 26, 2011).

Sai attempts to preemptively address the political question obstacle by asserting in his

Petition that numerous courts, including the court in Sai I, mistakenly deferred to Congress rather

than the Executive in determining that issues of sovereignty prevent district court review. Id. ¶¶

237-239. He argues that the Executive branch recognized Hawaii’s sovereignty in 1893 when

President Cleveland delivered a message to Congress denouncing the role of American forces in

the Hawaiian Islands and calling for the restoration of the Hawaiian monarchy. Id. ¶ 237; see

Sai I, 778 F. Supp. 2d at 4 (citing House Ex. Doc. 47, 53d Cong., 2d Sess. (Ser. No. 3224), pp.

3–16 (1893)). Sai argues that given President Cleveland’s actions, the current President, as the

“successor,” has also acknowledged Hawaii’s independence and sovereignty.

This argument fails for several reasons. First, the dismissal in Sai I was not based solely

on deferral to the legislative branch. Instead, the court repeatedly explained that determinations

of sovereignty are not judicial functions, but instead rest with the executive and the legislative

branches of government. Sai I, 778 F. Supp. 2d at 6-7.

Second, Sai’s argument fails to acknowledge the realities of U.S. history. After President

Cleveland’s denouncement, U.S. officials later condoned the actions of the U.S. forces in the

islands, the Hawaiian monarchy was dethroned, and President McKinley signed a Joint

Resolution to annex the Hawaiian Islands as a territory of the United States in 1898. Sai I, 778

F. Supp. 2d at 4. Hawaii became a state in 1959 and remains so today. Id. Thus, Sai’s argument

that the Executive branch of government recognizes Hawaii as a sovereign state is baseless.

Third, Sai unsuccessfully raised a similar argument in his Sai I appellate brief. See Sai v.

Obama, 11-5142, 8/8/2011, Pls. Resp. pp. 8-9 (“[T]he political question doctrine cannot be

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invoked whereby the Executive already afforded recognition of a foreign state and its

government . . . Once the executive afforded recognition of Hawaii’s sovereignty, the

recognizing state, which includes this Court, the Congress and all successor Executives, is

estopped from contesting its validity at any future time.”). He cannot relitigate this issue here.

Finally, Sai argues that Sai I was incorrectly decided because Congress does not have the

authority to “annex territory of a foreign state. . . by domestic legislation alone.” Petition ¶ 241.

Sai raised this same argument in his appellate brief, to no avail. See Sai v. Obama, 11-5142,

8/8/2011, Pls. Resp. p. 11 (“Therefore, the District Court was able to ‘determine that the

annexation of Hawaii by the United States was unlawful and void,’ because not only is

Congressional legislation limited and confined to territory of the United States, it is in direct

violation of . . . a [Hawaiian] treaty, that mandates the U.S. Executive to administer and execute

Hawaiian Kingdom law until the Hawaiian government is restored . . .”). This is not the

appropriate forum in which to challenge the Court of Appeals’ decision against him, and this

court therefore lacks jurisdiction to hear Sai’s claims.

E. APA

Sai’s attempt to proceed under the APA also fails. The APA does not provide relief

against the Executive or governments of the territories or possessions of the United States. See 5

Franklin v. Massachusetts, 505 U.S. 788, 800–1 (1992) (citing 5 U.S.C. §§ 701(b)(1), 551(1)). 2

2
“The APA defines an “agency” as “each authority of the Government of the United States,
whether or not it is within or subject to review by another agency, but does not include--
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of the United States;
(D) the government of the District of Columbia;
(E) agencies composed of representatives of the parties or of representatives of
organizations of the parties to the disputes determined by them;
(F) courts martial and military commissions;
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Moreover, with respect to federal agencies, “[t]he APA specifically provides that its judicial

review provision does not affect ‘the power or duty of the court to dismiss any action or deny

relief on any. . . appropriate legal or equitable ground.’” Sanchez-Espinoza v. Reagan, 770 F.2d

202, 208 (D.C. Cir. 1985) (citing 5 U.S.C. § 702) (alterations in the original). In light of this

court’s finding that Sai’s Petition poses a political question, he may not bring a claim under the

APA.

II. CONCLUSION

Because Sai’s claims involve a political question, this court is without jurisdiction to

review his claims and the court will therefore DISMISS the Petition.

Date: September 11, 2018

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

(G) military authority exercised in the field in time of war or in occupied territory; . .
..

5 U.S.C. § 7701(b)(1)
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