Al-Zahrani v. Donald Rumsfeld ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
Talal AL-ZAHRANI, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 09-0028 (ESH)
)
Donald RUMSFELD, et al. )
)
Defendants. )
__________________________________________)
MEMORANDUM OPINION
Plaintiffs Talal Al-Zahrani (“Al-Zahrani, Sr.”) and Ali Abdullah Ahmed Al-Salami (“Al-
Salami, Sr.”), in their individual capacities and as the representatives of the estates of their sons,
Yasser Al-Zahrani (“Al-Zahrani”) and Salah Ali Abdullah Ahmed Al-Salami (“Al-Salami”),
have sued the United States and a host of government officials under the Alien Tort Claims Act
(“ATCA” or “ATS”), 28 U.S.C. § 1350 (2006); the Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 2671-2680; and the Fifth and Eighth Amendments to the United States Constitution.
Al-Salami and Al-Zahrani were detainees at the United States Naval Base in Guantanamo Bay,
Cuba from 2002 until their deaths on June 10, 2006. Currently before the Court are the
individual defendants’ motion to dismiss plaintiffs’ constitutional claims, the government’s
motion for substitution for plaintiffs’ ATCA claims, and the government’s motion to dismiss
plaintiffs’ claims under the ATCA and FTCA. For the reasons set forth herein, the Court will
grant defendants’ motions.
FACTUAL BACKGROUND
Plaintiffs allege the following in their amended complaint. Yasser Al-Zahrani, Jr., a
citizen of Saudi Arabia, and Salah Ali Abdullah Ahmed Al-Salami, Jr., a citizen of Yemen, were
among nearly 800 individuals deemed to be “enemy combatants” by the United States
government and transferred to Guantanamo beginning in January 2002. (Am. Compl. ¶¶ 11, 13,
43-44.) Al-Zahrani was apprehended in Afghanistan in late 2001 and was moved to
Guantanamo in January 2002, when he was 17 years old. (Id. ¶ 83.) Al-Salami was arrested by
local forces in Pakistan in March 2002. (Id. ¶ 125.) He was held in Pakistani custody until May
2002, when he was turned over to U.S. authorities. (Id.) Following detention in one or more
U.S.-controlled sites in Afghanistan, Al-Salami was transferred to Guantanamo in June 2002.
(Id.)
After two and a half years of confinement, in the fall of 2004, Combatant Status Review
Tribunals (“CSRTs”) were convened to review the detentions of Al-Zahrani and Al-Salami.
During the proceedings before the CSRTs, Al-Zahrani and Al-Salami were presumed to be
enemy combatants, denied the right to an attorney, and denied the right to see all of the evidence
used against them. The CSRTs confirmed earlier findings that both detainees were enemy
combatants and that they were therefore subject to continued detention at Guantanamo. (Id. ¶¶
85, 128.) Administrative Review Boards (“ARBs”) were convened in 2005 and 2006 to review
Al-Zahrani’s and Al-Salami’s detentions and after a hearing, the ARBs affirmed the conclusions
of the CRSTs. (Id. ¶¶ 86, 129.) As a result, Al-Zahrani and Al-Salami remained in U.S. custody
at Guantanamo until their deaths, though neither man was ever charged with a crime. (Id. ¶ 41.)
Plaintiffs further allege that during the years in which Al-Zahrani and Al-Salami were
imprisoned at Guantanamo, they endured inhumane and degrading conditions of confinement
2
and violent acts of torture and abuse. (Id. ¶¶ 51-70.) Conditions at Guantanamo included
detention in six-by-six foot cages and exposure to the elements, followed by near-constant
enclosure in sealed, concrete cells with 24-hour camera monitoring, continuous florescent
lighting, and no air conditioning; isolation and confinement with little human contact, exercise,
or access to soap, toilet paper, toothbrushes, or other basic items; and little or no communication
with family members or the outside world. (Id. ¶¶ 53, 56-59.) Plaintiffs also allege that Al-
Zahrani and Al-Salami were subjected to “specific methods and acts of physical and
psychological torture and abuse,” including sleep deprivation, exposure to prolonged temperature
extremes, invasive body searches, beatings, threats, inadequate medical treatment and
withholding of necessary medication, and religious abuse, such as forced shaving and
desecration of the Qur’an. (Id. ¶¶ 61, 93, 138-140.) The amended complaint also alleges that
Al-Zahrani and Al-Salami were among the hundreds of detainees at Guantanamo who
participated in hunger strikes for weeks or months at a time to protest their conditions and
continued detention. (Id. ¶¶ 66, 96, 142-44.) As a result of these hunger strikes, Al-Zahrani and
Al-Salami were strapped into “restraint chairs” and force-fed formula using painful, humiliating,
and unsanitary procedures. (Id. ¶¶ 69, 96, 144.) Plaintiffs contend that defendants devised,
recommended, approved, sanctioned, and/or implemented many of these acts of torture, issued
and updated the procedures governing the conditions at Guantanamo, and introduced, approved
of, supervised, and implemented the procedures by which plaintiffs were force-fed. (Id. ¶¶ 60-
62, 69-70.)
Plaintiffs further allege that the brutal acts and conditions that Al-Zahrani and Al-Salami
endured for over four years had damaging effects on their physical and psychological heath,
effects that defendants intended, knew of, and/or should have anticipated but failed to prevent.
3
(Id. ¶¶ 97-100; 146-164.) After months of hunger strikes and, for Al-Salami, multiple medical
evaluations evidencing depression and suicidal thoughts, Al-Zahrani and Al-Salami were found
dead on June 10, 2006. (Id. ¶¶ 101, 146-164, 165.) A final report from the Naval Criminal
Investigative Service (“NCIS”) issued in 2008 concluded that the deaths were suicides by
hanging. (Id. ¶ 4.) The government did not notify the families of Al-Zahrani or Al-Salami of
their deaths, nor did they return the bodies to their families in time for proper burial under
Islamic law. (Id. ¶¶ 116-117, 174-175.) Moreover, the government performed autopsies on the
bodies without seeking the consent of the detainees’ families, and when returned, the bodies
were damaged and missing certain organs. (Id. ¶¶ 118-19, 176-77.) Al-Zahrani, Sr. and Al-
Salami, Sr. also allege that government and military spokespersons, including some defendants,
made a number of derisive comments about Al-Zahrani and Al-Salami after their deaths. (Id. ¶¶
121, 179.)
Based on these claims, plaintiffs claim compensation and punitive damages for physical,
psychological, and emotional injuries; loss of earnings and earning capacity; loss of interfamilial
relations; and medical expenses. (Id. ¶ 198.)
PROCEDURAL BACKGROUND
Plaintiffs filed their complaint against the government, twenty-four named individuals,
and one hundred unnamed military, medical, and civilian personnel members on January 7,
2009.1 (Compl. ¶ 6.) That complaint was amended on January 29, 2009, and includes fourteen
1
The twenty-four individual defendants named in the amended complaint include: Donald
Rumsfeld; Gen. Richard Myers; Gen. Peter Pace; Gen. James T. Hill; Gen. Bantz Craddock;
various military personnel stationed or formerly stationed at Guantanamo; and numerous medical
professionals allegedly involved in the treatment of detainees at Guantanamo and/or the creation
of policies and procedures used at the base. The amended complaint also includes unnamed
4
claims for relief. (Am. Compl. ¶¶ 199-325.) Claims I through IV seek damages under the
ATCA against the individual defendants for arbitrary detention, torture, and cruel and inhuman
treatment of Al-Zahrani and Al-Salami, as well as violation of various Geneva Conventions. (Id.
¶¶ 199-234.) Claims V and VI are also against the individual defendants and allege that the
detention and treatment of Al-Zahrani and Al-Salami constituted cruel and unusual punishment
and deprived them of their life and liberty interests in violation of their constitutional rights
under the Eighth and Fifth Amendments. (Id. ¶¶ 235-253.) The amended complaint alleges that
the individual defendants are liable for these violations in that defendants “participated in, set the
conditions, directly and/or indirectly facilitated, ordered, acquiesced, confirmed, ratified, aided
and abetted, and/or conspired together” in the detention and treatment of Al-Zahrani and Al-
Salami. (Id. ¶¶ 240, 251.) Claims VII though XIV are against the United States under the FTCA
for negligence, medical negligence, medical malpractice, intentional infliction of emotional
distress, battery, and wrongful death. (Id. ¶¶ 254-325.)
On June 26, 2009, defendants filed three motions that are now before the Court. The
individual defendants have moved to dismiss plaintiffs’ constitutional claims under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that this Court lacks subject
matter jurisdiction over these claims and that plaintiffs have failed to state a claim upon which
relief can be granted. (Mem. of P. & A. in Supp. of the Individual Defs.’ Mot. to Dismiss Pls.’
Constitutional Claims [“Constitutional Mem.”] at 1-2.) The government has also filed a motion
to substitute itself for the individual defendants with respect to plaintiffs’ claims under the
ATCA. The United States contends that the Federal Employees Liability Reform and Tort
Compensation Act of 1988 (“Westfall Act”), 28 U.S.C. § 2679(b)(1), provides that a claim
military, medical, and civilian personnel, who are listed as John Does 1-100. (Am. Compl. ¶¶
15-39.)
5
against the United States under the FTCA is the exclusive remedy for persons seeking damages
for any “negligent or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment.” (Mem. of P. & A. in Supp. of United States’
Mot. for Substitution for Claims I to IV of the Am. Compl. [“Substitution Mem.”] at 6.) Finally,
the United States has filed a motion to dismiss all of plaintiffs’ claims under the FTCA,
including the ATCA claims for which it has sought substitution, on the grounds that this Court
lacks subject matter jurisdiction over these claims. (Mem. of P. & A. in Supp. of the United
States’ Mot. to Dismiss Claims I to IV and VII to XIV of the Am. Compl. [“FTCA Mem.”] at 5.)
ANALYSIS
I. MOTION BY THE INDIVIDUAL DEFENDANTS TO DISMISS
CONSTITUTIONAL CLAIMS IN COUNTS V AND VI
The individual defendants have moved to dismiss plaintiffs’ constitutional claims under
the Fifth and Eighth Amendments on the grounds that: 1) this Court lacks jurisdiction to hear
these claims under Section 7 of the Military Commissions Act of 2006 (“MCA”), Pub. L. No.
109-366, 20 Stat. 2600 (2006); 2) special factors preclude the Court from implying a remedy for
plaintiffs under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388(1971); and 3) even if the Court has jurisdiction and plaintiffs could invoke Bivens, the
individual defendants are entitled to qualified immunity. (Constitutional Mem. at 3-28.)
A. The Military Commissions Act
Defendants seek dismissal of plaintiffs’ constitutional claims based on § 7 of the MCA,
which amends 28 U.S.C. § 2241 and deals with the right of detainees to bring habeas corpus
petitions and to seek relief related to the conditions of their detention. Section 7 states in
pertinent part:
6
[n]o court . . . shall have jurisdiction to hear or consider any other
action against the United States or its agents relating to any aspect
of the detention, transfer, treatment, trial, or conditions of
confinement of an alien who is or was detained by the United
States and has been determined by the United States to have been
properly detained as an enemy combatant or is awaiting such
determination.
28 U.S.C. § 2241(e)(2). Plaintiffs respond that the Supreme Court in Boumediene v. Bush, 128
S. Ct. 2229 (2008), invalidated § 7 in its entirety and, therefore, the Court is not divested of
jurisdiction. This very argument has been addressed by many courts in this jurisdiction and it
has been uniformly rejected.
Although Boumediene did not specify which portion of § 2241(e) survived its holding,
the Court expressly declined to “discuss the reach of the writ with respect to claims of unlawful
conditions of treatment or confinement.” Id. at 2274. Given the Court’s unwillingness to
consider the issue, there is no basis upon which to argue that the Court invalidated § 2241(e)(2),
which clearly strips courts of jurisdiction over claims relating to “any aspect of . . . treatment . . .
or conditions of confinement.” 28 U.S.C. § 2241(e)(2). Moreover, “there is a presumption that
when a court invalidates a statute as unconstitutional, it does so on grounds drawn as narrowly as
possible.” Al-Adahi v. Obama, 596 F. Supp. 2d 111, 118 (D.D.C. 2009) (citing Ayotte v.
Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006)). As such, courts must
“refrain from invalidating more of [a] statute than is necessary.” Alaska Airlines, Inc. v. Brock,
480 U.S. 678, 684 (1987) (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984) (plurality
opinion)). For this reason, every court in this circuit to consider the issue has found that
Boumediene did not invalidate § 2241(e)(2). See, e.g., Kiyemba v. Obama, 561 F.3d 509, 512
n.1 (D.C. Cir. 2009) (Boumediene “referred to § 7 without specifying a particular subsection of §
7
2241(e) but its discussion of the Suspension Clause clearly indicates it was referring only to that
part of § 7 codified at § 2241(e)(1)”); Al-Adahi, 596 F. Supp. 2d at 119 (Kessler, J.) (concluding
that “the Supreme Court’s direct disavowal of reaching any conclusion about the validity of §
2241(e)(2) [in Boumediene]” overcomes any ambiguity in that opinion); Khadr v. Bush, 587 F.
Supp. 2d 225, 235-36 (D.D.C. 2009) (Bates, J.) (“Boumediene invalidated only section
2241(e)(1), but not section 2241(e)(2).”); In re Guantanamo Bay Detainee Litig., 577 F. Supp.
2d 312, 314 (D.D.C. 2008) (Hogan, J.) (“Cognizant of the long-standing rule of severability, this
Court, therefore, holds that [§ 2241(e)(2)] remains valid . . . .”); In re Guantanamo Bay Detainee
Litig., 570 F. Supp. 2d 13, 18 (D.D.C. 2008) (Urbina, J.) (“[T]his court interprets Boumediene to
invalidate only 28 U.S.C. § 2241(e)(1).”); see also Tumani v. Obama, 598 F. Supp. 2d. 67, 69
(D.D.C. 2009) (Urbina, J.) (denying detainee petitioner’s requests regarding “transfer, access and
interrogations” for lack of jurisdiction under § 2241(e)(2)). This Court joins the chorus in
concluding that Boumediene did not invalidate § 2241(e)(2).
Plaintiffs next attack the applicability of § 2241(e)(2) by arguing that the procedure used
to determine that Al-Zahrani and Al-Salami were “enemy combatants” lacked due process and
was therefore facially invalid. (Opp’n at 7-10.) Section 2241(e)(2) bars claims relating to the
conditions of detention of any alien who “has been determined by the United States to have been
properly detained as an enemy combatant.” 28 U.S.C. § 2241(e)(2). Plaintiffs concede that in
2004, CSRTs convened and determined that each detainee was an “enemy combatant.” (Am.
Compl. ¶¶ 84-85, 127-28.) However, they contend that because the CSRTs did not allow
detainees to present evidence to challenge the cases against them, denied detainees access to
counsel, relied extensively on hearsay, and did not provide a right to an appeal, the proceedings
lacked the fundamental elements of due process and were so inadequate that Congress could not
8
have meant for CSRT determinations to preclude federal court review of detainee claims.
(Opp’n at 8-10.) In making this novel argument, plaintiffs rely on Boumediene’s criticisms of
the CSRT process. (Opp’n at 8.)
Although the Supreme Court in Boumediene found that the CSRT review process was
not an adequate substitute for habeas corpus review, see 128 S. Ct. at 2269-70, nothing in the
language of § 2241(e)(2) suggests that Congress intended for the statute’s jurisdictional bar to
apply only to those individuals who had access to habeas corpus review. The plain language of
the statute precludes jurisdiction over claims by aliens who “ha[ve] been determined” to be
enemy combatants by the United States. 28 U.S.C. § 2241(e)(2). Nothing in the statute qualifies
the necessary determination or suggests that it must be conducted in a particular way. The
argument that because CSRT review has been found to be an inadequate substitute for habeas
review, it is also inconclusive for “purposes of application of MCA Section 7” is baseless.
(Opp’n at 9.) Indeed, Congress enacted § 2241(e)(2) alongside § 2241(e)(1), which precluded
detainee habeas claims, intimating that an enemy combatant determination for purposes of §
2241(e)(2) was intended as something far short of habeas review. “[C]ourts must presume that a
legislature says in a statute what it means and means in a statute what it says there,” and “[w]hen
the statutory language is plain, the sole function of the courts . . . is to enforce it according to its
terms.” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (citations
and internal quotation marks omitted). Here, Al-Zahrani and Al-Salami were determined by
properly constituted CSRTs to be enemy combatants, and as such, the plain language of §
2241(e)(2) precludes this Court from hearing their claims.
In an attempt to salvage their claims against the individual defendants, plaintiffs launch
an attack on the constitutionality of the MCA. (Opp’n 10-22.) The Court need not reach these
9
arguments because, even assuming arguendo that the Court has jurisdiction, plaintiffs’ Bivens
claims cannot survive defendants’ 12(b)(6) motion to dismiss.2 It is therefore unnecessary for
the Court to pass judgment on the constitutionality of § 2241(e). See Karriem v. Barry, 743 F.2d
30, 38-39 (D.C. Cir. 1984) (“[I]t is the general policy of the federal courts to avoid addressing
broad constitutional issues unless their resolution is imperative in the context of the case at
hand.”).3 Moreover, it “conforms to common sense” to avoid the expenditure of considerable
time and legal resources to brief and argue, on the part of the parties, and to analyze, on the part
of the Court, the jurisdictional issues raised by plaintiffs for claims that are clearly barred for
other reasons. Chalabi, 543 F.3d at 729 (affirming district court’s dismissal on grounds with
“merits characteristics” despite unresolved statutory jurisdictional questions where claims at
issue were “plainly barred”). Therefore, the Court need not resolve the constitutionality of §
2
The Court’s conclusion that special factors counsel against the inference of a damages remedy
for plaintiffs’ constitutional claims under Bivens constitutes a ruling on the merits for failure to
state a claim upon which relief can be granted. See, e.g., Kim v. United States, 618 F. Supp. 2d
31, 38 (D.D.C. 2009) (argument that plaintiffs failed to state claim for Bivens action because no
Bivens remedy exists for plaintiffs’ injuries “is better understood as seeking dismissal under
12(b)(6)”); see also Bell v. Hood, 327 U.S. 678, 682 (1946) (“[I]t is well settled that the failure to
state a proper cause of action calls for a judgment on the merits and not for a dismissal for want
of jurisdiction.”).
3
The Court understands that plaintiffs’ constitutional challenges to § 2241(e) concern this
Court’s jurisdiction over plaintiffs’ claims and is mindful that courts should generally proceed
with analysis of jurisdictional issues under Rule 12(b)(1) before proceeding to a resolution of a
12(b)(6) motion. See United States ex rel. Settlemire v. Dist. of Columbia, 198 F.3d 913, 920-21
(D.C. Cir. 1999) (citing Kreindler & Kreindler v. United Techs. Corp., 985 F.2d 1148, 1155-56
(2d Cir. 1993)); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (requiring
federal courts to resolve Article III jurisdiction prior to deciding cause of action). However, a
court may choose to give priority to a merits question over a question of statutory, as opposed to
Article III, jurisdiction. Chalabi v. Hashemite Kingdom of Jordan, 543 F.3d 725, 728 (D.C. Cir.
2008). Indeed, the Supreme Court has “explicitly recognized the propriety of addressing the
merits where doing so made it possible to avoid a doubtful issue of statutory jurisdiction.”
Kramer v. Gates, 481 F.3d 788, 791 (D.C. Cir. 2007) (citing Steel Co., 523 U.S. at 96-97 & n.2).
Here, plaintiffs’ constitutional attacks on § 2241(e) create questions as to the Court’s statutory
jurisdiction (or lack thereof). The Court’s decision to forego analysis of these vexing questions
in favor of analyzing defendants’ motion to dismiss under Rule 12(b)(6) is therefore proper.
10
2241(e), but rather, it will proceed to the issue of whether a Bivens cause of action should be
implied on behalf of the plaintiffs.
B. Bivens Remedy
In Bivens, the Supreme Court held that under certain circumstances a plaintiff may be
entitled to recover money damages for injuries suffered as a result of a government actor’s
violation of the Constitution. See Bivens, 403 U.S. at 397. In determining whether to recognize
a remedy under Bivens, courts engage in a two-step process. Wilkie v. Robbins, 551 U.S. 537,
550 (2007). The first step looks to “whether any alternative, existing process for protecting the
interest [at issue] amounts to a convincing reason for the Judicial Branch to refrain from
providing a new and freestanding remedy in damages.” Id. Where no such “alternative” process
protects the interest at issue, courts must then “weigh[] reasons for and against the creation of a
new cause of action” and decide whether the benefits of implying a new remedy offset the
disadvantages associated with doing so. Id. at 554. In making such a determination, courts must
“pay[] particular heed . . . to any special factors counseling hesitation before authorizing a new
kind of federal litigation.” Bush v. Lucas, 462 U.S. 367, 378 (1983). Since Bivens was
announced, the Supreme Court has identified multiple “special factors” to discourage courts
from implying a remedy under Bivens and “in most instances [has] found a Bivens remedy
unjustified.” Wilkie, 551 U.S. at 549-50 (noting since Bivens, Court has recognized only two
additional nonstatutory damages remedies); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948
(2009) (“Because implied causes of action are disfavored, the Court has been reluctant to extend
Bivens liability ‘to any new context or new category of defendants.’”) (quoting Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 68 (2001)); Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009)
(declining to extend Bivens cause of action “in the context of extraordinary rendition, [because]
11
such an action would have the natural tendency to affect diplomacy, foreign policy, and the
security of the nation, and that fact counsels hesitation”).
Despite judicial reluctance to imply Bivens remedies, plaintiffs argue that their claims
should proceed because they do not threaten the Executive Branch’s foreign policy and national
security functions, interfere or contradict Congress’ involvement in this area, or implicate other
special factors. (Opp’n at 51-53.) Moreover, plaintiffs argue that if the government can shield
defendants’ conduct under the rubric of foreign policy and national security considerations, it
would offend U.S. treaty obligations and amount to a condonation of torture. (Id. at 52-53.)
Plaintiffs’ position collapses in the face of the Circuit’s decision in Rasul v. Myers, 563
F.3d 527 (D.C. Cir. 2009) (“Rasul II”), cert. denied, 78 U.S.L.W. 3099 (U.S. Dec. 14, 2009)
(No. 09-227). Plaintiffs in that case, former detainees at Guantanamo, sued various military
officers alleging, inter alia, that their treatment while in U.S. custody violated their rights under
the Fifth and Eighth Amendments to the Constitution. Rasul v. Rumsfeld, 414 F. Supp. 2d 26,
28-29, 39 (D.D.C. 2006).4 The district court dismissed these claims on the ground that
defendants were entitled to qualified immunity under Bivens. Id. at 39. The D.C. Circuit
affirmed this holding on two occasions, once in Rasul v. Myers, 512 F.3d 644, 665-67 (D.C. Cir.
2008) (“Rasul I”), and then again in Rasul II, 563 F.3d at 530-32. In Rasul II, the D.C. Circuit
also addressed defendants’ argument that special factors counseled against extending a Bivens
remedy to plaintiffs. Rasul II, 563 F.3d at 532 n.5. The Court, relying on its opinion in Sanchez-
Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir. 1985), and a concurrence by Judge Brown in
Rasul I, held that “[t]he danger of obstructing U.S. national security policy” is a special factor
4
Many of plaintiffs’ allegations in Rasul are identical to plaintiffs’ allegations in the instant case.
Compare Rasul, 414 F. Supp. 2d at 28-29, with Am. Compl. ¶¶ 61-63, 65, 93, 136, 138.
12
counseling against the extension of a Bivens remedy to Guantanamo detainees. Id. As the Court
explained:
Sanchez-Espinoza held that “the special needs of foreign affairs
must stay our hand in the creation of damage remedies against
military and foreign policy officials for allegedly unconstitutional
treatment of foreign subjects causing injury abroad.” We see no
bases for distinguishing [Rasul] from Sanchez-Espinoza.
Plaintiffs’ Bivens claims are therefore foreclosed on this alternative
basis, which is . . . unaffected by the Supreme Court’s Boumediene
decision.
Id. (internal citations omitted); see also Rasul I, 512 F.3d at 673 (Brown, J., concurring)
(“Treatment of detainees is inexorably linked to our effort to prevail in the terrorists’ war against
us, including our ability to work with foreign governments in capturing and detaining known and
potential terrorists. Judicial involvement in this delicate area could undermine these military and
diplomatic efforts and lead to ‘embarrassment of our government abroad.’”) (quoting Sanchez-
Espinoza, 770 F.2d at 209).
The D.C. Circuit’s conclusion that special factors counsel against the judiciary’s
involvement in the treatment of detainees held at Guantanamo binds this Court and forecloses it
from creating a Bivens remedy for plaintiffs here. Moreover, in the face of Rasul II, plaintiffs’
argument that Sanchez-Espinoza is somehow distinguishable from the case at hand is simply
untenable. (Opp’n at 52.) Accordingly, the individual defendants’ motion to dismiss plaintiffs’
constitutional claims is granted.5
5
Even if plaintiffs’ claims were not foreclosed under the Bivens special factors analysis, their
claims would fail because under Rasul II, defendants would be entitled to qualified immunity.
563 F.3d at 530 (holding that “qualified immunity insulates the defendants from plaintiffs’
Bivens claims” because “[n]o reasonable government official would have been on notice [before
the Supreme Court’s ruling in Boumediene] that plaintiffs had any Fifth Amendment or Eighth
Amendment rights”). As the Court in Rasul II explained,
13
II. MOTION FOR SUBSTITUTION
The government has moved to substitute the United States as defendant for the
individually named defendants in plaintiffs’ claims under the ATCA. (Substitution Mem. at 6.)
The Westfall Act “provides that a claim against the United States under the [FTCA] is the
exclusive remedy for persons seeking recovery of damages for any ‘negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his office or
employment.’” (Id. at 6 (quoting 28 U.S.C. § 2679(b)(1)).) The government argues that the
individual defendants were acting within the scope of their employment with respect to the
conduct alleged in the amended complaint and has provided a certification from the Director of
the Torts Branch of the Civil Division of the U.S. Department of Justice in support of that
[a]t the time of their detention, neither the Supreme Court nor this
court had ever held that aliens captured on foreign soil and
detained beyond sovereign U.S. territory had any constitutional
rights-under the Fifth Amendment, the Eighth Amendment, or
otherwise. The Court in Boumediene recognized just that: “It is
true that before today the Court has never held that noncitizens
detained by our Government in territory over which another
country maintains de jure sovereignty have any rights under our
Constitution.”
Id. (quoting Boumediene, 128 S. Ct. at 2262). As such, the Court held that “there was no
authority for-and ample authority against-plaintiffs’ asserted rights at the time of the alleged
misconduct” and “[t]he defendants are therefore entitled to qualified immunity against plaintiffs’
Bivens claims.” Id. at 532.
Although the events alleged in support of plaintiffs’ constitutional claims occurred
between January 2002 and June 2006, at least two years after the plaintiffs in Rasul were
released from U.S. custody, all of the conduct at issue occurred well before the Supreme Court’s
decision in Boumediene. Since courts “do not require government employees to anticipate future
developments in constitutional law,” id. at 530 n.2 (citing Anderson v. Creighton, 483 U.S. 635,
639 (1987)); Butera v. District of Columbia, 235 F.3d 637, 652 (D.C. Cir. 2001), the individual
defendants in this case are also protected by the doctrine of qualified immunity.
14
argument.6 (Id. Ex. A at 2.) Based on this certification, the government contends that plaintiffs
cannot sue any of the individuals under the ATCA and that plaintiffs’ sole remedy lies against
the government under the FTCA. (Id. at 6.) Plaintiffs respond that the individual defendants’
conduct was not properly within the scope of their employment and that even if it had been,
plaintiffs’ claims under the ATCA fall within the statutory exception to the Westfall Act. (Opp’n
at 56.) Specifically, plaintiffs contend that defendants’ alleged conduct constitutes torture and
that the law defining “scope of employment” as it is used in the Westfall Act does not extend to
such “egregious conduct.” (Id. at 56-60.)
As was the case with the Bivens special factors analysis, plaintiffs’ attempt to defeat
defendants’ motion to substitute is foreclosed by binding precedent in this Circuit which rejects
the argument posited by plaintiffs that torture or seriously criminal conduct does not fall within
the scope of a government actor’s employment. See Rasul I, 512 F.3d at 660; Harbury v.
Hayden, 522 F.3d 413, 422 (D.C. Cir. 2008). In Rasul I, the Court found that defendants’
allegedly torturous and abusive conduct was “foreseeable” and “‘motivated or occasioned by . . .
the conduct then and there for the employer’s business’ even though it was seriously criminal.”
Rasul I, 512 F.3d at 660 (quoting Lyon v. Carey, 533 F.2d 649, 655 (D.C. Cir. 1976)). As
explained by the Court,
[t]he plaintiffs concede that the torture, threats, physical and
psychological abuse inflicted on them, which were allegedly
approved, implemented, supervised and condoned by the
defendants, were intended as interrogation techniques to be used
6
While the government’s scope-of-employment certification “does not conclusively establish as
correct the substitution of the United States as defendant in place of the employee,” it constitutes
prima facie evidence that the individual defendants were acting within the scope of their
employment. Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006)
(internal citation omitted). “‘[A] plaintiff challenging the government’s scope-of-employment
certification bears the burden of coming forward with specific facts rebutting the certification.’”
Id. (quoting Stokes v. Cross, 327 F.3d 1210, 1214 (D.C. Cir. 2003)).
15
on detainees. . . . While the plaintiffs challenge the methods the
defendants used to perform their duties, the plaintiffs do not allege
that the defendants acted as rogue officials or employees who
implemented a policy of torture for reasons unrelated to the
gathering of intelligence. Therefore, the alleged tortious conduct
was incidental to the defendants’ legitimate employment duties.
Id. at 658-59 (internal citations and quotation marks omitted); see also Harbury, 522 F.3d at 422(applying D.C. law, holding that CIA defendants’ allegedly torturous conduct in managing
informants and gathering intelligence was within their scope of employment, and converting
claims against individual defendants to a FTCA claim against the government). Because it found
defendants’ conduct in detaining and interviewing plaintiffs at Guantanamo fell within the scope
of their employment, the Court in Rasul I held that plaintiffs’ ATCA claims were “properly
‘restyled as [claims] against the United States that [are] governed by the [FTCA].’” Rasul I, 512
F.3d at 660 (quoting Ballenger, 444 F.3d at 662); see also Rasul II, 563 F.3d at 528-29
(reinstating judgment on ATCA claims from Rasul I).
Buried in a footnote, plaintiffs recognize that the D.C. Circuit in Rasul I has rejected their
position. (Opp’n at 58 n.51.) Despite this concession, plaintiffs urge the Court to “depart” from
the holdings in Rasul I and Harbury. (Id.) Yet, the Court is not at liberty to disregard clearly
established, controlling precedent. See, e.g., United States v. Torres, 115 F.3d 1033, 1036 (D.C.
Cir. 1997) (“[D]istrict judges, like panels of this court, are obligated to follow controlling circuit
precedent until either we, sitting en banc, or the Supreme Court, overrule it.”). The individual
defendants’ conduct in this case, like the conduct in Rasul, was “pursuant to standard operating
procedures” and was “use[d] in connection with interrogations at Guantanamo.” (Am. Compl ¶¶
57, 61.) Their conduct was therefore foreseeable and incidental to the defendants’ positions as
16
military, medical, or civilian personnel in connection with Guantanamo and accordingly falls
within the scope of their employment.7
As a fallback, plaintiffs argue in the alternative that their ATCA claims fall within the
statutory exception to the Westfall Act (id. at 64), which states that the Act does not apply to
actions against a government employee “which [are] brought for . . . violation[s] of a statute of
the United States under which such action against an individual is otherwise authorized.” 28
U.S.C. § 2679(b)(2)(B). Plaintiffs contend that the ATCA is a “violable federal statute” that “is
violated when the laws of nations are violated.” (Opp’n at 64-65.) However, this argument was
rejected by the Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692, 713 (2004)
(“[Plaintiff] says that the ATS was intended not simply as a jurisdictional grant, but as authority
for the creation of a new cause of action for torts in violation of international law. We think that
reading is implausible.”). See also In re Iraq and Afghanistan Detainees Litig., 479 F. Supp. 2d
85, 112 (D.D.C. 2007) (“The question whether the [ATS] falls within the statutory exception to
the Westfall Act was answered by the Supreme Court's decision in Sosa v. Alvarez-Machain . . .
where it held that ‘the ATS is a jurisdictional statute creating no new causes of action.’
Accordingly, the plaintiffs cannot rely on the [ATS] to waive the Westfall Act because the
plaintiffs have no claim for a violation of that statute itself.”) (quoting Sosa, 542 U.S. at 724);
Harbury v. Hayden, 444 F. Supp. 2d 19, 38-39 (D.D.C. 2006) (“As the Supreme Court noted in
7
Plaintiffs urge this Court to proceed with an evidentiary hearing regarding scope of
employment. (Opp’n at 63.) However, neither a hearing nor “discovery is . . . warranted [since]
‘plaintiff[s] [have] not allege[d] any facts in [their] complaint or in any subsequent filing . . .
that, if true, would demonstrate that [the defendants] ha[ve] been acting outside the scope of
[their] employment.’” Rasul I, 512 F.3d at 662 (quoting Stokes, 327 F.3d at 1216 (internal
quotations and citations omitted)). Here, as in Rasul, the individual defendants were “employed
to detain and interrogate suspected enemy combatants” and the alleged torturous conduct and
arbitrary detention was a function of that employment. Id. Plaintiffs have not provided any facts
to buttress a claim that defendants were acting outside of their employment, and therefore, no
purpose would be served by having an evidentiary hearing.
17
Sosa, the ATCA is a ‘jurisdictional grant . . . best read as having been enacted on the
understanding that the common law would provide a cause of action for the modest number of
international law violations with a potential for personal liability at the time’ that the ATCA was
enacted in 1789.” (quoting Sosa, 542 U.S. at 724)); Rasul, 414 F. Supp. 2d at 38 (“The plain
language of the ATCA, however, does not confer rights nor does it impose obligations or duties
that, if violated, would trigger the Westfall Act’s statutory exception.”).
Despite the clear holding of these cases, plaintiffs argue that the D.C. Circuit’s recent
opinion in Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), should be read as holding that the
ATCA falls within the statutory exception to the Westfall Act. (Opp’n at 65.) The Court
disagrees. In Saleh, the D.C. Circuit noted that the Supreme Court in Sosa “opened the door a
crack to the possible recognition of new causes of action under international law (such as,
perhaps, torture) if they were firmly grounded on an international consensus.” 580 F.3d at 14.
To the extent that this language suggests that the Supreme Court in Sosa contemplated
substantive rights, those rights are “under international law,” not the ATCA. Plaintiffs argue that
“[t]he ATS is violated when the laws of nations are violated” (Opp’n at 65), but the Supreme
Court rejected as “implausible” a reading of the ATS as “[a] creation of a new cause of action for
torts in violation of international law.” Sosa, 542 U.S. at 713 (emphasis added). As Judge
Urbina explained in Rasul,
[a] review of Sosa shows that the ATCA facilitates the bringing of
an action for violations of the law of nations. The plain language of
the ATCA, however, does not confer rights nor does it impose
obligations or duties that, if violated, would trigger the Westfall
Act’s statutory exception. For the Westfall Act’s statutory
exception to apply, the ATCA would have to create substantive
rights or duties that can be violated for purposes of the Westfall
Act. A claim brought pursuant to the ATCA, therefore, is based on
a violation of rights conferred under international law, not the
18
ATCA itself. Accordingly, the court concludes that the plaintiffs
fail to satisfy the exception under 28 U.S.C. § 2679(b)(2)(B).
Rasul, 414 F. Supp. 2d at 38 (internal citations omitted).8
Consistent with Sosa and its progeny, the Court concludes that the ATS is not a violable
statute for purposes of the Westall Act statutory exception. Therefore, because defendants’
conduct falls within the scope of their employment, the government is properly substituted as
defendant in plaintiffs’ claims, which are governed by the FTCA. Ballenger, 444 F.3d at 662.
Accordingly, the government’s motion to substitute itself as defendant as to plaintiffs’ Claims I-
IV is granted.
III. MOTION TO DISMISS CLAIMS UNDER FTCA IN COUNTS I-IV and VII-XIV
The government’s final motion seeks dismissal of plaintiffs’ claims under the FTCA.
Although the United States raises a host of arguments in favor of dismissal, it is not necessary to
address these many arguments, since the Court concludes that all of plaintiffs’ non-constitutional
claims are barred by the FTCA’s express exception to its waiver of sovereign immunity for “any
claim arising in a foreign country.” (FTCA Mem. at 8-12 (quoting 28 U.S.C. § 2680(k)).)
“The [FTCA] is a limited waiver of sovereign immunity, making the Federal
Government liable to the same extent as a private party for certain torts of federal employees
acting within the scope of their employment.” United States v. Orleans, 425 U.S 807, 813
(1976). The statute includes certain express exceptions to its waiver of sovereign immunity; by
its own terms, the government’s consent to be sued does not apply to certain types of claims. 28
U.S.C. § 2680. In particular, the government’s waiver of sovereign immunity does not apply to
8
Indeed, this Circuit has rejected the argument that international law is precedential or binding
on the courts. See Al-Bihani v. Obama, 590 F.3d 866, 871 (D.C. Cir. 2010) (“The international
laws of war as a whole have not been implemented domestically by Congress and are therefore
not a source of authority for U.S. courts.”).
19
“[a]ny claim arising in a foreign country.” Id. § 2680(k); see also Sosa, 542 U.S. at 712 (holding
that “FTCA’s foreign country exception bars all claims based on any injury suffered in a foreign
country, regardless of where the tortious act or omission occurred”). The government argues that
because plaintiffs’ Claims I though IV and VII though XIV arose in foreign countries—namely,
Cuba, Yemen, and Saudi Arabia—the government has not consented to be sued, and as a result,
the Court lacks subject-matter jurisdiction over these claims. (FTCA Mem. at 8-9.) The
plaintiffs apparently concede that its remaining claims arose at Guantanamo and in Yemen and
Saudi Arabia, but they argue that Guantanamo is not a foreign country within the meaning of 28
U.S.C. § 2680(k), and that their claims of emotional distress are derivative of injuries that
occurred at Guantanamo. (Opp’n at 73-78.)
In arguing that Guantanamo is not a foreign country, plaintiffs rely solely on the Supreme
Court’s ruling in Boumediene. There, in deciding the issue of whether detainees at Guantanamo
are entitled to habeas corpus, the Court was faced with the argument that the writ did not apply
because under the common law, the writ “ran only to territories over which the Crown was
sovereign,” and the United States does not claim sovereignty over Guantanamo. Boumediene,
128 S. Ct. at 2251. The Court held that “questions of sovereignty are for the political branches to
decide” and for that reason it “d[id] not question the Government’s position that Cuba, not the
United States, maintains sovereignty, in the legal and technical sense of the term, over
Guantanamo Bay.” Id. at 2252. The Court then stated that its finding with respect to sovereignty
did not end its inquiry, because for purposes of habeas, the Court was entitled to look to “the
objective degree of control the Nation asserts over foreign territory.” Id. So while it deferred to
the government’s position that the United States did not exercise “sovereignty” over
Guantanamo in the “narrow, legal sense of the term,” it recognized that the “United States, by
20
virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over
th[e] territory.” Id. at 2252-53. Invoking this de facto sovereignty analysis, plaintiffs argue that
the base at Guantanamo is not “foreign” as that term is used in 28 U.S.C. § 2680(k). (Opp’n at
73-74.)
Plaintiffs, however, mistakenly conflate the constitutional right to bring a habeas action
with the right to bring an action against the United States under the FTCA. There is no
constitutional right to sue the United States under the FTCA’s statutory waiver of sovereign
immunity,9 and under Supreme Court precedent, there is no basis for extending the de facto
sovereignty test set forth in Boumediene to the FTCA. As correctly argued by the government,
the instant case is decided not by Boumediene, but by the Supreme Court’s decision in United
States v. Spelar. In Spelar, the Court held that the district court did not have subject-matter
jurisdiction over a wrongful death claim by the estate of a flight engineer killed on a U.S. air
base in Newfoundland. 338 U.S. 217, 218-19 (1949). The air base had been leased by the
United States from Great Britain under terms that “effected no transfer of sovereignty with
respect to the military bases concerned.” Id. at 221-22 (citing Vermilya-Brown, Co. v. Connell,
335 U.S. 377, 380 (1948) (“[T]he leased area is under the sovereignty of Great Britain and . . . it
is not territory of the United States in a political sense, that is, a part of its national domain.”)).
The Court, interpreting the language of the FTCA, held:
[w]e know of no more accurate phrase in common English usage
than “foreign country” to denote territory subject to the
sovereignty of another nation. By the exclusion of “claims arising
9
Indeed, although the FTCA “creates an express limited waiver of the United States’ sovereign
immunity,” Macharia v. United States, 238 F. Supp. 2d 13, 20 (D.D.C. 2002), that waiver is
expressly limited and must be strictly construed. See Dep’t of Army v. Blue Fox, Inc., 525 U.S.
255, 261 (1999) (“We have frequently held . . . that a waiver of sovereign immunity is to be
strictly construed, in terms of its scope, in favor of the sovereign.”)
21
in a foreign country,” the coverage of the Federal Tort Claims Act
was geared to the sovereignty of the United States. We repeat
what was said in [Vermilya-Brown:] “The arrangements under
which the leased bases were acquired from Great Britain did not
and were not intended to transfer sovereignty over the leased areas
from Great Britain to the United States.” Harmon Field, where this
claim “arose,” remained subject to the sovereignty of Great Britain
and lay within a “foreign country.” The claim must be barred.
Id. at 219 (internal citation omitted). The lease terms of the base in Spelar are comparable to the
lease agreement entered into by the United States and Cuba regarding Guantanamo. “Under
th[at] agreement, ‘the United States recognizes the continuance of the ultimate sovereignty of the
Republic of Cuba over the [leased areas],’ while ‘the Republic of Cuba consents that during the
period of the occupation by the United States . . . the United States shall exercise complete
jurisdiction and control over and within said areas.’” Rasul v. Bush, 542 U.S. 466, 471 (2004)
(quoting Lease of Lands for Coaling and Naval Stations, art. III, U.S.-Cuba, Feb. 23, 1903, T.S.
No. 418.) As argued by the United States, the terms of its lease with Cuba and the Supreme
Court’s finding in Boumediene that Cuba “maintains sovereignty, in the legal and technical sense
of the term, over Guantanamo Bay,” 128 S. Ct. at 2252, coupled with Spelar’s holding that the
phrase “foreign country,” as used in 28 U.S.C. § 2680(k), “denote[s] territory subject to the
sovereignty of another nation,” 338 U.S. at 219, means that Guantanamo is a “foreign country”
for purposes of the FTCA. (FTCA Mem. at 9-10; see also United States’ Reply to Pls.’ Opp’n to
United States’ Mot. for Substitution and Mot. to Dismiss [“FTCA Reply”] at 14-15.)
The Supreme Court’s unequivocal position in Boumediene is that Cuba maintains de jure
sovereignty over Guantanamo, and Spelar stands for the proposition that “foreign country”
includes any place subject to the sovereignty of another country.10 Boumediene was concerned
10
The designation of “foreign country” as it is used in the FTCA includes more than just
“sovereign states.” See Smith v. United States, 507 U.S. 197, 201 (1993) (meaning of “foreign
22
with detainees’ habeas rights under the Constitution, not the government’s waiver of sovereign
immunity under the FTCA, and thus, it provides no basis for rejecting the many cases that have
refused to apply a “de facto” sovereignty test to the FTCA, see, e.g., Cobb v. United States, 191
F.2d 604, 608 (9th Cir. 1951) (fact that United States was “supreme will” in Okinawa and
retained “de facto sovereignty” over island did not determine whether Okinawa was “foreign
country” under FTCA); Bird v. United States, 923 F. Supp. 338, 343 (D. Conn. 1996) (“Because
the 1903 Lease of Lands Agreement clearly establishes Cuba as the de jure sovereign over
Guantanamo Bay, this Court need not speculate whether the United States is the de facto
sovereign over the area.”); see also Colon v. United States, No. 82-Civ-34, 1982 U.S. Dist.
LEXIS 16071, at *6 (S.D.N.Y. Nov. 24, 1982) (Guantanamo “remains a ‘foreign country’ within
§ 2680(k)’s express exception to the waiver of sovereign immunity by the United States in the
FTCA”), or that have declined to adopt plaintiffs’ suggestion that “control and jurisdiction” is
the functional equivalent to sovereignty. See Cuba Am. Bar Ass’n, Inc. v. Christopher, 43 F.3d
1412, 1425 (11th Cir. 1995) (“The district court here erred in concluding that Guantanamo Bay
was a ‘United States territory.’ We disagree that ‘control and jurisdiction’ is equivalent to
sovereignty.”) (internal citation omitted); Heller v. United States, 776 F.2d 92, 96 (3d Cir. 1985)
(rejecting argument that Philippine sovereignty was “merely formal” and drawing distinction
between “sovereignty, or the legal personhood of the nation, and jurisdiction, or the rights and
powers of the nation over its inhabitants”).11
country” includes Antarctica, “even though it has no recognized government”); see also Parrish
v. United States, 425 F. Supp. 2d 1283, 1285 (M.D. Fla. 2006) (“[F]ederal courts have
interpreted the foreign country exception to bar claims arising in a variety of locations outside
the territory of the United States, even when those locations were not in ‘sovereign’ nations.”).
11
The Court also finds persuasive the cases cited by defendants that hold that FTCA claims
arising from acts or omissions on U.S. military bases located outside the continental United
23
Plaintiffs insist that Guantanamo is not a “foreign country” under the FTCA because only
U.S. law applies there. (Opp’n at 75-76.) As such, plaintiffs argue that allowing their FTCA
claims to proceed would not “offend the Congressional intent behind the foreign country
exception”—that is, the desire not to subject the United States to liabilities based on the laws of a
foreign power. (Opp’n at 73, 76 (citing Sosa, 542 U.S. at 707).) However, even if this point
were uncontested (but see FTCA Reply at 17-18), the Supreme Court has made clear that a claim
need not “implicat[e] foreign law” in order to be considered as “arising in a foreign country.”
Sosa, 542 U.S. at 711 (rejecting headquarters doctrine even where its application would not
implicate foreign tort law); see also Meredith v. United States, 330 F.2d 9, 10-11 (9th Cir. 1964)
(noting possible reasons for FTCA foreign country exception other than implication of foreign
law, including “the absence of United States courts in such countries, with resulting problems of
venue, and the difficulty of bringing defense witnesses from the scene of the alleged tort to
places far removed; and a reluctance to extend the Act’s benefits to foreign populations”)
(quoting Burna v. United States, 240 F.2d 720, 722 (4th Cir. 1957)). Moreover, the Court cannot
ignore the undisputed fact, so clearly enunciated by Boumediene, that Cuba, and not the United
States, retains legal sovereignty over Guantanamo, regardless of the extent of the authority
exercised by the United States over its military base. Boumediene, 128 S. Ct. at 2252.
This Court may not disregard the unambiguous language in Spelar, which relied on the
plain language of 28 U.S.C. § 2680, when holding that “the coverage of the [FTCA] was geared
States and its territories are barred by the foreign country exception. (See FTCA Mem. at 10.)
These cases stand for the proposition that “it is reasonable that torts occurring on American
military bases are barred by the foreign country exception, despite the fact that the enforcement
authority on base is American.” Heller, 776 F.2d at 97; see also Broadnax v. U.S. Army, 710
F.2d 865, 866-67 (D.C. Cir. 1983); Rafftery v. United States, 150 F.Supp. 618, 618 (E.D.La.
1957) (“[J]urisdiction in [FTCA] cases [is] confined to areas over which the United States ha[s]
complete sovereignty.”).
24
to the sovereignty of the United States.” Spelar, 338 U.S. at 219. The United States does not
have sovereignty over Guantanamo in the “legal and technical sense,” Boumediene, 128 S. Ct. at
2252, and as such, FTCA claims arising there are barred by the foreign country exception. This
holding also bars plaintiffs’ claims for intentional and negligent infliction of emotional distress,
regardless of whether those claims are found to have arisen in Yemen and Saudi Arabia or are
derivative of claims that arose at Guantanamo. Accordingly, the Court grants the government’s
motion to dismiss plaintiffs’ Claims I to IV and VII to XIV. 12
CONCLUSION
For the foregoing reasons, the Court grants defendants’ motions to dismiss and the United
States’ motion to substitute. A separate Order accompanies this Memorandum Opinion.
SO ORDERED.
_________/s/______________
ELLEN SEGAL HUVELLE
United States District Judge
Date: February 16, 2010
12
Defendant also argues that the majority of plaintiffs’ claims are barred because plaintiffs failed
to adequately “present[] the claim to the appropriate Federal agency” before filing suit (FTCA
Mem. at 12-13; see also FTCA Reply at 21 n.28), which is “a mandatory jurisdictional
prerequisite” to filing an FTCA claim against the government. Jackson v. United States, 730
F.2d 808, 809 (D.C. Cir. 1984). The Court agrees that plaintiffs’ administrative claims are
deficient because they are focused on the emotional distress suffered by the detainees’ fathers,
not the claims on behalf of the detainees’ estates. The claims include no allegations regarding
the inhumane conditions and torturous practices alleged in plaintiffs’ amended complaint, save a
passing reference to forced-feeding (Am. Compl. Ex. A at 4, Ex. B at 4), and there is no
suggestion that plaintiffs would be seeking damages for “physical injuries,” “death,” “loss of
interfamilial relations,” or “medical expenses.” (Am. Compl. ¶ 198.) As a result, the
administrative claims failed to include factual allegations that could form the basis of any of
plaintiffs’ claims other than XII and XIII, concerning intentional and negligent infliction of
emotional distress on Al-Zahrani, Sr. and Al-Salami, Sr. Accordingly, plaintiffs failed to exhaust
their administrative remedies with respect to claims I-IV, VII-XI, and XIV.
25