Mallouk v. Bush ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MONA MALLOUK, et al., :
:
Petitioners, :
:
v. : Civil Action No. 08-2003 (JR)
:
BARACK H. OBAMA, et al., :
:
Respondents. :
MEMORANDUM
On June 8, 2009, I heard argument for and against the
habeas petition filed on behalf of Naji Hamdan, an American
citizen imprisoned in the United Arab Emirates (UAE). The
hearing focused on two issues: whether I had jurisdiction to hear
Hamdan’s petition and, if I did, whether I could grant habeas
relief since Hamdan has been charged with criminal offenses by
the UAE, a sovereign nation. The petition prayed, not for
release, but rather for a mandatory injunction requiring the
United States government to “stop requesting” Hamdan’s detention
and to inform the UAE courts of American participation, if any,
in Hamdan’s alleged interrogation and torture. The government
denied any participation in Hamdan’s detention and interrogation.
I ruled on June 8 that the habeas petition would be
dismissed, essentially because Hamdan has been charged by the UAE
for domestic criminal offenses, see Munaf v. Geren, 128 S. Ct.
2207, 2221-24; see also Kiyemba v. Obama, 561 F.3d 509, 515 (D.C.
Cir. 2009), but I did not dismiss the entire case because
petitioners advanced the alternative argument that 28 U.S.C.
§ 1331 gave me jurisdiction over Hamdan’s claim of a
constitutional violation and that the All Writs Act, 28 U.S.C.
§ 1651, provided an avenue to grant relief on that claim. I
invited supplemental briefing on that argument.
The “state-created danger” claim goes like this:
(1) the United States government caused Hamdan’s arbitrary
detention and torture by requesting that the UAE detain him, but
(2) Hamdan had a substantive due process right to protection by
the American government from known, or likely abuse by UAE
security officials, so that (3) by requesting Hamdan’s detention,
the United States government heightened the risk of danger and
violated Hamdan’s substantive due process right. See Butera v.
District of Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001) (an
individual can assert a substantive due process claim against
egregious conduct by District of Columbia officials who
“affirmatively act to increase or create the danger” which causes
the individual’s harm). The due process claim, petitioners
argue, gives rise to 28 U.S.C. § 1331 federal question
jurisdiction, and the All Writs Act, 28 U.S.C. § 1651, allows for
any appropriate relief.
The Due Process clause provides no general right to
affirmative government aid or protection, however. The “state-
created danger” or “state endangerment” concept is an exception
- 2 -
to that rule, developed in a § 1983 case involving state actors,
see Butera, 235 F.3d at 647. A “state endangerment” claim
against the federal government has never been recognized, and the
concept has been rejected by at least one judge of this Court.
See Sadowski v. Bush, 293 F. Supp. 2d 15, 18 n.1 (D.D.C. 2003).
The assertion of 28 U.S.C. § 1331 jurisdiction fares no
better. Petitioners concede that the All Writs Act does not
provide an independent ground for jurisdiction, but only allows
for relief that may be “necessary or appropriate in aid of” the
court’s jurisdiction. 28 U.S.C. § 1641(a) (emphasis added).
Thus, even if habeas corpus is a “civil action” for purposes of
§ 1331 (a proposition for which petitioners cite no case
support), the dismissal of the habeas petition here leaves
nothing in the “Constitution, laws or treaties of the United
States” for petitioners’ claim to “arise under.”
Petitioners’ allegations of abuse and worse at the
hands of UAE security officials may well merit further political
and public inquiry, but there is no basis on this record for
further action by this Court.
An appropriate order accompanies this memorandum.
JAMES ROBERTSON
United States District Judge
- 3 -