Al Janko v. Gates , 831 F. Supp. 2d 272 ( 2011 )


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  •                        UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ABDUL RAHIM ABDUL RAZAK AL JANKO, )
    )
    Plaintiff,                     )
    )
    v.                      )   Civil Case No. 10-1702 (RJL)
    )
    ROBERT M. GATES,                         )
    )
    DONALD RUMSFELD,                         )
    )
    PAUL WOLFOWITZ,                          )
    )
    GORDON ENGLAND,                          )
    )
    REAR ADM. JAMES M. McGARRAH,             )
    )
    RICHARD B. MYERS,                        )
    )
    PETER PACE,                              )
    )
    MICHAEL GLENN "MIKE" MULLEN,             )
    )
    GARY SPEER,                              )
    )
    JAMES T. HILL,                           )
    )
    BANTZ CRADDOCK,                          )
    )
    JAMES G. ST AVRIDIS,                     )
    )
    MAJ. GEN. GEOFFREY D. MILLER,            )
    )
    BRIG. GEN. JAY HOOD,                     )
    )
    REAR ADM. HARRY B. HARRIS, JR.,          )
    )
    MARK H. BUZBY,                           )
    )
    DAVID THOMAS,                                       )
    )
    THOMAS H. COPEMAN III,                              )
    )
    ADOLPH MCQUEEN,                                     )
    )
    BRIG. GEN. NELSON J. CANNON,                        )
    )
    COL. MICHAEL BUMGARNER,                             )
    )
    COL. WADE DENNIS,                                   )
    )
    ESTEBAN RODRIGUEZ,                                  )
    )
    PAUL RESTER,                                        )
    )
    DANIEL MCNEILL,                                     )
    )
    FRANK WIERCINSKI,                                   )
    )
    DOES 1-100                                          )
    )
    Defendants.                           )
    IAAl
    MEMORANDUM OPINION
    December 2Z'2011 [Dkt. ## 13, 14]
    Plaintiff Abdul Rahim Abdul Razak Al Janko ("plaintiff') is a Syrian national who
    was detained in Afghanistan by U.S. military forces in January 2002 and held in
    Guantanamo Bay, Cuba, from May 2002 until October 2009. First Amended Complaint
    ("FAC")" 11,38, April 29, 2011 [Dkt. #11]. On June 22, 2009, after determining that
    the Government failed to establish plaintiffs lawful detention as an enemy combatant, I
    granted plaintiffs petition for a writ of habeas corpus and ordered his release. See Al
    2
    Ginco v. Obama,l 
    626 F. Supp. 2d 123
     (D.D.C. 2009),jinaljudgment 
    634 F. Supp. 2d 109
     (D.D.C. July 17,2009). Ultimately, plaintiff was released from Guantanamo Bay on
    October 7, 2009. FAC,-r 38.
    On October 5,2010, plaintiff filed a Complaint seeking damages against 26
    individual defendants, 100 unnamed "Jane" and "John Doe" defendants, and the United
    States, alleging that he was subjected to abusive treatment while detained by the U.S.
    military both in Afghanistan and at Guantanamo. Indeed he is the first detainee who was
    released pursuant to a successful habeas petition to seek damages for the acts he says
    occurred while in U.S. custody.   2   In particular, he alleges three constitutional violations
    and four violations of the Alien Tort Statute, 
    28 U.S.C. § 1350
    , CompI. Oct. 5, 201O,-r,-r
    99-154 [Dkt. #1], and seeks compensatory, punitive, and exemplary damages in addition
    1     As I explained in my June 22, 2009 Opinion, plaintiff now prefers the surname "AI
    Janko." Al Ginco, 
    626 F. Supp. 2d at 124
    .
    2      Here, unlike in a handful of legally similar cases decided by other judges on our
    Court, the alien who was previously designated an "enemy combatant" applied for, and
    was granted, a writ of habeas corpus. Compare Al Ginco v. Obama, 
    626 F. Supp. 2d 123
    , 130 (D.D.C. 2009) (granting petitioner's writ of habeas corpus, even after a
    Combatant Status Review Tribunal ("CSRT") determined that petitioner was an "enemy
    combatant") with In re Pet 'rs Seeking Habeas Corpus Relief in Relation to Prior
    Detentions at Guantimamo Bay, 
    700 F. Supp. 2d 119
    , 136-37 (D.D.C. 2010) (Hogan, J.)
    (dismissing as moot habeas petitions of plaintiffs who had been determined by CSRTs to
    be "enemy combatants," but who were later released from Guantanamo) and Al-Zahrani
    v. Rumsfeld, 
    684 F. Supp. 2d 103
    ,110 (D.D.C. 2010) (Huvelle, J.) (claims jurisdictionally
    barred for survivors of aliens detained at Guantanamo who were determined by CSRTs to
    be "enemy combatants" but who died while in custody). Thus, although the case law
    controlling whether this Court had jurisdiction over any of the aforementioned plaintiffs'
    claims (the Court jurisdiction over none) is essentially the same for this plaintiff, the set
    3
    to attorney's fees, id. at 39. Through his April 29, 2011, Amended Complaint, plaintiff
    added individual defendants; removed eight individual defendants; removed one Alien
    Tort Statute claim; added one constitutional claim; added nine Foreign Tort Claims Act
    allegations under 
    28 U.S.C. § 2675
    (a); and added one conspiracy claim under 
    42 U.S.C. § 1985
    . 3 See generally FAC; see also Defendant United States' Motion to Dismiss Counts
    Five Through Seventeen, ("Gov't Mot. to Dismiss") at 2, June 29, 2011 [Dkt. #13].
    Now before the Court are two motions to dismiss: Defendant United States'
    Motion to Dismiss Counts Five Through Seventeen ("Gov't Mot. to Dismiss"), June 29,
    2011 [Dkt. #13], and Individual Defendants' Motion to Dismiss Counts One Through
    Four and Count Eighteen, ("Indiv. Defs.' Mot. to Dismiss"), June 29, 2011 [Dkt. #14].
    Upon review of the pleadings, the entire record, and the applicable law, the Court
    GRANTS the United States' Motion to Dismiss Counts Five Through Seventeen [Dkt.
    #13]. The Court also GRANTS the Individual Defendants' Motion to Dismiss Counts
    One Through Four and Count Eighteen [Dkt. # 14].
    of facts in this case is, to say the least, quite different.
    3       In sum, Counts I-IV allege constitutional violations; Counts V-VII allege
    violations of the Alien Tort Statute; Counts VIII-XVII allege violations of the Federal
    Tort Claims Act; and Count XVIII alleges conspiracy to interfere with civil rights, in
    violation of42 U.S.C. § 1985. FAC `` 136-287.
    4
    BACKGROUND
    I.     Procedural History
    The facts of this case are well known and largely undisputed. As I recounted in
    my June 22, 2009 Opinion, plaintiff is a Syrian citizen who spent his teen years in the
    United Arab Emirates. Al Ginco, 
    626 F. Supp. 2d at 125
    ; see also FAC,-r 51. Around
    January 2000, he traveled to, and began living in, Afghanistan. FAC,-r,-r 53-55.     After a
    brief stay at a Taliban guesthouse he attended the al Farouq training camp only to be
    accused by certain al Qaeda leaders of being a U.S. spy. Al Ginco, 
    626 F. Supp. 2d at 127-28
    . Ultimately he was tortured so severely by al Qaeda that he gave a false
    "confession" that he was, indeed, a U.S. spy.4 
    Id. at 127
    .    Thereafter, he was
    imprisoned by the Taliban for over eighteen months at the infamous Sarpusa prison in
    Kandahar. s Id.; see also FAC,-r,-r 2,56,58-61. In January 2002, when U.S. forces
    learned ofplaintiffs presence at the prison - which was by then abandoned - they took
    him into custody and questioned him at Kandahar Air Base. Al Ginco, 
    626 F. Supp. 2d at 125, 127
    ; see also FAC,-r 63. At the time, the Government "mistook [AI] Janko as one
    4       As I explained in 2009, "Although a detailed description of the various torture
    methods the petitioner was subjected to by al Qaeda is beyond the scope of this opinion, it
    would be fair to say that if his account is true even in part, al Qaeda's conduct would be
    fairly characterized as barbaric." Al Ginco, 
    626 F. Supp. 2d at 128, n.5
    .
    5      It is beyond dispute that "the conditions in the Sarpusa prison were so terrible - if
    not horrific - that many prisoners died while incarcerated. Prisoners were fed next to
    nothing, and the prison was overcrowded, unsanitary, and lacked sufficient medical care."
    Al Ginco, 
    626 F. Supp. 2d at 127, n.3
    .
    5
    of a number of suicide martyrs based on videotapes captured at an al Qaeda safehouse."
    Al Ginco, 
    626 F. Supp. 2d at 128, n.4
    ; see also FAC,-r,-r 4,64. Not yet aware that "the
    tape involving [AI] Janko ... was actually an Al Qaeda torture tape," U.S. forces
    transported plaintiff to Guantanamo Bay, Cuba. Al Ginco, 
    626 F. Supp. 2d at 125, 128, n.4
    ; see also FAC,-r 69.
    During his time at Guantanamo, plaintiff's detention status was twice reviewed by
    Combatant Status Review Tribunals ("CSRTs"). On October 27,2004, the first of two
    different CSRT panels determined that plaintiff was an enemy combatant. See FAC,-r
    94. That CSRT panel relied upon evidence such as the taped confession the Government
    later learned was coerced. See 
    id.
     An Administrative Review Board ("ARB") later
    affirmed plaintiff's status as an enemy combatant and continued his detention on October
    24,2005. See 
    id.
     ,-r 95. Relying upon much of the same evidence, a second CSRT panel
    again determined in 2008 that plaintiff was properly detained as an enemy combatant.
    
    Id.
     ,-r 96.
    Ultimately, however, in the aftermath of the Supreme Court's decision in Rasul v.
    Bush, 
    542 U.S. 466
    , 483 (2004) (holding that 
    28 U.S.C. § 2241
     extends statutory habeas
    corpus jurisdiction to detainees in Guantanamo Bay), plaintiff filed a petition for writ of
    habeas corpus with this Court on June 30, 2005. Al Ginco, 
    626 F. Supp. 2d at 125
    ; see
    also FAC,-r 99. No action was taken on the petition until after the Supreme Court ruled
    on June 12,2008, in Boumediene v. Bush, 
    553 U.S. 723
    , 771 (2008), that Guantanamo
    6
    detainees are "entitled to the privilege of habeas corpus to challenge the legality of their
    detention."
    Shortly after Boumediene, I issued a Case Management Order ("CMO") on August
    27,2008 for the handling of the 26 habeas petitions on my docket. After a protracted
    series of procedural issues, described more fully in my earlier Opinion, I commenced the
    habeas corpus proceedings for petitioner Al Janko on May 28, 2009. On June 22,2009, I
    granted his petition and ordered his release, finding that "the limited and brief nature of
    [AI] Janko's relationship with al Qaeda (and/or the Taliban) ... was sufficiently vitiated"
    by his intervening mistreatment and imprisonment by al Qaeda and the Taliban such that
    "he was no longer 'part of al Qaeda (or the Taliban) at the time he was taken into
    custody by U.S. forces in 2002," and, as a result, the Government "failed to establish by a
    preponderance of the evidence that [AI] Janko was lawfully detainable as an enemy
    combatant ... at the time he was taken into custody." Al Ginco, 
    626 F. Supp. 2d at 130
    .
    Final judgment was entered in the case on July 17, 2009. The United States did not
    appeal the ruling, and the plaintiff was finally released from Guantanamo on October 7,
    2009. FAC `` 99-100.
    II.    First Amended Complaint
    Plaintiff now brings suit against the United States, 20 current and former
    high-ranking civilian and military officials,6 and 100 Jane and John Does, FAC `` 13-35
    6      As explained below in Section III.B.l, the Government properly substituted the
    7
    - "the individual officers, military commanders, and policymakers" allegedly
    "responsible for [p ]laintiffs wrongful detention, and for the conditions inflicted on him"
    - seeking money damages for the constitutional and statutory violations he allegedly
    suffered during his detentions in Afghanistan 7 and Guantanamo. 8 PI. 's Opp'n to Indiv.
    United States as the sole defendant for plaintiffs Alien Tort Statute claims in Counts
    V-VII.
    7      According to the Government, however, "[i]t is unclear to what extent Counts One
    through Four and Count Eighteen address the 'abusive techniques' alleged to have
    occurred in Afghanistan." Indiv. Defs.' Mot. to Dismiss at 3, n.3 (emphasis added).
    Indeed, plaintiff focuses his allegations on Guantanamo in these Counts. See id (noting
    specific references to Guantanamo in the F AC).
    8       With respect to plaintiffs allegations against individual defendants: in Counts I, II,
    IV (against defendants Gates, Rumsfeld, Wolfowitz, England, McGarrah, Miller, Hood,
    Harris, Buzby, Thomas, Copeman, McQueen, Cannon, Bumgarner, Dennis, Rodriguez,
    and Rester), plaintiff alleges that his detention and conditions of confinement violated his
    Fourth and Fifth Amendment rights, and that the CSRT violated his Fifth Amendment
    right to due process. FAC `` 136-49, `` 154-61. In Count III (against defendants
    Ashcroft and Mueller), plaintiff alleges denial of a "name-clearing hearing" in violation
    of his Fifth Amendment right to due process. FAC `` 150-53. In Count XVIII,
    plaintiff alleges (among other things) that the individual defendants conspired to abuse
    and detain him in violation of his Fourth, Fifth, and Thirteenth Amendment rights, and in
    violation of 
    42 U.S.C. § 1985
    (2)-(3). FAC `` 283-287; see also Indiv. Defs.' Mot. to
    Dismiss at 1.
    Plaintiff also alleges multiple violations of the Alien Tort Statute ("ATS"), 
    28 U.S.C. § 1350
    , which were later converted, by substitution, into claims against the United
    States under the Federal Tort Claims Act ("FTCA"), 
    28 U.S.C. § 2671
     et seq. In Count V,
    for example, plaintiff alleges violation of his right to be free from prolonged, arbitrary
    detention; in Count VI, violation of his right to be free from torture and cruel, inhuman,
    or degrading treatment; and in Count VII, violation of his rights under the Third and
    Fourth Geneva Conventions. See F AC `` 162-84. He also brings nine state tort claims
    against the United States under the FTCA, including allegations of negligent failure to
    protect from harm (Count VIII); negligent failure to provide adequate medical care
    (Count IX); cruel, inhuman or degrading treatment (Count X); intentional infliction of
    emotional distress (Count XI); negligent infliction of emotional distress (Count XII); false
    8
    Defs.' Mot. to Dismiss ("Pl.'s Opp'n to Indiv. Defs."), Aug. 29, 2011, at 5 [Dkt. #17].
    To be sure, plaintiff does not allege that any specific, identifiable defendant personally
    mistreated him. See Indiv. Defs.' Mot. to Dismiss at 4. Nevertheless, he alleges that
    while he was detained and believed to be an enemy combatant, U.S. forces used "abusive
    interrogation techniques" against him, such as "striking his forehead; threatening to
    remove his fingernails; sleep deprivation; exposure to very cold temperatures; ...
    humiliation; ... and rough treatment," FAC `` 66-67.
    9
    He claims that unidentified U.S.
    forces urinated upon him when he first arrived in Guantanamo, FAC               ~   71; tied, shackled,
    and force-fed him, 
    id.
       ~   72; stepped on plaintiffs Koran, 
    id.
       ~   81; subjected him to
    solitary confinement, resulting in "extreme sleep deprivation," 
    id.
            ~   73; deprived him of
    arrest and false imprisonment (Count XIII); assault (Count XIV); battery (Count XV);
    prolonged, arbitrary detention (Count XVI); and negligent supervision and hiring (Count
    XVII). See FAC `` 185-282; see also Gov't Mot. to Dismiss at 1.
    9      It is important to note that where plaintiff references "torture," he either: 1) alleges
    that the Taliban or Al Qaeda tortured him prior to being held in U.S. custody, see, e.g.,
    FAC `` 2,49,56,58,62,68, 71, 90, 91, 94, 95, 97, 98, 236, 256; or he 2) alleges or
    references torture in the abstract, see, e.g., FAC `` 36, 135, 171, 178. To the extent he
    directs allegations at the United States or at U.S. personnel, he does not claim that any
    known person participated in his alleged torture. See, e.g., FAC `` 1 ("[ t]he United
    States Government subjected Plaintiff to ... torture"); 14, 18, 106, 123, 124, 127, 129,
    172 (individual defendants' alleged approval, knowledge, or implementation of torture or
    acts "tantamount to torture"); 33-35 (alleged U.S. citizens' (Jane/John Does')
    participation in torture). Of course, the fact that plaintiff does not allege such conduct by
    any known U.S. citizen only underscores the U.S. policy against such conduct. As the
    Government's brief makes very clear: "Torture is flatly illegal. Defendants abhor it, and
    the government has repudiated it in the strongest terms." Indiv. Defs.' Mot. to Dismiss
    at 4 (citing 18 U.S.C. § 2340A; Exec. Order No. 13491, § 3(a), 
    74 Fed. Reg. 4894
     (Jan.
    22,2009)).
    9
    adequate medical and psychological care, 
    id.
            ~   74; and inflicted "severe beatings and
    threats against himself and his family," 
    id.
       ~   75. Plaintiff claims that as a result of these
    and other allegations of mistreatment, he attempted suicide seventeen times. 
    Id.
              ~   78.
    He now seeks damages for the physical and psychological injuries he allegedly suffered.
    ANALYSIS
    I.     Standard of Review
    The jurisdiction of federal courts is, of course, limited. Kokkonen v. Guardian
    Life Ins. Co., 
    511 U.S. 375
    , 377 (1994). Under Fed. R. Civ. P. 12(h)(3), "[i]fthe court
    determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
    action." Accordingly, "it is the duty of this court to dismiss whenever it becomes
    apparent that [this court] lack[s] jurisdiction." Green v. Dep 't o/Commerce, 
    618 F.2d 836
    , 839 (D.C. Cir. 1980).
    When facing a Rule 12(b)(I) motion to dismiss, plaintiff bears the burden of
    demonstrating that jurisdiction exists. Khadr v. United States, 
    529 F.3d 1112
    , 1115
    (D.C. Cir. 2008). The Court, in turn, "must accept as true all well-pleaded factual
    allegations and draw all reasonable inferences in favor of the plaintiffs." Logan v. Dep't
    o/Veteran. Affairs, 
    357 F. Supp. 2d 149
    , 153 (D.D.C. 2004) (quoting Fitts v. Fed. Nat'f
    Mortg. Ass 'n, 
    44 F. Supp. 2d 317
    ,321 (D.D.C. 1999)). Even so, a court "may give the
    plaintiffs factual allegations closer scrutiny and may consider materials outside the
    pleadings" when evaluating its ability to hear a claim. Logan, 
    357 F. Supp. 2d at
    153
    10
    (citing Fed. R. Civ. P. 12(b)(l)); see also Grand Lodge o/Fraternal Order o/Police v.
    Ashcroft, 
    185 F. Supp. 2d 9
    , 13-14 (D.D.C. 2001) (Urbina, J.). A defendant's motion to
    dismiss for lack of subject matter jurisdiction should only be granted, however, when "it
    appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
    which would entitle him to relief." Richardson v. United States, 
    193 F.3d 545
    , 549 (D.C.
    Cir. 1999) (internal quotation and citation omitted); see also Pl.'s Opp'n to Indiv. Defs. at
    8.
    II.    Individual Defendants (Counts I-IV and XVIII)
    The resolution of this case turns on the answer to one question: whether the
    jurisdiction stripping provision in § 7 of the MCA applies to damages claims by aliens
    who have been released from Guantanamo pursuant to a successful habeas petition.
    Unfortunately for the plaintiff, the answer is yes and, as such, the defendants' motion
    must be GRANTED.
    A.     This Court Lacks Jurisdiction to Hear Plaintiff's Claims Against the
    Individual Defendants.
    The Congress has spoken with particular clarity on the matter now before this
    Court. Indeed, the Congress stripped this Court of jurisdiction to hear any ofplaintiffs
    allegations, all eighteen of which are barred under Section 7 of the Military Commissions
    Act of2006, Pub. L. No. 109-366, 
    120 Stat. 2600
    , 2635 (codified at 
    28 U.S.C. § 2241
    (e))
    ("MCA"). Under 
    28 U.S.C. § 2241
    (e)(2):
    [N]o court, justice, or judge shall have jurisdiction to hear or
    11
    consider any other action against the United States or its
    agents relating to any aspect of the detention, ... treatment, ..
    . 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 (emphasis
    added).
    Thus, on its face, the MCA prohibits this - and any other - Court from hearing
    cases such as plaintiffs, which involves an alien "detained by the United States," see
    FAC ,-r,-r 11, 63-89, and which plainly relates to aspects of his "detention [and] treatment"
    while he was in U.S. custody in Afghanistan and Guantanamo, see 
    id.
     ,-r,-r 136-287.
    Undaunted by what appears to be a clear statutory bar, plaintiff argues that MCA
    § 7 does not, in fact, bar his claims. Plaintiffs main contention is that his suit falls
    outside the scope of the MCA because he was neither "properly detained as an enemy
    combatant" nor "awaiting such determination." 
    28 U.S.C. § 2241
    (e)(2); see also Pl.'s
    Opp'n to Indiv. Defs. at 9-13. Not so! Plaintiffs argument that he was not "determined
    by the United States to have been properly detained as an enemy combatant" is clearly
    mistaken. The term "United States" in § 2241 (e )(2) refers to the Executive Branch, not
    the Judicial Branch. Indeed, Judge Hogan of our Court reached that very conclusion just
    last year in In re Pet'rs Seeking Habeas Corpus Reliefin Relation to Prior Detentions at
    Guantanamo Bay, 
    700 F. Supp. 2d 119
    , 136-37 (D.D.C. 2010) (Hogan, J.). Thus, the
    determinations of two separate CSRTs - one in 2004, and another in 2008, both of which
    determined that plaintiff was an enemy combatant - more than satisfy the statutory
    12
    requirements of28 U.S.C. § 2241(e)(2).JO See Indiv. Defs.' Mot. to Dismiss at 6; see
    also FAC ,-r,-r 94-96.
    And, notwithstanding plaintiffs arguments to the contrary, my subsequent grant of
    habeas relief neither eliminates the MCA's jurisdictional bar to plaintiffs
    detention-related claims, nor confers jurisdiction over his non-habeas claims. Indiv.
    Defs.' Mot. to Dismiss at 6. But see PI.'s Opp'n to Indiv. Defs. at 10 (arguing that
    "[w]hen this Court granted [p]laintiffs writ of habeas corpus, it affirmed that [p]laintiff
    was clearly not part of the Taliban or Al Qaeda when he was detained, and he thus was
    not 'lawfully' detained"). Indeed, a number of my colleagues on this Court have
    examined this very legal issue in somewhat similar factual settings and still determined
    that
    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. § 224l(e)(2).
    Nothing in the statute qualifies the necessary determination or
    suggests that it must be conducted in a particular way.
    Al-Zahrani, 
    684 F. Supp. 2d at 110
     (D.D.C. 2010) (Huvelle, J.).11 And, since the
    10     As defendants note: "The United States has since discontinued the CSRT process.
    Nevertheless, the CSRT process was the review mechanism in place at the time the MCA
    was enacted, and it was clearly the process Congress contemplated when crafting Section
    2241 (e)(2)." Indiv. Defs.' Mot. to Dismiss at 6, n.S.
    II     Similarly, another judge on our Court held that a district court's grant of a habeas
    corpus petition is not a "determin[ation] by the United States" that the petitioner has not
    "been properly detained as an enemy combatant" within Section 224l(e)(2) because
    under the statute's plain terms, "United States" refers to the Executive, and not the
    13
    "United States," through its 2004 and 2008 CSRTs, determined that plaintiff was as an
    enemy combatant, MCA § 7 unequivocally bars plaintiff's claims against the United
    States and its agents - including all individual defendants - and this Court lacks
    subject-matter jurisdiction to hear plaintiff's claims. 12 Thus, even accepting as true
    Judicial, branch. In re Pet'rs Seeking Habeas Corpus Relief, 
    700 F. Supp. 2d at 136-37
    (Hogan, J.) ("[A] successful habeas petition would not provide a federal court with
    jurisdiction to hear a Petitioner's 'other action,' in this case a damages action,"), aff'd on
    other grounds sub nom. Gul v. Obama, 
    652 F.3d 12
     (D.C. Cir. 2011). Thus, plaintiff's
    argument that "[c]ourts and judges are part of 'the United States' for purposes of § 2241,"
    PI. 's Opp'n to Indiv. Defs. at 11 - a statutory construction argument considered and
    expressly denied in In re Pet'rs Seeking Habeas Corpus Relief, also fails. See 
    700 F. Supp. 2d at 136-37
    ; see also Indiv. Defs.' Mot. to Dismiss at 6-7; Indiv. Defs.' Reply in
    Supp. or Mot. to Dismiss ("Indiv. Defs.' Reply"), Sept. at 13-14 [Dkt. #18].
    12      Plaintiff also argues that even ifhis claims are encompassed by the MCA's
    jurisdictional bar, the statute is unconstitutional as applied to him and therefore does not
    prevent this Court from hearing his claims. Plaintiff offers multiple variations on the
    same theme to support his argument, yet each fails in tum. First, he contends that the
    Supreme Court invalidated Section 7 of the MCA - including both 28 U.S.c. §
    2241(e)(1) (bar on detainee habeas claims) and § 2241(e)(2) (bar on "other" non-habeas
    claims) - in Boumediene v. Bush, 
    553 U.S. 723
    , 792 (2008). PI.'s Opp'n to Indiv. Defs.
    at 15-17. Plaintiff's interpretation of the Boumediene holding is, to say the least,
    strained, and it is wholly unconvincing. See Boumediene, 
    553 U.S. at 792
     ("In view of
    our holding we need not discuss the reach of the writ with respect to claims of unlawful
    conditions of treatment or confinement."). Indeed, every court in our Circuit to consider
    the issue has concluded that "Boumediene did not invalidate § 2241(e)(2)." AI-Zahrani,
    
    684 F. Supp. 2d at 108-109
    ; see also, e.g., AI-Adahi v. Obama, 596 F. Supp. 2d Ill, 119
    (D.D.C. 2009) (Kessler, J.); Khadr v. Bush, 
    587 F. Supp. 2d 225
    ,235-36 (D.D.C. 2008)
    (Bates, J.); In re Guantanamo Bay Detainee Litig., 
    577 F. Supp. 2d 314
    ,315-16 (D.D.C.
    2008) (Hogan, J.); In re Guantanamo Bay Detainee Litig., 
    570 F. Supp. 2d 13
    , 18 (D.D.C.
    2008) (Urbina, J.). Moreover, to the extent plaintiff attempts to facially challenge the
    MCA, I decline to address it here. See AI-Zahrani, 
    684 F. Supp. 2d at 110
    . Similarly,
    plaintiff's argument - that because CSRTs are not constitutionally sufficient alternatives
    to habeas corpus review, Boumediene, 
    553 U.S. at 733
    , using plaintiff's two CSRT
    hearings as a basis for a jurisdictional bar is also unconstitutional, Opp 'n to Indiv. Defs.
    14
    plaintiffs factual allegations and drawing all reasonable inferences in his favor,
    plaintiffs claims against the individual defendants are barred by statute. Accordingly,
    this Court has no subject-matter jurisdiction to consider them and defendants' Motion to
    Dismiss is GRANTED as to the individual defendants. 13
    III.   Defendant U.S. Government (Counts V-XVII)
    A.     This Court Also Lacks Jurisdiction to Hear Plaintiff's Claims Against
    the U.S. Government.
    at 14-15 - also fails. See Al-Zahrani, 
    684 F. Supp. 2d at 110
     ('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 ofMCA Section 7' is baseless."). His
    argument that MCA § 7 violates "traditional due process principles," see Opp'n to Indiv.
    Defs. at 17-24, is also meritless.
    13      In any event, even if this Court had jurisdiction to consider plaintiff s claims
    (which it does not), qualified immunity would surely shield the individual defendants
    from suit for civil damages. See Mitchell v. Forsyth, 
    472 U.S. 511
    , 526 (1985) (stating
    that qualified immunity is "immunity from suit rather than a mere defense to liability")
    (emphasis in original). Here, because the rights plaintiff seeks to invoke - specifically
    his own Fourth, Fifth, and Thirteenth Amendment rights, see Pl.'s Opp'n to Indiv. Defs.
    at 25 - were not clearly established at the time of his detention, the individual defendants
    would be entitled to qualified immunity even if a Bivens action were implied. See
    Pearson v. Callahan, 
    555 U.S. 223
    , 236 (2009) (holding that district court may examine
    whether right was clearly established before asking whether the officer's conduct violated
    a constitutional right); see also Hamdi v. Rumsfeld, 
    542 U.S. 507
    , 533-35 (2004)
    (plurality opinion) (outlining due process requirements for a citizen-detainee while noting
    that tribunal proceedings may need to be tailored to avoid burden on the Executive
    Branch); Indiv. Defs.' Mot. to Dismiss at 22-25. Accordingly, because "[n]o reasonable
    government official would have been on notice ... that plaintiff[] had any [constitutional]
    rights," Al-Zahrani, 
    684 F. Supp. 2d at 112, n.5
    , plaintiffs claims would - in any event-
    fail, and defendants' Motion to Dismiss would still be granted. For substantially the
    same reasons, plaintiffs § 1985 claim (Count XVIII) would also be dismissed. That is,
    even if plaintiff could state a § 1985 claim (which he cannot), defendants would still be
    entitled to qualified immunity. See Indiv. Defs.' Mot. to Dismiss at 32-36.
    15
    F or the same reasons discussed above in Section II.A, the Military Commissions
    Act of2006 bars plaintiffs claims against the Government. Because the MCA acts as a
    complete jurisdictional bar, this Court does not have subject-matter jurisdiction to hear
    plaintiffs ATS and FTCA claims and therefore the Government's Motion to Dismiss
    Counts V-XVII must also be GRANTED. Not surprisingly, perhaps, this result would be
    no different even if the MCA were not a jurisdictional bar. How so?
    B.     Under Any Circumstances, This Court Lacks Jurisdiction to Hear
    Plaintiff's Alien Torts Statute and Federal Tort Claims Act Claims
    (Counts VI-XVII).
    Even if the MCA did not bar plaintiffs claims (and it does), this Court still would
    not have jurisdiction to hear plaintiff s ATS and FTCA claims against the United States.
    The Government contends that the viability of plaintiffs claims against the United States
    boils down to the resolution of one question: whether the United States has waived
    sovereign immunity as to the instant claims. Gov't Mot. to Dismiss at 4. I agree that it
    has not been waived with respect to the ATS claims contained in Counts V-VII, and
    because the foreign-country exception bars plaintiffs FTCA claims arising in
    Afghanistan and Guantanamo (Claims VIII-XVII), the answer is unequivocally "no."
    1.   The United States Properly Substituted Itself As the Sole
    Defendant For Plaintiff's Alien Torts Statute Claims In Counts
    V-VII.
    In Counts V-VII, plaintiff brings claims under the Alien Tort Statute, 
    28 U.S.C. § 1350
    , alleging that the named defendants violated his right to be free from "prolonged
    16
    arbitrary detention" (Count V, FAC `` 162-67) and his right to be free from "torture and
    cruel, inhuman, or degrading treatment" (Count VI, FAC `` 168-75). He also alleges
    violations of his rights under customary international law and the Third and Fourth
    Geneva Conventions. FAC       ``   176-84. Because plaintiff improperly brings claims
    under the ATS, however, a preliminary examination of those claims is essential to
    determining this Court's jurisdiction to hear them.
    Under the ATS, "district courts ... 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." 
    28 U.S.C. § 1350
    . But under the Westfall Act,14 the Federal Tort
    Claims Act, 
    28 U.S.C. § 2671
     et seq., is the exclusive remedy in a suit against the United
    States for "injury or loss of property, or personal injury or death arising or resulting from
    the negligent or wrongful act or omission of any employee of the Government while
    acting within the scope of his office or employment." 
    28 U.S.C. § 2679
    (b)(l). Indeed,
    "[ a]ny other civil action or proceeding for money damages arising out of or relating to the
    same subject matter against the employee or the employee's estate is precluded without
    regard to when the act or omission occurred." 
    Id.
     (emphasis added).
    Here, because the defendants named in Counts V-VII were acting within the scope
    14     See Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.
    L. No. 100-694, 
    102 Stat. 4563
     (codified as amended at 
    28 U.S.C. §§ 2671
    , 2674, 2679).
    17
    of their employment,15 and because neither Westfall Act exception applies in this case,16
    plaintiff's exclusive remedy (to the extent any remedy exists at all) is against the United
    States through the FTCA and not through the ATS. Accordingly, the United States is
    15      Despite plaintiff's extensive arguments to the contrary, see Pl.'s Opp'n to United
    States' Mot. to Dismiss ("Pl.'s Opp'n to Gov't"), Aug. 29, 2011, at 3-10 [Dkt. #16], there
    is no real dispute about the named defendants acting within the scope of their
    employment. Indeed, the conduct plaintiff alleges - conduct related to both interrogation
    and detention, see FAC ~ 170 ("[t]he acts described herein had ... the purpose[] of
    obtaining information or a confession from [p]laintiff') - falls well within defendants'
    scope of employment. Accordingly, this Court is bound by the holdings in Rasul v.
    Myers, 
    512 F.3d 644
     (D.C. Cir. 2008) (Rasul1), vacated by 
    129 S. Ct. 763
     (2008),
    reinstated in relevant part by 
    563 F.3d 527
     (D.C. Cir. 2009) (Rasul II), and Ali v.
    Rumsfeld, 
    649 F.3d 762
    , 774 (D.C. Cir. 2011) (concluding, based on facts similar to those
    here, that "defendants' alleged tortious conduct - 'the detention and interrogation of
    suspected enemy combatants'- was 'incidental to [their] legitimate employment duties'
    because it was 'the type of conduct the defendants were employed to engage in"')
    (quoting Rasul 1,
    512 F.3d at 658-59
    ), and the United States was properly substituted as
    the defendant. This is true even where the "complaint alleges torture and abuse tied
    exclusively to the plaintiffs' detention in a military prison and to the interrogations
    conducted therein." Rasul I, 
    512 F.3d at 658
     (internal citations and quotations omitted).
    Ultimately, however, plaintiff's own words are most telling: he alleges that each named
    defendant "act[ ed] under the color of law as a United States official or federal officer."
    FAC `` 165,172,179.
    16     There are two Westfall Act exceptions for which the FTCA is not the exclusive
    remedy for claims against federal employees acting within the scope of their employment:
    claims brought "for a violation of the Constitution of the United States" and claims
    brought "for a violation ofa statute of the United States." 
    28 U.S.C. § 2679
    (b)(2).
    Plaintiff's claims satisty neither exception. Counts V-VII allege violations of the A TS,
    not the Constitution. Moreover, the ATS "'is strictly a jurisdictional statute' that 'does
    not confer rights nor does it impose obligations or duties that, if violated, would trigger
    the Westfall Act's statutory exception.'" Ali, 649 F.3d at 777 (quoting Rasul v.
    Rumsfeld, 
    414 F. Supp. 2d 26
    ,37-38 (D.D.C. 2006». Finally, the customary
    international law claims underlying plaintiff's claims also fall outside the two Westfall
    Act exceptions. See Gov't Mot. to Dismiss at 8-9. Plaintiff's primary retort - that this
    Court should disregard binding precedent and adopt as law Judge Edwards' Ali dissent,
    18
    properly substituted - by operation oflaw under 
    28 U.S.C. § 2679
    (d)(1)17 - for the named
    defendants in Counts V-VII. As the sole defendant for Counts V-VII, however, those
    Counts must face the same inquiry as Counts VIII-XVII: whether the United States has
    waived sovereign immunity for claims for money damages under the A TS, or for the A TS
    claims underlying plaintiff's FTCA claims. Unfortunately for the plaintiff, the answer,
    once again, is: "no."
    2.      Because The United States Has Not Waived Sovereign Immunity
    With Respect to the ATS, This Court Does Not Have Jurisdiction
    To Hear Plaintiff's ATS Claims (Counts V-VII).
    It is well settled that a plaintiff cannot sue the United States without an express
    waiver of sovereign immunity. F.D.I.C. v. Meyer, 
    510 U.S. 471
    , 474 (1994).18 But the
    Supreme Court has made clear that the ATS does not itself create a cause of action, Sosa
    v. Alvarez-Machain, 
    542 U.S. 692
    , 724 (2004), and our Circuit Court has held that the
    ATS does not constitute an independent waiver of sovereign immunity, Sanchez-Espinoza
    v. Reagan, 
    770 F.2d 202
    , 207 (D.C. Cir. 1985). Moreover, the United States has not
    waived sovereign immunity under the FTCA as it relates to the alleged conduct - such as
    see Pl.'s Opp'n to Gov't at 10-14, is - to say the least - unavailing.
    17      The Government's certification that the named defendants acted in the scope of
    their federal employment is sufficient to make a prima facie showing. See, e.g., Council
    on Am. Islamic Rels. v. Ballenger, 444 FJd 659,662 (D.C. Cir. 2006); see also Gov't
    Mot. to Dismiss at 5, n.5.
    18     To the extent the United States has waived sovereign immunity for certain aspects
    of the FTCA, see infra Section III.BJ, those aspects are not implicated here.
    19
    violations of customary international law, the Third and Fourth Geneva Conventions, and
    other international standards, see FAC,-r,-r 164,171, 178, 179 - underlying plaintiff's ATS
    claims. Indeed, Counts V-VII are not covered under the FTCA's waiver of sovereign
    immunity because they do not allege that "the United States would be liable to the
    claimant as a private person in accordance with the law a/the place l9 where the act or
    omission occurred." 
    510 U.S. at 477
     (emphasis added) (quoting 
    28 U.S.C. § 2846
    (b)).
    Of course, customary international law is not state law and therefore Counts V-VII are
    not covered under the FTCA's limited waiver.20 Thus, since the United States has not
    waived its sovereign immunity with respect to the ATS claims contained in Counts V-VII,
    this Court does not have jurisdiction to hear them and the Government's Motion to
    Dismiss must be GRANTED as to Counts V-VII.
    3.    Because the Foreign Country Exception to the FTCA Bars
    Claims Arising in a Foreign Country, This Court Does Not Have
    19     By interpreting "law of the place" as "the law of the State - the source of
    substantive liability under the FTCA," Meyer, 
    510 U.S. at 478
    , the Supreme Court has
    excluded federal claims from the FTCA waiver, see Miree v. DeKalb County, 
    433 U.S. 25
    , 29 n.4 (1977).
    20     As the Seventh Circuit has persuasively described, "[i]fthe plaintiff's claim is not
    cognizable under state tort law, it does not fall within the sovereign's waiver of immunity
    and must be dismissed." See Sobitan v. Glud, 
    589 F.3d 379
    , 389 (7th Cir. 2009). For
    the same reason, Counts X (cruel, inhuman, and degrading treatment) and XVI
    (prolonged arbitrary detention), FAC ,-r,-r 206,255, must be dismissed because neither
    alleges torts actionable against private individuals under the laws of Washington, D.C.
    Moreover, plaintiff's convoluted claims that the law of Washington, D.C., somehow
    incorporates customary international law and that the ATS is thus included in the FTCA's
    waiver of sovereign immunity, see Pl.'s Opp'n to Gov't at 15-19, is both incredible and
    unsupported by law. See also Gov't Reply at 10.
    20
    Jurisdiction To Hear Counts VIII-XVII (Federal Tort Claims
    Act, 
    28 U.S.C. § 2671
     et seq.).21
    In Counts VIII-XVII, plaintiff brings nine state-tort claims against the United
    States under the Federal Tort Claims Act, 
    28 U.S.C. § 2671
     et seq. All of those claims,
    however, are barred by the foreign-country exception to the FTCA.
    Although the FTCA constitutes a limited waiver of the United States' sovereign
    immunity, United States v. Orleans, 
    425 U.S. 807
    , 813 (1976), it also contains several
    exceptions to its waiver. Specifically excluded from the FTCA waiver of sovereign
    immunity is "[a]ny claim arising in a foreign country." 
    28 U.S.C. § 2680
    (k).
    It is beyond dispute that the substance of plaintiff s allegations arose outside of the
    United States in Afghanistan and in Cuba. Tellingly, plaintiff does not quarrel with this
    Court's lack of subject-matter jurisdiction to hear his Afghanistan-related claims. He
    does, however, challenge whether the foreign-country exception bars his claims arising
    out of conduct which took place in Guantanamo.
    Not surprisingly, plaintiff once again suggests that Guantanamo is a United States
    "sovereign for purposes of § 2680(k)." Pl.'s Opp'n to Gov't at 20. And once again, his
    argument fails. See Boumediene, 
    553 U.S. at 754
     ("We therefore do not question the
    Government's position that Cuba, not the United States, maintains sovereignty, in the
    21     Because the United States was substituted as the sole defendant for Counts V-VII,
    those Counts are subject to the same foreign-country exception analysis as Counts
    VIII-XVII, and are also barred for that reason.
    21
    legal and technical sense of the tenn, over Guantanamo Bay."). Indeed, Guantanamo fits
    well within the Supreme Court's "foreign country" definition for purposes of the FTCA:
    it is a "territory subject to the sovereignty of another nation." United States v. Spelar,
    
    338 U.S. 217
    , 219 (1949).22 And as the Government points out, other courts - in our
    Circuit and others - have uniformly dismissed FTCA claims arising in Guantanamo for
    precisely this reason. See, e.g., AI-Zahrani, 
    684 F. Supp. 2d at 117-19
     (relying on Spelar
    to bar FTCA claims arising in Guantanamo); see also Def. United States' Reply in Supp.
    of Mot. to Dismiss ("Gov't Reply"), Sept. 26, 2011 at 12 [Dkt. #19] (citing other
    persuasive authority). As a result, this Court clearly lacks jurisdiction to hear plaintiffs
    FTCA claims23 and the Government's Motion to Dismiss must also be GRANTED with
    respect to Counts VIII-XVII.
    CONCLUSION
    War, by its very nature, victimizes many of those caught in its wake. Innocent
    22     Just as the Supreme Court looked to the lease between the U.S. and Great Britain
    to detennine British sovereignty in Spelar, it also looked to the lease between the U.S.
    and Cuba to detennine Cuban sovereignty in Guantanamo. Compare Spelar, 
    338 U.S. at
    218-19 with Rasul, 
    542 U.S. at 471
    . In both cases, the bases remained subject to the
    lessor's sovereignty because the lease did not transfer sovereignty to the United States.
    See 
    338 U.S. at 218-19
    ; 542 U.S. at 471; see also Gov't Mot. to Dismiss at 12.
    23      To the extent plaintiff alleges that conduct in Afghanistan and Cuba was caused by
    acts or omissions of individuals in Washington, D.C., and thus avoids the foreign-country
    exception, those arguments are squarely foreclosed by Sosa, 
    542 U.S. at 711-12
    (repudiating the "headquarters doctrine" and emphasizing that "the 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") (emphasis added).
    22
    civilians are invariably killed, and sometimes even mistakenly imprisoned. Our legal
    system was never designed to provide a remedy in our Courts for these inevitable
    tragedies, especially in a conflict like this where terrorists cunningly morph into their
    surroundings. Indeed, the Congress has specifically barred the Judicial Branch from
    reviewing "any aspect of the detention ... treatment ... 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). For this Court to circumvent such a clear
    directive from our Legislative Branch would be an utter disregard of the limitations of our
    judicial power. And thus, for all of the foregoing reasons, the defendants' Motions to
    Dismiss [Dkt. ## 13, 14] must be GRANTED. An Order consistent with this decision
    accompanies this Opinion.
    r
    ~
    RICHARDJ. E
    United States District Judge
    23
    

Document Info

Docket Number: Civil Action No. 2010-1702

Citation Numbers: 831 F. Supp. 2d 272, 2011 U.S. Dist. LEXIS 147105, 2011 WL 6440906

Judges: Judge Richard J. Leon

Filed Date: 12/22/2011

Precedential Status: Precedential

Modified Date: 11/7/2024

Authorities (24)

In Re Seeking Habeas Corpus Relief in Relation to Prior ... , 700 F. Supp. 2d 119 ( 2010 )

In Re Guantanamo Bay Detainee Litigation , 570 F. Supp. 2d 13 ( 2008 )

Kokkonen v. Guardian Life Insurance Co. of America , 114 S. Ct. 1673 ( 1994 )

Pearson v. Callahan , 129 S. Ct. 808 ( 2009 )

Al Ginco v. Obama , 626 F. Supp. 2d 123 ( 2009 )

Al-Zahrani v. Rumsfeld , 684 F. Supp. 2d 103 ( 2010 )

Richardson, Roy Dale v. United States , 193 F.3d 545 ( 1999 )

Javier Sanchez-Espinoza v. Ronald Wilson Reagan, President ... , 770 F.2d 202 ( 1985 )

Rasul v. Bush , 124 S. Ct. 2686 ( 2004 )

United States v. Spelar , 70 S. Ct. 10 ( 1949 )

Sosa v. Alvarez-Machain , 124 S. Ct. 2739 ( 2004 )

United States v. Orleans , 96 S. Ct. 1971 ( 1976 )

Hamdi v. Rumsfeld , 124 S. Ct. 2633 ( 2004 )

Grand Lodge of the Fraternal Order of Police v. Ashcroft , 185 F. Supp. 2d 9 ( 2001 )

Gul v. Obama , 652 F.3d 12 ( 2011 )

Mark Green and Corporate Accountability Research Group v. ... , 618 F.2d 836 ( 1980 )

Federal Deposit Insurance v. Meyer , 114 S. Ct. 996 ( 1994 )

Boumediene v. Bush , 128 S. Ct. 2229 ( 2008 )

Khadr v. Bush , 587 F. Supp. 2d 225 ( 2008 )

Logan v. Department of Veterans Affairs , 357 F. Supp. 2d 149 ( 2004 )

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