Ameur v. Gates
950 F. Supp. 2d 905
E.D. Va.2013Background
- Plaintiff Mammar Ameur, an Algerian citizen, alleges detention, torture, and other abuses while held in Pakistan, Bagram (Afghanistan), and Guantanamo Bay (Cuba) and sues former U.S. executive officials under customary international law, the Geneva Conventions, the Alien Tort Statute (ATS), Bivens (constitutional) claims, and RFRA.
- Plaintiff filed a Second Amended Complaint naming high‑level officials (including Rumsfeld and Gates) and asserted Counts I–VI (nonconstitutional: ATS/Geneva/customary international law) and Counts VII–IX (constitutional and RFRA claims).
- The U.S. Attorney General certified under the Westfall Act and the United States substituted for the individual defendants on Counts I–VI; the Government then moved to dismiss those counts for lack of subject‑matter jurisdiction.
- Defendants moved to dismiss the constitutional claims as well; the Court considered whether the Military Commissions Act (MCA) removes jurisdiction, whether Westfall substitution was proper, and whether sovereign immunity/FTCA waived jurisdiction for foreign‑soil/international‑law claims.
- The Court dismissed the entire complaint without prejudice, holding (1) MCA § 2241(e)(2) bars jurisdiction over claims relating to detention, transfer, treatment, or conditions of confinement of persons determined to be enemy combatants; (2) Westfall substitution was proper for Counts I–VI under Virginia scope‑of‑employment law; and (3) sovereign immunity/FTCA principles independently bar nonconstitutional claims based on international law or injuries in a foreign country.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Westfall Act substitution was proper for Counts I–VI | Substitution improper because federal/common law (or ATS/treaty) should govern scope or exceptions apply (Geneva/ATS create cause of action) | Substitution proper: AG certified scope; exceptions (constitutional/statutory) do not apply; state scope law controls | Substitution proper; neither Westfall exception applies; Virginia scope‑of‑employment law shows acts were within employment |
| Whether MCA divests the court of jurisdiction over detention/treatment claims | Boumediene’s broad language renders MCA §7 wholly invalid so claims survive | MCA §2241(e)(2) remains valid post‑Boumediene and bars suits about detention/treatment of enemy combatants | MCA §2241(e)(2) applies and deprives the court of jurisdiction over claims relating to detention, transfer, treatment, or conditions of confinement |
| Whether the FTCA waives sovereign immunity for Counts I–VI (international law/Geneva) | FTCA waiver covers these harms or substitution should not convert claims into nonwaivable FTCA claims | FTCA waiver limited to state law torts in place where injury occurred; does not waive for international‑law claims or injuries in foreign country | Sovereign immunity bars nonconstitutional claims because FTCA waiver does not cover customary international law causes and §2680(k) (foreign country exception) applies |
| Which law governs scope‑of‑employment for Westfall Act (state vs. federal) | Federal common law should govern because claims raise federal/international issues and Westfall is federal | State law controls; Fourth Circuit precedent applies Virginia law to scope questions | State law governs; Virginia’s broad scope test includes the alleged conduct, so employees acted within scope |
Key Cases Cited
- Hamdan v. Rumsfeld, 548 U.S. 557 (U.S. 2006) (Supreme Court invalidating aspects of executive military commissions and prompting MCA legislation)
- Boumediene v. Bush, 553 U.S. 723 (U.S. 2008) (Supreme Court holding Guantanamo detainees have habeas rights and invalidating MCA to the extent it suspended the writ)
- Sosa v. Alvarez‑Machain, 542 U.S. 692 (U.S. 2004) (ATS provides jurisdiction but does not itself create causes of action in most instances)
- Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (U.S. 2013) (ATS does not itself provide causes of action beyond its jurisdictional grant)
- Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (U.S. 1995) (Westfall Act substitution framework and effect of AG certification)
- Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012) (jus cogens violations and foreign official immunity under federal common law)
- Al‑Zahrani v. Rodriguez, 669 F.3d 315 (D.C. Cir. 2012) (MCA §2241(e)(2) remains applicable to non‑habeas claims post‑Boumediene)
- Ross v. Bryan, 309 F.3d 830 (4th Cir. 2002) (applying state law to Westfall Act scope‑of‑employment analysis)
- Mitchell v. Forsyth, 472 U.S. 511 (U.S. 1985) (Westfall Act/official immunity principles distinguishing immunity from defense)