MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendants’ Motions to Dismiss (Docs. 77, 80). The case concerns an Algerian citizen’s claims against various former gov
The first issue is whether the United States of America, pursuant to 28 U.S.C. § 2679(b)(1) (“the Westfall Act”), properly substituted itself for the named individual defendants on Counts I-VI, where Plaintiff alleged violations of customary international law and the Geneva Convention. The Court holds that substitution was proper, as Plaintiffs claims seek relief against federal employees for harms resulting from acts or omissions occurring within the employees’ scope of employment. The Court finds that neither of the Westfall Act’s two exceptions to substitution applies here. Furthermore, because state law determines the scope of the individual defendants’ employment for the purposes of the Westfall Act, the Court finds that the acts or omissions fall within the scope as defined by Virginia law.
The second issue is whether the Military Commissions Act (“MCA”) divests the Court of subject matter jurisdiction to consider Plaintiffs claims seeking relief for harm related to his detention, transfer, and confinement in Afghanistan and Guantanamo Bay. The Court holds that it lacks subject matter jurisdiction here because the MCA bars courts from hearing claims related to detention, transfer, treatment, and conditions of confinement brought by individuals determined by the United States to be enemy combatants. Plaintiffs Complaint acknowledges he was determined to be an enemy combatant and that his claims relate to his detention and treatment at United States military facilities.
The third issue is whether sovereign immunity bars Plaintiffs claims against the United States, Counts I-VI, for harms occurring on foreign soil. The Court holds that sovereign immunity bars Plaintiffs claims for two reasons. First, the Federal Tort Claims Act (“FTCA”), while a partial waiver of sovereign immunity, does not act as a waiver where claims arise from a source other than state law, such as customary international law. Second, the FTCA does not waive sovereign immunity for harms occurring on the soil of another sovereign.
I. BACKGROUND and PROCEDURAL HISTORY
Plaintiff Mammar Ameur, a fifty-four year old Algerian citizen, brings this action seeking relief for violations of customary international law, the Geneva Convention, the First and Fifth Amendments of the United States Constitution, and the Religious Freedom Restoration Act (“RFRA”). (2d Am. Compl. ¶¶ 1, 12, Doc. 65.) Plaintiff names various former high-level government executive individuals, including former Secretaries of Defense Robert Gates and Donald Rumsfeld, as defendants (“Individual Defendants”). (Id. ¶¶ 13-39.) Plaintiff also names one hundred John Does as defendants. (Id. ¶¶ 40-43.) Plaintiffs claims arise from being taken into custody in Pakistan and his time in detention in United States military facilities at Bagram Air Base, Afghanistan and Guantanamo Bay, Cuba. Plaintiff alleges that the Individual Defendants acted beyond the scope of their authority and employment in their involvement as decision-makers, supervisors, policy creators, or other roles connected with acts carried out by the United States military. (Id. ¶¶ 4-7.)
Plaintiff alleges that he was in Pakistan in 2002 after fleeing a violent civil war in his home country of Algeria. (Id. ¶ 53.) He was taken into custody during a July 2002 raid in Pakistan, despite not being the target of the raid. (Id. ¶ 54.) Plaintiff
Plaintiff was transferred to Bagram Air Base, Afghanistan in January 2003, where he remained until March 23, 2003. (Id. ¶ 58.) During his time at Bagram, Plaintiff was allegedly subjected to humiliating treatment, beatings, extreme temperatures, sleep deprivation, cavity searches, constant music, and other unpleasant and jarring treatment. (Id. ¶¶ 59-61.) Plaintiff further alleges that guards denied him a copy of the Qur’an for a period of time, often scattered the pages across his cell, and prevented Plaintiff from adhering to his prayer schedule and regimen. (Id. ¶ 62.) At no time during his detention at Bagram was Plaintiff given an explanation for his apprehension and detention, a notice that he was charged with any crime, or an opportunity to challenge his detention. (Id. ¶ 64.)
Plaintiff was transferred to Guantanamo Bay, Cuba on March 23, 2003, where he remained in detention until October 8, 2008. (Id. ¶¶ 65-66.) This transfer involved a cavity search, being forced into stressful positions for long periods of time without food or water, blindfolding, and again being hooded. (Id. ¶ 65.) Plaintiff alleges that he was subject to severe mistreatment during his time at Guantanamo Bay, including the following: beatings, forced nudity, touching of his genitals by male and female guards alike, spraying of mace, denial of water so that detainees could not wash off the mace, constant noise and floodlights, isolation, and frequent interrogation. (Id. ¶¶ 67-70.) Plaintiff suffered further injury due to the inadequacy of the footwear provided to him. (Id. ¶¶ 73-74.) Plaintiff alleges that he again faced difficulties in possessing a Qur’an. (Id. ¶ 71.) After arriving at Guantanamo Bay, Plaintiff was prevented from contacting his family until June 2007. (Id. ¶ 72.)
Plaintiff alleges that he was not determined to be an “enemy combatant” until October 2004, approximately two years after his initial detention. (Id. ¶ 79.) Plaintiff further alleges that in November 2005, three years prior to his release, he would have been eligible for release from Guantanamo and return to Algeria. (Id. ¶ 81.)
Plaintiff alleges that former Secretaries Gates and Rumsfeld, as well as other high-level officials, knew that innocent men were being held at Guantanamo Bay yet failed to release these individuals due to anticipated political repercussions. (Id. ¶¶ 84-86.) These individuals allegedly “oversaw a system of detention, coercive interrogations and harsh and humiliating conditions” at Bagram and Guantanamo. (Id. ¶ 88.) Plaintiff further alleges that various Defendants were involved in requests for, debates about, and approval of “aggressive interrogation techniques” that were “tantamount to torture.” (Id. ¶¶ 88-101.) Plaintiff maintains that other Defendants were involved with the implementation and oversight of the flawed process of determining enemy combatants, the refusal to bring detention facilities in compliance with the Geneva Conventions, and the failure to curb abusive practices in detention facilities. (Id. ¶¶ 104-16.) Plaintiff alleges that former Secretary Gates’s knowledge of these practices and failure to provide proper guidance to subordinates or otherwise end abusive processes subjects him to liability for these acts or omissions. (Id. ¶¶ 115-19.)
Procedural History
Plaintiff filed this suit in the Western District of Washington on October 6, 2011.
In his Second Amended Complaint, Plaintiff asserts nine claims for relief. Counts I through VI (“nonconstitutional claims”) seek relief for violations of customary international law and the Geneva Convention pursuant to the Alien Tort Statute. Count I alleges prolonged arbitrary detention. (Id. ¶¶ 122-26.) Count II alleges cruel, inhuman, or degrading treatment. (Id. ¶¶ 127-31.) Count III seeks relief for torture. (Id. ¶¶ 132-36.) Count IV seeks relief for the targeting of a civilian. (Id. ¶¶ 137-42.) Count V alleges a violation of due process. (Id. ¶¶ 143-47.) Count VI alleges forced disappearance. (Id. ¶¶ 148-52.)
Counts VII and VIII (“constitutional claims”) assert Bivens claims against some of the Defendants for constitutional violations. Count VII alleges a Fifth Amendment violation based on Plaintiffs alleged right to due process. (Id. ¶¶ 153-58.) Count VIII alleges a First Amendment violation related to the freedom of religion and the freedom of expression and association. (Id. ¶¶ 159-65.)
Count IX alleges a violation of the Religious Freedom Restoration Act by certain Defendants. (Id. ¶¶ 166-71.)
On December 11, 2012, the United States filed a Notice of Substitution for all Individual Defendants as to Counts I-VI pursuant to the Westfall Act, 28 U.S.C. § 2679(b). (Doc. 79.) Thereafter, the Government filed a Motion to Dismiss Plaintiffs nonconstitutional claims for lack of subject matter jurisdiction. (Doc. 80.) On the same day, the Individual Defendants also filed a Motion to Dismiss CountsVII-IX. (Doc.77.)
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) requires dismissal where the court lacks jurisdiction over the subject matter of the action. Arbaugh v. Y & H Corp.,
Defendants may use two methods to attack a complaint through a 12(b)(1) motion. First, a defendant may present a facial attack upon the complaint where the complaint “fails to allege facts upon which subject matter jurisdiction may be based.” Kerns v. United States,
III. DISCUSSION
The Court grants Defendants’ Motions to Dismiss and dismisses Plaintiffs Complaint in its entirety because the Court lacks jurisdiction to hear Plaintiffs claims. The Court grants the motions because the Military Commissions Act (“MCA”) divests the Court of jurisdiction to hear Plaintiffs claims. Alternatively, sovereign immunity applies to Plaintiffs nonconstitutional claims, as the Westfall Act provides that the United States is the proper defendant for these claims and the Government has not waived sovereign immunity here.
A. The Military Commissions Act Bars Plaintiffs Claims
The Court grants the Motions to Dismiss and dismisses Plaintiffs claims because the Military Commissions Act of 2006 (“MCA”) divests the Court of jurisdiction to hear Plaintiffs claims regarding his detention, transfer, treatment, and confinement conditions..
In 2006, Congress passed the MCA in light of the Supreme Court’s ruling in Hamdan v. Rumsfeld,
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination^] (1) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge 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.
MCA § 7(a) (codified at 28 U.S.C. § 2241(e)). In an effort to avoid the invalidation effected in Hamdan, the MCA also included a note expressly indicating the law’s applicability to all cases pending on or after its enactment. See MCA § 7(b).
Congress’s attempt to strip courts of jurisdiction again fell under judicial scruti
The Supreme Court declared unconstitutional the MCA to the extent it attempted to strip courts of the jurisdiction to consider a petition for writ of habeas corpus by an alien in detention and determined to be an enemy combatant. Id. at 792,
In discussing the constitutionality of the MCA’s application in that case, the Court only referenced and analyzed the habeasrelated provision, Subsection 1 of MCA § 7(a), codified at 28 U.S.C. § 2241(e)(1), and whether alternative methods would be an acceptable substitute for the habeas process. See id. at 770-92,
Plaintiff advances the argument that the Supreme Court’s broad language, which referred to § 7 of the MCA generally, rather than explicitly declaring unconstitutional MCA § 7(a)(1), indicates that the entirety of MCA § 7, and thus the entirety of § 2241(e), is unconstitutional. In addition to the language in Boumediene, Plaintiff presents the decision in Hamad v. Gates, where the Western District of Washington held that the MCA did not bar the plaintiffs claims, which were substantively identical to Plaintiff in relevant facts and bases for relief. Hamad,
The Court finds Hamad to be an unpersuasive outlier in light of the scope of the Court’s discussion in Boumediene and the directive to narrowly repeal legislative provisions. As noted above, Boumediene’s analysis reached only those matters affecting the writ of habeas corpus, which was impacted by § '2241(e)(1). To reach this conclusion, by looking at the reasoning of the Supreme Court’s decision, is not speculative as Hamad suggests. See Hamad,
Furthermore, the Court notes that Ha-mad ’s interpretation has been subsequently rejected by the same court. In Al-Nashiri v. MacDonald, No. 11-5907,
Because the Supreme Court’s discussion focused exclusively on MCA § 7 in relation to the Suspension Clause, a broader invalidation, striking any provision other than § 2241(e)(1), is an overly expansive and improper reading of Boumediene. Thus, the Court finds that § 2241(e)(2) remains in force. As a result, the plain language of the statute positions Plaintiffs’ claims beyond the jurisdiction of the Court. Accordingly, the MCA compels dismissal of all of Plaintiffs claims for lack of subject matter jurisdiction.
B. Sovereign Immunity Bars Plaintiffs Nonconstitutional Claims
In addition to the MCA’s effect, the Court finds subject matter jurisdiction lacking as to Plaintiffs nonconstitutional claims due to sovereign immunity. By operation of the Westfall Act, Plaintiff may only seek relief on his nonconstitutional claims against the government under the Federal Tort Claims Act, making a waiver of sovereign immunity necessary for the
1. The United States Properly Substituted Pursuant to the Westfall Act
The Court finds that the United States properly substituted as Defendant in place of the individually-named defendants on Plaintiffs nonconstitutional claims, Counts I-VI. The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, establishes a remedy against the United States as the exclusive remedy for claims of “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)(1) (2012). Where the Westfall Act applies, a cause of action is transformed into one pursuant to the Federal Tort Claims Act (“FTCA”). See, e.g., Ross v. Bryan,
a. Westfall Act Exceptions Do Not Apply
The Court finds that neither exception applies in Plaintiffs case. The first West-fall exception arises where claims seek relief for a constitutional violation. 28 U.S.C. § 2679(b)(2)(a). Here, the United States only substituted on Counts I-VI, which all seek relief for violations of customary international law and the Geneva Convention (“nonconstitutional claims”). (See Compl. ¶¶ 122-52.) Counts VII-IX, which explicitly reference the First and Fifth Amendments as well as the Religious Freedom Restoration Act, are not within the scope of the United States’ substitution or this aspect of Defendant’s motion. Thus, the first exception will not preclude substitution on Counts I-VI.
Similarly, the second Westfall exception is inapplicable because Plaintiff does not present claims in violation of a statute authorizing an action against an individual. Plaintiff alleges that these nonconstitutional claims are pursuant to the Geneva Convention, a treaty. Treaties are not statutes, as they do not invoke the bicameral legislative process required for what is commonly understood to be a statute. See, e.g., In re Iraq & Afghanistan Detainees Litig.,
The Court also rejects Plaintiffs reliance on the Alien Tort Statute (“ATS”) as a vehicle for invoking the Westfall Act’s statutory exception. Plaintiff argues that the ATS is not merely a jurisdictional statute but also provides a cause of action. (PL’s Opp’n at 9-10.) To the contrary, the Supreme Court has recently emphasized that the ATS “does not expressly provide any causes of action,” but merely “provides district courts with jurisdiction to hear certain claims.” Kiobel v. Royal Dutch Petroleum Co., — U.S. -,
b. Virginia’s Scope of Employment Law Applies to the Westfall Act’s Application
As noted by the Westfall Act’s text, substitution by the United States occurs “upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose.” 28 U.S.C. § 2679(d)(2). Once the Attorney General makes this certification, a plaintiff may only pursue his claims against the Government pursuant to the FTCA. Ross,
Here, the Attorney General certified that the actions occurred within each indi
The Court holds that state law governs this inquiry, and thus whether the Westfall Act applies hinges on a determination that an individual employee acted within the scope of his employment as defined by Virginia law. The Fourth Circuit has remained steadfast for the past twenty years in its application of state law to the West-fall Act’s scope of employment analysis. See Ross,
Virginia’s scope of employment test has been recognized as “a fairly broad view” of the concept, as it even includes intentional torts at times. Gutierrez de Martinez,
(1) [The act] was expressly or impliedly directed by the employer, or is naturally incident to the business, and
(2) it was performed, although mistakenly or ill-advisedly, with the intent to further the employer’s interest, or from some impulse or emotion that was the natural consequence of an attempt to do the employer’s business, “and did not arise wholly from some external, independent, and personal motive on the part of the [employee] to do the act upon his own account.”
Id. (quoting Kensington Assocs. v. West,
Considering this wide scope afforded by Virginia law, the Court finds that the employees’ actions were within the scope of their employment. Plaintiff fails to meet his burden in demonstrating that the Individual Defendants’ actions were not within the scope of employment as defined by Virginia law. Plaintiff contends that the refusal to release him was a product of the individuals’ “fear of political repercussions — not for purposes of serving the master.” (Pl.’s Opp’n at 18.) The Court rejects this argument, and the respective allegations in the Complaint in support of such argument, because the existence of political repercussions does not somehow detach the acts or omissions from the effects of the individuals’ positions. Indeed, even assuming that political repercussion was the motivating factor in the Individual Defendants’ acts and omissions, this explanation appears to be the epitome of an “impulse or emotion that was the natural consequence of an attempt to do the employer’s business.” Gutierrez de Martinez,
Furthermore, Plaintiffs argument that jus cogens violations sufficiently rebut the Attorney General’s certification is equally unavailing. Plaintiff relies on the Fourth Circuit’s recent holding in Yousuf v. Samantar,
Finally, Plaintiffs argument that a jury should determine the scope of employment
For these reasons, the Court finds that the United States is the proper defendant on Plaintiffs nonconstitutional claims. The Westfall Act applies to Counts I-VI because neither exception to the Westfall Act applies to those counts and the Individual Defendants acted within their respective scope of employment as defined by Virginia law.
2. Sovereign Immunity Bars Plaintiff’s Nonconstitutional Claims
Having determined that the United States is the proper defendant with respect to the nonconstitutional claims and Plaintiff may only pursue his claims under the FTCA, the Court finds dismissal appropriate as a result of sovereign immunity-
It is axiomatic that the United States is immune from suit without its consent. See, e.g., Bullock v. Napolitano,
For these reasons, the Court finds that, in the alternative to the application of the MCA, sovereign immunity bars Plaintiffs nonconstitutional claims against the United States and thus deprives the Court of subject matter jurisdiction on these claims.
IV. CONCLUSION
The Court grants both the United States and the Individual Defendants’ Motions to Dismiss because the Court lacks jurisdiction to hear Plaintiffs claims. The Military Commissions Act bars adjudication of all of Plaintiffs claims. Furthermore, Plaintiffs nonconstitutional claims against the United States, Counts I-VI, are barred by sovereign immunity. Therefore,
IT IS HEREBY ORDERED that the Defendants’ Motions to Dismiss (Docs. 77, 80) are GRANTED.
IT IS FURTHER ORDERED that Plaintiffs Complaint is DISMISSED without prejudice;
IT IS FURTHER ORDERED that this Memorandum Opinion supersedes the Court’s oral order on April 12, 2013 and accompanying Order of the same date. Accordingly, the Court’s April 12, 2013 Order (Doc. 90) is hereby VACATED.
This Memorandum Opinion and Order constitutes the Court’s final order, and the
IT IS SO ORDERED.
Notes
. In filing his Second Amended Complaint, Plaintiff names all individual defendants dismissed by the Western District of Washington and acknowledges that his claims against such defendants are time-barred by Virginia's two-year statute of limitations. (See 2d Am. Compl. at 4 n. 1.) In doing so for the purposes of preserving for appeal the Washington court's dismissal order, he does not contest dismissal of those individuals in this Court. (See id.)
. The text of the Suspension Clause reads, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const, art. 1 § 9 cl. 2.
. The Court declines the Individual Defendants’ invitation to forego the issue of the MCA's constitutionality and instead decide this matter on the grounds of qualified immunity and the lack of a Bivens remedy. (See Individual Defs.’ Reply at 1 n. 1, Doc. 88.) The Court notes that the district court in AlZahrani took this approach, choosing to bypass the question of the MCA's effect and dismiss the claims for the very same reasons advocated in the Individual Defendants’ reply brief. See Al-Zahrani v. Rumsfeld,
However, the Court will consider the Government's arguments on sovereign immunity because that argument invokes a subject matter jurisdiction question rather than one of qualified immunity, which arises in the 12(b)(6) context of stating a claim.
. Notwithstanding the applicability of the factors presented below, Plaintiff failed to rebut the Government’s arguments regarding exhaustion and exceptions to the FTCA sovereign immunity waiver. Plaintiff’s failure to respond is grounds for the Court to deem these arguments conceded. See Bartley v. Merrifield Town Ctr. Ltd. P’ship,
. The term, “foreign country” applies to those "territories] subject to the sovereignty of another nation.” United States v. Spelar,
. Even if the United States waived sovereign immunity here, Plaintiff does not plead exhaustion of his claims. Exhaustion of administrative remedies, by presentment of a claim to the appropriate agency, is a necessary prerequisite to pursuing an FTCA claim in federal court. 28 U.S.C. §§ 1346(b), 2671-2680; Ahmed v. United States,