Yuksel CELIKGOGUS, et al., Plaintiffs, v. Donald RUMSFELD, et al., Defendants. Sami Abdulaziz Al Laithi, Plaintiff, v. Donald Rumsfeld, et al. Defendants.
Civil Nos. 06-1996 (RCL), 08-1677(RCL).
United States District Court, District of Columbia.
Feb. 1, 2013.
James George Bartolotto, James R. Whitman, U.S. Department of Justice, Washington, DC, for Defendants.
ROYCE C. LAMBERTH, Chief Judge.
The six plaintiffs in this action—Yuksel Celikgogus, Ibrahim Sen, Nuri Mert, Zakirjan Hasam, Abu Muhammad, and Sami Al Laithi1—were held by the United States at the Guantanamo Bay detention facility where they allege that they were abused by defendants or at defendants’ direction. They bring these consolidated actions against numerous U.S. officials, asserting claims under the Alien Tort Statute (“ATS“),
Defendants have moved to dismiss plaintiffs’ complaints for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Celikgogus, Defs.’ Mot., ECF No. 43; Al Laithi, Defs.’ Mot., ECF No. 10. Because all of these claims are legally indistinguishable from those rejected by the D.C. Circuit in Rasul v. Myers (Rasul I), 512 F.3d 644 (D.C.Cir.2008), cert. granted, judgment vacated, 555 U.S. 1083, 129 S.Ct. 763, 172 L.Ed.2d 753 (2008), judgment reinstated, Rasul v. Myers (Rasul II), 563 F.3d 527 (D.C.Cir.2009), the Court will GRANT defendants’ motions to dismiss.
I. BACKGROUND
The following are the facts of the case as alleged in plaintiffs’ complaints, Celikgogus, 2d Am. Compl., ECF No. 37; Al Laithi, Compl., ECF No. 1, which the Court must take as true while resolving defendants’ motions to dismiss. See Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).
Plaintiffs are foreign nationals who came to Afghanistan, Tajikistan, or Pakistan as refugees or in search of employment. See Celikgogus, 2d Am. Compl. ¶¶ 9-13, 53, 77, 98, 124, 148; Al Laithi, Compl. ¶¶ 11, 30. After the United States began bombing Afghanistan in October 2001, Mr. Celikgogus, Mr. Sen, and Mr. Al Laithi were arrested by Pakistani authorities while
All were subsequently transferred to the U.S. detention facility at Guantanamo Bay, Cuba. Celikgogus, 2d Am. Compl. ¶ 45; Al Laithi, Compl. ¶ 46. Four of the plaintiffs (Mr. Celikgogus, Mr. Sen, Mr. Mert, and Mr. Al Laithi) were initially held at Camp X-Ray, where they allege that they were subjected to harsh conditions including sleep deprivation, exposure to extreme heat and cold, being forced to defecate in public, being prohibited from practicing their religion, and other abuse. Celikgogus, 2d Am. Compl. ¶ 46; Al Laithi, Compl. ¶¶ 50-54. Camp X-Ray was replaced by Camp Delta in April 2002, where all six plaintiffs were held. Celikgogus, 2d Am. Compl. ¶ 47; Al Laithi, Compl. ¶ 55. All plaintiffs allege that they were subjected to harsh conditions including sleep deprivation, arbitrary discipline, forced nudity, and a variety of physical, psychological, and cultural abuse. Celikgogus, 2d Am. Compl. ¶¶ 47-51; Al Laithi, Compl. ¶¶ 56-66.
All plaintiffs were ultimately released from U.S. custody: Mr. Celikgogus, Mr. Mert and Mr. Sen were returned to Turkey, Mr. Hasam and Mr. Muhammad were sent to Albania, and Mr. Al Laithi was sent to Egypt. Celikgogus, 2d Am. Compl. ¶¶ 73, 94, 120, 146, 172; Al Laithi, Compl. ¶ 70. All allege ongoing medical, psychological, and social problems resulting from their detention. Celikgogus, 2d Am. Compl. ¶¶ 73-76, 94-97, 120-23, 146-47, 172-73; Al Laithi, Compl. ¶ 70-71.
Plaintiffs brought these consolidated actions against former Secretary of Defense Donald Rumsfeld and numerous military personnel—ranging from former Chairman of the Joint Chiefs of Staff General Richard Myers to individual guards and interrogators at Guantanamo (named as John Does). Celikgogus, 2d Am. Compl. ¶¶ 14-30; Al Laithi, Compl. ¶¶ 12-25.
II. LEGAL STANDARDS
A defendant may move to dismiss a complaint or claim for lack of subject-matter jurisdiction.
A defendant may also move to dismiss a complaint or claim for failure to state a claim upon which relief may be granted.
III. ANALYSIS
Plaintiffs raise four types of claims: (i) ATS claims; (ii) Bivens claims based on the First and Fifth Amendments; (iii) RFRA claims; and (iv) claims of conspiracy to deprive plaintiffs of their civil rights under
A. ATS Claims
1. Legal Standard
The Alien Tort Statute (“ATS“) provides that “district courts shall 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.”
ATS claims against federal employees are subject to the Westfall Act,
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, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
“[T]he Attorney General‘s certification that a federal employee was acting within the scope of his employment ... does not conclusively establish as correct the substitution of the United States as defendant in place of the employee,” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995), but it does “constitute prima facie evidence that the employee was acting within the scope of his employment.” Ballenger, 444 F.3d at 662 (citing Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C.Cir.1994)). “[A] plaintiff challenging the government‘s scope-of-employment certification bears the burden of coming forward with specific facts rebutting the certification.” Stokes v. Cross, 327 F.3d 1210, 1214 (D.C.Cir.2003) (internal quotation marks and citation omitted).
In answering the scope-of-employment question, District of Columbia courts employ the Restatement of Agency, which provides:
Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
Restatement (Second) of Agency § 228(1) (1958); see also Rasul I, 512 F.3d at 655. A servant‘s conduct must meet all four prongs in order to fall within the scope of her employment. See Majano v. United States, 469 F.3d 138, 141 (D.C.Cir.2006). This test is applied “very expansively” and “often is akin to asking whether the defendant merely was on duty or on the job when committing the alleged tort.” Harbury v. Hayden, 522 F.3d 413, 422 n. 4 (D.C.Cir.2008).
More recently, in Ali v. Rumsfeld, 649 F.3d 762, 775 (D.C.Cir.2011) (citing Rasul I, 512 F.3d at 654-61), the D.C. Circuit held again that military personnel who allegedly ordered or allowed the abuse of detainees in Iraq and Afghanistan were acting within the scope of their employment. Accordingly, the Ali court affirmed the dismissal of ATS claims against those personnel for failure to exhaust FTCA administrative procedures. Id.
2. Analysis
Plaintiffs assert several ATS claims,2 all of which are legally indistinguishable from those addressed by the D.C. Circuit in Rasul I, 512 F.3d at 656-58, and thus fail for lack of subject matter jurisdiction. As the Rasul I court found, “the detention and interrogation of suspected enemy combatants is a central part of the defendants’ duties as military officers charged with winning the war on terror.” 512 F.3d at 658. As in Rasul, the plaintiffs here were detained by the U.S. in the course of military operations in the war on terror. And, as in Rasul, the Attorney General has certified that defendants were acting within the scope of their employment, Celikgogus, Certification, ECF No. 43-1; Al Laithi, Certification, ECF No. 10-1, creating a rebuttable presumption that plaintiffs have the burden to overcome. See Stokes, 327 F.3d at 1214. Plaintiffs fail to carry this burden, offering no reason to question the Attorney General‘s certification here and distinguish their case from Rasul.
Mr. Hasam, Mr. Muhammad, and Mr. Al Laithi complain of abuse occurring after they had been cleared as non-enemy combatants by CSRTs, and suggest that this distinguishes them from the plaintiffs in Rasul. Celikgogus, Pls.’ Opp‘n 13-21, Al Laithi, Pl.‘s Opp‘n 12-16. The Court disagrees. It finds that the CSRT-clearance is, for purposes of determining scope of employment, a “distinction without a difference,” See Celikgogus, Defs.’ Reply 2; Al Laithi, Defs.’ Reply 2, and that plaintiffs have failed to meet their burden by
“coming forward with specific facts rebutting the [Attorney General‘s] certification”
Plaintiffs attempt to bolster their failed CSRT distinction by referring to the statutory limits on executive authority established in the Authorization for Use of Military Force (“AUMF“).
The alleged abuse that is the subject of plaintiffs’ ATS claims was therefore entirely within the scope of defendants’ employment. Under the Westfall Act, the United States is substituted as a defendant on these claims. Plaintiffs must demonstrate compliance with the FTCA‘s administrative exhaustion requirements. See
B. Bivens Claims
Plaintiffs allege that their abuse by defendants violated the First and Fifth Amendments to the Constitution, asserting claims under Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Celikgogus, 2d Am. Compl. Counts VI-VII, ¶¶ 217-230; Al Laithi, Compl. Counts V-VI, ¶¶ 111-124. Defendants are entitled to immunity for these claims.
Qualified immunity shields government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitu-
In Rasul II, the court “exercis[ed] the Pearson option with regard to plaintiffs’ Bivens claims,” Rasul II, 563 F.3d at 530, and determined that the plaintiffs’ Fifth and Eighth Amendment rights were not “clearly established” at the time of the alleged violations. See id. at 530-32. The court reasoned that “[a]t the time of [plaintiffs‘] 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.” Rasul II, 563 F.3d at 530; see also Rasul I, 512 F.3d at 666 (“An examination of the law at the time the plaintiffs were detained reveals that ... courts did not bestow constitutional rights on aliens located outside sovereign United States territory.“); Ali, 649 F.3d at 770-73; In re Iraq & Afghanistan Detainees Litig., 479 F.Supp.2d 85, 108-110 (D.D.C.2007).
Again, plaintiffs’ constitutional claims fail because they are legally indistinguishable from those addressed in Rasul II. Because it was not “clearly established” at the time of the alleged violations that “aliens captured on foreign soil and detained beyond sovereign U.S. territory had any constitutional rights,” defendants are entitled to qualified immunity on these claims. See Rasul II, 563 F.3d at 530.
C. RFRA
Plaintiffs’ RFRA claims, see Celikgogus, 2d Am. Compl. Count VIII, ¶¶ 231-237; Al Laithi, Compl. Count VII, ¶¶ 125-131, are likewise barred by Rasul. RFRA provides that the “Government shall not substantially burden a person‘s exercise of religion,” unless certain conditions are met. See
D. Federal Civil Rights Act Claims
Finally, plaintiffs also raise Federal Civil Rights Act claims. Celikgogus, 2d Am. Compl. Count IX, ¶¶ 238-239; Al Laithi, Compl. Count VIII, ¶¶ 132-135.
IV. CONCLUSION
For the foregoing reasons, plaintiffs’ complaints will be dismissed for failure to state a claim upon which relief can be
An order will issue with this opinion.