Larry KLAYMAN, et al., Plaintiffs, v. Barack Hussein OBAMA, et al., Defendants.
Civil Action No. 14-cv-1484 (TSC)
United States District Court, District of Columbia.
Signed August 21, 2015
TANYA S. CHUTKAN, District Judge
IV. CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss or, in the alternative, for summary judgment, is GRANTED in part and DENIED in part. Defendants’ motion for summary judgment on the RFRA claim against Defendant Lappin is GRANTED. The Court defers ruling as to Plaintiff‘s RFRA claims against the John Doe Defendants and his Equal Protection Clause claim against Defendant Clark until those parties have had an opportunity to file dispositive motions. BOP‘s motion to dismiss Plaintiff‘s Privacy Act claim is DENIED. BOP‘s motion for summary judgment on Plaintiff‘s remaining FOIA claims is DENIED.
BOP‘s motion for protective order (Dkt. 82), which seeks to stay discovery pending resolution of BOP‘s motion to dismiss or, in the alternative, for summary judgment, is DENIED as moot.
The parties shall appear for a status conference on September 3, 2015, at 10:30 AM in Courtroom 21, to discuss the schedule for discovery and any additional anticipated dispositive motions.
An appropriate Order accompanies this Memorandum Opinion.
Hamas, pro se.
Malik Obama, pro se.
Ban Ki-Moon, pro se.
MEMORANDUM OPINION
TANYA S. CHUTKAN, District Judge
Plaintiff Larry Klayman visited Israel in 2014, when violence related to the Palestinian organization Hamas erupted. He and seven anonymous plaintiffs allege they (or their decedents) were “subject to the crimes of attempted murder and of assault by HAMAS ....” (Am. Compl. ¶¶ 16-18, ECF No. 7). The Plaintiffs allege a scheme to “funnel money from within the United States of America” in order to “finance terrorism by HAMAS and its parent the Muslim Brotherhood ....” (Id. ¶ 20). Plaintiffs have sued Hamas, President Obama, Secretary of State John Kerry, former Secretary of State Hillary Clinton, United Nations Secretary-General Ban Ki-Moon, and Malik Obama, bringing a litany of claims under RICO, the Anti-Terrorism Act, the Constitution, and common law. The President and Secretaries of State (the “Federal Defendants“), the only Defendants who have been served with the Complaint and have entered appearances, have moved to dismiss the Complaint. For the following reasons, the court GRANTS the motion (ECF No. 9) and dismisses all claims against the Federal Defendants.1
Three defendants have not entered an appearance: Malik Obama, Secretary-General Ban Ki-Moon, and Hamas. As of April 27, 2015 no proof of service had been filed as to those defendants and on that day the court ordered Plaintiffs to show cause, on or before May 11, 2015, as to why the court should not dismiss the claims against those defendants for failure to effect service. (Minute Order to Show Cause, Apr. 27, 2015). Plaintiffs responded that service was made on Ban Ki-Moon and requested additional time within which to serve Hamas and Malik Obama. (Pls.’ Service Response, ECF No. 19).2 As dis-
On June 22, 2015 the court ordered Plaintiffs to show cause why Ban Ki-Moon should not be dismissed from this case in light of the immunity granted to him under the Vienna Convention on Diplomatic Relations and
I. FACTUAL ALLEGATIONS
Plaintiffs Larry Klayman and John Does 1 through 4 were physically present in Israel in the summer of 2014, when violence erupted in that country. (Am. Compl. ¶¶ 16-17). They allege that, due to their presence in the country at that time, they were “subject to the crimes of attempted murder and of assault by HAMAS” and were “subject to terroristic threats, fear, intimidation and blackmail from HAMAS ....” (Id.).3 Three additional Jack Roe plaintiffs are the parents of children killed in Israel and the Gaza Strip during the 2014 conflict. (Id. ¶ 18). The Plaintiffs allege that the Federal Defendants, along with Malik Obama and Ban Ki-Moon, have aided and abetted acts of terrorism committed by Hamas by providing funds and tacit support for those acts.
Resolution of the Federal Defendants’ motion to dismiss turns, in almost all respects, on the nature of the conduct purportedly undertaken by those Defendants. Plaintiffs’ Amended Complaint rises or falls on the extent to which the Federal Defendants’ actions are deemed to be within the scope of each Federal Defendant‘s authority as an official of the United States. The court‘s focus in reciting the factual background is therefore on the nature of the Federal Defendants’ alleged conduct and that conduct‘s relationship to each Defendant‘s authority as an official of the United States.
A. President Obama
The Amended Complaint alleges that in 2009, President Obama “ordered that $900 million be sent to Gaza” purportedly in the form of humanitarian aid, with the knowledge (and, possibly, the intention) that the money would be used to fund Hamas’ terrorism. (Id. ¶ 139). Plaintiffs allege that bags of U.S. dollars found in the wreckage of an Israeli military strike against a Hamas leader “were provided to HAMAS at the direction of Barack Hussein Obama from the U.S. State Department ‘slush fund.‘” (Id. ¶ 144). This “slush fund” is a discretionary fund established at Secretary Clinton‘s request for use in North Africa and the Middle East. (Id. ¶ 132).4 Presi-
President Obama is also alleged to support the efforts of his half-brother, defendant Malik Obama, to raise money through the Barack H. Obama Foundation (the “Foundation“). The Amended Complaint alleges that this Foundation operates in the name of President Obama. (Id. ¶¶ 105-08). However, a news article cited in the Amended Complaint as proof of this link (id. at 26 n.24) includes a screen shot of the Foundation‘s website, which makes clear that the Foundation is named in honor of President and Malik Obama‘s father, Barack H. Obama, Sr., and “is not dependent on the endorsement of” President Obama.7 Given the disavowal by the Foundation of any link to the President, the court disregards allegations that the President approves the Foundation‘s use of his name as a fundraising tool.8
B. Secretaries Clinton and Kerry
The Amended Complaint alleges that despite sanctions imposed on Hamas by the United States, then-Secretary of State Hillary Clinton, “under color of law,” caused funds from the Department of State to be sent to Hamas. (Id. ¶¶ 131-34). Together with President Obama, through the U.S. consulate in Benghazi, Secretary Clinton directed a flow of U.S. weapons
II. LEGAL BACKGROUND
A. Subject-Matter Jurisdiction
Federal courts are courts of limited jurisdiction. See Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.“) The law presumes that “a cause lies outside [the court‘s] limited jurisdiction” unless the party asserting jurisdiction establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). When a defendant files a motion to dismiss a complaint for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int‘l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002).
“Under the doctrine of sovereign immunity, the United States is immune to suit unless it explicitly consents to being sued.” Russell v. Dupree, 844 F. Supp. 2d 46, 49 (D.D.C. 2012) (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)). To survive a
Suits against a federal official in his or her official capacity must be distinguished from suits against a federal official in his or her individual (personal) capacity for acts taken in the course of official duties or while acting under the color of law. Hurst v. Socialist People‘s Libyan Arab Jamahiriya, 474 F. Supp. 2d 19, 29 (D.D.C. 2007) (citing Hafer v. Melo, 502 U.S. 21, 26 (1991)). In some circumstances, the claims are one and the same. For instance, tort claims against individual officials of the United States for conduct undertaken while performing their official duties may be deemed to be claims against the United States subject to limitations of the sovereign immunity waiver of the Federal Tort Claims Act. See infra Section III.A.iii. In other circumstances, the distinction permits a valid claim, or at least requires
In evaluating a motion to dismiss for lack of subject-matter jurisdiction, the court must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged[.]‘” Am. Nat‘l Ins. Co. v. F.D.I.C., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). Nevertheless, “the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiff‘s legal conclusions.” Disner v. United States, 888 F. Supp. 2d 83, 87 (D.D.C. 2012) (quoting Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006)) (internal quotation marks omitted).
Finally, when considering a motion to dismiss for lack of subject matter jurisdiction, the court “is not limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, “a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000) (citing Herbert v. Nat‘l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).
B. Failure to State a Claim
“A
In deciding a
C. Service of Process
i. Time Limitations
If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under
Rule 4(f) or4(j)(1) .
The plaintiff bears the burden of establishing either proper service of process, see Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987); OPEC, 766 F.3d at 78, or “valid reason for delay” warranting an extension of time to effect service. Mann v. Castiel, 681 F.3d 368, 375 (D.C. Cir. 2012) (internal quotation marks and citation omitted). The D.C. Circuit has noted good cause for failure to effect timely service exists in three types of circumstances. The first is when “outside factor[s]“—such as when a defendant evades service or conceals a defect in service—contributed to the service failure. Id. at 374 (quoting Lepone-Dempsey v. Carroll Cnty. Comm‘rs, 476 F.3d 1277, 1281 (11th Cir. 2007)). Second, courts will be lenient towards a pro se plaintiff10 who makes honest mistakes, or who “proceeds in forma pauperis and [i]s entitled to rely on the United States marshal (or deputy marshal) to effect service ....” Id.; see also Dumaguin v. Sec‘y of Health & Human Servs., 28 F.3d 1218, 1221 (D.C. Cir. 1994). Third, good cause exists where a statute of limitations would bar refiling the action. Mann, 681 F.3d at 376; see also
Conversely, circumstances such as negligence, attorney mistake, ignorance of the rules governing service, or evidence of a plaintiff‘s “inadvertence, oversight, or neglect” do not establish the requisite good cause. Mann, 681 F.3d at 376 (internal quotation marks and citation omitted); Whitehead v. CBS/Viacom, Inc., 221 F.R.D. 1, 3 (D.D.C. 2004). If a plaintiff claims service on a particular party is impossible by conventional means, the court may consider whether plaintiffs in other cases have successfully served that party. See Angellino v. Royal Family Al-Saud, 688 F.3d 771, 776-77 (D.C. Cir. 2012).
If a plaintiff fails to show good cause for failing to meet the service deadline, “the court has a choice between dismissing the suit and giving the plaintiff more time” to properly effect service. Battle v. District of Columbia, 21 F. Supp. 3d 42, 44-45 (D.D.C. 2014) (collecting cases). The D.C. Circuit has instructed that “when there exists a reasonable prospect that service can be obtained,” an extension of time, rather than dismissal, is appropriate. Barot v. Embassy of the Repub. of Zambia, 785 F.3d 26, 29 (D.C. Cir. 2015) (quoting Novak v. World Bank, 703 F.2d 1305, 1310 (D.C. Cir. 1983)) (internal quotation marks omitted).
ii. Service on Individuals within the United States
An individual in the United States
- following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
- doing any of the following:
- delivering a copy of the summons and of the complaint to the individual personally;
- leaving a copy of each at the individual‘s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
- delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
iii. Service on Individuals Outside the United States
An individual outside the United States may be served:
- by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
- if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:
- as prescribed by the foreign country‘s law for service in that country in an action in its courts of general jurisdiction;
- as the foreign authority directs in response to a letter rogatory or letter of request; or
- unless prohibited by the foreign country‘s law, by:
- delivering a copy of the summons and of the complaint to the individual personally; or
- using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or
- by other means not prohibited by international agreement, as the court orders.
D. Diplomatic Immunity
The Vienna Convention on Diplomatic Relations (“Vienna Convention“), Apr. 18, 1961, 23 U.S.T. 3227, provides diplomats with “absolute immunity from civil and criminal process,” with three exceptions. Devi v. Silva, 861 F. Supp. 2d 135, 140 (S.D.N.Y. 2012). These are for actions related to private immovable property, actions related to succession of property, and actions related to professional or commercial activity by the diplomat “outside his official functions.” Vienna Convention, art. 31.
III. ANALYSIS
A. Claims Against Federal Defendants in Official Capacities
Plaintiffs purport to bring claims against the Federal Defendants acting “under color of law” and individually. (Am. Compl. at 2; Pls.’ Opp‘n at 1). To the extent the claims against the Federal Defendants are
i. Counts One Through Three: RICO
Count One alleges a violation of
Plaintiffs argue that the Federal Defendants should be denied immunity since they may be vicariously liable for the acts of their alleged RICO co-conspirators. (Pls.’ Opp‘n at 4). While it is true that Congress cast a wide net of liability under RICO,
Because there has been no waiver, the court lacks subject-matter jurisdiction over official capacity RICO claims.11
ii. Counts Four Through Nine: Anti-Terrorism Act
Counts Four through Nine (see Am. Compl. ¶¶ 190-236) assert claims under the civil remedy provision of the Anti-Terrorism Act, which permits a United States national injured by an act of international terrorism to bring a claim for treble damages.
Plaintiffs argue that suits against the Federal Defendants in their individual capacities can proceed despite
Second, Plaintiffs’ argument is contrary to the language of
The court has limited resources from which to draw on in interpreting this immunity provision. So far as the court can tell,
The court finds some guidance from cases in which plaintiffs seek money damages from a government official. The phrase “under color” of authority is frequently used in
In West, the Supreme Court held that the defendant must have “exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” 487 U.S. at 49 (internal quotation marks omitted); see also Hogan v. Winder, No. 12-cv-123, 2012 WL 4356326, at *4 (D. Utah Sept. 24, 2012) (noting that the “determinative question is whether [defendant] (1) used the power of his office to act and (2) was able to act only because of that power.“) This standard is narrower than the scope of employment test applicable under the Federal Tort Claims Act. See id. at *3-4; see also infra Section III.A.iii.1. Similarly, in Bivens actions, liability may attach in certain circumstances when a federal government official acts “under color of [federal] authority” and violates a plaintiff‘s constitutional rights. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971). The test employed in Bivens actions for “color of federal authority” is, by and large, the same test applied in the
Whether the court looks to the FTCA scope of employment test or the narrower West test, the court is persuaded that each alleged act or omission by the Federal Defendants is within the scope of that Defendant‘s “official capacity or under color of legal authority.” Decisions concerning the direction of United States funds (Am. Compl. ¶¶ 39, 44, 131-34), or military resources (id. ¶¶ 49, 54, 136-37) are necessarily decisions that can be taken only by virtue of the power conferred on the Federal Defendants as officers of the United
iii. Counts Ten Through Twelve
These counts assert claims against the Federal Defendants for assault and battery (See Am. Compl. ¶¶ 237-39), wrongful death (see id. ¶¶ 240-43), and intentional infliction of emotional distress (see id. ¶¶ 244-49), which the Federal Defendants argue are barred by the Federal Tort Claims Act. Plaintiffs argue that the Act is inapplicable because the claims are brought against the Federal Defendants as individuals and not against the United States. (Pls.’ Opp‘n at 20). However, the United States has filed a Westfall certification pursuant to
A Westfall certification is the Government‘s “proffer of a prima facie case that [defendant] was, in fact, acting within the scope of his employment.” Koch v. United States, 209 F. Supp. 2d 89, 92 (D.D.C. 2002) (citing Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C. Cir. 1994)). A plaintiff challenging such a certification has 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). On a motion to dismiss, the question is whether the plaintiff alleged facts which, if true, would establish that the federal agent exceeded the scope of his or her authority. Id. at 1216.
1. Federal Defendants Acted Within the Scope of their Employment
To test the validity of the Westfall certification, the court must apply the respondeat superior law of the state in which the alleged tort occurred. See id. at 1214. When the tortious injury occurred in a foreign country, the law of the place where the allegedly tortious decisions were made (in this case, the District of Columbia), is
Under D.C. law, the test for whether conduct is within the scope of employment is whether the agent acted “only to further his own interest.” Schecter v. Merchants Home Deliv., Inc., 892 A.2d 415, 428 (D.C. 2006); Brown v. Argenbright Sec., Inc., 782 A.2d 752, 758 (D.C. 2001) (citing Weinberg v. Johnson, 518 A.2d 985, 988 (D.C. 1986)). The D.C. Court of Appeals has repeatedly drawn on the RESTATEMENT (SECOND) OF AGENCY, which sets forth four factors, all of which must be present, to make that determination:
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.
Brown, 782 A.2d at 758 n. 8 (quoting RESTATEMENT (SECOND) OF AGENCY § 228(1) (1958) in its entirety) (internal quotation marks and emphasis omitted). Plaintiffs’ argument appears to be that illegal or unconstitutional conduct (e.g., the funding of terrorist organizations) is never conduct a government official is authorized to perform—an argument possibly implicating the first and third factors. This argument, however, has no legal support. Schneider v. Kissinger, 310 F. Supp. 2d 251, 265-66 (D.D.C. 2004) (rejecting argument that Henry Kissinger was acting outside the scope of his employment because he was alleged to have violated “peremptory norms of international law“).
As to the first prong, D.C. law is clear that it is the “type of act” and “not the wrongful character of that act” that is relevant. Jacobs v. Vrobel, 724 F.3d 217, 221 (D.C. Cir. 2013). For instance, in two cases alleging defamation by a member of Congress, the D.C. Circuit held that both members of Congress were acting within the scope of their employment when speaking with the press, because “speaking to the press during regular work hours in response to a reporter‘s inquiry falls within the scope of a congressman‘s ‘authorized duties.‘” Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 664 (D.C. Cir. 2006); Wuterich v. Murtha, 562 F.3d 375, 384 (D.C. Cir. 2009); see also Wilson v. Libby, 535 F.3d 697, 711-12 (D.C. Cir. 2008) (comments to the press to discredit Bush administration critics, which revealed covert agency‘s identity, were the type of conduct authorized); Minnick v. Carlile, 946 F. Supp. 2d 128, 135 (D.D.C. 2013) (defendant DHS employee‘s responses to questions from defendant‘s supervisor about plaintiff‘s performance were within scope of employment, notwithstanding that the answers were allegedly defamatory). And, more pointedly to Plaintiffs’ arguments here, the Circuit in Rasul v. Myers, 512 F.3d 644, 659-61 (D.C. Cir. 2008), upheld a Westfall certification related to defendants who were alleged to have overseen torture of detainees at Guantanamo. Id. at 659-61 (rejecting argument that “serious criminality of the defendants’ alleged conduct“—torture of detainees in Guantanamo—precluded a scope of employment filing), vacated and remanded, 555 U.S. 1083 (2008), reinstated in relevant part 563 F.3d 527, 530 (D.C. Cir. 2009).
Plaintiffs allege that “Defendants herein knowingly provide funding and other material support to assist HAMAS in its criminal activities, violence, and warfare because they benefit themselves in various ways.” (Am. Compl. ¶ 26). These allegations do not take the conduct beyond the scope of employment. The Restatement test is met, however, even when the agent derives some pleasure or benefit out of the contested actions. Ballenger, 444 F.3d at 665 (“even a partial desire to serve the master is sufficient“) (emphasis in original). The D.C. Court of Appeals has held that even sexual assault by an employee may, under certain circumstances, still be within the scope of employment if it is motivated, “at least in part, by a desire to serve” the employer‘s interests. Brown, 782 A.2d at 758. In Brown, the plaintiff alleged that a security guard touched plaintiff‘s daughter, who was suspected of shoplifting, in a sexually inappropriate manner. Id. at 755. The Court acknowledged that many sexual assaults would “arise from purely personal motives” but that a “physical search of a suspected shoplifter [wa]s particularly susceptible to [the] interpretation” that it was actuated in part by a desire to serve the employer. Id. at 758. Addressing the same factor and reaching the opposite conclusion, the court in Russell v. Dupree, 844 F. Supp. 2d 46 (D.D.C. 2012) found that a CIA driver driving home from a restaurant while intoxicated was not acting within the scope of his employment, reasoning that becoming intoxicated would hinder, not help, his ability to perform his job duties. Id. at 51.
Here, it is true that Plaintiffs have alleged some ulterior motives for some of the Federal Defendants’ alleged conduct, separate and apart from any desire to serve the United States’ interests. (See, e.g., Am. Compl. ¶ 62 (President Obama promotes “the international foreign policy interests of Islamic nations” in light of his alleged religion), ¶ 140 (“the Clinton household has amassed a fortune of over $105 million, including from many nations and interests hostile to Jews and to Israel“), ¶ 145 (“Hillary Clinton maintains ties to the Muslim Brotherhood . . . .“)). However, the fact that an agent may be motivated by self-interest, or interests other than those of its principal, is not dispositive. Ballenger, 444 F.3d at 665. The issue instead is whether there is a complete absence of a desire to serve the principal‘s interests—and there are no allegations that this is the case. To the contrary, Plaintiffs acknowledge the Federal Defendants’ desire to
Because Plaintiffs’ allegations do not rebut the United States’ proffer of prima facie evidence that the Federal Defendants acted within the scope of their employment, the United States’ certification is effective and all claims under Counts Ten through Twelve, regardless of whether they are styled as claims against the Federal Defendants in their official or individual capacities, are subject to the provisions of the FTCA.
2. The FTCA Bars Counts Ten through Twelve
For two16 independent reasons, Plaintiffs’ tort claims against the Federal Defendants fall outside the waiver of sovereign immunity in the FTCA.
First, the United States’ waiver of sovereign immunity in the FTCA does not apply to claims arising out of “assault, battery,” or any other intentional torts.
In addition, the waiver of sovereign immunity does not apply to claims arising in a foreign country.
Plaintiffs here allege that they or their decedents were in Israel when violence broke out in that country. Each injury was suffered in Israel, indisputably a foreign country. Claims arising out of injuries suffered in Israel are not cognizable under the FTCA.
Plaintiffs appear to attempt to relocate their injuries back to the United States, at least in part, by alleging that the Jack Roe
Harbury v. Hayden, 522 F.3d 413 (D.C. Cir. 2008), involved a similar argument. The plaintiff was the wife of a Guatemalan rebel commander who purportedly died at the hands of CIA operatives. She sued CIA employees on behalf of her husband‘s estate and on her own behalf for emotional distress. The D.C. Circuit held that any claims brought by the husband‘s estate were barred because the injuries were suffered in Guatemala and “to the extent Harbury alleges her own emotional injuries in the United States as a result of the death of her husband, those derivative claims similarly arise in Guatemala for purposes of the FTCA because they are based entirely on the injuries her husband suffered there.” Id. at 423. Like the plaintiff in Harbury, Plaintiffs’ claims are barred by the foreign country exception and Counts Eleven and Twelve must be dismissed as against the Federal Defendants, in all capacities.
B. RICO Claims in Individual Capacities
The court has already determined that Counts Four through Twelve assert claims against the Federal Defendants that are barred by immunity, even when styled as claims against the Federal Defendants in their individual capacities. The only remaining potentially viable claims are Counts One, Two, and Three—the RICO claims against the Federal Defendants in their individual capacities. As the Federal Defendants correctly point out, President Obama is absolutely immune from suit, and Secretaries Clinton and Kerry are protected by qualified immunity. (Def.‘s Mot. at 26-28). And, notwithstanding any immunity, Plaintiffs have not adequately alleged that they have standing to assert any RICO claims.
i. Presidential Immunity
The President is absolutely immune from “damages liability for acts within the ‘outer perimeter’ of his official responsibility.” Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982). Absolute immunity is extended to few officers, and it is denied only if the officer acts “without any colorable claim of authority.” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 504 (2d Cir. 2004) (addressing absolute prosecutorial immunity). Immunity is not overcome by “allegations of bad faith or malice.” Barrett v. Harrington, 130 F.3d 246, 254-55 (6th Cir. 1997) (judicial immunity); see also Bernard, 356 F.3d at 504 (noting that “racially invidious or partisan prosecutions, pursued without probable cause, are reprehensible, but such motives do not necessarily remove conduct from the protection of absolute immunity“). Nor is immunity defeated by an allegation that the president acted illegally. Fitzgerald, 457 U.S. at 756.
In Fitzgerald, the plaintiff alleged that he was terminated from the Air Force, at the direction of the President, in violation of civil service whistleblower protections. Despite the allegations of illegality, the Supreme Court held that because it “clearly is within the President‘s constitutional and statutory authority to prescribe the manner in which the Secretary will conduct the business of the Air Force” the President had acted “well within the outer perimeter of his authority.”
Plaintiffs’ argument to the contrary is not persuasive. (Pls.’ Opp‘n at 21). Plaintiffs point to the holding in Clinton v. Jones, 520 U.S. 681, 694-95 (1997) in support of their argument that the President is not “above” the law. That case addressed a situation distinguishable from the one at bar. Clinton affirmed broad and absolute presidential immunity, but limited that immunity to acts “taken in an official capacity“—and held that President Clinton‘s conduct before he became President was not an official act of the President such that absolute immunity attached. See 520 U.S. at 695. Plaintiffs also cite to United States v. Nixon, 418 U.S. 683 (1974) for the proposition that the President cannot use immunity to hide illegality. That case, however, did not address the issue of presidential immunity from civil liability; rather, it dealt with a subpoena for information from the President, and did not seek to hold the President liable for damages. Id.; see also Fitzgerald, 457 U.S. at 760 (noting distinction). The court finds that Plaintiffs have failed to show that the President‘s alleged actions fall outside of activity that is protected by immunity, and therefore their RICO claims cannot proceed against President Obama.
ii. Qualified Immunity
Qualified immunity shields “government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (internal quotations omitted). In evaluating a qualified immunity defense, the court must determine whether plaintiff has alleged the violation of such a right, and whether the right was “clearly established” at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 231-32 (2009). It is within the court‘s discretion to evaluate the latter factor first, or vice versa. Id. at 236. Qualified immunity analysis applies to claims against public officials for RICO violations. See, e.g., BEG Invs., LLC v. Alberti, 34 F. Supp. 3d 68, 81-82 (D.D.C. 2014).
Plaintiffs have not responded to the qualified immunity argument asserted by the Federal Defendants.17 In this Circuit, when opposition papers fail to address certain arguments raised by the moving party, the court may treat those arguments as conceded. Hopkins v. Women‘s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (internal citations omitted), aff‘d, 98 Fed. Appx. 8 (D.C. Cir. 2004). Moreover, it is not enough to merely “mention a possible argument in the most skeletal way, leaving the [C]ourt to do counsel‘s work, create the ossature for the argument, and put flesh on its bones.” Dinkel v. MedStar Health, Inc., 880 F. Supp. 2d 49, 58 (D.D.C. 2012) (quoting Schneider v. Kissinger, 412 F.3d 190, 200 n. 1 (D.C. Cir. 2005)) (alterations in origi-nal). Instead, the opposing party must put forth fully formed arguments or risk having the argument treated as conceded. Dinkel, 880 F. Supp. 2d at 58. Defendants’ arguments regarding qualified immunity will therefore be treated as conceded.
iii. RICO Standing
The Federal Defendants also argue that Plaintiffs’ RICO claims are not cognizable because Plaintiffs lack standing to assert those claims. (Def.‘s Mot. at 16).
A RICO plaintiff must allege injury to his or her “business or property.” Holmes v. Secs. Investor Prot. Corp., 503 U.S. 258, 267-68 (1992). Allegations of personal injury do not suffice.18 Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 19 (D.D.C. 2005) (citing Burnett v. Al Baraka Inv. and Dev. Corp., 274 F. Supp. 2d 86, 100-02 (D.D.C. 2003)). In Burnett, the court rejected the argument that economic losses flowing from personal injuries amounted to an injury to “business or property,” recognizing that Congress intended RICO to remedy a particular and narrow subset of injuries. 274 F. Supp. 2d at 101-02. Plaintiffs counter only as to plaintiff Klayman, arguing that “an injury to [Klayman] is necessarily an injury to his law practice,” and that his visit to Israel in 2014 “was for business purposes.” (Pls.’ Opp‘n at 18). Therefore, Plaintiffs argue, “all the harm done to Plaintiff Klayman as an individual necessarily caused harm to Plaintiff Klayman‘s business and property.” (Id.). The Federal Defendants correctly note that this is precisely the argument previously rejected by multiple courts. See, e.g., Grogan v. Platt, 835 F.2d 844, 847 (11th Cir. 1988) (noting that “loss of earnings, loss of consortium, loss of guidance, mental anguish, and pain and suffering are often to be found, intertwined, in the same claim for relief” and denying standing); Doe v. Roe, 958 F.2d 763, 770 (7th Cir. 1992) (noting that “Doe‘s loss of earnings, her purchase of a security system and her employment of a new attorney are plainly derivatives of her emotional distress—and therefore reflect personal injuries which are not compensable under RICO“); Burnett, 274 F. Supp. 2d at 100-01. Under the law, the Plaintiffs lack standing to bring these RICO claims, which must therefore be dismissed against all Defendants.
C. Plaintiffs’ Bivens Claims
Plaintiffs do not assert any specific claim pursuant to Bivens, although they allege that “[j]urisdiction is also proper under Bivens ... in so far as the actions violate the 1st, 4th, 5th and 14th Amendments to the U.S. Constitution.”19 (Am. Compl. ¶ 11). Plaintiffs assert that this language suffices to plead a Bivens claim, arguing that they need only allege they were “deprived of a constitutional right by
In analyzing a Bivens claim, a court must first “identify the exact contours of the underlying right said to have been violated and determine whether the plaintiff has alleged a deprivation of a constitutional right at all.” Al-Aulaqi v. Panetta, 35 F. Supp. 3d 56, 71 (D.D.C. 2014) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998)) (internal quotation marks omitted). To do so, the court must start by identifying what “elements a plaintiff must plead to state a claim,” because “[t]he factors necessary to establish a Bivens violation will vary with the constitutional provision at issue.” Iqbal, 556 U.S. at 675-76. Plaintiffs’ single, conclusory sentence provides no context identifying which rights have allegedly been violated: Plaintiffs’ freedom of expression? Freedom of speech? Right to equal protection or due process? Freedom from unreasonable searches?20 And, even if the court could divine from the limited contextual clues which rights were implicated, the Complaint is devoid of allegations tending to show that any Federal Defendant acted with the requisite specific intent. Id. at 676-77. As the Federal Defendants note, “Plaintiffs make no effort to explain what rights under these Constitutional amendments are at issue,” leaving the Federal Defendants (and the court) to “guess what cause of action Plaintiffs intend to present . . . .” (Def.‘s Mot. at 25-26). As this is precisely the analysis adopted by Iqbal, Plaintiffs cannot reasonably argue that this imposes a heightened pleading standard on the Plaintiffs. (Pls.’ Opp‘n at 17). The court therefore finds that Plaintiffs have failed to state a Bivens claim upon which relief can be granted.
D. Plaintiffs’ Claims under the Alien Tort Claims Act
Although Plaintiffs do not allege a separate claim, the Amended Complaint invokes the Alien Tort Claims Act as a basis for jurisdiction. (Am. Compl. ¶ 8). That Act,
E. Claims brought by anonymous Plaintiffs
The Federal Defendants argue that all claims brought by the pseudonymous plaintiffs must be dismissed for failure to seek or obtain leave to proceed under pseudonyms. (Def.‘s Mot. at 7-10). The D.C. Circuit has not squarely addressed this issue, although some other circuits have held that failure to obtain leave precludes the exercise of subject-matter jurisdiction. W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001) (“When a party wishes to file a case anonymously or under a pseudonym, it must first petition the district court for permission to do so.“); Citizens for a Strong Ohio v. Marsh, 123 Fed. Appx. 630, 637 (6th Cir. 2005). Plaintiffs counter that they “are afforded the opportunity to proceed without having their names and physical addresses” made public “[d]ue to the serious threat of harm” and retaliation the anonymous plaintiffs would face by suing a recognized terrorist organization. (Pls.’ Opp‘n at 26-27). This may well be true, but Plaintiffs
The court recently denied a motion for leave to proceed under a pseudonym but continued to exercise subject matter jurisdiction over the case notwithstanding the rule in some circuits that there is no jurisdiction until there is a named plaintiff. See Roe v. Bernabei & Wachtel PLLC, 85 F. Supp. 3d 89, 95-96 (D.D.C. 2015). However, in that case, all parties knew plaintiff‘s identity, that she was a real person with standing to assert her claims, and that, other than the plaintiff‘s name and address, there were no other apparent barriers to jurisdiction. Id. at 97 n. 6. That is not the case here. The court cannot evaluate, for example, whether the anonymous plaintiffs have standing to bring claims as personal representatives of their decedents, have standing to bring claims under RICO, or whether permitting them to proceed anonymously will unduly prejudice the Defendants. Accordingly, the claims brought by anonymous plaintiffs will be dismissed. The anonymous plaintiffs may make an ex parte motion within fourteen (14) days of the date of this opinion for leave to reinstate their claims under pseudonyms. See, e.g., Qualls v. Rumsfeld, 228 F.R.D. 8, 10 (D.D.C. 2005) (describing ad-hoc process for obtaining leave to proceed via pseudonyms).
F. Service of Process on the Federal Defendants
The Federal Defendants argue for dismissal on the basis that Plaintiffs failed to properly effect service pursuant to
First, it appears that Plaintiff Larry Klayman attempted to personally serve the Federal Defendants. (Pls.’ Opp‘n at 23 (the White House is “precisely where Plaintiff served Defendant Obama“)). If so, as Defendants note (Def.‘s Reply at 3 & n.3), this violated
G. Service of Process on Malik Obama and Hamas
i. Service on Malik Obama
Plaintiffs have represented that they made “several good faith attempts” to
These efforts are inadequate under Rule 4. Neither Federal nor Virginia law permits service of an individual defendant at his place of business, and yet the first two addresses attempted for service on Malik Obama were addresses associated with his place of work, not his residence. See
ii. Service on Hamas
It does not appear that Plaintiffs have attempted to serve Hamas. Plaintiffs argue that as a terrorist organization, Hamas has “no known physical address” and thus “cannot be served by conventional methods.” (Pls.’ Service Response ¶¶ 8-9). The Plaintiffs further speculate that “because of the inherent dangers” in serving such an organization, which would “likely [be] hostile” to the process server, they require more time to develop an alternate means and to accomplish service. (Id. ¶¶ 10-11). As of the date of this Opinion, Plaintiffs have not moved for an order seeking authorization to accomplish service by alternative means. This weighs in favor of dismissal for failure to effectuate service. See Mann, 681 F.3d at 376. However, Circuit precedent suggests that a reasonable prospect of service may outweigh other considerations. Id.
Hamas has been successfully served in the past. In Estates of Ungar v. Palestinian Auth., 304 F. Supp. 2d 232, 258-59 (D.R.I. 2004), for example, a U.S.-based HAMAS agent was served at his Illinois residence. The court found that since Hamas was a foreign unincorporated association, service on an “officer, [or] managing or general agent” such as a “high level HAMAS military operative” was sufficient under
Similarly, in Sisso v. Islamic Repub. of Iran, 448 F. Supp. 2d 76, 88 (D.D.C. 2006), the plaintiff properly served Hamas pursuant to
H. Diplomatic Immunity of Secretary-General Ban Ki-Moon
Secretary-General Ban Ki-Moon has not appeared in this action. Plaintiffs assert they validly served process on the Secretary-General on May 8, 2015 by leaving a copy of the summons and complaint on the desk of a United Nations security guard, who refused to accept service or give his name. (Pls.’ Service Response ¶ 3.).
This attempt at service does not appear to comply with any method of service contemplated by the Federal Rules or New York State law. See
Even if service had been properly accomplished, however, the Secretary-General‘s position as a diplomat accorded immunity independently requires dismissal.
Plaintiffs devote substantial effort in their submission on the Secretary-General‘s immunity to argue that
Plaintiffs also argue that even if the Vienna Convention did apply (and it does), immunity still would not attach because the actions complained of are not official functions or are within the scope of the commercial activity exception. (Pls.’ Immunity Response at 2-6). Article 31 of the Vienna Convention provides for full civil immunity except for: “[a] real action relating to private immovable property situated in the territory of the receiving State,” “[a]n action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person,” or “[a]n action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.” Id. art. 31, ¶ 1(a)-(c). In contrast, under Article 37 of the Convention, “[m]embers of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall . . . enjoy the privileges and immunities specified in [A]rticles 29 to 35, except that [Article 31 immunity] shall not extend to acts performed outside the course of their duties.” Members of a mission‘s service staff receive immunity limited to “acts performed in the course of their duties.” Id. art. 37, § 3. Plaintiffs’ citation to Article 37 in support of their argument that immunity does not attach (Pls.’ Immunity Response at 4) is therefore unpersuasive, because Article 37 does not apply to the Secretary-General.
The contrast between the nearly absolute immunity accorded under Article 31 and the more limited immunity in Articles 37 and 39 is illustrated by Swarna v. Al-Awadi, 622 F.3d 123 (2d Cir. 2010), on which Plaintiffs rely extensively to argue that the Secretary-General‘s alleged conduct is commercial activity outside his official functions. Swarna dealt with immunity under Article 39 of the Vienna Convention, which provides “‘residual’ immunity, which is a less expansive immunity that remains with the former diplomats for certain acts committed during their occupation of the diplomatic station.” Id. at 134. In Swarna, which involved claims for human trafficking and slavery brought by a domestic worker forced to work for a former diplomat and his wife, the court held first that the wife of a former diplomat was not entitled to residual immunity (although she would have been entitled to immunity during the time her husband occupied a diplomatic post). Id. As to the diplomat himself, the court noted that residual immunity extends only to acts performed in the exercise of diplomatic functions and not to “acts that are ‘incidental‘” to those functions. Id.; see also id. at 137 (noting that “[s]itting diplomats are accorded near-absolute immunity in the receiving state to avoid interference with the diplomat‘s service“). Consequently, the court ruled that Article 39 immunity was limited only to official acts, and the hiring of a purely private domestic worker was not an official act. Id. at 137-38.
Unlike Article 39 immunity, Article 31 immunity is nearly absolute and the commercial activity exception has been found to be inapplicable to conduct very similar to the conduct at issue in Swarna. In Sabbithi v. Al Saleh, 605 F. Supp. 2d 122 (D.D.C. 2009), plaintiffs attempted to sue a Kuwaiti diplomat who had hired them as domestic workers while he served as diplomatic attaché in the United States. Id. at 125. Plaintiffs argued that the commercial activity exception applied since human trafficking is a commercial activity. Id. at 127. The court rejected that literal construction and agreed with the Fourth Circuit, which had previously held that the
No exception applies here. Even assuming for the purposes of argument that the alleged conduct is “commercial activity,” it is nonetheless conduct squarely within the Secretary-General‘s “official functions.” (See, e.g., Am. Compl. ¶ 157. (“Ban Ki-Moon has illegally operated the resources and assets of the United Nations to support HAMAS’ terrorist activities materially and directly....“); ¶ 158 (“Ban Ki-Moon has operated the resources and assets of the United Nations including public schools run by the United Nations within Gaza to house deadly military rockets used in war crimes.....“). Secretary-General Ban Ki-Moon is essentially accused of operating the United Nations and making determinations about the United Nations’ resources in a manner that enabled and facilitated Hamas’ terrorism and war crimes. (Am. Compl. ¶¶ 155, 157). Plaintiffs argue that by alleging the commission of war crimes and other violations of municipal and international law (e.g., Pls.’ Immunity Response at 3 (“[s]upporting terrorism and war crimes and other illegal activity are clearly not ‘official functions’ of the U.N. Secretary-General“)) they have exempted themselves from or overcome immunity. However nothing in the text of either the Vienna Convention, the General Convention, or
In light of the clear applicability of diplomatic immunity, all claims against Secretary-General Ban Ki-Moon in any capacity are DISMISSED.
IV. CONCLUSION
Plaintiffs have pled no cognizable claims against the Federal Defendants. Plaintiffs lack standing to assert RICO claims and, even if they properly alleged standing, could assert no claims against the Federal Defendants in light of sovereign, presidential, and qualified immunity. Those immunities similarly bar the remaining enumerated claims asserted against the Federal Defendants. To the extent Plaintiffs intended to bring Bivens claims or claims pursuant to the ATCA against the Federal Defendants, the allegations related to those claims do not suffice to state such claims. Plaintiffs may make a procedurally proper motion for leave to file a Second Amended Complaint to the extent it is possible to cure the defects identified in the First Amended Complaint.
As to the remaining Defendants, diplomatic immunity bars all claims against Secretary-General Ban Ki-Moon and he must be dismissed as a defendant. Plaintiffs’ request for an extension of time to effect service on the remaining Defendants will be granted.
Finally, because the anonymous plaintiffs failed to follow procedures for obtaining leave to proceed under pseudonyms, their remaining claims will be dismissed, with the potential for reinstatement if the court receives and grants a proper request to proceed under pseudonyms.
A corresponding order will issue separately.
TANYA S. CHUTKAN
UNITED STATES DISTRICT JUDGE
Steven NEWMAN, Plaintiff, v. DISTRICT OF COLUMBIA COURTS and the District of Columbia, Defendants.
Civil Action No. 14–01011 (RDM)
United States District Court, District of Columbia.
Signed August 26, 2015