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Full-text: June 22 2001

United States District Court
for the District of Columbia

Filed, Jun 22 2001, Nancy Mayer Whittington, Clerk U.S. District Court

Case Number 1:01CV00731


Judge: Richard W. Roberts


Deck Type: General Civil


 )
El-Shifa Pharmaceutical)
Industries Company and)
)
Salah El Din Ahmed)
Mohammed Idris)
Plaintiffs,)
)
v.)
)
United States of America,)
Defendant.)
 )

Reply Memorandum
in Support of Defendant’s Motion to Dismiss

Introduction

The issue presented by defendant’s Motion to Dismiss is whether this Court has subject matter jurisdiction to grant plaintiffs the monetary and injunctive relief they seek. In their Complaint plaintiffs asserted jurisdiction under three statutes: 28 U.S.C. § 1346, the Federal Tort Claims Act; 28 U.S.C. § 1331, Federal question; and 28 U.S.C. § 1350, the Alien Tort Claims Act. (Complaint, ¶ 5.) In the memorandum filed in support of its Motion to Dismiss the United States explained at length and in detail that none of these statutes are applicable here, and that the entire action is barred by the political question doctrine.

In response, plaintiffs have not mentioned their claims under the Alien Tort Claims Act. With regard to § 1331, they have raised a tangential issue (review of “nonstatutory” claims under 5 U.S.C. § 702) which is not applicable to their claim. That claim is barred for the three reasons set forth in defendant’s brief, reasons which plaintiffs have entirely ignored. As to the FTCA, they argue, contrary to the D.C. Circuit decision in Saltany v. Reagan, 886 F.2d 438 (D.C. Cir. 1989), that the discretionary function exception, the combatant activity exception, and the foreign tort exception to the FTCA are inapplicable to a missile strike ordered by the President in response to an ongoing terrorist threat. The nub of their argument regarding the discretionary function exception, that policy decisions based on allegedly inaccurate information are not protected, has been rejected by the D. C. Circuit Court of Appeals. Sloan v. U.S. Dept. of H.U.D. {37kb.html/txt, 31kb.txt}, 236 F.3d 756, 761 (D.C. Cir. 2001). Finally, plaintiffs’ arguments pertaining to the political question doctrine ignore the nature of the challenged action here, the launching of a missile attack by the United States military on a target ordered by the President, acting as Commander in Chief.

Plaintiffs complain that the government has “ignore[d] the facts alleged in the complaint { p.2 } and the standards that must be applied at the pleadings stage.” (Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant’s Motion to Dismiss (Pl. Br.) at 1.) Plaintiffs are mistaken in what those standards are. They assert that, “In reviewing a motion to dismiss for lack of subject matter jurisdiction under Rule12(b)(1), a court must accept the plaintiff’s factual allegations as true and draw all reasonable inferences in the plaintiff’s favor.” (Pl. Br. at 8.) To the contrary, a key difference between a Rule 12(b)(1) motion and a 12(b)(6) motion is that under Rule 12(b)(1) the Court may consider matters outside the pleadings.

Challenges to subject matter jurisdiction through a 12(b)(1) motion to dismiss come in two different forms — facial and factual attacks....

On a facial challenge, the plaintiff enjoys safeguards similar to those provided in opposing a Rule 12(b)(6) motion. The court will accept the plaintiff’s allegations as true, construing them most favorably to the plaintiff, and will not look beyond the face of the complaint to determine jurisdiction.

When the attack is factual, however, the trial court may proceed as it never could under [Rule] 12(b)(6) or [Rule] 56. Because a factual Rule 12(b)(1) motion involves the court’s very power to hear the case, the court may weigh the evidence to confirm its jurisdiction. No presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts does not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Moore’s Federal Practice 3D, § 12.30[4] (2001) (footnotes and internal quotations omitted); accord Kuffel v. U.S. Bureau of Prisons, 882 F.Supp. 1116, 1120 (D.D.C. 1995); Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). 1  { p.3 }

The point is that when the Court resolves whether it has subject matter jurisdiction it is not limited to the facts alleged in the Complaint. Rather, it can also consider the President’s statements as to what he did and why he did it. It is in this context that defendant has ignored the bulk of plaintiffs’ allegations; they are simply irrelevant to the jurisdictional defenses which bar this suit.

The relevant facts are set forth in statements the President made in his August 21, 1998, letter to Congressional Leaders, 2 Public Papers of the Presidents of the United States: William J. Clinton, 1998 {SuDoc: AE 2.114:998/BK.2, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}, p. 1464 {3kb.txt, 84kb.pdf} (1998), attached as Exhibit 1 to the Motion to Dismiss:

[O]n August 20, 1998, at my direction, U.S. forces conducted strikes in Afghanistan against a series of camps and installations used by the Usama bin Ladin organization, and in Sudan where the bin Ladin organization has facilities and extensive ties to the government. I ordered these actions based on convincing information from a variety of reliable sources that the bin Ladin organization is responsible for the devastating bombings on August 7, 1998, of the U.S. Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, that killed over 250 persons. United States forces struck a facility in Sudan being used to produce materials for chemical weapons.

* * *

These strikes were a necessary and proportionate response to the imminent threat of further terrorist attacks against U.S. personnel and facilities. These strikes were intended to prevent and deter additional attacks by a clearly identified terrorist threat. The targets were selected because they served to facilitate directly the efforts of terrorists specifically identified with attacks on U.S. personnel and facilities and posed a continuing threat to U.S. lives.

* * *

I directed these actions pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.

They also include his August 20, 1998, Address to the Nation on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 Public Papers of the Presidents of the United States: William J. Clinton, { p.4 } 1998, pp. 1460-61 {8kb.txt, 90kb.pdf} (1998), attached as Exhibit 1 to the Motion to Dismiss:

Today I ordered our Armed Forces to strike at terrorist-related facilities in Afghanistan and Sudan because of the imminent threat they presented to our national security.

* * *

With compelling evidence that the bin Ladin network of terrorist groups was planning to mount further attacks against Americans ... I decided America must act. And so this morning, based on the unanimous recommendation of my national security team, I ordered our Armed Forces to take action to counter an immediate threat from the bin Ladin network.

* * *

Our forces also attacked a factory in Sudan associated with the bin Ladin network. The factory was involved in the production of materials for chemical weapons.

The United States does not take this action lightly. Afghanistan and Sudan have been warned for years to stop harboring and supporting these terrorist groups.

* * *

The risks from inaction, to America and the world, would be far greater than action, for that would embolden our enemies, leaving their ability and their willingness to strike us intact. 2 

Thus, the President ordered the United States military to destroy the El-Shifa facility based upon evidence which he found to be convincing and upon the unanimous recommendation of his national security team. He took the action as a measured, proportionate response to an imminent, specific threat. The target was selected because the President determined that it directly facilitated efforts of terrorists. Sudan had been repeatedly warned not to harbor such { p.5 } terrorists. The President concluded that inaction would embolden terrorists and leave them able and willing to strike. Having weighed and balanced the information available to him and the international ramifications of the situation, he determined that it was in the Nation’s interest to order the missile attack. Given the state of the law and the background provided by the President’s statements, plaintiffs’ action must be dismissed. 3 

Discussion

I.
The Federal Tort Claims Act
Does Not Waive Sovereign Immunity
for this Action

In its opening brief the United States explained how this action is indistinguishable from the Saltany litigation which arose from a similar anti-terrorist missile attack on Libya in 1986. (Def. Br. at 6-7, 13, 15.) 4  The district court dismissed the entire action. It specifically held that, “The Federal Tort Claims Act expressly preserves the sovereign immunity of the United States for acts of its officials that involve the exercise of discretion, arise from combatant activities in time of war, or arise in a foreign country. 28 U.S.C. § 2680(a) [discretionary function exception], (j) [combatant activity exception], and (k) [foreign tort exception].” 702 F.Supp. at 321, n.4. The D.C. Circuit granted summary affirmance of that decision, “substantially for the reasons stated [in the district court’s memorandum].” 886 F.2d at 441. { p.6 }

Here is a binding precedent on remarkably similar facts. The law so clearly required dismissal that Judge Jackson found, “The case offered no hope whatsoever of success, and plaintiffs’ attorneys surely knew it.” 702 F.Supp. at 322. The D.C. Circuit (Buckley, D.H. Ginsburg, and Sentelle, JJ.) concurred in that finding and reversed an order denying sanctions. 886 F.2d at 440. Saltany standing alone requires dismissal of this action. Yet, plaintiffs have virtually ignored it.

The entirety of plaintiffs’ discussion of Saltany is set forth on page 14 of their brief. They acknowledge that Saltany and this case both involve missile attacks, but claim “[t]he resemblance ... ends there.” (Pl. Br. at 14.) They inaccurately state that in Saltany, “There [was] no suggestion ... that the plaintiffs’ claims were based upon misconduct that occurred in the United States.” (Id.) 5  They complain that the Saltany opinion does not set forth an analysis of the foreign country exception, and announce that the defendant’s position that Saltany is “‘reasonably similar’” to this case “cannot withstand even the most basic scrutiny.” (Id.) Then, by way of footnote, they conclude that, “The government’s reliance on Saltany’s application of the combatant activities and discretionary functions exceptions ... is similarly cavalier.” (Id., n.8.)

Plaintiffs’ problem is that Saltany held that a virtually identical suit was barred by three distinct FTCA exceptions. They studiously avoid discussing the merits of that decision. Their { p.7 } argument that the facts were different for the foreign tort exception is simply wrong. (See n.5., supra.) They make no attempt whatsoever to distinguish their case from Saltany for purposes of the discretionary function or combatant activity exceptions. Frankly, Saltany is indistinguishable. The three exceptions it relied upon, singularly or in combination, bar plaintiffs’ tort action.

A.

In its opening brief the United States explained that the discretionary function exception bars plaintiffs’ tort claims because both steps of the test set forth in United States v. Gaubert, 499 U.S. 315 (1991), have been met. First, President Clinton’s decision to order the destruction of El-Shifa involved a matter of choice which was not constrained by statute or regulation, nor do plaintiffs suggest to the contrary. Indeed, the President clearly has authority to make precisely such decisions. U.S. Const. Art. II, § 2; the Prize Cases, 2 Black (67 U.S.) 635, 670 (1862) (In resolving whether military force is necessary, “He [the President] must determine what degree of force the crisis demands,” and the court “must be governed by [those] decision and acts of the political department....”); Johnson v. Eisentrager, 339 U.S. 763, 789 (1950). The second part of the Gaubert test is also met because the President’s decision to destroy El-Shifa was grounded in social and political policy. He took the action as a measured, proportionate response to an imminent, specific threat. The target was selected because he concluded it directly facilitated efforts of terrorists. The President weighed and balanced the information available to him and the international ramifications of the situation, and determined that the strike would prevent and deter future terrorist attacks. 6  Accordingly, suit is barred by § 2680(a). { p.8 } Sloan v. U.S. Dept. of H.U.D., 236 F.3d 756 (D.C. Cir. 2001); Saltany; Industria Panificadora, S.A. v. United States, 957 F.2d 886, 887 (D.C. Cir. 1992), cert. denied, 506 U.S. 908 (1992) (suit arising from looting in wake of U.S. invasion of Panama); see also, Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985) (suit arising out of United States’ alleged support for Contra forces in Nicaragua).

Confronted with this analysis, plaintiffs choose to ignore the President’s decision and instead argue that they challenge the allegedly “negligent and reckless analyses of the soil sample.” (Pl. Br. at 16. 7  ) Their position is that “where ... the decision maker lacks the scientific or other technical knowledge to evaluate erroneous fact determinations by another government agency, it makes no sense to shield culpable misconduct from review simply because it causes a mistaken discretionary judgment.” (Id. at 23.) This is the tack the plaintiffs took in Sloan, where building contractors were suspended from government contracts because auditors negligently and mistakenly concluded that the contractors were working with lead-based paint. The D.C. Circuit put it this way:

Apparently recognizing that suspension itself is a discretionary function, plaintiffs focus their primary attention not on the suspension but on the investigation and audit that preceded it. Although suspension may be discretionary, they argue, standards of professional practice constrain HUD’s auditors during the investigatory phase and preclude application of the discretionary function exception. { p.9 }

This argument fails for two reasons. First, it is impossible to sever HUD’s investigation from the subsequent suspension in the way plaintiffs urge. Second, even if the investigation could be severed, it, too, constitutes a discretionary function under Gaubert.

Sloan {37kb.html/txt, 31kb.txt}, 236 F.3d at 761. The court separately explained its first reason, that the discretionary decision to suspend could not be separated from the negligent investigation:

[T]he challenged investigation is inextricably tied to the discretionary, quasi-prosecutorial decision to suspend plaintiffs from governmental contracting. The complaint does not allege any damages arising from the investigation itself, but only harm caused by the suspension to which it assertedly led.

* * *

Because the allegedly improper investigation thus caused no injury “distinct from the harm caused by the ultimate prosecution itself,” the former is not “sufficiently separable from [the] protected discretionary decision[]” and “cannot by itself support suit under the FTCA.” Gray [v. Bell], 712 F.2d [490] at 515 [(D.C. Cir. 1983)]; see General Dynamics [Inc. v. United States] {54kb.html, txt}, 139 F.3d [1280] at 1285-86 [(9th Cir. 1998)].... [Id. at 762.]

In the same vein, plaintiffs’ tort claim for the destruction of the El-Shifa facility arises from the President’s decision; there was no separate injury from the allegedly negligent investigation.

Plaintiffs seek to distinguish Sloan on the ground that it involved “different facts and circumstances,” and that it “did not ... hold that the discretionary functions exception covers all conduct that is related to a discretionary act.” (Pl. Br. at 19, 20.) But, that is not the proposition at issue. The question is whether a plaintiff can sever an allegedly negligent investigation from a policy-based, discretionary decision which is informed by that investigation. Sloan holds that it cannot. 236 F.3d at 762 {37kb.html/txt, 31kb.txt}; accord Gray v. Bell, 712 F.2d at 515-16 (“the improper and tortious actions allegedly undertaken by the defendants are too intertwined with purely discretionary decisions of the prosecutors to be sufficiently separated from the initial decision to prosecute.”)

The same conclusion has been reached by the Third and Ninth Circuits. Fisher Bros. Sales, Inc. v. United States {49kb.txt, 49kb.txt, 52 kb doc}, 46 F.3d 279 (3d Cir.), cert. denied sub nom. Balmaceda, Inc. v. { p.10 } United States, 506 U.S. 806 (1995); General Dynamics, Corp. v. United States {54kb.html, txt}, 139 F.3d 1280 ((9th Cir. 1998). Fisher Bros. arose from the decision of the Commissioner of the Food and Drug Administration to bar the importation of Chilean fruit. That decision was based on a number of factors, including reports that Chilean fruit had been injected with cyanide and an FDA laboratory report which concluded that some grapes were tainted. Plaintiffs, like plaintiffs here, argued that the discretionary function exception did not bar their claim that the laboratory report was negligently prepared. The Third Circuit explained:

[Plaintiffs] seek to avoid the legal consequences that would flow from application of the discretionary function exception to their cases by (1) looking behind the Commissioner’s injury- causing decision, (2) finding fault with an aspect of the data upon which it may have been based, and (3) arguing that their claims are not “based upon” the Commissioner’s decisions but instead are “based upon” the alleged negligence of various laboratory technicians who supplied the allegedly faulty data to the Commissioner. We reject this attempt to circumvent the discretionary function exception, concluding that if the discretionary function exception to the FTCA is to fulfill its clear and important purpose, a claim must be “based upon” the exercise of a discretionary function whenever the immediate cause of the plaintiff’s injury is a decision which is susceptible of policy analysis and which is made by an official legally authorized to make it. Because the plaintiffs’ claims are based upon decisions susceptible of policy analysis and made by an official of the executive branch acting within his authority, we will affirm the district court’s order dismissing these cases for lack of subject-matter jurisdiction.

* * *

The plaintiffs attempt to avoid application of the discretionary function exception by looking behind the injury-causing decision and finding fault with an aspect of the data on which it may have been based.

* * *

The reality here is that the injuries of which the plaintiffs complain were caused by the Commissioner’s decisions and, as a matter of law, their claims are therefore “based upon” those decisions. Any other view would defeat the purpose of the discretionary function exception. [46 F.3d at 282, 285, 286.]

General Dynamics {54kb.html, txt} reached the same conclusion (cited in Sloan {37kb.html/txt, 31kb.txt}, 236 F.3d at 762). There, suit was brought for damages incurred in defending a prosecution brought by the Department of { p.11 } Justice, but based upon a negligent audit by the Defense Contract Audit Agency (DCAA). The decision to prosecute was clearly protected by § 2680(a); General Dynamics sued on the theory that the negligent audit had caused its injuries. The Ninth Circuit rejected this approach.

General Dynamics ... recognizes that it cannot succeed in an attack on [the decision to prosecute] and adopts the ancient tactic of attempting to circumvent it instead. That is, it seeks to posture its case as an attack on the DCAA rather than as an attack on the prosecutors. If it can do that, as the district court thought it could, it may enhance its claims of success immeasurably. But it cannot do it.

* * *

We may take cognizance of the fact that a target has been selected for the purpose of evading the discretionary choice of the persons who actually caused the damage — here the prosecutors....

* * *

[D]ecision makers do, of necessity, rely upon information from others, and the purpose of the discretionary function exception would be severely undercut if a plaintiff could adopt the simple expedient of attacking one or more of the people who supplied information to the decision maker. [139 F.3d at 1283-84.]

Plaintiffs attempt to avoid the holding in Sloan that a negligent investigation cannot be severed from the policy decision which caused the injury. (Pl. Br. at 20-21.) They cite Berkovitz v. United States, 486 U.S. 531 (1988), for the proposition that a court must examine “each action (and subaction) challenged by the plaintiffs....” (Pl. Br. at 21.) But Berkovitz does not involve a situation of this kind where information from an allegedly negligent investigation was considered by a policy-maker. Rather, it arose when a vaccine was licensed for release to the public in contravention of mandatory agency regulations which set scientific standards for that licensing. 486 U.S. at 546-48. The discretionary function exception did not apply in Berkovitz because the agency had, by regulation, established its policy and set a scientific benchmark prescribing future agency action. (This is the first step of the Gaubert test as discussed in Sloan.) Given those benchmarks, agency personnel did not have the discretion to make a choice (to license { p.12 } vaccine for release to the public) precluded by the regulations. 8 

Nor can Sloan be avoided by reference to Appley Bros. v. United States, 1 F.3d 720 (8th Cir. 1993), United Cook Inlet Drift Assoc. v. Trinidad Corp. (In re Glacier Bay), 71 F.3d 1447 (9th Cir. 1995), or Payton v. United States, 679 F.2d 475 (5th Cir. 1982). (Pl. Br. at 20.) In Appley Bros., the Secretary did not actively make a policy decision informed by the challenged action of the inspectors; rather, their failure to follow mandatory regulations effectively kept him from considering the license revocation issue. 7 F.3d at 726. The discretionary policy issue in Glacier Bay was, in toto, whether to accept nautical charts. The Ninth Circuit has rejected applying Glacier Bay to allow suit when “a separate exercise of discretion stands between” a negligent investigation and a new policy decision. General Dynamics {54kb.html, txt}, 139 F.3d at 1285. 9  Payton turned on application of the “operational function — planning level” test for discretionary function (see 679 F.2d at 479-80, 483), which was soundly rejected by the Supreme Court in { p.13 } Gaubert, 499 U.S. at 326. 10 

Because the President’s decision to destroy El-Shifa involved complex questions of social and political policy, § 2680(a) bars plaintiffs’ tort action. Saltany; Sloan. Two subsidiary points can be easily resolved. First, the Court need not give deference to plaintiffs’ characterization of the actions which they purport to challenge. (E.g., “Those claims, however, challenge the negligent and reckless analyses of the soil sample....” (Pl. Br. at 16.)) As the Third Circuit said in Fisher Bros., 46 F.3d at 286:

The plaintiffs emphasize that this case comes to us on a grant of a motion to dismiss, and that we must accept their version of the facts as true.... We know of no authority for the proposition that plaintiffs, by the manner in which they draft { p.14 } their complaints, may dictate that their claims are “based upon” one government employee’s actions and not another’s. The relevant authority is to the contrary.

The reality here is that the injuries of which the plaintiffs complain were caused by the Commissioner’s decisions and, as a matter of law, their claims are therefore “based upon” those decisions. Any other view would defeat the purpose of the discretionary function exception.

See Western Associates Ltd. v. Partnership, ex rel. Ave. Associates, 235 F.3d 629, 634 (D.C. Cir. 2001); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). 11 

Second, this matter can be resolved without discovery. Plaintiffs argue that discovery is necessary because “the official in question” may not have had any discretion to exercise because of constraining “agency rules or regulation,” or it “may be unclear” whether the official’s “discretion involves any public policy considerations.” (Pl. Br. at 18.) In this case, unlike Sami v. United States, 617 F.2d 755, 767 (D.C. Cir. 1979), there is no question but that President Clinton’s order to strike El-Shifa involved public policy considerations. Unlike Ignatiev v. United States {14kb.html/txt, 12kb.txt}, 238 F.3d 464, 466 (D.C. Cir. 2001), there is no reason to think it “likely” that some agency rule or regulation constrained the President’s discretion. Those cases involved lower level employees implementing agency policy. Here, the challenged decision is that of the President. Gaubert was decided on a motion to dismiss. 499 U.S. at 320. This case should be { p.15 } resolved in the same fashion. 12 

B.

In its opening memorandum the United States explained that Saltany squarely holds that the FTCA’s combatant activities exception, 28 U.S.C. § 2680(j), bars suit where the President orders a military attack in response to terrorist activities. (Def. Br. at 6-7, 13, 15.) In their discussion of § 2680(j), plaintiffs make no mention of the Saltany decision. Instead, relying on several dictionary definitions of the term “war,” they argue that § 2680(j) is inapplicable because the United States was not at “war” in the sense that “there was no conflict between the armed forces of nations, states, or rulers at the time of the attack on the El-Shifa plant.” (Pl. Br. at 14.)

But plaintiffs’ definition of time of “war” is too narrow and too arbitrary. “It seems clear that the purpose of the exception we are construing is to ensure that the government will not be liable for negligent conduct by our armed forces in times of combat. Whether that combat is formally authorized by the Congress or follows less formal actions of the Executive and Legislative branches would seem to be irrelevant to Congress’s objectives.” Koohi v. United States, 976 F.2d 1328, 1334 (9th Cir. 1992). 13  If an outpost of United States troops is attacked { p.16 } by a force of a terrorist organization, tort claims arising from the ensuing combat would be barred by § 2680(j). Likewise, if U.S. troops counterattack such a terrorist force, tort claims arising from that combat also would be barred by § 2680(j). 14 

Even under the definition chosen by plaintiffs, the missile attack on El-Shifa was a combatant activity during “time of war” within the meaning of § 2680(j). Sudan had been warned not to harbor terrorists; the President had concluded that it was harboring such terrorists; he sent the United States military to strike a facility in the Sudan “involved in the production of materials for chemical weapons.” 15  The United States military personnel involved in that strike were on a combat mission. Plaintiffs’ position apparently accepts that § 2680(j) would bar suit had there been “an encounter of military forces between nations at the time of the El-Shifa { p.17 } attack....” (Pl. Br. at 16.) The fortunate circumstance that Sudanese forces did not mount a defense against the United States military personnel, and that there “was no encounter of military forces,” does not change the nature of the U.S. military’s mission or the nature of its actions. This was combatant activity during time of war within the meaning of § 2680(j). Koohi; Saltany.

C.

With regard to the foreign tort exception, 28 U.S.C. § 2680(k), plaintiffs argue:

This exception does not apply to plaintiff’s damage claims because those claims arise out of the government’s negligent handling of the soil sample and resulting targeting of the El-Shifa Pharmaceutical plant, all of which occurred primarily, if not exclusively, in the United States.

* * *

Since the negligent testing of the sample and the targeting decision occurred in the United States ... the claim arises in the United States even though the injury resulting from that misconduct was felt abroad. [Pl. Br. at 12-13.] [Emphasis added.]

This argument fails for several reasons. First, the Complaint alleges numerous acts which necessarily would have taken place in foreign countries. For example, it complains that defendant should have conducted “rudimentary reconnaissance at the Plant,” (Complaint at ¶ 92.e.); defendant should have made “inquiries in Sudan itself regarding commercial products produced at the plant, (Id. at ¶ 92.f.); and, defendant should have checked “public records concerning the ownership of the Plant,” (Id. at ¶ 92.g.). Even as to the “negligent handling of the soil sample” plaintiffs allege negligent actions in foreign countries: the chain of custody of the soil “is inadequately documented,” (Id. at ¶ 33.d.); because of the chain of custody problem there is a “possibility of tampering or contamination,” (Id.); more than “a single soil sample” should have been obtained (Id. at ¶ 92.a.); and soil samples “not carefully preserved and quickly tested” could readily be misidentified, (Id. at ¶ 33.e.). Indeed, the Complaint does not allege any specific { p.18 } mishandling of the soil sample in the United States by government employees. 16 

Second, plaintiffs’ suggestion that the place of the President’s decision to target El-Shifa (the United States) is relevant to the foreign tort exception is at odds with the position they take with regard to the discretionary function exception. In discussing § 2680(a) they state, “Plaintiffs do not ... seek judicial review of the President’s decision making; they seek review of a demonstrably erroneous factual determination based on a mistaken soil analysis that led [to] the misidentification of the plant as a chemical weapons facility and its subsequent destruction.” (Pl. Br. at 2.) If the President’s decision is irrelevant for purposes of the discretionary function exception, it is not relevant for purposes of the foreign tort exception. If his decision was not a wrongful act, it does not help plaintiffs avoid § 2680(k) because it is not a “wrongful act or omission” occurring in the United States. See Sami v. United States, 617 F.2d 755, 761 (D.C. Cir. 1979).

Third, even if it were assumed, arguendo, that all aspects of handling and testing the soil sample took place in the United States, the foreign tort exception would still bar plaintiffs’ Count Two, their “Claim For Trespass.” By its very nature, any trespass would necessarily have occurred at the site of the property which was allegedly trespassed upon. The tort of trespass involves the intentional intrusion on another’s real property. According to the Restatement, a defendant is liable for trespass if he intentionally enters another person’s land, remains on another person’s land or fails to remove from the land “a thing” that he has a duty to remove. Restatement { p.19 } (Second) of Torts § 158 (emphasis added) {OCLC: 507573, LCCN: 65005788, WorldCat}. Similarly, Black’s Law Dictionary at 1508 (7th ed. 1999), defines trespass as a “wrongful entry on another’s real property.” See also L’Enfant Plaza East, Inc. v. McShain, Inc., 359 A.2d 5 (D.C. 1976) (referring to trespass as an “encroachment” on another’s real property and holding that a subterranean structure that encroached on the plaintiff’s property was a continuing trespass). Since the property at issue is in Sudan, any alleged trespass took place there. Accordingly, the claim for trespass is barred by § 2680(k). Saltany, supra.

II.
28 U.S.C. § 1331
Does Not Waive Sovereign Immunity
for this Action
.

In its opening brief defendant set forth four reasons why plaintiffs cannot obtain injunctive relief under 5 U.S.C. § 702. (Def. Br. at 20-28.) As a preliminary matter defendant noted that plaintiffs had failed to identify “a relevant statute” within the meaning of 5 U.S.C. § 702. It then explained that even if plaintiffs had identified such a statute, no relief could be provided here because: the decisions at issue had been “committed to agency discretion by law;” the decisions Were made by the President, who is not subject to review under § 702; and, in cases involving sensitive issues of foreign policies the courts do not exercise discretion to issue injunctive relief.

In their two page discussion of the injunctive relief issues (Pl. Br. at 24-26), plaintiffs ignore defendant’s points and argue only that they are making “nonstatutory claims for declaratory relief under 5 U.S.C. § 702. Id. at 24. 17  Regardless of whether a § 702 action must be brought under the APA, certainly it must be brought in conformity with § 702 which provides, in part, “A { p.20 } person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” (Emphasis added.) Plaintiffs have not, however, brought suit “within the meaning of a relevant statute.”

Plaintiffs would tie § 702 to the grant of jurisdiction in 28 U.S.C. § 1331, which provides, “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” (Emphasis added.) But plaintiffs have never identified any source for the extraordinary injunctive relief they seek, be it statutory, constitutional, or treaty-based. In contrast, each of the cases they cite in support of their “nonstatutory” thesis involved either a specific federal statute or constitutional right. 18  To the { p.21 } extent that Section 1331 constitutes a “statute” within the meaning of 5 U.S.C. § 702, plaintiffs must still present a claim that arises under “the Constitution, Laws, or treaties of the United States.” 28 U.S.C. § 1331. They have not done so.

Even if § 1331 were applicable, plaintiffs’ injunctive claims would still fail for the unrebutted reasons set forth in defendant’s opening brief. While defendant will not reiterate its entire argument, three points merit attention. First. § 702 does not authorize review of matters committed to agency discretion. Schnapper v. Foley, 667 F.2d 102, 116 (D.C. Cir. 1981). Thus, in matters of foreign affairs and diplomacy there is a strong presumption against judicial review. Pacific Coast Dist., Marine Engineers’ Beneficial Assn. v. Maritime Admin. {28kb.html/txt, 23kb.txt}, 215 F.3d 37, 41-42 (D.C. Cir. 2000); National Federation of Federal Employees v. United States, 905 F.2d 400, 405-06 (D.C. Cir. 1990); see generally, Def. Br. at 22-24. 19  Second, § 702, by its terms, only applies to “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action....” (Emphasis added.) Here, the injunctive relief sought is directed to Presidential decisions, and the President is not an officer or employee of an agency for § 702 purposes. Dalton v. Specter, 511 U.S. 462 (1994); Franklin v. Massachusetts, 505 U.S. 788 (1992). Third, § 702 provides, “Nothing herein (1) affects other limitations on judicial review or the power or duty of { p.22 } the court to dismiss any action or deny relief on any other appropriate legal or equitable ground....” (Emphasis added.) One such limitation is the discretion of the Court. As then Judge Scalia wrote, “At least where the authority for our interjection into so sensitive a foreign affairs matter as this are statutes no more specifically addressed to such concerns than the Alien Tort Statute and the APA, we think it would be an abuse of our discretion to provide discretionary relief. Cf. Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978).” Sanchez-Espinoza, 770 F.2d at 208, (D.C. Cir. 1985).

III.
The Court Lacks Subject Matter Jurisdiction
Because This Action Involves a
Non-Justiciable Political Question
.

Plaintiffs assert that they “are not asking this Court to review the appropriateness of any past ... Executive Branch policy concerning foreign relations or use of the military.” (Pl. Br. at 28.) But, of course, they are. 20  To grant plaintiffs the relief they seek, the Court would necessarily have to conclude that President Clinton erred when he determined, inter alia, that destruction of the El-Shifa facility would be a measured, proportionate response to an imminent, specific threat, and that inaction by the United States would embolden terrorists and leave them able and willing to strike.

In arguing against application of the political question doctrine plaintiffs studiously ignore the key point: the President of the United States “ordered our Armed Forces to strike at terrorist-related facilities in Afghanistan and Sudan because of the imminent threat they presented to our { p.23 } national security.” 2 Public Papers of the President: William J. Clinton, 1998, pp. 1460-61 {8kb.txt, 90kb.pdf}, Exh. 1. Such decisions regarding the use of the Nation’s armed forces are for the President to make without second guessing from the courts. Prize Cases, 2 Black (67 U.S.) 635, 670; Johnson v. Eisentrager, 339 U.S. 763, 789 (1950); Rappenecker v. United States, 509 F.Supp. 1024 (N.D. Cal. 1980). There are no appropriate standards by which the Court can evaluate his decision tolaunch this attack in his capacity as Commander in Chief, or to explain it under his authority to conduct foreign policy. U.S. Const. Art. II, § 2; Chicago & Southern Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 111 (1948); Rappenecker; People's Mojahedin Org. of Iran v. U.S. Dept. of State, 182 F.3d 17. 21  {31kb.html/txt, 31kb.txt} Moreover, court review of the President’s decision would involve it in policy decisions of a non-judicial kind. E.g., whether military action should be taken upon the available evidence, or whether more peaceful means should have been pursued. See Chaser Shipping, supra, and Complaint, ¶ 113 (use of “peaceful means”). Finally, adjudicating the case would necessarily infringe on the responsibilities of the executive and potentially embarrass the Nation. Aktepe v. United States, 105 F.3d 1400 at 1404 (11th Cir. 1997), cert. denied 522 U.S. 1045 (1998) {16kb.html, 22kb.pdf}; Chaser Shipping, supra  22  { p.24 }

Plaintiffs apparently misconstrue the embarrassment point when they state, “any investigation ... is sure to embarrass at least some ... government employees.” (Pl. Br. at 3.) Baker v. Carr, 369 U.S. 186 (1962), listed “embarrassment” in its formulations not to protect individuals, but to protect the independence of the branches of government. President Clinton concluded that, “The United States acted in exercise of our inherent fight of self-defense consistent with Article 51 of the United Nations Charter.” 2 Public Papers of the President: William J. Clinton, 1998, pp. 1460-61 {8kb.txt, 90kb.pdf}, Exh. 1. Plaintiffs seek a declaration that the United States violated the law of nations. Complaint, ¶¶ 108-116. For the Court to disagree with the President on this point would create the kind of embarrassment Carr addresses.

At bottom, this case is about the ability of the President to cast American power when he determines it is necessary. As the Fourth Circuit explained in Tiffany v. United States, 931 F.2d 271, 277 (4th Cir. 1991), cert. denied, 502 U.S. 1030 (1992):

Of the legion of governmental endeavors, perhaps the most clearly marked for judicial deference are provisions for national security and defense. The decisions whether and under what circumstances to employ military force are constitutionally reserved for the executive and legislative branches. With regard to decisions to employ military troops, “it is not the function of the Judiciary to entertain private litigation ... which challenges the legality, the wisdom, or the propriety of the { p.25 } Commander-in-Chief in sending our armed forces abroad or to any particular region.” Johnson v. Eisentrager, 339 U.S. 763, 789, (1950). [Citations omitted.]

Accordingly, the political question doctrine bars this action.

Conclusion

For the foregoing reasons, the Court lacks subject matter jurisdiction and plaintiffs’ action should be dismissed with prejudice.

Respectfully submitted,

Stuart E. Schiffer
Acting Assistant Attorney General

Kenneth L. Wainstein
United States Attorney
District of Columbia

Signature: Jeffrey Axelrad

{Signature}

Jeffrey Axelrad (No. 356)
Director, FTCA Staff
Torts Branch, Civil Division
U.S. Department of Justice

Signature: Paul F. Figley

{Signature}

Paul F. Figley (No.308247)
Deputy Director, FTCA Staff
Torts Branch, Civil Division
U.S. Department of Justice
Room 8096 North
National Place Bldg.
1331 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Telephone: 202-616-4248

Attorneys for Defendant,
The United States of America { p.26 }

______________________

Certificate of Service

I, Paul Figley, do hereby certify that I caused to be hand-delivered a true and correct copy of the Memorandum in Support of Defendant’s Motion to Dismiss to:

Stephen J. Brogan, Esq.
Timothy J. Finn, Esq.
Daniel H. Bromberg, Esq.

Jones, Day, Reavis, & Pogue
51 Louisiana Avenue, N.W.
Washington, D.C. 20001

Signature: Paul F. Figley

 

{Signature}

Paul Figley

Footnotes


{Note:  The footnotes appear on the same page with their text reference, and carry over to the foot of the next page where denoted by an embedded page reference (n.1, n.6, n.13, n.22).}

 1  This issue was specifically raised in the Memorandum in Support of Defendant’s Motion to Dismiss (Def. Br.), at 4, n.2.

Plaintiffs cite Prescott v. United States, 973 F.2d 696, 701 (9th Cir. 1992), for the proposition that the United States has the “burden of proving the applicability of the exceptions to the FTCA’s waiver of immunity.” (Pl. Br. at 8.) On its face, Prescott only spoke to a burden under § 2680(a). The Prescott approach has been criticized. See Kiehn v. United States, 984 F.2d 1100, 1105 (10th Cir. 1993); Autery v. United States, 992 F.2d 1523, 1526 (11th Cir. { p.3 } 1993); Laurence v. United States, 851 F. Supp. 1445, 1105 (N.D.Cal. 1994). It has not been adopted by the D.C. Circuit.

 2  Courts have repeatedly exhibited a willingness to rely on the Public Papers of the Presidents {SuDoc: AE 2.114, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat} as an accurate and authoritative statement of Presidential intent. See, e.g., Malone v. White Motor Corp., 435 U.S. 497, 506 (1978) (quoting the Public Papers of President Eisenhower for a statement sent by the President to Congress regarding the regulation of pension funds); San Francisco Arts & Athletics v. United States Olympic Comm., 483 U.S. 522, 545 (1987) (quoting the Public Papers of President Carter as a statement of the President’s opinion regarding the necessity of legal action against the USOC to maintain a boycott of the 1980 Olympics); Rose v. McNamara, 375 F.2d 924, 928 (D.C. Cir. 1967) (citing the Public Papers of President Kennedy as a statement of U.S. foreign policy regarding the Government of Ryukyus).

 3  That defendant does not contest here each allegation of plaintiffs’ Complaint or Counterstatement of Facts (Pl. Br. at 4-8) does not mean that they are true. They are, however, irrelevant to the legal issues raised by defendant’s Motion to Dismiss.

 4  Saltany v. Reagan, 886 F.2d 438 (D.C. Cir. 1989), aff’g in part and rev’g in part, 702 F.Supp. 319 (D.D.C. 1988), cert. denied, 495 U.S. 932 (1990), Op. after remand, reh’g denied, sub nom. Saltany v. Bush, 960 F.2d 1060 (D.C. Cir.), cert. denied sub nom. Clark v. Thatcher, 506 U.S. 956 (1992). Plaintiffs in Saltany, like plaintiffs here, asserted jurisdiction under, inter alia, 28 U.S.C. §§ 1331 (Federal question) and 1346(b) (FTCA).

 5  Saltany did involve allegations of tortious conduct in the United States. The Saltany complaint alleged that “all defendants conspired, acted in concert with, and aided and abetted one another in causing or permitting the attacks to be made, with a purpose to assassinate ... and/or to terrorize.... The defendants are, thus, alleged to have violated the criminal and civil laws of several U.S. states [and] of the United States....” 702 F.Supp. at 320. The defendants included “the President of the United States, various civilian and military officials of the U.S. government ... and the United States....” Id. Obviously, such alleged conspiring, aiding and abetting took place in the United States where the intelligence regarding Libya was analyzed and the decision to attack was made.

 6  August 21, 1998, Letter to Congressional Leaders, and August 20, 1998, Address to the Nation on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 Public Papers of the President: William J. Clinton, 1998, pp. 1464 {3kb.txt, 84kb.pdf}, 1460-61 {8kb.txt, 90kb.pdf} (1998). { p.8 }

Plaintiffs’ suggestion that the President may have “left the selection of targets to his subordinates” is contrary to the record. (Pl. Br. at 23.) “Today I ordered our Armed Forces to strike at terrorist-related facilities in Afghanistan and Sudan because of the imminent threat they presented to our national security.” 2 Public Papers of the President: {William J. Clinton, 1998,} at 1460 {8kb.txt, 90kb.pdf}. Nor would it be relevant for discretionary function purposes. United States v. Gaubert, 499 U.S. 315 (1991).

 7  See Pl. Br. at 1, 2, 6, 9, 13, 16, 18, 23, 24; see also Pl. Br. at 1-2 (discussing “the President’s protected decision” and stating, “Plaintiffs do not ... seek judicial review of the President’s decision making....”)

 8  It is in this context that the Supreme Court examined the “actions (and subactions)” discussed by plaintiffs. (Pl. Br. at 20-21.) The Court’s inquiry was to see whether those actions violated agency policy as established by regulation. The inquiry was not directed at whether the agency had properly considered scientific information when it promulgated that policy.

 9  In General Dynamics {54kb.html, txt}, 139 F.3d at 1284-85, the Ninth Circuit explained its Glacier Bay opinion:

In Glacier Bay, hydrographers had allegedly failed to follow required procedures when they collected data for the preparation of nautical charts for Cook Inlet. Their reports and data had to pass through the hands of reviewers before the charts were released. The former did not perform a discretionary function, but the latter did, although the extent of their discretion is not clear. Id. at 1449-50.... [I]f Glacier Bay is read too broadly, the specific acts or actions theory could swallow up a large part of the discretionary function exception.

Plaintiffs refer to Glacier Bay as Trinidad Corp., Pl. Br. at 23.

 10  The D.C. Circuit discussed the operational function — planning level test in Sloan {37kb.html/txt, 31kb.txt}, 236 F.3d at 764-765:

As was true of the first part of the discretionary function test, satisfaction of the second is not limited to actions taken at the policy-planning level. Thus, in Gaubert, the Court held that the conduct of FHLBB employees “involved the kind of policy judgment that the discretionary function exception was designed to shield,” notwithstanding that it consisted of day-to-day decisions regarding the operations of a savings and loan. Id. at 332, 111 S.Ct. 1267. “[T]hose day-to-day ‘operational’ decisions were undertaken for policy reasons of primary concern to the regulatory agencies,” the Court said, including preservation of the assets of the institution “for the benefit of depositors and shareholders.” Id. (citation omitted). See also Varig, 467 U.S. at 815-20, 104 S.Ct. 2755. The same is true in this case: the auditors’ decisions were undertaken for policy reasons of significant concern to HUD, including the protection of tenants living in HUD-funded housing “from potential health problems from improper lead-based paint removal and disposal.” AUDIT REPORT at 3. Accordingly, the audit falls under the aegis of the discretionary function exception to the FTCA. [footnote omitted.]

Because the audit was undertaken for policy reasons it was distinguishable from the placement of road signs which was held not to be protected by § 2680(a) in Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995). Sloan {37kb.html/txt, 31kb.txt}, 236 F.3d at 765, n.6. The fact that an investigation includes scientific analysis does not undercut its discretionary nature. See, Hart v. United States, 894 F.2d 1539, 1545 (10th Cir. 1990) (§ 2680(a) barred suit by MIA family challenging agency’s forensic pathology determination of serviceman’s death).

 11  In General Dynamics {54kb.html, txt}, 139 F3d at 1283, the Ninth Circuit explained the same point:

Courts are not required to, and should not, simply look at the surface of a complaint for the purpose of ascertaining the true basis of an attack upon something the government has done....

We see no reason to accord amaranthine obeisance to a plaintiff’s designation of targeted employees when we refuse to be bound by his choice of claim labels. We may take cognizance of the fact that a target has been selected for the purpose of evading the discretionary choice of the persons who actually caused the damage....

 12  Nor have plaintiffs shown that a private person would be liable under state law. The D.C. case they cite, Bedford v. United States, 950 F.Supp. 4 (D. D.C. 1997), involved a dark pillar placed on a bicycle path. The decision whether to launch a missile strike is categorically different, and far more uniquely governmental. See Jayvee Brand, Inc. v. United States, 721 F.2d 385 (D.C. Cir. 1983). Where there is no “persuasive analogy with private conduct” there is no liability under the FTCA. See generally, Lester S. Jayson & Robert C. Longstreth, Handling Federal Tort Claims § 9.08[1], at 9-208 to 9-211, nn.11-15 (2001). Domestic tort law simply does not provide a standard by which to judge a Presidential decision to ignore a threat, negotiate, or launch a military strike.

 13  In the Prize Cases, 2 Black (67 U.S.) at 666, the Supreme Court cited with approval the following definition of war:

War has been well defined to be, “That state in which a nation prosecutes its { p.16 } rights by force.”

The parties belligerent in a public war are independent nations. But it is not necessary to constitute war, that both parties should be acknowledged as independent nations or sovereign States.

Moreover, although plaintiffs quote Black’s Law Dictionary’s definition of “war,” they neglect to mention that under the same heading Black’s defines the term “mixed war” as “a war between a nation and private individuals.” (Id. at 1577). Accord 93 C.J.S. War & National Defense (1956), § 1 Kinds of War. (“War may be ... a mixed war, that which is made on the one side by public authority, and on the other by mere private persons; a contest between a nation, as such, and its external enemies coming in the form of pirates or robbers....”). This is much closer to the mark. As Koohi explained, 976 F.2d at 1335, “By giving the term ‘time of war’ its full current meaning rather than a crabbed, artificial, or technical reading we make common sense out of unclear words and best effectuate the purposes of the statute: we shield the government from the type of liability it never intended to assume.”

 14  This is not just a theoretical possibility. Examples of such terrorist actions include the bombings of U.S. military barracks in Beirut and Saudi Arabia, and the attack on the U.S.S. Cole.

 15  August 20, 1998 Address to the Nation on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 Public Papers of the President: William J. Clinton, 1998, pp. 1460-61 {8kb.txt, 90kb.pdf} (1998), attached as Exhibit 1 to the Motion to Dismiss.

 16  Plaintiffs’ brief suggests the testing may not have been done by government employees. “Presumably the soil sample was referred to a laboratory for standard testing....”(Pl. Br. at 18.) Any negligence by non-government personnel would not be relevant to the § 2680(k) discussion. Nor could it give rise to liability under the FTCA. Cannon v. United States, 645 F.2d 1128, 1132 (D.C. Cir. 1981) (FTCA does not waive sovereign immunity for torts of government contractors, citing Logue v. United States, 412 U.S. 521 (1973)).

 17  Such “suits are called ‘nonstatutory’ because they are not brought under the statutes that specially provide for review of agency action. ‘In these instances, judicial review is available, if at all, through actions involving matters which arise “under the Constitution, Laws, or treaties of the United States” as provided in section 1331(a) of title 28.’” Jaffee v. United States, 592 F.2d 712, at 719 n.12 (3d Cir. 1979) (citations omitted).

 18  The cases cited in the text of Plaintiffs’ Brief, at 25, all involve claims that arise under the Constitution or some federal statute. Pl. Br. at 25; citing Alabama v. Bowsher, 734 F. Supp. 525 (D.D.C. 1990) (31 U.S.C. § 1322), aff’d 935 F.2d 332 (D.C. Cir. 1991); Nat’l Ass’n of Counties v. Baker, 842 F.2d 332 (D.C. Cir. 1991) (31 U.S.C. § 6701, Revenue Sharing Act); Sea-Land Serv., Inc. v. Alaska R.R., 659 F.2d 243 (D.C. Cir. 1981) (Sherman Anti-Trust Act); Schnapper v. Foley, 667 F.2d 102 (D.C. Cir. 1981) (FCC and Copyright Acts); Bowen v. Mass., 487 U.S. 879 (1988) (Medicaid Act).

The cases cited at Pl. Br., at 25, n.11, likewise involve claims under the Constitution or some federal statute. Jaffee v. United States, 592 F.2d at 714 (claim asserts violations of First, Fourth, Fifth, Eighth, and Ninth Amendments); Sheehan v. Army and Air Force Exch. Serv., 619 F.2d 1132, 1139 (5th Cir. 1980) (violations of “due process..., constitutional and statutory protections... [and] ‘laws’ of the United States”); Warin v. Dep’t of Treasury, 672 F.2d 590, 591 (6th Cir. 1982) (National Firearms Act); Red Lake Band of Chippewa Indians v. Barlow, 846 F.2d 474, 475 (8th Cir. 1988) (1916 Act); Presbyterian Church v. United States, 870 F.2d 518, 520-21 (9th Cir. 1989) (First and Fourth Amendments).

Nor could plaintiffs raise a constitutional claim. See, United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (“[A]liens receive constitutional protections [only] when they have come within the territory of the United States and developed substantial connections with this country.”); People's Mojahedin Org. of Iran v. U.S. Dept. of State, 182 F.3d 17, 22 (D.C. Cir. 1999) {31kb.html/txt, 31kb.txt}, cert. denied, 529 U.S. 1104 (2000).

 19  In Bruno v. Albright {48kb.html}, 197 F.3d 1153, 1161-62 (D.C. Cir. 1999) (action seeking review of visa decisions of an American consulate), the D.C. Circuit stated:

Congress could safely assume that aliens residing abroad were barred from challenging consular visa decisions in federal court unless legislation specifically permitted such actions. The presumption, in other words, is the opposite of what the APA normally supposes. In this respect the case is similar to Department of the Navy v. Egan, 484 U.S. 518, 527 ... (1988). See Peoples v. United States Dep’t of Agric., 427 F.2d 561, 567 (D.C.Cir. 1970). When it comes to matters touching on national security or foreign affairs — and visa determinations are such matters — the presumption of review “runs aground.” [Emphasis added.]

 20  See Chaser Shipping Corp. v. United States, 649 F.Supp. 736, 739 (S.D.N.Y. 1986), aff’d 819 F.2d 1129 (2d Cir. 1987), cert. denied, 484 U.S. 1004, reh. denied 487 U.S. 1243 (1988) (“Plaintiffs disingenuously assert[ed]” that court could rule on questions concerning U.S. mining of Nicaraguan harbor without “resolv[ing] sensitive issues involving the foreign policy conduct of executive branch officials.”)

 21  In Mojahedin, two groups designated as “foreign terrorist organizations” by the Secretary of State petitioned for judicial review of that designation under a statute which authorized review. The D.C. Circuit held that, under Waterman, it was “not competent to pass upon the Secretary’s national security finding” that “–‘(C) the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States’.” 182 F.3d at 23 {31kb.html/txt, 31kb.txt}. (Emphasis added.)

 22  Plaintiffs argue that Koohi rejected application of the political question doctrine because that case “did not raise any legal questions textually committed to the Executive Branch....” (Pl. Br. at 30.) They also argue, “Moreover, one of the cases from which the government quotes (see Def. Mem. at 3334 [sic]) does not even rely upon the political question doctrine. See Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206 (D.C. Cir. 1985).” (Pl. Br. at 34, n.14.) { p.24 }

To the contrary, Koohi and Sanchez-Espinoza both recognize that the political question doctrine has applicability where there is a challenge to the use of military force. In Koohi, the court did not apply the doctrine because plaintiffs sought only money damages: “By contrast, [suits seeking] injunctive relief ... are far more likely to implicate political questions.” 976 F.2d at 1332. In Sanchez-Espinoza the D.C. Circuit, “[w]ithout necessarily disapproving the District Court’s conclusion that all aspects of the ... case present a nonjusticiable political question” chose not to apply the doctrine “for most of the claims [] [s]ince we find other bases for dismissing the suit....” 770 F.2d at 206. With regard to the war powers issue, however, the court did apply the political question doctrine to bar suit. Id. at 210.

Numerous courts have applied the doctrine to bar claims for money damages. E.g. Tiffany, supra; Chaser Shipping, supra; Aktepe, supra.

 

Source: Photocopy of a duplicate original (the Court’s file copy). Omitted: Table of Contents, Table of Authorities (pp. i-vii).

By CJHjr: Scanned, converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, highlighting.

This case: El-Shifa Pharmaceutical Industries Company v. United States (D.D.C., 01-CV-00731 {50 kb}, filed April 4 2001).

Related case, in the U.S. Court of Federal Claims (Washington D.C.), El-Shifa Pharmaceutical Industries Company v. United States {200 kb}, 55 Fed. Cl. 751 (C.F.C., 00-CV-00443 {50 kb}, filed July 27 2000, dismissed March 14 2003, reconsideration denied April 14 2003), appeal docketed May 19 2003 (Fed. Cir., No. 03-5098 {50 kb}).

Related case: Idris v. U.S. Treasury Department (D.D.C., 99-CV-00472 {25 kb}, filed Feb. 26 1999, dismissed as moot May 5 1999) (blocked bank accounts).

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

CJHjr

Posted Oct. 31 2003. Updated Dec. 31 2004.

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