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Full-text: June 1 2001

United States District Court
for the District of Columbia

Filed, Jun 1 2001, Clerk U.S. District Court, District of Columbia

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.)
 )

Defendant’s Motion to Dismiss

Defendant, by its undersigned attorneys, moves pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss this action on the ground that the Court lacks jurisdiction over the subject matter of the action. In support of this motion, the Court is respectfully referred to the Exhibits attached to this motion, the memorandum of law filed in support of the motion, and the { p.2 } entire record in this case.

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.3 }

______________________

Certificate of Service

I, Paul Figley, do hereby certify that I caused to be hand-delivered a true and correct copy of the 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

The Defendant’s Motion to Dismiss was hand-delivered on Friday, June 1, 2001.

Signature: Paul F. Figley

 

{Signature}

Paul Figley

 

Memorandum
in Support of Defendant’s Motion to Dismiss

Introduction

This action arises from the August 20, 1998, destruction of the El-Shifa Pharmaceutical Plant in North Khartoum, Sudan, by cruise missiles intentionally fired by the United States and the United State’s explanation of that action. (Complaint, ¶¶ 1, 21, 26.) The Complaint alleges that the United States announced that the attack was carried out “in response to the bombings earlier that month of the U.S. Embassies in Kenya and Tanzania by terrorists under the direction of Osama bin Laden....,” and that the El-Shifa plant was “involved in the production of chemical weapons.” (Id. at ¶¶ 22, 27.)

Plaintiffs assert that, “This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331, 1346, and 1350.” (Id. at ¶ 5.) They bring four claims: ¶

“Count One: Claim for Negligence Under the Federal Tort Claims Act,” (Id. at 25); ¶

“Count Two: Claim for Trespass Under the Federal Tort Claims Act,” (Id. at 27); ¶

“Count Three: Defamation Claim against the United States for Declaratory and Injunctive Relief,” (Id. at 28); and ¶

“Count Four: Claim for Declaratory Relief For Violation of the Law of Nations.” (Id. at 29). ¶

By way of relief plaintiffs seek, inter alia, ¶

damages and compensation ... for the destruction of the El-Shifa pharmaceutical plant in an amount not less than $50 million,” (Id. at 30); 1  ¶

“A declaration that claims made by agents of the United States [about] Mr. Idris or El-Shifa ... are false and defamatory,” (Id. at 31); ¶

“An order requiring the United States to issue a retraction in the form of a press release,” (Id.); and, ¶

“A declaration that the United States attack on the El-Shifa pharmaceutical plant violated the law of nations.” (Id.) ¶

This action must be dismissed { p.2 } because the Court lacks jurisdiction over the subject matter. Fed. R. Civ. P. 12(b)(1).

Plaintiffs’ action is barred for two independent reasons. ¶

First, the Court lacks subject matter jurisdiction because there is no applicable waiver of sovereign immunity. E.g. Saltany v. Reagan, 886 F.2d 438 (D.C. Cir. 1989), aff’g in relevant 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) (suit by Libyan residents allegedly injured in 1986 United States missile strike undertaken as response to acts of terrorism instigated by Libyan government); Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985) (suit by Nicaraguans allegedly injured by U.S. supported Contras who attacked them). ¶

Second, the action must also be dismissed for the independent reason that it involves a non-justiciable political question. The suit is premised on the assertion that the United States wrongfully destroyed the El-Shifa Plant in response to terrorist attacks and then made false and defamatory statements to justify its action (Complaint, e.g. ¶¶ 1, 22, 92, 102-104.) By asking the Court to resolve these issues plaintiffs are necessarily asking it to adjudicate political questions which involve policy choices and value determinations constitutionally committed to the political branches of government. See Baker v. Carr, 369 U.S. 186 (1962); Eminente v. Johnson, 361 F.2d 73 (D.C. Cir. 1966) (per curiam) (affirming as non-justiciable, dismissal of suit alleging “damage to property in a foreign country said to have been caused by the armed forces of the United States acting under authority of the Government of the United States.”), cert. denied, 385 U.S. 929 (1966). { p.3 }

Facts

On August 21, 1998, President Clinton sent identical letters to the Speaker of the House of Representatives and the President pro tempore of the Senate in which he stated:

[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.

* * *

The United States acted in exercise of our inherent right of self-defense consistent with Article 51 of the United Nations Charter. 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.

I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress as we continue to take all necessary steps to protect U.S. citizens at home and abroad. { p.4 }

2 Public Papers of the President, William J. Clinton, 1998, p.1464 (1998) {3kb.txt, 84kb.pdf}. 2 

The Complaint directly contests the President’s conclusions. It alleges that, “All of the justifications for the attack advanced by the United States were based on false factual premises and were offered with reckless disregard for the truth based upon grossly incomplete research and unreasonable analysis of inconclusive intelligence.” (Complaint, ¶ 26.) The Complaint specifically alleges that the El-Shifa plant was not a chemical weapons facility. (Id. at ¶¶ 11, 24, 28, 32, and 55.) It faults the manner in which the United States allegedly gathered intelligence (Id. at ¶¶ 30, 33, and 92), and the manner in which the intelligence was allegedly analyzed. (E.g. Id. at ¶¶ 33, 42, and 92.) The Complaint alleges that as a result of the attack the plant was destroyed and the property where it stood was rendered unusable. (Id. at ¶¶ 93, 99.). It further alleges that because of the statements of United States officials Mr. Idris and El-Shifa were { p.5 } damaged in their reputations and their ability to engage in commercial business activities. (Id. at ¶¶ 106 and 115.)

Discussion

I.
The Court Lacks Subject Matter Jurisdiction
Because There Is No Applicable Waiver of Sovereign Immunity

Sovereign immunity is a fundamental principle in our legal system that bars any suit against the United States without its explicit consent, the terms of which define a court’s jurisdiction to entertain the suit. Lehman v. Nakshian, 453 U.S. 156, 160 (1981). Absent a “clear relinquishment” of that immunity, a court has no jurisdiction over tort actions against the United States. Dalehite v. United States, 346 U.S. 15, 30-31 (1953). “[L]imitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” Lehman, 453 U.S. at 161 (quoting Soriano v. United States, 352 U.S. 270, 276 (1957)).

Here, plaintiffs allege jurisdiction under three statutes: 28 U.S.C. § 1331, “Federal questions;” 28 U.S.C. § 1350, “Alien’s action for tort;” and 28 U.S.C. § 1346, “United States as defendant.” (Complaint, ¶ 5.) The first two statutes are not waivers of sovereign immunity. The last does contain such waivers, but this action does not fall within the limited waiver of the only subsection of § 1346 which plaintiffs discuss in their Complaint, 28 U.S.C. § 1346(b), the Federal Tort Claims Act (FTCA). See, e.g., Complaint, ¶¶ 85-87. 3  { p.6 }

This Court was faced with allegations remarkably similar to those presented here in Saltany v. United States, supra. There, 55 civilian residents of Libya brought suit against the United States for wrongful death, personal injury and property damage allegedly suffered in missile strikes by U.S. military forces on Libyan targets ordered by President Reagan in April 1986. 702 F.Supp. at 320. 4  Plaintiffs alleged that the attacks were made with the purposes of assassination and to terrorize the populace of Libya into revolution. They alleged that the attacks were in violation of “the criminal and civil laws of several U.S. states, of the United States, certain treaties, and rules of international law.” Id. As here, plaintiffs predicated jurisdiction on “various provisions of Title 28 of the U.S. Code, specifically, sections 1331 (federal question); 1346(b) (the Federal Tort Claims Act); [and] 1350 (the Alien Tort Claims Act) ....” Id.

The Court had little trouble dismissing the claims against the United States:

The United States itself, as a sovereign, is immune from suit except to the extent it has waived its immunity, and a waiver of its sovereign immunity must be { p.7 } unequivocally expressed and never implied. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980). None of the statutory provisions relied upon by plaintiffs to maintain this action against the United States — the Federal Tort Claims Act (28 U.S.C. § 2671 et seq.), the Alien Tort Claims Act (28 U.S.C. § 1350), the Foreign Claims Act (10 U.S.C. § 2734), and RICO (18 U.S.C. § 1964) — purport to waive the sovereign immunity of the United States with respect to claims such as those made here.

Saltany, 702 F.Supp. at 321. After dismissing all claims, the Court gave consideration to ordering sanctions against plaintiffs’ counsel, recognizing that, “The case offered no hope whatsoever of success, and plaintiffs’ attorneys surely knew it.” Id. at 322. Nonetheless, it declined to impose sanctions, reasoning that the suit may have been brought as a public protest. Id.

On appeal, the D.C. Circuit summarily affirmed the order of dismissal. Saltany v. United States, 886 F.2d 438, 439, 441 (D.C. Cir. 1989), 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). It reversed, however, with regard to the United Kingdom’s cross-appeal for an award of sanctions, reasoning that where a party is found to have filed a frivolous suit, Rule 11 sanctions must be imposed. 886 F.2d at 440. 5 

A.  The Federal Tort Claims Act
Does Not Waive Sovereign Immunity For This Action

The Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq., is a limited waiver of sovereign immunity. Under the FTCA, district courts have exclusive jurisdiction over actions for money damages caused by the negligent or wrongful act or omission of a federal employee acting within the scope of employment, under circumstances where the United States, “if a private { p.8 } person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). This grant of subject matter jurisdiction is made subject to certain limitations and to exceptions set forth in 28 U.S.C. § 2680. Those exceptions bar, inter alia, claims which are based upon the exercise or failure to exercise a discretionary function by a federal agency or employee, 28 U.S.C. § 2680(a); arise out of combatant activities, 28 U.S.C. § 2680(j); or in a foreign country, 28 U.S.C. § 2680(k); or from libel, slander or interference with contract rights, 28 U.S.C. § 2680(h).

In Saltany this Court promptly dismissed FTCA claims arising from the 1986 bombing of Libya. It concluded, “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), (j), and (k).” 702 F.Supp. at 321, n.4. The D.C. Circuit summarily affirmed, “substantially for the reasons stated [in the district court’s memorandum].” 886 F.2d at 441. These three exceptions are equally applicable in this case which also arises from a Presidentially-ordered missile strike in response to acts of terrorism directed at the United States.

The discretionary function exception to the FTCA, 28 U.S.C. § 2680(a), provides:

The provisions of this chapter and section 1346(b) of this title shall not apply to—

(a)  Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. (Emphasis added.) { p.9 }

A two-step test determines whether the exception applies. Gaubert v. United States, 499 U.S. 315 at 322 (1991). In Sloan v. U.S. Dept. of H.U.D. {37kb.html/txt, 31kb.txt}, 236 F.3d 756, 759-60 (D.C. Cir. 2001), the D.C. Circuit explained:

In United States v. Gaubert, the Supreme Court set forth a two-part test for determining whether a challenged government action is protected as a discretionary function. First, the exception “covers only acts that are discretionary in nature, acts that ‘involv[e] an element of judgment or choice.’” Gaubert, 499 U.S. at 322, 111 S.Ct. 1267 (quoting Berkovitz [v. United States] 486 U.S. [531] at 536, 108 S.Ct. 1954 [(1988)]). This “requirement of judgment or choice is not satisfied if a ‘federal statute, regulation or policy specifically prescribes a course of action for an employee to follow.’” Gaubert, 499 U.S. at 322, 111 S.Ct. 1267 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954).

Second, even if “the challenged conduct involves an element of judgment,” that judgment must be “of the kind that the discretionary function exception was designed to shield.” Gaubert, 499 U.S. at 322-23, 111 S.Ct. 1267 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). Because the exception was designed to “‘prevent judicial “second guessing” of legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort,’” the Court concluded that “the exception ‘protects only governmental actions and decisions based on considerations of public policy.’” Gaubert, 499 U.S. at 323, 111 S.Ct. 1267 (quoting Berkovitz, 486 U.S. at 537, 108 S.Ct. 1954).

Each step of the test is met here. “In examining the nature of the challenged conduct, a court must first consider whether the action is a matter of choice for the acting employee.” Berkovitz, 486 U.S. at 536. To remove the conduct from the realm of discretion, a statute or regulation must be both mandatory and specific such that there is no “element of judgment or choice” and “the employee has no rightful option but to adhere to the directive.” Gaubert, 499 U.S. at 322, (quoting Berkovitz, 486 U.S. at 536).

The Constitution grants the President the authority to conduct foreign policy and to command the military. U.S. Const. Art. II, § 2. United Slates v. Pink, 315 U.S. 203, 229 (1942); Johnson v. Eisentrager, 339 U.S. 763, 788-89 (1950) Thus, the President has broad discretion to determine whether and how to respond with military force to acts of terrorism directed at the { p.10 } United States. Saltany, supra.; See Industria-Panificadora v. United States, 957 F2d. 886 at 887 (D.C. Cir. 1992); Sanchez-Espinoza, 770 F2d. at 208. By the same token, the President and his representatives in the Administration have discretion to make such statements as they deem appropriate regarding United States foreign policy decisions. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

The first step of the Gaubert test is satisfied in this case because the decisions of the President to order that the El-Shifa plant be destroyed and to announce the Administration’s reasons for that action unquestionably involve judgment and choice. Nor does any federal statute or regulation limit the President’s authority in these regards.

Where the first step is satisfied because no mandate prescribes a course of action, the Court must next consider the second step, was the challenged government judgment or choice based on “considerations of public policy.” Gaubert, 499 U.S. at 323 (internal quotation omitted). Sloan, 236 F.3d at 760. If the challenged conduct is policy based, then § 2680(a) applies and the claim is barred. Thus, “[w]here there is room for policy judgment and decision there is discretion” of the sort protected by § 2680(a). Dalehite v. United States, 346 U.S. 15 at 36 (1953); quoted in Berkovitz, 486 U.S. at 537.

Applying these principles to the instant case, discretion is exercised when the President orders American forces into action, determines that the Nation’s security is at risk, or sets forth the reasons for national security and foreign policy decisions. These decisions are classic policy judgments of the nature and quality protected by § 2680(a). Saltany; Industria-Panificadora v. United States, 957 F.2d at 887 (suit arising from looting in wake of U.S. invasion of Panama barred by § 2680(a)); see also Sanchez-Espinoza, supra. Accordingly, the discretionary function { p.11 } exception bars plaintiffs’ claims for money damages.

Nor is this conclusion altered by allegations that the President relied on faulty information, defective because of the manner in which intelligence was collected or interpreted. Sloan v. U.S. Dept. of H.U.D. {37kb.html/txt, 31kb.txt}, 236 F.3d 756 (D.C. Cir. 2001), is instructive. In Sloan, plaintiff building contractors alleged that an auditor’s negligent investigation improperly concluded that they were working with lead-based paint when they were not, and as result caused an ill-founded prosecution and suspension of their rights to do contract work on government projects. On appeal the court recognized, and plaintiffs did not dispute that the decision to suspend was a protected discretionary function. Id. at 760-61. Plaintiffs challenged only the allegedly negligent investigation:

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[ 6 ] constrain HUD’s auditors during the investigatory phase and preclude application of the discretionary function exception.

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. [Id. at 761.] { p.12 }

In reaching the first conclusion the court determined that the investigation was “inextricably tied to the discretionary, quasi-prosecutorial decision to suspend plaintiffs from governmental contracting,” and, therefore, could not be separated from the protected discretionary decision. Id. at 762.

It then went on to its second conclusion, that even if it were not inextricably linked to the suspension the “investigation would nonetheless constitute a discretionary function under the Gaubert test.” Id. It found both elements of the Gaubert test to be met: “First, the sifting of evidence, the weighing of its significance, and the myriad other decisions made during investigations plainly involve elements of judgment and choice.” Id. Second, “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.’” Id. at 764.

In like vein, the investigation by American intelligence of the bin Ladin organization and the El-Shifa plant are inextricably intertwined with the President’s decisions to strike the plant and to explain his reasons for doing so. Moreover, that investigation is itself protected by § 2680(a) and the Gaubert test. First, “the sifting of evidence, the weighing of its significance, and the myriad other decisions” inherent in gathering and interpreting intelligence “plainly involve elements of judgment and choice.” Second, the decisions of U.S. intelligence officers and military planners were undertaken for policy reasons of significant concern to the President, his national security officers, and the nation. Plaintiffs cannot avoid the discretionary function bar by alleging that the President’s discretionary decisions were based on information that was negligently gathered or interpreted. Sloan, 236 F.3d at 761-63; Gray v. Bell, 712 F.2d 490, 516 (D.C. Cir. { p.13 } 1983), cert. denied, 465 U.S. 1100 (1984) (“allegation of improper investigatory conduct is inextricably tied to the decision to prosecute” criminally; § 2680(a) barred suit.); 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. United States, 516 U.S. 806 (1995) (§ 2680(a) bars suit where FDA order barring importation of Chilean grapes was based upon allegedly negligent laboratory tests indicating some grapes contained poison.); General Dynamics, Inc. v. United States {54kb.html, txt}, 139 F.3d 1280, (9th Cir. 1998) (§ 2680(a) bars suit where fraud prosecution was based on alleged negligently performed audit). See Boyle v. United Technologies, Corp., 487 U.S. 500 (1988). 7 

Plaintiffs’ claims are also barred by the combatant activities exception to the FTCA, 28 U.S.C. § 2680(j), which excepts from the FTCA’s waiver of sovereign immunity all “claim[s] arising out of the combatant activities of the military or naval forces, or Coast Guard, during time of war.” Saltany, supra. At a minimum, the term “combatant activities” includes acts of physical violence carried out by the military forces of the United States in the context of actual hostilities. See Johnson v. United States, 170 F.2d 767, 770 (9th Cir. 1948). Moreover, § 2680(j)) has been held to bar claims even though there was no formal declaration of war. See Clark v. United { p.14 } States, 974 F.Supp. 895, 898 (E.D. Tex. 1996) (§ 2680(j) barred claim arising out of Operation Desert Storm even though there was no declaration of war), aff’d without published opinion, 116 F.3d 476 (5th Cir.) (table), cert. denied, 522 U.S. 1027 (1997). Rotko v. Abrams, 338 F.Supp. 46, 47 (D. Conn. 1971) (Vietnam), aff’d on basis of district court opinion, 455 F.2d 992 (2d Cir. 1972); Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992), cert. denied, 508 U.S. 960 (1993) (1988 tanker war).

In Koohi, the Ninth Circuit applied the combatant activities exception to bar suit when a U.S. warship accidentally shot down an Iranian civilian aircraft. The court noted that the exception is intended “to ensure that the government will not be liable for negligent conduct by our armed forces in times of combat.” Id. at 1334. It gave an extended analysis of the exception in which it explained:

The result would be no different if the downing of the civilian plane had been deliberate rather than the result of error. The combatant activities exception applies whether U.S. military forces hit a prescribed or an unintended target, whether those selecting the target act wisely or foolishly, whether the missiles we employ turn out to be “smart” or dumb, whether the target we choose performs the function we believe it does or whether our choice of an object for destruction is a result of error or miscalculation. In other words, it simply does not matter for purposes of the “time of war” exception whether the military makes or executes its decisions carefully or negligently, properly or improperly. It is the nature of the act and not the manner of its performance that counts. Thus, for purposes of liability under the FTCA, it is of no significance whether a plane that is shot down is civilian or military, so long as the person giving the order or firing the weapon does so for the purpose of furthering our military objectives or of defending lives, property, or other interests. [Emphasis added.] [Id. at 1335-36.]

The mission which destroyed the El-Shifa plant was clearly a combat mission. It was undertaken by United States military personnel under direct orders from the Commander in Chief in response to and in anticipation of terrorist attacks on United States’ interests. It is { p.15 } indistinguishable in these regards from the similar attack on Libya ordered by President Reagan in 1986. In that instance this Court relied on § 2680(j) to bar suit, and was summarily affirmed in that decision. Saltany, supra. Thus, because Plaintiffs’ property was destroyed in a combat mission § 2680(j) clearly precludes this action under the FTCA.

The foreign tort exception to the FTCA’s waiver of immunity, § 2680(k), also applies to this action. It bars all “claim[s] arising in a foreign country.” See Smith v. United States, 507 U.S. 197, 201-05 (1993) (§ 2680(k) barred claim arising in Antarctica); United States v. Spelar, 338 U.S. 217, 219 (1949) (§ 2680(k) barred claim arising at U.S. airfield in Newfoundland). In Saltany this Court relied on § 2680(k) to preclude suit by residents of Libya who were allegedly injured in that missile strike. 702 F.Supp. at 321, n.4; accord Lloyd’s Syndicate v. United States, 780 F.Supp. 998 (S.D.N.Y. 1991) (§ 2680(k) bars suit for destruction of civilian aircraft during 1989 United States incursion into Panama). The exception is equally applicable here. 8  { p.16 }

Plaintiffs’ action must also be dismissed because the FTCA’s waiver of sovereign immunity extends only to torts committed “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Accordingly, for liability to arise under the FTCA plaintiffs must show that a private person would be liable for such conduct in accord with the law of the state in which the negligent or wrongful act occurred. Art Metal-U.S.A. Inc. v. United States, 753 F.2d 1151 (D.C. Cir. 1985).

Here, plaintiffs fail to identify how a private person would be liable under the law of the District of Columbia for a decision to conduct a missile strike to dampen terrorist activities directed against the United States. 9  D.C. tort law simply does not provide standards by which to judge the manner in which the President determined to order the bombing 10  or the spycraft which provided the intelligence upon which the President relied. 11  { p.17 }

D.C. law does not deal with such questions because they are so obviously matters pertinent only to the national government. The D.C. Circuit dealt with this issue in the context of a tort action by manufacturers of children’s sleepwear who alleged that the Consumer Products Safety Commission failed to follow correct procedures in banning the use of the flame retardant compound tris in such sleepwear. Jayvee Brand, Inc. v. United States, 721 F.2d 385 (D.C. Cir. 1983). The court stated:

It would be most inappropriate, however, that the quasi-legislative procedures of a government agency should be policed according to local law. This case illustrates that point. Here, as will usually be the case, the agency acted in the District of Columbia but the impact of its rule was felt by manufacturers almost everywhere but in the District of Columbia. In truth, unlike a negligent driving case, the District has no interest whatever in the regularity of the procedures followed by the CPSC here. It would be utterly anomalous to construe the FTCA so that the methods by which, the CPSC arrives at a rule are judged and punished according to District tort law. ... It is unlikely in the extreme that Congress delegated to the government of the District of Columbia the decision whether to police federal agency procedures having no impact upon the District through the imposition of tort liability. It is more than unlikely. Such a delegation would be so irrational as to make ludicrous the suggestion that it has been made through the FTCA.

Even more unlikely—and more absurd—is the implication of appellants’ argument that Congress intended that agency decisions made outside of the District of Columbia should be held subject to damage liability according to the tort law of whatever state or municipality a federal agency happens to be in when it acts.

Id. at 392-93. These points are even more valid when the decision is one made by the President in { p.18 } his role as Commander in Chief and the officer responsible for foreign affairs. D.C. law does not provide standards by which to evaluate President Clinton’s conclusion, inter alia, that, “These strikes were a necessary and proportionate response to the imminent threat of further terrorist attacks against U.S. personnel and facilities.” August 21, 1998, letter to Congressional Leaders, Exhibit 1. {3kb.txt, 84kb.pdf}

Plaintiffs amended their administrative tort claim to assert that “the destruction of the plant “was a violation of customary international law as reflected in the laws and treaty obligations of the United States.” (Complaint, ¶ 86.) Such an allegation does not help them here. In Art Metal, the D.C. Circuit affirmed the dismissal of an action which alleged that the General Services Administration negligently failed to follow its own procurement regulations when it refused to approve government contracts with the plaintiff. It explained that, “Duties set forth in federal law do not ... automatically create duties cognizable under local tort law. The pertinent inquiry is whether the duties set forth in the federal law are analogous to those imposed under local tort law.” 753 F.2d at 1158. It concluded that “by basing its negligence claim entirely on violation of federal duties, [plaintiff] fails to consider that the FTCA waives the immunity of the United States only to the extent that a private person in like circumstances could be found liable in tort under local law.” Id. at 1157.

Claims based on the law of nations suffer from the same infirmities as claims based on federal regulations: the law of nations is not state tort law and private people are not liable in tort for its violation. While the United States’ actions did not violate international law, its laws or treaty obligations, any such violation by a private person would not be actionable. The D.C. Circuit dealt with this issue in Sanchez-Espinoza,: “As for the law of nations—so-called { p.19 } ‘customary international law,’ arising from ‘the customs and usages of civilized nations,’ ... —we conclude that this also does not reach private, non-state conduct of this sort [U.S. officials allegedly supported Contras who injured Nicaraguan citizens].” 770 F.2d at 207 (citations omitted.); Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 970 (4th Cir.), cert. denied 506 U.S. 955 (1992) (“Thus, to the extent that Goldstar argues that the United States had a mandatory duty, imposed by the Hague Convention, to provide police protection to Panama, Goldstar’s claim is not cognizable under the FTCA, because there is no such analogous duty under Virginia state law.”).

B.  The Alien Tort Claims Act
Does Not Waive Sovereign Immunity for this Action

The Alien Tort Claims Act, 28 U.S.C. § 1350, provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation off the law of nations or a treaty of the United States.” 12  As the D.C. Circuit recognized in Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206, the origins of this statute are obscure. Whatever its origins, the Alien Tort Claims Act “does not provide a wavier of sovereign immunity,” for suits against the United States. Industria Panificadora, S.A. v. United States, 957 F.2d 886, 887 (D.C. Cir.), cert. denied, 506 U.S. 908 (1992) (suit arising from looting in wake of U.S. invasion of Panama); accord Sanchez-Espinoza, 770 F.2d at 207 (suit arising out of United States alleged support for Contra forces in Nicaragua); Canadian Transport Co. v. United States, 663 F.2d 1081, (D.C. Cir. 1980) (Coast Guard refused on national security grounds to permit Communist-bloc merchant marine officers to enter port of Norfolk); Koohi v. United States, 976 F.2d 1328, { p.20 } 1333 n.4 (9th Cir. 1992), cert. denied 508 U.S. 960 (1993) (Iranian civil aircraft mistakenly shot down during 1988 tanker war).

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

Section 1331 of Title 28 provides, “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” This section, alone, however, does not provide the waiver of sovereign immunity necessary to maintain a suit against the United States; there must also be a statute waiving sovereign immunity. See First Virginia Bank v. Randolph {22kb.html/txt}, 110 F.3d 75, 78 (D.C. Cir. 1997), cert. denied 522 U.S. 1075 (1998). But see Clapton v. Dept. of the Navy, 1996 WL 680189 (D.C. Cir. 1996) (per curiam). Plaintiffs allude to two statutes which are waivers of sovereign immunity, the FTCA, discussed supra, and the Administrative Procedures Act (APA), 5 U.S.C. § 702. Complaint, ¶ 1. The APA, like the FTCA, does not provide an applicable waiver of sovereign immunity here.

The APA permits suit by “a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute....” 5 U.S.C. § 702. 13  Here, plaintiffs have not identified “a relevant statute” under which they allege to have been adversely affected. Accordingly, the APA provides no basis for jurisdiction.

Plaintiffs’ failure to identity “a relevant statute” makes it impossible to assess whether they have standing to pursue relief under the APA. As the Supreme Court stated in National Credit { p.21 } Union Admin. v. First Nat. Bank & Trust Co., 522 U.S. 479 (1998):

We have interpreted § 10(a) of the APA to impose a prudential standing requirement in addition to the requirement, imposed by Article III of the Constitution, that a plaintiff have suffered a sufficient injury in fact. See, e.g., Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152, ...(1970).... For a plaintiff to have prudential standing under the APA, “the interest sought to be protected by the complainant [must be] arguably within the zone of interests to be protected or regulated by the statute ... in question.” Id. at 153 ....

Id. at 488 (footnote omitted); Federation for American Immigration Reform, Inc. v. Reno {53kb.html/txt}, 93 F.3d 897 (D.C. Cir. 1996), cert. denied, 521 U.S. 1119 (1997) (immigration reform group lacked standing under APA to challenge scheme for parole and adjustment of status of Cuban nationals). Absent such standing, plaintiffs cannot pursue claims under the APA.

Even if plaintiffs had alleged that they were “aggrieved by agency action within the meaning of a relevant statute” that was identified, and that they had standing under the APA, this action would still fail for at least three reasons. First, the decisions at issue have been “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Second, the decisions were made by the President, who is not subject to review under the APA. Finally, any grant of relief under the APA is discretionary, 5 U.S.C. § 702, and in a case involving such sensitive issues of foreign policy as this one, the Court should not exercise whatever discretion it may have.

In Heckler v. Chaney, 470 U.S. 821 (1985), death row inmates brought suit against the FDA under the APA to require it to take enforcement action regarding drugs used for lethal injections to carry out death penalties. In resolving that the APA was inapplicable in that circumstance the Court gave a detailed exposition of 5 U.S.C. § 701(a)(2). The Court explained { p.22 } that under § 701(a)(2):

even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard’ against which to judge the agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely. ... [I]f no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for “abuse of discretion.”

Id. at 830. 14  Given the language of the “relevant statute” in Heckler, the Food, Drug, and Comestic Act, the Court concluded that Congress had not established sufficient standards to make FDA’s decision not to bring an enforcement action reviewable under the APA. Id. at 835.

In matters of foreign affairs and national defense there is a strong presumption against APA review. Two D.C. Circuit cases illustrate the point. In National Federation of Federal Employees v. United States, 905 F.2d 400 (D.C. Cir. 1990), suit was brought to enjoin the Department of Defense from closing 145 military bases under the 1988 Base Closure and Realignment Act. The court concluded that the “claim is nonjusticiable because the Secretary’s decisions were ‘committed to agency discretion by law.’ 5 U.S.C. § 701(a)(2).” Id. at 405.

In determining whether agency action has been committed to agency discretion by law, “we ask whether the applicable statutes and regulations are ‘drawn so that a court would have [a] meaningful standard against which to judge the agency’s exercise of discretion.’” CC Distributors, Inc. v. United States, 883 F.2d 146, 153 (D.C. Cir. 1989) (emphasis added) (quoting Heckler v. Cheney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985)). As the Supreme Court has explained, “if no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate { p.23 } agency action for ‘abuse of discretion.’” Heckler, 470 U.S. at 830, 105 S.Ct, at 1655 (emphasis added). Here the problem is not that the Act is devoid of criteria; as noted above, the Act (through the Charter) sets forth nine specific criteria to be considered in making base closing decisions. Rather the rub is that the subject matter of those criteria is not “judicially manageable.”

905 F.2d at 405 (Emphasis by court). The factors to be considered related to military preparedness, force requirements, cost and manpower implications, etc. Id. at 402. “Military value” was the preeminent factor. Id. at 405. The court concluded:

The military value of each individual installation was assessed by considering “how well it met the mission-related needs of the units or activities located there.” Id. at 12, J.A. at 42. The Commission was assisted in this assessment by a professional staff, half of whose members were drawn from the Department of Defense. Id. at 10, J.A. at 40, 78; see § 203(c). It is clear, then, that judicial review of the decisions of the Secretary and the Commission would necessarily involve second-guessing the Secretary’s assessment of the nation’s military force structure and the military value of the bases within that structure. We think the federal judiciary is ill-equipped to conduct reviews of the nation’s military policy. Such decisions are better left to those more expert in issues of defense. Thus we find NFFE’s APA claim nonjusticiable.

Id. at 406.

A similar conclusion was reached in Pacific Coast Dist., Marine Engineers’ Beneficial Assn. v. Maritime Admin. {28kb.html/txt, 23kb.txt}, 215 F.3d 37 (D.C. Cir. 2000), in which a maritime union brought an action against the Maritime Administration (MarAd) to stop it from approving the transfer of registry of eight vessels from the United States to the Republic of the Marshall Islands. In reaching its decision, MarAd considered a number of factors, including national defense, energy needs of the nation, and foreign policy considerations. Id. at 40.

Even a cursory examination of the order under review in this case reveals that the primary factors driving the MarAd’s decision are national defense, the adequacy of the merchant marine, foreign policy, and the national interest. Indeed, the MarAd specifically consulted the Departments of State, Defense, and Energy to aid in its decision, and the overwhelming majority of the analysis in the agency’s decision { p.24 } relates to these factors. Were we to decide whether the MarAd’s order is reasonable, we would necessarily be “second guessing” not only the Executive’s determinations regarding the military value of the eight vessels but also its judgments on questions of foreign policy and national interest. These are not subjects fit for judicial involvement. ... In sum, the MarAd’s decision regarding the transfer of registry in this case is committed to its discretion by law. We therefore lack jurisdiction over the Union’s claims based upon the APA. ... We also note, but we do not decide, that in a case where considerations of national defense, foreign policy, and the national interest do not play a significant role, if such there be. we may well have jurisdiction to review the MarAd’s decision regarding a transfer of registry.

Id. at 41-42. (emphasis added.) Because this case seeks to raise fundamental foreign affairs and national defense policy issues, APA review is barred, at least absent a very clear statute authorizing judicial review.

The actions complained of here are the decisions of the President. He selected El-Shifa as a target. He provided the first and leading explanation as to why El-Shifa was selected. Those who made alleged statements about plaintiffs did so at his direction and consistent with his position. Any grant of relief on plaintiffs’ injunctive claims 15  would be directed at those decisions.

The President, however, is not an “agency” under the APA; his actions, therefore, are not reviewable through the APA’s waiver of sovereign immunity. Franklin v. Massachusetts, 505 U.S. 788 (1992) (plurality opinion). In Franklin, suit was brought against, inter alia, the President and the Secretary of Commerce challenging the decision to allocate military personnel serving overseas to their “homes of record” for purposes of the census and the 1990 reapportionment of Congress. Id. at 791. A three judge panel of the district court held that decision to be “arbitrary and capricious under the standards of the Administrative Procedure { p.25 } Act....” Id. 16  The district court “directed the Secretary to eliminate the overseas federal employees from the apportionment counts, directed the President to recalculate the number of Representatives per State and transmit the new calculation to Congress....” Id.

The Supreme Court, hearing the matter on a direct appeal, reversed. It explained that there was no final agency action under the relevant statute until the President forwarded the report to Congress. It reasoned:

The APA provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. At issue in this case is whether the “final” action that appellees have challenged is that of an “agency” such that the federal courts may exercise their powers of review under the APA. We hold that the final action complained of is that of the President, and the President is not an agency within the meaning of the Act. Accordingly, there is no final agency action that may be reviewed under the APA standards.

* * *

As the APA does not expressly allow review of the President’s actions, we must presume that his actions are not subject to its requirements. Although the President’s actions may still be reviewed for constitutionality, ... we hold that they are not reviewable for abuse of discretion under the APA, see Armstrong v. Bush, 288 U.S.App.D.C. 38, 45, 924 F.2d 282, 289 (1991). The District Court erred in { p.26 } proceeding to determine the merits of the APA claims.

505 U.S. at 796, 801. 17  Accordingly, because this action is against the President there is no jurisdiction under the APA. See Dalton v. Specter, 511 U.S. 462 (1994).

Portraying the case as one against federal agencies earlier in the chain of decision making is unavailing. The APA permits judicial review only of “final” agency actions. 5 U.S.C. § 704. The selection of El-Shifa as a target was not final until the President so determined. In short, the sort of action complained of here was decided by the President and so the suit, unavoidably, is directed against him as the actor. This the APA does not allow. Franklin, 505 U.S. at 901.

The Supreme Court followed this line of reasoning in Dalton v. Specter, 511 U.S. 462 (1994), in which the Court determined that a suit against the Secretary of Defense to enjoin closure of a military base was not reviewable under the APA because the “final” action was taken by the President. The fact that a President may select from options does not make the presentation of those options to the President a final agency action. Indeed, the Dalton Court rejected such a theory in a situation in which the President was statutorily bound to accept or reject a set of recommendations in toto without modification. Id. at 470 (“That the President cannot pick and choose among bases, and must accept or reject the entire package offered by the Commission, is immaterial. What is crucial is the fact that ‘[t]he President, not the [Commission], takes the final action that affects’ the military installations.”) (quoting Franklin, 505 U.S. at 799). 18  { p.27 }

Moreover, it is unclear “whether a federal court has the power to grant injunctive relief against the President of the United States in the exercise of his official duties.” Swan v. Clinton {79kb.html/txt}, 100 F.3d 973, 976 (D.C. Cir. 1996) (suit by former NCUA Board member seeking injunction to require President to reinstate him). “The Supreme Court has confirmed that a ‘grant of injunctive relief against the President himself is extraordinary, and should ... raise [ ] judicial eyebrows.’” Id. at 977 (quoting Franklin, 505 U.S. at 802).

Even if injunctive review were otherwise available, it should not be granted here. Assuming, arguendo, that injunctive or similar non-monetary relief might otherwise be available, the D.C. Circuit in Sanchez-Espinoza determined that it was required to withhold relief in circumstances akin to those presented here:

The APA specifically provides that its judicial review provision does not affect “the power or duty of the court to dismiss any action or deny relief on any ... appropriate legal or equitable ground.” 5 U.S.C. § 702. 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). The support for military operations that we are asked to terminate has, if the allegations in the complaint are accepted as true, received the attention and approval of the President, the Secretary of State, the Secretary of Defense, and the Director of the CIA, and involves the conduct of our diplomatic relations with at least four foreign states—Nicaragua, Costa Rica, Honduras, and Argentina. Whether or not this is, as the District Court thought, a matter so entirely committed to the care of the political branches as to preclude our considering the issue at all, we think it at least requires the withholding of discretionary relief.

770 F.2d at 208 (footnotes omitted). The court noted that “the bases for non-monetary relief — including injunction, mandamus and declaratory judgment — are discretionary.” Id. at 207-08 { p.28 } (footnote omitted). See Public Affairs Press, Inc. v. Rickover, 369 U.S. 111, 112 (1962).

For all these reasons, the APA does not provide an applicable waiver of sovereign immunity for plaintiffs’ suit.

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

Because this suit challenges decisions Constitutionally committed to the Political branches of government this Court is without jurisdiction. Antolok v. United States, 873 F.2d 369, 379 (D.C. Cir. 1989). In Antolok, the D.C. Circuit explained, “In Marbury v. Madison, 5 U.S. (1 Cranch) 137, 164, 2 L.Ed. 60 (1803), Chief Justice Marshall recognized the existence of cases to be considered ‘political act[s], belonging to the executive department alone, for the performance of which entire confidence is placed by our constitution in the supreme executive; and for any misconduct respecting which, the injured individual has no remedy....’” Id. The Supreme Court has characterized the political question doctrine as

exclud[ing] from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill suited to make such decisions, as “courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.” United States ex rel. Joseph v. Cannon, [642 F.2d 1373, 1379 (1981) (footnote omitted), cert. denied, 455 U.S. 999, (1982).]

Japan Whaling Ass’n v. American Cetacean Soc., 478 U.S. 221, 230 (1986).

To determine whether the political question doctrine is applicable, the courts examine six formulations identified by the Supreme Court in Baker v. Carr, 369 U.S. 186 (1962), any one of which may identify the controversy as a non-justiciable political question. These formulations are: { p.29 }

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. at 217. All of the Baker v. Carr formulations are met here.

First, the Constitution assigns authority over foreign affairs to the political branches and makes the President the Commander in Chief. U.S. Const. Art. II, § 2. “The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative—‘the political’—departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” Oetjen v. Central Leather Co., 246 U.S. 297, 302, (1918) (citations omitted.); Antolok, 873 F.2d at 379-80.

The first Baker v. Carr formulation was found applicable in Tiffany v. United States, 931 F.2d 271, 277 (4th Cir. 1991), cert. denied, 502 U.S. 1030 (1992), a suit which arose from a midair collision between an unidentified civilian aircraft which had not filed a flight plan and an Air Force-NORAD jet which had been scrambled to meet it. Citing Baker v. Carr, the Fourth Circuit reversed a judgment for the plaintiff grounded in negligence. It reasoned:

The present controversy implicates a discretionary decision of the most serious sort. It involves a civilian injury that followed from actions taken in actual military defense of our country. Of the legion of governmental endeavors, perhaps the most clearly marked for judicial deference are provisions for national security and defense. See Rostker v. Goldberg, 453 U.S. 57, 64-67, 101 S.Ct. 2646, 2651-53, 69 L.Ed.2d 478 (1981). The decisions whether and under what circumstances to employ military force are constitutionally reserved for the executive and legislative branches. See, e.g., U.S. Const. art. II, § 2; art. I, § 8. With regard to decisions to employ military troops, “it is not the function of the Judiciary to entertain private { p.30 } litigation ... which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region.” Johnson v. Eisentrager, 339 U.S. 763, 789, 70 S.Ct. 936, 949, 94 L.Ed. 1255 (1950).

Tiffany, 931 F.2d at 277.

In Rappenecker v. United States, 509 F.Supp. 1024 (N.D. Cal. 1980), suit was brought against the United States by crewmen from the private vessel Mayaguez, which was seized by Cambodian gunboats in 1975. The crewmen were injured during United States military operations aimed at their rescue. Plaintiffs alleged, inter alia, like the plaintiffs here, that “the President acted negligently in deciding to use military force to effect the rescue rather than pursuing diplomatic means.” Id. at 1029. See Complaint, ¶ 113. The court dismissed their claims, stating:

The indicia of Baker v. Carr apply with equal force here. The responsibility for the use of military forces is clearly committed to the President by the Constitution. There are no standards for this Court to judge the reasonableness of the President’s actions. His decisions necessarily involved a range of policy determinations entrusted to his discretion. And the prudential considerations identified in Baker v. Carr also strongly oppose independent judicial determination whether the use of military force was reasonable.

509 F.Supp. at 1029-30 (footnotes omitted).

Second, there are no judicially discoverable and manageable standards by which to judge President Clinton’s decision to destroy the El-Shifa plant or his explanation. Rappenecker, supra. See generally Crockett v. Reagan, 720 F.2d 1355, 1356 (D.C. Cir. 1983), cert. denied 467 U.S. 1251 (1984) {affirming 558 F. Supp 893 (D.D.C. Oct. 4 1982, judge Joyce Hens Green)} {35kb.pdf} (challenge to “United States’ presence in, and military assistance to, El Salvador.”) There is no standard by which to weigh the intelligence which was available to him or the factors of global politics which he had to consider. As the Supreme Court stated in Chicago & Southern { p.31 } Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 111 ( 1948):

The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

Third, resolving this case would necessarily require the Court to make policy decisions of a kind clearly for non-judicial discretion. Granting plaintiffs the relief they seek, monetary or injunctive, would be a remarkable reversal in American foreign policy, undertaken by the non-political branch of government. In Smith v. Reagan, 844 F.2d 195, 196 (4th Cir.), cert. denied 488 U.S. 954 (1988), plaintiffs sought “a declaration that American prisoners of the Vietnam War continue[d] to be held in captivity ... [and] a writ of mandamus compelling the President to comply with the Hostage Act.” The court dismissed the entire suit on political question grounds.

Plaintiffs would have this court declare that they “enjoy the full protection and benefit of [the Hostage Act] and further that the Defendants shall comply with such statutory provisions.” They thus ask the courts to determine whether American service personnel remain in captivity in southeast Asia and to assess the adequacy of the executive’s efforts to secure the release of any who do. Either course of action is fraught with peril for the judiciary. In order to grant the relief requested, the court would be asked to intrude in the conduct of sensitive diplomatic negotiations. Furthermore, they would be asked to make determinations of fact in an area where the judiciary lacks power to obtain information, and in which it has neither expertise to evaluate the information brought before it nor standards to guide its review. { p.32 }

Id. at 198. See Aktepe v. United States, 105 F.3d 1400 at 1404 (11th Cir. 1997), cert. denied 522 U.S. 1045 (1998) {16kb.html, 22kb.pdf} (suit for injuries to Turkish crewmen injured by American missile mistakenly fired during NATO fleet maneuvers); Greenham Women Against Cruise Missiles v. Reagan, 755 F.2d 34, 37 (2d Cir. 1985) (challenge to the deployment of cruise missiles “requests relief which cannot be granted absent an initial policy determination of a kind clearly for non-judicial discretion.”)

Fourth, adjudicating this case would express a lack of respect for the political branches of government. In Aktepe, the Eleventh Circuit recognized that litigation of the Turkish sailors’ case would subject “discretionary military and foreign policy decisions to judicial scrutiny, notwithstanding the judiciary’s relative lack of expertise in these areas. The interjection of tort law into the realms of foreign policy and military affairs would effectively permit judicial reappraisal of judgments the Constitution has committed to the other branches.” 105 F.3d at 1404 {16kb.html, 22kb.pdf}; accord, Tiffany, 931 F.2d at 279.

In Chaser Shipping Corp. v. United States, 649 F.Supp. 736 (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), suit was brought by the owner of a ship which was sunk by a mine in a Nicaraguan harbor. Plaintiffs alleged that the CIA had manufactured the mine, supervised its placement, and failed to follow a prior practice of warning. Id. at 737. The Administration denied that it had any direct involvement in the mining. Id. at 740. The court dismissed the action on the basis of the political question doctrine.

Plaintiffs disingenuously assert that if the Court renders an after-the-fact determination of whether the CIA and the President exercised due care, but refrains from directly enjoining U.S. policy decisions, there will be no judicial monitoring, { p.33 } control or management of U.S. foreign policy towards Nicaragua, but rather, the mere exercise of powers traditionally reserved to the judiciary. To the contrary, adjudication under the FTCA or SIAA of the claims of liability plaintiffs assert would force the Court to resolve sensitive issues involving the foreign policy conduct of executive branch officials. The occurrence of such an inquiry after the completion of the covert operations in no way minimizes the danger of intrusion into the province of the Executive Branch. For the judiciary to monitor the conduct of covert military operations, whether before or after their occurrence, would be an exercise of nonjudicial discretion which Baker counsels the courts to avoid. ... Such scrutiny by the judicial branch would also fail to accord appropriate respect to a coordinate branch of the Government.

Id. at 739 (citations omitted.).

Finally, this is a situation in which there is need to adhere to a political decision already made and in which there is a potential for embarrassment if the Judicial and Executive branches make conflicting pronouncements on important questions relating to foreign affairs. Here the Complaint directly seeks to have this Court issue judicial declarations squarely contradicting the President on the necessity for the bombing of El-Shifa and the justification for that bombing. The court in Chaser Shipping faced a similar request, and rejected it, stating, “Another concern mentioned in the Baker opinion, the potentiality of embarrassment from multifarious pronouncements by various departments on one question, is also seriously implicated in this case.” 649 F.Supp. at 740;. accord Smith v. Reagan, 844 F.2d at 199; Sanchez-Espinoza v. Reagan, 568 F.Supp. 596 at 600 (D.D.C. 1983), aff’d on other grounds, 770 F.2d 202. Then Judge Scalia alluded to this issue in Sanchez-Espinoza, 770 F.2d at 209, stating:

The foreign affairs implications of suits such as this cannot be ignored—their ability to produce what the Supreme Court has called in another context “embarrassment of our government abroad” through “multifarious pronouncements by various departments on one question.” Baker v. Carr, 369 U.S. 186, 226, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962). Whether or not the present litigation is motivated by considerations of geopolitics rather than personal harm, we think that as a general matter the danger of foreign citizens’ using the courts in situations such as { p.34 } this to obstruct the foreign policy of our government is sufficiently acute that we must leave to Congress the judgment whether a damage remedy should exist.

Under Baker v. Carr’s test and the political question doctrine, the Court lacks subject matter jurisdiction over plaintiffs’ suit. The D.C. Circuit reached the same conclusion on facts similar to those alleged by plaintiffs. It affirmed as non-justiciable the “dismissal of an action for damages and related injunctive relief, filed in the District Court by a non-resident alien against the United States ... [for] damage to property in a foreign country said to have been caused by the armed forces of the United States acting under authority of the Government of the United States.” Eminente v. Johnson, 361 F.2d 73 (D.C. Cir.), cert. denied, 385 U.S. 929 (1966). No court could resolve the issues raised by plaintiffs without entering “controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. American Cetacean Soc., 478 U.S. 221, 230 (1986). Accordingly, this action must be dismissed. { p.35 }

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

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.36 }

______________________

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

The Memorandum in Support of Defendant’s Motion to Dismiss was hand-delivered on Friday, June 1, 2001.

Signature: Paul 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.3, n.11, n.18).}

 1  The Complaint alleges that Mr. Idris purchased El-Shifa for $18 million approximately six months before the plant’s destruction. (Complaint, ¶ 16.)

 2  A copy of the August 21, 1998, letter to Congressional Leaders and other pertinent Presidential documents are attached as Exhibit 1 to the Motion to Dismiss {3kb.txt, 84kb.pdf}. The other documents are the Letter to Congressional Leaders on Terrorists Who Threatened To Disrupt the Middle East Peace Process (August 20, 1998) {4kb.txt, 84kb.pdf}; The President’s Radio Address (August 22, 1998) {5kb.txt, 90kb.pdf}; Remarks in Martha’s Vineyard, Massachusetts, on Military Action Against Terrorist Sites in Afghanistan and Sudan (August 20, 1998) {3kb.txt, 84kb.pdf}, 3kb.html; and the Address to the Nation on Military Action Against Terrorist Sites in Afghanistan and Sudan (August 20, 1998) {8kb.txt, 90kb.pdf}. { p.23 }. 2 Public Papers of the President, William J. Clinton, 1998, pp. 1460, 1461, 1463-65 (1998).

In resolving this Rule 12(b)(1) motion, the Court may consider the Public Papers of the President in evaluating whether it has subject matter jurisdiction. As this Court recognized in Kuffel v. U.S. Bureau of Prisons, 882 F.Supp. 1116, 1120 (D.D.C. 1995):

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a dismissal may be granted by the court if there is a lack of subject matter jurisdiction. The Court may go beyond the pleadings and consider affidavits to determine whether subject matter jurisdiction exists. Air Line Pilots Ass’n v. Northwest Airlines, Inc., 444 F.Supp. 1138, 1142 (D.D.C. 1978); McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).

Accord Osborn v. United States, 918 F.2d 724,730 (8th Cir. 1990); Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987).

 3  The Declaratory Judgment Act, 28 U.S.C. § 2201, is not an independent source of federal jurisdiction. Schilling v. Rogers, 363 U.S. 666, 677 (1960); 28 U.S.C. §§ 2201, 2202; Council of Prison Locals v. Brewer, 735 F.2d 1497, 1501 n.7 (D.C. Cir. 1984) (“the Declaratory Judgment Act does not create an independent federal jurisdictional basis”). “[T]he availability of such relief presupposes the existence of a judicially remediable right.” Schilling, 363 U.S. at 677; 28 U.S.C. § 2201(a) (allowing remedy in “a case of actual controversy within its jurisdiction”); { p.7 } As the Supreme Court has held:

“[T]he operation of the Declaratory Judgment Act is procedural only.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 [(1937)]. Congress enlarged the range of remedies available in the federal courts but did not extend their jurisdiction. When concerned as we are with the power of the inferior federal courts to entertain litigation within the restricted area to which the Constitution and Acts of Congress confine them, “jurisdiction” means the kinds of issues which give right of entrance to federal courts. Jurisdiction in this sense was not altered by the Declaratory Judgment Act.

Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950). Because no independent jurisdictional basis exists here, Plaintiff’s reliance on this statute (Complaint, ¶ 1) is misplaced.

 4  A copy of the April 16, 1986 letter President Reagan sent to Congressional Leaders, I Public Papers of the President, Ronald Reagan, 1986, p.478, is attached as Exhibit 2 to the Motion to Dismiss {3kb.html/txt}.

 5  The court stated, “We do not conceive it a proper function of a federal court to serve as a forum for ‘protests,’ to the detriment of parties with serious disputes waiting to be heard.” 886 F.2d at 440.

 6  The professional standards referred to were federal requirements rather than state tort law standards. The court noted, “‘[T]he actions of government auditors are not discretionary,’ plaintiffs argue, ‘because compliance with federal audit guidelines is mandatory.’” Id. at 762-63.

Questions of state law duty and negligence are simply irrelevant to whether the discretionary function exception bars suit. Dalehite, 346 U.S. at 39-43. If the challenged conduct is of the nature and quality that Congress intended to protect, § 2680(a) applies even if there is negligence. “Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions.” Dalehite, 346 U.S. at 34. The exception applies even if the government’s acts or omissions constituted negligence under state law, since it is operative “whether or not the discretion involved be abused.” Id.

 7  In Boyle, the Court stated:

We think that the selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function within the meaning of this provision. It often involves not merely engineering analysis but judgment as to the balancing of many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness. And we are further of the view that permitting “second-guessing” of these judgments, see United States v. Varig Airlines, 467 U.S. 797, 814, ... (1984), through state tort suits against contractors would produce the same effect sought to be avoided by the FTCA exemption. [487 U.S. at 511.]

 8  Plaintiffs’ Prayer for Relief seeks money damages only for the destruction of the El-Shifa pharmaceutical plant. Complaint at 30. The discretionary function, combatant activity, and foreign tort exceptions each independently bar that claim.

The Complaint also hints at claims for defamation (Complaint, ¶ 83 and Count III), libel and slander (e.g., Complaint, ¶¶ 26, 64, 66, 102-104), and interference with contract rights. (Complaint, ¶¶ 106, 115). It does not seek money damages on these grounds. Had it done so, such claims would be barred by the discretionary function exception. They would also be barred by the libel, slander, and interference with contract rights exceptions to the FTCA. 28 U.S.C. § 2680(h).

The United States has argued in the U.S. Court of Federal Claims that plaintiffs’ action is a maritime tort subject to the law of admiralty because the missile(s) that destroyed the El-Shifa Plant were fired from an American warship on the high seas. If indeed subject to the law of admiralty, plaintiffs’ action would be barred under the FTCA by 28 U.S.C. Sec. 2680(d). It would also be barred under the Suits in Admiralty Act by the discretionary function exception. Canadian Transport Co. v. United States, 663 F.2d 1081 (D.C. Cir. 1980).

 9  In this case it appears that plaintiffs maintain that the negligent or wrongful act occurred in the District of Columbia in that they filed suit in this district. Venue in FTCA suits is limited to “the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.” 28 U.S.C. § 1402(b). Neither plaintiff resides in this District. Complaint, ¶¶ 2-3.

 10  D.C. law does not provide a tort basis on which to judge whether the President should have differently weighed the risks of action and inaction, asked different questions of his advisers, or followed the course plaintiffs implicitly endorse and “use[d] peaceful means to resolve [the United States’] concerns about the plant....” (Complaint, ¶ 113.)

 11  Without confirming plaintiffs’ characterization of what transpired, it is noteworthy that they complain, inter alia, that:

1.  The U.S. government should have recognized that its spy allegedly came from a country whose “antipathy toward Sudan” created “a possible motive for providing false evidence....” Complaint, ¶ 33.c.;

2.  “The chain of custody for the soil sample is inadequately documented and there is therefore no way to exclude the possibility of tampering or contamination.” Id. at ¶ 33.d.;

3.  “[T]he officials unreasonably relied upon a single soil sample....” Id. at ¶ 92.a.; { p.17 }

4.  The officials reached a conclusion when “rudimentary reconnaissance at the Plant would have shown” it to be mistaken. Id. at ¶ 92.e.

D.C. tort law does not provide a basis upon which to judge whether these allegations would state a claim for spycraft malpractice. Certainly, the allegations on their face do not take into account the risks and difficulties of conducting espionage operations in hostile environments or assessing raw intelligence. Accepting such propositions, and holding the government liable for not meeting them, would seriously dampen the ability of the President to make difficult decisions when only limited information is available to him.

 12  Title 28, § 1350 is referred to both as the Alien Tort Claims Act, Industria-Panificadora, 957 F.2d at 886, and as the Alien Tort Statute, Sanchez-Espinoza, 770 F.2d at 204.

 13  The APA provides only “for relief other than money damages....” 5 U.S.C. § 702. Plaintiffs cannot recover monetary damages from the United States through an equitable claim. See Dept. of the Army v. Blue Fox, Inc. 525 U.S. 255 (1999) (holding that United States has not waived sovereign immunity for action in equity which is merely a means to the end of satisfying a claim to recover money).

 14  5 U.S.C. § 701(a) provides, “This chapter applies, according to the provisions thereof, except to the extent that—

(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.”

 15  The Prayer for Relief seeks declarations that statements made about plaintiffs are “false and defamatory and that the attack on El-Shifa “violated the law of nations,” and an order that the United States issue a press release retracting statements about plaintiffs. Complaint at 31, ¶¶ 2-4.

 16  Justice O’Connor explained the statutory framework this way, 505 U.S. at 792:

Under the automatic reapportionment statute, the Secretary of Commerce takes the census “in such form and content as [s]he may determine.” 13 U.S.C. § 141(a). The Secretary is permitted to delegate her authority for establishing census procedures to the Bureau of the Census. See §§ 2, 4. “The tabulation of total population by States ... as required for the apportionment of Representatives in Congress ... shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States.” § 141(b). After receiving the Secretary’s report, the President “shall transmit to the Congress a statement showing the whole number of persons in each State ... as ascertained under the ... decennial census of the population, and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions....” 2 U.S.C. § 2a(a). “Each State shall be entitled ... to the number of Representatives shown” in the President’s statement, and the Clerk of the House of Representatives must “send to the executive of each State a certificate of the number of Representatives to which such State is entitled.”

 17  In Franklin the Court considered and rejected a direct constitutional challenge to the decision to allocate military personnel serving overseas to their “homes of record.” Id. at 806.

 18  APA review is also be precluded because the challenged decisions were not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Compare Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 942 (D.C. Cir. 1988) (violation of UN Charter and international law not reviewable under { p.28 } APA; “In sum, the APA does not grant judicial review of agencies’ compliance with a legal norm that is not otherwise an operative part of domestic law.”) with Complaint, ¶ 109).

 

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

By CJHjr: Scanned, converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, highlighting, added paragraphing (for ease of reading) marked with this trailing paragraph symbol:  ¶.

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 quoted.

Charles Judson Harwood Jr.

CJHjr

Posted Oct. 28 2003. Updated Nov. 11 2003

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