MARK MUNNS; CHRISTA MUNNS, administrators for the separate Estate of Joshua Munns; DENNIS DEBRABANDER; SHARON DEBRABANDER, administrators for the separate Estate of John Young; LORI SILVERI, administrator for the separate Estate of John Cote, Plaintiffs-Appellants,
JOHN F. KERRY, in his official capacity as United States Secretary of State; JENNIFER FOO, in her official capacity; UNITED STATES OF AMERICA; LLOYD'S OF LONDON; CNA FINANCIAL CORPORATION, Defendants-Appellees
Argued and Submitted, San Francisco, California
September 11, 2014.
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Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:10-cv-00681-MCE-EFB. Morrison C. England, Jr., Chief District Judge, Presiding.
Standing / Jurisdiction
The panel affirmed the district court's dismissal of the plaintiffs' equitable claims due to lack of standing and their federal benefits claims due to lack of jurisdiction, and vacated the district court's dismissal of the due process and takings claims for withheld back pay and insurance proceeds in an action brought against United States government officials by family members and a coworker of three Americans who were kidnapped and killed while providing contract security services during the United States military occupation of Iraq.
The panel held that the plaintiffs had not shown that they were likely to be harmed in the future by the United States' policies governing the supervision of private contractors and the response to kidnappings of American citizens in Iraq; and therefore, the plaintiffs lacked Article III standing to seek prospective declaratory and injunctive relief regarding those policies. The panel also held that the plaintiffs failed to allege a governmental waiver of sovereign immunity that would confer jurisdiction in the district court over their monetary claims. Finally, the panel held that the United States Court of Federal Claims had jurisdiction over the plaintiffs' claims for withheld back pay and insurance proceeds, and directed the district court to sever and transfer those claims under 28 U.S.C. § 1631.
Judge Reinhardt concurred, and wrote separately to emphasize that it would not be appropriate for the court to resolve in this case any questions regarding the proper policies for the government to follow with respect to the role of contractors in Iraq, nor determine how the government, or the families of hostages, should deal with terrorist groups who hold hostage United States citizens.
William Wayne Palmer (argued), Law Offices of William W. Palmer, Sacramento, California, for Plaintiffs-Appellants.
H. Thomas Byron, III (argued), Michael Raab, Stuart F. Delery, Assistant Attorney General, Joyce R. Branda, Acting Assistant Attorney General, and Benjamin B. Wagner, United States Attorney, United States Department of Justice, Civil Division, Appellate Staff, Washington, D.C., for Defendants-Appellees.
Before: Stephen Reinhardt, Raymond C. Fisher and Marsha S. Berzon, Circuit Judges. REINHARDT, Circuit Judge, concurring.
FISHER, Circuit Judge:
This case arises from the kidnappings and brutal killings of three Americans who were providing contract security services during the United States military occupation of Iraq. The plaintiffs, who include family members and a former coworker of these three men, brought suit against United States government officials to challenge policies governing the supervision of private contractors and the response to kidnappings of American citizens in Iraq (" policy claims" ).
They also claim the government is withholding back pay, life insurance proceeds and government benefits owed to the families of the deceased contractors (" monetary claims" ). The district court dismissed the policy claims for lack of standing and for presenting nonjusticiable political questions. It dismissed the monetary claims for failure to establish a waiver of the government's sovereign immunity from suits for damages and for failure to state a claim for which relief could be granted. We hold that the plaintiffs have not shown they are likely to be harmed in the future by the challenged policies. They therefore lack standing to seek prospective declaratory and injunctive relief regarding those policies. We further hold that the plaintiffs have failed to allege a governmental waiver of sovereign immunity that would confer jurisdiction in the district court over their monetary claims. Finally, we hold that the United States Court of Federal Claims has jurisdiction over the plaintiffs' claims for withheld back pay and insurance proceeds, and we direct the district court to transfer those claims under 28 U.S.C. § 1631. We thus affirm in part and vacate in part and remand.
Plaintiffs Mark Munns, Christa Munns, Dennis DeBrabander, Sharon DeBrabander and Lori Silveri are family members of Joshua Munns, John Young and John Cote, who were kidnapped and tragically killed in Iraq in 2008 while working for a private security firm, Crescent Security (Crescent). Plaintiff Gary Bjorlin was formerly employed by Crescent in Iraq and would like to return to that country as a private security contractor.
In November 2006, while working for Crescent, contractors Munns, Young and Cote were assigned to guard a 46-truck convoy traveling from Kuwait to southern Iraq. The plaintiffs allege that on the day of the convoy, Crescent issued the men substandard military equipment and ordered other security team members not to accompany them on the convoy, and that Iraqi security team members slated to join the convoy failed to show up for work, leaving only seven contractors to guard the convoy. When the convoy stopped at an Iraqi police checkpoint, 10 armed men approached and, along with the Iraqi police, took five of the contractors captive, including Munns, Young and Cote. The men were held for over a year, until their kidnappers brutally executed them sometime in 2008.
The plaintiffs trace the contractors' kidnappings and murders to Crescent's failure to adequately prepare and supervise its personnel in Iraq. They allege Crescent's deficient conduct was " officially sanctioned" by the Secretary of State through an unlawful order issued by the Coalition Provisional Authority (CPA) overseeing the U.S. occupation. CPA Order 17 allegedly gave " blanket immunity [to contractors] from all prosecution," granting them a " license to kill" with impunity and permitting contractors to " circumvent the authority of Congress, the Courts, and the Constitution."  Additionally, the plaintiffs say they heard rumors that CPA Order 17, and the consequent lawless behavior of some security contractors, may have been the motivation behind the kidnappings.
Plaintiff Bjorlin wants to know whether CPA Order 17, or a similar policy, will be in effect if he returns to Iraq as a security contractor, as he says he would like to do. He asserts it is foreseeable that whatever employer he might contract with will again make assurances about safe working conditions, but that he cannot know if those assurances will be honored because the U.S. government has previously failed to hold its contractors legally accountable. He contends that CPA Order 17's alleged grant of blanket immunity from prosecution exceeded the executive branch's constitutional authority. Accordingly, he asks the court to declare CPA Order 17 unconstitutional and to permanently enjoin the government from implementing it, or a similar policy, in the future.
The family members and Bjorlin together focus on the government's refusal to negotiate with terrorists for the release of hostages, particularly as that policy blocks or impedes private efforts to secure a hostage's release. The family members allege that officials in the State Department prevented them from negotiating for the release of their relatives, in violation of their First Amendment guarantees of free speech and free assembly. Specifically, they allege that officials told them they could not meet with a United States citizen who had reportedly obtained information on the location and condition of the captured men. They also allege that the State ...