United States District Court, E.D. Washington
ORDER RE: MOTION TO DISMISS
L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE
THE COURT is Defendants' Motion to Dismiss (ECF No. 105).
The Motion has been fully briefed, and telephonic argument
was held on January 19, 2017. Dror Ladin, Hina Shamsi, Steven
Watt, and Emily Chiang appeared for Plaintiffs, with Mr.
Ladin taking the lead. James Smith, Brian Paszamant, Henry
Schuelke, III, and Christopher Tompkins appeared for
Defendants, with Mr. Smith taking the lead. Counsel did not
appear for Interested Party, the United States of America.
Introduction and Procedural Background
Complaint in this matter alleges Plaintiffs Suleiman Abdullah
Salim (“Salim”), Mohamed Ahmed Ben Soud
(“Soud”), and Obaid Ullah
(“Ullah”)(collectively herein Plaintiffs) were the
victims of psychological and physical torture. Plaintiffs are
all foreign citizens and bring these claims pursuant to the
Alien Tort Statute, 28 U.S.C. § 1350. Plaintiffs allege
the Defendants, James Mitchell and John Jessen, “are
psychologists who designed, implemented, and personally
administered an experimental torture program for the U.S.
Central Intelligence Agency.” (Complaint, ¶ 1).
Complaint was filed on October 13, 2015. Defendants filed a
Motion to Dismiss (ECF No. 27) in January 2016. After
briefing and oral argument, that Motion was Denied.
(See Memorandum Opinion of April 28, 2016, at ECF
No. 40). Thereafter the court issued a Scheduling Order (ECF
No. 59) and the parties have engaged in discovery. A dispute
between Defendants and the Central Intelligence Agency
concerning the scope of a subpoena and document production
led to additional litigation in case number 16-mc-0036-JLQ.
The document production was completed on December 20, 2016.
Trial in this matter is set for June 26, 2017.
Defendants' instant Motion was filed on November 18,
2016, and contends the Military Commissions Act
(“MCA”), specifically 28 U.S.C. §
2241(e)(2), deprives this court of jurisdiction over
“non-habeas detention-related claims” brought by
an alien when the alien was determined to have been properly
detained by the United States as an “enemy
combatant”. (ECF No. 105, p. 1). Plaintiffs'
Response (ECF No. 12) contends the MCA does not apply for two
primary reasons: 1) Defendants are not military
servicemembers or government employees or agents, but are
independent contractors; and 2) none of the three Plaintiffs
were determined by an executive branch tribunal to have been
properly detained as an enemy combatant. (ECF No. 120, p. 1).
Standard of Review
is review of a motion to dismiss under Fed.R.Civ.P. 12, the
Plaintiffs' factual allegations are taken as true, unless
they do not pass the plausibility standard of Ashcroft v.
Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007). Defendants bring the
Motion pursuant to Fed.R.Civ.P. 12(b)(1) and argue the court
lacks subject-matter jurisdiction due to operation of the
MCA. When reviewing a motion to dismiss pursuant to Rule
12(b)(1) this court may review evidence. McCarthy
v. United States, 850 F.2d 558, 560 (9th
Cir. 1988). Attacks on jurisdiction can be either facial,
confining inquiry to the allegations in the complaint, or
factual, permitting the court to look beyond the complaint.
Savage v. Glendale High School, 343 F.3d 1036, 1040
n. 2 (9th Cir. 2003). The parties have filed
documentary evidence in support of, and in opposition to, the
Motion and the court has considered those filings.
the central focus of the instant Motion To Dismiss is whether
Plaintiffs were classified as “enemy combatants,
” and whether the Defendants were “agents”
of the United States or independent contractors, the court
sets forth the relevant allegations from the Complaint. Salim
is alleged to be a Tanzanian citizen who was detained in
Somalia in March 2003, where he was working as a fisherman
and trader. (Complaint ¶ 9). The Complaint alleges Salim
was released from U.S. custody in August 2008 and given a
Department of Defense memorandum stating he had “been
determined to pose no threat to the United States Armed
Forces or its interests in Afghanistan.”
a Libyan citizen who was detained in Pakistan in 2003 and
held by the U.S. Government until 2005. (Id. at
¶ 10). The Complaint alleges Soud had fled Libya fearing
persecution under the Gadaffi regime. (Id. at ¶
117). Rahman is alleged to have been an Afghan citizen who
was living in a refugee camp in Peshawar, Pakistan. He was
allegedly taken into custody by the CIA in November 2002, in
Pakistan. (Id. at ¶ 11). The Complaint alleges
he went into Islamabad for a medical appointment, and spent
the night at a friend's home. The friend's home was
raided and Rahman was detained by joint United States and
Pakistani forces. (Id. at ¶ 156). Defendants
Mitchell and Jessen are alleged to have worked as independent
contractors for the CIA. (Id. at ¶¶
12-13). Plaintiffs allege Defendants “aided and
abetted” and “conspired or acted together with
agents of the United States” in subjecting Plaintiffs
to torture, cruel, inhuman, and degrading treatment.
(Id. at ¶¶ 170-171).
Motion to Dismiss argues the action must be dismissed because
the MCA divests the court of jurisdiction. The two main areas
of dispute between the parties are: 1) whether Defendants are
“the United States or its agents”; and 2) whether
Plaintiffs were “determined by the United States to
have been properly detained as an enemy combatant”;
both within the meaning of 2241(e)(2).