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Salim v. Mitchell

United States District Court, E.D. Washington

January 27, 2017

SULEIMAN ABDULLAH SALIM, et al., Plaintiffs,



         BEFORE 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.

         I. Introduction and Procedural Background

         The Complaint in this matter alleges Plaintiffs Suleiman Abdullah Salim (“Salim”), Mohamed Ahmed Ben Soud (“Soud”), and Obaid Ullah (“Ullah”)[1](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).

         The 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.

         The 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).

         II. Standard of Review

         As this 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.

         III. The Complaint

         Because 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.” (Id.).

         Soud is 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).

         IV. Discussion

         Defendants' 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).

         A. Military ...

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