Jaber v. United States

• Citation: 861 F.3d 241
• Decision Date: 30 June 2017
• Docket Number: No. 16-5093,16-5093
• Parties: Ahmed Salem BIN ALI JABER, personal representative of the Estate of Salem bin Ali Jaber, by his next friend Faisal bin Ali Jaber and Esam Abdullah Abdulmahmoud bin Ali Jaber, personal representative of the Estate of Waleed bin Ali Jaber, by his next friend Faisal bin Ali Jaber, Appellants v. UNITED STATES of America, et al., Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

861 F.3d 241

Ahmed Salem BIN ALI JABER, personal representative of the Estate of Salem bin Ali Jaber, by his next friend Faisal bin Ali Jaber and Esam Abdullah Abdulmahmoud bin Ali Jaber, personal representative of the Estate of Waleed bin Ali Jaber, by his next friend Faisal bin Ali Jaber, Appellants

v.UNITED STATES of America, et al., Appellees

No. 16-5093

United States Court of Appeals, District of Columbia Circuit.

Argued December 13, 2016

Decided June 30, 2017

Jeffrey D. Robinson, pro hac vice, argued the cause for Appellants. With him on the briefs were Eric L. Lewis, Tara J. Plochocki, and Brent Nelson Rushforth, Washington, DC.

Kathleen McClellan, Franklin, TN, and Jesselyn Radack were on the brief for amici curiae Brandon Bryant, Lisa Ling, and Cian Westmoreland in support of Appellants.

Katherine Twomey Allen, Attorney, U.S. Department of Justice, argued the cause for Appellee. With her on the briefs were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Douglas N. Letter and H. Thomas Byron, III, Washington, DC, Attorneys.

Steven D. Schwinn, Chicago, IL, was on the brief for amicus curiae The John Marshall Law School International Human Rights Clinic in support of Appellants.

Mary E. O'Connell, Philadelphia, PA, was on the brief for amici professors Mary Ellen O'Connell and Douglas Cassel in support of Appellants.

Before: Brown, Srinivasan and Pillard, Circuit Judges.

Concurring opinion filed by Circuit Judge Brown.

Brown, Circuit Judge:

Following the terrorist attacks of September 11, 2001, Congress authorized the President "to use all necessary and appropriate force" against al-Qaeda, the Taliban, and associated forces. See Authorization for Use of Military Force, Pub. L. No. 107–40 § 2(a), 115 Stat. 224 (2001). Since then, the Executive has increasingly relied upon unmanned aerial vehicles, or "drones," to target and kill enemies in the War on Terror. This case concerns an alleged drone misfire—a bombing that resulted in unnecessary loss of civilian life.

Plaintiffs Ahmed Salem bin Ali Jaber ("Ahmed") and Esam Abdullah Abdulmahmoud bin Ali Jaber ("Esam"), through their next friend Faisal bin Ali Jaber ("Faisal"), seek a declaratory judgment stating their family members were killed in the course of a U.S. drone attack in violation of international law governing the use of force, the Torture Victim Protection Act ("TVPA"), and the Alien Tort Statute ("ATS"). The district court dismissed their claims primarily on political question grounds, and Plaintiffs appeal. At this stage of proceedings, we must accept all factual allegations asserted in the Complaint as true. See, e.g. , Tri–State Hosp. Supply Corp. v. United States , 341 F.3d 571, 572 n.1 (D.C. Cir. 2003).

I.

In late-August 2012, the bin Ali Jaber family gathered in Khashamir, Yemen for a week-long wedding celebration. On August 24th, Ahmed Salem bin Ali Jaber ("Salem"), an imam in the port town of Mukalla, was asked to give a guest sermon at a local Khashamir mosque. His sermon, a direct "challenge[ to] al Qaeda to justify its attacks on civilians," JA 19, apparently did not go overlooked by local extremists. On August 29th, three young men arrived at Salem's father's house and asked to speak with Salem.

The men first arrived in the "early afternoon," but Salem's father told them Salem was "visiting neighboring villages." JA 20. The three men left and returned around 5:00pm that same day, when Salem's father informed them they might find Salem "at the mosque after evening prayers." JA 21. The men again departed before reappearing at the mosque around 8:30pm. Fearful of the men, Salem asked Waleed bin Ali Jaber ("Waleed"), one of the town's two policemen, to accompany him to meet them. According to the Complaint, "Two of the men sat down with Salem under a palm tree near their parked car, while the third [man] remained a short distance away, watching the meeting." JA 21.

Shortly thereafter, members of the bin Ali Jaber family "heard the buzzing of the drone, and then heard and saw the orange and yellow flash of a tremendous explosion." Ibid . According to witnesses, "the first two strikes directly hit Salem, Waleed[,] and two of the three strangers. The third missile seemed to have been aimed at where the third visitor was located.... The fourth strike hit the [men's] car." JA 21–22. Plaintiffs now contend a U.S.-operated drone deployed the four Hellfire missiles that killed the five men.

Plaintiffs allege the three visiting men—and not Salem or Waleed—were the intended targets of the attack, and those men were not "high-level, high-value targets to the United States." JA 10. The Complaint further states the men had driven "for a significant distance outside populated areas in order to reach Khashamir," and "loitered alone for a significant period before meeting with Salem and Waleed." Ibid . Plaintiffs, therefore, conclude,

The three young men seeking Salem could have been interdicted earlier in the day at manned checkpoints close to the village along both roads in and out of Khashamir. If [a] more robust detaining force was called for, an allied [i.e. , Yemeni] military base was only 2.5–3 kilometers away from where the missiles hit.

JA 39 (second alteration in original).

That evening, a "Yemeni official" spoke by telephone with several members of the bin Ali Jaber family, including Faisal, to "convey[ ] personal condolences for the wrongful deaths of Salem and Waleed, but [he] offered no official acknowledgement of or redress for the strike." JA 11. In response to Faisal's repeated attempts to lobby officials first in Yemen and later in the U.S., the "Yemeni government ordered the families receive the equivalent of around $55,000 US in Yemeni currency," which it described as a "condolence" payment. JA 30–31. Later, a member of Yemen's National Security Bureau offered a family member $100,000 in U.S. dollars; he originally stated the money was from the U.S. government but later recanted once Faisal asked for the statement in writing. After trying in vain to receive official recognition for the attack from elected officials, Plaintiffs now turn to the courts.

Plaintiffs allege Salem and Waleed were collateral damage in a "signature strike," an attack where the U.S. targets an unidentified person (here, the three men) based on a pattern of suspicious behavior as identified through metadata. Plaintiffs further claim "the drone operator(s) waited until Salem and Waleed joined the three [men] to strike," JA 40, in violation of international law, since there was ample opportunity to strike when the men were (1) alone in the Yemeni countryside where they could be targeted without fear of civilian casualties or (2) in locations where Yemeni officials could easily take them into custody.

Shortly after this lawsuit was filed, the government successfully moved under the Westfall Act, 28 U.S.C. § 2679, to substitute the United States for the named defendants as to all counts except those under the TVPA. Thereafter, the government moved to dismiss this action for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. The district court granted the motion on Federal Rule of Civil Procedure 12(b)(1) grounds. It held, while Faisal had "next friend" standing to bring suit on Plaintiffs' behalf, Plaintiffs' claims were nonetheless barred on political question grounds. The district court further stated, "[P]laintiffs' claims would [also] face insurmountable barriers on the merits" since "previous exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief" and the TVPA "does not authorize suits against U.S. officials." JA 62 n.6. Plaintiffs timely appealed.

II.

The "first and fundamental question" this Court is "bound to ask and answer" is whether it has jurisdiction to decide this case. Steel Co. v. Citizens for a Better Env't ., 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The political question doctrine concerns the jurisdictional " ‘case or controversy’ requirement" of Article III of the Constitution, Schlesinger v. Reservists Comm. t o Stop the War , 418 U.S. 208, 215, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974) ; see also Bancoult v. McNamara , 445 F.3d 427, 432 (D.C. Cir. 2006), and the Court must address it "before proceeding to the merits," Tenet v. Doe , 544 U.S. 1, 6 n.4, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005) (emphasis added).

"The nonjusticiability of a political question" as articulated by the Supreme Court "is primarily a function of the separation of powers." Baker v. Carr , 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The doctrine "excludes from judicial review," however sympathetic the allegations, "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." Japan Whaling Ass'n v. Am. Cetacean Soc'y , 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). The framework laid out by the Supreme Court in Baker v. Carr articulates the contours of the doctrine:

Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [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.

369 U.S. at 217, 82 S.Ct. 691. Of course, "[t]o find a [nonjusticiable] political question, we need only conclude that...