Ameur v. Gates

• Decision Date: 20 June 2013
• Docket Number: Case No. 1:12–cv–823 (GBL/TRJ).
• Citation: 950 F.Supp.2d 905
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Mammar AMEUR, Plaintiff, v. Robert M. GATES, et al., Defendants.

950 F.Supp.2d 905

Mammar AMEUR, Plaintiff,

v.Robert M. GATES, et al., Defendants.

Case No. 1:12–cv–823 (GBL/TRJ).

United States District Court,

E.D. Virginia,

Alexandria Division.

June 20, 2013.

Recognized as Unconstitutional

28 U.S.C.A. § 2241(e)(1).

Bernadette Francoise Armand, Victor Michael Glasberg, Victor M. Glasberg & Associates, Alexandria, VA, Gwynne L. Skinner, Willamette University School of Law, Law Clinic, Salem, OR, for Plaintiff.

Lauren A. Wetzler, R. Joseph Sher, United States Attorney's Office, Alexandria, VA, for Defendants.

MEMORANDUM OPINION AND ORDER

GERALD BRUCE LEE, District Judge.

THIS MATTER is before the Court on Defendants' Motions to Dismiss (Docs. 77, 80). The case concerns an Algerian citizen's claims against various former governmentofficials concerning alleged abuse, mistreatment, and torture committed by the United States military during Plaintiff's detention in multiple countries. Defendants' motions present three issues before the Court.

The first issue is whether the United States of America, pursuant to 28 U.S.C. § 2679(b)(1) (“the Westfall Act”), properly substituted itself for the named individual defendants on Counts I–VI, where Plaintiff alleged violations of customary international law and the Geneva Convention. The Court holds that substitution was proper, as Plaintiff's claims seek relief against federal employees for harms resulting from acts or omissions occurring within the employees' scope of employment. The Court finds that neither of the Westfall Act's two exceptions to substitution applies here. Furthermore, because state law determines the scope of the individual defendants' employment for the purposes of the Westfall Act, the Court finds that the acts or omissions fall within the scope as defined by Virginia law.

The second issue is whether the Military Commissions Act (“MCA”) divests the Court of subject matter jurisdiction to consider Plaintiff's claims seeking relief for harm related to his detention, transfer, and confinement in Afghanistan and Guantanamo Bay. The Court holds that it lacks subject matter jurisdiction here because the MCA bars courts from hearing claims related to detention, transfer, treatment, and conditions of confinement brought by individuals determined by the United States to be enemy combatants. Plaintiff's Complaint acknowledges he was determined to be an enemy combatant and that his claims relate to his detention and treatment at United States military facilities.

The third issue is whether sovereign immunity bars Plaintiff's claims against the United States, Counts I–VI, for harms occurring on foreign soil. The Court holds that sovereign immunity bars Plaintiff's claims for two reasons. First, the Federal Tort Claims Act (“FTCA”), while a partial waiver of sovereign immunity, does not act as a waiver where claims arise from a source other than state law, such as customary international law. Second, the FTCA does not waive sovereign immunity for harms occurring on the soil of another sovereign.

I. BACKGROUND and PROCEDURAL HISTORY

Plaintiff Mammar Ameur, a fifty-four year old Algerian citizen, brings this action seeking relief for violations of customary international law, the Geneva Convention, the First and Fifth Amendments of the United States Constitution, and the Religious Freedom Restoration Act (“RFRA”). (2d Am. Compl. ¶¶ 1, 12, Doc. 65.) Plaintiff names various former high-level government executive individuals, including former Secretaries of Defense Robert Gates and Donald Rumsfeld, as defendants (“Individual Defendants”). ( Id. ¶¶ 13–39.) Plaintiff also names one hundred John Does as defendants. ( Id. ¶¶ 40–43.) Plaintiff's claims arise from being taken into custody in Pakistan and his time in detention in United States military facilities at Bagram Air Base, Afghanistan and Guantanamo Bay, Cuba. Plaintiff alleges that the Individual Defendants acted beyond the scope of their authority and employment in their involvement as decision-makers, supervisors, policy creators, or other roles connected with acts carried out by the United States military. ( Id. ¶¶ 4–7.)

Plaintiff alleges that he was in Pakistan in 2002 after fleeing a violent civil war in his home country of Algeria. ( Id. ¶ 53.) He was taken into custody during a July 2002 raid in Pakistan, despite not being the target of the raid. ( Id. ¶ 54.) Plaintiff was taken to a jail in Islamabad, Pakistan and was soon thereafter hooded, chained, and transferred to another prison within the country. ( Id. ¶¶ 54–55.) Plaintiff alleges that during this time he was not interrogated, and given only food with hot peppers and one set of clothes during the six months he spent in that facility. ( Id. ¶¶ 55–56.)

Plaintiff was transferred to Bagram Air Base, Afghanistan in January 2003, where he remained until March 23, 2003. ( Id. ¶ 58.) During his time at Bagram, Plaintiff was allegedly subjected to humiliating treatment, beatings, extreme temperatures, sleep deprivation, cavity searches, constant music, and other unpleasant and jarring treatment. ( Id. ¶¶ 59–61.) Plaintiff further alleges that guards denied him a copy of the Qur'an for a period of time, often scattered the pages across his cell, and prevented Plaintiff from adhering to his prayer schedule and regimen. ( Id. ¶ 62.) At no time during his detention at Bagram was Plaintiff given an explanation for his apprehension and detention, a notice that he was charged with any crime, or an opportunity to challenge his detention. ( Id. ¶ 64.)

Plaintiff was transferred to Guantanamo Bay, Cuba on March 23, 2003, where he remained in detention until October 8, 2008. ( Id. ¶¶ 65–66.) This transfer involved a cavity search, being forced into stressful positions for long periods of time without food or water, blindfolding, and again being hooded. ( Id. ¶ 65.) Plaintiff alleges that he was subject to severe mistreatment during his time at Guantanamo Bay, including the following: beatings, forced nudity, touching of his genitals by male and female guards alike, spraying of mace, denial of water so that detainees could not wash off the mace, constant noise and floodlights, isolation, and frequent interrogation. ( Id. ¶¶ 67–70.) Plaintiff suffered further injury due to the inadequacy of the footwear provided to him. ( Id. ¶¶ 73–74.) Plaintiff alleges that he again faced difficulties in possessing a Qur'an. ( Id. ¶ 71.) After arriving at Guantanamo Bay, Plaintiff was prevented from contacting his family until June 2007. ( Id. ¶ 72.)

Plaintiff alleges that he was not determined to be an “enemy combatant” until October 2004, approximately two years after his initial detention. ( Id. ¶ 79.) Plaintiff further alleges that in November 2005, three years prior to his release, he would have been eligible for release from Guantanamo and return to Algeria. ( Id. ¶ 81.)

Plaintiff alleges that former Secretaries Gates and Rumsfeld, as well as other high-level officials, knew that innocent men were being held at Guantanamo Bay yet failed to release these individuals due to anticipated political repercussions. ( Id. ¶¶ 84–86.) These individuals allegedly “oversaw a system of detention, coercive interrogations and harsh and humiliating conditions” at Bagram and Guantanamo. ( Id. ¶ 88.) Plaintiff further alleges that various Defendants were involved in requests for, debates about, and approval of “aggressive interrogation techniques” that were “tantamount to torture.” ( Id. ¶¶ 88–101.) Plaintiff maintains that other Defendants were involved with the implementation and oversight of the flawed process of determining enemy combatants, the refusal to bring detention facilities in compliance with the Geneva Conventions, and the failure to curb abusive practices in detention facilities. ( Id. ¶¶ 104–16.) Plaintiff alleges that former Secretary Gates's knowledge of these practices and failure to provide proper guidance to subordinates or otherwise end abusive processes subjects him to liability for these acts or omissions. ( Id. ¶¶ 115–19.)

Procedural History

Plaintiff filed this suit in the Western District of Washington on October 6, 2011. (Doc. 1.) The case was transferred to this Court on July 25, 2012. (Doc. 55.) In its order transferring the case to this Court, the Western District of Washington granted Defendants' motion to dismiss Plaintiffs Amended Complaint for lack of personal jurisdiction as to all defendants except Robert Gates. (Doc. 54.) On September 12, 2012, Plaintiff filed his Second Amended Complaint in this Court.¹ (Doc. 65.)

In his Second Amended Complaint, Plaintiff asserts nine claims for relief. Counts I through VI (“nonconstitutional claims”) seek relief for violations of customary international law and the Geneva Convention pursuant to the Alien Tort Statute. Count I alleges prolonged arbitrary detention. ( Id. ¶¶ 122–26.) Count II alleges cruel, inhuman, or degrading treatment. ( Id. ¶¶ 127–31.) Count III seeks relief for torture. ( Id. ¶¶ 132–36.) Count IV seeks relief for the targeting of a civilian. ( Id. ¶¶ 137–42.) Count V alleges a violation of due process. ( Id. ¶¶ 143–47.) Count VI alleges forced disappearance. ( Id. ¶¶ 148–52.)

Counts VII and VIII (“constitutional claims”) assert Bivens claims against some of the Defendants for constitutional violations. Count VII alleges a Fifth Amendment violation based on Plaintiff's alleged right to due process. ( Id. ¶¶ 153–58.) Count VIII alleges a First Amendment violation related to the freedom of religion and the freedom of expression and association. ( Id. ¶¶ 159–65.)

Count IX alleges a violation of the Religious Freedom Restoration Act by certain Defendants. ( Id. ¶¶ 166–71.)

On December 11, 2012, the United States filed a Notice of Substitution for all Individual Defendants as to Counts I–VI pursuant to the Westfall Act, 28 U.S.C. § 2679(b). (Doc. 79.) Thereafter, the Government filed a Motion to Dismiss Plaintiff's nonconstitutional claims for lack of subject...