Awad v. U.S.

• Decision Date: 04 September 2002
• Docket Number: No. 01-1440.,01-1440.
• Citation: 301 F.3d 1367
• Parties: Adnan AWAD, Plaintiff-Appellant, and Lynn Awad, Plaintiff, v. UNITED STATES and Allen Maxwell, Ed Needham, and Dana Dickson, In Their Individual Capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Federal Circuit

301 F.3d 1367

Adnan AWAD, Plaintiff-Appellant, and Lynn Awad, Plaintiff, v. UNITED STATES and Allen Maxwell, Ed Needham, and Dana Dickson, In Their Individual Capacities, Defendants-Appellees.

No. 01-1440.

United States Court of Appeals, Federal Circuit.

September 4, 2002.

Mark N. Halbert, Phelps Dunbar, LLP, of Tupelo, MI, argued for plaintiff-appellant. With him on the brief was William M. Beasley.

Gerald M. Alexander, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendants-appellees. With him on the brief were Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director; and James M. Kinsella, Assistant Director.

Before MAYER, Chief Judge, RADER and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.

Adnan Awad brought suit against the United States in the United States District Court for the Northern District of Mississippi. In his suit, Mr. Awad asserted various causes of action and sought to recover from the United States in excess of $10,000. Following a bench trial, the district court concluded that all of the claims remaining in Mr. Awad's suit arose out of one or both of two alleged contracts with the United States. It therefore held that exclusive jurisdiction lay in the United States Court of Federal Claims pursuant to 28 U.S.C. §§ 1346(a)(2) and 1491. Accordingly, the court ordered the case transferred to the Court of Federal Claims pursuant to 28 U.S.C. § 1631. Awad v. United States, 2001 WL 741638, *8 (N.D.Miss.2001). Mr. Awad now appeals the order of transfer. We affirm.

BACKGROUND

I.

The facts relevant to the issue before us are not in dispute. Mr. Awad's dealings with the United States government began in 1982, when he notified the U.S. Embassy in Switzerland of a bombing plot by the May 15 Organization, a radical Iraqi-based terrorist group. Mr. Awad's association with the May 15 Organization led the Department of Justice to seek his testimony in the planned prosecution of Mohammed Rashid, the leader of the May 15 Organization, who was believed to have been responsible for the bombing of a Pan American World Airways ("Pan Am") flight in 1982.

Mr. Awad was approached by Daniel Bent, the U.S. Attorney for the District of Hawaii, and Larry Lippe, an attorney with the Department of Justice. Mr. Bent and Mr. Lippe told Mr. Awad that, in return for his testimony against Rashid, he would receive U.S. citizenship and a U.S. passport. Mr. Awad agreed to cooperate with the government, and was brought to the United States in December of 1984. Upon his arrival in the United States, Mr. Awad entered the U.S. Marshals Service's Witness Security Program ("WITSEC"). In the course of his enrollment in WITSEC, Mr. Awad signed a Memorandum of Understanding which outlined the details of the WITSEC program and the obligations of both Mr. Awad and the Marshals Service. The Memorandum of Understanding provided that Mr. Awad was to surrender all identification to the Marshals Service for safekeeping and that in return he would be given new identification documents. The Memorandum of Understanding stated in relevant part as follows:

The witness acknowledges that it is necessary to place in safekeeping with the Marshals Service all identification documents (driver's license, credit cards, etc.) that reveal his/her true identity for reasons of security. The Marshals Service agrees to retain these documents indefinitely, and will return the documents to the witness should he/she desire to revert to his/her true identity.

In keeping with the Memorandum of Understanding, Mr. Awad turned over his Swiss/Lebanese Passport to the Marshals Service. Mr. Awad stayed in the WITSEC program until May of 1986, when he voluntarily withdrew. At that time, he unsuccessfully requested the return of his passport.

In 1986, Mr. Awad testified before a federal grand jury investigating Mohammed Rashid's role, and that of the May 15 organization, in the Pan Am flight bombing. In addition, in 1991 and 1993, Mr. Awad traveled to Greece and testified against Rashid in criminal proceedings there.

Meanwhile, Mr. Awad engaged in efforts to obtain U.S. citizenship or, in the alternative, to retrieve his Swiss/Lebanese passport. Shortly after receiving Mr. Awad's grand jury testimony, Mr. Bent took Mr. Awad to the Boston office of the Immigration and Naturalization Services ("INS") and assisted him in completing paperwork for political asylum, having explained to Mr. Awad that he had to receive political asylum as a prerequisite to citizenship. Mr. Awad was granted political asylum in April of 1988. At that time, he received a Refugee Travel Document but not a passport. Eventually, in 2000, largely through his own efforts, Mr. Awad received U.S. citizenship and a U.S. passport. His Swiss/Lebanese passport never was returned to him.

II.

Mr. Awad eventually brought suit in the Northern District of Mississippi, asserting against the United States various causes of action.¹ In his amended complaint, filed in May of 1994, Mr. Awad alleged false imprisonment, conspiracy, intentional infliction of emotional distress, bad faith breach of contract, invasion of privacy, negligence, trespass to chattels, and conversion. See Awad, 2001 WL 741638 at *1. Mr. Awad stated in his amended complaint that his causes of action arose "under the First, Fourth, Fifth, Eighth and Ninth Amendments to the Constitution of the United States, 28 U.S.C. Section 1331, 28 U.S.C. 1346, et seq. [,] 42 U.S.C. Section 1988, the Tucker Act, and other laws and treaties of the United States."² Am. Compl. at ¶ 4, Awad, 2001 WL 741638 (No. 1:93cv376-D-D). Mr. Awad based his Tucker Act claims, see 28 U.S.C. § 1346(a)(2), upon his oral agreement with Mr. Bent and Mr. Lippe (the "Bent/Lippe agreement"), Am. Compl. at ¶¶ 11 and 19, the Memorandum of Understanding, Id. at ¶ 19, and representations that he alleged were made to him by various government agents and representatives, Id. at ¶¶ 11,12, 21, 23, and 29. Mr. Awad stated in his amended complaint that he was seeking to recover $5 million in compensatory damages and $10 million in punitive damages. Am. Compl., Demand for Judgment.

Following a bench trial, the district court held that it lacked subject matter jurisdiction over Mr. Awad's claims. Awad, 2001 WL 741638 at *7. In the case of each of Mr. Awad's claims alleging a tort, the court determined that the cause of action was grounded in the existence of agreements made with the United States relating to Mr. Awad providing testimony and entering the WITSEC program. The court therefore concluded that the cause of action lay within the exclusive jurisdiction of the Court of Federal Claims under the Tucker Act, 28 U.S.C § 1491(a)(1), since Mr. Awad was seeking to recover in excess of $10,000. Id. at **3-4.

The district court determined that Mr. Awad's claim for false imprisonment could not stand independently of a contractual claim, as the required element of "detention of the plaintiff" necessarily relied on the failure of the United States to fulfill its alleged contractual duty to supply Mr. Awad with citizenship and a passport. Id. at *4. Likewise, the court determined that Mr. Awad's claim for intentional infliction of emotional distress was "inextricably intertwined with the government's supposed breach." Id. at *5. According to the district court, the "outrageous" government conduct necessary to support such a claim was dependent upon the government's breach of its alleged contractual obligations to Mr. Awad. Id. As to Mr. Awad's negligence claim, the court determined that the claim necessarily arose from the government's alleged breach of contract:

Any duty the government had to provide Awad with United States citizenship or a passport sprang initially from the agreement Awad allegedly made with Bent and Lippe.... Likewise, any duty the government had to return Awad's Swiss/Lebanese passport sprang initially from the agreement Awad allegedly made with the United States Marshals Service.

Id. at *6.³ Having concluded that it lacked jurisdiction, the district court transferred Mr. Awad's action to the Court of Federal Claims pursuant to 28 U.S.C. § 1631. Id. at *7.

DISCUSSION

I.

The transfer statute provides that "[w]henever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action ... could have been brought at the time it was filed." 28 U.S.C. § 1631. We have jurisdiction to review the district court's transfer order under 28 U.S.C. § 1292(d)(4) (2000). Section 1292(d)(4) provides this court with "exclusive jurisdiction of an appeal from an interlocutory order of a district court of the United States ... granting or denying, in whole or in part, a motion to transfer an action to the United States Court of Federal Claims under section 1631 of this title." 28 U.S.C. § 1292(d)(4)(A). Our review of the district court's decision to transfer is de novo. United States v. County of Cook, Ill., 170 F.3d 1084, 1087 (Fed.Cir.1999) ("We review a district court's decision to transfer a case to the Court of Federal Claims de novo because it is jurisdictional." (quoting James v. Caldera, 159 F.3d 573, 578 (Fed. Cir.1998))).

"The United States, as sovereign, is immune from suit save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The United States has waived immunity from suit in two instances that are pertinent to this case. First, the Tucker Act waives sovereign immunity in all actions brought in the Court of Federal Claims "founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. §...