Doe v. Bin Laden

• Citation: 580 F.Supp.2d 93
• Decision Date: 30 September 2008
• Docket Number: Civil Action No. 01-2516 (RWR).
• Parties: John DOE, et al., Plaintiffs, v. Sheikh Usama Bin-Muhammad BIN LADEN, et al., Defendants.
• Court: United States District Courts. United States District Court (Columbia)

580 F.Supp.2d 93

John DOE, et al., Plaintiffs, v. Sheikh Usama Bin-Muhammad BIN LADEN, et al., Defendants.

Civil Action No. 01-2516 (RWR).

United States District Court, District of Columbia.

September 30, 2008.

Paul J. Orfanedes, James F. Peterson, Judicial Watch, Inc., Washington, DC, for Plaintiffs.

R. Michael Smith, Gordon Feinblatt Rothman Hoffberger & Hollander LLC, Baltimore, MD, for Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, District Judge.

Plaintiff John Doe brought an action as executor of the estate and personal representative of Jane Doe and on his own behalf invoking the noncommercial tort exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605(a)(5), alleging that the Transitional Islamic State of Afghanistan ("Afghanistan") unlawfully conspired with the Taliban and Iraq to conduct the September 11, 2001 attacks in which Doe's wife died. Afghanistan, asserting foreign sovereign immunity, has moved under Fed.R.Civ.P. 12(b)(1) to dismiss the complaint for lack of subject matter jurisdiction. Because Doe has set forth some factual allegations of Afghanistan's participation in the conspiracy, but additional evidence may confirm or disprove the presence of subject matter jurisdiction, Afghanistan's motion to dismiss will be denied without prejudice and the parties will be directed to confer regarding limited jurisdictional discovery.

BACKGROUND

Doe filed this action against Afghanistan and other defendants for conspiracy and wrongful death under the FSIA noncommercial tort exception seeking compensatory and punitive damages. He alleges that Afghanistan, in concert with the other defendants, conspired to "conduct illegal and unlawful terrorist attacks on the United States, including, on information and belief, the terrorist attacks of September 11, 2001" in which Doe's wife died. (Compl.¶¶ 19, 60.) Doe served process upon Afghanistan through diplomatic channels as permitted by 28 U.S.C. § 1608(a)(4). See Docket Entry 11. Afghanistan has moved to dismiss Doe's complaint for lack of subject matter jurisdiction, maintaining that Doe's cited exception does not abrogate Afghanistan's sovereign immunity. (Def.'s Mem. in Supp. of Mot. to Vacate & Dismiss ("Def.'s Mem.") at 4-6.)¹

DISCUSSION

"The objection that a federal court lacks subject-matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage in the litigation...." Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 1240, 163 L.Ed.2d 1097 (2006) (citing Fed.R.Civ.P. 12(b)(1)). "On a motion to dismiss for lack of subjectmatter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subjectmatter jurisdiction." Larsen v. U.S. Navy, 486 F.Supp.2d 11, 18 (D.D.C.2007) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The court must construe the plaintiff's allegations liberally. See Sadhvani v. Chertoff, 460 F.Supp.2d 114, 118 (D.D.C.2006). "Because subject-matter jurisdiction focuses on the court's power to hear the claim, however, the court must give the plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion...." Jin v. Ministry of State Sec., 475 F.Supp.2d 54, 60 (D.D.C.2007). Subject-matter jurisdiction can never be waived. Arbaugh, 126 S.Ct. at 1244.

"`If the defendant challenges only the legal sufficiency of the plaintiffs jurisdictional allegations, then the district court should take the plaintiffs factual allegations as true and determine whether they bring the case within any of the [FSIA] exceptions to immunity invoked by the plaintiff.'" Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123, 1127 (D.C.Cir.2004) (quoting Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C.Cir.2000)). But, if the factual basis of the court's jurisdiction is challenged, "`the court must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss.'" Id. (quoting Phoenix Consulting Inc., 216 F.3d at 40). See also Collett v. Socialist Peoples' Libyan Arab Jamahiriya, 362 F.Supp.2d 230, 236 (D.D.C.2005) (noting that when a factual basis is challenged, the court cannot deny a Rule 12(b)(1) motion to dismiss "merely by assuming the truth of the facts alleged by the plaintiff").

The court "retains considerable latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction." Kilburn, 376 F.3d at 1131 (internal quotations omitted). However, any discovery that is conducted should be limited to avoid "frustrat[ing] the significance and benefit of ... immunity from suit." Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 449 (D.C.Cir.1990) (internal quotation marks omitted) (brackets and ellipsis in original) (noting that when conclusory allegations attributing actions of co-defendants to Iran are challenged, "the plaintiff must provide further proof of government involvement"). See also Collett, 362 F.Supp.2d at 236 (noting that the plaintiff must be given "ample opportunity to secure and present evidence relevant to the existence of jurisdiction" (internal quotation marks omitted)). "[A] court should allow for limited jurisdictional discovery if a plaintiff shows a nonconclusory basis for asserting jurisdiction and a likelihood that additional supplemental facts will make jurisdiction proper." Intelsat Global Sales & Mktg., Ltd. v. Comm'ty of Yugoslav Posts Tels. & Tels., 534 F.Supp.2d 32, 34 (D.D.C.2008). "At minimum, a plaintiff must `allege some facts upon which jurisdiction could be found after discovery is completed.'" Id. (quoting Doe I v. State of Israel, 400 F.Supp.2d 86, 122 (D.D.C.2005)).

Under the FSIA, a court may entertain jurisdiction over a civil complaint directed against a foreign sovereign "only if the foreign state lacks immunity under the Act's prescriptions[.]" Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1544 (D.C.Cir.1987); see also 28 U.S.C. § 1604; Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 87-88 (D.C.Cir.2002) ("The original FSIA was not intended as human rights legislation .... Thus, no matter how allegedly egregious a foreign state's conduct, suits that did not fit into one of the statute's discrete and limited exceptions invariably were rejected."). The Act's exceptions allow a plaintiff to bring suit under certain conditions. 28 U.S.C. § 1605; see Republic of Austria v. Altmann, 541 U.S. 677, 699, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004) ("`[S]ubject-matter jurisdiction ... depends on the existence of one of the specified exceptions to foreign sovereign immunity.'" (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434-35, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989))). Doe bears the burden of showing that one of the exceptions under the FSIA constitutes a waiver of Afghanistan's sovereign immunity. See Jin, 475 F.Supp.2d at 61.

Doe invokes the noncommercial tort exception to the FSIA which dissolves immunity in any case "in which money damages are sought against a foreign state for personal injury or death ... occurring in the United States and caused by the tortious act or omission of that foreign state[.]" 28 U.S.C. § 1605(a)(5). Afghanistan argues that the noncommercial tort exception is inapplicable because the terrorism exception stated in 28 U.S.C. § 1605A(a)(1)² is the provision that exclusively "deals with ... the type of terrorist act that forms the basis for Doe's claims."³ (Def.'s Mem. at 5 (citing Persinger v. Islamic Republic of Iran, 729 F.2d 835, 843 (D.C.Cir.1984) ("When Congress uses explicit language in one part of a statute to cover a particular situation and then uses different language in another part of the same statute, a strong inference arises that the two provisions do not mean the same thing.")).) Afghanistan maintains that because § 1605A(a)(1) expressly addresses terrorist acts, see Mwani v. bin Laden, 417 F.3d 1, 15 n. 15 (D.C.Cir.2005), § 1605(a)(5) cannot cover similar claims. Alternatively, Afghanistan contends that even if Doe were to invoke the terrorism exception as a waiver of immunity, his complaint must be dismissed because § 1605A(a)(2)(A)(i)(I) requires that the foreign sovereign be designated as a state sponsor of terrorism, and the State Department has not classified Afghanistan as such.⁴ (Def.'s Mem. at 5.)

Section 1605(a)(5) is cast in general terms pertaining to all tort actions for money damages and seems facially to apply to Doe's factual allegations. See Persinger, 729 F.2d at 839-40 (citing H.R. Rep. No. 94-1487, at 20-21 (1976)). Doe persuasively argues that precluding him from bringing his action under § 1605(a)(5) would "result in a complete inability for U.S. citizens to bring tort claims against any foreign state arising from acts of terrorism other than the handful designated as state sponsors of terrorism." (Pls.' Opp'n to Def.'s Mot. to Vacate Default & Dismiss ("Pls.' Opp' n") at 9.) "[C]onstruction of a statute leading to unjust or absurd consequences should be avoided[,]" Quinn v. Butz, 510 F.2d 743, 753 (D.C.Cir.1975), and courts should not "ascribe to Congress errors that it clearly did not intend." Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1089 (D.C.Cir.1981) (Mikva, J., concurring). Thus, the plain language of the statute should not dictate forbidding Doe's suit under § 1605(a)(5), and the peculiar result that a construction barring the action would produce should counsel against it.

To move forward under § 1605(a)(5), Doe must show that Afghanistan's tortious conduct caused his injuries and that Afghanistan's actions were not discretionary, "i.e., not grounded in [its] social, economic, or political policies." In re Terrorist Attacks on Sept. 11, 2001, 392 F.Supp.2d 539, 554 (S.D.N.Y.2005). Doe claims that although...