Gill v. United States, Civil Action No. 19-12441-NMG

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtGORTON, J.
PartiesStephen Gill, Plaintiff, v. United States et al. Defendants.
Docket NumberCivil Action No. 19-12441-NMG
Decision Date29 January 2021

Stephen Gill, Plaintiff,
United States et al.

Civil Action No. 19-12441-NMG

United States District Court District of Massachusetts

January 29, 2021



This action arises out of the capital case brought before a United States military commission against Abd Al-Rahim Hussein Muhammed Al-Nashiri ("Al-Nashiri") for his alleged involvement in the attack on the USS COLE in October, 2000. It conjoins military and civilian law by questioning whether military commissions have the authority to seize, detain or imprison civilian witnesses, such as plaintiff Stephen Gill ("Gill" or "plaintiff"), to compel their testimony before the commission.

It is before this Court after transfer from the United States District Court for the District of Columbia by United States District Judge James E. Boasberg who considered this case and found that, for jurisdictional and venue purposes, most of the case should be in this Court. This Court now notes its own

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hesitancy to rule on the distinctions between our civilian and military court systems but, at the same time, is cognizant of a founding principle of our Republic that military authority has always been deemed subservient to civil authority.

Pending before this Court is the government's amended motion to dismiss plaintiff's amended complaint for lack of subject matter jurisdiction and failure to state a claim. For the reasons that follow, that motion will be allowed, in part, and denied, in part.

I. Background

A. The Facts

Gill is a civilian lawyer and resident of Massachusetts who formerly served as an officer in the Judge Advocate General Corps ("JAG") of the United States Navy. In January, 2015, he was on active duty and served as the legal advisor pro tempore for the Al-Nashiri military commission which had been convened in September, 2011. As the legal advisor, Gill reported to his superiors that certain federal employees were violating a Disqualification Order entered by the military judge, Colonel Vincent Spath ("the military judge"), which prohibited them from working on Al-Nashiri's case. Soon thereafter, in quick succession, Gill was reassigned to another military command, was discharged from active duty and resumed civilian status.

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In May, 2015, defense counsel for Al-Nashiri moved to dismiss the charges brought against his client and sought Gill's testimony at an evidentiary hearing before the commission. On September 7, 2016, Gill voluntarily traveled from Massachusetts to Virginia in his civilian capacity to proffer the requested testimony. At the conclusion of that session, Gill was informed by the military judge that he would need to return in October, 2016, to complete his testimony.

On or about October 13, 2016, Gill received a military commission subpoena ("the October subpoena") to appear in Virginia on October 17, 2016. On October 16, 2016, Gill mailed a written "application for relief" to quash the subpoena but received no response. Nonetheless, he did not appear so Military Judge Spath issued a "warrant of attachment," empowering the United States Marshals Service to procure Gill's presence before the commission.

The next day, Gill alleges that approximately 15 Deputy Marshals dressed in riot gear and five uniformed police officers of the Town of Marshfield

stormed Mr. Gill's home with assault rifles and hand guns drawn and pointed at Mr. Gill.

The officers, according to the complaint, handcuffed him, searched his person, "forcibly" shackled his waist and ankles, took his wallet and searched his residence. Gill contends that

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the officers then transported him to the United States District Courthouse in Boston, Massachusetts where he was detained in a holding cell before being transported to Logan Airport and escorted onto a flight to Reagan National Airport in the District of Columbia.

Gill was then transported to the Alexandria, Virginia County Detention Center and kept in a cell for the night. The next morning, a different group of Deputy Marshals transported him to the Mark Center in Alexandria, Virginia to appear before the military commission via video teleconference technology. Prior to testifying, Gill complained to the military judge that his seizure and detention were unlawful and rendered him incompetent to testify. Although the military judge ignored the complaint with respect to the legality of the seizure, he did administer a competency exam which Gill passed.

Thereafter, Gill resumed his testimony. During redirect examination by Al-Nashiri's defense counsel, a Federal Public Defender delivered a letter to the military commission which advised Gill of his right to counsel as a civilian subject to military detention. Rather than inform Gill of the letter, he asserts, the military judge instructed Al-Nashiri's defense counsel to withhold that information until the testimony was complete.

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At the conclusion of Gill's testimony, he was allegedly detained in a security office without food, money or a mobile phone for another two hours. After his repeated protests, Gill submits that he was provided a plane ticket back to Boston, Massachusetts and $300 in cash. Approximately ten hours later, he arrived at to his residence in Massachusetts. Gill contends that the entire experience caused him extreme emotional trauma, economic hardship and reputational damage.

B. Procedural History

In February, 2019, Gill filed an amended complaint in the United States District Court for the District of Columbia ("D.D.C.") against the United States of America and individual employees of various federal agencies. Gill asserted ten counts, two of which were against the individual defendants: a Fourth Amendment violation pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) ("Bivens claim") (Count I) and a petition for declaratory judgment (Count X). Seven of the remaining counts were brought against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680 ("FTCA"), and include state law claims for trespass, false arrest, false imprisonment, abuse of process and intentional infliction of emotional distress (Counts II-VIII). The final claim (Count IX) sought a declaratory judgment against the

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United States but Gill has since reported that he is no longer pursuing that claim.

In April, 2019, in a separate proceeding, the United States Court of Appeals for the District of Columbia ("D.C. Circuit") considered whether the military judge (Colonel Vincent Spath) had engaged in judicial misconduct as the military judge in Al-Nashiri's capital case. See In re Al-Nashiri, 921 F.3d 224 (D.C. Cir. 2019). It had been revealed that Colonel Spath had applied for a position with the Department of Justice ("DOJ") as an immigration judge. For that reason, Al-Nashiri petitioned the D.C. Circuit for a writ of mandamus, seeking vacatur of all orders issued by Spath on the ground that his application created a conflict of interest with respect to his role in Al-Nashiri's case because the DOJ has a vested interest in proceedings before military commissions. The Circuit Court found that Colonel Spath's job application "cast an intolerable cloud of partiality over his subsequent judicial conduct", causing it to vacate all of the orders entered by Spath between November, 2015, and April, 2019.

Defendants subsequently moved to dismiss the amended complaint. In December, 2019, United States District Judge James E. Boasberg of the D.D.C. granted the individual defendants' motion to dismiss (dismissing Counts I and X) on immunity grounds and transferred the remainder of the case to

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this Session of this Court. Following that transfer, the government filed the pending amended motion to dismiss.

Just before the transfer, Gill filed a related complaint in the Massachusetts Superior Court against the Town of Marshfield and the 11 Marshfield police officers involved in his arrest, asserting claims pursuant to 42 U.S.C. § 1983. Defendants removed the state court case in March, 2020, based on federal question jurisdiction. Gill subsequently moved to consolidate the pending cases which this Court did in May, 2020.

II. Motion to Dismiss

A. Legal Standard

To survive a motion under Fed. R. Civ. P. 12(b)(6), the subject pleading must contain sufficient factual matter to state a claim for relief that is actionable as a matter of law and "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible if, after accepting as true all non-conclusory factual allegations, the court can draw the reasonable inference that the defendant is liable for the misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011).

When rendering that determination, a court may not look beyond the facts alleged in the complaint, documents incorporated by reference therein and facts susceptible to

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judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011). A court also may not disregard properly pled factual allegations even if actual proof of those facts is improbable. Ocasio-Hernandez, 640 F.3d at 12. Rather, the relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw. Id. at 13.

B. Validity of the Subpoena and the Warrant of Attachment

The threshold question here is whether Colonel Spath, as a military judge presiding over the Al-Nashiri military commission, had the authority to issue a warrant of attachment to empower the United States Marshals Service to seize and detain a civilian witness to procure his appearance and compel his testimony before the commission.

Gill contends that the military judge lacked such authority, arguing that 1) the October subpoena was invalid, 2) no military judge, including Spath, has the authority to punish a civilian witness for disobeying a subpoena by ordering his...

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