Harbury v. Hayden, Civil Action No. 96-438(CKK).

Decision Date01 August 2006
Docket NumberCivil Action No. 96-438(CKK).
Citation444 F.Supp.2d 19
PartiesJennifer K. HARBURY, on her own behalf and as administratrix of the Estate of Efrain Bamaca-Velasquez, Plaintiff, v. Michael V. HAYDEN, Director of the Central Intelligence Agency, et al., Defendants.
CourtU.S. District Court — District of Columbia

Carl L. Messineo, Mara Elizabeth Verheyden-Hilliard, Partnership for Civil Justice, Inc., Maureen F. Del Duca, Federal Communications Commission, Washington, DC, Jennifer K. Harbury, Cambridge, MA, for Plaintiff.

Lisa Sheri Goldfluss, Robert Craig Lawrence, Kimberly Nickelson Tarver, U.S. Attorney's Office, Washington, DC, for Defendants.


KOLLAR-KOTELLY, District Judge.

Plaintiff Jennifer K. Harbury brought this action on her own behalf and as administratrix of the estate of her deceased husband, Efrain Bamaca-Velasquez ("Bamaca"), on March 7, 1996 against the Central Intelligence Agency ("CIA"), the Department of State ("State"), and the National Security Council ("NSC"), as well as numerous named individual employees within each of those agencies. Plaintiffs Complaint, as amended, included twenty-eight (28) counts alleging violations variously of constitutional law, international law, and common law arising from the alleged imprisonment, torture, and death in Guatemala of her husband, a guerrilla rebel leader in the Guatemalan resistance movement in the early 1990s. See Pl.'s Second Am. Compl. ¶¶ 103-244.1 Following a series of opinions by this Court, the United States Court of Appeals for the District of Columbia Circuit, and the Supreme Court, six counts in Plaintiff's Second Amended Complaint remain viable—Counts 18-19 (intentional infliction of emotional distress), Counts 20-22 (negligent supervision), and Count 28 (emotional distress/loss of companionship).

Currently before the Court is Defendant's Motion to Dismiss All Remaining Counts of the Complaint Pursuant to Federal Rule of Civil Procedure 12(h)(3) (hereinafter, "Defendant's Motion to Dismiss"), which contends that this Court lacks subject matter jurisdiction over Plaintiffs action following the Supreme Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004)—a ruling that held that the Federal Tort Claims Act's ("FTCA") "foreign country exception," see 28 U.S.C. § 2680(k), "bars all claims based on any injury suffered in a foreign country regardless of where the tortious act or omission occurred." Sosa, 542 U.S. at 712, 124 S.Ct. 2739, 159 L.Ed.2d 718. Upon a searching examination of Defendant's motion, Plaintiff's Opposition, Defendant's Reply, Plaintiff's Surreply, Defendant's Surrebuttal, the relevant case law, and the entire record herein, the Court shall grant Defendant's-Motion to Dismiss and shall dismiss all counts remaining in Plaintiffs action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).


Given that the basic facts and allegations of this case have been fleshed out in great detail in previous decisions relating to this case, see, e.g., Christopher v. Harbury, 536 U.S. 403, 406-410, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002), the Court shall only briefly summarize the relevant background in this Memorandum Opinion.2 Plaintiff Jennifer K. Harbury, a United States citizen, is the widow of Efrain Bamaca-Velasquez, a Guatemalan citizen and rebel leader in the Guatemalan National Revolutionary Union ("U.R.N.G.") who vanished in his own country in March 1992. See Pl.'s Second Am. Compl. ¶¶ 9, 33-34. According to Plaintiff's allegations, Bamaca was captured by Guatemalan army forces, including officers who were trained in the United States and paid/used as informants by the CIA. Id. ¶¶ 35-42, 46-47. Bamaca was then summarily executed on orders of the same Guatemalan officers affiliated with the CIA, id. ¶¶ 48-49, sometime before September 1993, id. ¶¶ 66, 84.

Plaintiff asserts that the CIA knew as early as March 18, 1992 that the Guatemalan army had captured Bamaca alive and shared this information with both the White House and the State Department. Id. ¶ 35. However, when Plaintiff sought aid from the State Department in the search for her husband, officials therein "intentionally misled" Plaintiff, by "deceptive statements and omissions, into believing that concrete information about her husband's fate did not exist because they did not want to threaten their ability to obtain information from Mr. Bamaca through his detention and torture." Id. ¶ 67. Throughout the period stretching from 1992 through 1995, Plaintiff was in frequent contact with the State Department, seeking to gain any information relating to her husband and participating in various hunger strikes to focus public attention on the issue. Id. ¶¶ 56-68, 70-71, 75, 80, 83. Plaintiff finally learned of her husband's death in March 1995—nearly one and a half years after his apparent passing—when a congressman publicly announced that Bamaca had been killed on the orders of a Guatemalan army colonel who was also a paid contractor of the CIA. Id. ¶ 91.

A year later, in March 1996, Plaintiff brought the present suit before this Court against the CIA, the State Department, the NSC, and various members of each agency in their official and individual capacities. See generally Compl. Plaintiff's Second Amended Complaint, which, is currently the controlling document in this case, listed twenty-eight (28) causes-of-action under federal, state, and international law. Following a series of decisions, such as this Court's March 23, 1999 Memorandum Opinion and Order, see Harbury v. Deutch, No. 96-00438(CKK), 1999 WL 33456919 (D.D.C. Mar. 23, 1999), aff'd in part, reed in part, 233 F.3d 596 (D.C.Cir. 2000), aff'd 536 U.S. 403, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (affirming the district court opinion in full, reversing the D.C. Circuit's reversal-in-part), and this Court's March 9, 2000 Memorandum Opinion and Order, see Harbury v. Deutch, Civ. No. 96-438 (D.D.C. Mar. 9, 2000), only six (6) counts remain presently viable in this case—Counts 18-22, and Count 28. These remaining counts may be grouped into two major categories. First, Plaintiff has alleged common law torts invoking the Federal Tort Claims Act, 28 U.S.C. §§ 2401(b) and 2675, (1) on behalf of herself and her husband's estate against the CIA defendants for intentional infliction of emotional distress by causing and conspiring to cause Bamaca's imprisonment, torture, and execution, see Pl.'s Second Am. Compl. ¶¶ 196-201 (Counts 18-19); and (2) on behalf of her husband's estate against the CIA defendants for negligent supervision resulting in his false imprisonment, assault and battery, and wrongful death, id. ¶¶ 202-216 (Counts 20-22). Second, Plaintiff has bought a tort claim said to arise under "international law, including the law of war" against the CIA defendants on behalf of herself and her husband's estate, id. ¶¶ 241-244 (Count 28). Given concerns regarding the scope and clarity of Count 28, the Court ordered and Plaintiff provided a "Submission of a More Detailed Statement Regarding Count 28 of Her Complaint" on April 19, 1999. See Pl.'s Submission of Detailed Stmt. re: Count 28 at 1-7.

Importantly, on March 31, 2000, the Attorney General certified that the seventeen (17) individually-sued federal defendants were acting within the scope of their employment with respect to the incidents alleged in Plaintiff's Second Amended Complaint. See Cert. of Mark E. Nagle on behalf of the Attn'y Gen., attached to Defs.' Suppl. Mot. to Dismiss (Apr. 3, 2000). By operation of 28 U.S.C. § 2679(d)(4), the so-called Westfall Act, Plaintiff's action became one against the United States as the sole party defendant. Pursuant to 28 U.S.C. § 2679(b)(1) ("exclusiveness of remedy"), Plaintiff's action— from that point forward—became governed exclusively by the FTCA, including the limitations and exceptions to the waiver of sovereign immunity set forth in that statutory scheme.

Concurrent with the Attorney General's certification, Defendant filed a supplemental motion to dismiss in this case. Through a Memorandum Opinion and Order dated March 13, 2001, this Court denied without prejudice the Government's supplemental motion seeking dismissal on the basis of the discretionary function and independent contractor exceptions to the FTCA, and denied without prejudice the Government's motion seeking dismissal on the basis of the political question doctrine and the "foreign country exception" to the FTCA, 28 U.S.C. § 2680(k) (excepting from FTCA jurisdiction "[a]ny claim arising in a foreign country"). See Harbury v. Deutch, Civ. No. 96-438(CKK) (D.D.C. Mar. 13, 2001) (memorandum opinion and order denying Government's supplemental motion to dismiss). In rejecting the "foreign country exception" as the basis for dismissal, the Court relied on the D.C. Circuit's decision in Sami v. United States, 617 F.2d 755 (D.C.Cir.1979), emphasizing that "the United States enjoys no exemption from liability `for acts or omissions occurring here which have their operative effect in another country.'" Id. at 762 (quoting Sami, 617 F.2d at 762). Pursuant to Sami, which was then controlling precedent, the Court therefore found that "to the extent Harbury alleges tortious acts which occurred in the United States, though their effect might have been felt in Guatemala, these are not covered by the foreign country exception." Id.; see also id. at 763 n. 11 (noting that the "foreign country exception" also does not bar "those acts occurring here which [Harbury] alleges took effect here, such as the acts allegedly occasioning her claim of intentional infliction of emotional distress").

The United States Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), issued on June 29, 2004, specifically rejected the ...

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