Macharia v. U.S.

Decision Date11 July 2003
Docket NumberNo. 02-5252.,02-5252.
Citation334 F.3d 61
PartiesMerania Muringu MACHARIA, et al., Appellants, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 99cv03274).

Philip M. Musolino argued the cause and filed the briefs for appellants.

Michael J. Ryan, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Robin M. Earnest, Assistant U.S. Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, and ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Appellants, a prospective class of more than 5,000 Kenyan citizens and businesses injured in the 1998 bombing of the United States Embassy in Nairobi, Kenya, sued the United States under the Federal Tort Claims Act alleging that the government negligently failed to secure the Embassy and to warn of a potential terrorist attack. Following limited jurisdictional discovery, the district court dismissed the complaint, finding that the discretionary function, foreign country, and independent contractor exceptions to the Federal Tort Claims Act's waiver of sovereign immunity bar appellants' claims. We affirm in all respects.

I.

At approximately 10:30 on the morning of August 7, 1998, an explosives-laden truck dispatched by the al Qaeda terrorist network approached the entrance to the rear parking lot of the United States Embassy in Nairobi, Kenya. An embassy guard, a Kenyan employed by UIIS, a security company working under contract with the State Department, refused to open the Embassy gate. Blocked from entering the compound, one of the two terrorists began shooting while the other threw a flash grenade at another guard. Unarmed and unable to notify the Embassy's detachment of United States Marines either by telephone or radio, the guards ran for cover. Although apparently still off-premises, the terrorists detonated their explosives, causing massive internal damage to the Embassy, killing forty-four Embassy employees and approximately 200 Kenyan citizens, injuring some 4,000 individuals, and causing the collapse of an adjacent building. Approximately nine minutes later, another al Qaeda terrorist detonated an explosives-laden truck some thirty-five feet from the outer wall of the United States Embassy in Dar Es Salaam, Tanzania. That attack killed twelve people and injured eighty-five.

Appellants, all Kenyan citizens and businesses injured in the Nairobi bombing, filed suit against the United States in the U.S. District Court for the District of Columbia alleging that government actions and inactions led to the bombing and exacerbated appellants' injuries. Brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., counts I and II of the complaint allege that the United States Embassy was inherently dangerous; that State Department employees knew or should have known about a likely attack on the Embassy and that despite this knowledge they failed to warn their superiors, the Embassy, and Kenyan citizens; that the State Department failed to provide properly trained security personnel to the Embassy and to take necessary security precautions to prevent an attack; and that as a result of these shortcomings, the Embassy had become a private and public nuisance. Counts I and II also seek to hold the United States liable for the negligence of the UIIS guards. Count III alleges that the government's security failures violated customary international law, the Kenyan Constitution, and the International Covenant on Civil and Political Rights (ICCPR). Count IV seeks formation of a constructive trust to hold any assets or funds seized by the United States from Osama bin Laden and al Qaeda for the benefit of plaintiffs and prospective class members.

Invoking the discretionary function and foreign country exceptions to the FTCA's limited waiver of sovereign immunity, 28 U.S.C. § 2680(a), (k), the government moved to dismiss. Before ruling on the government's motion, the district court allowed plaintiffs three months of jurisdictional discovery. See Macharia v. United States, No. 99-3274 (D.D.C. Mar. 26, 2001). During discovery, the government objected to plaintiffs' efforts to obtain information from any agency other than the State Department. The government also objected to any discovery on the merits. A magistrate judge sustained both objections, and the district court denied plaintiffs' motion for reconsideration. See Macharia v. United States, No. 99-3274 (D.D.C. Dec. 17, 2001).

Following completion of jurisdictional discovery, the district court dismissed the complaint. Macharia v. United States, 238 F.Supp.2d 13 (D.D.C.2002). Rather than "apply the heightened requirements of [Federal Rule of Civil Procedure] 12(b)(6) and treat all factual allegations — including those related to jurisdiction — in the complaint as true," id. at 21 (internal quotation marks omitted), the court treated the government's jurisdictional arguments as a "factual challenge," id. at 20, under Federal Rule of Civil Procedure 12(b)(1), and required plaintiffs to "demonstrate" "through testimony and affidavits" that the "case is properly before the court," id. at 21. Observing that plaintiffs "were afforded three months of discovery on the jurisdictional question," id., the court rejected plaintiffs' contention that it "should not dismiss the action pursuant to Rule 12(b)(1) because [they] have not had the opportunity to conduct sufficient jurisdictional discovery in this case," id. With respect to most allegations contained in counts I and II, the court found that "[t]he decisions made by [the United States] regarding the security of the Embassy and warnings of possible threats are clearly discretionary in nature and grounded in policy and therefore[] do not fall within the FTCA's waiver of sovereign immunity." Id. at 26. The district court dismissed all claims based on the alleged negligence of the UIIS guards under the foreign country and independent contractor exceptions to the FTCA. Id. at 26-28. As to count III, the court held that sovereign immunity bars plaintiffs' Kenyan Constitution and ICCPR claims, and that plaintiffs had failed to allege a claim under customary international law. Id. at 28-31. Having dismissed plaintiffs' substantive claims, the district court dismissed count IV, explaining that "a constructive trust is not an independent cause of action." Id. at 31.

Plaintiffs now challenge the district court's discovery rulings and its dismissal of their complaint. Our review of the district court's dismissal of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) is de novo, see Stokes v. Cross, 327 F.3d 1210, 1214 (D.C.Cir. 2003); we review the district court's discovery rulings for abuse of discretion, see Goodman Holdings v. Rafidain Bank, 26 F.3d 1143, 1147 (D.C.Cir.1994).

II.

The FTCA authorizes district courts to hear suits for money damages against the United States "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government ... if a private person ... would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). The Act's waiver of sovereign immunity has various exceptions, however. We agree with the district court that three of those exceptions — discretionary function, foreign country, and independent contractor — bar appellants' claims under counts I and II.

Discretionary Function Exception

The FTCA's discretionary function exception bars claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). In United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 1273-74, 113 L.Ed.2d 335 (1991), the Supreme Court established a two-part test for determining whether the discretionary function exception applies in a particular case. First, because "[t]he exception covers only acts that are discretionary in nature, acts that involve an element of judgment or choice," id. at 322, 111 S.Ct. at 1273 (internal quotation marks omitted), Gaubert's first step requires that we determine whether any "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow," id. If one does, "the employee has no rightful option but to adhere to the directive." Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958-59, 100 L.Ed.2d 531 (1988). Under Gaubert's second step, which applies when there is no "federal statute, regulation, or policy" and when the "challenged conduct involves an element of judgment," id., the court must decide "whether th[e] judgment is of the kind that the discretionary function exception was designed to shield," id. "Because the purpose of the exception is to prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort," the Supreme Court explained, "when properly construed, the exception protects only governmental actions and decisions based on considerations of public policy." Gaubert, 499 U.S. at 323, 111 S.Ct. at 1273-74 (internal quotation marks and citations omitted).

In this case, even after several months of discovery, appellants failed to establish, as Gaubert's first step requires, the existence of a "federal statute, regulation, or policy" that applies to any of the government's allegedly negligent conduct, including the government's alleged failure to secure the Embassy and...

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