Manning v. Esper

Decision Date22 January 2019
Docket NumberCivil Action No. 12-1802 (CKK)
PartiesSHAWN NELSON MANNING, et al., Plaintiffs, v. MARK T. ESPER, Secretary of the Army, et al., Defendants.
CourtUnited States District Courts. United States District Court (Columbia)

SHAWN NELSON MANNING, et al., Plaintiffs,
v.
MARK T. ESPER, Secretary of the Army, et al., Defendants.

Civil Action No. 12-1802 (CKK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

January 22, 2019


MEMORANDUM OPINION

On November 5, 2009, an act of domestic terrorism killed or injured numerous military servicemembers and civilians at Fort Hood. Many of those harmed by the attack, including family members, now attempt to recover damages from Major Nidal Hasan,1 the convicted shooter, as well as from the estate of Anwar al-Aulaqi, the alleged co-conspirator. Plaintiffs also attempt to hold certain government officials liable in either their official or personal capacities.2

The Secretary of the Army, the Secretary of Defense, and the Director of the Federal Bureau of Investigation ("FBI"), collectively "Federal Defendants,"3 move to dismiss Plaintiffs' claims against them in their official capacities pursuant to Federal Rules of Civil Procedure

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12(b)(1), (3), and (6). As Federal Defendants explain in their "Statement of Interest," they also take the opportunity to respond to claims solely against certain unnamed federal officials, John Does #1 through #6, who were sued only in their personal capacities. See Fed. Defs.' Mot. to Dismiss, ECF No. 77 ("Fed. Defs.' Mot."), at 2 n.3 (citing, e.g., 28 U.S.C. § 517; Falkowski v. EEOC, 783 F.2d 252, 253 (D.C. Cir. 1986) (per curiam)). The Court shall refer to the Federal Defendants and the Doe Defendants collectively as the "Government Defendants." Federal Defendants' motion does not respond to claims against the other two Defendants, Major Hasan and Nasser al-Aulaqi, who allegedly represents Anwar al-Aulaqi's estate. Accordingly, this Memorandum Opinion shall address only the claims against the Government Defendants.

Upon consideration of the pleadings,4 the relevant legal authorities, and the record as a whole, the Court GRANTS Federal Defendants' [77] Motion to Dismiss.5 All of the claims against Government Defendants shall be dismissed; some of those dismissals shall be without prejudice, as specified below. With this decision, the Court is not ruling on the merits of any of Plaintiffs' claims.

Summary of Ruling

The Court shall dismiss all claims against Federal Defendants for lack of subject-matter jurisdiction. Each Plaintiff's claims against Federal Defendants shall be dismissed without

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prejudice for failure to name the United States as a defendant. Alternatively, certain Plaintiffs' claims against Federal Defendants shall be dismissed without prejudice for failure to exhaust remedies or because of the exclusive-remedy bar under the Federal Employees' Compensation Act ("FECA"). Prejudice shall attach to the dismissal of other Plaintiffs' claims against Federal Defendants under the Feres doctrine.

Each Plaintiff's claims against Doe Defendants shall be dismissed without prejudice for failure to serve them.

To reiterate, with this decision, the Court is not ruling on the merits of any of Plaintiffs' claims.

I. BACKGROUND

A. Factual Background

Taking the allegations in the Amended Complaint as true for purposes of this motion, the Court shall summarize the sad and horrific facts of some relevance here. On November 5, 2009, Major Nidal Hasan, a then-practicing psychiatrist in the U.S. Army, opened fire at Fort Hood in Texas. 1st Am. Compl., ECF No. 22 ("Am. Compl."), ¶¶ 2, 29-30, 58, 170. Motivated by "radical Islamist" ideology, Major Hasan's shout of "Allah Akbar" expressly invoked the same "rallying cry" used on 9/11 and in other jihadist attacks. Id. ¶¶ 30, 170.6 This carefully planned shooting spree claimed the lives of fourteen people, inflicted gunshot wounds on thirty-two more, and visited physical and nonphysical injuries on a host of others, including family members of those harmed at the scene. Id. ¶¶ 29-30, 127-68.

Major Hasan had communicated about jihad with Anwar al-Aulaqi, a leading al-Qaeda operative whose activities included recruiting Americans to carry out domestic attacks. Id. ¶¶ 5-

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6, 22, 74, 85, 171. Through Major Hasan's comments during his military medical training, and through the FBI's review of his emails, the Army and FBI were aware of his extremist views. E.g., id. ¶¶ 56, 67. Rather than taking precautions based on these views, however, or disciplining Major Hasan for his substandard medical performance, the Army continued to advance his military and medical careers, and the FBI minimized its investigation of him. E.g., id. ¶¶ 56, 61, 69. Each agency's actions were motivated by "political correctness and . . . ethnic and religious preferences" that overrode their responsibility for safety and security. Id. ¶ 65 (Army); see also, e.g., id. ¶¶ 69, 83 (FBI).

B. Procedural Posture

This suit was filed on November 5, 2012, by certain individuals injured, and on behalf of other individuals killed in the attack, as well as their family members. Compl., ECF No. 1. The First Amended Complaint, dated April 30, 2013, contains nine tort and related claims against Major Hasan, in his personal capacity, and/or Nasser al-Aulaqi, as personal representative of the estate of Anwar al-Aulaqi. Am. Compl. ¶¶ 171, 181-239 (including, e.g., claim for conspiracy to deprive civil rights pursuant to 42 U.S.C. § 1985(3)). Anwar al-Aulaqi was evidently killed by an American drone strike in 2011. Id. ¶ 5.

Plaintiffs also plead eleven tort, constitutional, and Administrative Procedure Act ("APA") claims against a combination of Federal Defendants, named only in their official capacities, and six unnamed John Doe Defendants, sued exclusively in their personal capacities. Id. ¶¶ 172-80; 240-331. Each Doe Defendant was allegedly an employee of the U.S. Army, the U.S. Department of Defense, and/or the FBI. Id. ¶ 2.

Plaintiffs have experienced difficulties effectuating, or perfecting, service of process on at least some of the defendants. For their part, Federal Defendants do not dispute proper service upon

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themselves. And the Court shall reserve for another day the issue of service on Major Hasan and Nasser al-Aulaqi, who are not presently moving for dismissal.

The Court is currently concerned with Doe Defendants. On February 11, 2013, this Court prompted Plaintiffs to comply with Federal Rule of Civil Procedure 4(m) by filing proof of service upon Doe Defendants, or explaining why they had not done so, by March 5, 2013. Order, ECF No. 15. At Plaintiffs' request, the Court extended that deadline until June 5, 2013. Min. Order of Feb. 13, 2013. That deadline came and went amidst briefing of Federal Defendants' motion to stay proceedings during Major Hasan's court martial, which stay the Court ultimately granted on January 30, 2014. See Order, Manning v. McHugh, Civil Action No. 12-1802 (CKK), 2014 WL 12789614 (D.D.C. Jan. 30, 2014), ECF No. 50. In the meantime, the parties vigorously litigated not only that motion but also Plaintiffs' request for leave to conduct expedited discovery of the identities of Doe Defendants, in order to facilitate service upon them. See, e.g., Pls.' Opp'n to Mot. to Stay and Cross-Mot. for Leave to Conduct Expedited Disc., ECF No. 30, at 17-18. In light of the concerns with unlawful command influence that warranted the stay, the Court also denied without prejudice Plaintiffs' motion for expedited discovery. Manning, Civil Action No. 12-1802 (CKK), 2014 WL 12789614, at *5. The Court expressly permitted Plaintiffs to renew their request "once the stay in this matter is lifted," at which time "the Court will consider the parties' arguments for expedited discovery on the merits." Id.

On August 23, 2013, Major Hasan was convicted in a military court of thirty-two specifications of attempted murder and thirteen specifications of premeditated murder. Manning, Civil Action No. 12-1802 (CKK), 2014 WL 12789614, at *2. Post-conviction proceedings lasted much longer than the Court, or the parties, envisioned. Still, at Federal Defendants' request and over Plaintiffs' repeated objections, the Court maintained the stay to avoid any risk of unlawful

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command influence and to spare the inefficiencies of piecemeal proceedings. See, e.g., Order, ECF No. 69; Manning, Civil Action No. 12-1802 (CKK), 2014 WL 12789614.

On March 29, 2017, when Federal Defendants at last indicated that "the Commanding General, III Corps and Fort Hood took final action on the military court-martial of United States v. Hasan," the Court lifted the stay with Federal Defendants' consent. Status Report, ECF No. 73; Min. Order of Mar. 31, 2017. The parties agreed to brief Federal Defendants' forthcoming dispositive motion. Joint Status Report and Proposed Briefing Schedule, ECF No. 74. As of the Court's November 2018 inquiry, Major Hasan's appellate post-conviction proceedings were still in progress, but the Court understands that the risk of unlawful command influence is past. See Joint Notice of Factual, Procedural or Case Law Developments, ECF No. 85; Min. Order of Mar. 31, 2017 (construing [73] Status Report as indication of "final action by the convening authority").

Federal Defendants' pending [77] Motion to Dismiss includes a Statement of Interest regarding the claims against Doe Defendants, who still have not yet been identified. See Fed. Defs.' Mot. at 2 n.3. Federal Defendants make clear that they do not mean to enter an appearance on behalf of those Doe Defendants. Id. The Court shall take this statement as a guide to certain arguments that Doe Defendants might raise if they were to appear. Although Federal Defendants do not expressly object to the lack of service on Doe Defendants, they reserve certain arguments along those lines. See id. (offering, for example, "insufficiency of service of process" and "failure to complete service of process in a timely manner"). Despite the lifting of the stay, and the identification of these potential defenses in the briefing, Plaintiffs have not renewed their motion for expedited discovery of...

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