Mohamed v. Jeppesen Dataplan, Inc., 08-15693.

Citation579 F.3d 943
Decision Date28 April 2009
Docket NumberNo. 08-15693.,08-15693.
PartiesBinyam MOHAMED; Abou Elkassim Britel; Ahmed Agiza; Mohamed Farag Ahmad Bashmilah; Bisher Al-Rawi, Plaintiffs-Appellants, v. JEPPESEN DATAPLAN, INC., Defendant-Appellee, United States of America, Intervenor-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Ben Wizner, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs-Appellants.

Daniel P. Collins, Munger, Tolles & Olson, Los Angeles, CA, for Defendant-Appellee.

Douglas N. Letter and Michael P. Abate, Civil Division, United States Department of Justice, Washington, D.C., for Intervenor-Appellee.

Andrew G. McBride, Wiley Rein, LLP, Washington, D.C., for Amicus The Foundation for the Defense of Democracies in Support of Appellees Supporting Affirmance.

Richard A. Samp, Washington Legal Foundation, Washington, D.C., for Amici Washington Legal Foundation and Allied Educational Foundation.

William J. Aceves, California Western School of Law, San Diego, CA, for Amici Redress and The International Commission of Jurists.

Natalie L. Bridgeman, Law Offices of Natalie L. Bridgeman, San Francisco, CA, for Amici Professors of Constitutional Law, Federal Jurisdiction, and Foreign Relations Law.

Jean-Paul Jassy, Bostwick & Jassy, Los Angeles, CA, for Amici Professors William G. Weaver and Robert M. Pallitto.

James M. Ringer, Clifford Change US, New York, NY, for Amici Commonwealth Lawyers Association and Justice.

David J. Stankiewicz, Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, New York, NY, for Amicus Former United States Diplomats.

Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding. D.C. No. 5:07-CV-02798-JW.

Before MARY M. SCHROEDER, WILLIAM C. CANBY, JR. and MICHAEL DALY HAWKINS, Circuit Judges.

ORDER

The Opinion filed April 28, 2009, slip op. 4919, is hereby amended as follows:

On page 4944, lines 2-6:

courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether its contents are secret within the meaning of the privilege.> is replaced with

courts must independently evaluate each claim of privilege to determine whether it implicates "secrets" within the meaning of the doctrine.8/>

Footnote reads as follows:

Reynolds left open the possibility that, in undertaking this evaluation, a court may determine that some evidence is so sensitive that it should uphold a claim of privilege without examining the evidence in chambers. See Reynolds, 345 U.S. at 10, 73 S.Ct. 528 ("[W]e will not go so far as to say that the court may automatically require complete disclosure to the judge before the claim of privilege will be accepted in any case."). We are satisfied, however, that no such showing has been made in this case at this stage in the litigation. Indeed, the government has readily made available, for in camera inspection, the classified declarations that form the basis of the present claim of privilege.>

On page 4947, lines 27-30:

Federal Rules nor Reynolds would permit us to dismiss this case at the pleadings stage on the basis of an evidentiary privilege that must be invoked during discovery or at trial. > is replaced with

Federal Rules nor Reynolds would permit us to dismiss this case for "failure to state a claim upon which relief can be granted," Fed. R. Civ. Pro. 12(b)(6), on the basis of an evidentiary privilege relevant, not to the sufficiency of the complaint, but only to the sufficiency of evidence later available to substantiate the complaint.9/>

Footnote reads as follows:

"Motion to Dismiss or, in the Alternative, for Summary Judgment," the district court did not grant summary judgment, but rather dismissal—and it could not have done otherwise. A party is entitled to summary judgment only if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact." Fed. R. Civ. Pro. 56(c). Here, because Jeppesen has not even answered the complaint, it is uncertain which allegations are in dispute, much less which disputes might raise genuine issues of material fact.

The procedural posture of this case thus differs fundamentally from that in Kasza, which involved a grant of summary judgment. See Frost v. Perry, 919 F.Supp. 1459, 1465-67 (D.Nev.1996), aff'd sub nom Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998) (granting summary judgment because "the privilege, as invoked, covered various items of discovery requested by Plaintiffs," including "various photographic exhibits" and "under seal ... affidavits," and therefore "Plaintiffs have failed to establish a genuine issue as to any material fact without running afoul of the military and state secrets privilege").>

Defendant-Appellee's Petition for Rehearing and Rehearing En Banc, filed June 12, 2009, and Intervenor-Appellee's Petition for Rehearing or Rehearing En Banc, filed June 12, 2009, remain pending before this court.

Future petitions for rehearing or rehearing en banc from this Order will not be entertained.

OPINION

HAWKINS, Circuit Judge:

Plaintiffs Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher al-Rawi ("plaintiffs"), appeal the dismissal of this action, brought under the Alien Tort Statute, 28 U.S.C. § 1350, against Jeppesen Dataplan, Inc. ("Jeppesen"), a wholly owned subsidiary of the Boeing Company. Before Jeppesen filed an answer to the complaint, the United States intervened, asserting that the state secrets privilege required dismissal of the entire action on the pleadings. The district court agreed and dismissed the complaint. On appeal, plaintiffs argue the district court misapplied the state secrets doctrine and erred in dismissing the complaint.

Concluding that the subject matter of this lawsuit is not a state secret because it is not predicated on the existence of a secret agreement between plaintiffs and the Executive, and recognizing that our limited inquiry under Federal Rule of Civil Procedure 12(b)(6) precludes prospective consideration of hypothetical evidence, we reverse and remand.

I. BACKGROUND
A. Factual Background

At this stage in the litigation, we "construe the complaint in the light most favorable to the plaintiff[s], taking all [their] allegations as true and drawing all reasonable inferences from the complaint in [their] favor." Doe v. United States, 419 F.3d 1058, 1062 (9th Cir.2005).

1. The Extraordinary Rendition Program

Plaintiffs allege that the United States Central Intelligence Agency ("CIA"), working in concert with other government agencies and officials of foreign governments, operated an "extraordinary rendition program" to gather intelligence by apprehending foreign nationals suspected of involvement in terrorist activities and transferring them in secret to foreign countries for detention and interrogation by United States or foreign officials. According to plaintiffs, this program has allowed agents of the United States government "to employ interrogation methods that would [otherwise have been] prohibited under federal or international law."

Citing publicly available evidence, plaintiffs, all foreign nationals, claim they were each processed through the extraordinary rendition program.

Plaintiff Agiza, an Egyptian national who had been seeking asylum in Sweden, was captured by Swedish authorities, transferred to American custody, and flown to Egypt. In Egypt, he was held for five weeks "in a squalid, windowless, and frigid cell," where he was "severely and repeatedly beaten" and subjected to electric shock through electrodes attached to his ear lobes, nipples, and genitals. Agiza was held in detention for two and a half years, after which he was given a six-hour trial before a military court, convicted, and sentenced to fifteen years in Egyptian prison. According to plaintiffs, "[v]irtually every aspect of Agiza's rendition, including his torture in Egypt, has been publicly acknowledged by the Swedish government."

Plaintiff Britel, a forty-year-old Italian citizen of Moroccan origin, was arrested and detained in Pakistan on immigration charges. After several months in Pakistani detention, Britel was transferred to the custody of American officials. These officials dressed Britel in a diaper and overalls, and shackled and blindfolded him for a flight to Morocco. Once in Morocco, he was detained incommunicado by Moroccan security services at the Temara prison. There, he was beaten, deprived of sleep and food, and threatened with sexual torture, including sodomy with a bottle and castration. After being released and re-detained, Britel was coerced into signing a false confession, convicted of terrorism-related charges, and sentenced to fifteen years in Moroccan prison.

Plaintiff Mohamed, a twenty-eight-year-old Ethiopian citizen and legal resident of the United Kingdom, was arrested in Karachi, Pakistan, on immigration charges. Mohamed was flown to Morocco under similar conditions, where he was transferred to the custody of Moroccan security agents. Moroccan authorities subjected Mohamed to "severe physical and psychological torture," including routinely beating him and breaking his bones. Authorities also cut him with a scalpel all over his body, including on his penis, and poured "hot stinging liquid" into the open wounds. He was also blindfolded and handcuffed while being made "to listen to extremely loud music day and night." After eighteen months in Moroccan custody, Mohamed was transferred back to American custody and flown to Afghanistan. There he was detained in a CIA "dark prison" where he underwent further torture, including being kept in "near permanent darkness" and subjected to loud noise, such as the screams of women and children, for twenty-four hours per day. His captors also deprived him of food. Eventually, Mohamed was transferred...

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