Munns v. Clinton

• Decision Date: 29 September 2011
• Docket Number: No. 2:10–cv–00681–MCE–EFB.,2:10–cv–00681–MCE–EFB.
• Citation: 822 F.Supp.2d 1048
• Parties: Mark MUNNS, et al., Plaintiffs, v. Hillary Diane Rodham CLINTON, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

822 F.Supp.2d 1048

Mark MUNNS, et al., Plaintiffs,

v.Hillary Diane Rodham CLINTON, et al., Defendants.

No. 2:10–cv–00681–MCE–EFB.

United States District Court, E.D. California.

Sept. 29, 2011.

William Wayne Palmer, Law Office of William W. Palmer, Sacramento, CA, for Plaintiffs.

Zachary Carl Richter, Govt., Siegmund Fred Fuchs, Govt., U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

MORRISON C. ENGLAND, JR., District Judge.

Plaintiffs Mark Munns and Christa Munns (acting as administrators of the estate of Joshua Munns), Dennis DeBrabander and Sharon DeBrabander (acting as administrators of the estate of John Young), and Lori Silveri (acting as administrator of the estate of John Cote) (collectively “Plaintiffs”) initiated this action against Defendants Hillary Diane Rodham Clinton, individually and in her official capacity as United States Secretary of State (hereafter “Clinton” or “Secretary”), and Jennifer Foo, individually and in her official capacity as an employee of the Office of the Secretary of State (hereafter “Foo”), (collectively “Defendants”) alleging causes of action arising out of the deaths of Joshua Munns, John Young and John Cote (“Decedents”). Presently before the Court are Defendants' Motions to Dismiss (ECF Nos. 19 and 21) all of Plaintiffs' claims against them in both their individual and official capacities. Also before the Court are an Objection and Motion to Strike Defendants' Motions to Dismiss (ECF No. 37) and a Request for Judicial Notice (ECF No. 38) filed by Plaintiffs. Defendants' Motions came on for hearing before the Court on June 23, 2011, at 2:00 p.m. For the following reasons, Defendants' Motions are GRANTED with leave to amend. Plaintiffs' Objection and Motion to Strike and Request for Judicial Notice are DENIED.

BACKGROUND ¹

Plaintiffs are the families of three men, Joshua Munns, John Young and John Cote, who were killed in Iraq in 2008 (“Decedents”). Decedents were employed by a private contractor, Crescent Security (“Crescent”), that performed security functions under contract with the United States Government.² The events underlying the Complaint were triggered when Crescent assigned Decedents and four other men to guard a one and one-half mile long military convoy traveling from Kuwait to Southern Iraq.

According to Plaintiffs, Crescent issued the men substandard equipment, ordered another security team that was supposed to assist in the duty to stand down, and failed to provide the men proper instructions or job guidelines. In addition, Iraqi security team members, who were also Crescent employees, failed to appear for the assignment, leaving only the seven men to guard the convoy.

While under Decedents' guard, the convoy stopped at an Iraqi checkpoint. After three to five minutes of waiting, a white pickup truck approached and shot at the rear vehicle, which was not occupied by any of the Decedents. Decedents themselves, however, were also stopped by Iraqi men in police uniforms. They were stripped of their communications gear and weapons, bound and forced into the backs of different vehicles. Plaintiffs allege one of the Iraqi officers was a former Crescent employee and that Crescent's Iraqi interpreter was also working with the group orchestrating the hijacking.

When the Iraqi men eventually received a phone call notifying them that the United States military was en route, the men packed up and left with Decedents as captives. Other individuals were left behind and were able to relay the aforementioned facts. Plaintiffs have since been told, among other things, that the kidnapping took place in full view of the United States military, but that the Government did nothing to intercede.

According to Plaintiffs, from this point forward, “federal officials who were assigned to assist the families while they sought the return of their adult children, such as Defendant Jennifer Foo, actually worked to impede the families' work and created ‘government policies' to block their efforts to save their sons.” Complaint, p. 7, ¶ 7. Members of the State Department, including Defendant Foo, also allegedly: 1) failed or refused to relay information to Plaintiffs; 2) advised members of the families they should not meet with an individual who had reportedly obtained information on the location and condition of the missing men; 3) refused to distribute or blocked the distribution of leaflets asking for information about the hostages; 4) told families the FBI was pursuing leads that would not be described; and 5) claimed to have relevant information that could not be relayed to Plaintiffs because it was “classified.”

More specifically, Plaintiffs allege, among other things, that they had collected funds and prepared 90,000 flyers (printed in English and Iraqi) for distribution in the Middle East. These flyers offered a reward for information pertaining to the missing men, but the State Department blocked their distribution.

In addition, though Plaintiffs were provided with audio and video “proofs of life,” the United States refused to make contact with the kidnappers under the policy that “America does not negotiate with terrorists.” Plaintiffs dispute whether the United States actually considers the kidnappers in this case to be “terrorists” or simply considers them “common criminals.”

After the families saw little progress in either the location or rescue efforts, the United States Drug Enforcement Administration (“DEA”) interceded in the matter on behalf of a DEA employee who was a family member of one of the missing men. The DEA determined that the kidnappers had given up trying to negotiate with the United States because the kidnappers believed they had no “negotiating partner.” As an apparent last resort, the kidnappers eventually cut off one of each Decedents' fingers, later obtained by the DEA, and still the United States would not negotiate. Decedents were thereafter brutally beaten, tortured and beheaded. Only then, after their deaths, did the United States finally negotiate for the return of Decedents' bodies.

Plaintiffs contend that, throughout this ordeal, they were provided very little information by either the United States Government or Crescent. Plaintiffs still have not been given employment contracts, life insurance information or other related employment documents. In addition, Plaintiffs allege Crescent has improperly withheld life insurance benefits that are due the families and has required the families to sign releases of liability in order to receive those funds. Plaintiffs believe they are entitled to these life insurance proceeds and potentially to back pay due the kidnapped men. According to Plaintiffs, the Secretary, for her part, has “refused to provide, or was incapable of providing, even the most basic information, such as copies of Crescent Security contracts, Lloyd's of London life insurance information” or other documents. Id., p. 11, ¶ 17.

In light of the lack of information received from the Government, Plaintiffs have purportedly had to rely on third parties for information. For example, Plaintiffs allege they heard rumors that the kidnapping may have been motivated by revenge for incidents that occurred as a result of the passage of the Coalition Provision Authority (“CPA”) Order 17, which is allegedly a State Department regulation creating absolute immunity for private contractors killing anyone in Iraq. Plaintiffs also garnered information from the book “Big Boy Rules, America's Mercenaries Fighting in Iraq,” by Steve Fainaru.

Ultimately, as a result of the above events, Plaintiffs initiated this suit alleging causes of action for: 1) declaratory relief; 2) Procedural Due Process Clause violations; and 3) violations of the Takings Clause of the United States Constitution. Plaintiffs seek damages and injunctive relief and ask the Court to make the following declarations:

Whether CPA (Coalition Provision Authority) Order 17, was and is a proper application of government authority under the United States Constitution when it provided for a complete waiver of all laws, including those of Iraq and those enacted by the United States Congress. Complaint, p. 15, ¶ 26(a).

Whether as a consequence of CPA Order 17, Iraq became a “free fire zone” where contractors were allowed to shot [ sic ] at anything with complete impunity t [ sic ] whenever they felt, in their sole discretion, physically threatened. Id., p. 16, ¶ 26(b).

Whether CPA Order 17 gave rise to and helped foster the contractor and subcontractor culture in Iraq, where companies like Crescent literally sprang up overnight and were nothing more than a folding table, some stationary, and a couple beat-up trucks with AK–47 machine guns, but sanctioned to do business on behalf of the United States and listed by the Secretary of State and Department of Defense as legitimate business entities. Id., p. 16, ¶ 26(c).

Whether the numbers and statistics have been so skewed throughout the Iraq conflict that no one in the Office of the Secretary State can really tell Plaintiffs how much money we spent and how many contractors employed by the United States have been lost; in essence, who is doing the fighting for the United States. Id., p. 16, ¶ 26(d).

[W]hat the parameters are of the “War on Terror” and who exactly the United Stats [ sic ] is fighting. Id., p. 17, ¶ 26(e).

[H]ow far federal immunity extends to a private contractor like Crescent or an American Citizen who is recruited and serves in this war under a private contract that is let through the Secretary of State. Further, what inalienable Constitutional rights are lost or given up by a private citizen, such as the Plaintiffs' sons, when he or she executes such a contract and whether it is a public document that should be made available to the families of those citizens and the public? Id., p. 17, ¶ 26(f).

Within the “War on Terror” how far does a family's Constitutional and Due Process Rights...