El-Shifa Pharmaceutical Industries Co. v. U.S.

Decision Date29 November 2005
Docket NumberNo. Civ.A. 01-731(RWR).,Civ.A. 01-731(RWR).
PartiesEL-SHIFA PHARMACEUTICAL INDUSTRIES COMPANY, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Columbia

Daniel H. Bromberg, Quinn, Emanuel, Urquhart, Oliver & Hedges, LLP, Redwood Shores, CA, and Stephen J. Brogan, Jones, Day, Washington, DC, for Plaintiffs.

Paul F. Figley, U.S. Department of Justice, Washington, DC, for Defendant.


ROBERTS, District Judge.

Plaintiffs, El-Shifa Pharmaceutical Industries Company ("El-Shifa"), a stock corporation located in Sudan, and Salah El Din Ahmed Mohammed Idris, owner of the El-Shifa pharmaceutical plant, bring this action against the United States for negligence, trespass, defamation and violation of the laws of nations stemming from the destruction of the plant, its fixtures, equipment and inventory with cruise missiles launched from U.S. naval vessels stationed in international waters. Defendant has filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Because plaintiffs have failed to show that the United States has waived its sovereign immunity from suit over these claims, which likely present a non-justiciable political question in any event, defendant's motion to dismiss will be granted.


On or about August 20, 1998, cruise missiles launched from United States naval vessels stationed in international waters destroyed the El-Shifa plant located in North Khartoum, Sudan. (Compl. ¶ 21.) The U.S. government stated that it carried out the attack in response to the bombings earlier that month of the U.S. embassies in Kenya and Tanzania by terrorists under the direction of Osama bin Laden. (Id. ¶ 22.) On the day of the attack, President Clinton, in a televised address, described the El-Shifa pharmaceutical plant as a "chemical weapons-related facility." (Id. ¶ 27(a).)

Plaintiffs allege that other U.S. officials, including Secretary of State Madeline Albright, made claims that the El-Shifa plant manufactured chemical weapons. (Id. ¶¶ 27(b)-(c).) Plaintiffs further contend that the determination that El-Shifa was involved with chemical weapons production resulted from negligent testing of soil samples from around the plant, which concluded that the samples contained particular chemicals related to chemical weapon manufacturing. (Id. ¶¶ 32-33.) The complaint alleges that U.S. officials also claimed that the El-Shifa plant was a terrorist base of operations and was associated with the Osama bin Laden network. (Id. ¶ 43.) Finally, the complaint alleges that U.S. newspapers and other press reported that the principal owner of El-Shifa, Salah El Din Ahmad Mohammed Idris, had ties to Osama bin Laden and the Islamic Jihad. (Id. ¶ 66.)

Four days after the attacks on the plant, the U.S. government froze $24 million in assets held by Idris in a bank located in the United States. (Id. ¶ 70.) Plaintiffs filed this action against the United States, citing mounting evidence that the attack was a grievous mistake (Compl.¶ 74-82) and claiming negligence and trespass under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) (2000), defamation and a violation of the law of nations. (Id. ¶¶ 88-116.) The government filed a motion to dismiss for lack of subject matter jurisdiction.


Under Rule 12(b)(1), "the plaintiff[] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction." Biton v. Palestinian Interim Self-Gov't Auth., 310 F.Supp.2d 172, 176 (D.D.C.2004); Corel Corp. v. United States, 165 F.Supp.2d 12, 21 (D.D.C.2001). In deciding a motion to dismiss, a court must draw all inferences from the facts alleged in the complaint in the plaintiff's favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C.Cir.1998).


The government argues that this court lacks subject matter jurisdiction because the United States has not waived its sovereign immunity from suit for the claims plaintiff has alleged. The United States, as sovereign, is immune from suit absent its explicit consent to be sued. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981); Kugel v. United States, 947 F.2d 1504, 1506 (D.C.Cir.1991). A waiver of "sovereign immunity must be unequivocally expressed in statutory text" and will be "strictly construed, in terms of its scope, in favor of the sovereign." Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996); see also Cummings v. Dep't of the Navy, 279 F.3d 1051, 1055 (D.C.Cir.2002).

The FTCA grants federal courts jurisdiction over claims 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 [g]overnment while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). This waiver, however, is subject to a number of specific exceptions. See 28 U.S.C. § 2680; see also Industria Panificadora, S.A. v. United States, 763 F.Supp. 1154, 1156 (D.D.C.1991), aff'd, 957 F.2d 886 (D.C.Cir.1992)(holding that "[i]f a claim falls within any exception to the FTCA, sovereign immunity has not been waived and the court is without jurisdiction to hear the case").

In its motion to dismiss, the government argues that the discretionary function exception bars plaintiffs' claims under the FTCA.1 The discretionary function exception exempts from coverage of the FTCA:

[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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). The exception applies only to employee acts that involve an element of judgment or choice. United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). Moreover, "`even if the challenged conduct involves an element of judgment,' that judgment must be `of the kind that the discretionary function was designed to shield.'" Sloan v. U.S. Dep't of Hous. & Urban Dev., 236 F.3d 756, 760 (D.C.Cir.2001) (quoting Gaubert, 499 U.S. at 322-23, 111 S.Ct. 1267). Gaubert noted that the exception was designed 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.'" Gaubert, 499 U.S. at 323, 111 S.Ct. 1267 (quoting United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)). Therefore, "when properly construed, the exception `protects only governmental actions and decisions based on considerations of public policy.'" Id. (quoting Berkovitz v. United States, 486 U.S. 531, 537, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)).

In Saltany v. Reagan, 702 F.Supp. 319 (D.D.C.1988), aff'd in relevant part, rev'd in part, 886 F.2d 438 (D.C.Cir.1989), residents of Libya sued to recover damages for death, personal injury and the destruction of property resulting from U.S. military air strikes on targets in Libya ordered by President Reagan. Plaintiffs asserted jurisdiction on various grounds including the FTCA. Saltany, 702 F.Supp. at 320. The court dismissed the complaint for lack of subject matter jurisdiction, concluding that none of the statutory provisions relied upon, including the FTCA, waived the United States' sovereign immunity. Id. at 321 n. 4 (holding that "[t]he Federal Tort Claims Act expressly preserves the sovereign immunity of the United States for acts of its officials that involve the exercise of discretion"). In Industria Panificadora, the court held that the discretionary function exception applied to preclude challenges to executive branch decisions concerning the numbers of military personnel to be utilized, their deployment and the kinds of orders to be issued during the American military invasion of Panama. 763 F.Supp. at 1158.

Here, the President chose to deploy military personnel to take military action against targets in Sudan. As Commander in Chief of the armed forces, the President of the United States is authorized, but not required, to order military units into action. See U.S. Const. art. II, § 2; see also Saltany, 702 F.Supp. at 321 (stating that the President "acted with absolute immunity from liability in private civil suits for damages" when he ordered military units into action in his capacity as Commander in Chief of the armed forces). The President's decision was based upon a judgment — whether inaccurate or not — that the El-Shifa plant posed a threat to the national security of the United States. Saltany, 702 F.Supp. at 321. This decision was a policy judgment protected by the discretionary function exception which renders the United States absolutely immune from suit for this decision. See Saltany, 702 F.Supp. at 321-22; Industria Panificadora, 763 F.Supp. at 1158.

Plaintiffs argue that their actions for negligence and trespass do not fall within the discretionary function exception to the FTCA because their complaint "challenge[s] the negligent and reckless analyses of the soil sample and other evidence that led the government to conclude that the El-Shifa plant was producing materials for chemical weapons and to target the plant for destruction." (Pls.' Mem. in Opp. to Mot. to Dismiss ("Pls.' Mem.") at 16.) They argue that these determinations were "factual in nature and did not involve the exercise of any policy judgment." Id.

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