Warfaa v. Ali
| Decision Date | 29 July 2014 |
| Docket Number | No. 1:05cv701 LMB/JFA.,1:05cv701 LMB/JFA. |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Farhan Mohamoud Tani WARFAA, Plaintiff, v. Yusuf Abdi ALI, Defendant. |
Joseph Peter Drennan, Alexandria, VA, for Defendant.
Before the Court is defendant's Renewed Motion to Dismiss. For the reasons that follow, in addition to the reasons stated in open court, defendant's motion will be granted in part and denied in part.
This civil action arises out of events that occurred in Somalia during the tumultuous regime of Mohamed Siad Barre. Plaintiff Farhan Mohamoud Tani Warfaa (“plaintiff” or “Warfaa”) is a Somali national who was allegedly tortured based on his membership in a clan opposed to Barre's regime. Defendant Yusuf Abdi Ali (“defendant” or “Ali”) is a former officer of the Somali National Army, now living in the United States, who allegedly directed and participated in plaintiff's torture.
The facts alleged in the Amended Complaint are as follows. In 1987, plaintiff was a farmer living in northern Somalia. Am. Compl. ¶ 17. At that time, defendant was a Colonel in the Somali National Army, serving in the Fifth Battalion, which operated out of the nearby city of Gebiley, Somalia. Id. ¶¶ 6, 15. In December 1987, pursuant to defendant's orders, Fifth Battalion soldiers abducted plaintiff from his home at gunpoint and took him to the Army's regional headquarters. Id. ¶¶ 17–18. Over the course of the next three months, plaintiff's arms and legs were bound, he was stripped naked, and he was beaten to the point of unconsciousness at least nine times. Id. ¶¶ 20–24. Defendant was present and witnessed at least some of plaintiff's torture. Id. ¶ 25. In March 1988, defendant personally interrogated plaintiff, at the end of which defendant took out a pistol and shot plaintiff five times. Id. ¶ 26. Assuming plaintiff was dead, defendant ordered his subordinates to bury the body. Id. The soldiers quickly discovered that plaintiff was not dead, however, and they agreed to release him in exchange for a significant bribe. Id. ¶ 27.
In 1990, anticipating the overthrow of Barre's regime, defendant entered Canada through the United States. Id. at 17. In 1992, Canada deported defendant back to the United States for gross human rights abuses in Somalia. Id. ¶ 8. In 1994, the United States similarly threatened defendant with deportation, and he voluntarily departed for Somalia in July 1994. Id. Defendant nonetheless returned to the United States in December 1996 and has been living here ever since as a lawful resident alien.See id.
On November 10, 2004, two plaintiffs, proceeding anonymously as Jane and John Doe, filed suit against defendant in federal court. Pursuant to an Order of the Court, issued on April 29, 2005, their complaint was voluntarily dismissed. On June 13, 2005, the same plaintiffs initiated the instant action. The Complaint alleged that defendant is liable for engaging in attempted extrajudicial killing, torture, degrading treatment, arbitrary detention, crimes against humanity, and war crimes, in violation of the Alien Tort Statute (“ATS”), 28 U.S.C. 1350, and the Torture Victim Protection Act of 1991 (“TVPA”), 106 Stat. 73, 28 U.S.C. § 1350 note.
This action has been subject to a number of stays, mostly to give the United States Department of State an opportunity to express its views on defendant's claim of immunity and to give the Supreme Court an opportunity to decide related issues in a companion case, Samantar v. Yousuf, 560 U.S. 305, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010). The final stay was lifted on April 25, 2014, one day after the Court received a Statement of Interest Submitted by the United States of America, explaining that the “United States is not in a position to present views to the Court concerning this matter at this time.” On May 9, 2014, plaintiff Farhan Mohamoud Tani Warfaa filed an Amended Complaint using his true name and restating his claims against defendant; the other plaintiff, Jane Doe, elected not to proceed with this action, which has been recaptioned to reflect these changes.
Defendant moves to dismiss the Amended Complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.
Under Rule 12(b)(1), a court must dismiss an action if finds subject-matter jurisdiction lacking. Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). The burden rests with the plaintiff to establish that such jurisdiction exists. Warren v. Sessoms & Rogers, P.A., 676 F.3d 365, 370–71 (4th Cir.2012). Under Rule 12(b)(6), a court must begin by assuming that the facts alleged in the complaint are true and by drawing all reasonable inferences in the plaintiff's favor. Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 406 (4th Cir.2002). “Judgment should be entered when the pleadings, construing the facts in the light most favorable to the nonmoving party, fail to state any cognizable claim for relief.” O'Ryan v. Dehler Mfg. Co., 99 F.Supp.2d 714, 718 (E.D.Va.2000). In other words, to avoid dismissal, the factual allegations in the complaint, taken as true, “must be enough to raise a right of relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That means a plaintiff must “nudge[ ][his] claims across the line from conceivable to plausible.” Id. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Although defendant failed to raise the issue in his papers, the Court must address the effect of Kiobel v. Royal Dutch Petroleum Co., ––– U.S. ––––, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), on plaintiff's ATS claims.1 The ATS provides “original jurisdiction” in the federal district courts over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. The Supreme Court has clarified that the ATS is a jurisdictional grant for only a limited category of claims premised on violations of internationally accepted norms. Sosa v. Alvarez–Machain, 542 U.S. 692, 729, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). In Kiobel, the Supreme Court further clarified that such claims, generally speaking, must be based on violations occurring on American soil. 133 S.Ct. at 1669 (). In other words, the Supreme Court held that a cognizable ATS claim may not “reach conduct occurring in the territory of a foreign sovereign.” Id. at 1664.
Here, “[a]ll the relevant conduct” alleged in the Amended Complaint occurred in Somalia, id. at 1669, carried out by a defendant who at the time was not a citizen or resident of the United States. Plaintiff has alleged no facts showing that defendant's violations of international law otherwise “touch [ed] and concern[ed] the territory of the United States.” Id. Because the extraterritoriality analysis set forth in Kiobel appears to turn on the location of the relevant conduct, not the present location of the defendant, a straightforward application to the instant action leads the Court to conclude that plaintiff's ATS claims are “barred” and must be dismissed.
Plaintiff's TVPA claims are not subject to the same analysis. Unlike with the ATS, there are strong indications that the TVPA was intended to have extraterritorial application. The language of the TVPA, which creates civil liability for extrajudicial killing and torture carried out by an individual with “actual or apparent authority, or color of law, of any foreign nation,” naturally contemplates conduct occurring in the territory of a foreign sovereign. 28 U.S.C. § 1350 note. Moreover, the Supreme Court did not purport to curb the extraterritorial reach of the TVPA in Kiobel. See 133 S.Ct. at 1669 (); see also Chowdhury v. Worldtel Bangladesh Holding, Ltd., 746 F.3d 42, 51 (2d Cir.2014) (). Accordingly, the Court will consider defendant's many defenses to plaintiff's TVPA claims.
Defendant challenges plaintiff's ability to have these claims adjudicated in federal court on the grounds that they implicate nonjusticiable political questions and acts of state, and that plaintiff is immune from suit in any event. Br. in Supp. of Def.'s Renewed Mot. to Dismiss (“Def.'s Br.”), at 6–14. Although defendant purports to raise these arguments under Rule 12(b)(1), none of the three doctrines on which he relies are strictly jurisdictional.
Federal courts have long been reluctant to decide issues that might infringe upon the province of the Executive Branch. It was Chief Justice Marshall who first remarked that “questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made” in federal courts. Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 170, 2 L.Ed. 60 (1803). This is the essence of the political question doctrine. The Supreme Court elaborated on the doctrine in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), describing it as a function of the separation of powers and setting forth six factors for lower courts to...
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