Yirenkyi v. U.S. Cent. Intelligence Agency
| Decision Date | 17 February 2023 |
| Docket Number | Civil Action 22-1376 (JEB) |
| Parties | CHARLES ASIEDU YIRENKYI, Plaintiff, v. U.S. CENTRAL INTELLIGENCE AGENCY, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Charles Asiedu Yirenkyi's mother suffered significant injuries when, as a 13 year-old, she was allegedly coaxed into participating in a 1964 terrorist bombing in connection with a coup in Ghana. Now, nearly six decades later and after his mother's recent death, Yirenkyi brings this personal-injury pro se suit against the Central Intelligence Agency, the Republic of Ghana, and a number of other foreign governments. He alleges that because these Defendants provided technical and financial support for the coup attempts, he may recover damages from them under the Foreign Sovereign Immunities Act, the Alien Tort Statute, and the Torture Victims Protection Act. Defendants CIA and the Republic of Ghana now separately move to dismiss. Because Plaintiff's stated claims are all barred by sovereign immunity, the Court will grant the Motions.
The Court draws the following facts from the Complaint and accepts them as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The story behind this lawsuit begins six decades ago in Accra Ghana, with an attempted coup d'etat. According to the Complaint, Komla Agbeli Gbedemah, then-Finance Minister, sought to overthrow his country's government in the 1960s. See ECF No. 1 (Compl.), ¶¶ 2 5, 33-34. In service of that effort, he commanded a series of extrajudicial killings and terrorist bombings. Id., ¶ 4. The President at that time, Dr. Kwame Nkrumah, was the target of at least one of those bombings, which incident is at the core of our controversy.
The details of the plan for that particular attack are not entirely clear from the Complaint. But the general conceit appears to have been to disguise a bomb in a flower bouquet and recruit a young, unknowing school child to hand that bouquet to President Nkrumah. Id., ¶ 2. Gbedemah and his confederates tapped 13-year-old Elizabeth Asantewaa for the job. Id. Asantewaa did as she was instructed. When the bomb exploded, however, she was severely injured and lost her foot. Id. Asantewaa died in 2022, but she left a son, Charles Asiedu Yirenkyi, who now brings this suit as the administrator and executor of his mother's estate. Id.
The Complaint contains eight counts under the Foreign Sovereign Immunities Act, the Alien Tort Statute, and the Torture Victim Protection Act, id., ¶¶ 8, 35-66 (citing 28 U.S.C. §§ 1605A(c)(4), 1350), and names five Defendants: the CIA, the United Kingdom, France, Germany, and Ghana. Yirenkyi alleges, in part, claims of wrongful death, torture, loss of consortium, assault and battery, intentional infliction of emotional distress, civil conspiracy, and aiding and abetting. Id., ¶¶ 35-60. He contends that each Defendant played an indispensable role in Gbedemah's attempted coup and, more specifically, in the flower-bouquet bombing. He maintains, for example, that Defendants provided “technical know-how,” “tactical training[,]” and other material support and resources to Gbedemah, without which the Finance Minister could not have grown a “terrorist[] group capable of producing a ‘Flower Bouquet Bomb' used in the injury of Elizabeth Asantewaa.” Id., ¶¶ 4-5. Plaintiff seeks $100 million in damages for the injuries, suffering, and other losses inflicted on his mother and on him by the incident. Id., ¶¶ 67-70.
Two of the Defendants - the CIA and Republic of Ghana - now separately move to dismiss for lack of jurisdiction. See ECF No. 20 (CIA MTD); ECF No. 21 (Ghana MTD). Service has not yet been effected on the others.
Federal Rule of Civil Procedure 12(b)(1) permits dismissal of a complaint for lack of subject-matter jurisdiction. In general, courts must first address jurisdictional arguments before turning to the merits. See Sinochem Int'l Co. v. Malaysia Int'l Shipping Co., 549 U.S. 422, 43031 (2007). A plaintiff bears the burden of proving that the court has subject-matter jurisdiction to hear her claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of the Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). For this reason, “‘the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Fed. Practice & Procedure § 1350 (2d ed. 1987)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharms., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005); see also Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
The Court will consider the CIA's and Ghana's Motions in turn.
In seeking dismissal, the CIA principally argues that this Court has no jurisdiction because the United States has not waived its sovereign immunity from suit. See CIA MTD at 57. Additionally, even if Plaintiff's Complaint is construed broadly as one under the Federal Tort Claims Act (for which some waiver exists), the Government maintains that Yirenkyi has failed to administratively exhaust his remedies and that his claims fall into the foreign-country and intentional-tort exceptions to that waiver. Id. at 8-11. The Court agrees on both counts.
“Sovereign immunity bars suits against the United States, its agencies, and its employees sued in their official capacities, absent a waiver.” Jarvis v. Kijakazi, No. 21-1523, 2022 WL 4464985, at *2 (D.D.C. Sept. 26, 2022) (citing Fed. Deposit Ins. Co. v. Meyer, 510 U.S. 471, 475 (1994)). It is well established that “[a] waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citation omitted). Where sovereign immunity has been waived, that waiver “will be strictly construed, in terms of its scope, in favor of the sovereign.” Id.
In his Opposition to the CIA's Motion to Dismiss, Yirenkyi relies exclusively on the recently passed Justice for Victims of War Crimes Act to argue that his claims are not barred by sovereign immunity. See ECF No. 38 (Opp. to CIA MTD) at 11-18. That Act modified the existing War Crimes Act, which criminalizes “grave breach[es] in any of the international conventions signed at Geneva 12 August 1949” and committed by United States military personnel or a national of the United States. See 18 U.S.C. § 2441(b), (c)(1). The new Justice for War Crimes Act extended federal jurisdiction to also cover crimes committed by any “offender [who] is present in the United States, regardless of the nationality of the victim or the offender” and for any “offenses [that] occurs in whole or in part within the United States.” Justice for Victims of War Crimes Act, Pub. L. No. 117-351, § 2, 136 Stat. 6265, 6265 (2023). What that Act did not do, however, was include any new language “unequivocally express[ing]” a waiver of the federal government's sovereign immunity. Lane, 518 U.S. at 192. That makes sense because the War Crimes Act is a criminal statute and does not include any private right of action for its enforcement. See Sai v. Trump 325 F.Supp.3d 68, 71-72 (D.D.C. 2018) (); Jawad v. Gates, 113 F.Supp.3d 251, 258-59 (D.D.C. 2015), aff'd, 832 F.3d 364 (D.C. Cir. 2016) (same). As a result, it cannot support Yirenkyi's claims against a federal entity such as the CIA.
Neither do any of the other statutes Plaintiff cites in his Complaint support a waiver of sovereign immunity. The FSIA, for example, applies only to “foreign state[s],” not the United States. See 28 U.S.C. § 1603 (defining “foreign state” for purposes of FSIA); id. § 1605 (). The ATS vests federal district courts with “original jurisdiction [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, but that statute “itself is not a waiver of sovereign immunity.” Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985); see El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 858 (D.C. Cir. 2010) (en banc) (Kavanaugh, J., concurring) (“The Alien Tort Statute has never been held to cover suits against the United States or United States Government officials.”). Finally, the TVPA creates liability for individuals who engage in “torture or extrajudicial killing,” Harbury v. Hayden, 444 F.Supp.2d 19, 40 (D.D.C. 2006) (citing Torture Victim Protection Act, Pub. L. No. 102-256, § 2, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 Note)), but that liability “does not extend to suits against American officials except in the unusual case where such an official acts ‘under color of foreign law.'” El-Shifa Pharm. Indus. Co., 607 F.3d at 858 (Kavanaugh, J., concurring). Like the other statutes Plaintiff cites, it also does not “contain[ any] language authorizing a lawsuit against the United States.” Escarria-Montano v. United States, 797 F.Supp.2d 21, 24 (D.D.C. 2011).
Because the FSIA, the ATS, and the TVPA include no express waiver of sovereign...
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