Opinion
Civil Action No. 00-1636 (CKK)
March 30, 2002
MEMORANDUM OPINION
This case comes before the Court on Defendant's Motion to Dismiss for lack of Subject Matter Jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiffs, a group of six Kenyan citizens, bring this action in connection with the August 7, 1998, terrorist bombing of the Nairobi, Kenya United States Embassy alleging negligence on the part of the United States. Upon review of Defendant's motion to dismiss, memorandum of law in support of that motion, and attached exhibits, Plaintiffs' opposition papers thereto, Defendant's reply, and the relevant law, the Court shall grant Defendant's motion to dismiss.
I. BACKGROUND
On August 7, 1998, a terrorist bombing at the American Embassy in Nairobi, Kenya occurred tragically killing two hundred and thirteen people and injuring thousands more. Plaintiffs filed the present complaint against the United States alleging that employees of the government: (1) knew or should have known of the likelihood of a terrorist attack and failed to properly alert superiors to such a likelihood, (2) negligently failed to take adequate precautions to protect against such an attack, (3) negligently failed to ensure the sufficient presence of trained and prepared security personnel and equipment at the Nairobi Embassy. See Plaintiffs' Complaint ("Cplt") ¶ 6. Plaintiffs claim that jurisdiction exists based on the Federal Tort Claims Act ("FTCA") 28 U.S.C. § 1346 (b), 2671-2680. Id. at ¶ 3.
Defendant argues that this Court does not have subject matter jurisdiction to hear Plaintiffs' claims because 1) Plaintiffs have not demonstrated that any of the alleged negligent conduct occurred in the United States as required under the FTCA, 2) any actions that did occur in the United States were discretionary in nature and therefore not actionable under the FTCA and, 3) the actions of independent contractors responsible for security at the Nairobi embassy are not a basis for jurisdiction. Defendant's Memorandum of Law ("Def. Mem.") at 2. Defendant also contends that this Court should not decide any issues involving the location and security of the Embassy Nairobi because such issues are nonjusticiable under the Political Question doctrine. Def. Mem. at 34-35.
II. DISCUSSION
Generally, the United States is immune from suit under the doctrine of sovereign immunity. However, Congress enacted the Federal Tort Claims Act, 28 U.S.C. § 1346 (b), 2671-2680, creating a limited waiver of the United States' sovereign immunity, rendering the federal government and its agencies liable for certain damages or injuries caused by federal employees acting within the scope of their employment. See Id. The United States retains immunity pursuant to a number of exceptions contained in the FTCA and if an exception applies, the court has no subject matter jurisdiction. For a district court to have jurisdiction under the FTCA, a Plaintiff must demonstrate that the complained of act or omission did not arise in a foreign country. See 28 U.S.C. § 2680 (k). Further, the court will not have jurisdiction over any 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). While the FTCA grants the court jurisdiction to hear tort claims against the United States, the underlying claim of negligence is determined by local law.
Defendant moves to dismiss Plaintiffs' complaint pursuant to Federal Rule of Procedure 12(b)(1) claiming that Plaintiffs have not carried their burden of properly alleging jurisdiction. See Land v. Dollar, 330 U.S. 731, 735 (1947) (finding that in the 12(b)(1) context, the plaintiff bears the burden of proving jurisdiction). In considering a 12(b)(1) motion, a district court may look beyond the pleadings to inquire into facts that are pertinent to the determination of whether it has subject matter jurisdiction. See id. at 735 n. 4. While it is true that Plaintiffs may aver its claims generally under Federal Rule of Civil Procedure 8(a), when a dispute arises as to whether jurisdiction properly exists, it is Plaintiffs burden to allege sufficient facts to support its jurisdictional claim. See Fed.R.Civ.P. 8(a); Land, 330 U.S. at 735.
Plaintiffs attempt, in a convoluted and rather circular argument, to suggest that the 12(b)(1) motion in this instance should be treated as a 12(b)(6) motion for failure to state a claim and, therefore, all facts alleged in the Complaint, including jurisdiction, should be assumed true. Pl. Opp'n at 5. Plaintiffs point to no authority in this Circuit for the proposition that a district court, in determining a 12(b)(1) motion using affidavits and facts outside of the Complaint to determine disputed jurisdictional facts, is required to consider whether Plaintiffs have stated a claim based on the merits. While this Court must review the Complaint to determine where the alleged negligent actions took place and what actions in fact caused injuries "we do so only to determine whether the district court has jurisdiction over those actions, not to prejudge the merits of the case. If the district court has jurisdiction over the suit, the plaintiff must still prove that the government's actions were negligent in order to prevail." Cope v. Scott, 45 F.3d 445, 448 (D.C. Cir. 1995). This Court will not review the merits of the action, but will review only whether it properly has jurisdiction under the FTCA to adjudicate Plaintiffs claims.
At the outset, the Court notes that, each party has incorporated by reference arguments made in Macharia v. United States, Civ. No. 99-3274 (CKK), a similar case based on the August 7, 1998, bombing. Although Macharia is presently pending before this Court, the parties incorporation of their memoranda of law and attached exhibits from that proceeding is not appropriate; the proper procedure would entail re-submission of the arguments contained in the memoranda and the exhibits in conjunction with the submission of materials in this case. Notwithstanding this procedural error the Court will examine referenced portions of the memoranda submitted in conjunction with the Macharia case.
At the threshold, Plaintiffs contend that Defendant has failed to "controvert" the allegations of the Complaint and instead responded only to "phantom allegations" of its own making. Pl. Opp'n at 6-7. On this basis, Plaintiffs maintain that the complaint should not be dismissed. Plaintiffs state that the only material paragraph of the Complaint is paragraph six which alleges that,
subordinate officers of the Department of State and other government agencies charged with carrying out policies of those agencies relating to security in general and anti-terrorist activities in particular knew or should have known of the likelihood of attack such as the one that occurred on August 7, 1998, or other terrorist action that would naturally and foreseeably result in injuries of the type complained of herein. Said subordinate officers charged with carrying out the policy directives of their superiors negligently failed to alert their policy making superiors to the actual likelihood of such an attack or other terrorist action. They further negligently failed to take adequate precautions, including but not limited to ensuring sufficient presence of trained and prepared security personnel and equipment including communications equipment and failed to alert others to the need for such precautions. They further negligently committed acts, omissions, or defaults in discharging their duties . . . which were relevant to determinations of United States policy with respect to security of embassy buildings, scheduling and assessment of threats, and general anti-terrorist efforts.
Cplt. ¶ 6. Plaintiffs next maintain that Defendant's arguments regarding the training of employees and security, the decisions made related to the location of the Nairobi Embassy, or alleged acts or omissions by United States personnel in Nairobi are unrelated to the Complaint and do nothing to controvert the allegations therein. This argument has little merit. Plaintiffs make general allegations regarding the "security of embassy buildings" and failure to have "trained and prepared security personnel." Id. Defendant is correct that it may elaborate on these general terms so that this Court may determine jurisdiction. Def. Reply Mem. at 5.
1. "Arising in a Foreign Country"
In order for this Court to have jurisdiction Plaintiffs must demonstrate that the acts or omissions complained of arose in the United States. 28 U.S.C. § 2680 (k) (barr-ing actions arising in foreign countries). Actions or omissions arising in a territory subject to the sovereignty of another nation arise in a foreign country." United States v. Spelar, 338 U.S. 217, 219 (1949). Congress exempted actions arising in foreign countries from the FTCA because "it was unwilling to subject the United States to liabilities depending upon the laws of a foreign power." Id. at 221. As noted above, while jurisdiction is determined by the FTCA, the underlying tort claims are decided based on the local law where the act or omission occurred.
In an attempt to allege that acts arose in the United States, Plaintiffs state that "[t]he depositions taken in early June do contain sufficient suggestions that Plaintiffs could discover negligent acts or omissions that occurred in the U.S., as they allege, which would negative Defendant's § 2680(k) argument." Pl. Opp'n at 10 (emphasis added). Plaintiffs continue "deposition testimony and the Foreign Affairs Handbook suggest both that Washington plays a significant, perhaps dominant, role in assessing and meeting threats to overseas diplomatic facilities and that it will be necessary to conduct more discovery into these areas to determine what that role is." Id. at 12. Finally, Plaintiffs state that "individuals in Washington and other nearby locations — whose identities and specific functions are as yet unknown — did have considerable direct responsibility for what happened prior to the terrorist attack" Id. at 14-15. Plaintiffs have had ample opportunity to develop their jurisdictional claim and they have failed to carry their burden under 12(b)(1). Plaintiffs were afforded three months of discovery on the jurisdictional question, during which time they received over ten thousand documents from Defendant and took five Federal Rule of Civil Procedure 30(b)(6) depositions of United States personnel. Plaintiffs requests for additional discovery have been denied by Magistrate Judge Alan Kay. See October 3, 2001, Order Denying Plaintiffs Motion to Reopen Jurisdictional Discovery. Plaintiffs have been unable to discover any events or evidence to support their jurisdictional claim at this point in the proceedings, and this Court will not assume such facts based on Plaintiffs' supposition and conclusory allegations in deciding the present motion.
2. Discretionary Function Exception
Defendant further argues that even if Plaintiffs were able to point to any actions or decisions that took place in the United States, under Plaintiffs' "headquarter's claim," such actions were discretionary in nature and thus not a basis for jurisdiction under the FTCA. Def. Mem. at 22-33. The United States retains sovereign immunity for any acts taken by a federal employee that are "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty." 28 U.S.C. § 2680 (a). In determining whether the "discretionary function" exception applies, a court must first determine whether the action taken by the employee was discretionary or whether it was prescribed by statute, guideline or regulation. United States v. Gaubert, 499 U.S. 315, 322 (1991). If the employee's action was mandated, the court's only remaining inquiry is whether the employee did or did not do what was required. Cope v. Scott, 45 F.2d 445, 448 (D.C. Cir. 1995). An act is discretionary if it involves an element of judgment or choice. See Sloan v. US. Dep't of Housing Urban Dev., 236 F.3d 756, 759 (D.C. Cir. 2001), citing Gaubert, 499 U.S. at 322; see also Berkovitz v. United States, 486 U.S. 531, 536 (1988). If an act was discretionary, the court must determine whether it was the type of action grounded in social, economic or political policy. Sloan, 236 F.3d at 761. "When established governmental policy, as expressed or implied by statute, regulation or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agents' acts are grounded in policy when exercising that discretion." Gaubert at 324-325; see also Sloan 236 F.3d at 761 (same).
A "headquarter's claim" arises when a Complaint alleges that there were negligent acts that took place in the United States although the resulting injury occurred elsewhere. See Beattie v. United States, 756 F.2d 91, (D.C. Cir. 1984). In such a case the FTCA has been found to apply to the negligent acts occurring in the United States. Id.
Plaintiffs attempt to argue that the discretionary exception should not apply in this instance. In support of this contention, Plaintiffs appear to posit two arguments: 1) that the exception should not apply because the conduct complained of does not further the goals of any statute, regulation or guideline and, 2) certain federal employees, who were not at the level of policy makers, and, therefore, not making decisions grounded in policy, failed to report information regarding the possibility of terrorist attacks to their superiors. Pl. Opp'n at 22. Plaintiffs do not suggest that the actions taken by Defendant are not discretionary in nature but, rather, that the allegations in the Complaint "specifically relate to acts or omissions that do not implicate the kinds of policy decisions Congress intended to shield from judicial scrutiny." Pl. Opp'n at 3.
Defendant argues that the alleged negligent acts and omissions were grounded in the policies of the Omnibus Diplomatic Security and Antiterrorism Act, 22 U.S.C. § 4801, the Foreign Building Security Act, 22 U.S.C. § 292, and the Foreign Affairs Manual. Def. Mem. at 28-34. Defendant claims that these statutes and guidelines implicate discretionary policies involving political, social and economic considerations. Id. For instance, the Omnibus Diplomatic Security and Antiterrorism Act authorizes the Secretary of State to "develop and implement . . . policies and programs, including funding levels and standards, to provide for the security of the United States Government operations of a diplomatic nature and foreign government operations of the diplomatic nature in the United States. 22 U.S.C. § 4801. This Act implicates economic policies (funding levels and standards), and social and political policies (foreign government operations and the level of security). Plaintiffs do not appear to disagree with the stated policies of the Acts, explaining that "the kinds of modifications envisioned in the Foreign Building Security Act and the various guidelines developed in response to it involve long-term planning and balancing competing budgetary and other demands . . ." Pl. Opp'n at 23. Further, Plaintiffs state that the Omnibus Diplomatic Security and Antiterrorism Act "is primarily concerned with such issues as deciding on building location, upgrades, repairs, and similar matters, in terms of budgetary considerations." Id. Plaintiffs argument rests on the contention that these cited Acts and guidelines and the policies they implicate "do not coincide with the conduct in question" and therefore Defendant's conduct cannot be grounded in those policies. Id.
Plaintiffs' arguments fail for two reasons. First, Plaintiffs misapply the standard set forth by the Supreme Court in Gaubert when arguing that the conduct in question does not implicate the above policy concerns. Plaintiffs erroneously claim that Gaubert requires this Court to first define the policy "against which the challenged conduct is to be assessed" and then to decide "whether that conduct appropriately furthers that policy." Pl. Opp'n at 19. Plaintiffs conclude that the conduct does not further the policies contained in the relevant acts and guidelines, because "it is illogical to suggest that, within a regime dedicated to ensuring the security of U.S. property and the lives of U.S. diplomatic personnel abroad, a failure to report necessary information or to act on a threat that has been appreciated can be considered to further the goals of that regime." Pl. Opp'n at 24. Yet, the standard is not, as Plaintiffs contend, whether the alleged failure to appreciate the level of the terrorist threat in fact furthered or supported the regulatory policy, but, rather, whether the nature of the decision itself is "susceptible to policy analysis." Gaubert at 325; see also Cope, 45 F.3d at 449 ("The Supreme Court has emphasized, however, that the issue is not the decision as such, but whether the "nature' of the decision implicates policy analysis."); Sloan, 236 F.3d at 763 (explaining that a discretionary decision whether or not to investigate and sanction a contractor "unquestionably implicates considerations of public policy" whether or not the conclusion reached by the federal employee was "correct or not").
Plaintiffs interpretation of Gaubert suggests that when a plaintiff alleges negligent conduct by federal employees a court would obtain subject matter jurisdiction over the claim because negligent behavior, in and of itself, would never further a significant policy goal. This outcome is contrary to both law and common sense. As discussed above, the proper inquiry is whether the discretionary decision reached by a federal employee in the scope of employment is "grounded" in "social, economic, and political goals;" whether the decision was correct is not the proper inquiry. Gaubert, at 323. Congress specifically created the discretionary function exception to prevent courts from "second guessing" the choices that government officials make when they must balance political, social and economic considerations. See United States v. Varig Airlines, 467 U.S. 797, 814 (1984).
Defendant contends, and Plaintiffs do not disagree, that the Foreign Building Security Act, the Omnibus Diplomatic Security and Antiterrorism Act, and the Foreign Affairs Manual implicate budgetary and political considerations. Def. Mem. at 28-34; Pl. Opp'n at 23. These statutes and guidelines grant the Department of State discretion in determining the level of security to employ at an embassy, when to act on received threats, and what funding to grant for security measures. Each of these decisions involve discretion and judgment and "[w]hen established governmental policy, as expressed or implied by statute, regulation or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agents' acts are grounded in policy when exercising that discretion." Gaubert at 324-325. Additionally, Plaintiffs have not pointed to any mandatory statute, regulation, or guideline under which the United States' actions may be judged. Plaintiffs state only that the discovery undertaken "has not allowed Plaintiffs to determine whether there is in fact such a course of conduct that, in view of the allegations of the Complaint, could be considered mandatory." Pl. Opp'n at 21. As discussed above, Plaintiffs have been afforded ample discovery to determine whether it may properly allege jurisdiction in this case, and thus Plaintiffs cannot point to any mandatory guideline or statute that required the United States to act in any particular way.
Plaintiffs second contention rests on the premise that certain federal employees, acting in a non-policy making capacity, made the decision not to report a received terrorist threat to their superiors. Pl. Opp'n at 22. The Supreme Court has made clear that actions taken by federal employees using discretion to execute regulatory schemes created by policy makers fall within the discretionary function exception to the FTCA. See United States v. Varig Airlines, 467 U.S. 797 (1984). In Varig, the Secretary of Transportation instituted a policy of "spot checking" the airline manufactures design plans to determine whether those plans comported with Federal Aviation Act ("FAA") regulations. After an airline crash, the plaintiff brought a suit alleging that the inspectors who undertook the "spot check" of the designs were negligent. The Court found that the discretionary function exception barred suit. The Court explained that
The FAA employees who conducted compliance reviews of the aircraft involved in this case were specifically empowered to make policy judgments regarding the degree of confidence that might reasonably be placed in a given manufacturer, the need to maximize compliance with FAA regulations, and the efficient allocation of agency resources. In administering the "spot-check" program, these FAA engineers and inspectors necessarily took certain calculated risks, but those risks were encountered for the advancement of a governmental purpose and pursuant to the specific grant of authority in the regulations and operating manuals. Under such circumstances, the FAA's alleged negligence in failing to check certain specific items in the course of certificating a particular aircraft falls squarely within the discretionary function exception of § 2680(a).Id. at 820; see also Gaubert, 499 U.S. at 325 (explaining that Varig "held that not only was this [decision to use spot checking] discretionary but so too were the acts of agency employees in executing the program since they had a range of discretion to exercise in deciding how to carry out the spotcheck activity.") As in Vairg, the federal employees responsible for receiving and determining the action to take upon receiving a terrorist threat "are empowered to make policy judgments" that are protected by the discretionary function exception. Plaintiffs have inadequately alleged that the United States took any actions that did not fall within the discretionary function exception and, accordingly, this Court has no jurisdiction over their claims.
3. Federal Employee/Independent Contractor
Defendant also argues that any actions related to security of the Nairobi embassy was left to independent contractors. Plaintiffs do not dispute this fact anywhere in their opposition papers. Plaintiffs only response to Defendant's contention that the United States is not responsible for the acts of independent contractors under the FTCA, is that the United States' argument "effectively creates a kind of red herring" because it does not "address (let alone controvert) any material allegation of the complaint." Pl. Opp'n at 15. Therefore, the facts are not in dispute and the only question left to resolve is whether the FTCA covers tortious acts or omissions committed by independent contractors. The FTCA does not cover such acts. See 28 U.S.C. § 1346 (sovereign immunity is waived only as to acts and omissions of federal employees; independent contractors are not federal employees); United States v. Orleans, 425 U.S. 807, 813 (1976). Plaintiffs do allege that the United States failed to provide adequate security for the embassy buildings and this implicates the actions of the independent contractors responsible for security. The training, supervision and hiring of local guards is relevant to Plaintiffs' general allegation. Plaintiffs have failed to respond directly to Defendant's contention that the FTCA does not grant jurisdiction over acts or omissions of independent contractors and has, therefore, conceded the issue.
4. Political Question Doctrine
This Court does not have subject matter jurisdiction and may not adjudicate Plaintiffs' claims. Therefore, it need not reach the question of whether the Political Question doctrine applies in this case.
5. Declaratory Judgment
As a final matter, Count Three of Plaintiffs' Complaint requests that this Court grant declaratory relief to Plaintiffs, declaring their "right to be compensated from such funds as may be sequestered and removed from the control of Osama Bin Laden by or in behalf of the United States." Cplt. Count Three. The Declaratory Judgment Act, 28 U.S.C. § 2201, does not supply an independent basis for subject matter jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) see also National Ass'n of Postal Sup'rs v. U.S. Postal Service, 602 F.2d 420, 429 (D.C. Cir. 1979). Therefore, having found that this Court lacks subject matter jurisdiction under the FTCA, this Court may not consider Plaintiffs' Count Three claim for declaratory judgment.
III. CONCLUSION
Based on the foregoing, the Court finds that Plaintiffs have failed to establish that this Court has subject matter jurisdiction over the claims alleged in their complaint. Having failed to do so, the Court concludes that the Complaint shall be dismissed in its entirety for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Further the Court denies Plaintiffs motion for Judicial Notice. An appropriate Order accompanies this Memorandum Opinion.
ORDER
For the reasons set forth in the accompanying Memorandum Opinion, it is, this 30 of March, 2002, hereby
ORDERED that Defendant the United States of America's motion to dismiss [#31] is GRANTED; and it is further
ORDERED that the case is DISMISSED.