The opinion of the court was delivered by: Morrison C. England, Jr. United States 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.
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.*fn2 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 extend? Id.,p. 17, ¶ 26(g).
Whether the families of contractors were legally prohibited from negotiating with the kidnappers, who were referred to by President as "common criminals" -in other words, not "terrorists," and what are the origins of this "official policy," and why did it not apply to similarly situated Iraqis. Whether there is an official policy in the United States government that "we do not negotiate with terrorists." Id., p. 17,¶ 26(h).
What recovery may be made by a family or surviving spouse of a private contractor employed in the 'War on Terror?' And how does one recover under the employment contracts that no one has ever seen, or receive life insurance benefits taken out by the companies in the names of the contractors without anyone's knowledge?" Id., p. 18, ¶ 26(i).
Defendants moved to dismiss on March 7, 2011, arguing as to the Plaintiffs' Complaint against Defendants in their official capacities that: 1) Plaintiffs' claims raise non-justiciable political questions; 2) Plaintiffs lack standing to seek a declaration or an injunction because they have failed to allege an imminent future injury; 3) Plaintiffs have likewise failed to satisfy the preconditions for injunctive and declaratory relief because they have not alleged a likelihood of future injury;
4) the Court should decline to exercise its discretion to issue injunctive or declaratory relief; 5) sovereign immunity bars Plaintiffs' claims for compensation; 6) Plaintiffs failed to state a claim under the Takings Clause; and 7) Plaintiffs failed to properly serve Defendants. Defendants also challenged Plaintiffs' claims against them in their individual capacities arguing that: 1) Plaintiffs' claims raise non-justiciable political questions; 2) this Court lacks personal jurisdiction over the individual-capacity Defendants; 3) venue is improper in this Court; 4) Plaintiffs have failed to properly serve Defendants; 5) Plaintiffs lack a cause of action against Defendants; 6) qualified immunity bars Plaintiffs' claims; and 7) Plaintiffs' claims for an injunction and declaratory relief are improper.
Plaintiffs opposed Defendants' Motions on April 28, 2011, and Defendants replied on May 12, 2011. In their Oppositions, Plaintiffs argue that, in addition to their above expressly identified causes of action, they have also alleged sufficient facts within their Complaint to state a cause of action under the First Amendment.
Plaintiffs also subsequently filed an Objection and Motion to Strike and a Request for Judicial Notice. For the following reasons, Defendants' Motions are GRANTED with leave to amend. Plaintiffs' Requests are DENIED.
A. The Political Question Doctrine
Defendants first move to dismiss Plaintiffs' Complaint in its entirety on the basis that each of Plaintiffs' claims present non-justiciable political questions. Despite the persuasiveness of Defendants' position on its face, this Court accepts their argument only in part.
1. the political question doctrine.
Standard governing a motion to dismiss pursuant to "[I]f a case presents a political question, [the Court] lack[s] subject matter jurisdiction to decide that question." Corrie v. Caterpillar, Inc., 503 F.3d 974, 982 (9th Cir. 2007). Federal Courts are presumptively without jurisdiction over civil actions, and the burden of establishing the contrary rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Lack of subject matter jurisdiction is never waived and may be raised by either party or the Court at any time. Attorneys Trust v. Videotape Computer Prod., Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).
In moving to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1),*fn3 the challenging party may either make a facial attack on the allegations of jurisdiction contained in the complaint or can instead take issue with subject matter jurisdiction on a factual basis. Thornhill Publ'g Co. v. Gen. Tel. & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977). If the motion constitutes a facial attack, the Court must consider the factual allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981); Mortensen, 549 F.2d at 891. If the motion constitutes a factual attack, however, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891). The court may properly consider extrinsic evidence in making that determination. Velasco v. Gov't of Indon., 370 F.3d 392, 398 (4th Cir. 2004). Defendants here facially attack Plaintiffs' Complaint.
A court granting a motion to dismiss a complaint must decide whether to grant leave to amend.*fn4
Leave to amend should be "freely given" where there is no "undue delay, bad faith or dilatory motive on the part of the movant,...undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment...." Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to be considered when deciding whether to grant leave to amend). Not all of these factors merit equal weight. Rather, "the consideration of prejudice to the opposing party...carries the greatest weight." Eminence Capital, 316 F.3d at 1052 (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that "the complaint could not be saved by any amendment." Intri-Plex Techs. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (internal citations and quotations omitted).
2. The political question analysis.
"The political question doctrine is an important tenet of separation of powers and judicial restraint. But the doctrine is notorious for its imprecision, and the Supreme Court has relied on it only occasionally...'That the contours of the doctrine are murky and unsettled is shown by the lack of consensus about its meaning among the Supreme Court and among scholars.'" Harbury v. Hayden, 522 F.3d 413, 418 (D.C. Cir. 2008) (quoting Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 803 n.8 (D.C. Cir. 1984) (Bork, J. Concurring) (citations omitted)).
Indeed, "[a]lthough the political question doctrine often lurks in the shadows of cases involving foreign relations, it is infrequently addressed head on." Alperin v. Vatican Bank, 410 F.3d 532, 538 (9th Cir. 2005). Nonetheless, "'[q]uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.'" Id. at 544 (quoting Marbury v. Madison, 5 U.S. (1) Cranch) 137, 170 (1803)).
"In the landmark case of Baker v. Carr, the Supreme Court provided its most comprehensive discussion of the application of the doctrine. Recognizing that the attributes of the political question doctrine 'diverge, combine, appear, and disappear in seeming disorderliness' in various settings, the Court set out to illuminate the 'contours' of the doctrine." Id. (quoting Baker v. Carr, 369 U.S. 186, 210-11 (1962)). The Court thus set forth six factors for consideration in determining whether resolution of a case should be deferred to the political branches. Id. Namely, the Baker Court opined that: [p]rominent on the surface of any case held to involve a political question is found  a textually demonstrable constitutional commitment of the issue to a coordinate political department; or  a lack of judicially discoverable and manageable standards for resolving it; or  the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or  the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or  an unusual need for unquestioning adherence to a political decision already made; or  the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
369 U.S. at 217. "Dismissal on the basis of the political question doctrine is appropriate only if one of these formulations is 'inextricable' from the case." Alperin, 410 F.3d at 544.
The Baker Court cautioned, however, "against 'sweeping statements' that imply all questions involving foreign affairs are political ones." Id. at 544-45 (quoting Baker, 369 U.S. at 211). "Instead, the Court instructed that courts should undertake a discriminating case-by-case analysis to determine whether the question posed lies beyond judicial cognizance." Id. at 545. "Nevertheless, 'cases interpreting the broad textual grants of authority to the President and Congress in the areas of foreign affairs leave only a narrowly circumscribed role for the Judiciary.'" Corrie, 503 F.3d at 982 (quoting Alperin, 410 F.3d at 559).
a. The parties' respective positions.
Defendants argue that Plaintiffs' claims are non-justiciable because Plaintiffs seek resolution of "sensitive questions of foreign and military policy constitutionally reserved to the political branches." United States' Motion, 3:13-15. According to Defendants, Plaintiffs' claims thus conflict with all six factors articulated above in Baker, 369 U.S. at 217.
First, according to Defendants, the issues raised in this case, which Defendants broadly characterize as "the State Department's handling of a kidnapping by insurgents in a war zone and decisions about the use of contractors in Iraq," are textually committed by the Constitution to the political branches. Id., 4:9-17 (citing Corrie, 503 F.3d at 982 (quoting Alperin, 410 F.3d at 559; Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1919); Schneider v. Kissinger, 412 F.3d 190, 194-95 (D.C. Cir. 2005)). Defendants acknowledge, as they must, that "not every case touching on foreign relations is non-justiciable," but they nonetheless contend that nonjusticiability is clear here because "Plaintiffs challenge such delicate matters of foreign and military policy as diplomats' approach to a particular kidnapping in a foreign war zone, policies about how and whether to use private contractors in Iraq, and even the scope of the conflict in Iraq." Id., 5:2-8 (internal citations omitted). Defendants further argue that the second and third Baker tests are satisfied because Plaintiffs' claims are not capable of resolution through judicially discovery and manageable standards, but instead require non-judicial policy decisions. Id., 5:9-11. According to Defendants, the courts lack competence to address strategic military decisions or to make political judgments, as opposed to legal determinations. Finally, Defendants argue the last three Baker factors are satisfied because there is a real risk in this case of sending a conflicting message regarding decisions already made by a coordinating branch of government. Id., 6:1-12.
Plaintiffs, though admitting that "[b]ecause the text of the U.S. Constitution commits controversies revolving around foreign affairs and the armed forces to the President, the political question doctrine may preclude from judicial review cases involving military strategy, tactical decision-making, or calculated operations," nevertheless argue that "Article II does not grant the Executive Branch the authority to step outside the United States Constitution." Plaintiffs' Opposition to United States' Motion to Dismiss ("Opp. to United States' Motion"), 8:18-23. Plaintiffs generally contend that their claims either present justiciable questions or that justiciability cannot be determined based solely on the Complaint and absent at least some discovery. According to Plaintiffs, the following issues are particularly justiciable: "(1) ...the issuance of Order No. 17, which is facially Unconstitutional and exempts certain individuals from all operation of all laws, including the United States Constitution; (2) the interference by the Plaintiffs' First Amendment Rights (particularly Defendant Jennifer Foo), such as the instructions that they not be allowed to disseminate printed leaflets, and that the Plaintiffs not communicate with certain individuals, including the criminals who were holding their children; and (3) refusal to follow acts of Congress designed to protect and to compensate the Plaintiffs." Id., 8:24-9:7. Plaintiffs thus argue there is no need for this Court to make sensitive determinations regarding the handling of a kidnapping in a war zone, because Plaintiffs simply ask the Court to evaluate "Defendants' performance of their duties in an unauthorized and unconstitutional manner." Id., 9:15-18.
More specifically as to the Baker factors, Plaintiffs argue: While the first Baker factor may preclude a plaintiff from suing for injuries in a war zone where the alleged wrongs stemmed from the military's strategic and tactical decisions, it does not preclude a plaintiff and their family from suing for injuries stemming from Defendants' decisions to the extent they conflict with military directives or breach a contract or violate basic Constitutional rights.
Id., 9:20-26. As to the second Baker factor, Plaintiffs assert that they only ask "the Court to adjudicate very clear standards of property rights, traditional tort and contract claims, and Constitutional standards that are not novel issues that lack discoverable and manageable standards." Id., 11:1-4. According to Plaintiffs, "unlike combat or training operations, the facts of this case are not peculiarly 'military' in nature, and the Court may apply traditional legal principles to resolve their claims." Id., 11:4-6. Plaintiffs believe the third, fourth and sixth Baker factors are not implicated here because the Court need not formulate any military policies to resolve this case and because Plaintiffs' claims can be adjudicated without disrespecting or embarrassing the coordinate branches of government. Finally, Plaintiffs contend the fifth Baker factor, which looks at whether there is an unusual need for unquestioning adherence to a political decision already made, is inapplicable to Plaintiffs' claims for violations of the Constitution or withholding of private benefits.
In Reply, Defendants rebut Plaintiffs' arguments by:
1) pointing out that Plaintiffs rely solely on cases in which individuals filed suit against government contractors, not against the United States itself; 2) arguing that to the extent Plaintiffs claim no "military" decisions are implicated in this case, they miss the broader point that "political" questions, not just "military" questions, are precluded from review;
3) challenging Plaintiffs' inference that the type of claim (i.e., tort, contract, constitutional, etc.) is dispositive of whether the political question doctrine acts as a bar; and
4) claiming no discovery is necessary to justify Defendants' facial attack on subject matter jurisdiction in this case.
b. Application of the doctrine.
Contrary to the case law, which requires a discriminating (and even "surgical") inquiry into each of Plaintiffs' claims, neither Defendants nor Plaintiffs actually engage in such an undertaking. See Alperin, 410 F.3d at 547 (taking a "surgical" approach to the Baker factors). Instead, both sides argue generally why the Complaint in its entirety is or is not barred. For purposes of the current analysis, however, this Court is required to examine each of Plaintiffs' causes of action separately. As will become increasing clear, application of the political question doctrine is thus almost entirely dependent on the characterization of Plaintiffs' claims.
Plaintiffs' causes of action are most appropriately analyzed when broken into two categories. Generally speaking, Plaintiffs' first set of claims includes their declaratory relief cause of action and their injunctive relief causes of action (Procedural Due Process and First Amendment*fn5 claims). Plaintiffs' second set of claims is comprised of the various iterations of their Takings cause of action.*fn6
(i) Plaintiffs' first set of claims.
Pursuant to their first set of claims, Plaintiffs seek declarations generally pertaining to: 1) the United States' use of civilian contractors in Iraq, the scope of the policies governing those contractors, and the consequences of those policies; 2) the parameters of the "War on Terror"; 3) the extent of immunities enjoyed by contractors working in Iraq and the scope of constitutional rights lost or forgone by those contractors or their families; 4) the United States' handling of a kidnapping by Iraqi insurgents in an Iraqi war zone, which includes the Government's decisions regarding negotiation protocols and policies regarding information dissemination; and
5) the availability and extent of the recovery that may be had by survivors of contractors killed during the War on Terror. In addition, Plaintiffs seek recovery on Procedural Due Process grounds, alleging that they "have a constitutionally protected interest in the lives of their children" and that Defendants deprived them of that constitutionally protected interest "without due process through the use of 'underground regulations,' 'unwritten policies,' and while illegally retaining vendors who were improperly compensated." Complaint, p. 19, ¶¶ 30-31. Plaintiffs thus seek an injunction "against Defendants' violations of rights to Due Process guaranteed by the United States Constitution." Id., p., 19, ¶ 33.
Finally, Defendants assert First Amendment violations based on their allegations that the Government advised Plaintiffs not to meet with individuals who reportedly had information pertaining to Decedents' whereabouts and that the Government blocked the distribution of flyers prepared by Plaintiffs offering a reward for information pertaining to the missing men. Given the policy-driven nature each of the above claims, the Court now holds, pursuant to the following authorities, that each of Plaintiffs' first set of claims present non-justiciable political questions.
First, in Gilligan v. Morgan, the United States Supreme Court held non-justiciable First Amendment speech and assembly claims brought by students of Kent State University. 413 U.S. 1 (1973). In that case, the students sought an injunction limiting the Governor of Ohio's ability to call upon National Guard troops to respond to civil disorder. Id. at 3. The students further sought to restrain the National Guard from violating their rights in the future and sought declaratory relief as to the constitutionality of a portion of the Ohio Revised Code. Id. The majority of the plaintiffs' claims were dismissed by the district court, the opinion of which was affirmed on appeal. The appellate court, however, remanded to the district court for consideration of the following question:
Was there and is there a pattern of training, weaponry and orders in the Ohio National Guard which singly or together require or make inevitable the use of fatal force in suppressing civilian disorders when the total circumstances at the critical time are such that nonlethal force would ...