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Mark Munns, et al v. Hillary Diane Rodham Clinton

March 27, 2012


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Presently before the Court is a Motion to Dismiss ("Motion") Plaintiffs' First Amended Complaint ("FAC") filed by Defendants Hillary Diane Rodham Clinton and Jennifer Foo (collectively "Defendants") in their official capacities as Secretary of State of the United States and as an employee of the Office of the Secretary of State, respectively. Defendants already successfully moved to dismiss (hereafter "First Motions") Plaintiffs' original Complaint ("Original Complaint"), see Munns v. Clinton, ___ F. Supp. 2d ____, 2011 WL 566004 (E.D. Cal.) ("Original Order"), and now, Plaintiffs' FAC is DISMISSED without leave to amend for essentially the same reasons.


A. Factual Background

Given the substantial similarity between the Original Complaint and the FAC, the Court's iteration of the facts here is taken primarily from its Original Order granting Defendants' First Motions, motions they filed in both their individual and official capacities. Original Order, 2011 WL 4566004, *1-4. Unless material differences between the pleadings are specifically identified, all of the below facts were alleged in both the Original Complaint and the FAC. The Court has chosen to detail the facts in this manner because, as will become clear below, Plaintiffs have not materially amended their Complaint and the Court's resolution of Defendants' First Motions in its Original Order is thus still directly on point here.

The original Plaintiffs were the families ("Family Plaintiffs") 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.*fn1

In addition, Gary D. Bjorlin, a former Marine who is presently classified as a contractor, has now also been joined as a Plaintiff. FAC, ¶ 9. According to the FAC, Mr. Bjorlin previously served in Iraq. Id.

The events underlying the Complaint were triggered in 2006 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.*fn2 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." Original Complaint, p. 7, ¶ 7; see also FAC, ¶ 24. 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*fn3 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. Plaintiffs contend in their FAC that "[o]ther families, whose children were not under contract with the State Department or the DOD, were allowed to freely negotiate for the return of their children" and that "there is no provision in the contracts signed by the decedents that provided a waiver of any of the private citizen's rights." Id., ¶ 27.

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." Original Complaint, p. 9, ¶ 12; FAC,

¶ 29. In the FAC, Plaintiffs contend "no similar policy was applied to other citizens during the same period of time." FAC,

¶ 29. In any event, 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, and it is their position that "Defendant Secretary of State is ultimately responsible for its contractor's nonpayment and retention of private benefits." FAC, ¶ 43. In the FAC, Plaintiffs clarify that they value these benefits and back pay at over $100,000 per Decedent. Id., ¶¶ 24, 36-37.

Also new to their FAC, though discussed by the parties in the context of Defendants' First Motions, are Plaintiffs' allegations that "it is Defendants' policy not to provide benefits for contracts such as those detailed in the U.S. Army Material Command..., Army Pamphlet 715-18." Id., ¶ 46. More specifically, Plaintiffs contend Defendants "provide no payment under the Defense Base Act ("DBA"), [42 U.S.C. § 1651, et seq.]," which incorporates the Longshore and Harbor Workers' Compensation Act ("LHWCA") and which "affords compensation benefits for the injury or death of any employee engaged in any DBA-covered employment under certain contracts." Id., ¶ 47. Plaintiffs likewise aver that Defendants "provide no payment under the War Hazards Compensation Act ("WHCA")[, 42 U.S.C. § 1701, et seq.,]..., which provides compensation for employees in the event of war hazards." Id., ¶ 48.

Aside from benefits or payments to which Plaintiffs claim they are entitled, they also again allege that the Secretary of State 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. Original Complaint, p. 11, ¶ 17; FAC, ¶ 35.*fn4

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 Provisional Authority ("CPA") Order 17, which is allegedly a State Department regulation creating absolute immunity for private contractors killing anyone in Iraq.*fn5 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. The Court also interpreted Plaintiffs' Original Complaint to allege a claim for injunctive relief under the First Amendment. See Original Order, 2011 WL 4566004, *9 n.5.

More specifically, in their Original Complaint, Plaintiffs asked 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).

In their FAC, Plaintiffs have somewhat tempered their above requests, and now Plaintiff Bjorlin only ...

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