Sami Allaithi v. Donald Rumsfeld, et al

Filing

OPINION filed [1496795] (Pages: 15) for the Court by Judge Brown [13-5096, 13-5097]

USCA Case #13-5096

Document #1496795

Filed: 06/10/2014

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 21, 2014

Decided June 10, 2014

No. 13-5096
SAMI ABDULAZIZ ALLAITHI,
APPELLANT
v.
DONALD H. RUMSFELD, FORMER SECRETARY OF DEFENSE,
DEPARTMENT OF DEFENSE, ET AL.,
APPELLEES

Consolidated with 13-5097

Appeals from the United States District Court
for the District of Columbia
(No. 1:08-cv-01677)
(No. 1:06-cv-01996)

Russell P. Cohen argued the cause for appellants. With
him on the briefs were Howard M. Ullman and Shayana D.
Kadidal.
Sydney Foster, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Stuart F. Delery, Assistant Attorney General, and Matthew M.
Collette, Attorney. Sharon Swingle, Attorney, entered an
appearance.

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Before: TATEL and BROWN, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court by Circuit Judge BROWN.
BROWN, Circuit Judge. As the United States enters the
coda of its military engagement in Afghanistan, we continue
with our task of resolving the many legal questions left in the
wake of warfare. In this case, we assess whether certain
detainees cleared by a military tribunal but nevertheless
subjected to continued detention and allegedly abusive
treatment have sufficiently alleged that those authorizing and
supervising their detention acted outside the scope of their
employment. We conclude they did not, and we affirm the
decision of the district court.
I
This appeal arises from events surrounding six
individuals formerly detained at the U.S. Naval Base in
Guantanamo Bay, Cuba. Yuksel Celikgogus, Ibrahim Sen,
Nuri Mert, Zakirjan Hasam, Abu Muhammad, and Sami
Allaithi were all kept at the detention facility for various
periods of time between 2001 and 2006. Celikgogus, Sen,
and Mert were returned to their home country of Turkey
without any determination by the Combatant Status Review
Tribunals (CSRTs).
Hasam, Muhammad, and Allaithi
appeared before a CSRT and were subsequently cleared—i.e.,
no longer classified as suspected enemy combatants.
The CSRT determinations, however, did not mark the
end of their respective stays at Guantanamo. Hasam, for
instance, was informed he was cleared on May 8, 2005 but
was not transferred to the custody of Albanian officials until

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November 16, 2006. Muhammad similarly received word in
May 2005, but did not depart for Albania until nearly two
years later. Allaithi was informed of his CSRT clearance
sometime after November 2004, and he was transferred to the
custody of Egyptian officials about ten months after his
appearance before a CSRT.
Their extended stays could hardly be called uneventful.
According to Hasam, he was subjected to forced grooming,
solitary confinement, sleep deprivation, forced medication,
transport in “shackles and chains, blackened goggles, and ear
coverings,” and the disruption of his religious practices after
CSRT clearance. See J.A. at 68–69. After receiving his
CSRT determination, Muhammad was “shackled, physically
searched and insulted.” See J.A. at 74.
On November 21, 2006, Celikgogus, Sen, Mert, Hasam,
and Muhammad filed suit in district court, claiming these
events—in addition to ones that took place prior to CSRT
clearance but not before us today—gave rise to various causes
of action, including violations of the Alien Tort Statute
(ATS), the Geneva Convention, the Vienna Convention on
Consular Relations, the First Amendment, the Due Process
Clause, the Religious Freedom Restoration Act (RFRA), and
the Federal Civil Rights Act. Nearly two years later, Allaithi
followed suit, making similar claims. The crux of the
plaintiffs’ allegations was that the named defendants
“authorized” and “turned a blind eye to” the alleged abuses.1
See J.A. at 80, 116–17.

1

The complaints also contain allegations against Doe defendants.
The plaintiffs did not appeal the district court’s dismissal of that
aspect of their respective cases. Any issues concerning these
defendants are therefore forfeited.

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The Attorney General certified the Appellees were acting
within the scope of their employment at the time of the
alleged events. The Government then filed a motion to
dismiss in both cases, arguing both iterations of Rasul v.
Myers foreclosed the Appellants’ claims. See generally Rasul
v. Myers, 563 F.3d 527 (D.C. Cir. 2009) (Rasul II); Rasul v.
Myers, 512 F.3d 644 (D.C. Cir.) (Rasul I), vacated and
remanded by 555 U.S. 1083 (2008). After consolidating the
two suits, the district court agreed with the Government’s
position and dismissed the cases. With respect to the
Appellants’ treatment after CSRT clearance, the district court
explained the determination was a “distinction without a
difference,” as the tribunals “did not change the fact that the
plaintiffs were detainees of the U.S. military as part of its
operations in conducting the war on terror.” Celikgogus v.
Rumsfeld, 920 F. Supp. 2d 53, 58–59 (D.D.C. 2013). Because
the ATS claims against the individual defendants should have
been Federal Torts Claims Act (FTCA) claims against the
United States, the district court concluded the plaintiffs’
failure to exhaust available administrative remedies deprived
it of subject matter jurisdiction. See id. at 59.
II
We review a district court’s Rule 12(b)(1) dismissal de
novo. Oakey v. U.S. Airways Pilots Disability Income Plan,
723 F.3d 227, 231 (D.C. Cir. 2013).
The Alien Tort Statute (ATS) grants jurisdiction and
recognizes a cause of action for “private claims [for
international law violations] under federal common law.”
Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1663
(2013). In ATS suits filed against officers or employees
acting within the scope of their employment, the United States
is substituted as a defendant pursuant to the Westfall Act, 28

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U.S.C. § 2679(d)(1). The Attorney General may certify an
employee was acting within the scope of his employment,
though his certification only serves as prima facie evidence
that can be rebutted by “specific facts that, taken as true,
would establish that the defendant’s actions exceeded the
scope of his employment.” Jacobs v. Vrobel, 724 F.3d 217,
220 (D.C. Cir. 2013).
The question of whether a particular act falls within the
scope of employment is governed “by the law of the place
where the employment relationship exists.” Majano v. United
States, 469 F.3d 138, 141 (D.C. Cir. 2006). In Rasul I, we
explained that, for cases involving acts related to detention at
Guantanamo Bay, the place of employment is the District of
Columbia. Rasul I, 512 F.3d at 655. D.C. law, in turn, has
incorporated the Second Restatement of Agency, see, e.g.,
Schecter v. Merchs. Home Delivery, Inc., 892 A.2d 415, 427–
28 (D.C. 2006), which sets forth four factors, all of which
must apply for the conduct of a servant to fall within the
scope of employment:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and
space limits;
(c) it is actuated, at least in part, by a purpose to serve
the master; and
(d) if force is intentionally used by the servant against
another, the use of force is not unexpectable by the
master.
RESTATEMENT (SECOND) OF AGENCY § 228(1) (1958); see
also Jacobs, 724 F.3d at 221; Council on Am. Islamic
Relations v. Ballenger, 444 F.3d 659, 663 (D.C. Cir. 2006).
We apply the test “very expansively,” and in essence ask
“whether the defendant merely was on duty or on the job

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when committing the alleged tort.” Harbury v. Hayden, 522
F.3d 413, 422 n.4 (D.C. Cir. 2008); see also Ballenger, 444
F.3d at 664 (noting the duties test is to be “liberally
construed”).
Though we are presented with an extensive chronology
of events with multiple players, the actions at issue can be
divided into two. First, we have the continued detention of
the plaintiffs post-CSRT clearance. Second, we have all acts
attendant to that continued detention—the allegations of
torture, religious desecration, etc., that occurred during the
post-clearance period. We conclude that claims in both
categories, as pled, fail to support the conclusion that the
defendants acted outside the scope of their employment.
A
From the outset, we affirm the decision of the district
court as to Celikgogus, Sen, and Mert. These three
individuals were not cleared by a CSRT—a fact they claim is
a dispositive factor. And by their own admission, this case
does not focus on them. See Reply Br. at 7 n.4 (“As a result
of this Court’s rulings in the Rasul cases, this appeal focuses
on the post-[CSRT] determination, detention, and abuse of
Plaintiffs Al Laithi, Hasam, and Muhammad.”). Celikgogus,
Sen, and Mert cannot prevail with Rasul I in the books, and

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we are in no position to overturn that decision of this court.2
See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir.
1996) (en banc) (“One three-judge panel . . . does not have the
authority to overrule another three-judge panel of the court.”
(citation omitted)).
That leaves us with Hasam, Muhammad, and Allaithi,
who have all raised claims of prolonged detention. Hasam
was detained for a little over a year and a half after his
clearance by a CSRT; Muhammad for about two. There is
some uncertainty about the duration between Allaithi’s receipt
of CSRT clearance and his transfer to Egyptian officials, but
about ten months elapsed between his appearance before the
tribunal and his eventual transfer.
Allaithi and his fellow former detainees argue the CSRT
clearance ended the duties of their jailers. According to them,
the 2001 Authorization for the Use of Military Force only
permitted the lawful detention of suspected enemy
combatants. Therefore, they reason military officials could
not continue to detain cleared detainees, as such continued
2

Unlike their three co-plaintiffs, Celikgogus, Sen, and Mert do not
allege post-CSRT abuses, namely because it would be
chronologically impossible for them to allege abuse that occurred
after a CSRT clearance that never happened. We see no reason to
disagree with their concession that the pre-release abuse they
allegedly endured is not discernibly different from the sort in Rasul
I. See Reply Br. at 7 n.4. Certainly, Celikgogus, Sen, and Mert
could have made allegations that better satisfied the Restatement
factors, as compared to the Rasul I plaintiffs. The trio did not, and
thus we cannot entertain that hypothetical. See Chafin v. Chafin,
133 S. Ct. 1017, 1023 (2013) (“Federal courts may not . . . give
‘opinion[s] advising what the law would be upon a hypothetical
state of facts.’” (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472,
477 (1990))).

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detention would be ultra vires and thus outside the scope of
employment. See Appellants’ Br. at 28.
Obviously, however, the individual defendants here were
expected to facilitate continued detention post-CSRT
clearance. In a July 7, 2004 memorandum establishing the
CSRTs, the Pentagon indicated the transfer of cleared
detainees would require coordination between three parties:
the Secretary of Defense, the Secretary of State, and a
detainee’s country of citizenship (or a suitable substitute).
See Memorandum from Paul Wolfowitz, Deputy Sec’y of
Def., at 3–4 (July 7, 2004) (explaining that, once “the
Tribunal determines that the detainee shall no longer be
classified as an enemy combatant, . . . [the Secretary of
Defense] or his designee shall so advise the Secretary of
State, in order to permit the Secretary of State to coordinate
the transfer of the detainee for release to the detainee’s
country of citizenship or other disposition consistent with
domestic and international obligations and the foreign policy
of the United States”).
The Secretary of the Navy
subsequently instructed officials at Guantanamo Bay to
coordinate the continued detention and transportation of
cleared detainees. See Memorandum from Gordon England,
Sec’y of the Navy, Implementation of the Combatant Status
Review Tribunal Procedures for Enemy Combatants Detained
at Guantanamo Bay Naval Base, Cuba, encl. 1, at 9 (July 29,
2004) (“In these cases [where a detainee is no longer
classified as an enemy combatant] the Director, CSRT, will
ensure coordination with the Joint Staff with respect to
detainee transportation issues.”). Though the memoranda are
hardly paragons of clarity, they do establish that postclearance detention was authorized and expected. Nothing
indicates a failure to effectuate an immediate release of
detention was a dereliction of duty putting the Appellees’
conduct outside the scope of employment. To think otherwise

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would be to ignore the realities of war, and, for that matter,
administrative bureaucracy.
B
These memoranda, however, make no mention of acts
attendant to post-clearance detention. They contain no
reference endorsing the disruption of religious practices, the
shackling and chaining of detainees, and the imposition of
solitary confinement. Still, based on our understanding of the
pleadings, we conclude these actions fell within the
defendants’ scope of employment.
We first assess whether the alleged misconduct is “of the
kind” the named defendants were employed to perform. “To
qualify as conduct of the kind [an employee] was to perform,
[his or her] actions must have either been ‘of the same general
nature as that authorized’ or ‘incidental to the conduct
authorized.’” Haddon v. United States, 68 F.3d 1420, 1424
(D.C. Cir. 1995) (quoting RESTATEMENT (SECOND) OF
AGENCY § 229 (1957)). Conduct is “incidental” so long as it
is “foreseeable”—that is, it must be a “direct outgrowth of the
employee’s instructions or job assignment.” Id. (quoting
Boykin v. Dist. of Columbia, 484 A.2d 560, 562 (D.C. 1984)).
The foreseeability test is to be liberally applied—“broad
enough to embrace any intentional tort arising out of a dispute
that was originally undertaken on the employer’s behalf.”

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Ballenger, 444 F.3d at 664. The test is not a particularly
rigorous one.3
Hasam alleges he was subjected to disruption of his
religious practices, solitary confinement, shackles and chains,
blackened goggles, ear coverings, sleep deprivation, body
searches, and forcible shaving. See J.A. at 68–69. Similarly,
Muhammad contends he was “shackled, physically searched
and insulted after his non-enemy combatant designation,”
with “guards . . . disrupt[ing] his religious practice . . . and
desecrat[ing] . . . Korans.” See J.A. at 74–75. They assert
this unpalatable treatment could not be within the scope of
their jailers’ employment—the two ostensibly had no
intelligence value post-CSRT clearance, unlike the detainees
who brought similar challenges in Rasul I.4
But Rasul I still controls. In that case, we made it clear
the sort of conduct described here was incidental to “the
detention and interrogation of suspected enemy combatants”
and therefore “the type of conduct the defendants were
3

This court has previously upheld a jury’s determination that
sexual assault committed by an employee of a delivery service in
the course of delivering a mattress was “foreseeable” and therefore
incidental to authorized duties. See Lyon v. Carey, 533 F.2d 649,
651 (D.C. Cir. 1976). Similarly, in Johnson v. Weinberg, 434 A.2d
404 (D.C. 1981), the District of Columbia Court of Appeals—
taking a cue from Lyon—determined the shooting of a customer by
a laundromat employee could potentially be an “outgrowth of a jobrelated controversy.” Id. at 409.
4

We note Allaithi does not allege he was subjected to treatment
similar to that endured by Hasam and Muhammad after his CSRT
clearance. Instead, he only avers he was “held for ten additional
months after his CSRT before his transfer out of Guantanamo.”
J.A. at 114.

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employed to engage in.” See Rasul I, 512 F.3d at 658–59.
Though the intelligence rationale has dissipated, the need to
maintain an orderly detention environment remained after
CSRT clearance.
Penn Central Transportation Co. v. Reddick, 398 A.2d
27 (D.C. 1979), provides us with a helpful contrast. There, a
railroad brakeman was traveling from New Jersey to
Alexandria, Virginia, for work. See id. at 28. After taking the
train down to D.C., he took a cab to complete his journey.
See id. En route, the railroad employee assaulted his cab
driver. See id. at 29. The D.C. Court of Appeals determined
the railroad company that employed the brakeman could not
be held liable for this assault, as it was “neither a direct
outgrowth of the employee’s instructions or job assignment,
nor an integral part of the employer’s business activity,
interests or objectives.” Id. at 32. As “nothing in the business
of running a railroad . . . [made] it likely that an assault
[would] occur between a railroad brakeman and a taxicab
driver . . . [over a] taxicab ride,” the court determined the tort
was beyond the scope of employment. Id.
The conduct here, however, is not similarly devoid of a
connection between tort and employer. Indeed, the treatment
of the detainees in this case appears to be standard for all
those similarly situated. See, e.g., Ali v. Rumsfeld, 649 F.3d
762, 765–66 (D.C. Cir. 2011); Rasul I, 512 F.3d at 650–51.
Authorized or not, the conduct was certainly foreseeable
because maintaining peace, security, and safety at a place like
Guantanamo Bay is a stern and difficult business. We are
therefore hard-pressed to conclude the actions leading to the
plaintiffs’ treatment were not “a direct outgrowth of the
[defendants’] instructions or job assignment.” See Penn
Central, 398 A.2d at 32. Instead, we hold the conduct was
incidental to the kind authorized by the CSRT memoranda.

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We also cannot agree with the Appellants’ contention
that the Appellees had no purpose to serve the master—the
third Restatement requirement. The master here is the United
States, and it has a well-recognized penological interest in
“maintaining security and discipline” at Guantanamo Bay.
See Aamer v. Obama, 742 F.3d 1023, 1040 (D.C. Cir. 2014).
Our review of the pleadings suggests the defendants served
the purpose of fulfilling that interest and took actions
accordant with effecting “detention in a military prison.” See
Oral Arg. Tr. at 20:10 (explaining one of the underlying
functions of the defendants was “maintaining security and
order at the detention facility”). The fact that a detainee has
been cleared by a CSRT, i.e., may not have been involved in
combat against American forces, does not extinguish the
possibility the detainee may nevertheless decide to be
disruptive until his release.
The Appellants’ argument does not precisely reflect what
the Restatement requires. While they argue “[t]he moment
the employee begins pursuing his own ends, the employee is
no longer within the scope of his employment even though he
may appear to be on the job,” Appellants’ Br. at 31, this is not
an accurate articulation of D.C. law. Local law requires an
employee be solely motivated by his own purposes for
consequent conduct to fall outside the scope of employment.
See Weinberg v. Johnson, 518 A.2d 985, 990 (D.C. 1986)
(“The first criterion . . . excludes from the scope of
employment all actions committed solely for the servant’s
own purposes.” (emphasis added)). It is difficult for a
detainee to plausibly allege the defendants’ post-clearance
conduct was entirely motivated by some sort of personal
animus; this is especially true when the conduct is similar, if
not identical, to the sort determined to be within the scope of
employment prior to clearance, see, e.g., Rasul I, 512 F.3d at

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658–59. Indeed—and critically for this case—the Appellants
failed to assert that the Appellees’ actions were completely
devoid of a purpose to serve the United States, despite having
ample notice of the scope-of-employment framework set forth
by Rasul I. Moreover, the allegations set forth in the
complaint—that the named defendants “authorized,
mandated, implemented, encouraged, condoned, acquiesced
in, turned a blind eye to, or failed in their command
obligations to prevent the torture and cruel, inhuman, or
degrading treatment that took place at Guantanamo,” see J.A.
at 78, 80, 116–19—are the conclusory sort that “are not
entitled to the presumption of truth.” See Ashcroft v. Iqbal,
556 U.S. 662, 681 (2009). Despite vividly detailing the
various abuses allegedly endured by the Appellants, the
complaints do not specify how the named defendants were
involved with these abuses. See J.A. at 68–69, 75, 112–13.
With the first and third Restatement factors satisfied—and the
others uncontested—we conclude the allegedly abusive
conduct fell within the named defendants’ scope of
employment.
III
We briefly address the remainder of the Appellants’
arguments. First, they contend the district court erred in
dismissing their RFRA and Bivens claims. These contentions
are foreclosed by the Rasul decisions, and stare decisis
forbids us from revisiting the wisdom of existing caselaw.
The Appellants cannot pursue a Bivens claim because
qualified immunity “insulates the defendants” here;
alternatively, special factors counsel against allowing the
claim to move forward. See Rasul II, 563 F.3d at 530, 532
n.5. Their RFRA claim meets a similar fate; because the
Appellants were “located outside sovereign United States
territory at the time their alleged RFRA claim arose, they do

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not fall [within the Act’s] definition of ‘person’” and are
therefore barred from bringing a RFRA challenge. See Rasul
I, 512 F.3d at 672.
As for their Vienna Convention argument, we decline to
entertain the Appellants’ bare-bones contention that the treaty
confers a private right of action. “In this circuit, it is not
enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel’s work, create
the ossature for the argument, and put flesh on its bones.”
Davis v. Pension Benefit Guar. Corp., 734 F.3d 1161, 1166–
67 (D.C. Cir. 2013). Two sentences of argument, a
threadbare conclusion, and a handful of marginally relevant
citations do not provide us with enough to adequately assess
the strength of their legal conclusions. See Appellants’ Br. at
40–41. But even if they did, we strongly doubt the
Appellants’ position is the correct one. See, e.g., United
States v. Emuegbunam, 268 F.3d 377, 392–94 (6th Cir. 2001);
United States v. Jimenez-Nava, 243 F.3d 192, 197–98 (5th
Cir. 2001).
This case has had a long history, one clouded by
uncertainty as Rasul was making its way up and down the
courts. But the now-settled law reveals several flaws and
inadequacies of the Appellants’ complaint—some discussed
above, some not. In response, counsel invites us to remand
this case to allow them an opportunity to rectify whatever
mistakes lie in their pleadings. See, e.g., Oral Arg. Tr. at
11:13–16, 13:14–18. We cannot. Not only did the Appellants
have ample time to amend their complaint after the dust
settled in Rasul, we ordinarily cannot return a case to the
district court for the opportunity to amend inadequate
pleadings unless the plaintiffs first ask that court for leave to
amend and are denied. See Brooks v. Grundmann, --- F.3d ---, 2014 WL 1420295, at *6 (D.C. Cir. Apr. 15, 2014)

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(explaining a failure to ask the district court for leave to
amend a complaint “bars [the court] from remanding [the]
case to give [the plaintiff] an opportunity to fix her
complaint”). Though the Celikgogus plaintiffs did ask for
leave to amend, the district court granted their motion for
leave, which gave rise to their second amended complaint.
Despite being filed after the release of Rasul I, the second
complaint still did not conform to the framework we set forth
in that case. And the Appellants never asked for leave to
amend again. Thus, we have little reason to veer from our
precedent; accordingly, we decline to send this case back to
the district court.
IV
The district court’s grant of Appellees’ motion to dismiss
is
Affirmed.

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