MWANI, et al v. UNITED STATES, et al

Filing 108

ORDER STAYING CASE. Signed by Magistrate Judge John M. Facciola on 1/10/12. (lcjmf1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ODILLIA MUTAKA MWANI, et al.,
Plaintiffs,
v.
UNITED STATES, et al.,
Defendants.

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Civil Action No. 99-125 (JMF)

ORDER
This case is now in a most curious procedural posture. Whatever the original parties 1 the
defendants were, until recently, Osama Bin Laden and Al Qaida. With the President’s
announcement of the death of Bin Laden and the burial of his body at sea, plaintiffs have
suggested his death and intimated that his personal representative (assuming that concept applies
in whatever forum may assert jurisdiction over whatever property he had at his death) will not be
substituted for him. Thus, this lawsuit is now between plaintiffs who are citizens of Kenya and
Al Qaida. That means that this is now a suit between aliens and a organization that is made up of
aliens. Thus, it obviously does not fall within the grant of jurisdiction in Article III of the
Constitution which extends the judicial power of the United States to “Controversies . . . between
a State, or the Citizens thereof, and foreign States, Citizens of Subjects.” U.S. Const, Article III,
section 2. Jurisdiction has previously been found in this case through the Alien Tort Statute, 28
U.S.C. § 1350 (West 2011), but legal events suggest that the questions of jurisdiction and
1

The only remaining defendants in this case are Bin Laden and Al Qaida as The United
States, Libya and Afghanistan have all been dismissed as defendants in this case.

whether the complaint states a claim upon which relief can be granted are now much more
complicated.
First, in July of this year, the court of appeals decided Doe v. Exxon Mobil Corp., 654
F.3d 11 (D.C. Cir. 2011) concluding (inter alia) that the Alien Tort Statute reaches a claim for
relief against an American corporation. In dissent, however, Judge Kavanaugh insisted that the
Alien Tort Statute could not possibly be interpreted to reach “conduct that occurred in foreign
lands.” Id. at 74. (Kavanaugh, J. dissenting).
Additionally, there was published last year a work of particularly detailed scholarship
that explicates the historical circumstances surrounding the enactment of the Alien Tort Statute
and insists that it cannot be interpreted to permit the exercise of federal jurisdiction over an
action between aliens, let alone between them pertaining to events that occurred in a foreign
country. Anthony J. Bellia, Jr. & Bradford J. Clark, The Alien Tort Statute and the Law of
Nations, 78 U. Chi. L. Rev. 445 (2011).
Finally, on November 14, 211, the court of appeals en banc ordered that the petition for
rehearing by appellee/cross appellant Exxon be stayed pending the decision of the Supreme
Court in two Alien Tort Statute cases2 in which certiorari has been granted. Doe v. Exxon Mobil
Corp., 09-7135 (D.C. Cir. Nov. 14, 2011). While it is not perfectly clear that the Supreme Court
will reach the issue raised by Judge Kavanaugh’s dissent or the article cited, these developments
convince me that it might well be a profligate waste of judicial resources to proceed any further
in this case in this controversial area without what may be dispositive guidance from the

2

The cases being heard are Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir.
2010), cert. granted, 79 U.S.L.W. 3728 (U.S. Oct. 17, 2011) (No. 10-1491); and Mohamad v.
Rajoub, 634 F.3d 604 (D.C. Cir. 2011), cert. granted, 80 U.S.L.W. 3128 (U.S. Oct. 17, 2011)
(No. 11-88).

Supreme Court and then the court of appeals as to whether this court even has jurisdiction to
proceed.
IT IS THEREFORE ORDERED THAT all proceedings in this case are stayed
pending the resolution of appellees/cross appellants petition for rehearing en banc in Doe v.
Exxon Mobil Corp.

Digitally signed by John M. Facciola
DN: c=US, st=DC, ou=District of Columbia,
email=[e-mail]
, o=U.S. District Court, District of Columbia,
cn=John M. Facciola
Date: 2012.01.10 15:25:16 -05'00'
___________________________________________

JOHN M. FACCIOLA
UNITED STATES MAGISTRATE JUDGE