Macharia, Merania v. United States

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2003 Decided July 11, 2003

No. 02-5252

MERANIA MURINGU MACHARIA, ET AL.,

APPELLANTS

v.

UNITED STATES OF AMERICA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 99cv03274)

Philip M. Musolino argued the cause and filed the briefs

for appellants.

Michael J. Ryan, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Roscoe C.

Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-

tant U.S. Attorney. Robin M. Earnest, Assistant U.S. Attor-

ney, entered an appearance.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Before: GINSBURG, Chief Judge, and ROGERS and TATEL,

Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Appellants, a prospective class of

more than 5,000 Kenyan citizens and businesses injured in

the 1998 bombing of the United States Embassy in Nairobi,

Kenya, sued the United States under the Federal Tort Claims

Act alleging that the government negligently failed to secure

the Embassy and to warn of a potential terrorist attack.

Following limited jurisdictional discovery, the district court

dismissed the complaint, finding that the discretionary func-

tion, foreign country, and independent contractor exceptions

to the Federal Tort Claims Act’s waiver of sovereign immuni-

ty bar appellants’ claims. We affirm in all respects.

I.

At approximately 10:30 on the morning of August 7, 1998,

an explosives-laden truck dispatched by the al Qaeda terrorist

network approached the entrance to the rear parking lot of

the United States Embassy in Nairobi, Kenya. An embassy

guard, a Kenyan employed by UIIS, a security company

working under contract with the State Department, refused

to open the Embassy gate. Blocked from entering the com-

pound, one of the two terrorists began shooting while the

other threw a flash grenade at another guard. Unarmed and

unable to notify the Embassy’s detachment of United States

Marines either by telephone or radio, the guards ran for

cover. Although apparently still off-premises, the terrorists

detonated their explosives, causing massive internal damage

to the Embassy, killing 44 Embassy employees and approxi-

mately 200 Kenyan citizens, injuring some 4,000 individuals,

and causing the collapse of an adjacent building. Approxi-

mately nine minutes later, another al Qaeda terrorist detonat-

ed an explosives-laden truck some thirty-five feet from the

outer wall of the United States Embassy in Dar Es Salaam,

Tanzania. That attack killed twelve people and injured

eighty-five.

3

Appellants, all Kenyan citizens and businesses injured in

the Nairobi bombing, filed suit against the United States in

the U.S. District Court for the District of Columbia alleging

that government actions and inactions led to the bombing and

exacerbated appellants’ injuries. Brought under the Federal

Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., counts I

and II of the complaint allege that the United States Embas-

sy was inherently dangerous; that State Department employ-

ees knew or should have known about a likely attack on the

Embassy and that despite this knowledge they failed to warn

their superiors, the Embassy, and Kenyan citizens; that the

State Department failed to provide properly trained security

personnel to the Embassy and to take necessary security

precautions to prevent an attack; and that as a result of these

shortcomings, the Embassy had become a private and public

nuisance. Counts I and II also seek to hold the United

States liable for the negligence of the UIIS guards. Count

III alleges that the government’s security failures violated

customary international law, the Kenyan Constitution, and

the International Covenant on Civil and Political Rights

(ICCPR). Count IV seeks formation of a constructive trust

to hold any assets or funds seized by the United States from

Osama bin Laden and al Qaeda for the benefit of plaintiffs

and prospective class members.

Invoking the discretionary function and foreign country

exceptions to the FTCA’s limited waiver of sovereign immuni-

ty, 28 U.S.C. § 2680(a), (k), the government moved to dismiss.

Before ruling on the government’s motion, the district court

allowed plaintiffs three months of jurisdictional discovery.

See Macharia v. United States, No. 99–3274 (D.D.C. March

26, 2001). During discovery, the government objected to

plaintiffs’ efforts to obtain information from any agency other

than the State Department. The government also objected to

any discovery on the merits. A magistrate judge sustained

both objections, and the district court denied plaintiffs’ mo-

tion for reconsideration. See Macharia v. United States, No.

99–3274 (D.D.C. Dec. 17, 2001).

Following completion of jurisdictional discovery, the district

court dismissed the complaint. Macharia v. United States,

4

238 F. Supp. 2d 13 (D.D.C. 2002). Rather than ‘‘apply the

heightened requirements of [Federal Rule of Civil Procedure]

12(b)(6) and treat all factual allegations—including those re-

lated to jurisdiction—in the complaint as true,’’ id. at 21

(internal quotation marks omitted), the court treated the

government’s jurisdictional arguments as a ‘‘factual chal-

lenge,’’ id. at 20, under Federal Rule of Civil Procedure

12(b)(1), and required plaintiffs to ‘‘demonstrate’’ ‘‘through

testimony and affidavits’’ that the ‘‘case is properly before the

court,’’ id. at 21. Observing that plaintiffs ‘‘were afforded

three months of discovery on the jurisdictional question,’’ id.,

the court rejected plaintiffs’ contention that it ‘‘should not

dismiss the action pursuant to Rule 12(b)(1) because [they]

have not had the opportunity to conduct sufficient jurisdic-

tional discovery in this case,’’ id. With respect to most

allegations contained in counts I and II, the court found that

‘‘[t]he decisions made by [the United States] regarding the

security of the Embassy and warnings of possible threats are

clearly discretionary in nature and grounded in policy and

therefore[ ] do not fall within the FTCA’s waiver of sovereign

immunity.’’ Id. at 26. The district court dismissed all claims

based on the alleged negligence of the UIIS guards under the

foreign country and independent contractor exceptions to the

FTCA. Id. at 26–28. As to count III, the court held that

sovereign immunity bars plaintiffs’ Kenyan Constitution and

ICCPR claims, and that plaintiffs had failed to allege a claim

under customary international law. Id. at 28–31. Having

dismissed plaintiffs’ substantive claims, the district court dis-

missed count IV, explaining that ‘‘a constructive trust is not

an independent cause of action.’’ Id at 31.

Plaintiffs now challenge the district court’s discovery rul-

ings and its dismissal of their complaint. Our review of the

district court’s dismissal of the complaint pursuant to Federal

Rule of Civil Procedure 12(b)(1) and 12(b)(6) is de novo, see

Stokes v. Cross, 327 F.3d 1210, 1214 (D.C. Cir. 2003); we

review the district court’s discovery rulings for abuse of

discretion, see Goodman Holdings v. Rafidain Bank, 26 F.3d

1143, 1147 (D.C. Cir. 1994).

5

II.

The FTCA authorizes district courts to hear suits for

money damages against the United States ‘‘for injury or loss

of property, or personal injury or death caused by the negli-

gent or wrongful act or omission of any employee of the

Government TTT if a private person TTT would be liable to the

claimant in accordance with the law of the place where the act

or omission occurred.’’ 28 U.S.C. § 1346(b)(1). The Act’s

waiver of sovereign immunity has various exceptions, howev-

er. We agree with the district court that three of those

exceptions—discretionary function, foreign country, and inde-

pendent contractor—bar appellants’ claims under counts I

and II.

Discretionary Function Exception

The FTCA’s discretionary function exception bars claims

‘‘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). In United States v. Gaubert, 499 U.S. 315, 322–23

(1991), the Supreme Court established a two-part test for

determining whether the discretionary function exception ap-

plies in a particular case. First, because ‘‘[t]he exception

covers only acts that are discretionary in nature, acts that

involve an element of judgment or choice,’’ id. at 322 (internal

quotation marks omitted), Gaubert’s first step requires that

we determine whether any ‘‘federal statute, regulation, or

policy specifically prescribes a course of action for an employ-

ee to follow,’’ id. If one does, ‘‘the employee has no rightful

option but to adhere to the directive.’’ Berkovitz v. United

States, 486 U.S. 531, 536 (1988). Under Gaubert’s second

step, which applies when there is no ‘‘federal statute, regula-

tion, or policy’’ and when the ‘‘challenged conduct involves an

element of judgment,’’ id., the court must decide ‘‘whether

th[e] judgment is of the kind that the discretionary function

exception was designed to shield,’’ id. ‘‘Because the purpose

of the exception is to prevent judicial ‘second-guessing’ of

legislative and administrative decisions grounded in social,

6

economic, and political policy through the medium of an

action in tort,’’ the Supreme Court explained, ‘‘when properly

construed, the exception protects only governmental actions

and decisions based on considerations of public policy.’’ Gau-

bert, 499 U.S. at 323 (internal quotation marks and citations

omitted).

In this case, even after several months of discovery, appel-

lants failed to establish, as Gaubert’s first step requires, the

existence of a ‘‘federal statute, regulation, or policy’’ that

applies to any of the government’s allegedly negligent con-

duct, including the government’s alleged failure to secure the

Embassy and to warn of a potential attack. This failure is

hardly surprising, for as the district court explained, ‘‘deter-

minations about what security precautions to adopt at Ameri-

can embassies, and what security information to pass on, and

to whom this information should be given, do not involve the

mechanical application of set rules, but rather the constant

exercise of judgment and discretion.’’ Macharia, 238

F. Supp. 2d at 23. Indeed, the Secretary of State has

authority to ‘‘develop and implement TTT policies and pro-

grams, including funding levels and standards, to provide for

the security of United States Government operations of a

diplomatic nature,’’ 22 U.S.C. § 4802(a)(1), and the ‘‘Physical

Security Standards’’ section of the State Department’s For-

eign Affairs Manual instructs ‘‘[p]roject managers and region-

al security officers TTT [to] follow all standards to the maxi-

mum extent possible,’’ UNITED STATES DEP’T OF STATE FOREIGN

AFFAIRS MANUAL, 12 FAM 314.1. The manual also directs

foreign service officers to engage in a process of

[r]isk management TTT begin[ning] with an assessment of

the value of the assets, the degree of a specific type of

threat, and the extent of the vulnerabilitiesTTTT A deci-

sion is then made as to what level of risk can be accepted

and which countermeasures should be applied. Such a

decision involves a cost-benefit analysis, giving decision

makers the ability to weigh varying security risk levels

against the cost of specific countermeasures.

7

Id., 12 FAH–6 H–511.4. In short, embassy security is vested

in the discretion of State Department employees, from the

Secretary to the foreign service officers at various embassies.

See Macharia, 238 F. Supp. 2d at 23–24.

Conceding that they ‘‘did not rely on any documents’’ to

demonstrate that a ‘‘federal statute, regulation, or policy’’

applied to the government’s conduct, Appellants’ Reply Br. at

6, appellants contend that the discretionary function excep-

tion is nevertheless inapplicable because the government

failed to follow an unwritten federal policy. According to

appellants, the Office of Diplomatic Security (DS), the office

within the State Department responsible for embassy securi-

ty, failed to file ‘‘trip reports’’ with the Embassy’s Regional

Security Officer following visits to the Embassy in March and

June 1998, even though ‘‘ ‘[a] team trip report would have

been a normal practice.’ ’’ Appellants’ Reply Br. at 6 (citing

Williams Dep. at 125:19–20). DS’s failure to file a trip report,

appellants maintain, left the Embassy with inadequate guid-

ance about how to improve security and to prevent al Qaeda’s

attack.

Even assuming an unwritten practice can satisfy the stat-

ute’s requirement, appellants have failed to establish that DS

had a mandatory obligation to file a trip report. To the

contrary, although the record establishes that filing trip

reports was DS’s ‘‘procedure,’’ one witness testified that

‘‘reality sometimes intercedes, and you do not have sufficient

time to do something as formal as TTT a trip report.’’ Flow-

ers Dep. at 51:15–17. The same witness explained that filing

a trip report ‘‘would be ideal, but it could have been that the

people that were team leaders TTT were immediately sent on

other trips or to handle other pressing businessTTTT If [the

diplomatic security agent] was called away before he had a

chance to write a trip report, it might be sometime before he

gets to it or it could be never if this flood of work doesn’t give

him the opportunity to do it.’’ Id. at 49:7–21. The record

thus establishes only that filing trip reports was preferred,

not that it was required, i.e., not that it amounted to a

mandatory policy.

8

Having failed to identify a relevant ‘‘federal statute, regula-

tion, or policy’’ under Gaubert’s first step, appellants contend

that the discretionary function exemption is inapplicable un-

der the second step because the government’s conduct was

the product of simple negligence rather than social, political,

or economic considerations. Specifically, appellants cite

twenty-one instances of alleged government negligence, from

its failure to fix a pin in the drop bar at the Embassy’s rear

parking lot to its failure to timely design a training program

for vehicle bomb recognition and prevention that led to

appellants’ injuries. See Appellants’ Br. at 25–26. The dis-

trict court helpfully distilled these allegations into six catego-

ries:

1) a failure to provide guidance and advice on improving

security at the Embassy, 2) a failure to provide security

equipment to the Embassy, 3) a failure to train adequate-

ly Embassy personnel and contractors to deal with vari-

ous security threats, 4) a failure to warn adequately

Embassy personnel, and others, of potential terrorist

threats, 5) an improper classification of the level of

security risk at the Embassy, or 6) falsely leading Em-

bassy personnel to believe that security analyses had

been conducted or would be conducted.

Macharia, 238 F. Supp. 2d at 22. The district court conclud-

ed that all six categories were barred by the second step of

the discretionary function test. Id. As the district court

explained, ‘‘[d]ecisions regarding how much safety equipment

should be provided to a particular embassy, how much train-

ing should be given to guards and embassy employees, and

the amount of security-related guidance that should be pro-

vided necessarily entails balancing competing demands for

funds and resources.’’ Macharia, 238 F. Supp. 2d at 25.

‘‘Each individual embassy’s need for security,’’ the district

court noted:

must be balanced against the need perceived at other

embassies, and the need for security must be balanced

against the need for alternative projects that could con-

sume scarce resources. Moreover, each of Defendant’s

9

decisions regarding security involved balancing potential

inconvenience to State Department employees against

the perceived security gains that would result from a

safety measure.

Id. We have little to add to the district court’s fine analysis,

except to note that, as the government points out in its brief,

‘‘decisions about foreign embassies, especially their location

and structure, require agency officials to account for policy

objectives, and consult and negotiate with the host country—

actions that, by their very nature, affect foreign relations.’’

Appellee’s Br. at 27.

Appellants insist that ‘‘[n]othing in the record supports the

notion that anyone at DS ‘decided’ to: make inaccurate

statements, fail to keep a promise, fail to send a report, fail to

send a report on time, overlook a broken pin or outdated

dropbar, or fail to correct misapprehensions.’’ Appellants’

Br. at 30. Put another way, appellants maintain that Gau-

bert’s second step requires evidence that decision makers

actually considered social, economic, or policy considerations.

But we rejected just this argument in Cope v. Scott, 45 F.3d

445, 449 (D.C. Cir. 1995) (citation omitted): ‘‘What matters is

not what the decisionmaker was thinking, but whether the

type of decision being challenged is grounded in social, eco-

nomic, or political policy. Evidence of the actual decision

may be helpful in understanding whether the ‘nature’ of the

decision implicated policy judgments, but the applicability of

the exemption does not turn on whether the challenged

decision involved such judgments.’’

Appellants’ challenges to the district court’s discovery or-

ders require little discussion. They argue that the district

court improperly applied a factual attack standard under

Federal Rule of Civil Procedure 12(b)(1), which requires

plaintiffs to demonstrate through affidavits and other testimo-

ny that the court has jurisdiction, instead of a facial attack

standard under Federal Rule of Civil Procedure 12(b)(6),

where the court accepts the plaintiffs’ allegations as true.

See Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d

Cir. 2000). According to appellants, the district court’s choice

10

of a factual attack standard was error, since the court allowed

discovery only regarding physical security and denied appel-

lants a chance to conduct discovery on ‘‘threat response.’’

Appellants’ Br. at 18. In support of this allegation, appel-

lants point out that the deponents offered by the government

declined to answer any questions on the threat issue, but

appellants ignore the fact that those deponents were not

asked to testify on that issue. Moreover, as the government

observes, ‘‘appellants refute their own argument by citing

documents on threat information that appellee produced in

discovery, to support their claim of failure to disseminate

threat information.’’ Appellee’s Br. at 42. The district court

thus properly employed a factual attack standard under Fed-

eral Rule of Civil Procedure 12(b)(1).

Nor do we detect any abuse of discretion in the district

court’s other discovery orders. The State Department’s stat-

utory responsibility for embassy security obviated the need

for discovery in other departments and agencies. See 22

U.S.C. § 4802. Likewise, discovery on the merits would have

been entirely irrelevant to the jurisdictional issue raised by

the government’s motion to dismiss. See Ignatiev v. United

States, 238 F.3d 464, 467 (D.C. Cir. 2001) (remanding dismiss-

al of FTCA claim for jurisdictional discovery).

Foreign Country and Independent Contractor Exceptions

Our conclusion regarding the discretionary function excep-

tion leaves only appellants’ allegations of negligence by Em-

bassy guards. According to appellants, the Kenyans UIIS

hired as Embassy guards lacked adequate training and equip-

ment, and negligently failed to identify and stop the terrorists

from detonating the bomb. We agree with the district court

that the independent contractor and foreign country excep-

tions bar these claims.

The FTCA’s waiver of sovereign immunity applies only to

tortious acts undertaken by ‘‘officers or employees of any

federal agency TTT and persons acting on behalf of a federal

agency in an official capacity.’’ 28 U.S.C § 2671. The Act

defines ‘‘federal agency’’ as ‘‘the executive departments[,] TTT

11

independent establishments of the United States, and corpo-

rations primarily acting as instrumentalities or agencies of

the United States, but does not include any contractor with

the United States.’’ Id. The Supreme Court has interpreted

this language, referred to as the ‘‘independent contractor

exception,’’ to mean that a contractor’s negligence may only

be imputed to the United States if the contractor’s ‘‘day-to-

day operations are supervised by the Federal Government.’’

United States v. Orleans, 425 U.S. 807, 815 (1976). ‘‘A critical

element in distinguishing an agency from a contractor,’’ the

Court explained, ‘‘is the power of the Federal Government ‘to

control the detailed physical performance of the contractor.’ ’’

Id. at 814 (quoting Logue v. United States, 412 U.S. 521, 528

(1973)).

Appellants contend that DS designed the Embassy’s con-

tracts for employing local guards, handled all payments to

UIIS, and regularly provided advice regarding the contracts.

See Appellants’ Br. at 33. They also contend that the con-

tract required UIIS to provide the State Department with the

names of the local guards it employed, to submit the names of

all personnel to the Department for approval, to ensure that

guards wear uniforms approved by the Department, and to

conduct inventories as directed by the Department. Id. Far

from demonstrating day-to-day State Department supervision

of the contractor, however, these allegations establish only

that ‘‘the contract set forth detailed guidelines and regula-

tions that the contractor was required to conform with as it

implemented its hiring, supervision and training of Embassy

local guards.’’ Macharia, 238 F. Supp. 2d at 28. As the

Supreme Court held in Orleans, the government may ‘‘fix

specific and precise conditions to implement federal objec-

tives’’ without becoming liable for an independent contractor’s

negligence. Orleans, 425 U.S. at 816.

To be sure, appellants presented evidence that supervision

of the UIIS contract amounted to a ‘‘full time job for one

[Assistant Regional Security Officer].’’ Appellants’ Br. at 34.

Although this may well constitute the sort of day-to-day

supervision falling outside the independent contractor excep-

tion, Assistant Regional Security Officers are located over-

12

seas—in this case, in Nairobi—and the FTCA’s sovereign

immunity waiver does not extend to acts or omissions arising

in territory subject to the sovereign authority of another

nation. See 28 U.S.C. § 2680(k); see also United States v.

Spelar, 338 U.S. 217, 221 (1949) (purpose of foreign country

exception is to avoid having another country’s law define the

scope of the federal government’s tort liability). Moreover,

to the extent that appellants allege negligent supervision of

local guards by State Department employees located in the

United States, those allegations are, for the reasons given

above, barred by the discretionary function exception. See

supra pp. 6–10.

III.

Having considered appellants’ remaining arguments and

finding no basis for questioning the district court’s disposi-

tion, we affirm in all respects.

So ordered.