D.C. Circuit dismisses lawsuit by Kenyan victims of 1998 bombing of U.S. Embassy in Nairobi
In the morning of August 7, 1998, a truck with explosives prepared by the al Qaeda terrorist network attempted to enter the rear parking lot of the U.S. Embassy in Nairobi, Kenya. The unarmed security guard, employed by UIIS, a contractor to the U.S. Department of State, refused to open the gate and ran for cover when one of the terrorists in the truck began shooting. The terrorist detonated the explosives, killing 44 Embassy employees, 200 Kenyan citizens, as well as injuring approximately 4,000 people. Minutes later, a truck exploded near the U.S. Embassy in Dar Es Salaam, Tanzania, killing 12 people and injuring 85.
The Appellants in the following case are a prospective class of more than 5,000 Kenyan citizens who were injured or suffered business losses as a result of the 1998 bombing of the U.S. Embassy in Nairobi. Appellants sued the U.S. under the Federal Tort Claims Act (FTCA) (28 U.S.C. 2671), claiming that the U.S. failed to warn of a potential terrorist attack and sufficiently secure the Embassy.
The district court dismissed the complaint finding exceptions applicable, namely the discretionary function, as well as the foreign country and independent contractor exceptions to the FTCA's waiver of sovereign immunity. This appeal ensued.
The U.S. Court of Appeals for the District of Columbia Circuit affirms. The FTCA authorizes courts to hear actions for damages against the U.S. "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government ... if a private person ... would be liable to the claimant in accordance with the law of the place where the act or omission occurred." See 28 U.S.C. Section 1346(b)(1). The Court then addresses the exceptions to this waiver of sovereign immunity.
The FTCA's "discretionary function" exception bars claims that are "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. Section 2680(a). The U.S. Supreme Court outlined a two-part test for this "discretionary function" exception in United States v. Gaubert, 499 U.S. 315, 322-23 (1991): First, whether any federal statute, regulation, or policy specifically prescribes a course of action that an employee must follow. Second, if there is no such federal statute, regulation or policy, and the challenged conduct involves an element of judgment, whether the judgment is of the kind that the discretionary function exception was designed to shield.
In this case, Appellants failed to identify a federal statute, regulation or policy regarding the U.S.'s alleged negligent conduct.
"This failure is hardly surprising, for as the district court explained, "determinations about what security precautions to adopt at American 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.' ... Indeed, the Secretary of State has authority to "develop and implement ... policies and programs, including funding levels and standards, to provide for the security of United States Government operations of a diplomatic nature,' 22 U.S.C. Section 4802(a)(1), and the "Physical Security Standards' section of the State Department's Foreign Affairs Manual instructs "project managers and regional security officers ... [to] follow all standards to the maximum extent possible.' UNITED STATES DEP'T OF STATE FOREIGN AFFAIRS MANUAL, 12 FAM 314.1. ... In short, embassy security is vested in the discretion of State Department employees, from the Secretary to the foreign service officers at various embassies." [Slip Op. 9-10]
The Court also rejects the Appellants' argument that unwritten policies satisfy the FTCA's requirements. In this case, Appellants point to the failure of the State Department's Office of Diplomatic Security (DS) to file the usual "trip reports" after visits to the Embassy in Nairobi in 1998. There is no showing that the DS had a mandatory obligation to file such reports. Also, the alleged instances of negligence, such as failure to train and warn security personnel, are the result of budget decisions and resource allocation that the Government makes within its discretion.
Next, the FTCA's "Foreign Country and Independent Contractor" exceptions bar Appellants' claims that the UIIS security guards were inadequately trained and equipped. The FTCA's waiver of sovereign immunity applies only to tortious acts undertaken by "officers or employees of any federal agency ... and persons acting on behalf of a federal agency in an official capacity." 28 U.S.C. Section 2671. The FTCA defines "federal agency" as any agency or instrumentality of the U.S. excluding contractors. A contractor's negligence can only be imputed to the U.S. if the contractor's day-to-day operations are supervised by the Government.
"Appellants contend that DS designed the Embassy's contracts for employing local guards, handled all payments to UIIS, and regularly provided advice regarding the contracts. ... 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 regulations that the contractor was required to conform with ... [T]he government may "fix specific and precise conditions to implement federal objectives' without becoming liable for an independent contractor's negligence."
"To be sure, appellants presented evidence that supervision of the UIIS contract amounted to a "full time job for one [Assistant Regional Security Officer].' ... Although this may well constitute the sort of day-to-day supervision falling outside the independent contractor exception, Assistant Regional Security Officers are located overseas " in this case, 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. Section 2680(k)." [Slip Op. 19-20]
Citation: Macharia v. United States, No. 02-5252 (D.C. Cir. July 11, 2003); The Washington Post, July 13, 2003, page A24.
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