United States District Court, District of Columbia
ELLEN SEGAL HUVELLE, UNITED STATES DISTRICT JUDGE
This case arises from an alleged drone strike that killed five people in Eastern Yemen on August 29, 2012. (Compl. [ECF No. 1] ¶¶ 1, 61.) The estates of two of the victims, Salem and Waleed bin Ali Jaber (“Salem” and “Waleed”), bring this suit through a family representative seeking a declaration that the United States and various government officials (1) violated the Torture Victim Protection Act (“TVPA”) by carrying out extra-judicial killings, and (2) wrongfully caused the deaths of Salem and Waleed in violation of customary international law. (See Id. at 40.) Defendants have moved to dismiss, raising both jurisdictional and merits objections to the complaint. Because the Court concludes that it lacks subject matter jurisdiction, defendants’ motion will be granted.
Plaintiffs allege that in the early afternoon of August 29, 2012, three unidentified young men drove into the remote Yemeni village of Khashamir and began asking locals where they could find Salem. (See Compl. ¶ 51.) A moderate Islamic preacher, Salem had recently given a sermon criticizing al Qaeda’s theological justification for its violence, and the locals feared that the unknown young men had come seeking reprisal. (Id. ¶¶ 45, 47, 51.) After twice being told that Salem was visiting nearby villages, the young men returned after sundown to wait outside the mosque where Salem was leading evening prayers. (See Id. ¶¶ 51-53.) When Salem emerged, they sent a local child to ask him to meet with them, causing Salem to wonder aloud if he might be in danger. (Id. ¶¶ 53-54.) Salem’s nephew Waleed, a local policeman, offered to accompany him to the meeting to keep the peace. (Id. ¶¶ 43, 54.) Salem, Waleed, and two of the men then sat down together under a palm tree, while the third watched from a short distance away. (See Id. ¶ 55.) Soon after, members of the Ali Jaber family allegedly “heard the buzzing of the drone, and then heard and saw the orange and yellow flash of a tremendous explosion.” (Id. ¶ 57.) The first two missiles hit Salem, Waleed, and the two men, while the third hit the onlooker, and the fourth hit the men’s car. (Id. ¶ 59.) All five men were killed. (Id. ¶ 61.)
Plaintiffs assert that the United States has been carrying out a covert policy of drone strikes in Yemen since 2002, which has injured and killed Yemeni civilians. (Id. ¶¶ 68, 71.) They claim that the strike that killed Salem and Waleed was a “signature” strike, in which an unidentified person is targeted based upon a pattern of suspicious behavior, such as that exhibited by the three young men who came to meet Salem. (See Id. ¶¶ 76, 78.) They also assert that it is “highly unlikely [that] any of [the young men] were high-ranking members of al Qaeda or another terrorist organization, ” and that the men showed no signs of posing an urgent threat either to local villagers or to the United States. (Id. ¶ 65.) Plaintiffs argue that the drone operators must have been tracking the three men before they arrived in the village, as they would not have otherwise been able to distinguish them from other villagers. (Id. ¶ 66.) From this, they infer that U.S. officials must have known of non-lethal alternatives to the drone strike, such as having the men arrested at one of the manned checkpoints near Khashamir or calling in support from a nearby Yemeni military base. (See Id. ¶ 113.) By extension, even assuming that lethal force was necessary, they allege that the drone operators must have known that the men could have been targeted outside of the village, away from Salem and Waleed. (See Id. ¶¶ 114-15.)
In the hours after the strike, Faisal bin Ali Jaber-the uncle of Waleed and brother-in-law of Salem-received a phone call from a purported representative of Yemen’s security services, who apologized and stated that Salem and Waleed were “not the targets.” (Id. ¶¶ 34, 62.) Initially, Faisal sought the exoneration of Salem and Waleed and compensation from the Yemeni government, but when that was unsuccessful, he travelled to the United States to meet with various government officials and congressmen. (See Id. ¶¶ 86-87.) Although Faisal received no official explanation or acknowledgment from U.S. officials, the families of Salem and Waleed did receive the equivalent of $55, 000 in Yemeni currency months after Faisal’s return to Yemen. (Id. ¶¶ 87-88.) They also received a plastic bag with $100, 000 in sequentially marked U.S. currency, which a Yemeni security official told Faisal was “from the U.S., ” a statement that the official later retracted. (See Id. ¶¶ 89-90.)
Faisal’s efforts on behalf of the families continue today, as he seeks to prosecute this lawsuit on behalf of the representatives of Salem’s and Waleed’s estates. Those representatives, Ahmed Salem bin Ali Jaber and Esam Abdullah Abdulmahmoud bin Ali Jaber (“Ahmed” and “Esam”), have pleaded in their Complaint-and submitted signed powers of attorney affirming-that it is impossible for them to leave Yemen to pursue this lawsuit due to their “family, financial and employment circumstances.” (See Compl. ¶¶ 26-27, 30; Ex. B to Pls.’ Opp’n Br.) Moreover, they assert that volatile political conditions “render travel within and from Yemen dangerous.” (Compl. ¶¶ 27, 30; see also Ex. A to Pls.’ Opp’n Br. ¶ 6.) Finally, they assert that, even before the ongoing civil war broke out in March 2015, “telephone contact was sporadic and difficult” from Khashamir, and that “[t]eleconferencing, internet and other forms of communication were nearly impossible.” (Ex. A to Pls.’ Opp’n Br. ¶¶ 3, 6.) By contrast, Faisal was travelling outside Yemen when the civil war began, and he now lives in Montreal where he is seeking asylum. (Ex. A to Pls.’ Opp’n Br. ¶ 7.) As such, he attests that he is “easily contactable and able to participate fully in these proceedings” on behalf of Ahmed and Esam. (Id.)
I. LEGAL STANDARD
Defendants assert that the Court lacks jurisdiction to hear plaintiffs’ claims, see Fed. R. Civ. P. 12(b)(1), and therefore the Court must address those arguments at the outset. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). Under Rule 12(b)(1), plaintiffs bear the burden of establishing that the Court has jurisdiction. See U.S. Ecology, Inc. v. U.S. Dep’t of the Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). Moreover, because jurisdictional elements are “not mere pleading requirements but rather an indispensable part of the plaintiff’s case, ” they must be supported with evidence “in the same way as any other matter on which the plaintiff bears the burden of proof; i.e., with the manner and degree of evidence required at successive stages of the litigation.” Al-Aulaqi v. Obama, 727 F.Supp.2d 1, 13 (D.D.C. 2010) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). The Court must “construe the complaint in favor of the complaining party, ” see Warth v. Seldin, 422 U.S. 490, 501 (1975), but plaintiffs’ factual allegations will bear closer scrutiny than they would under Rule 12(b)(6). See Al-Aulaqi, 727 F.Supp.2d at 13-14.
Defendants also move to dismiss for failure to state a claim under Rule 12(b)(6). To survive such a motion, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, ’” such that a court may “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. Thus, “[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (citations omitted).
II. NEXT FRIEND STANDING
Defendants first argue that plaintiffs lack “next friend” standing, which would allow the action to be prosecuted by Faisal on behalf of the real parties in interest, estate representatives Ahmed and Esam. (See Defs.’ Mot. to Dismiss at 6-11.) Defendants claim that in cases involving mentally competent adults, next friend standing has only been recognized in habeas corpus cases, and that plaintiffs fail to show that Ahmed and Esam lack access to the courts. (See id.) Neither argument is persuasive.
The traditional prerequisites for next friend standing were laid out by the Supreme Court in Whitmore v. ...