United States District Court, District of Columbia
E. BOASBERG JUDGE
Supreme Court has often emphasized that “[j]ust as
military society has been a society apart from civilian
society, so ‘military law . . . is a jurisprudence
which exists separate and apart from the law which governs in
our federal judicial establishment.'” Parker v.
Levy, 417 U.S. 733, 744 (1974) (alterations omitted)
(quoting Burns v. Wilson, 346 U.S. 137, 140 (1953)).
Sometimes, however, military law and society collide with
their civilian counterparts. This is one such case. The Court
here considers the suit brought by Stephen Gill, a current
civilian and former active-duty officer who was forcefully
taken from his Massachusetts home by U.S. Marshals and
compelled to testify in Virginia by video in front of a
Guantanamo Bay military commission.
alleges a variety of claims against the Government and its
employees, seeking recompense for his treatment at their
hands. Many of his theories of relief implicate the fragile
divide between the military and civilian court systems, a
divide this Court is hesitant to breach unnecessarily. While
troubled by the conduct alleged in the Complaint, it
ultimately concludes that the Individual Defendants are
immune from suit -- immunity that precludes the Court from
reaching the merits of the claims against them. As such, it
will partially grant Defendants' Motions to Dismiss. The
Court offers no opinion as to the remainder of Gill's
counts, which he lodges against the United States under the
Federal Tort Claims Act. Instead, he must pursue such claims
in the venue in which most of the offensive conduct took
place -- i.e., the District of Massachusetts. The
Court accordingly transfers what is left of the case there
for further proceedings.
Military Commissions Act of 2006 “authorize[s] trial by
military commission for violations of the law of war, and for
other purposes.” Pub. L. No. 109-336, 120 Stat. 2600
(codified at 10 U.S.C. §§ 948-49). Today's
military commissions are the product of an extensive dialogue
among all three branches of government. Signed into law by
two different Presidents, the MCA was originally passed by
Congress following a Supreme Court decision that invalidated
the prior commission process, see Hamdan v.
Rumsfeld, 548 U.S. 557, 635 (2006), and it was amended
2009. See Pub. L. No. 111-84, § 1807, Stat.
2574. The MCA establishes a “special set of procedures
for using ‘military commissions to try alien
unprivileged enemy belligerents.'” In re
Al-Nashiri, 921 F.3d 224, 227 (D.C. Cir. 2019) (quoting
10 U.S.C. § 948b(a)). These procedures are borrowed from
the courts-martial system, which is similar to but distinct
from its civilian cousin. See O'Callahan v.
Parker, 395 U.S. 258, 261 (1969) (“[T]he
exigencies of military discipline require the existence of a
special system of military courts in which not all of the
specific procedural protections deemed essential in Art. III
trials need apply.”)
case arises out of the prosecution of Abd Al-Rahim Hussein
Muhammed Al-Nashiri in the military commission at Guantanamo
Bay. Al-Nashiri stands accused of orchestrating a series of
bombings in the 2000s on behalf of Al-Qaeda, attacks that
resulted in at least eighteen fatalities and almost fifty
injuries. See In re Al-Nashiri, 921 F.3d at 226.
This case does not concern the Government's treatment of
Al-Nashiri, but rather the conduct of a military judge, two
prosecutors, and approximately 23 U.S. Marshals
vis-à-vis Gill. In recounting the background,
the Court, as it must, treats the facts in the Amended
Complaint as true.
a resident of Massachusetts who formerly served as an officer
and judge advocate in the U.S. Navy reserves. See
ECF No. 7 (First Amended Complaint), ¶¶ 4, 13.
While on active duty, he acted as legal advisor pro
tempore for the Al-Nashiri military commission.
Id., ¶ 15. In that capacity, Plaintiff reported
that certain federal employees were violating a
Disqualification Order entered by military-commission judge
(and Defendant in this suit) Colonel Vincent Spath barring
them from working on Al-Nashiri's case. Id.,
¶¶ 14-16. Following these events, Gill was
reassigned to another military command and then demobilized
from active duty. Id., ¶¶ 17, 20. He
returned to civilian status in May of 2015. Id.,
would not enjoy the relative tranquility of civilian life for
long. That same month, defense counsel for Al-Nashiri filed a
motion requesting Gill's presence at an evidentiary
hearing, which the Court presumes related to his former
involvement with the case. Id., ¶ 21. Gill
requested that he be permitted to testify via video
teleconference (VTC) from Rhode Island, nearer his home, but
he was rebuffed, and he ultimately testified in September
2016 via VTC from Alexandria, Virginia. Id.,
¶¶ 26-28. After the conclusion of his testimony,
Spath informed him that his participation would again be
needed at some point between October 17 and October 21.
Id., ¶ 27. Plaintiff requested that he be
permitted to deliver any needed additional testimony from
somewhere closer to Massachusetts than Virginia.
Id., ¶ 28.
point, the situation became unexpectedly adversarial. First,
on October 13, 2016, Gill received a military-commission
subpoena signed by Defendant and U.S. Brigadier General Mark
Martins - the Chief Prosecutor at Guantanamo Bay - requiring
him to appear on October 17 via VTC from Alexandria.
Id., ¶ 33. Plaintiff applied for relief from
the subpoena as permitted by the relevant military-commission
rules, which are promulgated by the Department of Defense.
Id., ¶ 34; see also R.M.C.
703(e)(2)(F) (in case of subpoena directed to a civilian,
“[i]f a person subpoenaed requests relief on the
grounds that compliance is unreasonable or oppressive, the
convening authority or, after referral, the military judge
may direct that the subpoena be modified or withdrawn if
appropriate”). Gill did not receive a response to this
request, and he did not appear in Alexandria on October 17.
Martins and Defendant Mark Miller (another prosecutor on the
case) therefore demanded from Spath a “warrant of
attachment” compelling Gill's VTC testimony.
Id., ¶ 35. Instead of seeking to resolve this
telephonically or in another fashion, Spath complied with
that request, issuing a warrant that empowered and commanded
various U.S. Marshals to procure Gill's presence in
Virginia so that he could deliver the sought-after testimony.
Id., ¶ 39.
non-appearing witnesses in civilian courts frequently change
their minds when informed of a signed arrest warrant, such
opportunity was not afforded Gill. Instead, armed with the
warrant as well as a variety of weapons, the Marshals
“stormed . . . Gill's home with . . . hand guns
drawn, ” forced him to give himself over to their
custody, and then searched “every room” of his
home. Id., ¶¶ 40-46. The Marshals
“forcibly” placed Gill “in waist shackles
and ankle shackles” and transported him to a holding
cell in the basement of the U.S. District Courthouse in
Boston. Id., ¶¶ 47, 51, 53-54. After a few
hours of detention there, Plaintiff was escorted to Logan
Airport, whence he traveled (still in handcuffs) to
Arlington. Id., ¶ 54. Gill spent the night at a
detention center in Alexandria, where the Marshals gave him
only a “deconstructed . . . bologna sandwich” for
sustenance. Id., ¶ 57. Finally, on October 19,
a different set of Marshals transported him to a conference
room, where he testified via VTC. Id., ¶¶
unsurprisingly given this rocky prelude, Gill's testimony
did not proceed smoothly. He complained to Spath about his
seizure and detention, and he noted that given the
“extreme duress” he was under, his testimony was
“inherently unreliable.” Id., ¶ 62.
Spath refused to consider any arguments regarding the
lawfulness of Gill's seizure and detention, but he did
administer a competency exam, which Plaintiff passed.
Id., ¶¶ 63-64. During Gill's
testimony, Spath “explicitly instructed Mr.
Al-Nashiri's defense counsel not to inform Mr. Gill [of
his right to counsel].” Id., ¶¶
66-68. After concluding his testimony, Gill requested that
the Government pay for his transportation back to
Massachusetts as well as for meals in the interim period.
Id., ¶ 73. After some wrangling, the Marshals
booked him a flight home and gave him $300 in cash.
Id., ¶ 75. Gill asserts that since this
traumatic series of events, he has suffered from severe
emotional distress, economic harms, and the deterioration of
his reputation in the eyes of the military. Id.,
¶¶ 77, 80, 83.
subsequent development is worth mentioning. In April of this
year, the D.C. Circuit considered an allegation of judicial
misconduct lodged against Spath. See In re
Al-Nashiri, 921 F.3d at 224. From November 2015 to April
2019, Spath applied for a position as an immigration judge
with the Department of Justice while simultaneously presiding
over Al-Nashiri's commission, a proceeding in which DOJ
had a vested interest. Id. at 227. After finding
that “Spath's job application . . . cast an
intolerable cloud of partiality over his subsequent judicial
conduct, ” the Court vacated every single order (oral
and written) issued by Spath from November 2015 to April 2019
in Al-Nashiri's case. Id. at 235, 240.
remuneration for the above-chronicled series of events, Gill
first filed a claim with the Department of Justice under the
Federal Tort Claims Act. See First Am. Compl, ¶
86; see also 42 U.S.C. § 2675(a) (“An
action shall not be instituted upon a claim against the
United States for money damages . . . unless the claimant
shall have first presented the claim to the appropriate
Federal agency.”). The Government did not render a
final disposition of his FTCA claim within six months,
inaction that qualifies as a “final denial of the
claim, ” permitting Gill to file a lawsuit in federal
October 26, 2018, Plaintiff brought the present action in
this Court. He filed an Amended Complaint in February of this
year. Gill's Amended Complaint asserts a Fourth Amendment
claim under Bivens against the numerous individuals
involved in his seizure and transport -- Judge Spath,
prosecutors Martins and Miller, and the U.S. Marshals.
See First Am. Compl., ¶¶ 90-93. He also
articulates seven counts against the United States under the
FTCA, among them abuse of process, trespass, and intentional
infliction of emotional distress. Id., ¶¶
94-115. Finally, he asserts Declaratory Judgment Act claims
against the Government and the Individual Defendants.
Id., ¶¶ 116-150. In their separate
Motions, the United States and the Individual Defendants move
to dismiss Gill's entire suit under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6), or, in the
alternative, to transfer outstanding counts to Massachusetts.
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of an action where a complaint fails to “state a claim
upon which relief can be granted.” Although
“detailed factual allegations” are not necessary
to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007), “a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation omitted). Additionally, Rule of Civil
Procedure12(b)(1) provides for dismissal of an action for
lack of subject-matter jurisdiction. To survive such a
motion, the plaintiff bears the burden of proving that the
Court has subject-matter jurisdiction to hear his claims.
See Lujan v. Defs of Wildlife, 504 U.S. 555, 561
(1992); US Ecology, Inc. v. U.S. Dep't of
Interior, 231 F.3d ...