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Gill v. United States

United States District Court, District of Columbia

November 21, 2019

STEPHEN GILL, Plaintiff,
v.
UNITED STATES OF AMERICA, et al ., Defendants.

          MEMORANDUM OPINION

          JAMES E. BOASBERG JUDGE

         The 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.

         Gill 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.

         I. Background

         A. Factual Background

         The 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.”)

         This 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.

         Gill is 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., ¶ 20.

         Plaintiff 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.

         At this 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.

         Although 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., ¶¶ 58-59, 62.

         Perhaps 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.

         One 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.

         B. Procedural History

         Seeking 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 court. Id.

         On 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.

         II. Legal Standard

         Federal 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 ...


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