Monday, March 23, 2015
Panel Rejects Suit Challenging U.S. Military Contractor Policies
Families of Three Killed in Iraq Sought Order Allowing Negotiations With Hostage-Takers
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals Friday rejected a suit by the families of three American military contractors killed in Iraq, challenging policies they claim are unconstitutional.
The plaintiffs—relatives of Joshua Munns, John Young, and John Cote, kidnapped in November 2006 and killed sometime in 2008—claim that federal officials interfered with their efforts to negotiate for the men’s release, thereby violating their First Amendment rights. They also contend the government should be responsible for back pay and life insurance benefits they did not receive from the men’s employer, and should also pay them benefits under various labor statutes.
The appellate panel, however, said that the plaintiffs lack standing to seek injunctive relief, and that their monetary claims appeared to be barred by sovereign immunity. The court did, however, order a transfer of the damages causes of action to the Court of Federal Claims so that the plaintiffs could amend their complaint to allege that sovereign immunity had been waived.
The complaint, filed in the U.S. District Judge for the Eastern District of California, where Munns’ father and stepmother lived, alleged that State Department officials kept the families in the dark about the months-long kidnapping investigation and then blocked efforts to negotiate with the kidnappers.
Munns, Young, and Cote were among five employees of Crescent Security taken hostage after the convoy they were guarding was apparently ambushed by a group of masked and armed men at a fake checkpoint near the southern Iraqi city of Safwan. The complaint alleges that because Crescent told other employees not to accompany the 46-truck convoy, and Iraqis who were supposed to go along failed to show up, only seven employees were available for the dangerous mission.
The families also claimed that Crescent hadn’t paid them any death benefits, or wages for the time the men spent in captivity, and that the government, having hired the company, should be responsible for those amounts. They also sought damages for violations of their First Amendment guarantees of freedom of speech and assembly, which they claimed were violated when the government told them they could not meet with a U.S. citizen who claimed to have information on the men’s whereabouts, and when the State Department blocked distribution of 90,000 leaflets they sent to the Middle East offering a reward for information about the men.
Chief U.S. District Judge Morrison England Jr. granted the government’s motion to dismiss. He found that the plaintiffs could not show that they would suffer any future harm as a result of the hostage-response policies, and thus lacked standing to challenge them.
The judge also dismissed the monetary claims on grounds of sovereign immunity, failure to state a claim, and the “political question” doctrine.
Senior Judge Raymond Fisher, writing for the appellate panel, sided with the government and the district judge on the issues of standing and sovereign immunity, and said it was unnecessary to determine whether the plaintiffs were also raising a nonjusticiable political question.
“The family members have not alleged any facts demonstrating that they are likely to be reinjured by the hostage response policies,” Fisher wrote.
He rejected the contention that standing could be based on the possibility of the plaintiffs again seeking to communicate within Iraq to determine who was responsible for the kidnapping and killing of their family members. The argument was not raised in the district court, the judge pointed out, saying it would fail in any event because it is too speculative to support standing.
Exhaustion of Remedies
As for money damages, Fisher said that the statutes cited by the plaintiffs either are inapposite or require exhaustion of administrative remedies, which the plaintiffs did not allege. Nothing in the opinion, the judge added, prevents the plaintiffs from pursuing those remedies.
It is possible, the judge said, that the plaintiffs can plead a cause of action under the Tucker Act, which waives sovereign immunity for various types of cases, including violations of the Fifth Amendment Takings Clause. The act, however, grants exclusive jurisdiction over such claims, if in excess of $10,000, to the Court of Federal Claims, Fisher said.
Judge Marsha S. Berzon concurred in the opinion. Judge Stephen Reinhardt concurred separately, noting that the government told the court there is no current policy barring private parties from negotiating with hostage-takers, and emphasizing that even if there was, the validity was, as far as the court was concerned, “a hypothetical question—the kind that courts do not answer.”
The case is Munns v. Kerry, 12-15969.
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