United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2010 Decided May 28, 2010
No. 08-5119
ABDULWAHAB NATTAH, LEAD PLAINTIFF IN A CLASS OF TITAN
EMPLOYEES,
APPELLANT
v.
GEORGE W. BUSH, IN HIS INDIVIDUAL CAPACITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-00700-RCL)
Abdulwahab Nattah, appearing pro se, argued the cause
and filed the briefs for appellant.
Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for federal appellees. With her on the brief was R.
Craig Lawrence, Assistant U.S. Attorney.
John F. Scalia argued the cause for appellee L-3
Services, Inc. With him on the brief was Matthew H.
Sorensen.
2
Before: SENTELLE, Chief Judge, HENDERSON and
BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: Pro se appellant Abdulwahab
Nattah challenges the district court’s order granting, inter
alia, L-3 Communications Titan Group’s1 (L-3) motion to
dismiss and dismissing his complaint with prejudice as to all
defendants and all claims. We affirm the district court’s order
in part, but remand for further proceedings on Nattah’s
non-monetary claims against the Secretary of the Army and
his breach of contract claim against L-3.
I
These are the relevant facts as Nattah alleges them in his
amended complaint. Sometime before January 17, 2003,
Nattah, who claims he is a dual citizen of Libya and the
United States, attended a “career fair” for applicants to L-3, at
which individuals who claimed they had authority to contract
on behalf of L-3 offered Nattah a job as an Arabic language
interpreter. First Am. Compl. ¶¶ 92, 281, Nattah v. Bush, No.
06-cv-00700 (D.D.C. Mar. 31, 2008). The L-3 agents
informed Nattah he would work only in Kuwait, would be
housed in a luxury air-conditioned apartment building with
access to restaurants and stores, and “under no circumstances”
would be sent to Iraq. Id. ¶¶ 22, 93–94, 280. The agents also
told Nattah he could be fired only for misconduct, lack of
work due to termination or dimunition of L-3’s contract with
the United States government, or dereliction of duty.
1
Although several different names have been used throughout the
proceedings in this case, it appears the correct current entity name
is L-3 Services, Inc.
3
Id. ¶¶ 22, 95. In reliance on L-3’s promises, Nattah accepted
the employment offer. Id. ¶¶ 96, 282. On January 17, 2003,
he signed a letter from L-3 providing further detail about his
employment but stating the letter should not be construed as
an employment contract. Id. ¶¶ 23, 97, 283; (J.A. 61–62).
Upon arriving in Kuwait, Nattah alleges he was sequestered in
a military encampment located in the desert and required to
live in a tent with forty soldiers, eat distasteful food, and live
under substandard conditions. First Am. Compl. ¶ 99. He
further alleges that after spending two months in Kuwait, L-3
“sold [him] as a slave to the [U.S.] military,” id. ¶ 101, who
took him to Iraq and forced him to serve on the front line of
the Iraq invasion, id. ¶¶ 25, 101–03, 291. During that period,
Nattah suffered nerve damage from close artillery explosions
that caused hearing loss and other medical problems. Id.
¶¶ 34, 112. Nattah was examined at a clinic in Iraq and
travelled to Germany for additional treatment. Id. ¶ 112.
After Nattah’s departure, L-3’s Deputy Director for
Operations visited Nattah’s barracks in Iraq and informed the
soldiers housed there Nattah was on leave without pay and
“did not belong there anymore.” Id. ¶ 114. Several weeks
later Nattah was transferred to another German hospital,
where he underwent two surgeries. Id. ¶ 117. He was
discharged from the hospital on July 23, 2003, and traveled
back to the United States the following day. Id.
Nattah filed his complaint in the district court on April
19, 2006. He alleged twenty separate claims against multiple
defendants, including former President George W. Bush,
former Vice President Richard Cheney, former Secretary of
Defense Donald Rumsfeld, “Six Unknown United States
Government Employees,” and L-3. On January 30, 2007, the
district court granted the government’s motion to dismiss
Nattah’s claims against Bush, Cheney, and Rumsfeld. L-3
filed a motion to dismiss on March 12, 2007. On November
4
28, 2007, while L-3’s motion to dismiss was still pending,
Nattah filed a motion to vacate the district court’s January 30,
2007 order and sought leave to amend his complaint to add a
new federal defendant—Francis Harvey, then-Secretary of the
Army—and to pursue additional claims against the six
unknown federal employees. Nattah claimed he had not
previously been able to determine which agency—the
Department of Defense or the Department of the Army—had
employed the individuals responsible for his alleged
abduction into slavery. He filed a proposed amended
complaint along with his motion for leave to amend. The
amended complaint alleged claims against, among other
defendants, Secretary Harvey, “Six Unknown United States
Government Employees,” L-3, and the Iraqi National
Congress. It included claims of slavery, intentional infliction
of emotional distress, fraud, breach of contract, and alleged
violations of the Geneva Convention, Hague Convention, and
United Nations Charter, as well as several other claims based
on state and foreign law.
The district court granted Nattah’s motion for leave to
file an amended complaint in part, denied his motion to join
additional defendants, denied his motion to vacate, and
granted L-3’s motion to dismiss. Nattah v. Bush, 541 F.
Supp. 2d 223, 226 (D.D.C. 2008). The district court also, on
its own motion, refused to allow Nattah to add the Iraqi
National Congress, Dr. Ahmed Chalabi, and the
pseudonymous intelligence source “Curveball” as defendants.
Id. at 231. This appeal followed.
II
On appeal, Nattah does not contest every holding of the
district court; we consider only those that he does and agree
with two of his claims of error.
5
A. Nattah’s motion for leave to join Secretary Harvey
Nattah challenges the district court’s denial of his motion
for leave to join former Secretary of the Army Francis
Harvey. Under FED. R. CIV. P. 15(a)(1), a plaintiff may
amend his complaint once, as a matter of right, anytime
“before being served with a responsive pleading.”2 FED. R.
CIV. P. 15(a)(1)(A) (2007). In this case, none of the
defendants filed an answer to Nattah’s complaint. L-3 filed a
motion to dismiss, but “a motion to dismiss is not a
responsive pleading for the purposes of Rule 15.” James v.
Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 283 (D.C.
Cir. 2000). Because Nattah therefore was entitled as a matter
of right to amend his complaint to add Secretary Harvey as a
defendant, it was error for the district court to refuse to
consider the claims he added. See id. However, not all such
errors require remand. See id. “[A] district court need not be
made to reconsider an amended complaint that fails to state a
claim upon which relief could be granted, or that would
otherwise fail as a matter of law. . . . [N]o remand is
necessary if the amended complaint would not survive a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6).” Id. We therefore consider whether the amended
2
Effective December 1, 2009, Rule 15(a) was amended to provide
that a plaintiff may amend his complaint once “as a matter of
course” within twenty-one days after the complaint is served or, if
the pleading is one to which a responsive pleading is required,
within twenty-one days after service of a responsive pleading or a
motion under Rule 12(b), (e), or (f), whichever is earlier. FED. R.
CIV. P. 15(a)(1) (as amended). In all other cases, a party may
amend its pleading only with the written consent of the opposing
party or leave of the court. Id. at 15(a)(2).
6
claims against Secretary Harvey would survive a motion to
dismiss.
Nattah brings several claims against Secretary Harvey:
violation of the Geneva Convention (Count III); slavery
(Count V); right to travel (Count VI); and violations of
international law (Count XIX). The district court held
Nattah’s claims against Secretary Harvey would not survive a
motion to dismiss because “the Government is immune from
suit and has not explicitly waived immunity,” Nattah, 541 F.
Supp. 2d at 231. The court’s reasoning overlooks section 702
of the Administrative Procedure Act, 5 U.S.C. § 702, waiving
sovereign immunity for claims “seeking relief other than
money damages and stating a claim that an agency or an
officer or employee thereof acted or failed to act in an official
capacity or under color of legal authority.” For each claim
brought against Secretary Harvey, Nattah seeks injunctive,
declaratory, and equitable relief in addition to monetary relief.
First Am. Compl. at 84–88. Moreover, as the federal
Appellees concede, Nattah’s claims are made against the
Secretary in his official capacity. See Clark v. Library of
Cong., 750 F.2d 89, 102 (D.C. Cir. 1984) (“With respect to
claims for non-monetary relief, the 1976 amendments to
§ 702 of the [APA] eliminated the sovereign immunity
defense in virtually all actions for non-monetary relief against
a U.S. agency or officer acting in an official capacity.”); see
also Trudeau v. FTC, 456 F.3d 178, 186 (D.C. Cir. 2006).
Sovereign immunity therefore does not protect the Secretary
from Nattah’s non-monetary claims.
The only other defense the federal Appellees raise to
Nattah’s claims against Secretary Harvey, albeit half-
heartedly, is that Nattah’s pleadings are insufficient. Fed.
Appellees Br. at 17. They argue his pleadings are vague and
do not establish any basis for any claims against the
7
Secretary. Id. (citing Ashcroft v. Iqbal, 129 S. Ct. 1937,
1951–54 (2009)). Although Nattah does not mention
Secretary Harvey by name in each individual count of his
amended complaint, we conclude his pleadings are sufficient.
See First Am. Compl. ¶¶ 5 (stating Nattah brings Counts III,
V, and VI against “all defendants”), 237 (stating “Army
Intelligence officers” were aware Nattah would not
voluntarily go into Iraq), 269 (stating the “United States
Military” denied Nattah’s right to travel), 355 (stating
defendant Harvey violated Nattah’s rights by requiring him to
violate international law).
Because Nattah’s non-monetary claims against Secretary
Harvey would survive a motion to dismiss—at least on the
grounds relied upon by the district court and the federal
Appellees—we remand for further proceedings on those
claims.
B. Nattah’s breach of contract claim against L-3
Nattah brings a number of claims against L-3. The district
court granted L-3’s motion to dismiss all of them. Nattah,
541 F. Supp. 2d at 233. We review the district court’s
dismissal for failure to state a claim de novo. See Muir v.
Navy Fed. Credit Union, 529 F.3d 1100, 1108 (D.C. Cir.
2008). Addressing only the claims Nattah raises on appeal,
and accepting as true all factual allegations contained in his
complaint, see id., we conclude Nattah’s breach of contract
claim is sufficient.
Nattah contends he entered into an oral contract with L-3
at a “career fair.” First Am. Compl. ¶¶ 92–96, 281–84. He
alleges agents of L-3 outlined the terms of employment and
promised: (1) he would be provided certain benefits,
including air-conditioned housing; (2) he would be required to
8
work only in Kuwait; (3) he would not be sent to work in a
war zone, including Iraq; and (4) he could be fired only for
misconduct, lack of work due to termination or dimunition of
L-3’s contract with the U.S. government, or dereliction of
duty. Id. ¶¶ 22, 95. He alleges L-3 subsequently breached the
contract by failing to provide him the fringe benefits promised
under the contract and by selling him to the U.S. military for
service in Iraq. Id. ¶¶ 291–92. On appeal, L-3 argues Nattah
makes contradictory allegations because he alleges he had an
oral contract with L-3, yet he specifically states he signed an
employment contract. L-3 Br. at 33–35. In the alternative, L-
3 argues Nattah’s pleadings are not sufficient to state a breach
of contract claim under Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007), and Iqbal, 129 S. Ct. 1937, since he does not
name which individuals made the alleged oral contract or
establish they had authority to contract on behalf of L-3. L-3
Br. at 36–37. The district court concluded Nattah could not
rely on the alleged oral contract. Nattah, 541 F. Supp. 2d at
236.
As an initial matter, the fact Nattah signed an offer letter
from L-3 is not necessarily inconsistent with the existence of
an oral contract. To be sure, the alleged oral contract between
Nattah and L-3 may be contradicted by the offer letter to the
extent Nattah was promised orally he could be terminated
only for cause since the offer letter describes the relationship
between L-3 and Nattah as “voluntary.” (J.A. 62). The offer
letter, however, is silent as to the benefits Nattah alleges L-3
promised him (such as housing and meals), and, although
Nattah did refer to the letter as a “contract” at least once in his
amended complaint, First Am. Compl. ¶ 97, he also correctly
acknowledged the letter explicitly stated it did not constitute
either an express or implied contract. Id. ¶¶ 23, 283; (J.A.
62). Moreover, contrary to the argument of L-3’s counsel, an
at-will employer does not possess a unilateral right to
9
retroactively reduce or revoke contractually agreed-upon
benefits that have already vested. See 19 RICHARD A. LORD,
WILLISTON ON CONTRACTS § 54:36 (4th ed. 2010) (at-will
employer may not retroactively deprive employee of vested
rights, including employee benefits); see also Progress
Printing Co., Inc. v. Nichols, 421 S.E.2d 428, 430 (Va. 1992)
(“[T]he [at-will] employer retains the right to alter
[employment and benefit] policies at any time, although rights
which have already vested in the employee are enforceable
for the period of time during which those rights existed.”).
Modification of an at-will employment contract does not
extinguish either the employee’s original contract or his right
to sue for its breach. See WILLISTON § 54.36. Thus, even
assuming Nattah was an at-will employee, L-3 might
nonetheless be obligated to provide promised benefits.
Second, we conclude Nattah’s amended complaint
sufficiently describes his claim. Nattah alleges “[a]gents of
defendant [L-3]” conveyed to him the terms of the oral
contract, which included luxury apartment accommodations
in Kuwait and assurances he would not be sent to Iraq. First
Am. Compl. ¶¶ 93–94. L-3 attempts to use Twombly, 550
U.S. 544, and Iqbal, 129 S. Ct. 1937, to enunciate a blanket
rule that requires a plaintiff to plead every conceivable fact or
face dismissal of his claim. L-3 Br. at 37. L-3, however,
points to no language in Twombly or Iqbal requiring a
plaintiff to identify by name which employee(s) made the
agreement when pleading a breach of contract claim. See
Iqbal, 129 S. Ct. at 1949 (stating “Rule 8 . . . does not require
‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation”
(quoting Twombly, 550 U.S. at 555)). Moreover, Nattah
alleges with specificity the several terms of the oral contract
and how L-3 breached those terms. Am. Compl. ¶¶ 92–103.
10
Accordingly, we conclude Nattah’s complaint states a claim
against L-3 for breach of its oral contract with Nattah.
C. Nattah’s other claims against L-3
Two of Nattah’s other claims against L-3 warrant brief
discussion. First, although the district court granted L-3’s
motion to dismiss all claims, see Nattah, 541 F. Supp. 2d at
233, the court did not expressly address Nattah’s claim for
intentional infliction of emotional distress (IIED) against L-3
(Count VIII). However, since we review the district court’s
decision granting L-3’s motion to dismiss de novo, we are not
required to remand the issue merely because the district court
failed to consider it. See, e.g., Spaziano v. Singletary, 36 F.3d
1028, 1041 (11th Cir. 1994); see also Gerber v. Norton, 294
F.3d 173, 178 (D.C. Cir. 2002). Although Nattah brings his
IIED claim under Iraqi and Kuwaiti law, he does not address
the elements of the claim under either law. His pleading
consists of a single sentence stating he “incorporates
paragraphs 1–95 above by reference.” First Am. Compl.
¶ 278. Those paragraphs, primarily discussing the U.S.
government’s alleged deception involving weapons of mass
destruction in Iraq, fail to satisfy FED. R. CIV. P. 8(a)(2). We
therefore conclude Nattah’s IIED claim was properly
dismissed.
Second, the district court dismissed Nattah’s fraud claim
against L-3 (Count IX) because his “assertions fail[ed] to set
out with particularity a plausible claim for fraud,” as required
by FED. R. CIV. P. 9(b). Nattah, 541 F. Supp. 2d at 236. We
may affirm the district court’s decision “on the basis of ‘any
grounds which . . . support [it].’” In re Swine Flu
Immunization Prods. Liab. Litig., 880 F.2d 1439, 1444 (D.C.
Cir. 1989). We therefore need not decide whether Nattah’s
pleadings are sufficient since his claim is barred by the statute
11
of limitations. The statute of limitations for fraud claims in
Virginia—where Nattah alleges the fraud occurred—is two
years from the time the fraud was or reasonably should have
been discovered. VA. CODE §§ 8.01–243(A), –249(1). Even
assuming Nattah’s claim did not accrue until June 2003, the
date he alleges he was released from the military hospital in
Germany, First Am. Compl. ¶ 117; Appellant Br. at 12, he did
not file his initial complaint until April 2006, well over two
years later. (J.A. 10).
With respect to Nattah’s other claims against L-3, his
claims against the “Six Unknown Government Employees,”
and his motion for leave to file an amended complaint joining
certain Iraqi defendants, we affirm for the reasons set forth in
the district court’s memorandum opinion of March 31, 2008.
III
For the foregoing reasons, we affirm in part, reverse in
part, and remand for such proceedings as may be required,
consistent with this opinion, on Nattah’s non-monetary claims
against the Secretary of the Army and his breach of contract
claim against L-3.
So ordered.