Gill v. United States of America

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

STEPHEN GILL,

Plaintiff,
v. Civil Action No. 18-2380 (JEB)

UNITED STATES OF AMERICA, et al.,

Defendants.

MEMORANDUM OPINION

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

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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.”)

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 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

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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

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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

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“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

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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 20, 24 (D.C. Cir. 2000). A court has an “affirmative obligation to ensure

that it is acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order

of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001).

In evaluating Defendants’ Motion to Dismiss, the Court must “treat the complaint’s

factual allegations as true and must grant plaintiff ‘the benefit of all inferences that can be

derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.

Cir. 2000) (citation omitted) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir.

1979) (citing Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S.

163, 164 (1993)). This standard governs the Court’s considerations of Defendants’ Motions

under both Rule 12(b)(1) and Rule 12(b)(6). See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)

(“[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the

subject matter or for failure to state a cause of action, the allegations of the complaint should be

construed favorably to the pleader.”); Walker v. Jones, 733 F.2d 923, 925–26 (D.C. Cir. 1984)

(same). The Court need not accept as true, however, “a legal conclusion couched as a factual

allegation,” nor an inference unsupported by the facts set forth in the Complaint. Trudeau v.

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FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

III. Analysis

The Individual Defendants and the United States raise a slew of arguments in support of

their respective Motions to Dismiss. First, both assert that this Court does not have jurisdiction

to hear any of Gill’s claims. Next, the Individual Defendants argue that they are protected by the

doctrines of judicial, prosecutorial, and qualified immunity. Even without immunity, they

maintain that Gill’s claim brought under Bivens represents an impermissible extension of that

doctrine. The United States, for its part, posits that Gill has failed to state an FTCA claim for

numerous reasons, including that the counts fall within the Act’s discretionary exception and that

proper venue does not lie in this district. The Court first turns to Defendants’ jurisdictional

argument, then considers the different types of immunity asserted, and finally looks at venue

under the FTCA.

A. Jurisdiction

As a threshold matter, the Government and the Individual Defendants argue that the

MCA divests the Court of jurisdiction over all of Gill’s claims. Section 7 of the MCA explains

in relevant part:

Except as provided in paragraphs (2) and (3) of section 1005(e) of
the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court,
justice, or judge shall have jurisdiction to hear or consider any other
action against the United States or its agents relating to any aspect
of the detention, transfer, treatment, trial, or conditions of
confinement of an alien who is or was detained by the United States
and has been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such determination.

28 U.S.C. § 2241(e)(2). According to Defendants, because the Act deprives the Court of

jurisdiction over “any . . . action. . . relating to . . . the detention[,] . . . treatment,” or “trial” of an

“alien . . . detained as an enemy combatant” –– such as Al-Nashiri –– and Gill’s claims “relate”

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to Al-Nashiri’s detention, treatment, and trial, the Court cannot consider them. Plaintiff counters

that the Act is best read as stripping civilian courts of jurisdiction over claims brought only by

detainees themselves, and he points to precedent in this Circuit and others in support of that

position.

The Court agrees with Gill that § 2241(e) does not sweep quite so broadly as to preclude

all suits brought by citizen non-detainees that might relate in any way to an ongoing proceeding

at a military commission. As a purely textual matter, it is arguable that Gill’s claims relate not to

Al-Nashiri’s “detention, transfer, [or] treatment” but instead to his own. In any event, a great

deal of circuit precedent stands in the way of Defendants’ position. Courts appear to have

uniformly assumed that § 2241(e) applies only to claims brought by alien-detainees. As the

Ninth Circuit has noted, “[T]here is no dispute that § 2241(e)(2) makes a distinction between

aliens and citizens.” Hamad v. Gates, 732 F.3d 990, 1005 (9th Cir. 2013). This determination

has played a crucial role in challenges to and decisions affirming the provision’s

constitutionality. Although not squarely presented with the question at issue here, the D.C.

Circuit has held that Ҥ 2241(e)(2) constitutionally . . . encompasses . . . claims, whether

statutory or constitutional, brought by an alien detained by the United States and determined to

have been properly detained as an enemy combatant.” Janko v. Gates, 741 F.3d 136, 146 (D.C.

Cir. 2014) (emphasis added); see also Jawad v. Gates, 832 F.3d 364, 370 (D.C. Cir. 2016)

(“Nothing odd results from applying section 7(a)’s jurisdictional bar to suits by detainees who

have been determined to be enemy combatants.”); Hamad, 732 F.3d at 1006 (“Congress’s

decision in § 2241(e)(2) to preclude only alien detainees captured as part of the war on terror

from bringing damages actions easily passes rational basis review.”) (emphases added); Ameur

v. Gates, 759 F.3d 317, 327–28 (4th Cir. 2014) (holding that § 2241(e)(2) passes rational-basis

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review even though it “applies only to aliens” because “aliens detained as enemy combatants

enjoy no fundamental right to money damages remedy”) (emphasis added).

These Courts’ interpretations align with Congress’s purported intent in enacting the MCA

–– namely, to “ensur[e] that members of the armed forces are not unduly chilled in conducting

the war on terror by concerns about foreign nationals targeting them with damages claims.”

Hamad, 732 F.3d at 1006. Congress, it seems “rationally conclude[d] that litigation involving

non-citizen combatants poses a special risk of raising foreign relations, immigration or military-

related matters that courts are not equipped to address . . . consistent with the long-standing

differential treatment of enemy aliens during times of war.” Ameur, 759 F.3d at 328 (emphasis

added). The Court sees no reason to endorse the novel interpretation of the Act provided by the

Government.

B. Claims Against Individual Defendants

With that underbrush cleared, the Court would typically move to Gill’s constitutional and

statutory claims against the Individual Defendants. By way of reminder, he challenges the

issuance of a subpoena mandating his testimony via VTC, along with his seizure, transportation,

and detention –– i.e., the means by which the Government chose to enforce his compliance with

the subpoena. At the core of Gill’s suit lie his assertions that Miller and Martins lacked legal

authority to issue the subpoena and that Spath acted unlawfully in signing the warrant of

attachment to enforce it. For the reasons that follow, however, even assuming that Gill’s legal

arguments are correct, the Individual Defendants have another card to play: immunity.

Defendants argue that Spath, Martins, and Miller are entitled to absolute immunity, and that they

and the U.S. Marshals also deserve qualified immunity. The Court tackles the doctrines in turn.

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 Absolute Immunity

The Supreme Court has determined that “some officials perform ‘special functions which

deserve absolute protection from damages liability.’” Grey v. Poole, 243 F.3d 572, 575 (D.C.

Cir. 2001) (alterations omitted) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 268–69 (1993)).

Derived from the common law, absolute immunity provides a potent shield against civil suits.

“Where absolute immunity is deemed appropriate, an official is protected from all suits attacking

conduct within the scope of the immunity, even if the official is alleged to have acted in bad

faith.” Id. The official seeking such immunity bears the burden of showing that it is justified for

the function in question. See Burns v. Reed, 500 U.S. 478, 486 (1991). The Court looks first at

the judge, then the prosecutors.

a. Spath

Judges are among those select officials entitled to absolute immunity so that they may

“be free to act upon [their] own convictions, without apprehension of personal consequences to

[themselves].” Mireles v. Waco, 502 U.S. 9, 10 (1991) (quotation marks omitted). Concern with

protection of the judicial process broadly has led to the doctrine’s application in a variety of

contexts. The Supreme Court has extended judicial immunity not only to federal and state

judges but also to officials associated with other branches of government (such as administrative-

law judges), so long as they exercise “quasi-judicial” authority. See Butz v. Economou, 438

U.S. 478, 512 (1978).

This Circuit has distilled from the Supreme Court’s caselaw a three-part inquiry as to

whether a government official exercises quasi-judicial authority: “(1) whether the functions of

the official in question are comparable to those of a judge; (2) whether the nature of the

controversy is intense enough that future harassment or intimidation by litigants is a realistic

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prospect; and (3) whether the system contains safeguards which are adequate to justify

dispensing with private damage suits to control unconstitutional conduct.” Wagshal v. Foster, 28

F.3d 1249, 1252 (D.C. Cir. 1994).

Applying that test, this Court is convinced that a judge presiding over a military

commission, such as Spath, exercises “quasi-judicial” authority. First, there can be “little doubt”

that the role of a modern military judge is “functionally comparable” to that of a trial judge.

Butz, 438 U.S. at 513. Military judges preside over trials with marked similarities to their

civilian counterparts and “exercise a discretionary judgment as a part of their function.” Broudy

v. Mather, 366 F. Supp. 2d 3, 10 (D.D.C. 2005) (quoting Antoine v. Byers & Anderson, Inc., 508

U.S. 429, 436 (1993)). Second, few could gainsay the intensity of the litigation concerning

Guantanamo Bay, which has resulted in seminal Supreme Court decisions and no shortage of

public comment. Finally, the military-commission system contains several safeguards to justify

dispensing with private-damage suits, safeguards similar to those found within other adjudicatory

systems, such as appellate review and the availability of habeas relief. Even without those

safeguards, moreover, where the first two factors support the extension of absolute immunity, a

court can deem it warranted. See Broudy, 366 F. Supp. 2d at 11.

In addition to holding that Spath, in presiding over the Al-Nashiri Military Commission,

exercised “quasi-judicial” authority, the Court also finds that he is entitled to absolute immunity

for the act at issue –– viz., the issuance of the warrant of attachment. In arguing to the contrary,

Gill faces an uphill battle. Perhaps unsurprisingly given the identity of those responsible for

developing the doctrine, judicial immunity is broad in scope. “A judge will not be deprived of

immunity because the action he took was in error, was done maliciously, or was in excess of his

authority.” Smith v. Scalia, 44 F. Supp. 3d 28, 41 (D.D.C. 2014) (quoting Stump v. Sparkman,

12
435 U.S. 349, 356 (1978)). There are only two exceptions to judicial immunity: “(1) ‘a judge is

not immune from liability for nonjudicial actions’; and (2) ‘a judge is not immune for actions,

though judicial in nature, taken in the complete absence of all jurisdiction.’” Reddy v.

O’Connor, 520 F. Supp. 2d 124, 130 (D.D.C. 2007) (quoting Mireles, 502 U.S. at 11–12).

Gill principally argues that the latter circumstance is present here. In other words, he

maintains that Spath acted in the “clear absence of all jurisdiction” in issuing the warrant of

attachment. This is so, he claims, both because Spath’s orders in the Al-Nashiri case were later

vacated by the D.C. Circuit (as recounted above) and because military judges do not have

“jurisdiction” to issue such warrants.

Gill’s argument, however, misconstrues the term jurisdiction as it has been applied in the

context of absolute judicial immunity. His confusion is understandable: “Jurisdiction, it has been

observed, is a word of many, too many, meanings.” Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 90 (1998) (internal quotation marks omitted); see also City of Yonkers v. United States,

320 U.S. 685, 695 (1944) (Frankfurter, J., dissenting) (“‘Jurisdiction’ competes with ‘right’ as

one of the most deceptive of legal pitfalls.”). In the context of judicial immunity, however, the

“scope of the judge’s jurisdiction must be construed broadly.” Clark v. Taylor, 627 F.2d 284,

287 (D.C. Cir. 1980). The focus remains on jurisdiction over the subject matter as opposed to

over the specific person involved. See Chisum v. Colvin, 276 F. Supp. 2d 1, 4 (D.D.C. 2003)

(“[A] judge is entitled to immunity even if there was no personal jurisdiction over the

complaining party.”) (quoting Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986)). An

absence of jurisdiction exists where “the judicial officer must know that he lacks jurisdiction, or

act[s] despite a clearly valid statute or case law expressly depriving him of jurisdiction.”

Wagshal, 28 F.3d at 1254 (alterations omitted).

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 Given this standard, the D.C. Circuit’s ex post decision to vacate Spath’s orders given his

alleged conflict of interest has no weight in a determination of his contemporaneous

“jurisdiction” over the acts at issue here. See, e.g., id. at 1253–54 (remarks rendered by case

evaluator in letter to judge concerning decision to recuse protected by judicial immunity);

Rosenthal v. Justices of the Sup. Ct., 910 F.2d 561, 565–66 (9th Cir. 1990) (absolute immunity

for judge who signed order after recusal from case). Turning to the warrant of attachment,

binding case-law dictates that it was not issued in the “absence of jurisdiction” for judicial-

immunity purposes. For example, in Mireles, the Supreme Court held that a judge’s alleged

“direction to police officers to carry out a judicial order [to procure the presence of counsel] with

excessive force” (which action would have been unlawful) was protected by absolute immunity.

See 502 U.S. at 12. As in Mireles, it is possible (though not certain given the complex

landscape of military law) that Spath acted “in excess of his authority,” id., even “maliciously.”

Id. at 11; see also R.M.C. 703(e)(2)(G)(i) (“[M]ilitary judge . . . may . . . issue a warrant of

attachment to compel the attendance of a witness.”). “But such an action — taken in the very aid

of the judge’s jurisdiction over a matter before him — cannot be said to have been taken in the

absence of jurisdiction.” Mireles, 502 U.S. at 12. In other words, even if Spath exceeded his

grant of judicial authority, he did not act in the clear absence of jurisdiction. See Wagshal, 28

F.3d at 1254. He is thus protected absolutely from Gill’s suit for damages.

b. Martins and Miller

The same impulse animating the doctrine of judicial immunity –– viz., protection of the

judicial process –– is reflected in the extension of absolute immunity to “certain others . . .

closely associated with” that process, including prosecutors. See Cleavinger v. Saxner, 474 U.S.

193, 200 (1985); see also Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976) (recognizing

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prosecutorial immunity in a damages suit). This immunity protects “prosecutors against having

‘to answer in court each time a defendant charges him with wrongdoing which diverts his energy

and attention from the pressing duty of enforcing the criminal law.’” Moore v. Valder, 65 F.3d

189, 193 (D.C. Cir. 1995) (alterations omitted) (quoting Imbler, 424 U.S. at 425).

In determining whether prosecutorial immunity obtains, the Supreme Court has employed

a “functional approach,” considering whether the conduct under review is advocatory, as

opposed to investigatory or administrative, in nature. Id. (citing Burns, 500 U.S. at 486). In

other words, as long as the official in question is acting as an advocate, she need not be a

criminal prosecutor (such as an Assistant United States Attorney) in order to enjoy absolute

immunity. See Gray, 243 F.3d at 577–78 (absolute immunity extends to government attorneys

for their conduct in prosecuting civil child-neglect actions). Advocacy “encompasses only those

activities that are ‘intimately associated with the judicial phase of the criminal process.’”

McSurely v. McClellan, 697 F.2d 309, 319 (D.C. Cir. 1982) (quoting Imbler, 424 U.S. at 430).

Protected acts therefore include participation (even elicitation of false statements) in a probable-

cause hearing, the presentation of evidence (even false evidence) during a trial, and the

preparation of witnesses. See Burns, 500 U.S. at 490–92; Buckley, 509 U.S. at 259, 273. By

contrast, speaking with the press and giving legal advice to a police officer are the sorts of acts

not deemed advocatory. See Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009).

Applying the above standard, the Court has little trouble concluding that the challenged

conduct of Miller and Martins fell within their roles as advocates. Gill alleges that the pair

violated his Fourth Amendment rights by seeking to procure his testimony. Specifically, Martins

signed the subpoena requiring him to appear by VTC, and both Martins and Miller requested a

warrant of attachment to enforce that subpoena. See First Am. Compl., ¶¶ 33–37. “There is no

15
dispute[,]” then, that both men “sought to secure [Gill’s] testimony as a witness in a criminal

prosecution, a province of the prosecutor.” Adams v. Hanson, 656 F.3d 397, 404 (6th Cir. 2011).

Put differently, their conduct constituted an “effort to control the presentation of [a] witness’s

testimony,” which is “fairly within [their] function as an advocate.” Imbler, 424 U.S. at 430.

Although this Circuit has not passed on the applicability of absolute immunity to prosecutorial

conduct vis-à-vis third-party witnesses, a bevy of other Circuits has done so, and the Court finds

these decisions persuasive. See Adams, 656 F.3d at 404 (holding that prosecutor’s alleged false,

out-of-court statement to judge regarding availability of witness, which led to witness’s nearly

two-week detention, was protected by absolute immunity); Garmon v. Cty. of Los Angeles, 828

F.3d 837, 845 (9th Cir. 2016) (prosecutor’s issuance of subpoena (but not false statement in

supporting affidavit) entitled to absolute immunity); Betts v. Richard, 726 F.2d 79, 81 (2d Cir.

1984) (prosecutor’s request for arrest warrant from judge, which resulted in witness’s arrest and

overnight incarceration to ensure attendance at criminal trial, covered by absolute immunity);

Daniels v. Kieser, 586 F.2d 64 (7th Cir. 1978) (persuading court to issue material-witness

warrant by making false statements protected by absolute immunity). The Government has

therefore carried its burden of establishing that Martins and Miller are entitled to prosecutorial

immunity.

Qualified Immunity

Even if absolute immunity did not apply, all of the Individual Defendants are protected

by qualified immunity. That doctrine “protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223,

231 (2009) (emphasis added) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It

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serves the dual purpose of maintaining accountability when public officials “exercise power

irresponsibly” while “shield[ing] officials from harassment, distraction, and liability when they

perform their duties reasonably.” Id. Qualified immunity “applies in Bivens actions as it does

elsewhere.” Lash v. Lemke, 786 F.3d 1, 5 (D.C. Cir. 2015).

The manner in which courts are permitted to resolve qualified-immunity defenses

protects from unnecessary constitutional conjecture: “[C]ourts may grant qualified immunity on

the ground that a purported right was not ‘clearly established’ by prior case law, without

resolving the often more difficult question whether the purported right exists at all.” Daugherty

v. Sheer, 891 F.3d 386, 390 (D.C. Cir. 2018) (quoting Reichle v. Howards, 566 U.S. 658, 664

(2012)). For a right to be clearly established, its “contours [must be] sufficiently definite that

any reasonable official in the defendant’s shoes would have understood that he was violating it.”

Lash, 786 F.3d at 5 (quoting Plumhoff v. Richard, 572 U.S. 765, 779 (2014)). Indeed, “existing

precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v.

Al-Kidd, 563 U.S. 731, 741 (2011).

To begin, the named Marshals are clearly entitled to qualified immunity because the

constitutional questions in this case fall well short of being “clearly established.” It would not

have been clear to a reasonable officer that Gill’s seizure and detention violated his Fourth

Amendment rights. See Pearson, 555 U.S. at 243–44. The Marshal Defendants received a

warrant issued by Spath, a military judge, “command[ing] and empower[ing]” them to

“apprehend” Gill and “forthwith bring him” to Alexandria. See First Am. Compl., ¶ 39. The

Marshals thus acted on what appeared to be a facially valid warrant for a non-appearing witness.

See R.M.C. 703(e)(2)(G)(ii) (dictating that no warrant of attachment may issue unless there is

“probable cause to believe that the witness was duly served with a subpoena . . . [and] that the

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witness refused or willfully neglected to appear”). This alone is sufficient “to cloak them with

qualified immunity and require dismissal of these suits.” Bailey v. U.S. Marshal Serv., 584 F.

Supp. 2d 128, 133 (D.D.C. 2008). Contrary to Gill’s assertions, it was not unreasonable for them

to assume the warrant’s lawfulness, particularly given the fact that it complied with the relevant

regulations. See Elkins v. Dist. of Columbia, 690 F.3d 554, 569 (D.C. Cir. 2012) (police officers

“may accept the word of their superiors that they have a warrant and that it is valid”).

Additionally, the manner in which the Marshals carried out the warrant and procured

Gill’s testimony did not violate his clearly established Fourth Amendment rights. Gill claims

that the Marshals acted unlawfully in arresting him with guns drawn, searching his home, and

transporting him in handcuffs to Virginia. Claims of excessive force in the context of arrests are

analyzed under the Fourth Amendment’s “objective reasonableness standard.” Saucier v. Katz,

533 U.S. 194, 204 (2001). Because arresting officers are often forced to make “split-second

judgments,” the Supreme Court has “cautioned against the ‘20/20 vision of hindsight’ in favor of

deference to the judgment of reasonable officers on the scene.” Id. at 205 (internal quotation

marks omitted). With the benefit of hindsight, the Marshals’ conduct may have been overly

dramatic, but their brief display of force and Defendant Wilson’s conducting of a protective

sweep of Gill’s home fall within what the Supreme Court has found to be constitutionally

permissible. See, e.g., Los Angeles Cty. v. Rettele, 550 U.S. 609, 615 (2007); United States v.

Thomas, 429 F.3d 282, 286–90 (D.C. Cir. 2005) (holding that protective sweep of entire

apartment during search incident to arrest was lawful). This conclusion holds, moreover, even if,

as Gill claims, the Marshals violated R.M.C. 703(g) in exhibiting unnecessary deadly force when

enforcing a warrant. Cf. Davis v. Scherer, 468 U.S. 183, 194–96 (1984) (violation of state

regulation does not vitiate qualified immunity).

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 Moving beyond the seizure, the remaining conduct alleged by Gill represents a far cry

from the violation of a “clearly established” constitutional right. Indeed, Plaintiff barely musters

any argument as to how the actions listed in his Complaint, such as his transportation in

handcuffs to Virginia and detention in order to procure his testimony, plead a clearly established

Fourth Amendment violation or identify the personal participation of any Marshal. See al-Kidd,

563 U.S. at 735, 743; see also Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable

to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant,

through the official’s own individual actions, has violated the Constitution.”).

Finally, even if they were not entitled to absolute immunity, Spath, Miller, and Martins

would be entitled to qualified immunity. Gill disputes this, contesting the legality of certain

Rules for Military Commissions (promulgated by DOD) authorizing military prosecutors to issue

subpoenas and military judges to issue warrants of attachment for third-party witnesses. Even if

he is right, no court has embraced those arguments, and, in fact, a court in the Southern District

of New York recently rejected them in part. See Yaroshefsky v. Mattis, No. 17-8718, ECF No.

22 (S.D.N.Y. Nov. 15, 2017) (petitioner unlikely to succeed on merits of claim that military

judge lacks authority to issue subpoena compelling testimony of third-party witness). As a

result, these Defendants’ actions did not violate a clearly established right.

Qualified immunity “would be utterly defeated if officials were unable to determine

whether they were protected by the rule without entangling themselves in the vagaries” of

military-commission law. See Anderson v. Creighton, 483 U.S. 635, 646 (1987). Where Miller,

Martins, and Spath merely followed the applicable regulations –– which empower both a military

prosecutor to issue a subpoena compelling the presence of a citizen witness and a military judge

to issue a warrant of attachment should that person refuse to appear –– it cannot be said that they

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participated in the violation of a clearly established federal right. See Yowell v. Abbey, 532 F.

App’x 708, 711 (9th Cir. 2013) (“Appellants were following BLM regulations . . . . No court has

held that those regulations violate due process. Thus, it cannot be said that every reasonable

official would have understood that what he is doing violates any clearly established federal

right.”) (quoting Reichle, 566 U.S. at 664).

Declaratory Judgment Act Claim

Next, the Court dismisses the remaining claim against the Individual Defendants brought

under the Declaratory Judgment Act. It is well established that the DJA is not an independent

source of federal jurisdiction. See Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011). Instead,

“the availability of declaratory relief presupposes the existence of a judicially remedial right.”

Id. (quoting C & E Servs., Inc. of Washington v. D.C. Water & Sewer Auth., 310 F.3d 197, 201

(D.C. Cir. 2002)). Because the Individual Defendants are entitled to immunity from suit, Gill

has not identified a judicially remediable claim over which this Court has jurisdiction. He

cannot, accordingly, pursue a DJA claim against them here.

C. FTCA Claims

With respect to Plaintiff’s FTCA claims against the Government, the Court holds that

proper venue lies in Massachusetts. The FTCA has a unique venue provision, which provides:

Any civil action on a tort claim against the United States under
subsection (b) of section 1346 of [Title 28] may be prosecuted only
in the judicial district where the plaintiff resides or wherein the act
or omission complained of occurred.

28 U.S.C. § 1402(b). “Under the prevailing interpretation of section 1402(b), venue is proper in

the District of Columbia if sufficient activities giving rise to plaintiff’s cause of action took place

here.” Patel v. Phillips, 933 F. Supp. 2d 153, 165 (D.D.C. 2013) (quotation omitted).

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 As the Government highlights, almost none of the conduct alleged occurred here in

Washington. Gill claims that the Government acted unlawfully in seizing him and searching his

home in Massachusetts, transporting him from Massachusetts to Virginia, and detaining him in

Virginia. With regard to the District, he offers only the vague allegation that the acts at issue

were “approved by DOJ, USMS, and/or DOD officials within Washington, D.C.” First Am.

Compl., ¶ 40. But if such an allegation were sufficient to establish venue under the FTCA,

almost every FTCA claim could be pursued here. The Court is hard pressed to imagine a case

lodged against the federal government that could not allege the participation of an unspecified

official in Washington. For this reason, “[i]t is well established that ‘mere involvement on the

part of federal agencies, or some federal officials who are located in Washington D.C., is not

determinative of venue.’” Chauhan v. Napolitano, 746 F. Supp. 2d 99, 103 (D.D.C. 2010)

(quoting Aftab v. Gonzalez, 597 F. Supp. 2d 76, 82 (D.D.C. 2009)).

If a court finds that venue is improper in its own jurisdiction, it may dismiss the case “or

if it be in the interest of justice, transfer such case to any district or division in which it could

have been brought.” 28 U.S.C. § 1406(a). The District of Massachusetts, where much of the

alleged conduct supporting Gill’s FTCA claims occurred, seems to be the most proper venue for

those claims. “Generally, the interest of justice requires transferring such cases to the

appropriate judicial district rather than dismissing them.” Sanchez ex rel. Rivera-Sanchez v.

United States, 600 F. Supp. 2d 19, 22 (D.D.C. 2009). The Court therefore declines to rule on the

merits of Gill’s FTCA claims (along with his sole DJA claim against the Government), but it

does find that it is in the interest of justice to transfer the matter. See Hoffman v. Fairfax Cty.

Redev. & Hous. Auth., 276 F. Supp. 2d 14, 17 (D.D.C. 2003) (declining to rule on substantive

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merits of defendant’s motion to dismiss because transferee court would be better suited to

address matter).

IV. Conclusion

For these reasons, the Court will grant the Individual Defendants’ Motion to Dismiss, and

it will transfer what is left of the case to the District of Massachusetts. A separate Order so

stating will issue this day.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: November 21, 2019

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