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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 13, 2003 Decided July 11, 2003
No. 02-5252
MERANIA MURINGU MACHARIA, ET AL.,
APPELLANTS
v.
UNITED STATES OF AMERICA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 99cv03274)
Philip M. Musolino argued the cause and filed the briefs
for appellants.
Michael J. Ryan, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-
tant U.S. Attorney. Robin M. Earnest, Assistant U.S. Attor-
ney, entered an appearance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: GINSBURG, Chief Judge, and ROGERS and TATEL,
Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Appellants, a prospective class of
more than 5,000 Kenyan citizens and businesses injured in
the 1998 bombing of the United States Embassy in Nairobi,
Kenya, sued the United States under the Federal Tort Claims
Act alleging that the government negligently failed to secure
the Embassy and to warn of a potential terrorist attack.
Following limited jurisdictional discovery, the district court
dismissed the complaint, finding that the discretionary func-
tion, foreign country, and independent contractor exceptions
to the Federal Tort Claims Act’s waiver of sovereign immuni-
ty bar appellants’ claims. We affirm in all respects.
I.
At approximately 10:30 on the morning of August 7, 1998,
an explosives-laden truck dispatched by the al Qaeda terrorist
network approached the entrance to the rear parking lot of
the United States Embassy in Nairobi, Kenya. An embassy
guard, a Kenyan employed by UIIS, a security company
working under contract with the State Department, refused
to open the Embassy gate. Blocked from entering the com-
pound, one of the two terrorists began shooting while the
other threw a flash grenade at another guard. Unarmed and
unable to notify the Embassy’s detachment of United States
Marines either by telephone or radio, the guards ran for
cover. Although apparently still off-premises, the terrorists
detonated their explosives, causing massive internal damage
to the Embassy, killing 44 Embassy employees and approxi-
mately 200 Kenyan citizens, injuring some 4,000 individuals,
and causing the collapse of an adjacent building. Approxi-
mately nine minutes later, another al Qaeda terrorist detonat-
ed an explosives-laden truck some thirty-five feet from the
outer wall of the United States Embassy in Dar Es Salaam,
Tanzania. That attack killed twelve people and injured
eighty-five.
3
Appellants, all Kenyan citizens and businesses injured in
the Nairobi bombing, filed suit against the United States in
the U.S. District Court for the District of Columbia alleging
that government actions and inactions led to the bombing and
exacerbated appellants’ injuries. Brought under the Federal
Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., counts I
and II of the complaint allege that the United States Embas-
sy was inherently dangerous; that State Department employ-
ees knew or should have known about a likely attack on the
Embassy and that despite this knowledge they failed to warn
their superiors, the Embassy, and Kenyan citizens; that the
State Department failed to provide properly trained security
personnel to the Embassy and to take necessary security
precautions to prevent an attack; and that as a result of these
shortcomings, the Embassy had become a private and public
nuisance. Counts I and II also seek to hold the United
States liable for the negligence of the UIIS guards. Count
III alleges that the government’s security failures violated
customary international law, the Kenyan Constitution, and
the International Covenant on Civil and Political Rights
(ICCPR). Count IV seeks formation of a constructive trust
to hold any assets or funds seized by the United States from
Osama bin Laden and al Qaeda for the benefit of plaintiffs
and prospective class members.
Invoking the discretionary function and foreign country
exceptions to the FTCA’s limited waiver of sovereign immuni-
ty, 28 U.S.C. § 2680(a), (k), the government moved to dismiss.
Before ruling on the government’s motion, the district court
allowed plaintiffs three months of jurisdictional discovery.
See Macharia v. United States, No. 99–3274 (D.D.C. March
26, 2001). During discovery, the government objected to
plaintiffs’ efforts to obtain information from any agency other
than the State Department. The government also objected to
any discovery on the merits. A magistrate judge sustained
both objections, and the district court denied plaintiffs’ mo-
tion for reconsideration. See Macharia v. United States, No.
99–3274 (D.D.C. Dec. 17, 2001).
Following completion of jurisdictional discovery, the district
court dismissed the complaint. Macharia v. United States,
4
238 F. Supp. 2d 13 (D.D.C. 2002). Rather than ‘‘apply the
heightened requirements of [Federal Rule of Civil Procedure]
12(b)(6) and treat all factual allegations—including those re-
lated to jurisdiction—in the complaint as true,’’ id. at 21
(internal quotation marks omitted), the court treated the
government’s jurisdictional arguments as a ‘‘factual chal-
lenge,’’ id. at 20, under Federal Rule of Civil Procedure
12(b)(1), and required plaintiffs to ‘‘demonstrate’’ ‘‘through
testimony and affidavits’’ that the ‘‘case is properly before the
court,’’ id. at 21. Observing that plaintiffs ‘‘were afforded
three months of discovery on the jurisdictional question,’’ id.,
the court rejected plaintiffs’ contention that it ‘‘should not
dismiss the action pursuant to Rule 12(b)(1) because [they]
have not had the opportunity to conduct sufficient jurisdic-
tional discovery in this case,’’ id. With respect to most
allegations contained in counts I and II, the court found that
‘‘[t]he decisions made by [the United States] regarding the
security of the Embassy and warnings of possible threats are
clearly discretionary in nature and grounded in policy and
therefore[ ] do not fall within the FTCA’s waiver of sovereign
immunity.’’ Id. at 26. The district court dismissed all claims
based on the alleged negligence of the UIIS guards under the
foreign country and independent contractor exceptions to the
FTCA. Id. at 26–28. As to count III, the court held that
sovereign immunity bars plaintiffs’ Kenyan Constitution and
ICCPR claims, and that plaintiffs had failed to allege a claim
under customary international law. Id. at 28–31. Having
dismissed plaintiffs’ substantive claims, the district court dis-
missed count IV, explaining that ‘‘a constructive trust is not
an independent cause of action.’’ Id at 31.
Plaintiffs now challenge the district court’s discovery rul-
ings and its dismissal of their complaint. Our review of the
district court’s dismissal of the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(1) and 12(b)(6) is de novo, see
Stokes v. Cross, 327 F.3d 1210, 1214 (D.C. Cir. 2003); we
review the district court’s discovery rulings for abuse of
discretion, see Goodman Holdings v. Rafidain Bank, 26 F.3d
1143, 1147 (D.C. Cir. 1994).
5
II.
The FTCA authorizes district courts to hear suits for
money damages against the United States ‘‘for injury or loss
of property, or personal injury or death caused by the negli-
gent or wrongful act or omission of any employee of the
Government TTT if a private person TTT would be liable to the
claimant in accordance with the law of the place where the act
or omission occurred.’’ 28 U.S.C. § 1346(b)(1). The Act’s
waiver of sovereign immunity has various exceptions, howev-
er. We agree with the district court that three of those
exceptions—discretionary function, foreign country, and inde-
pendent contractor—bar appellants’ claims under counts I
and II.
Discretionary Function Exception
The FTCA’s discretionary function exception bars claims
‘‘based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the
part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused.’’ 28 U.S.C.
§ 2680(a). In United States v. Gaubert, 499 U.S. 315, 322–23
(1991), the Supreme Court established a two-part test for
determining whether the discretionary function exception ap-
plies in a particular case. First, because ‘‘[t]he exception
covers only acts that are discretionary in nature, acts that
involve an element of judgment or choice,’’ id. at 322 (internal
quotation marks omitted), Gaubert’s first step requires that
we determine whether any ‘‘federal statute, regulation, or
policy specifically prescribes a course of action for an employ-
ee to follow,’’ id. If one does, ‘‘the employee has no rightful
option but to adhere to the directive.’’ Berkovitz v. United
States, 486 U.S. 531, 536 (1988). Under Gaubert’s second
step, which applies when there is no ‘‘federal statute, regula-
tion, or policy’’ and when the ‘‘challenged conduct involves an
element of judgment,’’ id., the court must decide ‘‘whether
th[e] judgment is of the kind that the discretionary function
exception was designed to shield,’’ id. ‘‘Because the purpose
of the exception is to prevent judicial ‘second-guessing’ of
legislative and administrative decisions grounded in social,
6
economic, and political policy through the medium of an
action in tort,’’ the Supreme Court explained, ‘‘when properly
construed, the exception protects only governmental actions
and decisions based on considerations of public policy.’’ Gau-
bert, 499 U.S. at 323 (internal quotation marks and citations
omitted).
In this case, even after several months of discovery, appel-
lants failed to establish, as Gaubert’s first step requires, the
existence of a ‘‘federal statute, regulation, or policy’’ that
applies to any of the government’s allegedly negligent con-
duct, including the government’s alleged failure to secure the
Embassy and to warn of a potential attack. This failure is
hardly surprising, for as the district court explained, ‘‘deter-
minations about what security precautions to adopt at Ameri-
can embassies, and what security information to pass on, and
to whom this information should be given, do not involve the
mechanical application of set rules, but rather the constant
exercise of judgment and discretion.’’ Macharia, 238
F. Supp. 2d at 23. Indeed, the Secretary of State has
authority to ‘‘develop and implement TTT policies and pro-
grams, including funding levels and standards, to provide for
the security of United States Government operations of a
diplomatic nature,’’ 22 U.S.C. § 4802(a)(1), and the ‘‘Physical
Security Standards’’ section of the State Department’s For-
eign Affairs Manual instructs ‘‘[p]roject managers and region-
al security officers TTT [to] follow all standards to the maxi-
mum extent possible,’’ UNITED STATES DEP’T OF STATE FOREIGN
AFFAIRS MANUAL, 12 FAM 314.1. The manual also directs
foreign service officers to engage in a process of
[r]isk management TTT begin[ning] with an assessment of
the value of the assets, the degree of a specific type of
threat, and the extent of the vulnerabilitiesTTTT A deci-
sion is then made as to what level of risk can be accepted
and which countermeasures should be applied. Such a
decision involves a cost-benefit analysis, giving decision
makers the ability to weigh varying security risk levels
against the cost of specific countermeasures.
7
Id., 12 FAH–6 H–511.4. In short, embassy security is vested
in the discretion of State Department employees, from the
Secretary to the foreign service officers at various embassies.
See Macharia, 238 F. Supp. 2d at 23–24.
Conceding that they ‘‘did not rely on any documents’’ to
demonstrate that a ‘‘federal statute, regulation, or policy’’
applied to the government’s conduct, Appellants’ Reply Br. at
6, appellants contend that the discretionary function excep-
tion is nevertheless inapplicable because the government
failed to follow an unwritten federal policy. According to
appellants, the Office of Diplomatic Security (DS), the office
within the State Department responsible for embassy securi-
ty, failed to file ‘‘trip reports’’ with the Embassy’s Regional
Security Officer following visits to the Embassy in March and
June 1998, even though ‘‘ ‘[a] team trip report would have
been a normal practice.’ ’’ Appellants’ Reply Br. at 6 (citing
Williams Dep. at 125:19–20). DS’s failure to file a trip report,
appellants maintain, left the Embassy with inadequate guid-
ance about how to improve security and to prevent al Qaeda’s
attack.
Even assuming an unwritten practice can satisfy the stat-
ute’s requirement, appellants have failed to establish that DS
had a mandatory obligation to file a trip report. To the
contrary, although the record establishes that filing trip
reports was DS’s ‘‘procedure,’’ one witness testified that
‘‘reality sometimes intercedes, and you do not have sufficient
time to do something as formal as TTT a trip report.’’ Flow-
ers Dep. at 51:15–17. The same witness explained that filing
a trip report ‘‘would be ideal, but it could have been that the
people that were team leaders TTT were immediately sent on
other trips or to handle other pressing businessTTTT If [the
diplomatic security agent] was called away before he had a
chance to write a trip report, it might be sometime before he
gets to it or it could be never if this flood of work doesn’t give
him the opportunity to do it.’’ Id. at 49:7–21. The record
thus establishes only that filing trip reports was preferred,
not that it was required, i.e., not that it amounted to a
mandatory policy.
8
Having failed to identify a relevant ‘‘federal statute, regula-
tion, or policy’’ under Gaubert’s first step, appellants contend
that the discretionary function exemption is inapplicable un-
der the second step because the government’s conduct was
the product of simple negligence rather than social, political,
or economic considerations. Specifically, appellants cite
twenty-one instances of alleged government negligence, from
its failure to fix a pin in the drop bar at the Embassy’s rear
parking lot to its failure to timely design a training program
for vehicle bomb recognition and prevention that led to
appellants’ injuries. See Appellants’ Br. at 25–26. The dis-
trict court helpfully distilled these allegations into six catego-
ries:
1) a failure to provide guidance and advice on improving
security at the Embassy, 2) a failure to provide security
equipment to the Embassy, 3) a failure to train adequate-
ly Embassy personnel and contractors to deal with vari-
ous security threats, 4) a failure to warn adequately
Embassy personnel, and others, of potential terrorist
threats, 5) an improper classification of the level of
security risk at the Embassy, or 6) falsely leading Em-
bassy personnel to believe that security analyses had
been conducted or would be conducted.
Macharia, 238 F. Supp. 2d at 22. The district court conclud-
ed that all six categories were barred by the second step of
the discretionary function test. Id. As the district court
explained, ‘‘[d]ecisions regarding how much safety equipment
should be provided to a particular embassy, how much train-
ing should be given to guards and embassy employees, and
the amount of security-related guidance that should be pro-
vided necessarily entails balancing competing demands for
funds and resources.’’ Macharia, 238 F. Supp. 2d at 25.
‘‘Each individual embassy’s need for security,’’ the district
court noted:
must be balanced against the need perceived at other
embassies, and the need for security must be balanced
against the need for alternative projects that could con-
sume scarce resources. Moreover, each of Defendant’s
9
decisions regarding security involved balancing potential
inconvenience to State Department employees against
the perceived security gains that would result from a
safety measure.
Id. We have little to add to the district court’s fine analysis,
except to note that, as the government points out in its brief,
‘‘decisions about foreign embassies, especially their location
and structure, require agency officials to account for policy
objectives, and consult and negotiate with the host country—
actions that, by their very nature, affect foreign relations.’’
Appellee’s Br. at 27.
Appellants insist that ‘‘[n]othing in the record supports the
notion that anyone at DS ‘decided’ to: make inaccurate
statements, fail to keep a promise, fail to send a report, fail to
send a report on time, overlook a broken pin or outdated
dropbar, or fail to correct misapprehensions.’’ Appellants’
Br. at 30. Put another way, appellants maintain that Gau-
bert’s second step requires evidence that decision makers
actually considered social, economic, or policy considerations.
But we rejected just this argument in Cope v. Scott, 45 F.3d
445, 449 (D.C. Cir. 1995) (citation omitted): ‘‘What matters is
not what the decisionmaker was thinking, but whether the
type of decision being challenged is grounded in social, eco-
nomic, or political policy. Evidence of the actual decision
may be helpful in understanding whether the ‘nature’ of the
decision implicated policy judgments, but the applicability of
the exemption does not turn on whether the challenged
decision involved such judgments.’’
Appellants’ challenges to the district court’s discovery or-
ders require little discussion. They argue that the district
court improperly applied a factual attack standard under
Federal Rule of Civil Procedure 12(b)(1), which requires
plaintiffs to demonstrate through affidavits and other testimo-
ny that the court has jurisdiction, instead of a facial attack
standard under Federal Rule of Civil Procedure 12(b)(6),
where the court accepts the plaintiffs’ allegations as true.
See Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d
Cir. 2000). According to appellants, the district court’s choice
10
of a factual attack standard was error, since the court allowed
discovery only regarding physical security and denied appel-
lants a chance to conduct discovery on ‘‘threat response.’’
Appellants’ Br. at 18. In support of this allegation, appel-
lants point out that the deponents offered by the government
declined to answer any questions on the threat issue, but
appellants ignore the fact that those deponents were not
asked to testify on that issue. Moreover, as the government
observes, ‘‘appellants refute their own argument by citing
documents on threat information that appellee produced in
discovery, to support their claim of failure to disseminate
threat information.’’ Appellee’s Br. at 42. The district court
thus properly employed a factual attack standard under Fed-
eral Rule of Civil Procedure 12(b)(1).
Nor do we detect any abuse of discretion in the district
court’s other discovery orders. The State Department’s stat-
utory responsibility for embassy security obviated the need
for discovery in other departments and agencies. See 22
U.S.C. § 4802. Likewise, discovery on the merits would have
been entirely irrelevant to the jurisdictional issue raised by
the government’s motion to dismiss. See Ignatiev v. United
States, 238 F.3d 464, 467 (D.C. Cir. 2001) (remanding dismiss-
al of FTCA claim for jurisdictional discovery).
Foreign Country and Independent Contractor Exceptions
Our conclusion regarding the discretionary function excep-
tion leaves only appellants’ allegations of negligence by Em-
bassy guards. According to appellants, the Kenyans UIIS
hired as Embassy guards lacked adequate training and equip-
ment, and negligently failed to identify and stop the terrorists
from detonating the bomb. We agree with the district court
that the independent contractor and foreign country excep-
tions bar these claims.
The FTCA’s waiver of sovereign immunity applies only to
tortious acts undertaken by ‘‘officers or employees of any
federal agency TTT and persons acting on behalf of a federal
agency in an official capacity.’’ 28 U.S.C § 2671. The Act
defines ‘‘federal agency’’ as ‘‘the executive departments[,] TTT
11
independent establishments of the United States, and corpo-
rations primarily acting as instrumentalities or agencies of
the United States, but does not include any contractor with
the United States.’’ Id. The Supreme Court has interpreted
this language, referred to as the ‘‘independent contractor
exception,’’ to mean that a contractor’s negligence may only
be imputed to the United States if the contractor’s ‘‘day-to-
day operations are supervised by the Federal Government.’’
United States v. Orleans, 425 U.S. 807, 815 (1976). ‘‘A critical
element in distinguishing an agency from a contractor,’’ the
Court explained, ‘‘is the power of the Federal Government ‘to
control the detailed physical performance of the contractor.’ ’’
Id. at 814 (quoting Logue v. United States, 412 U.S. 521, 528
(1973)).
Appellants contend that DS designed the Embassy’s con-
tracts for employing local guards, handled all payments to
UIIS, and regularly provided advice regarding the contracts.
See Appellants’ Br. at 33. They also contend that the con-
tract required UIIS to provide the State Department with the
names of the local guards it employed, to submit the names of
all personnel to the Department for approval, to ensure that
guards wear uniforms approved by the Department, and to
conduct inventories as directed by the Department. Id. Far
from demonstrating day-to-day State Department supervision
of the contractor, however, these allegations establish only
that ‘‘the contract set forth detailed guidelines and regula-
tions that the contractor was required to conform with as it
implemented its hiring, supervision and training of Embassy
local guards.’’ Macharia, 238 F. Supp. 2d at 28. As the
Supreme Court held in Orleans, the government may ‘‘fix
specific and precise conditions to implement federal objec-
tives’’ without becoming liable for an independent contractor’s
negligence. Orleans, 425 U.S. at 816.
To be sure, appellants presented evidence that supervision
of the UIIS contract amounted to a ‘‘full time job for one
[Assistant Regional Security Officer].’’ Appellants’ Br. at 34.
Although this may well constitute the sort of day-to-day
supervision falling outside the independent contractor excep-
tion, Assistant Regional Security Officers are located over-
12
seas—in this case, in Nairobi—and the FTCA’s sovereign
immunity waiver does not extend to acts or omissions arising
in territory subject to the sovereign authority of another
nation. See 28 U.S.C. § 2680(k); see also United States v.
Spelar, 338 U.S. 217, 221 (1949) (purpose of foreign country
exception is to avoid having another country’s law define the
scope of the federal government’s tort liability). Moreover,
to the extent that appellants allege negligent supervision of
local guards by State Department employees located in the
United States, those allegations are, for the reasons given
above, barred by the discretionary function exception. See
supra pp. 6–10.
III.
Having considered appellants’ remaining arguments and
finding no basis for questioning the district court’s disposi-
tion, we affirm in all respects.
So ordered.