United States District Court, Southern District of New York
November 7, 1990
STEVEN JOHN DONAHUE, JOHANNA VILLANI AND IAN DONAHUE-VILLANI, AN INFANT BY HIS MOTHER AND NATURAL GUARDIAN, JOHANNA VILLANI, PLAINTIFFS,
UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DRUG ENFORCEMENT ADMINISTRATION AND THE UNITED STATES OF AMERICA, DEFENDANTS.
The opinion of the court was delivered by: Cannella, District Judge:
MEMORANDUM AND ORDER
Defendants' motion to dismiss the complaint for lack of
subject matter jurisdiction is denied. Fed.R.Civ.P. 12(b)(1).
Defendants' motion for summary judgment is denied. Fed.R.Civ.P.
On April 4, 1983, Steven John Donahue entered into a plea
agreement with the United States Attorney for the District of
New Jersey, in which he agreed to truthfully disclose all
information he had regarding marijuana and hashish cases in
exchange for pleading guilty to certain drug related charges.
Shortly thereafter, Donahue began working as a confidential
informant for the United States Drug Enforcement Administration
[the "DEA"]. In 1984, DEA Special Agent Jack Short, the
assistant agent in charge of the Newark Division of the DEA,
was assigned to work undercover with Donahue in an attempt to
develop cases against several large scale Lebanese heroin and
hashish dealers. On or about December 8, 1984, Donahue and
Agent Short travelled to Athens, Greece to attend certain
undercover meetings. Donahue's wife and son also went to
Athens. Donahue alleges that they accompanied him as part of
his cover as a drug dealer. During the undercover meetings in
Greece, arrangements were made to purchase heroin from the
Lebanese dealers, somewhere in the Middle East area.
A few days after the meeting, the Donahues went to Beirut,
Lebanon. The Donahues allege that they travelled to Lebanon
under the direction and supervision of Agent Short as part of
the undercover operation to purchase heroin from the Lebanese
drug dealers. The Donahues further allege that upon their
arrival in Beirut they were seized by a military group and held
hostage. Donahue asserts that after several months he was
permitted to leave his captors to raise ransom money for his
family's freedom. He alleges that he returned to Lebanon with
$300,000 and that his wife and child were released on July 28,
1985, while he was held until July 1, 1986. The Donahues allege
that while they were held hostage in Lebanon they were captured
rival militias and subjected to physical and mental tortures.
On June 8, 1988, plaintiffs filed the instant action under
the Federal Tort Claims Act ["FTCA"], 28 U.S.C. § 1346(b),
2671 et seq. (1988), alleging that the United States Department
of Justice, the DEA and the United States of America
[collectively the "Government"] were negligent in sending them
to Lebanon as part of the undercover operation. The Government
now moves under Rule 12(b)(1) of the Federal Rules of Civil
Procedure to dismiss the complaint for lack of subject matter
jurisdiction or, in the alternative, for summary judgment
pursuant to Rule 56.
I. Motion to Dismiss
The United States, as a sovereign entity, may not be sued
unless it has consented to be sued by expressly waiving its
sovereign immunity. See Carelli v. IRS, 668 F.2d 902, 904 (6th
Cir. 1982). The existence of such consent is a prerequisite for
jurisdiction. See United States v. Mitchell, 463 U.S. 206, 212,
103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983).
Under the FTCA, the federal government has consented to be
sued in tort. Specifically, section 1346(b) provides in
The district courts . . . shall have exclusive
jurisdiction of civil actions on claims against
the United States, for money damages . . . for
injury . . . caused by the negligent or wrongful
act or omission of any employee of the Government
. . . under circumstances when the United States,
if a private person, 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) (1988). However, the FTCA is a limited
waiver of sovereign immunity because certain categories of
torts, specified in 28 U.S.C. § 2680, are explicitly exempted
from its coverage. The district courts lack subject matter
jurisdiction to hear any claim falling within one of the
exceptions. See Morris v. United States, 521 F.2d 872
, 874 (9th
Pursuant to section 2680(k) of the FTCA, "[a]ny claim arising
in a foreign country" is exempted from the section 1346(b)
waiver of sovereign immunity. 28 U.S.C. § 2680(k) (1988). Thus,
the Government may not be held liable in tort with respect to
its negligent acts or omissions arising in a foreign country.
The exception exists, in part, because liability under the FTCA
is determined under the law of the place where the negligent
act or omission occurs. See id. The Supreme Court explained
that while "Congress was ready to lay aside a great portion of
the sovereign's ancient and unquestioned immunity from suit, it
was unwilling to subject the United States to liabilities
depending upon the laws of a foreign power." United States v.
Spelar, 338 U.S. 217, 221, 70 S.Ct. 10, 12, 94 L.Ed. 3 (1949).
In construing the foreign country exception to the FTCA,
federal courts have consistently held that despite American
involvement, tort claims arising from government negligence
occurring on the grounds of a foreign American military base,
an American embassy and a foreign land occupied by United
States military forces are claims arising in a foreign country.
See, e.g., Roberts v. United States, 498 F.2d 520, 522 (9th
Cir.), cert. denied, 419 U.S. 1070, 95 S.Ct. 656, 42 L.Ed.2d
665 (1974); Meredith v. United States, 330 F.2d 9, 10 (9th
Cir.), cert. denied, 379 U.S. 867, 85 S.Ct. 137, 13 L.Ed.2d 70
(1964); Callas v. United States, 253 F.2d 838, 840 (2d Cir.),
cert. denied, 357 U.S. 936, 78 S.Ct. 1384, 2 L.Ed.2d 1550
(1958). Thus, if the "negligent act proximately causing damage
occurs outside the United States, section 2680(k) bars
assertion of a claim against the Government. . . ." Knudsen v.
United States, 500 F. Supp. 90, 93 (S.D.N.Y. 1980).
However, a FTCA claim arises in the United States if the
negligent act or omission takes place in the United States even
though the negligence has its "operative effect" in a foreign
country. See Sami v. United States, 617 F.2d 755, 762 (D.C.Cir.
1979); Leaf v. United States, 588 F.2d 733,
735-36 (9th Cir. 1978); Roberts, 498 F.2d at 522 n. 2. In these
claims, which have been characterized as "headquarters claims,"
subject matter jurisdiction under the FTCA is predicated on
allegations that a negligent failure to warn, instruct or train
occurred in the United States proximately causing damage or
injury abroad. For example, in Eaglin v. United States Dep't of
Army, 794 F.2d 981 (5th Cir. 1986), the court declined to
assert jurisdiction under the FTCA where the alleged negligent
failure to warn of hazardous weather conditions in Germany
during plaintiff's training in the United States was not the
proximate cause of plaintiff's injury in West Germany. See id.
at 982. On the other hand, in Beattie v. United States,
756 F.2d 91 (D.C. Cir. 1984), the court asserted jurisdiction over
claims based on plaintiffs' allegations that the negligent
selection, training and supervision of air traffic controllers
by officials in Washington, D.C. caused the airplane to crash
in Antarctica. See id. at 96. Finally, in Sami, jurisdiction
existed under the FTCA for plaintiff's claim of false arrest
which took place in Germany because the instructions to make
the arrest occurred in the United States. See 617 F.2d at
757-58. Thus, a claim is not barred by section 2680(k) where
the tortious conduct occurs in the United States, but the
injury is sustained in a foreign country.
Plaintiffs' complaint alleges as follows: 13.
Defendant DEA and more particularly Jack Short,
special agent-in-charge of plaintiff Donahue knew,
accepted and endorsed Donahue's activities on
behalf of DEA. On December 9, 1984, Donahue went
to the Athens Hilton with DEA agent Jack Short to
meet with Lebanese drug traffickers and producers
for the purpose of arranging the purchase of 100
kilos of heroin to be picked up at a subsequent
time in the Middle East region. 14. On December
21, 1984, he [Donahue] continued the DEA mission
by going to Beirut, Lebanon with the approval and
under the direction of Agent Jack Short. He
arrived in Lebanon on that date with his wife and
Complaint, at ¶¶ 13, 14, 88 Civ. 4368 (JMC (S.D.N.Y. June 8,
1988). When presented with a motion to dismiss, the Court is
required to accept all the facts alleged in the complaint as
true. See State of New York Dist. Attorney Investigators Police
Benevolent Assoc., Inc. v. Richards, 711 F.2d 8
, 11 (2d Cir.
1983). Plaintiffs allege that the Governments' tortious conduct
consisted of sending them to Lebanon as part of the DEA
investigation. The Government argues that the complaint is
deficient in that it fails to allege facts upon which subject
matter jurisdiction can be based.
Whether or not the Court has jurisdiction over the dispute
depends on where the Government's allegedly negligent act took
place. Plaintiffs' allegations in the complaint state that
during the undercover meeting in the Athens Hilton, Agent
Short, on behalf of the DEA, arranged for the Donahues to
travel to Lebanon. Based on these allegations, the alleged
wrongdoing took place during the undercover meeting in Athens,
Greece. Thus, according to plaintiffs' allegations in the
complaint, the Court lacks jurisdiction under the foreign
claims exception to the FTCA.
Although the injury occurred outside of the United States,
the Court would have jurisdiction under the FTCA provided that
the Government's negligent act occurred within the United
States. However, plaintiffs' allegations in the complaint are
also insufficient to assert a headquarters claim. The Ninth
Circuit's opinion in Cominotto v. United States, 802 F.2d 1127
(9th Cir. 1986) is instructive. In Cominotto, plaintiff was a
DEA informant who agreed with the United States Secret Service
to go to Bangkok, Thailand to assist with a counterfeiting
investigation. See id. at 1128-29. Cominotto met with a secret
agent in Honolulu, who advised him not to begin an
investigation at that time. Thereafter, Cominotto met with two
Secret Service agents in Malaysia, who instructed him to meet
the suspects only in the daytime and in public places.
Cominotto arranged a meeting with three suspects at night,
disregarding the agents' instructions, and was subsequently
injured by one of the suspects later that evening. See id. at
1129. He then brought suit against the Government for
the allegedly negligent acts of the Secret Service in planning
the Thailand investigation. The Ninth Circuit rejected
Cominotto's headquarters claim on the ground that he failed to
establish that there was any connection between the allegedly
negligent acts in the United States and the injury in Bangkok.
See id. at 1130. The court reasoned that since the planning of
the investigation occurred primarily outside of the United
States, the Secret Service activities within the United States
were too far removed to support a headquarters claim. See id.
Plaintiffs' complaint in the instant action, as in
Cominotto, merely alleges that while he was in Athens, Agent
Short directed him to go to Lebanon in furtherance of the DEA
mission. However, in plaintiffs' memorandum of law submitted in
opposition to the Government's motion, plaintiffs repeatedly
allege that the plan to arrest the Lebanese drug dealers
originated in the United States. Moreover, plaintiffs allege
that from the beginning the plan included sending the Donahues
to Lebanon. The Donahues further state that when Agent Short
directed them to go to Lebanon, while they were in Athens, he
was acting in furtherance of instructions that he received from
DEA officials in the United States.
Clearly, had these allegations appeared in the complaint they
would have been sufficient to allege a headquarters claim. A
motion to dismiss under Rule 12(b) tests the sufficiency of the
allegations in the complaint. However, the Court's obligation
to liberally construe a pro se complaint is well established.
See, e.g., Lyons v. Powell, 838 F.2d 28, 31 (1st Cir. 1988) (en
banc). When reviewing a pro se complaint, the court must hold
the allegations asserted therein to "less stringent standards
than formal pleadings drafted by lawyers." Haines v. Kerner,
404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)
(per curiam); accord Hohman v. Hogan, 597 F.2d 490, 492 (2d
Cir. 1979). The Court's duty to adopt a generous attitude when
evaluating a pro se complaint supports the Court's decision to
consider the allegations in the Donahues' opposition papers.
The Policy reasons favoring liberal construction of pro se
pleadings warrant the Court's consideration of the allegations
contained in plaintiffs' memorandum of law, at least where
those allegations are consistent with the allegations in the
complaint. In addition, the allegations in plaintiffs'
opposition papers merely provide in greater detail the
circumstances surrounding the Donahues' trip to Lebanon; thus,
it is not wholly unsurprising that they were omitted from the
Reading both the complaint and plaintiffs' memorandum of law
together, it is clear that plaintiffs sufficiently allege a
basis for jurisdiction under the FTCA. Plaintiffs' allegations
establish a headquarters claim insofar as the act of negligence
is alleged to have occurred in the United States. Accordingly,
the Governments' motion to dismiss for lack of subject matter
jurisdiction is denied. Fed.R.Civ.P. 12(b)(1).
II. Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides
that a district court shall grant a motion for summary judgment
if it determines that "there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving
party bears the initial burden of demonstrating the absence of
any genuine issue of material fact. See Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142
(1970). Once the moving party satisfies its burden, the
nonmoving party must set forth "specific facts showing that
there is a genuine issue for trial." Fed.R.Civ.P. 56(e). To
meet its burden the nonmoving party "must do more than simply
show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
The Government contends that summary judgment should be
granted because there is no evidence to support plaintiffs'
claim that the Government directed them to travel to Lebanon as
part of the plan to arrest
the Lebanese drug traffickers. In support of its contention,
the Government submits affidavits from Agent Short and other
DEA officials stating that Donahue had often requested that he
be allowed to go to Lebanon, but they repeatedly told him that
the DEA would not authorize the trip due to the dangerous
conditions in Lebanon. According to the DEA officials, Donahue
continued to express a desire to go to Lebanon, even without
the DEA's authorization.
Donahue contends his trip to Lebanon was made pursuant to the
original plan to arrest certain Lebanese drug traffickers. To
support his contention, Donahue points to various actions that
he took in the United States which he argues indicate the
Government's intention to send him and his family to Lebanon.
For example, he points to telephone calls that he made while in
the United States to Lebanese drug dealers in which he told
them that he was planning to visit their country. The
Government contends that all of the evidence presented by the
Donahues merely indicates their intention to go to Lebanon and
fails to reflect an intention by the Government to send the
Donahues to Lebanon.
It is clear that conflicting inferences can be drawn from the
evidence presented. While the Government asserts that the
evidence presented by the Donahues only shows that they
intended to go to Lebanon, the evidence is also consistent with
a decision by the Government to send them to Lebanon as part of
its scheme to arrest Lebanese drug dealers. Since the
allegations indicate that there is a genuine issue of material
fact to be resolved concerning whether the Government was
involved in the Donahues' venture to Lebanon, the Government's
motion for summary judgment is denied.
The Court deems plaintiffs' complaint amended to reflect the
allegations contained in its memorandum of law. Accordingly,
defendants' motion to dismiss is denied. Fed.R.Civ.P. 12(b)(1).
Defendants' motion for summary judgment is denied. Fed.R.Civ.P.
Defendants are ordered to file an answer to plaintiffs'
complaint within twenty (20) days from the filing of this
Memorandum and Order.
Upon reconsideration of plaintiffs' application for
appointment of counsel, the Court directs that counsel be
assigned to plaintiffs in accordance with the random selection
procedures of the Pro Bono Panel.*fn1 28 U.S.C. § 1915(d)
(1988). The Court directs that upon filing of defendants'
answer all proceedings shall be stayed for six (6) months until
counsel is appointed.