Holding that, inter alia, section 7(a) of the Military Commissions Act of 2006(MCA), Pub.L. No. 109–366, § 7(a), 120 Stat. 2600, 2635 (codified at 28 U.S.C. § 2241(e) (2006)), ousted it of jurisdiction, the district court dismissed the Appellant's claims. Janko v. Gates, 831 F.Supp.2d 272, 278–81 (D.D.C.2011). He timely appealed.
Thus, violations of customary law or international law do not trigger the waiver expressed in § 1346(b)(1). See Sobitan, 589 F.3d at 389 (“If the plaintiff's claim is not cognizable under state tort law, it does not fall within the sovereign's waiver of immunity and must be dismissed.”); Al Janko v. Gates, 831 F.Supp.2d 272, 283 (D.D.C.2011) (holding that violations of customary international law “are not covered under the FTCA's limited waiver”). Therefore, Plaintiff's nonconstitutional claims, predicated on customary international law and Geneva Convention violations, do not invoke the FTCA's sovereign immunity waiver.
This is because the United States has not waived sovereign immunity under that statute for violations of customary international law. SeeAl Janko v. Gates , 831 F.Supp.2d 272, 283 (D.D.C. 2011). The FTCA waives sovereign immunity for cases in which the United States " ‘would be liable to the claimant’ as ‘a private person’ ‘in accordance with the law of the place where the act or omission occurred.’ "
Holding that, inter alia, section 7(a) of the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, § 7(a), 120 Stat. 2600, 2635 (codified at 28 U.S.C. § 2241(e) (2006)), ousted it of jurisdiction, the district court dismissed the Appellant's claims. Janko v. Gates, 831 F. Supp. 2d 272, 278-81 (D.D.C. 2011). He timely appealed.
Similarly, under the Federal Tort Claims Act (FTCA), courts have held that Guantanamo remains part of a "foreign country" and have precluded plaintiffs from bringing FTCA claims for alleged injuries on Guantanamo. See, e.g., Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d 103, 116-20 (D.D.C. 2010) (granting motion to dismiss because "foreign country" exception applied to FTCA claim when alleged injury occurred on Guantanamo); Al Janko v. Gates, 831 F. Supp. 2d 272, 284 (D.D.C. 2011) (same). Plaintiffs rely on Gherebi v. Bush, 352 F.3d 1278, 1290 (9th Cir. 2003), where the Ninth Circuit held that the naval base on Guantanamo was part of the "sovereign territory" of the United States when determining habeas jurisdiction.
Accordingly, plaintiff has not alleged a violation of clearly established law, and defendants are entitled to qualified immunity. See Pearson, 555 U.S. at 236 (holding that district court may examine whether right was clearly established before asking whether the officer's conduct violated a constitutional right); Al Janko v. Gates, 831 F. Supp. 2d 272, 280 n.13 (D.D.C. Dec. 22, 2011) ("[B]ecause the rights plaintiff seeks to invoke—specifically his own Fourth, Fifth, and Thirteenth Amendment rights, . . . —were not clearly established at the time of his detention, the individual defendants would be entitled to qualified immunity even if a Bivens action were implied.") (citation omitted), aff'd, 741 F.3d 136 (D.C. Cir. 2014). Even if plaintiff's ability to bring a Thirteenth Amendment claim against defendants was clearly established, plaintiff still has failed to establish a Thirteenth Amendment violation.
As both parties acknowledge, however, the FTCA explicitly excludes from its waiver of sovereign immunity “[a]ny claim arising in a foreign country.” 28 U.S.C. § 2680(k); see alsoSosa v. Alvarez–Machain, 542 U.S. 692, 712, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) ( “[T]he FTCA's foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred.”). Courts in this Circuit have consistently held that the foreign country exception encompasses claims arising from injuries sustained on U.S. installations in Afghanistan and Guantanamo. E.g.,Al Janko v. Gates, 831 F.Supp.2d 272, 284 (D.D.C.2011) (“Guantánamo fits well within the Supreme Court's ‘foreign country’ definition for purposes of the FTCA....”); Al–Zahrani, 684 F.Supp.2d at 116–19 (rejecting plaintiffs' argument that “Guantanamo is not a ‘foreign country’ under the FTCA because only U.S. law applies there”); accordAmeur v. Gates, 950 F.Supp.2d 905, 919 & n. 5 (E.D.Va.2013). Since the Court finds the rationale set forth in these opinions to be persuasive, Counts I, II, and III will be dismissed for lack of subject matter jurisdiction.
-------- Because Plaintiff's claim is clearly beyond the scope of the waiver of sovereign immunity found in the FTCA, the Court lacks subject-matter jurisdiction over her claim and it must be dismissed, with prejudice. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit....Sovereign immunity is jurisdictional in nature"); Al Janko v. Gates, 831 F. Supp. 2d 272, 283-84 (D.D.C. 2011) (dismissing with prejudice claims brought under the FTCA for injuries suffered in Guantanamo Bay). III. CONCLUSION