Gallop v. Cheney

660 F.3d 580, 2011 WL 4888821
CourtCourt of Appeals for the Second Circuit
DecidedApril 27, 2011
Docket10-1241
StatusPublished
Cited by7 cases

This text of 660 F.3d 580 (Gallop v. Cheney) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gallop v. Cheney, 660 F.3d 580, 2011 WL 4888821 (2d Cir. 2011).

Opinion

642 F.3d 364 (2011)

April GALLOP, individually and for her minor child, E.G., Plaintiff-Appellant,
v.
Richard CHENEY, former Vice President of the United States, Donald Rumsfeld, former Secretary of the Department of Defense, General Richard Myers (Ret.), United States Air Force, Defendants-Appellees,
John Does Nos. I-X, in their individual capacities, Defendants.[1]

Docket No. 10-1241-cv.

United States Court of Appeals, Second Circuit.

Argued: April 5, 2011.
Decided: April 27, 2011.

*366 William W. Veale (Mustapha Ndanusa, Brooklyn, NY; Dennis Cunningham, San Francisco, CA, on the brief), Walnut Creek, CA, for Plaintiff-Appellant April Gallop.

Alicia M. Simmons, Assistant United States Attorney (Preet Bharara, United States Attorney; Benjamin H. Torrance, Assistant United States Attorney, on the brief), Office of the United States Attorney for the Southern District of New York, New York, NY, for Defendants-Appellees Richard Cheney, Donald Rumsfeld and Richard Myers.

Before: WINTER, JOHN M. WALKER, JR., and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

April Gallop ("Gallop") appeals from a March 18, 2010 judgment of the United States District Court for the Southern District of New York (Denny Chin, Judge) dismissing her complaint asserting violations of a constitutional rights pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), a common law tort of conspiracy to cause death and great bodily harm, and a violation of the Antiterrorism Act, 18 U.S.C. § 2333(a). Gallop, represented by counsel in the District Court and on appeal, alleged that defendants, former senior government officials, caused the September 11, 2001 attacks against the United States in order to (1) create a political atmosphere in which they could pursue domestic and international policy objectives and (2) conceal the misallocation of $2.3 trillion in congressional appropriations to the Department of Defense. The District Court concluded that Gallop's claims were frivolous, and dismissed her complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). We affirm.

BACKGROUND

As the sentient world well recalls, on the morning of September 11, 2001, "agents of the al Qaeda terrorist organization hijacked commercial airplanes and attacked the World Trade Center in New York City and the national headquarters of the Department of Defense in Arlington, Virginia." Hamdan v. Rumsfeld, 548 U.S. 557, 567-68, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006). Among the nearly 3,000 civilians that were killed in the attacks were the 6 crew members and 58 passengers of American Airlines Flight 77, which crashed into the Pentagon at 9:37 a.m. See, e.g., The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States 8-10 (2004). The attacks of September 11, 2001 constituted the deadliest attack on American soil *367 since the bombing of Pearl Harbor on December 7, 1941.

On December 15, 2008, Gallop filed a complaint in the District Court alleging the following facts. Gallop, a Specialist in the United States Army, was working in the Pentagon with her infant child, E.G., on September 11, 2001, when a large "explosion" caused the walls and ceiling to collapse on top of her. Complaint ¶ 6. Although she was "knocked unconscious" by the initial blast, she regained her senses in time to exit the building through a hole in the wall and "collapsed on the grass" outside. Complaint ¶ 34. She awoke sometime later in the hospital. Id. Both she and her son, now seven-years-old, sustained lasting "head and brain injuries" as a result of the explosion. Complaint ¶ 7.

Apart from these factual allegations, the Complaint hypothesizes a fantastical alternative history to the widely accepted account of the "explosion" that injured Gallop and killed hundreds of other men and women inside the Pentagon. Among other things, Gallop's complaint alleges that American Airlines Flight 77 did not crash into the Pentagon—indeed, that no plane crashed into the Pentagon. Complaint ¶ 4 ("[T]he official story, that a hijacked plane crashed into the Pentagon and exploded... is false."). Instead, the Complaint alleges that the United States most senior military and civilian leaders "cause[d] and arrange[d] for high explosive charges to be detonated inside the Pentagon, and/or a missile of some sort to be fired at the building ... to give the false impression that hijackers had crashed the plane into the building, as had apparently happened in New York." Complaint ¶ 3.

Gallop further contends that these officials knew of the September 11 attacks in advance, facilitated their execution, and attempted to cover up their involvement in order to "generate a political atmosphere of acceptance in which [the government] could enact and implement radical changes in the policy and practice of constitutional government in [the United States]." Complaint ¶ 2. In addition, Gallop alleges that the attacks were intended to conceal the revelation on September 10, 2001, that $2.3 trillion in congressional appropriations "could not be accounted for" in a recent Department of Defense audit. Complaint ¶ 42.

Gallop claims that defendants' alleged responsibility for the attack that resulted in the injuries she sustained and the deaths of thousands of others entitles her to compensatory and punitive damages for (1) violations of her rights under the First, Fourth, Fifth and Ninth Amendments to the United States Constitution pursuant to Bivens; (2) the common law tort of conspiracy to cause death and great bodily harm; and (3) a violation of the Antiterrorism Act, 18 U.S.C. § 2333(a), which provides civil remedies to U.S. nationals injured by "an act of international terrorism."[2]

On May 6, 2009, defendants moved to dismiss Gallop's complaint on the following bases: (1) that defendants are entitled to qualified immunity; (2) that the Antiterrorism Act fails to provide a cause of action against U.S. government officials; (3) that Gallop's constitutional claim is untimely, and, in any event, fails to state a claim *368 upon which relief can be granted; (4) that all of her claims are barred under the doctrine of judicial estoppel; and (5) that all of her claims are frivolous. The District Court agreed that the Complaint was frivolous and could not survive a motion to dismiss. See Gallop v. Cheney, No. 08 Civ. 10881, 2010 WL 909203, at *3 (S.D.N.Y. Mar. 15, 2010). Accordingly, without reaching any of the government's other arguments, the District Court dismissed the complaint with prejudice. Id.

On appeal, Gallop argues that the District Court erred in concluding that the complaint failed to make out well-pleaded, non-conclusory factual allegations and erred in declining to provide her leave to amend her complaint.

DISCUSSION

A.

We review de novo

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Cite This Page — Counsel Stack

Bluebook (online)
660 F.3d 580, 2011 WL 4888821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallop-v-cheney-ca2-2011.