Mallouk v. Bush

• Court: District Court, District of Columbia
• Decided: August 4, 2009
• Docket: Civil Action No. 2008-2003
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MONA MALLOUK, et al., : : Petitioners, : : v. : Civil Action No. 08-2003 (JR) : BARACK H. OBAMA, et al., : : Respondents. :

MEMORANDUM

On June 8, 2009, I heard argument for and against the

habeas petition filed on behalf of Naji Hamdan, an American

citizen imprisoned in the United Arab Emirates (UAE). The

hearing focused on two issues: whether I had jurisdiction to hear

Hamdan’s petition and, if I did, whether I could grant habeas

relief since Hamdan has been charged with criminal offenses by

the UAE, a sovereign nation. The petition prayed, not for

release, but rather for a mandatory injunction requiring the

United States government to “stop requesting” Hamdan’s detention

and to inform the UAE courts of American participation, if any,

in Hamdan’s alleged interrogation and torture. The government

denied any participation in Hamdan’s detention and interrogation.

I ruled on June 8 that the habeas petition would be

dismissed, essentially because Hamdan has been charged by the UAE

for domestic criminal offenses, see Munaf v. Geren, 128 S. Ct.

2207, 2221-24; see also Kiyemba v. Obama, 561 F.3d 509, 515 (D.C.

Cir. 2009), but I did not dismiss the entire case because petitioners advanced the alternative argument that 28 U.S.C.

§ 1331 gave me jurisdiction over Hamdan’s claim of a

constitutional violation and that the All Writs Act, 28 U.S.C.

§ 1651, provided an avenue to grant relief on that claim. I

invited supplemental briefing on that argument.

The “state-created danger” claim goes like this:

(1) the United States government caused Hamdan’s arbitrary

detention and torture by requesting that the UAE detain him, but

(2) Hamdan had a substantive due process right to protection by

the American government from known, or likely abuse by UAE

security officials, so that (3) by requesting Hamdan’s detention,

the United States government heightened the risk of danger and

violated Hamdan’s substantive due process right. See Butera v.

District of Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001) (an

individual can assert a substantive due process claim against

egregious conduct by District of Columbia officials who

“affirmatively act to increase or create the danger” which causes

the individual’s harm). The due process claim, petitioners

argue, gives rise to 28 U.S.C. § 1331 federal question

jurisdiction, and the All Writs Act, 28 U.S.C. § 1651, allows for

any appropriate relief.

The Due Process clause provides no general right to

affirmative government aid or protection, however. The “state-

created danger” or “state endangerment” concept is an exception

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see Butera, 235 F.3d at 647. A “state endangerment” claim

against the federal government has never been recognized, and the

concept has been rejected by at least one judge of this Court.

See Sadowski v. Bush, 293 F. Supp. 2d 15, 18 n.1 (D.D.C. 2003).

The assertion of 28 U.S.C. § 1331 jurisdiction fares no

better. Petitioners concede that the All Writs Act does not

provide an independent ground for jurisdiction, but only allows

for relief that may be “necessary or appropriate in aid of” the

court’s jurisdiction. 28 U.S.C. § 1641(a) (emphasis added).

Thus, even if habeas corpus is a “civil action” for purposes of

§ 1331 (a proposition for which petitioners cite no case

support), the dismissal of the habeas petition here leaves

nothing in the “Constitution, laws or treaties of the United

States” for petitioners’ claim to “arise under.”

Petitioners’ allegations of abuse and worse at the

hands of UAE security officials may well merit further political

and public inquiry, but there is no basis on this record for

further action by this Court.

An appropriate order accompanies this memorandum.

JAMES ROBERTSON United States District Judge

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