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(Source picture: US Defense Dept./Wikipedia)

(Source picture: US Defense Dept./Wikipedia)

El-Shifa Pharmaceutical Industries Company et al. v. United States of America

Court United States District Court for the District of Columbia, United States
Case number 01-731 (RWR)
Decision title Memorandum Opinion
Decision date 29 November 2005
Parties
  • El-Shifa Pharmaceutical Industries Company
  • United States of America
Other names
  • El-Shifa III
Categories Terrorism
Keywords motion to dismiss, non-justiciable, political question, sovereign immunity, subject matter jurisdiction, Terrorism
Links
Other countries involved
  • Sudan
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Summary

In August 1998, the US embassies in Kenya and Tanzania were bombed by terrorists loyal to Osama bin Laden. In retaliation, President Clinton ordered a missile strike on the El-Shifa pharmaceutical plant in Khartoum, Sudan, arguing that it was a base for terrorism. Later, it was proven that the plant had no ties to terrorists. Therefore, El-Shifa Pharmaceutical Industries brought complaints against the United States in the US Court of Federal Claims.

In November 2005, the District Court found that El-Shifa Pharmaceutical Industries failed to show that the US waived its sovereign immunity regarding the asserted claims. Furthermore, the case presented a non-justiciable political question (which foresees that courts have no authority to hear or adjudge on matters that raise political, rather than legal, questions). This meant that the District Court did not have jurisdiction to hear the plaintiff’s claims. Accordingly, the District Court dismissed the complaint.

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Procedural history

A lawsuit filed with the US Court of Federal Claims for $50 million in losses was dismissed in March 2003 as non-justiciable based on the US ‘political question doctrine’.

On 11 August 2004, the Federal Circuit Court of Appeals affirmed the lower court’s decision.

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Related developments

The plaintiff’s motion to alter the judgment regarding their equitable relief was later denied as well.

On 27 March 2009, the Court of Appeals held that “courts are not a forum for second-guessing the merits of foreign policy and national security decisions” (p. 8), and upheld the District Court’s decision.

On 3 August 2009, the Court of Appeals ordered that its previous judgment be vacated and the case be re-heard by the Court sitting en banc.

On 8 June 2010, the US Court of Appeal (sitting en banc) affirmed the decision of the District Court once again.

In January 2011, the US Supreme Court refused to reconsider the dismissal. See 'Court Won’t Reconsider Sudan Lawsuit Dismissal', CBS News, 18 January 2011.

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Legally relevant facts

In August 1998, the US embassies in Kenya and Tanzania were bombed by terrorists loyal to Osama bin Laden. In retaliation, President Clinton ordered a missile strike on the El-Shifa pharmaceutical plant in Khartoum, Sudan. The attack was justified by the claim that the plant was a base for terrorism. US officials also claimed that the plant was used in the manufacture of chemical weapons. The plaintiffs denied the accusations. It was later proved that the plant had no ties to bin Laden and that only medical products were manufactured at the plant. Having learnt that their initial justifications were false, officials in the Clinton Administration offered new explanations, claiming that the plant owners supported terrorism (pp. 2-3).

The US Government filed a motion to dismiss for lack of subject matter jurisdiction (p. 3).

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Core legal questions

  • Can the District Court grant the US Government’s motion to dismiss?

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Specific legal rules and provisions

  • Rule 12(b)(1) of the Federal Rule of Civil Procedure
  • Section 702 of the Administrative Procedure Act
  • Section 1346 of the Federal Tort Claims Act (FTCA)
  • Section 1350 of the Alien Tort Claims Act (ATCA)

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Court's holding and analysis

The District Court granted the US Government’s motion to dismiss the action finding that it lacked subject matter jurisdiction to address the raised issues for reasons of sovereign immunity. It held that “[t]he President’s decision [to attack the pharmaceutical plant] was based on a judgment – whether inaccurate or not – that the El-Shifa plant posed a threat to the national security of the United States. (…) This decision was a policy judgment protected by the discretionary function exception which renders the United States absolutely immune from suit for this decision” (p. 7).

Plaintiffs argue that their actions for negligence and trespass do not fall within the discretionary function exception to the FTCA because their complaint “challenge[s] the negligent and reckless analyses of the soil sample and other evidence that led the government to conclude that the El-Shifa plant was producing materials for chemical weapons and to target the plant for destruction” (p. 7).

They argue that these determinations were “factual in nature and did not involve the exercise of any policy judgment” (pp. 7-8).

The soil sample analysts did not order the destruction of the plant. Plaintiffs’ characterization of this action as a challenge to the soil testing results rather than to the President’s actions cannot remove this case from resting within an FTCA exception that otherwise applies (p. 8).

The discretionary function exception to the FTCA, therefore, precludes plaintiffs’ claims for negligence and trespass (pp. 8-9).

The District Court further found that “[b]ecause the APA [Administrative Procedure Act] does not provide a waiver of the United States’ sovereign immunity from challenges to presidential decisions, the APA does not grant this court subject matter jurisdiction over the law of nations claim” (pp. 10-11).

As concerns the political question doctrine, the District Court held that: “[t]he executive’s determination that the pharmaceutical plant was a chemical weapons-related facility appears equally unreviewable. This designation, erroneous though it may have been, was made as part of a military response to the terrorist bombings of the U.S. embassies in Kenya and Tanzania. (…) It is this type of delicate decision regarding national security, foreign relations, and global politics that is entrusted to the sole discretion of the executive” (p. 16). Therefore, the District Court concluded that “[t]he plaintiff’s claims likely present a nonjusticiable political question over which the court would lack jurisdiction” (p. 18).

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Instruments cited

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Related cases

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Additional materials