El-Shifa Pharmaceutical Industries Company and Salah El Din Ahmed Mohammed Idris v. United States of America

Court	United States Court of Appeals, District of Columbia, United States
Case number	07-5174
Decision title	Appeal from the United States District Court for the District of Columbia (No. 01cv00731)
Decision date	27 March 2009
Parties	El-Shifa Pharmaceutical Industries Company Salah El Din Ahmed Mohammed Idris United States of America
Other names	El-Shifa V
Categories	Terrorism
Keywords	motion to dismiss, non-justiciable, political question doctrine, Terrorism
Links	Appeal from the United States District Court for the District of Columbia (No. 01cv00731)
Other countries involved	Sudan

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 raised 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) in asking the Court to adjudge on the President’s powers to designate as enemy property the private property of the chemical plant in Sudan.

In March 2009, the Court of Appeals affirmed the decision of the District Court, holding that the case raised a political question, and therefore barring the court from hearing the matter. El-Shifa Pharmaceutical Industries attempted to exclude from its appeal the political question doctrine, however, the Court of Appeals found that the other raised claims were ‘inextricably intertwined’ with the political question doctrine and therefore, must be considered together. The Court of Appeal affirmed the District Court’s earlier finding that the raised issues are political questions and hence, non-justiciable.

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.

Another claim was filed seeking damages for negligence and trespass. On 29 November 2005, the District Court of Colombia granted the government’s motion to dismiss the claim based on lack of subject matter jurisdiction. The Court found that sovereign immunity barred the claims.

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

Related developments

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.

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. 2-4).

After the November 2005 decision of the District Court granted the US Government’s motion to dismiss, El-Shifa Pharmaceutical Industries appealed only the dismissal of their claims for equitable relief for defamation and under the law of nations, restricting their defamation claim to statements made against Idris and their law of nations claim to the refusal to pay compensation for the attack (p. 4).

Core legal questions

Did the District Court err in its grant of the motion to dismiss?

Specific legal rules and provisions

Administrative Procedure Act (APA).

Court's holding and analysis

The US Government argued that the case presents a non-justiciable political question and therefore the dismissal of the District Court must be affirmed (p. 5).

The Court of Appeals held that “[a]lthough plaintiffs attempt to distance their law of nations and defamation claims from the nonjusticiable question of why the President ordered the missile strike, both claims nonetheless present questions “inextricably intertwined” with the underlying decision to attack the El-Shifa pharmaceutical plant” (p. 7). Therefore, the central issue before the Court was whether the claims were justiciable, i.e., non-political in nature.

The Court of Appeals invoked also the Baker v. Carr case in which the US Supreme Court explained the contours of the political question doctrine. The Court of Appeals found in favour of the Government’s argument, holding that “[p]laintiffs’ defamation claim presents a challenge to the Executive’s foreign policy and national security decisionmaking, two areas clearly outside our authority” (p. 12).

Accordingly, the Court of Appeal concluded that “this case presents a nonjusticiable political question. The judgment of the district court dismissing plaintiffs’ claims is affirmed” (p. 12).