Awad v. United States, No. 1:93CV376-D-D (N.D. Miss. 4/27/2001)

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Adnan Awad, Plaintiff, v. United States Of America, Defendant.

No. 1:93CV376-D-D.

United States District Court, N.D. Mississippi, Eastern Division.

April 27, 2001.

OPINION

DAVIDSON, Judge.

On December 17, 1993, Adnan Awad instituted this action against the United States of America, seeking damages pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 1402(b), 2401(b) and 2671-2680, for false imprisonment, conspiracy, intentional infliction of emotional distress, bad faith breach of contract, invasion of privacy, negligence, trespass to chattels and conversion. The trial of this matter began on February 26, 2001, and was concluded on March 7, 2001.¹

Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the court issues the following findings of fact and conclusions of law.

A. Factual Background

In 1982, the Plaintiff Adnan Awad, while carrying a highly sophisticated explosive device, traveled from the Middle East to Geneva, Switzerland, in furtherance of a terrorist mission under the guidance of the May 15 Organization, a radical Iraqi-based Palestinian terrorist group notorious for bombings across Europe and the Middle East. Once in Switzerland, Awad contacted the United States Ambassador at the American Embassy in Bern, and relayed information concerning the device.

After helping authorities locate and disarm the device, which was located in a hotel room at the Geneva Hilton Hotel, Awad remained in Switzerland, where he was issued personal identity documents by the Swiss and/or Lebanese governments, including a passport that he subsequently used to travel outside Switzerland.

In late 1984, various United States government officials, including the United States Attorney for the District of Hawaii, Daniel Bent, and a Department of Justice attorney, Larry Lippe, approached Awad in Switzerland and persuaded him to travel to the United States to aid in the defense against international terrorism. Specifically, Awad's testimony was sought in connection with a planned prosecution of Mohammed Rashid, a top leader of the May 15 Organization, who had allegedly placed a bomb on board an August 11, 1982, Pan Am flight bound from Tokyo, Japan, to Honolulu, Hawaii. The bomb exploded twenty minutes before the flight was scheduled to land in Hawaii, killing one person and wounding fifteen others.

Awad came to this country in December of 1984 and enrolled in the United States Marshals Service Witness Security Program (WITSEC), after being promised by Bent and Lippe that he would be given United States citizenship and a passport.² Upon his enrollment in WITSEC, Awad was also required by the United States Marshals Service (USMS) to sign a Memorandum of Understanding, pursuant to which Awad placed his identification documents, including his Swiss/Lebanese passport, in safekeeping with the USMS. In return, the USMS agreed to return these documents to Awad should he desire to leave WITSEC and revert to his true identity.³

Awad remained in WITSEC until May of 1986, when he voluntarily left its protection after becoming dissatisfied with the strictures of the program. Later that same year, Awad testified before a federal grand jury in Washington, D.C. concerning Mohammed Rashid and the May 15 Organization's terrorist activities. On July 14, 1987, the grand jury indicted Rashid and others for their role in the 1982 Honolulu Pan Am airliner bombing.

In May of 1988, Mohammed Rashid was arrested in Athens, Greece, and the Greek authorities, in lieu of extraditing him to the United States, decided to prosecute Rashid in Greece for his role in the 1982 Honolulu Pan Am airliner bombing. About this same time, Awad, who was living in Boston, was contacted by United States government officials regarding the possibility of his providing testimony at Rashid's trial in Greece. Awad, who was having financial difficulties, agreed to reenter WITSEC for six months and provide testimony against Rashid. Shortly thereafter, he received various types of financial assistance from the government, including money for the payment of a house mortgage for six months. After six months passed, Awad agreed to continue to remain in WITSEC and to testify against Rashid, whose trial in Greece had been delayed. Thereafter, in October of 1990, Awad was deposed by Greek officials in Washington, D.C., concerning the Rashid trial. Subsequently, in February of 1991, Awad again voluntarily left WITSEC due to his dissatisfaction with the program's security requirements.

Although no longer in WITSEC, Awad traveled to Greece and testified against Rashid in June of 1991 and again in November of 1991. While en route to Greece and during the trial, Awad received protective services from the United States. Due in no small part to Awad's testimony, which this court finds was of vital importance to this nation, Rashid was convicted by the Greek court and sentenced to eighteen years imprisonment. Under Greek law, however, Rashid was entitled to a re-trial de novo by a Greek appellate court. This re-trial was held in Greece in the Spring of 1993. For this second trial, Awad again traveled from the United States to Greece and testified against Rashid, who was again convicted and sentenced to fifteen years imprisonment. In the second trial, Awad again furnished crucial testimony.

The Greeks, however, released Rashid from prison in December of 1996. He was then arrested in a third country by the FBI in June of 1998, and brought here to face charges stemming from the 1982 Honolulu Pan Am airliner bombing. He is currently in federal custody awaiting trial. See United States v. Rashed, 234 F.3d 1280 (D.C. Cir. 2000).

B. Discussion

The United States may only be sued to the extent that it has waived its sovereign immunity. United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976); McNeily v. United States, 6 F.3d 343, 347 (5th Cir. 1993). Congress has enacted two waivers of sovereign immunity potentially applicable to this dispute: the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 1402(b), 2401(b), 2671-2680 (FTCA), and the Tucker Act, 28 U.S.C. § 1346(a), 1491.⁴ These waivers of sovereign immunity must be strictly construed in favor of the United States. Atorie Air, Inc. v. F.A.A., 942 F.2d 954, 958 (5th Cir. 1991).

The FTCA and the Tucker Act's respective waivers of sovereign immunity are non-overlapping. The FTCA only waives sovereign immunity for tort claims; sovereign immunity for claims founded upon express or implied contracts with the United States is waived by the Tucker Act, and not by the FTCA. Rothe Dev. Corp. v. United States Dep't of Def., 194 F.3d 622, 624 (5th Cir. 1999); Davis v. United States, 961 F.2d 53, 56 (5th Cir. 1991). In other words, plaintiffs bringing contract claims against the United States must do so within the confines of the Tucker Act, and Plaintiffs bringing tort claims against the United States must do so within the confines of the FTCA. See Atorie Air, 942 F.2d at 958 (holding that waivers of sovereign immunity must be strictly construed in favor of United States).

It has been held that Tucker Act jurisdiction exists to adjudicate claims that the Government has breached its agreements under the Witness Security Program. Doe v. Civiletti, 635 F.2d 88, 94-95 (2nd Cir. 1980). Further, it is the Tucker Act, and not the FTCA, that provides jurisdiction for claims of tortious breach of contract, even when the claim is set forth in the plaintiff's complaint as a tort claim for "bad faith." United States v. Huff, 165 F.2d 720, 725 (5th Cir. 1948); Jeppesen Sanderson, Inc. v. United States, 19 Cl. Ct. 233, 237 (Cl. Ct. 1990); Olin Jones Sand Co. v. United States, 225 Ct.Cl. 741 (Ct.Cl. 1980). In determining whether a claim is based in tort or contract, the court is not bound by the parties' characterizations of the complaint. City Nat'l Bank v. United States, 907 F.2d 536, 546 (5th Cir. 1990). Instead, the court must examine the essence of the plaintiff's claims to determine whether or not the claims arise out of the failure to perform a contractual obligation. See City Nat'l Bank, 907 F.2d at 546 (claim for gross negligence under FTCA dismissed because it arose out of government's failure to act in accordance with loan participation agreement); Blanchard v. St. Paul Fire and Marine Ins. Co., 341 F.2d 351, 357-58 (5th Cir. 1965) (affirming dismissal of negligence claim because it was founded on alleged failure to perform contractual obligation).

In addition, the United States Court of Appeals for the Fifth Circuit has consistently held that claims which are founded upon an alleged failure to perform contractual obligations are not tort claims that support subject matter jurisdiction under the FTCA; this is so even when the Plaintiff alleges claims for torts such as misrepresentation, conversion, negligence or bad faith breach of contract. Davis, 961 F.2d at 55-56; Blanchard, 341 F.2d at 357. In other words, if the Plaintiff's purported tort claims are in fact based on an alleged breach of contract, the claims are deemed to be based on a contract action and not a tort action; claims such as this fall outside the FTCA's waiver of sovereign immunity. Davis, 961 F.2d at 56; City Nat'l Bank, 907 F.2d at 546. Instead, the Tucker Act provides the appropriate waiver of sovereign immunity. See, e.g., United States v. Huff, 165 F.2d at 725. In short, where the plaintiff's claims require the court to construe the government's promises, and to determine if they were carried out, the Tucker Act, and not the FTCA, provides jurisdiction. Id.

As shown below, all of Awad's claims arise out of two separate agreements he made with the United States government, both of which Awad alleges were contracts. The first agreement, evidently entered into before Awad left Switzerland for the United States, was between Awad and the United States Attorney for the District of Hawaii, Daniel Bent, and a Department...