                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



ODILLIA MUTAKA MWANI, et al.,                   :
                                                :
        Plaintiffs,                             :
                                                :               Civil Action No. 99-125 (JMF)
        v.                                      :
                                                :
UNITED STATES, et al.,                          :
                                                :
        Defendants.                             :
                                                :


                                               ORDER

        This case is now in a most curious procedural posture. Whatever the original parties 1 the

defendants were, until recently, Osama Bin Laden and Al Qaida. With the President’s

announcement of the death of Bin Laden and the burial of his body at sea, plaintiffs have

suggested his death and intimated that his personal representative (assuming that concept applies

in whatever forum may assert jurisdiction over whatever property he had at his death) will not be

substituted for him. Thus, this lawsuit is now between plaintiffs who are citizens of Kenya and

Al Qaida. That means that this is now a suit between aliens and a organization that is made up of

aliens. Thus, it obviously does not fall within the grant of jurisdiction in Article III of the

Constitution which extends the judicial power of the United States to “Controversies . . . between

a State, or the Citizens thereof, and foreign States, Citizens of Subjects.” U.S. Const, Article III,

section 2. Jurisdiction has previously been found in this case through the Alien Tort Statute, 28

U.S.C. § 1350 (West 2011), but legal events suggest that the questions of jurisdiction and

        1
         The only remaining defendants in this case are Bin Laden and Al Qaida as The United
States, Libya and Afghanistan have all been dismissed as defendants in this case.
whether the complaint states a claim upon which relief can be granted are now much more

complicated.

        First, in July of this year, the court of appeals decided Doe v. Exxon Mobil Corp., 654

F.3d 11 (D.C. Cir. 2011) concluding (inter alia) that the Alien Tort Statute reaches a claim for

relief against an American corporation. In dissent, however, Judge Kavanaugh insisted that the

Alien Tort Statute could not possibly be interpreted to reach “conduct that occurred in foreign

lands.” Id. at 74. (Kavanaugh, J. dissenting).

        Additionally, there was published last year a work of particularly detailed scholarship

that explicates the historical circumstances surrounding the enactment of the Alien Tort Statute

and insists that it cannot be interpreted to permit the exercise of federal jurisdiction over an

action between aliens, let alone between them pertaining to events that occurred in a foreign

country. Anthony J. Bellia, Jr. & Bradford J. Clark, The Alien Tort Statute and the Law of

Nations, 78 U. Chi. L. Rev. 445 (2011).

        Finally, on November 14, 211, the court of appeals en banc ordered that the petition for

rehearing by appellee/cross appellant Exxon be stayed pending the decision of the Supreme

Court in two Alien Tort Statute cases2 in which certiorari has been granted. Doe v. Exxon Mobil

Corp., 09-7135 (D.C. Cir. Nov. 14, 2011). While it is not perfectly clear that the Supreme Court

will reach the issue raised by Judge Kavanaugh’s dissent or the article cited, these developments

convince me that it might well be a profligate waste of judicial resources to proceed any further

in this case in this controversial area without what may be dispositive guidance from the



       2
         The cases being heard are Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir.
2010), cert. granted, 79 U.S.L.W. 3728 (U.S. Oct. 17, 2011) (No. 10-1491); and Mohamad v.
Rajoub, 634 F.3d 604 (D.C. Cir. 2011), cert. granted, 80 U.S.L.W. 3128 (U.S. Oct. 17, 2011)
(No. 11-88).
Supreme Court and then the court of appeals as to whether this court even has jurisdiction to

proceed.

               IT IS THEREFORE ORDERED THAT all proceedings in this case are stayed

pending the resolution of appellees/cross appellants petition for rehearing en banc in Doe v.

Exxon Mobil Corp.                                              Digitally signed by John M. Facciola
                                                               DN: c=US, st=DC, ou=District of Columbia,
                                                               email=John_M._Facciola@dcd.uscourts.gov
                                                               , o=U.S. District Court, District of Columbia,
                                                               cn=John M. Facciola
                                      ___________________________________________
                                                               Date: 2012.01.10 15:25:16 -05'00'
                                      JOHN M. FACCIOLA
                                      UNITED STATES MAGISTRATE JUDGE
