Binyan Mohamed v. Jeppesen Dataplan Inc

Plaintiffs Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher AlRawi (“plaintiffs”), appeal the dismissal of this action, brought under the Alien Tort Statute, 28 U.S.C. § 1350 , against Jeppesen Dataplan, Inc. (“Jeppesen”), a wholly owned subsidiary of the Boeing Company. Before Jeppesen filed an answer to the complaint, the United States intervened, asserting that the state secrets privilege required dismissal of the entire action on the pleadings. The district court agreed and dismissed the complaint. On appeal, plaintiffs argue the district court misapplied the state secrets doctrine and erred in dismissing the complaint.

Concluding that the subject matter of this lawsuit is not a state secret because it is not predicated on the existence of a secret agreement between plaintiffs and the Executive, and recognizing that our limited inquiry under Federal Rule of Civil Procedure 12(b)(6) precludes prospective consideration of hypothetical evidence, we reverse and remand.

I. BACKGROUND

A. Factual Background

At this stage in the litigation, we “construe the complaint in the light most favorable to the plaintiff[s], taking all…