932 F.3d 888
9th Cir.2019Background
- In 2010 Israeli forces intercepted the "Gaza Freedom Flotilla"; Furkan Doğan, a U.S. citizen aboard the Mavi Marmara, was killed during the boarding. Plaintiffs are his parents.
- Plaintiffs sued former Israeli Defense Minister Ehud Barak in U.S. federal court under the Torture Victim Protection Act (TVPA) alleging extrajudicial killing/torture by an official acting under color of foreign law.
- Israel ratified/authorized the operation and requested that the U.S. Executive Branch file a Suggestion of Immunity (SOI) for Barak; the Department of State determined Barak was immune and DOJ filed the SOI with the district court.
- Barak moved to dismiss under Federal Rule 12(b)(1) for lack of subject-matter jurisdiction based on common-law foreign official immunity; district court granted dismissal, finding immunity and rejecting TVPA abrogation and a jus cogens exception.
- On appeal the Ninth Circuit affirmed: it concluded foreign official immunity applied (irrespective of the precise deference given to the SOI), held the TVPA does not abrogate common-law immunity where the sovereign ratifies the conduct, and declined to recognize a jus cogens exception in these circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barak is entitled to foreign official (common-law) immunity given Israel's ratification and the State Department's SOI | Doğans: Barak is liable under TVPA despite SOI; immunity should not bar suit | Barak: acts were official, Israel ratified them, State Dept suggested immunity; foreign official immunity bars suit | Court: Barak entitled to common-law immunity; SOI entitled to significant deference and, even if not absolute, independent analysis supports immunity |
| Whether the TVPA abrogates common-law foreign official immunity | Doğans: TVPA's language ("any individual . . . under color of law") plainly imposes liability on foreign officials, abrogating immunity | Barak: TVPA silent on abrogation; Supreme Court presumption against abrogating common-law immunities; abrogation requires clear congressional intent | Court: TVPA does not abrogate common-law foreign official immunity where sovereign ratifies official acts; immunity preserved |
| Whether there is a jus cogens exception to foreign official immunity (for egregious international-law violations) | Doğans: jus cogens violations (e.g., extrajudicial killing) should defeat immunity | Barak: no recognized exception where sovereign ratifies conduct and SOI filed; recognizing one would upset comity and foreign relations | Court: Declines to create jus cogens exception under these facts; refuses to adopt such an exception where sovereign has ratified acts and SOI exists |
| Whether district court abused discretion by relying on extrinsic evidence in describing events and foreign-policy context | Doğans: district court improperly used extrinsic materials, prejudicing plaintiffs | Barak: court properly relied on undisputed facts (official capacity, ratification, SOI); any extrinsic use was not outcome-determinative | Court: No abuse of discretion; decision rests on undisputed facts and legal analysis, extrinsic material not prejudicial |
Key Cases Cited
- Samantar v. Yousuf, 560 U.S. 305 (reaffirms that immunity for individual foreign officials is governed by common law, and describes two-step SOI/court procedure)
- Republic of Mexico v. Hoffman, 324 U.S. 30 (describes Executive Branch role in immunity determinations)
- Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116 (early common-law roots of foreign sovereign immunity)
- Pierson v. Ray, 386 U.S. 547 (Congress does not abolish common-law immunities absent clear intent)
- Filarsky v. Delia, 566 U.S. 377 (presumption that common-law immunities are incorporated absent clear legislative intent to abrogate)
- Yousuf v. Samantar, 699 F.3d 763 (4th Cir. approach on deference and the question of jus cogens exception)
- Matar v. Dichter, 563 F.3d 9 (2d Cir. holding rejecting a jus cogens exception where SOI and ratification supported immunity)
- Compania Mexicana de Aviacion v. U.S. Dist. Court, 859 F.2d 1354 (describes immunity as immunity from suit, not merely a defense)
- Hilao v. Marcos, 25 F.3d 1467 (example where sovereign disavowed conduct and claims proceeded)
- Filartiga v. Pena-Irala, 630 F.2d 876 (recognition of transnational claims where state did not ratify official conduct)