Rosenberg v. Lashkar-e-Taiba
2013 U.S. Dist. LEXIS 143402
E.D.N.Y2013Background
- Plaintiffs are U.S. and Israeli citizens (or their relatives) injured or killed in the 2008 Mumbai terrorist attacks; they sued the terrorist group Lashkar-e-Taiba and, among others, Pakistan’s Inter-Services Intelligence (ISI) and two former ISI Directors General, Ahmed Shuja Pasha and Nadeem Taj.
- Plaintiffs allege the ISI provided planning, material support, control, and coordination for the Mumbai attacks; Pasha and Taj are accused in their alleged roles as ISI Directors General.
- The ISI, Pasha and Taj moved to dismiss under Fed. R. Civ. P. 12(b)(1) asserting foreign sovereign immunity (ISI under the FSIA) and foreign official immunity (Pasha and Taj under federal common law).
- The Court stayed the case and requested a Statement of Interest from the U.S. Department of State; the United States advised that the ISI is immune under the FSIA and that Pasha and Taj are immune under the common-law doctrine of official immunity.
- Plaintiffs sought discovery and argued a jus cogens exception to official immunity (i.e., that conduct violating peremptory norms like murder/torture/terrorism cannot be official acts and thus are not immune).
- The Court concluded the ISI is immune (dismissed with prejudice) and, bound by Second Circuit precedent rejecting a jus cogens exception to official immunity, dismissed the claims against Pasha and Taj without prejudice (allowing possible reinstatement if higher-court law changes).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ISI is immune under the FSIA | ISI is an agency of Pakistan but argues plaintiffs’ allegations show wrongdoing; plaintiffs did not contest FSIA in response to State Dept. | ISI is an organ/agency of Pakistan entitled to presumptive FSIA immunity; no FSIA exception applies. | ISI is immune under the FSIA; claims dismissed with prejudice. |
| Whether Pasha and Taj are immune as foreign officials under common law | Pasha/Taj allegedly engaged in jus cogens violations (murder, torture, terrorism); thus not entitled to conduct-based official immunity and plaintiffs should get discovery. | Pasha/Taj acted in official capacity as ISI Directors General and are entitled to common-law immunity; U.S. Suggestion of Immunity supports dismissal. | Court grants common-law immunity under Second Circuit precedent; claims dismissed without prejudice (to allow reinstatement if controlling law changes). |
| Weight to give U.S. Department of State Suggestion of Immunity | Plaintiffs contend determinations are not dispositive for conduct-based immunity and courts can independently assess jus cogens claims. | Deference to State Dept. is appropriate; its Suggestion that officials acted in official capacity supports immunity. | Court gives dispositive weight to the Executive Branch view as to ISI and deference to Suggestion supports dismissal of officials under governing Second Circuit law. |
| Whether jus cogens exception permits proceeding against officials | Plaintiffs: violations of jus cogens strip conduct-based immunity; court should allow discovery and adjudicate merits. | Defendants: no jus cogens exception under Second Circuit; allowing it would conflict with FSIA/common-law immunity as interpreted in this Circuit. | Court follows Second Circuit (Matar/Smith) and rejects a jus cogens exception; plaintiffs may renew if Supreme Court adopts a contrary rule. |
Key Cases Cited
- Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) (FSIA provides sole basis for suit against foreign states in U.S. courts)
- Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983) (foreign sovereign immunity grounded in comity and Executive role)
- Samantar v. Yousuf, 560 U.S. 305 (2010) (FSIA governs foreign states, but foreign-official immunity remains a federal common-law doctrine and Executive Branch has role)
- Virtual Countries, Inc. v. Republic of South Africa, 300 F.3d 230 (2d Cir. 2002) (burden-shifting framework for showing foreign sovereign status under FSIA)
- Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009) (no jus cogens exception to foreign-official immunity under Second Circuit precedent)
- Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012) (contrasting view: Fourth Circuit held no official immunity for jus cogens violations)