854 F. Supp. 2d 99
D.D.C.2012Background
- Plaintiffs sue Finpol and the Committee on Penal Enforcement Facilities in the District of Columbia under the Alien Tort Statute (ATS).
- Plaintiffs contend the Kazakhstani agencies committed torts abroad with a direct effect in the United States.
- The court must assess subject-matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA).
- Plaintiffs also seek to amend the complaint to add Kazakhstani officials as defendants, claiming personal jurisdiction over them.
- The court held that the plaintiff corporations lack standing to bring ATS claims as aliens; only individual plaintiffs’ ATS claims are analyzed.
- The court ultimately dismisses the ATS claim against Finpol and the Committee for lack of FSIA exceptions and denies leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does FSIA immunize Finpol and Committee from ATS claims? | Bektayevs assert FSIA exceptions apply. | Finpol and Committee are foreign states entitled to immunity. | FSIA immunity applies; ATS claims dismissed. |
| Do FSIA exceptions (commercial activities) permit jurisdiction here? | Acts like confiscation and extortion involve commercial activity. | Sovereign acts cannot be treated as commercial activity for FSIA purposes. | Commercial-activities exception does not apply. |
| Does expropriation exemption under FSIA apply to this case? | Expropriation affects property rights and may bring jurisdiction. | No nexus showing US-based commercial activity by the agency; no expropriated property presence in US. | Expropriation exception does not apply. |
| Does 1604 (treaty-based) immunity waiver apply to the ATS claims? | U.S.–Kazakhstan BIT waives immunity for expropriation claims. | BIT was not in existence at FSIA’s 1976 enactment; §1604 does not apply. | BIT cannot serve as a §1604 waiver here. |
| Is amendment to add individual Kazakhstani officials futile due to lack of personal jurisdiction? | Samantar allows suits against individual officials; FSIA does not bar personal jurisdiction in that context. | No basis for personal jurisdiction over individuals in DC; service insufficient; Rule 4(k)(2) not satisfied. | Amendment futile; leave to amend denied. |
Key Cases Cited
- Sosa v. Alvarez-Machain, 542 U.S. 692 (U.S. 2004) (ATS violations of norms of international law must be specific and defined)
- Nelson v. Saudi Arabia, 507 U.S. 349 (U.S. 1993) (police power acts are sovereign, not commercial for FSIA)
- Mwani v. bin Laden, 417 F.3d 1 (D.C. Cir. 2005) (refuge and terror-support acts are sovereign, not commercial)
- Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003) (distinguishes foreign state from agency for FSIA purposes depending on core functions)
- Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148 (D.C. Cir. 1994) (core governmental functions negate private-commercial characterization)
- Caratube Int’l Oil Co., LLP v. Kazakh v. Doe, 730 F. Supp. 2d 101 (D.D.C. 2010) (local forum issues and treaty-based avenues in FSIA context)