Darryl LEWIS, Plaintiff, v. Kalev MUTOND, in his individual capacity only, and Alexis Thambwe Mwamba, in his individual capacity only, Defendants.
Civil Case No. 1:16-cv-1547 (RCL)
United States District Court, District of Columbia.
Signed July 6, 2017
168
Royce C. Lamberth, United States District Judge
Lastly, “the reasonableness of the agency‘s withholding of the requested documents” favors Gerhard most of all. As the Court has explained, the BOP should have realized from the outset that responsive records might be kept at the Ethics Branch of the BOP‘s Office of General Counsel. After all, the BOP Program Statement expressly states that the requested records “must be reported quarterly to the [BOP‘s] Ethics Officer.” Dkt. 9-1 at 24-25 (BOP P.S. 1350.02 at 2-3, §§ 5-6). The BOP has offered no explanation for its failure to seek documents from the Ethics Officer until faced with Gerhard‘s lawsuit. See id. at 5-6 (Wallace Decl. ¶¶ 11-12). The Court thus agrees with Gerhard that he, as “an indigent prisoner,” should “[not have needed] to pay a [nearly] prohibitive filing fee in order to obtain the [missing] documents.” Dkt. 13 at 3.
The Court, accordingly, finds that Gerhard is entitled to his reasonable costs of litigation pursuant to
CONCLUSION
The Court will GRANT the BOP‘s motion for summary judgment, Dkt. 9, and will allow Gerhard to file a bill of costs in accordance with
A separate order will issue.
Robert Neil Weiner, Raul R. Herrera, Robert Stanton Jones, Stephen K. Wirth, Arnold & Porter Kay Scholer LLP, Washington, DC, for Defendant.
MEMORANDUM OPINION
Royce C. Lamberth, United States District Judge
I. INTRODUCTION
This case concerns allegations brought by Darryl Lewis (“plaintiff“) for violations of the
II. BACKGROUND
The factual allegations in this case center on the unlawful detention and torture of plaintiff for a period of six weeks in the DRC. Plaintiff, an American citizen and former U.S. military service member, was working as an unarmed security advisor to Moise Katumbi in the DRC.1 Plaintiff alleges that on April 24, 2016, he and three of his colleagues were detained by the Congolese riot police while leaving a political rally “solely because of their association with Mr. Katumbi.” Compl. ¶ 19, ECF No. 1.
Plaintiff asserts that several ANR members subsequently arrived and transported him and his colleagues to a jail in Lubumbashi, where “ANR members interrogated [plaintiff] for three hours while physically assaulting and abusing him” for the purpose of obtaining a false confession that he was an American mercenary. Compl. ¶ 22. Plaintiff claims that the next morning he and his colleagues were transported to ANR‘s headquarters in Kinshasha, where plaintiff “was detained for six weeks by defendant Kalev and his subordinates.” Compl. ¶ 38. Plaintiff alleges that while detained he was “interrogated daily by ANR members for approximately 16 hours a day,” he “was fed no more than one meal every 24 hours,” and he “was denied the necessities for basic hygiene.” Compl. ¶¶ 27, 29-30.
Next, plaintiff claims that at a press conference on May 4, 2016, defendant Thambwe accused plaintiff of being an American mercenary sent to assassinate President Kabila.2 Compl. ¶ 32. Defendant Thambwe then explained that 600 U.S. citizens, including plaintiff, “had entered the DRC since October 2015 for the purpose of assisting Mr. Katumbi in a plot to destabilize the DRC.” Compl. ¶ 35. On May 5, 2016, the U.S. Embassy in Kinshasa allegedly issued a response denying defendant Thambwe‘s assertion that plaintiff was detained due to his involvement in a plot to overthrow President Kabila. On June 8, 2016, plaintiff was released without ever being charged by defendant Thambwe or any other DRC official.
III. LEGAL STANDARDS
A. Motion to Dismiss Pursuant to Rule 12(b)(1)
Federal courts are courts of limited jurisdiction and must be authorized to hear a case by both Article III of the U.S. Constitution and an act of Congress. Here, plaintiff asserts both federal question ju-
Where the motion is based “on a claim of foreign sovereign immunity, which provides protection from suit and not merely a defense to liability . . . the court must engage in sufficient pretrial factual and legal determinations to satisfy itself of its authority to hear the case.” Jungquist v. Al Nahyan, 115 F.3d 1020, 1027-28 (D.C. Cir. 1997). While it is relatively rare given the infrequent nature of foreign official immunity cases, the D.C. Circuit has made reference to other filings outside the allegations of the complaint in a
B. Common Law Foreign Official Immunity
In 1976 Congress enacted the
Under the common law foreign official immunity doctrine, “a foreign official is entitled to one of two different types of immunity: status-based or conduct-based immunity.” Rishikof v. Mortada, 70 F. Supp. 3d 8, 11 n.6 (D.D.C. 2014). Status-based immunity is available to diplomats and heads of state and shields them from legal proceedings “by virtue of his or her current official position, regardless of the substance of the claim.”3 Chimene I. Keit-
When a foreign official asserts immunity, the court applies “a two-step procedure developed for resolving a foreign state‘s claim of sovereign immunity.” Samantar, 560 U.S. at 311. Under this procedure, the foreign official can “request a ‘suggestion of immunity’ from the State Department. If the request [is] granted, the district court surrender[s] its jurisdiction.” Id. However, if the request is not granted “a district court ‘ha[s] authority to decide for itself whether all the requisites for such immunity exist[].‘” Id. “The requisites for conduct-based immunity are: (1) the actor must be a public minister, official, or agent of the foreign state; (2) the act must have been performed as part of the actor‘s official duty; and (3) exercising jurisdiction would have the effect of enforcing a rule of law against the foreign state.” Restatement (Second) of Foreign Relations Law of the United States § 66 (1986).
IV. ANALYSIS
While the plaintiff‘s complaint properly alleges federal question jurisdiction under
While the doctrine of common law foreign official immunity is not fully developed, the history of foreign official immunity in the D.C. Circuit is instructive to the analysis of the present case. Prior to the Supreme Court‘s decision in Samantar, the D.C. Circuit “had found that foreign official immunity was governed by the FSIA.” Giraldo v. Drummond Co., 808 F. Supp. 2d 247, 250 (D.D.C. 2011). More specifically, in Belhas, the D.C. Circuit held that the “FSIA contains no unenumerated exception [to foreign official immunity] for violations of jus cogens norms.”4 515 F.3d at 1287. In Belhas, a retired Israeli General was sued under the TVPA for alleged “war crimes,
The Supreme Court subsequently held that foreign official immunity is properly governed by the common law and not the FSIA, effectively rejecting the D.C. Circuit‘s finding in Belhas. Samantar, 560 U.S. at 322 n.17. However, the Supreme Court noted that Courts of Appeals’ analysis of foreign official immunity under the FSIA “may be correct as a matter of common-law principles.” Id. Thus, Belhas remains instructive.
Here, plaintiff sues defendants in their individual capacities due to their alleged ultra vires actions. While the D.C. Circuit has not directly addressed the issue of whether ultra vires actions fall outside the scope of common law foreign official immunity, another member of this Court, Judge Bates, followed the D.C. Circuit‘s rationale in Belhas to determine that “allegations of jus cogens violations do not defeat [foreign official] immunity.” Giraldo, 808 F. Supp. 2d 247, 251 (D.D.C. 2011). In Giraldo, the court applied the D.C. Circuit‘s reasoning that “without ‘something more nearly express’ from Congress, it would not adopt a rule that would require federal courts to ‘assume jurisdiction over the countless human rights cases that might well be brought by the victims of all the ruthless military juntas, presidents-for-life, and murderous dictators of the world, from Idi Amin to Mao Zedong.‘” Id. at 250. “Not only would such a rule place a strain upon our courts and our diplomatic relations, but it would also eviscerate any protection that foreign official immunity affords.” Id.
In the present case, the first required element of common law foreign immunity is satisfied without dispute given that it is uncontested that both Mutond and Thambwe are agents of the DRC. This Court then must determine whether the alleged actions were performed as part of the actor‘s official duty. Here, plaintiff asserts that the defendants were not acting in their official capacities and should not be granted immunity given that “[b]oth committed acts outside the lawful authority they are entitled to exercise under DRC law.” Pl.‘s Mem. in Opp‘n to Defs.’ Mot. to Dismiss 9., ECF No. 16. While plaintiff cites several cases to establish that immunity is automatically forfeited when a defendant acts beyond the scope of their authority, this Circuit has held that “[i]n cases involving foreign sovereign immunity, it is also appropriate to look to statements of the foreign state that either authorize or ratify the acts at issue to determine whether the defendant committed the alleged acts in an official capacity.” Belhas, 515 F.3d at 1283.
Ratification of an official‘s actions can be sufficient to establish immunity under the common law foreign official immunity doctrine. See id. Here, the DRC‘s Ambassador to the United States sent the U.S. Department of State two letters in relation to the case at bar just as the Israeli Ambassador to the U.S. transmitted a letter in relation to the General‘s case in Belhas. In these letters, the DRC Ambassador requested that the United States Government submit a suggestion of immunity to the court on behalf of the defendants given that “any actions Messrs. Thambwe‘s and Mutond‘s took or statements they made in connection with Mr. Lewis‘s detention was in
Relying on opinions from other circuits, plaintiff further asserts that the defendants “could not have been torturing in their ‘official capacity’ because torture was ultra vires under DRC law.” Pl.‘s Mem. in Opp‘n to Defs.’ Mot. to Dismiss 13. However, Judge Bates in Giraldo found the D.C. Circuit‘s reasoning in Belhas to be instructive and this Court concurs. In Belhas the General was sued under the TVPA for jus cogens violations but was granted immunity under the FSIA given that he was acting in his official capacity. Here, defendants are being sued under the TVPA for the unconstitutional torture and detention of plaintiff but were acting in their official capacities. Under the D.C. Circuit‘s reasoning in Belhas regarding foreign official immunity, the defendants were acting in their official capacities when they carried out the allegedly unlawful acts. Accordingly, this Court finds the second requisite of conduct-based immunity—whether the alleged actions were performed as part of the actor‘s official duty—under Samantar to be satisfied.
The final required element for common law foreign immunity is that exercising jurisdiction over defendants will have the effect of enforcing the rule of law against the DRC. Here, defendants were acting in their official capacities on behalf of the DRC when they carried out the alleged ultra vires acts just as the General in Belhas was found to be acting in his official capacity “in furtherance of the interests of the sovereign” when he carried out the alleged jus cogens acts. 515 F.3d at 1282. Plaintiff attempts to differentiate “conduct that violates international principles of jus cogens and conduct that is outside the constitutional authority of a defendant.” Pl.‘s Mem. in Opp‘n to Defs.’ Mot. to Dismiss 14. However, this Court finds that the rationale laid out in Belhas regarding jus cogens violations applies with even greater force to the alleged DRC constitutional violations in the present case. Jus cogens norms are universally illegal whereas violations of a nation‘s constitution are country specific and would require our judicial system to assess whether a foreign official complied with his own nation‘s laws. Here, the Court would be forced to question the constitutionality of an action that a foreign nation has ratified which would arguably place an even greater “strain upon our courts and our diplomatic relations.” Giraldo, 808 F. Supp. 2d at 250. Consequently, exercising jurisdiction over defendants would have the effect of enforcing a rule of law against the DRC, which satisfies the final requirement of common law foreign official immunity under Samantar.
This Court lacks subject matter jurisdiction given that (1) the defendants are agents of the DRC; (2) any actions defendants took in relation to the plaintiff‘s detention were carried out in their official capacities; and (3) exercising jurisdiction would have the effect of enforcing a rule of law against the DRC. Therefore, this Court will grant defendants’ motion to dismiss for lack of subject matter jurisdiction.
V. CONCLUSION
For the reasons stated above, this Court will grant defendant Kalev Mutond and
A separate order accompanies this memorandum opinion.
Royce C. Lamberth
United States District Judge