Tawfik et al v. Sheikh Sabah Al-Ahmad Al-Jaber Al-Sabah et al

Filing 39

OPINION AND ORDER: Accordingly, for the reasons discussed within, the Complaint is dismissed. (Signed by Judge Andrew L. Carter, Jr on 8/16/2012) (laq)

UNITED STATES DISTRICT COURT

USDCSDNY
DOCUMENT

SOUTHERN DISTRICT OF NEW YORK

ELECTRONICALLY FILED
DOC#:
DATE F-IL-E-D-:7I9r.~/:""Ji'-.-n.~-

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Rami N.I. Tawfik, et a1.
Plaintiffs,

11 Civ. 6455 (ALC) (JCF)

-against­

OPINION & ORDER
Sheikh Sabah aI-Ahmad aI-Jaber al-Sabah,

Defendant.

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ANDREW L. CARTER, JR., District Judge:
Currently before the Court in this action brought under the Torture Victim's Protection
Act of 1991 (the "TVPA") and the Alien Tort Claims Act is (1) United States Magistrate Judge
James C. Francis' Report and Recommendation (the "Report") recommending that the
Complaint be dismissed for lack of subject matter jurisdiction (ECF # 27), (2) plaintiffs'
Objection to the Report ("Objection") (ECF # 30), and (3) the subsequent letter responses from
the parties thereto. (ECF ## 31, 32, 33, 34, 37, 38.) For the following reasons, I agree with the
Report's conclusion that the Complaint be dismissed.

I. BACKGROUND
The plaintiffs are Egyptian citizens and supporters of the Egyptian Association for
Change, "a political organization dedicated to the democratization of the political process in

Egypt through peaceful means." (Compl. ~ 7, ECF #1.) In 2010, the Egyptian Association for
Change had branches in several countries, including Kuwait, where the plaintiffs resided at that
time. (ld.) In April 2010, Kuwaiti secret police arrested the plaintiffs, allegedly pursuant to the
orders of Defendant Sheik Sabah ai-Ahmad ai-Jaber al-Sabah, the Emir and sitting head of state
of the State of Kuwait ("the Emir"), and two of his former co-defendants ("the Sheikh
Defendants,,).l (ld. at ~ 8.) The plaintiffs allege they were arrested at the request of Hosni
Mubarak, who was then the President of Egypt, and also because "the Sheikh Defendants viewed
the democratic ideals of the Egyptian Association for Change as a possible threat to their
continuation in power." (Id.)
According to the Complaint, following their arrests, the plaintiffs were forced to endure
horrific violations of United States and international law. Each plaintiff was detained in solitary
confinement, "in a filthy, cockroach infested, windowless cell," in which the "lights were kept on
... 24 hours a day" and the only toilet was a hole in the floor observable via closed-circuit
camera. (Id. at ~ 9.) The plaintiffs were held entirely incommunicado and were refused legal
counsel and consular services. (Id. at ~ 10.) The plaintiffs also suffered severe torture,
including, but not limited to, sleep deprivation; beatings and canings that resulted in permanent
injuries; threats of electrocution, castration, anal rape, and harm to relatives; and the deprivation
of necessary medical treatment. (Id. at ~~ 11, 12, 13, 14, 15.) None of the plaintiffs was ever
charged with any crimes or brought before any judicial officer.

iliL. at ~ 10.)

When they were

eventually released, the plaintiffs were deported from Kuwait to Egypt even though they had
been lawfully working and residing in Kuwait. (Id. at ~~ 17, 18.) The plaintiffs continue to
I These former co-defendants are Sheikh Nasser Sabah AI-Ahmed AI-Jaber AI-Sabah, the Head of the Royal
Council, and Sheikh Jaber Khalid AI-Jaber AI-Sabah, the Kuwaiti Minister ofInterior.

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suffer physical, psychological, and economic harm as a result of the torture inflicted upon them
and their subsequent deportation. (Id. at ~~ 16, 17, 18.)
In September 2011, the plaintiffs filed suit against several defendants, including the Emir,
the Sheikh Defendants, and two officers in the Kuwaiti Ministry ofInterior, alleging violations
of the TVPA and the Alien Tort Claims Act. On December 14,2011, the plaintiffs obtained a
certificate of default against the Emir. (ECF # 8.) Shortly thereafter, pursuant to the plaintiffs'
request, claims against all of the other defendants were dismissed without prejudice. (ECF # 11.)
The plaintiffs then sought an inquest on damages. Prior to any such hearing and in response to
an inquiry by Magistrate Judge Francis, the United States submitted a Suggestion ofImmunity
on April 5, 2012, on behalf of the Emir as the sitting head of a foreign state. (ECF # 23

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On April 27, 2012, Magistrate Judge Francis issued his Report, recommending that the
Court dismiss the plaintiffs' claims against the Emir for lack of subject matter jurisdiction. On
May 11,2012, the plaintiffs filed their Objections to the Report. 3
When specific objections are made to a magistrate judge's report and recommendation,
the Court makes a "de novo determination of those portions ofthe report or specified proposed
findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C). After

2 The State Department's Suggestion of Immunity was made in response to Kuwait's formal request that the State
Department find the Emir immune to suit. (Letter of Harold Hongju Koh dated March 28,2012, attached as Exhibit
A to Suggestion of Immunity.)

On May 7,2012, prior to the Plaintiffs' Objection being filed, defendant submitted a letter requesting that I adopt
Judge Francis' Report. (ECF # 32.) On May 16, 2012, defendant submitted another letter, this one in response to
Plaintiff's Objection. (ECF # 31.) On May 24, 2012, the government submitted its response to Plaintiffs'
Objections. (ECF # 33.) On May 24,2012, Plaintiff wrote in response to defendant's May 16 letter. (ECF # 34.)
On June 6, 2012, Plaintiff wrote in response to the government's May 24 letter. (ECF # 37.). Finally, on July 6,
2012, Defendant wrote in response to Plaintiff's latest filing. (ECF # 38.)
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conducting the appropriate review, the Court may "accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
II. DISCUSSION
The United States submits that its determination that the Emir is entitled to head of state
immunity is "controlling and is not subject to judicial review." (Suggestion ofImmunity at 2.)
Plaintiffs contend that the plain language of the TVPA and its legislative history bar the
application of head of state immunity to the claims against this particular defendant, and object
to the Report's "silen[ce] on the effect of the TVPA on the usual common law rule of head-of­
state immunity." (Objection at 2.) In his Report, Judge Francis agreed with the United States
and concluded that the court was bound by the State Department's Suggestion of Immunity. As
explained below, the Court agrees that the State Department's Suggestion of Immunity results in
dismissal in this case, but does not-and need not-adopt a broader holding that the Executive
Branch's determination is perforce "controlling" and "not subject to judicial review."
A. Foreign Sovereign Immunity and Suggestions of Individual Immunity
In Samantar v. Yousuf, the Supreme Court held that the Foreign Sovereign Immunity Act
(the "FSIA"), 28 U.S.C. §§ 1602, et seq., governs only the application of foreign sovereign
immunity to foreign states but not to foreign officials. _U.S._. 130 S.Ct. 2278, 2292-93
(2010). In Samantar, the Court found that in enacting the FSIA Congress wanted to preserve
"the State Department's role in determinations regarding individual official immunity," a
procedure that developed as a matter of common law. Id. at _ , 130 S.Ct. at 2291 & 2291 n.

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19. Accordingly, the Court held, suits against foreign officials "may still be barred by foreign
sovereign immunity under the common law." Id. at _ , 130 S.Ct. at 2292.
The common law of foreign sovereign immunity is, perhaps uncharacteristically, facile
and straightforward: if the State Department submits a "Suggestion ofImmunity," then the
district court "surrender[s] its jurisdiction." Id. at _ , 130 S.Ct. at 2284 (quoting Ex parte Peru,
318 U.S. 578, 581, 587-88, 63 S.Ct. 793, 87 L.Ed. 1014 (1943».4 This procedure developed
from the seminal Supreme Court decision Schooner Exchange v. McFaddon, 7 Cranch 116, 3
L.Ed. 287 (1812). Chief Justice Marshall's opinion in Schooner Exchange "was interpreted as
extending virtually absolute immunity to foreign sovereigns as 'a matter of grace and comity.'"
Samantar, _

U.S. at _ , 130 S.Ct. at 2284 (citing Verlinden, 461 U.S. at 486). Since then,

notwithstanding "the dearth ofpre-FSIA authority distinctly addressing head of state
immunity,,,5 courts have extended this procedure beyond immunizing seized vessels to include
immunizing individual foreign officials. Id. at _ , 130 S.Ct. at 2284-85. In fact, it appears that
pursuant to this common law procedure no court has SUbjected a sitting head of state to suit after
the State Department has determined that the head of state is immune. See, e.g., Wei Ye v.
But see Tachiona v. Mugabe, 169 F. Supp. 2d 259, 304-05 (S.D.N.Y), rev'd and vacated on other grounds,
Tachiona v. U.S., 386 F.3d 205 (2004). In this case, the district court recognized the potential separation of powers
concerns when a district court affords such broad deference to the Executive Branch over a judicial proceeding:

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[T]he scope of head-of-state immunity is a matter for 'reasoned judicial interpretation in the light
of experience and by sound application of the emerging common law, rather than by reflexive
expansion of the executive branch's categorical reading of a limited doctrinal exception. . . .
Nothing in the evolution of the common law doctrine suggests that [it] also encompassed
conferring upon the State Department the function of defining the full reach of the concept of
inviolability as it pertains to heads of state.
Id. Apparently, this approach has not carried the day, at least with regard to a Suggestion oflmmunity over
a sitting head of state.
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Tachiona, 169 F.Supp.at 269-70.

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Zemin, 383 F.3d 620,626 (7th Cir. 2004) (President of China); Manoharan v. Rajapaska, --­
F.Supp.2d---, No. 11-cv-235 (CKK), 2012 WL 642446 (D.D.C. Feb. 29,2012) (President of Sri
Lanka); Habyarimana v. Kagame, 821 F.Supp.2d 1244 (W.D. Okla. 2011) (President of
Rwanda); AI-Hassan v. Al Nahyan, No. 09-01106 (C.D. Cal. Sept. 17,2010) (unreported) (Prime
Minister of Grenada); Doe I v. State of Israel, 400 F.Supp.2d 86 (D.D.C. 2005) (Prime Minister
ofIsrael); Leutwyler v. Office of Her Magesty Queen Rania AI-Abdullah, 184 F.Supp.2d 277
(S.D.N.Y. 2001) (Queen of Jordan); Tachiona v. Mugabe, 169 F.Supp.2d 259 (S.D.N.Y. 2001),
affd on other grounds sub nom., Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004)
(President of Zimbabwe); Lafontant v. Aristide, 844 F.Supp. 128 (E.D.N.Y. 1994) (President of
Haiti). 6
Thus, it is clear that in the common law context, at least as applied to sitting heads of
state, "[courts] defer to the Executive's determination of the scope of immunity." Matar v.
Dichter, 563 F.3d 9, 15 (2d Cir. 2009). Therefore, unless and until Congress7 (or a higher court)
states otherwise, the State Department's determination that the Emir is immune from suit is
controlling here. See Samantar, _U.S. at _ , 130 S.Ct. at 2285 (acknowledging that Congress,
by passing the FSIA, replaced the pre-existing common law in determining whether a foreign
state is entitled to sovereign immunity).

6 See Lewis S. Yelin, 44 VAND. J. TRANSNAT'L L. 911, 991 & Appx. A (2011); see also Government's Letter of
May 24, 2012, at 2-3 (ECF # 33).

"In order to abrogate a common-law principle, [a congressional] statute must 'speak directly' to the question
addressed by the common law." U.S. v. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 123 L. Ed. 2d 245 (1993)
(quoting Mobile Oil Com. v. Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978»; see also
Isbrandtsen Co. v. Johnson,343 U.S. 779, 783, 72 S.Ct. lOll, 96 L.Ed. 1294 (1952) ("Statutes which invade the
common law ... are to be read with a presumption favoring the retention oflong-established and familiar principles,
except when a statutory purpose to the contrary is evident.").
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B. The Torture Victim Protection Act and Individual Head of State Immunity
The TVP A provides:
An individual who, under actual or apparent authority, or color of law, of any
foreign nation­
(1) subjects an individual to torture shall, in a civil action, be liable for
damages to that individual; or
(2) subjects an individual to extrajudicial killing shall, in a civil action, be
liable for damages to the individual's legal representative, or to any person
who may be a claimant in an action for wrongful death.
TVPA § 2(a), Pub. L. No. 102-256 (codified at 28 U.S.C. § 1350 note). Plaintiffs argue that the
TVPA modifies the Executive's authority to make immunity determinations in the case at bar.
Specifically, plaintiffs contend that the plain text and legislative history of the TVPA make clear
that "Congress intended that the TVPA would apply to 'any individual' except a diplomat or
head of state who is 'visiting the United States on official business.'" (Objection at 2.) Plaintiffs
argue that since the Emir has a residence in the United States, he is not "visiting" the United
States. Therefore, plaintiffs conclude, the TVPA should apply to the Emir.

However, whether Congress intended the TVPA to apply in this case-i.e., to a sitting
head of state with a residence in the United States-is separate from "the antecedent question" of
whether Congress, in passing the TVPA, intended to modify the common law of foreign
sovereign immunity. Cf. Samantar, _U.S. at_, 130 S.Ct. at 2289 (noting that the proper
inquiry for the Court in that case was "whether Congress intended the FSIA to supersede the
common law of official immunity,,).8 The latter question is what plaintiffs' case hinges upon,

8 Plaintiffs do not disagree with the Government's position that the TVPA does not "override[] the Executive's
authority to make head of state immunity determinations." (Plaintiffs Letter dated June 6, 2012, at 2 (ECF # 37.))
Rather, they take the "more modest[]" position that the "the TVP A merely modifies the Executive's authority" in the
instant case. Id. However, this distinction does not advance plaintiffs' position: whether the TVPA modified the

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and unfortunately for them, the Second Circuit already rejected this position in Matar v. Dichter,
563 F.3d 9, 15 (2d Cir. 2009). In Matar, the Second Circuit held that a former foreign official
alleged to have violated the TVPA, inter alia, was immune from suit under common law
principles of sovereign immunity-that is, because the Executive Branch urged the court to
dismiss the case on immunity grounds. Id. In so holding, the court in Matar rejected the
appellants' argument that any immunity the defendant might enjoy was overridden by his alleged
violations of the TVPA. See id. 9 To the contrary, the Second Circuit found that the TVPA was
not meant to override common law immunity, and as a result, "the TVPA will apply to any
individual official whom the Executive declines to immunize." Id. (emphasis added). Other
courts that address the question of whether the TVPA overrides common law sovereign
immunity have similarly answered in the negative. See, e.g., Manoharan, 2012 WL 642446, at
*4 (noting H[t]he clear statutory purpose behind the TVPA was to maintain the common law
doctrine of head of state immunity, not override it) (emphasis in original); Lafontant, 844 F.
Supp. at 138-39 (noting "[t]he legislative history of the TVPA lends ample support for the
proposition that the Act was not intended to trump diplomatic and head-of-state immunities); see
also H.R. Rep. No. 102-367, at 5 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 88 ("[N]othing in
the TVPA overrides the doctrines of diplomatic and head of state immunity.").

Executive's authority only in cases similar to the present one or in all cases involving the TVPA, the Court first asks
the same question: did Congress intend the common law of sovereign immunity to survive the enactment of the
TVPA?
9 Matar was decided before Samantar settled the question of whether the FSIA applied to individuals as well as
sovereign states. In affirming the dismissal of the complaint, the Second Circuit in Matar held that even if the FSIA
does not apply to individual officials (which the Supreme Court had later determined to be a correct interpretation of
the FSIA), the defendant was "nevertheless immune under common-law principles that pre-date, and survive, the
enactment of the FSIA," Matar, 563 F.3d at IS.

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In this case, in accordance with principles of common law immunity, the Executive
Branch filed a Suggestion oflmmunity urging the Court to dismiss the case against the Emir.
Since the TVP A does not override common law immunity-and plaintiffs point to no other
congressional statute or decision from a higher court that purports to do so--the Executive
Branch's determination over the scope of the Emir's immunity is controlling here. 10
The Court is disquieted by the possibility that, as plaintiffs warn, the Emir, as a lifetenured official with a residence in the United States, could forever escape accountability under
the TVPA if granted immunity now, and that his victims could be left without redress. The
Court is also mindful that such a result would contradict one of the stated purposes of the TVPA,
which is to prevent state-sponsored torturers and human rights abusers from seeking safe haven
in the United States. See S. Rep. No. 102-249, at *3 (1991) ("This legislation ... [will ensure]
that torturers and death squads will no longer have a safe haven in the United States."); see also
Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88,105-06 (2d Cir. 2000) ("[The TVPA] seems
to represent a ... direct recognition that the interests ofthe United States are involved in the
eradication of torture committed under color oflaw in foreign nations."). However, as the
district court in Manoharan observed, this "contradiction was recognized by Congress before the
[TVPA] was enacted." 2012 WL 642446, at *4. More to the point, this contradiction was
recognized by the Executive Branch when it specifically granted the Emir immunity for the
crimes alleged herein. And "the Court is not in a position to remedy that contradiction." Id.

10 Had the State Department not submitted a Suggestion of Immunity in this case, then the Court would have to
wrestle with the "amorphous and undeveloped state" of the scope of head of state immunity as applied to the TVPA.
See In re Doe, 860 F.2d 40, 44 (2d Cir. 1988).

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III. CONCLUSION
Accordingly, for the reasons discussed above, the Complaint is dismissed.

SO ORDERED.

Dated:

New York, New York
August 16, 2012

ANDREW L. CARTER, JR.
United States District Judge

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