408 F.3d 877 (7th Cir. 2005), 03-3089, Enahoro v. Abubakar

Docket Nº:03-3089.
Citation:408 F.3d 877
Party Name:Chief Anthony ENAHORO, Dr. Arthur Nwankwo, Femi Aborisade, Owens Wiwa, C.D. Doe, Chief Gani Fawehinmi, and Hafsat Abiola, individually and on behalf of the estate of her deceased father Chief M.K.O. Abiola, Plaintiffs-Appellees, v. General Abdulsalami ABUBAKAR, Defendant-Appellant.
Case Date:May 23, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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408 F.3d 877 (7th Cir. 2005)

Chief Anthony ENAHORO, Dr. Arthur Nwankwo, Femi Aborisade, Owens Wiwa, C.D. Doe, Chief Gani Fawehinmi, and Hafsat Abiola, individually and on behalf of the estate of her deceased father Chief M.K.O. Abiola, Plaintiffs-Appellees,

v.

General Abdulsalami ABUBAKAR, Defendant-Appellant.

No. 03-3089.

United States Court of Appeals, Seventh Circuit.

May 23, 2005

Argued Jan. 10, 2005.

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Kayode O. Oladele (argued), Whitfield & Associates, Detroit, MI, for Plaintiffs-Appellees.

Kevin B. Duckworth, Jenner & Block, Chicago, IL, Ephraim Ugwuonye (argued), Ecu Associates, Washington, DC, for Defendant-Appellant.

Before CUDAHY, KANNE, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

A courtroom in Chicago, one would think, is an unlikely place for considering a case involving seven Nigerian citizens suing an eighth Nigerian for acts committed in Nigeria. It sounds like the sort of fare that would be heard in a courtroom on the African continent. But this case ended up in Chicago, and that leads us to consider the claims of seven Nigerian citizens against a Nigerian general over alleged

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torture and murder in Nigeria. The path the plaintiffs are pursuing is, as we shall see, quite thorny.

The plaintiffs make allegations of torture and killing at the hands of the military junta that ruled Nigeria from November 1993 until May 1999. The defendant, General Abdulsalami Abubakar, was a member of the junta and was Nigeria's head of state for the last year of the junta's reign. Alleging that he was behind the atrocities, the plaintiffs sued General Abubakar and claimed that the United States district court had jurisdiction under 28 U.S.C. §§ 1331 and 1350. The district court considered motions for dismissal and for summary judgment. The specific issue which gives rise to this interlocutory appeal is the decision that the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. §§ 1602 et seq., does not apply to individuals and thus General Abubakar is not immune from suit. The court determined, however, that General Abubakar is entitled to common law immunity for the year that he was head of state. Plaintiffs do not contest the latter finding.

The facts as we recite them come mainly from the plaintiffs' claims which, at this stage of the suit, we accept as true. The situation in Nigeria at the time of these events was unstable. On December 31, 1983, General Muhammed Buhari staged a military coup that overthrew Nigeria's democratically elected president and set off a series of coups and forced abdications. A number of military rulers were overthrown, one after another, and in June 9, 1998, defendant Abubakar assumed control of the regime following the sudden death of General Sani Abacha. Finally, a presidential election was held, and in May 1999, Nigeria had its first elected civilian president in 15 years.

During the various military regimes between 1983 and 1999, the highest governmental body was the Provisional Ruling Council (PRC). It was composed of military officials and a few civilians; whoever was the current military ruler was the chairman of the PRC. According to the complaint, the PRC ruled by decree and curtailed civil liberties. During this time, Abubakar occupied the third highest military and political position in Nigeria.

Plaintiff Hafsat Abiola is the daughter of Nigerian prodemocracy activists; she claims that Abubakar is responsible for the deaths of her parents. Her father, M.K.O. Abiola, in fact, was a candidate for president in 1993. Plaintiff Abiola contends that the early election returns showed that her father won the vote, but the military regime nullified the election, leading to violent clashes between military forces and civilians. M.K.O. Abiola unsuccessfully challenged the election's nullification through the Nigerian court system and sought Nigerian and international support for the recognition of the election results. In June 1994, M.K.O. Abiola declared himself the president of Nigeria. He was promptly arrested and charged with treason. According to the complaint, he was kept in prison under inhumane conditions, was tortured, and denied access to lawyers, doctors, and his family. He died in prison in July 1998, shortly after General Abubakar assumed control of the military regime.

Plaintiff Abiola's mother, Alhaja Kudirat Abiola, was also a pro-democracy activist. After her husband was imprisoned she began a campaign to free him and continued a call for the democratization of Nigeria. The complaint alleges that she received menacing telephone calls warning her of the consequences of continuing to demand the release of her husband. In June 1996, she was murdered in broad daylight in her car on the streets of Lagos City. She had been shot multiple times.

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Plaintiff Anthony Enahoro is a political activist who played a leading role in Nigeria's independence from Great Britain in 1960. In 1994, when he was 70 years old, he was arrested and imprisoned by the junta for 4 months. During his detention he was not provided medical treatment even though he was a diabetic. Plaintiff Arthur Nwankwo, another political activist, was arrested in June 1998. He claims he was stripped naked, flogged, and taken away in the trunk of a car. He also was denied medical treatment for the 2 months he was in custody.

Based on these allegations, the complaint states seven claims: torture; arbitrary detention; cruel, inhuman and degrading treatment; false imprisonment; assault and battery; intentional infliction of emotional distress; and wrongful death.

As we said, General Abubakar appeals from the denial of immunity under the FSIA. The preliminary issue is whether we have appellate jurisdiction over the appeal. We conclude that we do.

We stated in Rush-Presbyterian-St. Luke's Medical Center v. The Hellenic Republic, 877 F.2d 574, 576 n. 2 (7th Cir. 1989):

Since sovereign immunity is an immunity from trial and the attendant burdens of litigation, and not just a defense to liability on the merits, the denial of a claim of sovereign immunity is an immediately appealable interlocutory order under the "collateral order doctrine" of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). See Compania Mexicana De Aviacion, S.A. v. United States Dist. Court, 859 F.2d 1354, 1358 (9th Cir. 1988) (per curiam); Segni v. Commercial Office of Spain, 816 F.2d 344, 347 (7th Cir. 1987).

Our is not an isolated opinion. See S & Davis Int'l, Inc. v. The Republic of Yemen, 218 F.3d 1292 (11th Cir. 2000); In re Republic of Philippines, 309 F.3d 1143 (9th Cir. 2002); Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020 (D.C.Cir. 1997). That said, we turn to the appeal.

General Abubakar contends that he has immunity for official conduct taken while he was a Nigerian public official and a member of the ruling council. Underlying his argument is his contention that the FSIA applies to individuals in government, not just foreign governments and agencies.

The historical underpinnings of the FSIA go back almost 200 years. In Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 3 L.Ed. 287 (1812), the Supreme Court recognized the immunity of foreign sovereigns from suits brought in the courts of the United States. Justice Marshall said that "as a matter of comity, members of the international community had implicitly agreed to waive the exercise of jurisdiction over other sovereigns in certain classes of cases, such as those involving foreign ministers or the person of the sovereign." Republic of Austria v. Altmann, 541 U.S. 677, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004) (quoting McFaddon, 11 U.S. at 136). For the next 165 years, the executive branch decided whether a foreign nation was entitled to immunity. The usual procedure was that the State Department would provide the court with a "suggestion of immunity" and the court would dismiss the suit. See 15 Moore's Federal Practice, § 104.02 (Matthew Bender 3d ed.).

But in 1952, the State Department adopted what has become known as the "restrictive theory" of sovereign immunity. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). Under this theory, immunity is

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limited to suits involving the sovereign's public acts and does not extend to cases arising out of strictly commercial actions.

In 1976, Congress got into the act, passing the FSIA. Under the FSIA, a foreign state is "presumptively immune from the jurisdiction of United States courts ...." Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993). That immunity exists unless one of the statutory exceptions to immunity applies. See 28 U.S.C. §§ 1605 & 1607. Ironically, however, the FSIA is also the sole basis for jurisdiction over a foreign state. Title 28 U.S.C. §§ 1604 and 1330(a) work together. Section 1330 confers jurisdiction when the state is not entitled to immunity under one of the exceptions in the FSIA. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989).

In this case, no one contends that an exception to immunity applies. If Abubakar is covered by the FSIA, he is immune; no exception is relevant; and the suit would have to be dismissed. Therefore, the only issue is whether the statute applies to individuals, who are connected with the government, as opposed to the state itself and its agencies. We have recently looked at a similar question. Ye v. Zemin, 383 F.3d 620 (7th Cir. 2004), involved a head of state, and we concluded that the FSIA did not apply to heads of state: "The FSIA defines a foreign state to include a political subdivision, agency or...

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