Moore v. United Kingdom

• Decision Date: 23 September 2004
• Docket Number: No. 01-36146.,01-36146.
• Citation: 384 F.3d 1079
• Parties: Robert E. MOORE, a single man, Plaintiff-Appellant, v. The UNITED KINGDOM, a foreign government; Kenneth Southall; John Does, I-X, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1079

384 F.3d 1079

Robert E. MOORE, a single man, Plaintiff-Appellant, v. The UNITED KINGDOM, a foreign government; Kenneth Southall; John Does, I-X, Defendants-Appellees.

No. 01-36146.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2004.

Filed September 23, 2004.

COPYRIGHT MATERIAL OMITTED

J. Bryon Holcomb, Bainbridge Island, WA, for the plaintiff-appellant.

Sushma Soni, Appellate Staff, Civil Division, United States Department of Justice for the amicus curiae.

Appeal from the United States District Court for the Western District of Washington; John C. Coughenour, Chief Judge, Presiding. D.C. No. CV-00-00044.

Before B. FLETCHER, HAMILTON,^* and BERZON, Circuit Judges.

BERZON, Circuit Judge.

This case, which centers on a January 1997 bar fight in Tacoma, Washington, raises several questions of first impression in this circuit. Central among them is whether the North Atlantic Treaty Organization Status of Forces Agreement (NATO-SOFA), June 19, 1951, 4 U.S.T. 1792, TIAS No. 2846, precludes suit against the United Kingdom under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. §§ 1602 et seq., for noncommercial torts committed by its servicemen while present within the United States. We conclude that, pursuant to the NATO-SOFA, Moore's exclusive tort remedy based on the allegations in his complaint is a suit against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. We therefore affirm the district court's dismissal of Moore's FSIA claim for lack of jurisdiction. We also affirm the district court's dismissal of Moore's claim under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, albeit on different grounds.

I. Background

On the evening of January 17, 1997, Kenneth Southall and several other members of the British military started a bar fight with Robert E. Moore, the plaintiff-appellant in this case, at the Lakewood Bar and Grill in Tacoma, Washington.¹ Moore sustained serious injuries in the altercation. On January 11, 2000, Moore filed this lawsuit, against Southall, ten unnamed members of the British military, and the government of the United Kingdom, in the United States District Court for the Western District of Washington. The complaint stated two counts: Count I, styled as a "Freedom of Information Act request," seeks an order against the British government requiring the production of certain documents related to the incident. Count II seeks damages against Southall, the Doe co-defendants, and the United Kingdom, under the noncommercial tort exception to the FSIA, 28 U.S.C. § 1605(a)(5).

When none of the defendants appeared in the district court, Moore filed a motion for an order of default. Shortly thereafter, the United States filed an application for leave to appear as amicus curiae, along with a "Suggestion of Lack of Subject Matter Jurisdiction." The district court granted the application, and, on October 18, 2001, ruled that it lacked subject-matter jurisdiction and, for that reason, declined to resolve any of the outstanding default and disclosure issues.

Specifically, the court held that, because of the NATO-SOFA,

Moore's only claim giving rise to jurisdiction in this Court is a claim against the armed forces of the host nation itself. Because Moore's claim is against the United Kingdom, rather than the United States, and directly implicates British forces while in the line of duty within the United States, this Court lacks subject matter jurisdiction.

(citation omitted). Because the district court found that it also lacked jurisdiction over the FOIA claim against the United Kingdom, it dismissed that claim as well. After so concluding, the district court dismissed the case without prejudice. This timely appeal followed.

II. Analysis

A. The Foreign Sovereign Immunities Act of 1976

The existence of subject matter jurisdiction under the FSIA is a question of law reviewed de novo. In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1470 (9th Cir.1994). Enacted in 1976, the Foreign Sovereign Immunities Act is:

a comprehensive statute containing a "set of legal standards governing claims of immunity in every civil action against a foreign state or its political subdivisions, agencies, or instrumentalities." The Act "codifies, as a matter of federal law, the restrictive theory of sovereign immunity," and transfers primary responsibility for immunity determinations from the Executive to the Judicial Branch.

Republic of Austria v. Altmann, ___ U.S. ___, ___, 124 S.Ct. 2240, 2249, 159 L.Ed.2d 1 (2004) (quoting Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983)) (citations omitted). The FSIA thus ordinarily "`provides the exclusive source of subject matter jurisdiction over suits involving foreign states and their instrumentalities,'" as "`foreign states are presumed to be immune from the jurisdiction of United States courts unless one of the Act's exceptions to immunity applies.' "Coyle v. P.T. Garuda Indonesia, 363 F.3d 979, 983 n. 5 (9th Cir.2004) (quoting Gates v. Victor Fine Foods, 54 F.3d 1457, 1459(9th Cir.1995)) (citations omitted).

Subject-matter jurisdiction for claims brought against foreign states under the FSIA is conferred by 28 U.S.C. § 1330(a),² which provides that

The district courts shall have original jurisdiction ... of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.³

Thus, federal courts have been held to have jurisdiction over foreign states as defendants under the FSIA only when that state is not entitled to immunity — that is, when one of the statutory exceptions applies. See, e.g., Altmann, ___ U.S. at ___, 124 S.Ct. at 2249 ("`At the threshold of every action in a district court against a foreign state,... the court must satisfy itself that one of the exceptions applies,' as `subject-matter jurisdiction in any such action depends' on that application." (quoting Verlinden, 461 U.S. at 493-94, 103 S.Ct. 1962)); Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) ("[U]nless a specified exception applies, a federal court lacks subject matter-jurisdiction over a claim against a foreign state.").⁴

One of the Act's exceptions from immunity, the "non-commercial tort" exception, applies to suits

in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment....

28 U.S.C. § 1605(a)(5). As we summarized in Randolph v. Budget Rent-A-Car,

In order to find that a foreign sovereign can be sued under the tortious activity exception [§ 1605(a)(5)], the court must find: (1) that the tortious acts of individual employees of the sovereign were undertaken while in the scope of employment, and (2) that the claim is not based upon the exercise or failure to exercise a discretionary function. Because this case does not involve a discretionary function, only employment and scope of employment issues are in question.

97 F.3d 319, 325 (9th Cir.1996) (citing Joseph v. Office of Consulate Gen. of Nig., 830 F.2d 1018, 1025 (9th Cir.1987)).⁵ Were this personal injury suit governed by the noncommercial tort exception to the FSIA, our inquiry would be guided by these standards.

B. Status-of-Forces Agreements and the FSIA

Unlike Randolph, however, this suit was brought against foreign servicemen. Litigation against members of foreign military forces who are within the United States (and against members of the U.S. military abroad) is guided by so-called status-of-forces agreements, or "SOFAs." See In re Burt, 737 F.2d 1477, 1479 n. 2 (7th Cir.1984); Richard J. Erickson, Status of Forces Agreements: A Sharing of Sovereign Prerogative, 37 A.F. L. REV. 137 (1994). Litigation in this country against members of the British military is governed by the NATO-SOFA. See Brown v. Ministry of Defense, 683 F.Supp. 1035 (E.D.Va.1988).

1. "Subject to existing international agreements...."

The first issue we must resolve is the relationship between the NATO-SOFA and the FSIA. The central provision of the FSIA, 28 U.S.C. § 1604, provides:

Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.

(emphasis added).

Although this language is critical, its meaning is not entirely transparent. Does "subject to existing international agreements" modify only "shall be immune," so that "existing international agreements" can only permit suits against foreign states where the FSIA would not? Or are the exceptions specified in §§ 1605-1607 also "subject to existing international agreements," so that such agreements can preclude suit where the FSIA would otherwise allow it? No court has explicitly resolved this issue. See, e.g., Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 719 (9th Cir.1992) (discussing § 1604's language without resolving this question).

In Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989), however, the Supreme Court provided some guidance. Amerada Hess held that the "treaty exception" intended by the "subject to existing international agreements" phraseology "applies when international agreements `expressly conflic[t]' with the immunity provisions of the FSIA." Id. at 442, 109 S.Ct. 683(quoting H.R.Rep. No. 94-1487, ...