Tawfik v. Sheikh Sabah al-Ahmad al-Jaber al-Sabah
| Decision Date | 16 August 2012 |
| Docket Number | 11 Civ. 6455 (ALC) (JCF) |
| Parties | Rami N.I. Tawfik, et al. Plaintiffs, v. Sheikh Sabah al-Ahmad al-Jaber al-Sabah, Defendant. |
| Court | U.S. District Court — Southern District of New York |
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.
The plaintiffs are Egyptian citizens and supporters of the Egyptian Association for Change, "a political organization dedicated to the democratization of the political process inEgypt 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. (Id.) In April 2010, Kuwaiti secret police arrested the plaintiffs, allegedly pursuant to the orders of Defendant Sheik Sabah al-Ahmad al-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").1 (Id. 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. (Id. 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 tosuffer 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 of Interior, 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 of Immunity on April 5, 2012, on behalf of the Emir as the sitting head of a foreign state. (ECF # 23.)2
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 of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C). Afterconducting 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).
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 of Immunity 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."
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.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 of Immunity," then the district court "surrenders] 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 of pre-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.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); Al-Hassan v. Al Nahyan, No. 09-01106 (CD. 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 of Israel); Leutwyler v. Office of Her Magesty Queen Rania Al-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), aff'd 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 ().
The TVPA provides:
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 ...
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