Sovereign Immunity

• Author: International Law Group

According to the complaint, in January 1997, a fight erupted in a bar in Tacoma, Washington, between Robert Moore (plaintiff) and several members of the British military (defendants). Plaintiff was injured and brought the present action. It sought more information about the incident from the British Government under the Freedom of Information Act (FOIA), as well as damages under the "non- commercial tort" exception of the FSIA.

The defendants include an individual named Kenneth Southall, ten unnamed individuals, and the United Kingdom; they did not appear. The U.S. filed an amicus curiae brief suggesting a lack of subject matter jurisdiction. The district court agreed and dismissed the case on that ground. Plaintiff noted an appeal. The U.S. Court of Appeals for the Ninth Circuit affirms.

The Court first analyzes subject matter jurisdiction under the FSIA. Federal courts have jurisdiction over foreign states as defendants only in situations when the state is not entitled to immunity. See 28 U.S.C. Section 1330(a). The FSIA's noncommercial tort exception applies to actions where plaintiff seeks money damages for personal injury or death, or property damage, caused by the foreign state's tortious act or omission. See 28 U.S.C. Section 1605(a)(5). Further, such a plaintiff has to show (1) that the foreign state's employee committed the torts within the scope of his or her employment, and (2) that the claim does not stem from the exercise of, or failure to exercise, a discretionary function.

The North Atlantic Treaty Organization Status of Forces Agreement (NATO-SOFA) [June 19, 1951, 4 U.S.T. 1792, T.I.A.S. No. 2846] regulates the bringing of lawsuits against members of British and other NATO military forces arising out of their activities within the U.S.

The Foreign Sovereign Immunities Act (FSIA) [28 U.S.C. Sections 1602ff] provides in Section 1604 that: "Subject to existing international agreements to which the United States is a party ... a foreign state shall be immune from jurisdiction ... except as provided in sections 1605 to 1607 of this chapter." The question here is how to interpret the italicized phrase.

In Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989), the Court explained that the "treaty exception" applies when international agreements "expressly conflict" with the FSIA's immunity provisions.

"This 'conflict reading' of Section 1604 is the only sensible one. Under this interpretation of the FSIA...