Sovereign Immunity

• Author: International Law Group

In the morning of August 7, 1998, a truck with explosives prepared by the al Qaeda terrorist network attempted to enter the rear parking lot of the U.S. Embassy in Nairobi, Kenya. The unarmed security guard, employed by UIIS, a contractor to the U.S. Department of State, refused to open the gate and ran for cover when one of the terrorists in the truck began shooting. The terrorist detonated the explosives, killing 44 Embassy employees, 200 Kenyan citizens, as well as injuring approximately 4,000 people. Minutes later, a truck exploded near the U.S. Embassy in Dar Es Salaam, Tanzania, killing 12 people and injuring 85.

The Appellants in the following case are a prospective class of more than 5,000 Kenyan citizens who were injured or suffered business losses as a result of the 1998 bombing of the U.S. Embassy in Nairobi. Appellants sued the U.S. under the Federal Tort Claims Act (FTCA) (28 U.S.C. 2671), claiming that the U.S. failed to warn of a potential terrorist attack and sufficiently secure the Embassy.

The district court dismissed the complaint finding exceptions applicable, namely the discretionary function, as well as the foreign country and independent contractor exceptions to the FTCA's waiver of sovereign immunity. This appeal ensued.

The U.S. Court of Appeals for the District of Columbia Circuit affirms. The FTCA authorizes courts to hear actions for damages against the U.S. "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government ... if a private person ... would be liable to the claimant in accordance with the law of the place where the act or omission occurred." See 28 U.S.C. Section 1346(b)(1). The Court then addresses the exceptions to this waiver of sovereign immunity.

The FTCA's "discretionary function" exception bars claims that are "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. Section 2680(a). The U.S. Supreme Court outlined a two-part test for this "discretionary function" exception in United States v. Gaubert, 499 U.S. 315, 322- 23 (1991): First, whether any federal statute, regulation, or policy specifically prescribes a course of action that an employee must follow. Second, if there is no such federal statute, regulation or policy, and the...