Sovereign Immunity

• Author: International Law Group

The plaintiff, a U.S. citizen, was working as a security guard at a building owned by the government of Malaysia. One evening, the plaintiff slipped and fell, injuring himself. He sued in a New York federal court alleging that the Malaysian government had caused his injuries by and through its recklessness in maintaining the building.

The Malaysian government claimed immunity from suit under the Foreign Sovereign Immunities Act (hereinafter FSIA) [28 U.S.C. Sections 1330, 1602-1611]. The district court dismissed the complaint citing lack of subject matter jurisdiction under FSIA.

The Court of Appeals later affirmed on the grounds that the plaintiff had failed to allege facts and/or to come forward with facts sufficient to deprive defendant of immunity under the FSIA's non-discretionary torts exception.

Initially, plaintiff argued that the non-discretionary torts exception to the FSIA precludes the Malaysian government from claiming immunity. The Malaysian government countered that it retained immunity because it had bought the building to serve as a foreign mission. These acts, the defendant claimed, were entirely discretionary and in order to defeat the immunity, the plaintiff had to allege and prove non-discretionary conduct on the part of the Malaysian government. The plaintiff failed to do so.

The U.S. Court of Appeals for the Second Circuit affirms on the grounds that the plaintiff failed to either allege facts, or meet his burden of coming forward with evidence. The Court also held that because of the absence of manifest injustice, the plaintiff is precluded from raising jurisdictional basis under the FSIA. Under Sections 1604 and 1605 of the FSIA, foreign states are held to be immune from jurisdiction of United States courts unless the state exercised non discretionary functions. In pertinent part, 28 U.S.C. Section 1605 holds that a foreign state can be held responsible in...