The opinion of the court was delivered by: OBERDORFER
This case is presently before the Court on the question of subject matter jurisdiction. Although defendant has not filed a formal motion to dismiss,
the case is now in a posture requiring the Court to consider, sua sponte, whether it in fact has jurisdiction over the subject matter of this action.
The factual basis of plaintiff's complaint is quite simple. Plaintiff alleges that on November 29, 1982, Antonio Francisco da Silveira, Jr., the grandson of defendant's ambassador to the United States, assaulted and shot him outside a local nightclub. On December 9, 1982, plaintiff filed suit in this Court against da Silveira, Jr., his grandfather, and the Federative Republic of Brazil. Plaintiff had some difficulty in effective service, but on May 17, 1983, his counsel appeared before the Court and represented that service had been completed and that the statutory time for defendants to respond had elapsed. 28 U.S.C. § 1608(d).
At the status conference on May 17, 1983, the Court asked plaintiff's counsel about a certification filed by the United States Department of State on March 29, 1983, attesting that Ambassador da Silveira had been duly notified to the State Department as Brazil's ambassador and that hence both the ambassador and his family were entitled to full diplomatic immunity under the provisions of the Vienna Convention on Diplomatic Relations, 23 U.S.T. 3227, T.I.A.S. 7502, 500 U.N.T.S. 95, to which the United States is a party. At the status conference, counsel for plaintiff admitted that the representations of the State Department were essentially correct, and with plaintiff's consent the Court dismissed the action against the individual defendants in an Order filed May 17, 1983. 22 U.S.C. § 254d.
Also appearing at the status conference on May 17, 1983, was J. P. Janetatos, Esq., who stated to the Court that he did not intend to enter a formal appearance,
but that he represented defendant Brazil. At the invitation of the Court, Mr. Janetatos filed a "Memorandum of Counsel" on the subject of the Court's jurisdiction on May 31, 1983. Counsel for plaintiff responded on June 21, 1983.
Plaintiff seeks to invoke this Court's jurisdiction under 28 U.S.C. § 1330, the jurisdictional provision of the Foreign Sovereign Immunities Act (FSIA). Section 1330 gives the Court jurisdiction over any action against a foreign state in which "the foreign state is not entitled to immunity." See 28 U.S.C. § 1604. The particular exception to the general rule of sovereign immunity that plaintiff seeks to invoke here is that of 28 U.S.C. § 1605(a)(5), which states that a foreign state shall not be immune from suit in a case
in which money damages are sought against a foreign state for personal injury . . . 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.
As plaintiff points out, there is some indication in the legislative history of this provision that Congress intended it to provide some protection to U.S. citizens who were injured as a result of the tortious conduct of diplomatically immune foreign representatives. H. Rep. No. 1487, 94th Cong. 2d Sess. 20-21 (1976). However, the legislative history gives no additional guidance on the proper application of this provision beyond the plain language of the statute itself.
Plaintiff asserts that § 1605(a)(5) applies to this situation, because, he argues, a diplomat's family, like the diplomat himself, is an employee or agent of the foreign government. Plaintiff points out that a diplomat's family members, although unpaid, are often indispensible to the sending state in such activities as attending diplomatic receptions, co-hosting embassy receptions, and participating in various intercultural activities. Plaintiff's argument implies that such activities provide the principal reason for the Vienna Convention's extension of diplomatic immunity to a diplomat's family. This is doubtful; plaintiff has suggested to the Court no precedent adopting such a position, and there is a strong argument that extension of diplomatic immunity to family members is a courtesy accorded to the diplomat rather than a recognition of any official status of the family members themselves. It is unnecessary to decide this point, however, because plaintiff's attempt to apply § 1605(a)(5) to this situation fails more clearly on another ground.
In order to invoke § 1605(a)(5) in this case, plaintiff must demonstrate that da Silveira's actions were "within the scope of his office or employment." Section 1605(a)(5) is essentially a respondeat superior statute, providing an employer (the foreign state) with liability for certain tortious acts of its employees.
The Supreme Court has recently held that the jurisdictional grant of FSIA is based upon the "arising under" provision of Article III
rather than the diversity of citizenship provision. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S. Ct. 1962, 76 L. Ed. 2d 81 (1983). The Court held that federal interests in foreign affairs and regulation of foreign commerce provide sufficient basis for federal jurisdiction in all cases against foreign states, including those that involve no substantive federal issues beyond the question of sovereign immunity. However, as a general rule, only the purely federal question of sovereign immunity is to be decided on the basis of federal law; "where state law provides a rule of liability governing private individuals, the FSIA requires the application of that rule to foreign states in like circumstances." First National City Bank v. Banco Para El Comercio Exterior De Cuba, 462 U.S. 611, 622 n.11, 103 S. Ct. 2591, 77 L. Ed. 2d 46, (1983); see 28 U.S.C. § 1606.
Therefore, in deciding whether da Silveira's actions were "within the scope of his employment," 28 U.S.C. § 1605(a)(5), the Court looks to the applicable state law defining that concept. Castro v. Saudi Arabia, 510 F. Supp. 309, 313 (D. Tex. 1980).
This is the choice of law rule applied under an analogous federal statute, the Federal Tort Claims Act (FTCA), which also provides for federal jurisdiction simply on the basis of the identity of the defendant, without regard to the existence of other federal issues in the case. Under the FTCA, the United States waives its sovereign immunity and accepts liability for the tortious acts of its officials committed within the scope of their employment.
The statute indicates -- and the courts have consistently held -- that, with certain statutory exceptions, 28 U.S.C. § 2680, the definition of "scope of employment" under the FTCA must be determined by reference to state law.
Baker v. United States, 97 U.S. App. D.C. 281, 230 F.2d 831 (D.C. Cir. 1956). In the absence of any indication of congressional intent to the contrary, the same rule should apply under the FSIA.
The District of Columbia's law of respondeat superior, which is similar to that of most states, is stated in the case of Penn Central Transportation Company v. Reddick, 398 A.2d 27 (D.C. 1979). In that case, the D.C. Court of Appeals stated that, as a general rule,
whatever is done by the employee in virtue of his employment and in furtherance of its ends is deemed by the law to be an act done within the scope of his employment, and . . . in determining whether the servant's conduct was within the scope of his employment, it is proper ...