The opinion of the court was delivered by: GREENE
This case arises out of the circumstances surrounding the death of Michael Kline, an American citizen, while traveling in El Salvador in October 1982. According to the complaint, Kline was beaten and killed by El Salvadorean soldiers. It is further claimed that the government of El Salvador did not investigate the killing or prosecute the responsible individuals and instead attempted to cover up and distort the true cause of death. In addition, the complaint alleges that United States government agencies and certain named officials attempted also to cover up the circumstances of Michael Kline's death, obstructed the plaintiffs
in their attempt to obtain information and refused to undertake an investigation of the relevant events.
The complaint contains four counts. Count One is directed against the government of the Republic of El Salvador, claiming that its agents beat, tortured, and executed Michael Kline; that they blocked any meaningful investigation or prosecution, and that these actions caused severe emotional distress to members of Mr. Kline's family in the United States. Counts Two through Four, which are brought against various United States agencies and officials, allege the commission of common law and constitutional torts. Presently before the Court are two motions to dismiss -- that of El Salvador and that of the United States.
In Count I of the complaint, plaintiffs allege that actions taken by the government of El Salvador in that country relating to the death of Michael Kline constituted the tort of intentional infliction of emotional distress and that, since the distress occurred in the United States, the courts of this country have jurisdiction notwithstanding the fact that El Salvador is a foreign sovereign generally immune from suit. Under established law, there is no basis whatever for that contention.
The Foreign Sovereign Immunities Act (FSIA)
governs claims of immunity in civil actions brought in the courts of the United States against a foreign state. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S. Ct. 1962, 76 L. Ed. 2d 81 (1983). Under the Act, a foreign state is immune from suit, and the court lacks jurisdiction, unless a specific statutory exception is found to be applicable. The exception claimed by plaintiffs to apply here provides that a foreign state is not immune where money damages are sought against it "for personal injury or death, or damage to property, occurring in the United States (emphasis added)."
The language of the exception suggests, and the legislative history of the Act
as well as the decided cases make it entirely clear, that United States courts have jurisdiction under the terms of this statute only if the tort as well as the injury occurred in this country.
In Persinger v. Islamic Republic of Iran, 234 U.S. App. D.C. 349, 729 F.2d 835 (D.C.Cir.1984), the parents of a United States Marine taken hostage at the American embassy in Iran sued for the mental and emotional distress they suffered in the United States as a consequence of their son's detention in Iran. The Court of Appeals flatly rejected their claim, holding that "both the tort and the injury must occur in the United States" for a court to have jurisdiction under the Act. 729 F.2d at 842. See also Asociacion de Reclamantes v. United Mexican States, 237 U.S. App. D.C. 81, 735 F.2d 1517 (D.C.Cir.1984); McKeel v. Islamic Republic of Iran, 722 F.2d 582, 589-90 n. 10 (9th Cir.1983); Frolova v. Union of Soviet Socialist Republics, 558 F. Supp. 358, 362 (N.D.Ill.1983); Matter of Sedco, Inc., 543 F. Supp. 561, 567 (S.D.Tex.1982). In the instant case, of course, the complaint itself alleges that the tort occurred in El Salvador, and under the precedents that nation is immune from suit in the courts of the United States.
Wholly aside from precedent, it is clear that the construction argued by plaintiffs is inappropriate. If plaintiffs are correct, every alleged governmental tort occurring in any foreign country would be subject to review in the courts of the United States at the request of any member of the family of the victim who claimed to have suffered emotional distress here as a consequence of the foreign act. Such international judicial interference would be entirely unprecedented, and a court would not be justified in engaging in it unless congressional intent to grant jurisdiction therefor were manifestly plain. That, as indicated, is not true here. The claim against the government of El Salvador will accordingly be dismissed.
The complaint states three claims against the federal defendants:
(1) intentional infliction of emotional distress; (2) denial of First Amendment rights; and (3) denial of equal protection under the Fifth Amendment.
The federal government, its agencies, and federal officials when sued in their official capacities, are absolutely shielded from tort actions for damages unless sovereign immunity has been waived. United States v. Testan, 424 U.S. 392, 399, 96 S. Ct. 948, 953, 47 L. Ed. 2d 114 (1976); United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 1351, 63 L. Ed. 2d 607 (1980). The only waiver for common law torts conceivably applicable to the present situation is the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2679(a). However, the statute itself constitutes an insuperable obstacle to plaintiffs' claims insofar as ...