and that the complaint is not directed, per se, against the British Government." Plaintiff's Response to British (Crown) Defendants' [Second] Motion to Dismiss, at 3 (emphasis original). Therefore, he claims, neither subject matter nor personal jurisdiction is lacking.
Although for the purposes of deciding a motion to dismiss the Court must accept as true all factual allegations of the complaint, plaintiff's attempt to sue the British defendants in their individual capacities does not qualify for such treatment. It is merely a characterization, and an incorrect characterization, Herbage's protests notwithstanding.
As the British defendants correctly point out, the actions of which Herbage complains are ones that those defendants could have taken only in their official capacities. These officials were acting as law enforcement officers. Indeed, it is difficult to see how these persons could be sued, and held potentially responsible, in their individual capacities for actions they took at the behest of their government or at the very least "under color of law."
The essential thrust of the FSIA is towards corporate and government entities -- legal yet nonnatural "persons."
Nowhere does the FSIA discuss the liability or role of natural persons, whether governmental officials or private citizens. Nonetheless, decisions in other federal courts, as well as reason, indicate -- even if only indirectly -- that the sovereign immunity granted in the FSIA does extend to natural persons acting as agents of the sovereign. For example, a district court has held that where a foreign government-owned airline enjoyed immunity under the FSIA, that immunity also shielded two airline employee defendants. American Bonded Warehouse Corp. v. Compagnie Nationale Air France, 653 F. Supp. 861, 863 (N.D. Ill. 1987). See also Kline v. Kaneko, 685 F. Supp. 386 (S.D.N.Y. 1988) (Mexican Secretary of Government shielded by FSIA immunity); Rios v. Marshall, 530 F. Supp. 351 (S.D.N.Y. 1981) (Chief Liaison Officer of the British West Indies Central Labour Organization held entitled to immunity of the organization itself). This is a logical approach, for a government does not act but through its agents.
Furthermore, the standard for determining whether immunity is warranted does not depend on the identity of the person or entity so much as the nature of the act for which the person or entity is claiming immunity. As the committee that drafted the Act noted, the judiciary is to decide claims of immunity on the basis of standards recognized under international law. The Report notes with approval the "wide-spread acceptance of the so-called restrictive theory of sovereign immunity . . . that the sovereign immunity of foreign states should be 'restricted' to cases involving acts of a foreign state which are sovereign or governmental in nature, as opposed to acts which are either commercial in nature or those of which private persons normally perform." H.R. Rep. 94-1487, 94th Cong., 2d Sess. 15, reprinted in 1976 U.S. Code Cong. & Admin. News 6604, 6613 (emphasis added). This emphasis on the type of act involved as the focus for the inquiry whether immunity is proper has been consistently applied in our courts. For example, in Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371 (5th Cir. 1980), the court of appeals found that a government-owned airline "acted merely as an arm or agent of the Dominican government in carrying out [its] assigned role, and, as such, is entitled to the same immunity from any liability arising from that governmental function as would inure to the government, itself." 621 F.2d at 1379.
There can be no doubt that the acts by the British defendants of which Herbage complains are "sovereign or governmental in nature." From the constable carrying out the arrest, to the detective, to the prosecutor, these defendants were performing official government functions
classically belonging to the discretion of the executive, and classically immune from suit. The FSIA bars Herbage's claims against the British defendants because his allegations would require an adjudication of the propriety and legality of the acts of British authorities in the performance of their official duties. See Arango, 621 F.2d at 1380 (5th Cir. 1980) (battery claims against Dominican immigration authorities foreclosed by, inter alia, their immunity under FSIA).
Arguing that these defendants, acting illegally, cannot have the benefit of immunity, Herbage contends they are subject to this Court's jurisdiction. Nonetheless, these men were acting in their official capacities as agents of the British government (both on a national and local level); those actions cannot and do not subject them to liability in the courts of the United States. Since the activity complained of is governmental in nature and performed by officials of that government, this Court does not have jurisdiction over a foreign sovereign. Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 307 (2d Cir. 1981), cert. denied, 454 U.S. 1148, 71 L. Ed. 2d 301, 102 S. Ct. 1012 (1982).
The FSIA is absolute in this regard, no matter how heinous the alleged illegalities. The Court has no authority to address the legality of the defendants' actions. Our Supreme Court has held that a lower court lacked jurisdiction over a suit challenging a foreign state's use of military force, allegedly in violation of international law, because the acts at issue fell outside any of the exceptions to sovereign immunity in the FSIA. Amerada Hess, 109 S. Ct. at 688. See also Saltany v. Reagan, 281 U.S. App. D.C. 20, 886 F.2d 438 (D.C. Cir. 1989) (upholding decision that the United Kingdom was not subject to suit in U.S. courts for allowing United States to use British air bases in air strike on Libya), cert. denied, 495 U.S. 932, 110 S. Ct. 2172, 109 L. Ed. 2d 501 (1990); Tel Oren v. Libyan Arab Republic, 233 U.S. App. D.C. 384, 726 F.2d 774, 775 n. 1 (D.C. Cir. 1984) (per curiam) (Edwards, J., concurring) (suit against Government of Libya seeking damages for terrorist attack in Israel barred by FSIA), cert. denied, 470 U.S. 1003, 105 S. Ct. 1354, 84 L. Ed. 2d 377 (1985). Herbage's arguments are unavailing. The basis of this type of immunity doctrine is to protect the executive prerogative and not to enter into the sphere of relations between sovereign states: comity.
The events of which Herbage complains of were public acts of the government committed within its own territory. And so, additionally, this case invokes the venerable Act of State Doctrine, which precludes American courts from inquiring into the validity of the public acts of a recognized foreign sovereign power committed within its own territory. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401, 84 S. Ct. 923, 926, 11 L. Ed. 2d 804 (1964).
Furthermore, this prudential doctrine is designed to avoid judicial action in sensitive areas. It "expresses the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this country's pursuit of goals both for itself and for the community of nations as a whole in the international sphere." Sabbatino, 376 U.S. at 423, 84 S. Ct. at 938; see also Dayton v. Czechoslovak Socialist Republic, 672 F. Supp. 7 (D.D.C. 1986), aff'd, 266 U.S. App. D.C. 177, 834 F.2d 203 (D.C. Cir. 1987), cert. denied, 486 U.S. 1054, 100 L. Ed. 2d 921, 108 S. Ct. 2820 (1986). Thus an important and vital doctrine counsels the Court to refrain from asserting jurisdiction over the British defendants even were they stripped of the cloak of FSIA immunity.
C. Res Judicata
As a final matter, it is noted that the bulk of plaintiff's complaint, and the equitable relief he requests, is barred by res judicata. Herbage's claims center on the illegality of his extradition, and in particular on the argument that the extradition was illegal because the US-UK Treaty provisions, as well as the warrants issued against plaintiff, violate the "principle of specialty." These contentions and their evident flaws need not be described here in detail since they were earlier determined by this Court in another suit Herbage brought. See Herbage v. United States of America, C.A. No. 89-1793 (D.D.C. June 21, 1990).
As explained above, the Court concludes that plaintiff's complaint must be dismissed. Accordingly, it is hereby
ORDERED that defendants' motions to dismiss are granted.