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Nemariam v. Federal Democratic Republic of Ethiopia

November 8, 2005

HIWOT NEMARIAM, ET AL., PLAINTIFFS,
v.
THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiffs, individuals of Eritrean origin, descent, or nationality, bring this action against the Federal Democratic Republic of Ethiopia and the Commercial Bank of Ethopia ("CBE") for the alleged unlawful takings of their property and their mass expulsion from Ethiopia in violation of international law pursuant to the expropriation exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330(a), 1605(a)(3) (2000).*fn1 Complaint ("Compl.") ¶¶ 10-11, 117-122. Currently before the Court is the Defendants' Refiled Motion to Dismiss for Lack of Jurisdiction.*fn2 For the reasons set forth below, this Court grants the defendants' motion.

I. Background

In 1993, Eritrea seceded peacefully from Ethiopia following a referendum on independence. Compl. ¶ 2. However, in May 1998, a long-standing border dispute between the two nations erupted into an armed conflict, which lasted approximately two years. Id. As part of this conflict, the plaintiffs allege that in June 1998, "Ethiopia began a practice of systematic and discriminatory expulsions of persons of Eritrean origin, descent or nationality living in its territory." Id. ¶ 3. Specifically, the plaintiffs opine that at some point around June 12, 1998, an Ethiopian government spokesperson announced that Ethiopia's security apparatus had uncovered lists of Eritreans living in Ethiopia "who were engaged in spying and mobilizing financial and other resources to support the Eritrean aggression." Id. ¶ 46. Moreover, the Ethiopian government announced that any Eritrean who fell within this category of individuals would be required to leave Ethiopia. Id. Following this pronouncement,

the Ethiopian Ministry of Foreign Affairs represented to the international community that deportations would follow a three-part process: (i) determination of which Ethiopians of Eritrean descent were in fact Eritrean citizens; (ii) determination of which categories of alien Eritreans constituted a national security risk; and (iii) deportation of such individuals, fully representing due process and the right of appeal, preserving their property rights, and abiding by international human rights law.

Id. ¶ 47. However, according to the plaintiffs, this process was not followed. Rather, Ethiopia "began a campaign of mass expulsion of persons of Eritrean origin, descent, or nationality without notice or due process." Id. ¶ 48. As the Ethiopian government began the process of expelling individuals of Eritrean origin, descent, or nationality, the plaintiffs allege that the Ethiopian government issued an order freezing the bank accounts of those individuals, and seized their funds along with other property. Id. ¶¶ 54-56.

The plaintiffs in this action all recount similar accounts of how the Ethiopian government practices impacted them. For example, many were arrested in their homes or at their place of business by armed police and military officials, id. ¶¶ 58, 71, 76, 85, 96, they were transported and held in detention facilities for anywhere from a few hours to a few days, id. ¶¶ 59, 72, 77, 86, 97, and each was eventually loaded onto a bus and transported to the Ethiopia border, id. ¶¶ 60, 73, 79, 87. According to the plaintiffs, in connection with their deportations, Ethiopia and its agents, including the CBE, engaged in a systematic effort to seize the property of the deportees, including seizing or freezing the deportees' bank accounts and foreclosing on their properties and businesses. Id. ¶¶ 54-56. In many instances, the plaintiffs' property was sold at auctions. Id. ¶56.

The plaintiffs claim that their property was taken in a number of different ways. First, the plaintiffs claim that the Ethiopian government ordered that their bank accounts be "frozen," and thus the accounts became completely unaccessible. Id. ¶¶ 54, 69, 89. Some plaintiffs claim that although some family bank accounts were not frozen, they were permitted to withdraw only small amounts of their funds. Id. ¶ 80, 106. In addition, the plaintiffs posit that their bank accounts were, in every practical aspect, taken from them once they were deported from Ethiopia because they were completely deprived of the ability to access their funds. Specifically, the plaintiffs note that under Ethiopian banking law, holders of bank accounts must appear in person to withdraw funds because there are no automated tellers, wire transfers are not permitted, and checking accounts are illegal. Id. ¶ 61. Accordingly, once an individual is deported, the plaintiffs claim that they are totally deprived of access to the funds in their accounts. Id. ¶¶ 61, 75, 83-84, 90-94, 100-102, 105-06. Finally, the plaintiffs contend that the businesses and other real property owned by the plaintiffs were taken and in many cases sold substantially below their market value. Id. ¶¶ 63, 82-83, 91-93, 101. Many of these sales allegedly occurred under the pretext that the property was burdened by a tax debt or that the mortgages were in default. Id. It appears, according to the plaintiffs, that the proceeds from these sales were deposited into bank accounts at the CBE in the plaintiffs' names. Pls.' Opp'n at 16.

On June 18, 2000, the Governments of Ethiopia and Eritrea signed an Agreement of Cessation of Hostilities, which ended the border war. Id. ¶ 24. And on December 12, 2000, the two nations signed a Peace Agreement providing for the permanent termination of military hostilities and the repatriation of prisoners of war and other detainees. Id. Among the provisions of the Peace Agreement was the creation of a Claims Commission, whose mandate was to decide any claims for loss, damage, or injury relating to the conflict and resulting from a violation of international law alleged by either nation. Id. ¶¶ 43-44. Although the Claims Commission was established as the exclusive forum for claims arising from the conflict between the two nations, the Peace Agreement specifically provided for the continuance of claims that were filed in another forum before December 12, 2000. Id. ¶ 44. On December 12, 2001, Eritrea filed 32 claims with the Claims Commission, including those claims at issue in this litigation. Defs.' Mem. at 8-9. On December 17, 2004, the Claims Commission issued a partial award, which represented the Claims Commission's final determination on liability and certain other issues, with only the determination of damages remaining for disposition in further proceedings. Id. at 10. Specifically, the defendants point out that this ruling addresses those claims being pursued by the plaintiffs in this action. Id.

II. Standard of Review

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, which governs motions to dismiss that challenge a court's subject matter jurisdiction, "[t]he plaintiff bears the burden of persuasion to establish subject matter jurisdiction by a preponderance of the evidence." Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). In reviewing such a motion, this Court must accept as true all the factual allegations contained in the complaint. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). Additionally, in deciding a Rule 12(b)(1) motion, it is well-established in this Circuit that a court is not limited to the allegations in the complaint, but may also consider material outside of the pleadings in the court's effort to determine whether it has jurisdiction in the case. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001).

III. Legal Analysis

A. The Foreign Sovereign Immunities Act ("FSIA")

The FSIA is "'the sole basis for obtaining jurisdiction over a foreign state in our courts.'" Peterson v. Royal Kingdom of Saudi Arabia, 332 F. Supp. 2d 189, 195 (D.D.C. 2004) (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989)). "The basic premise of the FSIA is that foreign sovereigns are immune from suit in the United States unless the action falls under one of the specific exceptions enumerated in the statute." Id. (citing 28 U.S.C. § 1604). Once a defendant presents a prima facie case that it is a foreign sovereign, a plaintiff "bear[s] the burden of producing evidence to show that there is no immunity and that the court therefore has jurisdiction over the claims." Daliberti, 97 F. Supp. 2d at 42 (citing Drexel Burnham Lambert Group Inc. v. Comm. of Receivers for Galadari, 12 F.3d 317, 325 (2d Cir.1993); Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2nd Cir.1993)). "If the foreign sovereign is not immune, the federal district courts have ...


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