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Kasippillai Manoharan, et al v. Percy Mahendra Rajapaksa

February 29, 2012


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiffs Kasippillai Manoharan, Kalaiselvi Lavan, and Jeyakumar Aiyathurai ("Plaintiffs") filed suit against Defendant Percy Mahendra Rajapaksa, in his individual and official capacity as the President of Sri Lanka, alleging violations of the Torture Victim Protection Act of 1991 ("TVPA"). Compl., ECF No. [1]. The United States filed a Suggestion of Immunity on behalf of Defendant, asserting Defendant Rajapaksa is immune from suit while he is in office. Suggestion of Immunity ("Sugg. of Imm."), ECF No. [12], at 1. The Court provided Plaintiffs an opportunity to respond to the Suggestion of Immunity, and the United States filed a reply.*fn1 The Court finds that the United States' Suggestion of Immunity is binding on the Court and dispositive of the Court's jurisdiction. Therefore, Plaintiffs' [8] Motion to Enter Order Validating Service of Process is DENIED and this case is DISMISSED for lack of jurisdiction.

The Court does not take this step lightly. The Plaintiffs' Complaint contains shocking allegations of human rights abuses and violations of United States and international law. The Court's dismissal of this case is in no way a reflection of the merits of Plaintiffs' claims or Defendant's defenses. Rather, two centuries of case law and basic constitutional and statutory principles prevent this Court from allowing Plaintiffs' Complaint to move forward at this time.


Plaintiffs filed this action as the legal representatives of relatives Plaintiffs allege were the victims of extra-judicial killings while living in their native Sri Lanka. Compl. ¶¶ 3-5. Plaintiffs allege Defendant has "virtually unlimited government power in Sri Lanka," "exercise[s] command responsibility over the Sri Lankan armed forces or security services," and "knew or should have known of the extra-judicial killings under color of foreign law of [Plaintiffs' relatives]." Id. at ¶ 6. Plaintiffs thus seek to hold Defendant liable for the killings under the TVPA. Id. at ¶¶ 63-104. After filing the Complaint on January 28, 2011, Plaintiffs spent nearly eleven months attempting to serve Defendant with process. See 5/31/11 Status Report, ECF No. [4]; 8/12/11 Status Report, ECF No. [5]; 10/13/11 Order, ECF No. [7] (authorizing service by publication); 11/21/11 Supplemental Mot. for Serv. by Publication, ECF No. [8]. After attempting to serve Defendant via publication in Sri Lankan newspapers, Plaintiffs filed a [8] Motion to Enter Order Validating Service of Process, which is currently pending before the Court.

On December 16, 2011, Defendant moved to solicit the views of the United States regarding (i) Defendant's entitlement to head of state and foreign official immunity; (ii) justiciability of Plaintiffs' claims under the political question doctrine; and (iii) the applicability of the act of state doctrine to this case. Def.'s Mot. to Solicit Views of the United States and for Enlargement of Time to Resp. to the Compl., ECF No. [9], at 1. In the alternative, Defendant moved for additional time to respond to the Complaint. Id. The Court ordered the United States to indicate whether it would file a response to Defendant's request. 12/30/11 Order, ECF No. [10]. In response to the Court's Order, the United States filed a Suggestion of Immunity, asserting that Defendant is immune from suit in this case while Defendant is in office. Sugg. of Imm. at 1; 1/13/12 Ltr. H. H. Koh to T. West, ECF No. [12-1].


The United States submits that its determination that Defendant Rajapaksa is entitled to head of state immunity "is controlling and is not subject to judicial review." Sugg. of Imm. at 2. Plaintiffs contend that the plain text of the TVPA bars the application of head of state immunity to claims brought under the statute. As explained below, the Court agrees with the United States that the Court is bound by the State Department's Suggestion of Immunity, and after applying the proper canon of statutory construction, it is clear head of state immunity applies to claims brought under the TVPA. Lacking jurisdiction to proceed, the Court will dismiss the case.

A. Foreign Sovereign Immunity and Suggestions of Individual Immunity The immunity of foreign sovereigns in United States courts is a common law doctrine recognized by the Supreme Court nearly two centuries ago. In Schooner Exchange v. McFaddon, 7 Cranch 116 (1812), Chief Justice John Marshall "concluded that, while the jurisdiction of a nation within its own territory 'is susceptible of no limitation not imposed by itself,' the United States had impliedly waived jurisdiction over certain activities of foreign sovereigns." Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983) (quoting id. at 136).*fn2 The decision in Schooner Exchange "came to be regarded as extending virtually absolute immunity to foreign sovereigns." Id. Following Schooner Exchange, courts employed a two-part procedure to determine whether a foreign sovereign or foreign official was immune from suit. As the Supreme Court explained:

Under that procedure, the diplomatic representative of the sovereign could request a "suggestion of immunity" from the State Department. If the request was granted, the district court surrendered its jurisdiction. But "in the absence of recognition of the immunity by the Department of State," a district court "had authority to decide for itself whether all the requisites for such immunity existed.". . . Although cases involving individual foreign officials as defendants were rare, the same two-step procedure was typically followed when a foreign official asserted immunity.

Samantar v. Yousuf, 130 S.Ct. 2278, 2284-85 (2010) (quoting Ex parte Peru, 318 U.S. 578, 581, 587-88 (1943)).

Prior to 1952, the State Department generally suggested immunity in all actions brought against foreign sovereigns. Id. at 2285. In 1952, the State Department departed from this practice, and adopted a "restrictive" theory of foreign sovereign immunity, which limited immunity to "suits involving the foreign sovereign's public acts," but not "cases arising out of a foreign state's strictly commercial acts." Id. (quoting Verlinden, 461 U.S. at 487). However, the influence of political considerations led to inconsistent submission of suggestions of immunity under this "restrictive" theory. Id. To remedy the inconsistent application of foreign sovereign immunity by the State Department, Congress enacted the Foreign Sovereign Immunities Act ("FSIA") in 1976. Id. Until 2010, a majority of Circuits held that the FSIA governed not only foreign sovereign immunity, but alsoclaims of immunity by individual officers of foreign states. Yousuf v. Samantar, 552 F.3d 371, 378 (4th Cir. 2009) (collecting cases). In Samantar, the Supreme Court interpreted the FSIA to govern only the application of foreign sovereign immunity to foreign states, not foreign officials. 130 S.Ct. at 2292-93. Rather, the pre-FSIA common law regarding head of state and diplomatic immunities continues to govern whether, as in this case, an individual official from a foreign sovereign is entitled to immunity from suit. Id.

In accordance with the post-Schooner Exchange procedure, the State Department filed a Suggestion of Immunity in this case, reflecting the State Department's determination that Defendant Rajapaksa is entitled to head of state immunity while in office. The State Department's Suggestion of Immunity is conclusive and not subject to judicial review. E.g., Ex parte Peru, 318 U.S. at 589-90 ("The certification and the request that the vessel be declared immune must be accepted by the courts as a conclusive determination by the political arm of the Government."); Ye v. Zemin, 383 F.3d 620, 625-27 (7th Cir. 2004) (holding courts must defer to the State Department's Suggestion of Immunity even in cases involving alleged violations of jus cogens norms). "The precedents are overwhelming. For more than 160 years American courts have consistently applied the doctrine of sovereign immunity when requested to do so by the executive branch." Spacil v. Crowe, 489 F.2d 614, 617 (5th Cir. 1974). "When, as here, the Executive has filed a Suggestion of Immunity as to a recognized head of a foreign state, the jurisdiction of the Judicial Branch immediately ceases." Doe I v. State of Israel, 400 F. Supp. 2d 86, 111 (D.D.C. 2005); accord, id. ("When the Executive Branch concludes that a recognized leader of a foreign sovereign should be immune from the jurisdiction of American courts, that conclusion is determinative."); First Am. Corp. v. Al-Nahyan, 948 F. Supp. 1107, 1119 (D.D.C. 1996) ("The United States has filed a Suggestion of Immunity on behalf of H.H. Sheikh Zayed, and courts of the United States are bound to accept such head of state determinations as conclusive."); Saltany v. Reagan, 702 F. Supp. 319, 320 (D.D.C. 1988) ("[T]he United States has suggested to the Court the ...

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