United States District Court, District of Columbia
C. Lamberth, United States District Judge.
case concerns allegations brought by Darryl Lewis
("plaintiff) for violations of the Torture Victim
Protection Act of 1991 ("TVPA") in connection with
his unlawful detention and torture by Kalev Mutond, the
General Administrator of the National Intelligence Agency
("ANR") of the Democratic Republic of the Congo
("DRC"), and Alexis Thambwe Mwamba, the DRC
Minister of Justice ("defendants"). Plaintiff
brings this action to recover compensatory and punitive
damages under the TVPA, and sues each defendant in his
individual capacity. Defendants have moved to dismiss for (1)
lack of subject matter jurisdiction; (2) lack of personal
jurisdiction; and (3) insufficient service of process.
Because the defendants are immune under the common law
foreign official immunity doctrine, this Court lacks subject
matter jurisdiction over the complaint and concludes that
this action should be dismissed.
factual allegations in this case center on the unlawful
detention and torture of plaintiff for a period of six weeks
in the DRC. Plaintiff, an American citizen and former U.S.
military service member, was working as an unarmed security
advisor to Moise Katumbi in the DRC.Plaintiff alleges that on
April 24, 2016, he and three of his colleagues were detained
by the Congolese riot police while leaving a political rally
"solely because of their association with Mr.
Katumbi." Compl. ¶ 19, ECF No. 1.
asserts that several ANR members subsequently arrived and
transported him and his colleagues to a jail in Lubumbashi,
where "ANR members interrogated [plaintiff] for three
hours while physically assaulting and abusing him" for
the purpose of obtaining a false confession that he was an
American mercenary. Compl. ¶ 22. Plaintiff claims that
the next morning he and his colleagues were transported to
ANR's headquarters in Kinshasha, where plaintiff
"was detained for six weeks by defendant Kalev and his
subordinates." Compl. ¶38. Plaintiff alleges that
while detained he was "interrogated daily by ANR members
for approximately 16 hours a day, " he "was fed no
more than one meal every 24 hours, " and he "was
denied the necessities for basic hygiene." Compl.
¶¶ 27, 29-30.
plaintiff claims that at a press conference on May 4, 2016,
defendant Thambwe accused plaintiff of being an American
mercenary sent to assassinate President Kabila. Compl. ¶ 32.
Defendant Thambwe then explained that 600 U.S. citizens,
including plaintiff, "had entered the DRC since October
2015 for the purpose of assisting Mr. Katumbi in a plot to
destabilize the DRC." Compl. ¶ 35. On May 5, 2016,
the U.S. Embassy in Kinshasa allegedly issued a response
denying defendant Thambwe's assertion that plaintiff was
detained due to his involvement in a plot to overthrow
President Kabila. On June 8, 2016, plaintiff was released
without ever being charged by defendant Thambwe or any other
Motion to Dismiss Pursuant to Rule 12(b)(1)
courts are courts of limited jurisdiction and must be
authorized to hear a case by both Article III of the U.S.
Constitution and an act of Congress. Here, plaintiff asserts
both federal question jurisdiction under 28 U.S.C. §
1331 and diversity jurisdiction under 28 U.S.C. §
1332(a)(2). To survive a motion to dismiss for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1), the plaintiff must establish by a
preponderance of the evidence that the court has jurisdiction
over the case. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992). "Because subject matter
jurisdiction focuses on the Court's power to hear a
claim, however, the Court must give the plaintiffs factual
assertions closer scrutiny when reviewing a motion to dismiss
for lack of subject matter jurisdiction than reviewing a
motion to dismiss for failure to state a claim upon which
relief can be granted under Rule 12(b)(6)." Bernard
v. United States DOD, 362 F.Supp.2d 272, 277 (D.D.C.
2003) (Lamberth, J.).
the motion is based "on a claim of foreign sovereign
immunity, which provides protection from suit and not merely
a defense to liability . . . the court must engage in
sufficient pretrial factual and legal determinations to
satisfy itself of its authority to hear the case."
Jungquist v. Al Nahyan, 115 F.3d 1020, 1027-28 (D.C.
Cir. 1997). While it is relatively rare given the infrequent
nature of foreign official immunity cases, the D.C. Circuit
has made reference to other filings outside the allegations
of the complaint in a Rule 12(b)(1) motion to ensure that it
had the authority to hear a case. See Belhas v. Ya
Alon, 515 F.3d 1279, 1281 (D.C. Cir. 2008) (stating
"our background statement, while drawn largely from the
allegations of the complaint, will occasionally make
reference to other filings with the district court during the
course of litigation").
Common Law Foreign Official Immunity
Congress enacted the Foreign Sovereign Immunities Act (FSIA)
as "the sole basis for obtaining jurisdiction over a
foreign state in our courts." Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989).
Under the FSIA, foreign states are immune from suit in United
States courts unless one or more of the enumerated exceptions
outlined in the FSIA applies. See 28 U.S.C.
§§ 1330, 1604. While some circuits previously
granted foreign officials immunity under the FSIA, the
Supreme Court recently held that a suit brought against a
foreign official acting in his official capacity is properly
governed by the common law and not the FSIA. See Samantar
v. Yousuf, 560 U.S. 305 (2010). "In contrast, suits
against officers in their personal capacities must pertain to
private action[s]-that is, to actions that exceed the scope
of authority vested in that official so that the official
cannot be said to have acted on behalf of the state."
Doe I v. Israel, 400 F.Supp.2d 86, 104 (D.D.C.
the common law foreign official immunity doctrine, "a
foreign official is entitled to one of two different types of
immunity: status-based or conduct-based immunity."
Rishikof v. Mortada,70 F.Supp.3d 8, 11 n.6 (D.D.C.
Sept. 29, 2014). Status based immunity is available to
diplomats and heads of state and shields them from legal
proceedings "by virtue of his or her current official
position, regardless of the substance of the
claim." Chimene I. Keitner, The Common Law of
Foreign Official Immunity, 14 Green Bag 2d 61, 63 (2010)
(cited by Yousuf v. Samantar,699 F.3d 763 (4th Cir.
2012)). Here, the issue is whether defendants are entitled to
conduct based immunity. Conduct based immunity is available
to "any  [p]ublic minister, official, or agent of the
[foreign] state with respect to acts performed in his