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Lewis v. Mutond

United States District Court, District of Columbia

July 6, 2017

DARRYL LEWIS, Plaintiff,
KALEV MUTOND, in his individual capacity only, and ALEXIS THAMBWE MWAMBA, in his individual capacity only, Defendants.


          Royce C. Lamberth, United States District Judge.


         This 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.


         The 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.[1]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.

         Plaintiff 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.

         Next, 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.[2] 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 DRC official.


         A. Motion to Dismiss Pursuant to Rule 12(b)(1)

         Federal 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.).

         Where 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").

         B. Common Law Foreign Official Immunity

         In 1976 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. 2005).

         Under 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."[3] 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 ...

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