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Doe 1 v. Buratai

United States District Court, District of Columbia

October 31, 2018

DOE 1, et al., Plaintiffs,
v.
TUKUR YUSUF BURATAI, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          DABNEY L. FRIEDRICH UNITED STATES DISTRICT JUDGE.

         The plaintiffs are Nigerian nationals who allege that the defendants-officials in the Nigerian government, military, and police-brutally tortured and killed peaceful protesters. The Court granted the defendants' motions to dismiss on July 19, 2018. See Order July 19, 2018, Dkt. 46; Mem. Op., Dkt. 47. Before the Court is the plaintiffs' Motion to Alter or Amend Final Judgment of Dismissal pursuant to Federal Rule of Civil Procedure 59(e), Dkt. 48. For the reasons that follow, the Court will deny the motion.

         I. BACKGROUND

         The Court previously recounted the factual background of this case in its memorandum opinion. See Mem. Op. at 1-7. In short, the Nigerian military and police allegedly shot and killed peaceful protesters as part of a long-running conflict between the Nigerian government and a group called the Biafrans. Compl. ¶¶ 22, 44-47, 49, 51-53, 56-60, 179. Ten plaintiffs- nine legal representatives of deceased victims and one survivor who was allegedly detained and tortured-sued sixteen individual defendants affiliated with Nigerian police and military forces. Id. ¶¶ 12-42, 79-199. The plaintiffs asserted claims under the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture Victims Protection Act of 1991 (TVPA), Pub. L. No. 102-256, § 2(a), 106 Stat. 73, 73 (Mar. 12, 1992) (codified as a note to 28 U.S.C. § 1350). See Compl. ¶¶ 79- 217.

         In response, the Nigerian government requested that the U.S. Department of State provide a suggestion of foreign-official immunity for the defendants. Manu Decl. ¶¶ 3-5, Dkt. 36-2; see also Dkt. 41-1 at 7-10. The State Department did not act on that request before the Court's decision on July 19, 2018, Mem. Op. at 16-17, and it still has not filed a suggestion of immunity, a suggestion of non-immunity, or any other document with the Court.

         The defendants filed two motions to dismiss-one by Willie Obiano and another by Anthony O. Egbase purportedly acting on behalf of all defendants. See Dkts. 35, 36. The Court granted both motions on July 19, 2018, holding that it lacked personal jurisdiction over the defendants and that the defendants were entitled to foreign-official immunity. See Order July 19, 2018; Mem. Op. at 9-15.

         II. LEGAL STANDARD

         Reconsideration under Rule 59(e) is an “extraordinary measure.” Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir. 2018). Because “Rule 59(e) motions are aimed at reconsideration, not initial consideration, ” they “may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Id. (internal quotations omitted); see also New York v. United States, 880 F.Supp. 37, 38 (D.D.C. 1995) (per curiam) (“A Rule 59(e) motion to reconsider is not simply an opportunity to reargue facts and theories upon which a court has already ruled.”). Although “the court has considerable discretion in ruling on a Rule 59(e) motion, ” it may grant such a motion “under three circumstances only: (1) if there is an intervening change of controlling law; (2) if new evidence becomes available; or (3) if the judgment should be amended in order to correct a clear error or prevent manifest injustice.” Leidos, Inc., 881 F.3d at 217 (internal quotation marks omitted). “Manifest injustice” in turn “requires at least (1) a clear and certain prejudice to the moving party that (2) is fundamentally unfair in light of governing law.” Id. (alteration and internal quotation marks omitted).

         III. ANALYSIS

         The plaintiffs point to no intervening change of controlling law or new evidence to support their motion. See Pls.' Rule 59(e) Mot. to Alter or Am. Final J. of Dismissal, Dkt. 48. Instead, they raise a series of objections to the Court's legal analysis in an effort to show clear error and manifest injustice. Id. at 5-14. Their objections are unpersuasive.

         A. Foreign-Official Immunity

         The plaintiffs first fault the Court for considering the State Department's views in determining whether the Nigerian defendants are entitled to foreign-official immunity. See Id. at 5-6. It is unclear whether the plaintiffs mean to challenge the Court's threshold finding of immunity, see Mem. Op. at 15-21, or its further holding that no exception to that immunity applies, see Mem. Op. at 26-30. To the extent the plaintiffs object to the Court's threshold finding of immunity, their objection is foreclosed by Supreme Court precedent, which requires district courts to consider the views of the State Department not once but twice in determining whether common-law foreign-official immunity applies. See Samantar v. Yousuf, 560 U.S. 305, 324-25 (2010) (outlining a two-step process that considers (1) whether the State Department granted a defendant's request for a “suggestion of immunity”; and, if not, (2) “whether the ground of immunity is one which it is the established policy of the State Department to recognize”) (alteration and internal quotation marks omitted); see also Manoharan v. Rajapaska, 845 F.Supp.2d 260, 262-63 (D.D.C. 2012) (applying Samantar's two-step process), aff'd, 711 F.3d 178 (D.C. Cir. 2013) (per curiam).

         Their objection fares no better if aimed at the Court's related holding that no exception to foreign-official immunity applies. In reaching that conclusion, the Court did not formally defer to-or even critically rely on-the State Department's views. The Court made no mention of the views of the Department of State or the Executive Branch when it determined that the TVPA did not abrogate foreign-official immunity. See Mem. Op. at 26-29 (applying conventional tools of statutory interpretation). And in declining to recognize a freestanding jus cogen exception to foreign-official immunity, the Court began by considering caselaw from other Circuits, related D.C. Circuit precedent, the reasoning of other judges on this court, and the logical and policy concerns with the plaintiffs' position. Id. at 22-24. Only then did the Court go on to consider the fact that the Executive Branch had never recognized a jus cogens exception, and the “political, strategic, and legal considerations” behind that decision. Id. at 24-25. No. principle of law, however, prohibits the Court from considering the views of the Executive Branch as persuasive, particularly in the foreign-affairs context where the Supreme Court often attaches significant weight to such views. See Republic of Austria v. Altmann, 541 U.S. 677, 689 (2004) (“In accordance with Chief Justice Marshall's observation that foreign sovereign immunity is a matter of grace and comity rather than a constitutional requirement, this Court has consistently deferred to the decisions of the political branches-in particular, those of the Executive Branch-on whether to take jurisdiction over particular actions against foreign sovereigns and their instrumentalities.” (alteration and internal quotation marks omitted)); see also Samantar, 560 U.S. at 312 (requiring courts to determine “whether the ground of immunity” sought “is one which it is the established policy of the State Department to recognize”) (alteration and internal quotation marks omitted); cf. First Nat. City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 768 (1972) (“[W]here the Executive Branch, charged as it is with primary responsibility for the conduct of foreign affairs, expressly represents to the Court that application of the act of state doctrine would not advance the interests of American foreign policy, that doctrine should not be applied by the courts.”).

         Once the Court's memorandum opinion is accurately read to consider, but not defer to, the views of the Executive Branch, many of the plaintiffs' remaining arguments fall away. For instance, the plaintiffs argue that leaving the scope of foreign-official immunity to the State Department violates the non-delegation doctrine, that the Court considered the views of previous State Departments when it should have focused on the views of the current State Department, and that the Court improperly consulted secondary materials by authors who lack the authority to speak for the Trump Administration.[1] Pls.' Mot. at 6-7. But all of these arguments assume- incorrectly-that the Court considered itself bound by the official positions of the State Department. It did not. It merely considered the informed and long-standing views of the executive branch ...


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