United States District Court, District of Columbia
JAMES R. MORIARTY, et al, Plaintiffs,
v.
HASHEMITE KINGDOM OF JORDAN, et al, Defendants.
MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
This
United States Foreign Sovereign Immunities Act
(“FISA”) case involves the deaths of three United
States Army Special Forces members at the entrance to a
Jordanian air base. Plaintiffs, surviving family of the
service members, allege that a First Sergeant in the
Jordanian military, Defendant Ma'Arek Al-Tawayha a/k/a
Abu Tayeh, wrongfully killed the service members in an act of
terrorism. Plaintiffs further allege that Defendant Hashemite
Kingdom of Jordan (“Jordan”) aided and abetted
the terrorist attack.
Defendant
Jordan has filed a [11] Motion to Dismiss arguing that this
Court lacks jurisdiction due to Defendant Jordan's
sovereign immunity. The Court has considered the parties'
submissions and has determined that Plaintiffs have not
established that this Court has subject matter jurisdiction
over Plaintiffs' claims against Defendant Jordan.
Plaintiffs' claims against Defendant Jordan only will
accordingly be DISMISSED WITH PREJUDICE.
I.
LEGAL STANDARD
This
case implicates the Foreign Sovereign Immunities Act
(“FSIA”). “The FSIA provides a basis for
asserting jurisdiction over foreign nations in the United
States.” Price v. Socialist People's Libyan
Arab Jamahiriya, 294 F.3d 82, 87 (D.C. Cir. 2002).
Pursuant to the FSIA, the Court has “original
jurisdiction” over “nonjury civil
action[s]” against foreign states “without regard
to amount in controversy” if the claims seek
“relief in personam with respect to which the foreign
state is not entitled to immunity either under sections
1605-1607 of this title or under any applicable international
agreement.” 28 U.S.C. § 1330(a). “[A]
foreign state is presumptively immune from the jurisdiction
of United States courts; unless a specified exception
applies, a federal court lacks subject-matter jurisdiction
over a claim against a foreign state.” Saudi Arabia
v. Nelson, 507 U.S. 349, 355 (1993).
II.
DISCUSSION
Plaintiffs
claim only one FSIA exception to Defendant Jordan's
sovereign immunity. Am. Compl., ECF No. 6, ¶ 6. Under
Section 1605(a)(1) of FSIA, a sovereign does not have
immunity from suit in cases “in which the foreign state
has waived its immunity either explicitly or by implication,
notwithstanding any withdrawal of the waiver which the
foreign state may purport to effect except in accordance with
the terms of the waiver.” 28 U.S.C. § 1605(a)(1).
While FSIA does not define waiver by implication, the United
States Court of Appeals for the District of Columbia Circuit
(“D.C. Circuit”) has explained that it
“follow[s] the virtually unanimous precedents
construing the implied waiver provision narrowly.”
Creighton Ltd. v. Gov. of the State of Qatar, 181
F.3d 118, 122 (D.C. Cir. 1999) (internal quotation marks
omitted).
In
order for the Court to find that Defendant Jordan has
impliedly waived its sovereign immunity, Defendant Jordan
must have “intended to waive its sovereign
immunity.” Id. And, Defendant Jordan must have
“at some point indicated its amenability to suit”
in the United States. Princz v. Fed. Republic of
Germany, 26 F.3d 1166, 1174 (D.C. Cir. 1994). In
determining what types of actions constitute an implied
waiver of sovereign immunity, the D.C. Circuit has looked to
the House Report on the waiver provision of FSIA. The House
Report explains that there is an intent to waive sovereign
immunity “where a foreign state has agreed to
arbitration in another country or where a foreign state has
agreed that the law of a particular country should govern a
contract. An implicit waiver would also include a situation
where a foreign state has filed a responsive pleading in an
action without raising the defense of sovereign
immunity.” H.R. Rep. No. 94-1487, at 18 (1976),
reprinted in 1976 U.S.C.C.A.N. 6604, 6617. While
these examples are not the only acts that can show an intent
to waive sovereign immunity, the D.C. Circuit has “been
reluctant to stray beyond these examples when considering
claims that a nation has implicitly waived its defense of
sovereign immunity.” World Wide Minerals, Ltd. v.
Republic of Kazakhstan, 296 F.3d 1154, 1161 n.11 (D.C.
Cir. 2002) (internal quotation marks omitted).
Here,
Plaintiffs do not rely on any of the examples from the House
Report to establish an implied waiver of sovereign immunity.
Instead, as evidence of an implied waiver of sovereign
immunity, Plaintiffs point to the Status of Forces Agreement
(“SOFA”) in place between Jordan and the United
States. Under the SOFA, United States military personally are
“accorded the same status as that provided to the
technical and administrative staff of the United States
Embassy and [] they may enter and exit Jordan with United
States Government identification and with collective or
individual travel orders.” Am. Compl., ECF No. 6,
¶ 118 (quoting U.S. Embassy Note No. 261 (April 4,
1996); accepted by Jordan via MK/3/Z1/366 (April 10, 1996)
(SOFA)).[1] Plaintiffs contend that the phrase
“technical and administrative staff of the United
States Embassy” is a term of art which references the
Vienna Convention, to which both the United States and Jordan
are parties. Id. at ¶ 122. Under the Vienna
Convention, “technical and administrative staff”
are “members of the Mission.” Id. at
¶ 119 (citing Vienna Convention, art. 1(b); see
also art. 1(c) and 1(f)). And, “members of the
mission” are “inviolable. … The receiving
State shall treat [them] with due respect and shall take all
appropriate steps to prevent any attack on [their] person,
freedom or dignity.” Id. at ¶ 120
(quoting Vienna Convention, art. 29). Additionally,
“the receiving State shall ensure to all members of the
mission freedom of movement and travel in its
territory.” Id. at ¶ 121 (quoting Vienna
Convention, art. 26).
Plaintiffs
go on to explain that, under the terms of the SOFA, the
murdered service members “were entitled to ‘due
respect' as ‘members of the mission' thus
creating a duty on the part of Defendant Jordan ‘to
take all appropriate steps to prevent any attack on [their]
person, freedom or dignity' under the admonition of
customary international law.” Id. at ¶
123. Plaintiffs further contend that “[b]y freely
undertaking the obligation to accord diplomatic treatment to
the members of the United States military operating in
Jordan, Defendant Jordan implicitly waived its right to
assert sovereign immunity when individuals within the
Jordanian chain of command engaged in a deliberate attack
resulting in the death of three Americans who were entitled
to diplomatic protection by Defendant Jordan.”
Id. at ¶ 124.
Plaintiffs
take pains to assure the Court that they are not relying on
the Vienna Convention as evidence of an implied waiver of
sovereign immunity. Pls.' Opp'n, ECF No. 12, 5
(“At no point have Plaintiffs argued that the Vienna
Convention, as an international agreement, waives
Jordan's sovereign immunity.”). Plaintiffs
disavowal of the Vienna Convention as grounds for implied
waiver is reasonable as courts have determined that sovereign
immunity is not impliedly waived through alleged violations
of the Vienna Convention because “the Vienna Convention
make[s] no reference to a waiver of sovereign
immunity.” Travel Assoc., Inc. v. Kingdom of
Swaziland, No. 89-1235, 1990 WL 134512, *2 (D.D.C. Aug.
30, 1990). Instead, Plaintiffs insist that the Vienna
Convention merely “provides the definitional context
for terms used in the” SOFA regarding treatment of
United States service members in Jordan. Pls.' Opp'n,
ECF No. 12, 5-6. According to Plaintiffs, violation of the
Vienna Convention in the manner alleged constitutes a
violation of the SOFA, which waives sovereign immunity.
Id.
However,
Plaintiffs fail to establish that the SOFA impliedly waived
Defendant Jordan's immunity from suit. Plaintiffs provide
three arguments for distinguishing the SOFA from the Vienna
Convention and demonstrating its potential to waive sovereign
immunity. First, Plaintiffs contends that the SOFA was an
implied waiver because “it is a bilateral agreement
between two countries.” Id. at 6. While this
statement is factually correct, Plaintiffs fail to explain
why this fact would have any legal bearing on the Court's
analysis. Courts have declined to find implied waiver in
bilateral agreements just as they have declined to find
implied waiver in multilateral agreements. See Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,
442-43 (1989) (declining to find implied waiver based on
bilateral agreement between United States and Liberia);
Strange v. Islamic Republic of Iran, 320 F.Supp.3d
92, 98-99 (D.D.C. 2018) (declining to find implied waiver
based on bilateral agreement between United States and
Afghanistan).
Second,
Plaintiffs argue that the SOFA is an implied waiver of
immunity because “it sets forth how Jordan is to treat
United States military personnel in Jordan in connection with
their official duties.” Pls.' Opp'n, ECF No.
12, 6. Again, Plaintiffs argument is factually correct. But,
simply establishing standards of treatment for a specified
group does not imply an intent to waive sovereign immunity.
See Odhiambo v. Republic of Kenya, 764 F.2d 31, 35
(D.C. Cir. 2014) (finding that the Convention Relating to the
Status of Refugees did not impliedly waive Kenya's
sovereign immunity as the “ambiguous and generic
language of the Refugee Convention falls far short of the
exacting showing required for waivers of foreign sovereign
immunity”); see also Gutch v. Fed. Republic of
Germany, 444 F.Supp.2d 1, 8-9 (D.D.C. 2006) (finding no
implied waiver of sovereign immunity despite previously
discussing an agreement setting forth “conditions under
which members of the Allied Forces reside in Germany”),
disagreed with on other grounds in Nemariam v. Fed.
Democratic Republic of Ethiopia, 491 F.3d 470 (D.C. Cir.
2007). While the SOFA does set forth general standards
pertaining to the treatment of United States service members
in Jordan, the Court cannot find a waiver of sovereign
immunity based on merely setting “forth substantive
rules of conduct.” Amerada Hess, 488 U.S. at
442. The SOFA contains no mention of suit being brought in
the United States for violations of the standards of
treatment, and the Court cannot “see how a foreign
state can waive its immunity under § 1605(a)(1) by
signing an international agreement that contains no mention
of a waiver of immunity to suit in United States courts or
even the availability of a cause of action in the United
States.” Id.
Third,
Plaintiffs contend that the SOFA impliedly waived Defendant
Jordan's immunity because the SOFA “defines the
status of these individuals in Jordan.” Pls.'
Opp'n, ECF No. 12, 6. But, again, defining the status of
individuals in a foreign country is not sufficient to
impliedly waive sovereign immunity. More is required. The
SOFA does not contain any mention of how, or even whether,
United States service members can enforce the SOFA's
provisions. The only mention of enforcement states:
“The United States Government also proposes that both
governments waive any and all claims (other than contractual
claims) against each other for damage, loss or destruction of
property arising from any official duties governed by this
note. The United States government intends that the issue of
compensation for damage to property or personnel shall be
addressed in subsequent negotiations envisaged for the
purpose of reaching an agreement on a more comprehensive
bilateral Status of Forces Agreement.” Ex. A, ECF No.
12-2, 3. As such, the SOFA explicitly states that any issues
concerning compensation for damage to personnel are not
covered by the SOFA. Far from impliedly consenting to suit in
...