United States Court of Appeals, District of Columbia Circuit
September 6, 2018
from the United States District Court for the District of
Columbia (No. 1:16-cv-01547)
Merrill C. Godfrey argued the cause and filed the briefs for
N. Weiner argued the cause for appellees. With him on the
brief were Raul R. Herrera, R. Stanton Jones, and Stephen K.
Before: SRINIVASAN and WILKINS, Circuit Judges, and RANDOLPH,
Senior Circuit Judge.
WILKINS CIRCUIT JUDGE.
Circuit Judge: This case involves a lawsuit brought
under the Torture Victim Protection Act of 1991
("TVPA"), Pub. L. 102-256, 106 Stat. 73 (1992), by
an American citizen who sued two foreign officials from the
Democratic Republic of the Congo ("DRC") for
alleged torture over a six-week period. Plaintiff seeks
compensatory and punitive damages.
moved to dismiss for lack of subject matter jurisdiction;
lack of personal jurisdiction; and insufficient service of
process. The District Court granted the motion to dismiss,
holding the court lacked subject matter jurisdiction because
the defendants are immune under the common law foreign
official immunity doctrine.
reasons set forth below, we conclude that Defendants are not
entitled to foreign official immunity under the common law.
Because such immunity does not apply in this case, we vacate
the ruling of the District Court dismissing for lack of
subject matter jurisdiction and remand for further
proceedings. In the opinion by Senior Judge Randolph, which
is joined in relevant part by Judge Srinivasan, we provide
the alternative holding that the TVPA displaces conduct-based
immunity in this context.
following facts are taken from the complaint and assumed true
on review of Defendants' motion to dismiss.
Scandinavian Satellite Sys., AS v. Prime TV Ltd.,
291 F.3d 839, 844 (D.C. Cir. 2002). In April 2016, Plaintiff
Darryl Lewis, an American citizen, was in the DRC working as
an "unarmed security advisor" to Moise Katumbi.
J.A. 4. Katumbi, the former governor of the Katanga Province,
was running for president of the DRC. In his complaint,
Plaintiff asserts that, on April 24, 2016, he was traveling
by car with a colleague in Lubumbashi when he was stopped by
a local police officer near a political rally. Lewis, his
colleague, and colleagues in a separate vehicle were detained
by the National Intelligence Agency, Agence Nationale de
Renseignements ("ANR"). Plaintiff describes being
physically assaulted during the arrest process and being
accused of being an American mercenary soldier, which he
denies. Lewis and his colleagues were then transported to a
local jail, where ANR members continued to assault them
during a lengthy interrogation. The following morning, they
were transported by air to Kinshasa, where Lewis was
incarcerated and interrogated daily for six weeks. Plaintiff
alleges that he was interrogated daily by ANR members for
approximately sixteen hours a day and was intentionally
starved and denied sleep and basic hygienic necessities.
claims that Defendant Kalev Mutond, General Administrator of
the ANR, was involved in his detention in Kinshasa, at one
point warning him: "Don't let me find out you're
a mercenary." J.A. 7. Plaintiff further claims that
Defendant Alexis Thambwe Mwamba, DRC Minister of Justice,
publicly accused him of being a mercenary sent to assassinate
President Joseph Kabila during a press conference on May 4,
2016, claiming to have "documented proof." J.A. 7.
The following day on May 5, 2016, the U.S. Embassy in
Kinshasa allegedly issued a statement condemning the remarks
concerning Lewis and mercenary activities. Lewis was released
on June 8, 2016, having never been charged with a crime.
contends that Defendants are liable under the TVPA. The TVPA
creates an express cause of action against "[a]n
individual who, under actual or apparent authority, or color
of law, of any foreign nation . . . subjects an individual to
torture.'' 28 U.S.C. § 1350 (note) sec. 2(a).
Plaintiff's complaint alleges that "Defendants at
all times used their respective positions of authority to act
under apparent authority or color of law of the DRC with
respect to the actions alleged in this complaint." J.A.
11. Rather than order his release from custody and protect
him from torture, Plaintiff argues, Defendants enabled the
abuses described in the complaint.
moved to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) of the Federal Rules of Civil Procedure,
claiming that Plaintiff's complaint alleges acts
exclusively taken in Defendants' official capacity.
Because foreign officials enjoy immunity from suits based on
official acts committed in their official capacities,
Defendants argued, the District Court lacked jurisdiction.
The District Court agreed and granted Defendants' motion
to dismiss. Lewis v. Mutond, 258 F.Supp.3d 168, 172
(D.D.C. 2017). Plaintiff timely appealed.
Court reviews de novo the District Court's
dismissal for lack of subject-matter jurisdiction. Simon
v. Republic of Hungary, 812 F.3d 127, 135 (D.C. Cir.
2016). The defendant bears the burden of proving foreign
official immunity. Cf. Phoenix Consulting Inc. v.
Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)
(explaining that a foreign state defendant who asserts the
defense of immunity under the Foreign Sovereign Immunities
Act "bears the burden of proving that the
plaintiff's allegations do not bring its case within a
statutory exception to immunity").
this case involves foreign officials - not foreign states -
the issue of immunity is governed by the common law, not the
Foreign Sovereign Immunities Act ("FSIA"). See
Samantar v. Yousuf, 560 U.S. 305, 325 (2010) (noting
that a case "in which respondents have sued petitioner
in his personal capacity . . . is properly governed by the
common law"). The doctrine of common law foreign
immunity distinguishes between two types of immunity:
status-based and conduct-based immunity. Status-based
immunity is reserved for diplomats and heads of state and
attaches "regardless of the substance of the
claim." Chimène I. Keitner, The Common Law of
Foreign Official Immunity, 14 Green Bag 2d 61, 64
(2010); see also Yousuf v. Samantar, 699 F.3d 763,
774 (4th Cir. 2012). Conduct-based immunity is afforded to
"any  [p]ublic minister, official, or agent of the
state with respect to acts performed in his official capacity
if the effect of exercising jurisdiction would be to ...