Does 1-5 v. Obiano

UNITED STATES DISTRICT COURT January 17, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

JANE DOES 1–5, §

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Plaintiffs. §

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V. § CIVIL ACTION NO. 4:23-cv-00813

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WILLIE OBIANO, §

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Defendant. §

MEMORANDUM AND RECOMMENDATION

Pending before me is Defendant’s Opposed Motion to Dismiss Plaintiffs’

Complaint. Dkt. 21. Having reviewed the briefing, the record, and the applicable

law, I recommend that the motion be GRANTED.

BACKGROUND

This case arises out of a long-running conflict between the Nigerian

government and the Biafran people, who occupy Southeast Nigeria. In 1967, the

Biafrans declared independence from Nigeria, forming the Republic of Biafra. The

Nigerian military immediately attempted to reclaim the territory of Biafra,

sparking the Nigerian Civil War. The brutal conflict resulted in the deaths of

between 500,000 and 2 million people, most from starvation. In 1970, the war

ended with the surrender of the Biafrans. The broader conflict, however, has

continued to simmer.

Formed in 2012, the Indigenous People of Biafra (“IPOB”) is a pro-Biafran

organization that aims to establish the independent state of Biafra. According to

the Complaint, the IPOB held rallies supporting the restoration of Biafran

sovereignty in Nnewi, Anambra State, Nigeria on August 9, 2020 and October 23,

2020. Both events reportedly turned bloody when Nigerian military forces

indiscriminately shot at peaceful demonstrators. Plaintiffs allege that the Nigerian

military forces who actively participated in this campaign of violence were acting

under the command and control of Willie Obiano (“Obiano”), the then-Governor

of Anambra State, Nigeria.

Jane Does 1–51 (collectively, “Plaintiffs”) are the surviving wives of five men

who were purportedly killed at the August and October 2020 protests. Plaintiffs

have sued Obiano—who now lives in Spring, Texas—under the Torture Victim

Protection Act of 1991 (“TVPA”) “for the extrajudicial killings [of their husbands]

under color of Nigerian law by Nigerian military forces under [Obiano]’s command

and control.” Dkt. 1 at 1. Plaintiffs seek compensatory damages, punitive damages,

and attorney’s fees.

Obiano has filed a Motion to Dismiss Plaintiffs’ Complaint. Obiano advances

four independent reasons this case should be dismissed: (1) lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1) based on the foreign

official immunity doctrine; (2) lack of jurisdiction under Rule 12(b)(1) based on the

political question doctrine; (3) Plaintiffs’ failure to exhaust their administrative

remedies under the TVPA; and (4) Plaintiffs’ failure to state a claim under Rule

12(b)(6). Because I must consider any jurisdictional attack first, I begin by

analyzing Obiano’s assertion that this Court lacks subject matter jurisdiction based

on foreign official immunity. Because I conclude that Obiano is entitled to foreign

official immunity, I need not address the other reasons Obiano offers for dismissal.

RULE 12(b)(1) LEGAL STANDARD

“Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure

allow a party to challenge the subject matter jurisdiction of the district court to

hear a case.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). When

a party challenges subject matter jurisdiction and simultaneously seeks dismissal

with other Rule 12 motions, the court must consider the jurisdictional attack first.

See id. “This requirement prevents a court without jurisdiction from prematurely

dismissing a case with prejudice.” Id. “[F]oreign-official immunity is a question of

1 In the Complaint, Plaintiffs are first referred to as “Jane Does” in the style of the case,

then later referred to as “Jane Roes.” I will refer to them as “Jane Does.”

subject-matter jurisdiction.” Doe 1 v. Buratai, 318 F. Supp. 3d 218, 226 (D.D.C.

2018). As United States District Judge Dabney L. Friedrich explained in a virtually

identical case:

When ruling on a Rule 12(b)(1) motion, the court must treat the

plaintiff’s factual allegations as true and afford the plaintiff the benefit

of all inferences that can be derived from the facts alleged. Those

factual allegations, however, receive closer scrutiny than they would

in a Rule 12(b)(6) context, and particularly because immunity

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. Also,

unlike when evaluating a Rule 12(b)(6) motion, a court may consider

materials outside the pleadings to evaluate whether it has jurisdiction,

such as the complaint supplemented by undisputed facts in the

record. Without subject-matter jurisdiction, the court must dismiss

the action.

Id. (cleaned up).

ANALYSIS

A. THE LEGAL LANDSCAPE FOR TVPA CLAIMS AND FOREIGN OFFICIAL

IMMUNITY

1. The TVPA

The TVPA provides a civil cause of action to torture victims and

representatives of victims of extrajudicial killings. It states:

(a) LIABILITY.—An individual who, under actual or apparent

authority, or color of law, of any foreign nation—

(1) subjects an individual to torture shall, in a civil action, be

liable for damages to that individual; or

(2) subjects an individual to extrajudicial killing shall, in a civil

action, be liable for damages to the individual’s legal

representative, or to any person who may be a claimant in an

action for wrongful death.

Pub. L. No. 102–256, § 2(a), 106 Stat. 73 (Mar. 12, 1992) (codified as a note to 28

U.S.C. § 1350). The TVPA defines an “extrajudicial killing” as

a deliberated killing not authorized by a previous judgment

pronounced by a regularly constituted court affording all the judicial

guarantees which are recognized as indispensable by civilized peoples.

Such term, however, does not include any such killing that, under

international law, is lawfully carried out under the authority of a

foreign nation.

Id. § 3(a).

2. Foreign Official Immunity

Foreign official immunity is a common law doctrine, first discussed in The

Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812). In Schooner

Exchange, the Supreme Court applied the long-standing principle that ministers

of foreign sovereigns are exempt from the jurisdiction of another nation to hold

“that the courts of the United States lack jurisdiction over an armed ship of a

foreign state found in our port.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S.

480, 486 (1983). The “narrow holding of The Schooner Exchange . . . came to be

regarded as extending virtually absolute immunity to foreign sovereigns,” albeit

“as a matter of grace and comity on the part of the United States, and not a

restriction imposed by the Constitution.” Id.

Under the common law,2 foreign officials may be entitled to two types of

immunity: status-based immunity or conduct-based immunity. See Doe 1, 318 F.

Supp. 3d at 230.

Status-based immunity is available to diplomats and head of state and

shields them from legal proceedings by virtue of [their] current official

position, regardless of the substance of the claim. Conduct-based

immunity, at issue in this case, is available to any public minister,

official, or agent of the foreign state with respect to acts performed in

his official capacity if the effect of exercising jurisdiction would be to

enforce a rule of law against the state.

2 After the 1976 enactment of the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.

§ 1330, 1602 et seq., courts began to analyze immunity for foreign officials under that

statute. That practice ended when the Supreme Court decided Samantar v. Yousuf, 560

U.S. 305 (2010), which held that determinations of sovereign immunity for foreign

officials are governed by the common law, not the FSIA. See id. at 320–26.

Id. (cleaned up).3 In other words, “conduct-based immunities shield individuals

from legal consequences for acts performed on behalf of the state during their

tenure in office.” Sikhs for Just. v. Singh, 64 F. Supp. 3d 190, 193 (D.D.C. 2014)

(cleaned up).

Determination of foreign official immunity is a two-step process:

First, the foreign-official defendant can request a suggestion of

immunity from the State Department. If the request is granted, the

district court surrenders its jurisdiction. But in the absence of

recognition of the immunity by the [State Department], the district

court moves to the second step, in which a district court has authority

to decide for itself whether all the requisites for such immunity

existed. In making that decision, a district court inquires whether the

ground of immunity is one which it is the established policy of the

State Department to recognize.

See Doe 1, 318 F. Supp. 3d at 230 (cleaned up). My inquiry during the second step

will result in a finding of immunity if (1) Obiano was a public minister, official, or

agent of Nigeria; (2) he acted in his official capacity; and (3) “exercising

jurisdiction would ‘enforce a rule of law against the state.’” Id. at 231 (quoting

RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW § 66(f) (1965)).

B. OBIANO IS ENTITLED TO FOREIGN OFFICIAL IMMUNITY

Plaintiffs acknowledge that Obiano served as Governor of Anambra State

from March 17, 2014 to March 17, 2022. Because Obiano’s allegedly illegal conduct

occurred while he was in office, I must determine whether Obiano is entitled to

conduct-based immunity.4

3 Doe 1 involved claims by Nigerian nationals under the TVPA against officials in the

Nigerian government, including Obiano, stemming from alleged torture and extrajudicial

killings of protesters in Nigeria. In a well-reasoned opinion, Judge Friedrich held that

(1) the court could not exercise personal jurisdiction over the Nigerian officials as they

had no connection to the District of Columbia; and (2) the Nigerian officials were entitled

to conduct-based foreign official immunity. See id. Because the United States Court of

Appeals for the District of Columbia affirmed Judge Friedrich’s dismissal for lack of

personal jurisdiction, it did not address the foreign official immunity issue. See Doe 1 v.

Buratai, 792 F. App’x 6, 10 (D.C. Cir. 2019).

4 Status-based immunity is not available to Obiano because he is not a current diplomat

or head of state. See Doe 1, 318 F. Supp. 3d at 230.

At step one, I ask whether Obiano has requested a suggestion of immunity

from the State Department. He has not. Moving to step two, I ask whether such a

grant of immunity is something the State Department would recognize under

established policy. The three aforementioned factors indicate such a grant of

immunity is appropriate.

First, it is undisputed that Obiano was Governor of Anambra State at the

time of the events at issue, meaning he was a public minister, official, or agent of

Nigeria.

Second, it is also undisputed that Obiano’s alleged actions were taken in his

official capacity. Indeed, Plaintiffs admit that “Obiano possessed command

responsibility and effective control over the Nigerian soldiers complicit in the

extrajudicial killing of John Does 1-5 under color of Nigerian law acting in concert

with Nigerian President Muhammadu Buhari or his agents.” Dkt. 1 at 4. Plaintiffs

further allege that Obiano “approved all federal military operations” in Anambra

State. Id. at 8. Taking Plaintiffs’ allegations as true, Obiano clearly acted in his

official capacity.

Third, I ask whether “exercising jurisdiction would have the effect of

enforcing a rule of law against Nigeria.” Doe 1, 318 F. Supp. 3d at 233. This element

allows for immunity when “a judgment against the official would bind (or be

enforceable against) the foreign state.” Lewis v. Mutond, 918 F.3d 142, 146 (D.C.

Cir. 2019). Plaintiffs are not suing Obiano in his individual capacity. On the

contrary, the Complaint repeatedly connects Obiano’s alleged actions to his official

capacity as Governor of a Nigerian state and the Nigerian government’s decades-

long persecution of the Biafrans. Plaintiffs assert that Obiano acted in concert with

the President of Nigeria or his agents. Further, Plaintiffs allege that “[p]ublicly

disclosing the true names of [Plaintiffs] or [their deceased husbands] or the

granular details of the extrajudicial killing[s] . . . would expose [Plaintiffs] to the

risk of immediate assassination by the Federal Government of Nigeria.” Dkt 1. at

2–3. These alleged facts indicate that my exercise of jurisdiction “would affect how

Nigeria’s government, military, and police function, regardless [of] whether the

damages come from [Obiano’s] own wallet[] or Nigeria’s coffers. By interfering

with Nigeria’s government, a decision would effectively enforce a rule of law

against Nigeria.” Doe 1, 318 F. Supp. 3d at 233. Put another way, “a decision by this

Court on the legality of [Obiano’s] actions would amount to a decision on the

legality of Nigeria’s actions.” Id. As such, I find that the State Department would

recognize a grant of immunity in this situation. Thus, Obiano is entitled to conduct-

based foreign official immunity.

Some commentators have suggested that the TVPA abrogates common law

foreign official immunity. See Beth Stephens, The Modern Common Law of

Foreign Official Immunity, 79 FORDHAM L. REV. 2669, 2704 (2011) (“A blanket

grant of immunity to foreign officials who act under color of law would contradict

the [TVPA].”). I respectfully disagree. “The text of the TVPA does not mention

immunity, and statutes are normally assumed not to displace the common law by

implication.” Curtis A. Bradley, Conflicting Approaches to the U.S. Common Law

of Foreign Official Immunity, 115 AM. J. INT'L L. 1, 17 (2021); see also Samantar,

560 U.S. at 320 (“The canon of construction that statutes should be interpreted

consistently with the common law helps us interpret a statute that clearly covers a

field formerly governed by common law.”); Pierson v. Ray, 386 U.S. 547, 554

(1967) (holding that Congress must give “clear indication that [it] meant to abolish

wholesale all common-law immunities” in a statute). Because “the TVPA is silent

as to whether any common law immunities are abrogated,” I must assume that

common law principles of immunity are incorporated into the TVPA. Dogan v.

Barak, 932 F.3d 888, 895 (9th Cir. 2019) (holding that the TVPA does not

expressly or impliedly abrogate foreign official immunity).

C. AJuUS COGENS EXCEPTION DOES NOT APPLY TO OBIANO’S FOREIGN

OFFICIAL IMMUNITY

“(T]he term ‘jus cogens’ (literally, ‘compelling law’) refers to norms that

command peremptory authority, superseding conflicting treaties and custom.”

Evan J. Criddle & Evan Fox-Decent, A Fiduciary Theory of Jus Cogens, 34 YALE J.

INTL L. 331, 331 (2009). Jus cogens norms “include, at a minimum, the

prohibitions against genocide; slavery or slave trade; murder or disappearance of

individuals; torture or other cruel, inhuman, or degrading treatment or

punishment,” and other heinous acts. Id. (citing RESTATEMENT (THIRD) OF FOREIGN

RELATIONS OF THE UNITED STATES § 702 cmts. d—-i, § 102 cmt. k (1987)).

Plaintiffs argue that “violations of jus cogens norms of international law are

never shielded from accountability” and constitute an exception to foreign official

immunity. Dkt. 23 at 8. Plaintiffs rely heavily on Yousuf v. Samantar, 699 F.3d

763 (4th Cir. 2012), an appellate decision holding that “under international and

domestic law, officials from other countries are not entitled to foreign official

immunity for jus cogens violations, even if the acts were performed in the

defendant’s official capacity.” Id. at 777. Although the Fourth Circuit in Yousuf

carved out a jus cogens exception to foreign official immunity, that decision

appears to be an outlier; other jurisdictions—including the Second, Seventh, and

Ninth Circuits—have expressly rejected such an exception.) See, e.g., Dogan, 932

F.3d at 896 (declining “to hold that foreign officials are not immune from suit for

violations of jus cogens norms”); Matar v. Dichter, 563 F.3d 9, 14 (2d Cir. 2009)

(“[T]here is no general jus cogens exception to [foreign official] immunity.”); Ye v.

Zemin, 383 F.3d 620, 627 (7th Cir. 2004) (“The Executive Branch’s determination

that a foreign leader should be immune from suit even when the leader is accused

of acts that violate jus cogens norms is established by a suggestion of immunity.”);

see also Doe 1, 318 F. Supp. 3d at 234 (“Although the D.C. Circuit has not directly

5 Some courts analyzing foreign official immunity under the FSIA—pre-Samantar—

declined to apply a jus cogens exception. See, e.g., Belhas v. Ya’alon, 515 F.3d 1279, 1287

(D.C. Cir. 2008) (“[T]he FSIA contains no unenumerated exception for violations of jus

cogens norms.”); Siderman de Blake v. Republic of Arg., 965 F.2d 699, 718—719 (oth Cir.

1992) (finding no jus cogens exception within the text or legislative history of the FSIA).

“[A]s the Supreme Court noted in Samantar, rules that appellate courts developed for

foreign official immunity under the FSIA ‘may be correct as a matter of common-law

principles.” Giraldo v. Drummond Co., 808 F. Supp. 2d 247, 250 (D.D.C. 2011) (quoting

Samantar, 560 U.S. at 322 n.17)).

addressed the issue, the circuit’s caselaw indicates that jus cogens allegations do

not defeat foreign-official immunity under the common law.”).

The Fifth Circuit has yet to address whether a jus cogens exception to foreign

official immunity exists. The Fifth Circuit has, however, discussed a possible jus

cogens exception to sovereign immunity under the Alien Tort Statute (“ATS”). In

Hernandez v. United States, 785 F.3d 117 (5th Cir. 2015) (en banc), Judge

Catherina Haynes, joined by two other judges, issued a concurrence endorsing the

idea of a jus cogens exception to sovereign immunity under the ATS. See id. at 139–

42 (Haynes, J., concurring). Favorably citing the Fourth Circuit’s Yousuf decision,

Judge Haynes reasoned that because jus cogens violations are so heinous that a

sovereign nation cannot authorize them, the sovereign would lack immunity for

those violations. See id. at 140. In response, Judge Edith Jones, joined by three

judges, wrote that such an exception would “create a breathtaking expansion of

federal court authority” and “abrogate federal sovereign immunity contrary to

clearly established law.” Id. at 128–29 (Jones, J., concurring). Judge Jones also

wrote—quite persuasively—that Judge Haynes’s comparisons to foreign official

immunity were inapposite to the Fifth Circuit’s discussion of American sovereign

immunity. The Supreme Court, however, vacated the Fifth Circuit’s en banc

opinion on separate grounds in Hernandez v. Mesa, 582 U.S. 548 (2017).

With no binding Fifth Circuit precedent to guide me, I must determine

whether to follow the Fourth Circuit’s approach and find that a jus cogens

exception to foreign official immunity exists, or to side with the majority of courts

that have refused to recognize a jus cogens exception. After carefully reviewing the

case law and academic literature, I decline to adopt a jus cogens exception. I am

persuaded by the reasoning set forth by those courts that have adopted the

majority approach that there is no jus cogens exception to foreign official

immunity. As United States District Judge Otis D. Wright II observed:

The Court certainly agrees in principle that immunity doctrines

should not shield persons who violate jus cogens norms. However,

allowing such an exception would effectively eviscerate the immunity

for all foreign officials. The question whether there was actually a jus

cogens violation is inextricably intertwined with the merits of the

underlying claim; thus, having a jus cogens exception would merge

the merits inquiry with the immunity inquiry. This causes two

problems. First, foreign official immunity is not just a defense to

liability, but an immunity from suit—i.e., an immunity from trial and

the attendant burdens of litigation. If a court had to reach the merits

to resolve the immunity question, there would effectively be no

immunity. This would be particularly problematic in lawsuits arising

from military operations, as any death resulting from such operations

could give rise to a plausible allegation that jus cogens norms were

violated. Second, merging the question of immunity with the merits

also undermines the original purpose of foreign official immunity: to

avoid affronting the sovereignty of a foreign nation by passing

judgment on their official government acts, which would inevitably

happen if courts had to reach the merits to resolve immunity.

Dogan v. Barak, No. 2:15-cv-08130, 2016 WL 6024416, at *10 (C.D. Cal. Oct. 13,

2016) (cleaned up), aff'd, Dogan, 932 F.3d 888; see also Doe 1, 318 F. Supp. 3d at

234 (“[A] jus cogens exception would eviscerate any protection that foreign official

immunity affords because an exception merges the merits of the underlying claim

with the issue of immunity.” (quotations omitted)); Bradley, supra, at 11 (“[SJuch

an exception would unduly infuse questions about the merits of the plaintiffs claim

into the issue of immunity and thereby undercut immunity’s protective function.”).

Notably, the Executive Branch has not recognized a jus cogens exception to

immunity. See Matar, 563 F.3d at 14; Doe 1, 318 F. Supp. 3d at 235. This is

important because the common law immunity inquiry focuses on what conduct the

Executive Branch has determined should be immunized. See Republic of Mex. v.

Hoffman, 324 U.S. 30, 36 (1945). As the Seventh Circuit explained, pre-Samantar:

Just as the FSIA is the Legislative Branch’s determination that a

nation should be immune from suit in the courts of this country, the

immunity of foreign leaders remains the province of the Executive

Branch. The Executive Branch’s determination that a foreign leader

should be immune from suit even when the leader is accused of acts

that violate jus cogens norms is established by a suggestion of

immunity.

10

Ye, 383 F.3d at 627. One reason the Executive Branch opposes a jus cogens

exception is a genuine concern that such an exception could threaten immunity for

United States officials in foreign courts. See John B. Bellinger III, The Dog that

Caught the Car: Observations on the Past, Present, and Future Approaches of the

Office of the Legal Adviser to Official Acts Immunities, 44 VAND. J. TRANSNAT’L L.

819, 833 (2011) (“Once the United States agrees to lift immunity for foreign

government officials, it begins to craft state practice that could expose U.S. officials

to suits abroad. Plaintiffs [in foreign nations] would certainly allege that certain

actions by U.S. officials violate jus cogens norms, and would argue that, as a result,

such U.S. officials are not entitled to immunity.”). Regardless of its underlying

policy reasons, “[t]he executive branch’s position [opposing] a jus cogens

exception . . . weighs heavily against the Court adopting an exception on its own.”

Doe 1, 318 F. Supp. 3d at 236.

For these reasons, I conclude there is no jus cogens exception to foreign

official immunity. Because Obiano is entitled to foreign official immunity, this case

should be dismissed for lack of subject matter jurisdiction.

* * *

Make no mistake: Plaintiffs allege truly appalling conduct. The murder of

innocent people for their political or religious beliefs is never acceptable anywhere,

in any form or fashion. Put more eloquently, “torture, extrajudicial killings and

other forms of deliberate brutality, anytime, anywhere, pierce the inner core of

human baseness and cross the outer crusts of infamy.” Tachiona v. Mugabe, 169

F. Supp. 2d 259, 316 (S.D.N.Y. 2001). The TVPA is a legislative decision to

“impose[] liability on officials who torture or kill under ‘actual’ authority,

‘apparent’ authority, or ‘color of law’ of a foreign nation and are unable to invoke

foreign-official immunity.” Doe 1, 318 F. Supp. 3d at 237. Practically speaking, the

TVPA “imposes liability on true outlaws, i.e., individuals who commit acts for

which no foreign sovereign is willing to accept responsibility—but not individuals

whose conduct is authorized.” Id. at 238. One court succinctly explained the policy

reason for allowing such a framework:

The purpose of diplomatic and head-of-state immunity is not to cover

up heinous deeds from coming to the light of day, or to protect a

nation’s leaders from accountability for their acts and, by shielding

them from reprisals, tacitly condone their wrongs. If there is a larger

end here to be served, for which accusations of grave misconduct as

between particular individuals may be momentarily set aside, it is in

the interest of comity among nations—to safeguard friendly relations

among sovereign states.

Tachiona, 169 F. Supp. 2d at 317. I understand, and appreciate, why some might

fundamentally disagree with the policy choice made by Congress to allow foreign

officials who engage in torture and indiscriminate killings to escape civil liability

so long as a foreign nation has authorized the conduct. But it is not my role to usurp

the legislative function. If Congress wants to set aside common law foreign official

immunity, it certainly can do so. I will not legislate from the bench.

CONCLUSION

For the reasons described above, I recommend that Defendant’s Opposed

Motion to Dismiss Plaintiffs’ Complaint (Dkt. 21) be GRANTED.

Plaintiffs also filed a Motion to Exclude Matters Outside the Pleadings in

Regards to Defendant’s 12(b)(6) Motion to Dismiss, or in the Alternative, to Permit

Plaintiffs Discovery According to the Docket Control Order (“Motion to Exclude”).

Dkt. 28. Because I recommend this case be dismissed for lack of subject matter

jurisdiction under Rule 12(b)(1), I do not reach the Rule 12(b)(6) arguments raised

by Obiano. As such, the Motion to Exclude is DENIED AS MOOT.

The parties have 14 days from service of this Memorandum and

Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); FED. R.

CIV. P. 72(b)(2). Failure to file timely objections will preclude appellate review of

factual findings and legal conclusions, except for plain error.

SIGNED this 17th day of January 2024.

______________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE