Darryl Lewis v. Kalev Mutond

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 6, 2018 Decided March 12, 2019

No. 17-7118

DARRYL LEWIS,

APPELLANT

v.

KALEV MUTOND, IN HIS INDIVIDUAL CAPACITY ONLY,

ADMINISTRATEUR GENERALE, AGENCE NATIONALE DE

RENSEIGNEMENTS, DEMOCRATIC REPUBLIC OF THE CONGO

AND ALEXIS TAMBWE MWAMBA, IN HIS INDIVIDUAL CAPACITY

ONLY, MINISTRE DE LA JUSTICE, GARDE DES SCEAUX ET

DROITS HUMAINS, DEMOCRATIC REPUBLIC OF THE CONGO,

APPELLEES

Appeal 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 appellant.

Robert N. Weiner argued the cause for appellees. With

him on the brief were Raul R. Herrera, R. Stanton Jones, and

Stephen K. Wirth.

Before: SRINIVASAN and WILKINS, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge WILKINS.

Concurring opinion filed by Circuit Judge SRINIVASAN.

Opinion concurring in the judgment filed by Senior Circuit

Judge RANDOLPH.

WILKINS, 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.

Defendants 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.

For the 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.

I.

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The 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.

Plaintiff 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

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concerning Lewis and mercenary activities. Lewis was

released on June 8, 2016, having never been charged with a

crime.

Plaintiff 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.

Defendants 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.

II.

This 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

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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”).

A.

Because 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 enforce a rule of law against the state.”

Restatement (Second) of Foreign Relations Law § 66(f) (1965)

(hereinafter Restatement); see also Matar v. Dichter, 563 F.3d

9, 14 (2d Cir. 2009); Samantar, 699 F.3d at 774.

As explained by the Supreme Court in Samantar, a two-

step procedure is used to determine whether a foreign official

is entitled to conduct-based foreign sovereign immunity.

Samantar, 560 U.S. at 311-12. At the first step, a foreign

official requests a “suggestion of immunity” from the State

Department and, if granted, the District Court is divested of its

jurisdiction. Id. at 311. If the State Department does not grant

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a suggestion of immunity, the District Court is authorized to

decide whether all the requisites for foreign-official immunity

exist. Id. at 311-12.

B.

We turn to the two-step procedure outlined in Samantar to

evaluate Defendants’ claim to conduct-based immunity. At

step one, see Samantar, 560 U.S. at 311-12, we conclude that

Defendants are not entitled to immunity. On August 9, 2016,

the DRC Ambassador to the United States sent a letter to the

United States Department of State denying Plaintiff’s

allegations and requesting that the State Department submit a

suggestion of immunity to the court. This request was

reiterated in a December 13, 2016 follow-up letter. However,

the State Department did not accede to the plea of the DRC,

and never issued a request that the District Court surrender its

jurisdiction.

At step two, we consider whether Defendants satisfy the

requisites for conduct-based immunity. The Supreme Court

has “expressed no view on whether Restatement [2d of Foreign

Relations] § 66 correctly sets out the scope of the common-law

immunity applicable to current or former foreign officials.”

Samantar, 560 U.S. at 321 n.15. Here, however, both parties

assume § 66 accurately sets out the scope of common-law

immunity for current or former officials, see Appellees’ Br. 14

& n.4, and we therefore proceed on that understanding without

deciding the issue. Assuming, as the parties do, that

Restatement § 66 captures the contours of common-law official

immunity, Defendants are not entitled to immunity.

Under Restatement § 66, the court considers three factors.

First, whether the actor is a public minister, official, or agent of

the foreign state. Restatement § 66(f). Second, whether the

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acts were performed in her official capacity. Id. And third,

whether exercising jurisdiction would serve to enforce a rule of

law against the foreign state. Id. To establish conduct-based

immunity, a defendant must establish all three factors.

Restatement § 66 cmt. b (“Public ministers, officials, or agents

of a state . . . do not have immunity from personal liability even

for acts carried out in their official capacity, unless the effect

of exercising jurisdiction would be to enforce a rule against the

foreign state.” (emphasis added)).

As a result, to enjoy conduct-based immunity as defined

by the Restatement, Defendants must satisfy the third factor by

proving that exercising jurisdiction in this case is tantamount

to enforcing a rule of law against the DRC itself. See

Restatement § 66(f). Defendants attempt to prove this, in part,

by arguing that “Plaintiff’s suit seeks to hold high-ranking

DRC government officials liable for official conduct carried

out entirely within the DRC.” Appellees’ Br. 30. This position

elides the second and third elements for establishing conduct-

based immunity. The second immunity element focuses on the

nature of Defendant’s acts and whether they were taken within

an “official capacity.” By contrast, the third element considers

whether the remedies sought by Plaintiff serve to enforce a rule

of law against the DRC. That element, as understood through

the lens of the small number of decisions speaking to the

existence and scope of common-law immunity, would allow

for immunity when a judgment against the official would bind

(or be enforceable against) the foreign state. See Beth

Stephens, The Modern Common Law of Foreign Official

Immunity, 79 FORDHAM L. REV. 2669, 2676-78 (2011)

(examining cases).

This approach is reinforced by the illustrations in the

Restatement commentary. For example, the Restatement

explains:

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X, an official of the defense ministry of state A,

enters into a contract in state B with Y for the

purchase of supplies for the armed forces of A.

A disagreement arises under the contract and Y

brings suit in B against X as an individual,

seeking to compel him to apply certain funds of

A in his possession to satisfy obligations of A

under the contract. X is entitled to the

immunity of A.

Restatement § 66, cmt. B(2).

Defendants have not proffered anything to show that

Plaintiff seeks to draw on the DRC’s treasury or force the state

to take specific action, as would be the case if the judgment

were enforceable against the state. Defendants in this case are

being sued in their individual capacities and Plaintiff is not

seeking compensation out of state funds. J.A. 2; see also

Appellant’s Br. 27 (“[T]he monetary liability sought here

against individuals . . . would have no effect on the state

treasury.”). Defendants argue that the effect on the DRC’s

treasury is “irrelevant” because “[e]xercising jurisdiction here

would compel the DRC’s sitting Minister of Justice and

General Director of the National Intelligence Agency to defend

their handling of a high-profile domestic security matter in U.S.

courts.” Appellees’ Br. 32. Taking such foreign officials away

from their official duties in the DRC, Defendants argue, is a

“sufficient sanction to constitute enforcing a rule of law on the

DRC.” Appellees’ Br. 32 (alterations and quotations omitted).

But these collateral effects are too attenuated to be equated with

the direct fiscal impacts on the foreign state that are

contemplated by the Restatement. Cf. Edelman v. Jordan, 415

U.S. 651, 663 (1974) (“[E]ven though a State is not named a

party to the action, . . . [if] the action is in essence one for the

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recovery of money from the state, the state is the real,

substantial party in interest and is entitled to invoke its

sovereign immunity.” (citation omitted)). In cases like this

one, in which the plaintiff pursues an individual-capacity claim

seeking relief against an official in a personal capacity,

exercising jurisdiction does not enforce a rule against the

foreign state. Defendants are thus not entitled to the conduct-

based foreign official immunity. In view of our conclusion that

Defendants have not satisfied the necessary third element of

conduct-based immunity, we need not address Plaintiff’s

arguments relating to the first two elements.

III.

For these reasons, we vacate the District Court’s grant of

Defendant’s motion to dismiss for lack of subject matter

jurisdiction and remand for further proceedings. Defendants

argue that, even if the District Court has subject matter

jurisdiction, this Court should affirm on the basis that the court

lacks personal jurisdiction over them. Defendants claim they

do not have “any connection to the United States, and all of the

conduct at issue is alleged to have occurred entirely within the

DRC.” Appellees’ Br. 33 (citing Mwani v. bin Laden, 417 F.3d

1, 8 (D.C. Cir. 2005)); see also Fed. R. Civ. P. 4(k)(2).

Plaintiff’s memorandum in opposition to Defendants’ motion

to dismiss disagreed but requested jurisdictional discovery if

the court were inclined to agree with Defendants. See Second

Amendment Found. v. U.S. Conference of Mayors, 274 F.3d

521, 525 (D.C. Cir. 2001) (“Certainly, ‘a plaintiff faced with a

motion to dismiss for lack of personal jurisdiction is entitled to

reasonable discovery.’” (quoting El-Fadl v. Cent. Bank of

Jordan, 75 F.3d 668, 676 (D.C. Cir. 1996)) (alterations

omitted)). The District Court neither addressed Defendants’

personal jurisdiction argument nor ruled on Plaintiff’s request

for jurisdictional discovery. Lewis v. Mutond, 258 F. Supp. 3d

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168, 174-75 (D.D.C. 2017). We decline to decide the matter in

the first instance. Accordingly, on remand, the District Court

should consider the question of personal jurisdiction and

whether Plaintiff is entitled to jurisdictional discovery.

So ordered.

SRINIVASAN, Circuit Judge, concurring:

I fully join Judge Wilkins’s opinion, which explains that

if, as the parties assume, Restatement (Second) of Foreign

Relations Law § 66(f) sets out the scope of common-law,

conduct-based immunity for foreign officials, the defendants in

this case do not qualify for that immunity. I also agree with the

portion of Judge Randolph’s concurrence in the judgment

explaining that the Torture Victim Protection Act (TVPA)

subjects foreign officials to liability for acts undertaken in an

official capacity and thus displaces any common-law,

conduct-based immunity that might otherwise apply in the

context of claims under that Act. See Concurring Op. 3–4. In

my view, therefore, the defendants in this case do not qualify

for immunity for either of two reasons: (a) as Judge Wilkins

explains, they fall outside the scope of the common-law,

conduct-based immunity contemplated by Restatement § 66(f);

or (b) as Judge Randolph explains, they fall within the scope of

liability contemplated by the TVPA per the allegations in the

complaint.

RANDOLPH, Senior Circuit Judge, concurring in the judgment:

The court assumes that the immunity of the defendant

foreign officials under the Torture Victims Protection Act turns

on “the common law” and that the Restatement (Second) of

Foreign Relations Law of the United States § 66(f) (1965)1

embodies the governing common law.

I think both assumptions are dubious. Neither has been

tested in an adversary proceeding.

Consider first the proposition that, as the court assumes,

Restatement (Second) § 66(f)2 recites the common law. The

1

The Restatement (Second) was superseded by the Restatement

(Third) of Foreign Relations Law of the United States (1987). See

Beth Stephens, The Modern Common Law of Foreign Official

Immunity, 79 Fordham L. Rev. 2669, 2678 n.45 (2011). There may

be a plausible but oddly unexplained reason for invoking the older

Restatement version and ignoring the newer. I see no need to get into

this.

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“The immunity of a foreign state under the rule stated in § 65

extends to

(a) the state itself;

(b) its head of state and any person designated by him as a

member of his official party;

(c) its government or any governmental agency;

(d) its head of government and any person designated by him as

a member of his official party;

(e) its foreign minister and any person designated by him as a

member of his official party;

(f) any other public 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 enforce a rule of law

against the state;

(g) a corporation created under its laws and exercising functions

comparable to those of an agency of the state.”

Restatement (Second) § 66.

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common law is “the dominant consensus of common-law

jurisdictions.” Field v. Mans, 516 U.S. 59, 70 n.9 (1995).3 This

Restatement is titled “Foreign Relations Law of the United

States,” but it does not pretend to be a statement of “common

law.” Instead it sets forth “rules of international law as

distinguished from the rules of domestic law,” “[e]xcept as

otherwise indicated.” Restatement (Second) § 2(2).4 The

immunity provision of Restatement (Second) § 66(f) contains no

such exception, express or implied.

Restatement § 66(f) appears to be a distillation of scant case

law in this country, international treaties to which the United

States may or may not be a party, the writings of law professors

here and abroad, negotiated settlements of international disputes,

and other non-judicial sources such as actions of our Department

of State and perhaps comments in meetings of the American

Law Institute. Restatement (Second) § 1, comment c, explains

that the “paucity of adjudicated decisions in the international

3

Another definition of the common law, in a highly regarded

posting in the Federal Register, is this: “The common law is a body of

judge-made substantive rules, principles, and prescribed standards of

conduct.” Federal Trade Commission, Unfair or Deceptive

Advertising and Labeling of Cigarettes in Relation to the Health

Hazards of Smoking, 29 Fed. Reg. 8324, 8365 (July 2, 1964); see also

A. Raymond Randolph, Before Roe v. Wade: Judge Friendly’s Draft

Abortion Opinion, 29 Harv. J.L. & Pub. Pol’y 1035, 1044 (2006)

(“The common law judge analyzes past judicial decisions, considers

the reasons behind the decisions, comes up with a principle to explain

the cases, and then applies that principle to a new case.”).

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“Our duty is to enforce the Constitution, laws, and treaties of the

United States, not to conform the law of the land to norms of

customary international law.” United States v. Yunis, 924 F.2d 1086,

1091 (D.C. Cir. 1991).

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field has led to greater reliance on non-judicial sources than in

domestic law.” See also Restatement (Second) § 2, cmt. f.

If Restatement (Second) § 66(f) is not common law, and

does not purport to be, how then does one discover the real

common law? The answer is not obvious. It may well be that

there is not now and never was any common law of immunity

for foreign officials sued in the United States. “The lower courts

will find only minimal guidance from [pre-1976] decisions

involving the common law immunity of foreign officials. Those

cases were ‘few and far between,’ and none addressed claims of

human rights abuses.” Stephens, supra, at 2671 (footnote

omitted) (quoting Samantar v. Yousuf, 560 U.S. 305, 323

(2010)).5

Even if there were a common law of immunity for foreign

officials and even if the Restatement (Second) § 66(f) stated it,

the question remains: does the Restatement’s version of the

common law control actions such as this arising under the

Torture Victims Protection Act of 1991, 28 U.S.C. § 1350 note?

A foreign official may be immune from suit pursuant to the

Restatement’s § 66(f) only with respect “to acts performed in his

official capacity.” Here the Democratic Republic of the Congo

notified the State Department that the defendants’ alleged torture

actions were “undertaken in their official capacities.”

That may have satisfied a prerequisite for immunity under

the Restatement, but it also amounted to a confession satisfying

5

“The courts will not be able to turn to pre-FSIA common law

decisions and commentary to determine the scope of the modern

common law of official immunity in part because the cases were

sparse, leaving a few guidelines but no substantial body of law.” Id.

at 2702. “Pre-FSIA” means before enactment of the Foreign

Sovereign Immunities Act of 1976.

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one of the prerequisites for liability under the Torture Act.

Section 2(a) of the Torture Act does away with the Nuremberg

defense, and more. Pursuant to § 2(a) an “individual who, under

actual or apparent authority, or color of law, of any foreign

nation . . . subjects an individual to torture shall, in a civil action,

be liable for damages to that individual.” 28 U.S.C. § 1350 note

§ 2(a)(1). The Torture Act thus imposes liability for actions that

would render the foreign official eligible for immunity under the

Restatement. When there is such a clear conflict between

statutory law and judge-made common law, the common law

must give way. See City of Milwaukee v. Illinois, 451 U.S. 304,

314–15 (1981).6

I leave to the last a discussion of the Supreme Court’s

decision in Samantar v. Yousuf and our court’s decision in

Manoharan v. Rajapaksa, 711 F.3d 178 (D.C. Cir. 2013) (per

curiam).

Samantar v. Yousuf interpreted the term “foreign state” in

the following provision of the Foreign Sovereign Immunities

Act (FSIA): “a foreign state shall be immune from the

jurisdiction of the courts of the United States and of the States

. . ..” 28 U.S.C. §1604. The Supreme Court held that “foreign

state” did not include foreign officials. In so holding the Court

did “not resolve the dispute among the parties as to the precise

scope of an official’s immunity at common law.” 560 U.S. at

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“It has often been said that statutes in derogation of the common

law are to be strictly construed. That is a relic of the courts’ historical

hostility to the emergence of statutory law.” Antonin Scalia & Bryan

A. Garner, Reading Law: The Interpretation of Legal Texts 318

(2012).

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321.7 Although the plaintiffs sued under the Torture Act, the

Court did not address the conflict between the Torture Act and

Restatement § 66(f).

As to our decision in Manoharan v. Rajapaksa, the case

involved head-of-state immunity. As the court discusses in this

case, Maj. Op. 5, there are two types of immunity for foreign

officials – status-based, as in Manoharan, and conduct-based, as

in the case before us. Head-of-state immunity and other status-

based immunities are the predominant focus of U.S. case law,

sparse as it is, related to foreign officials. See Yousuf v.

Samantar, 699 F.3d 763, 772 (4th Cir. 2012); Restatement

(Second) § 66, reporter’s note 1. It is well established that when

the executive provided a “suggestion of immunity,” a head of

state would be granted immunity by the courts. See, e.g., Ye v.

Zemin, 383 F.3d 620, 625–27 (7th Cir. 2004). These status-

based immunities also derive from international treaties such as

the Vienna Convention on Diplomatic Relations and United

Nations Convention on Special Missions. Vienna Convention

on Diplomatic Relations, art. 31, Apr. 18, 1961, 23 U.S.T. 3227

(diplomatic immunity); S. Rep. No. 102-249, at 8 (1991) (citing

United Nations Convention on Special Missions, art. 21(1),

adopted Dec. 8, 1969, 1400 U.N.T.S. 231 (entered into force

June 21, 1985)) (head of state immunity). The legislative

history of the Torture Act indicated that these immunities would

survive. H.R. Rep. No. 102-367, at 5 (1991), 1992

U.S.C.C.A.N. 84, 88 (“[N]othing in the TVPA overrides the

doctrines of diplomatic and head of state immunity.”).

The conflict between the Torture Act’s basis for liability

and the Restatement’s basis for immunity from liability was

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The Court “express[ed] no view on whether Restatement § 66

correctly sets out the scope of the common-law immunity applicable

to current or former foreign officials.” Id. at 321 n. 15.

6

neither briefed nor argued, although it should have been. The

immunity of foreign officials may be a jurisdictional question.

See Belhas v. Ya’alon, 515 F.3d 1279, 1281, 1283 (D.C. Cir.

2008). I agree with the court that if the Restatement did apply,

the defendants were not immune.