Fifth Circuit Holds that TPVA Does Not Abrogate Foreign Official Immunity

 

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The Torture Victim Protection Act (TVPA) creates a civil cause of action for torture and extrajudicial killing done under color of foreign law. In Does 1-5 v. Obiano, the widows of five men killed by the Nigerian military during peaceful rallies for Biafran independence sued Willie Obiano, the former governor of the state where the killings occurred, for the deaths of their husbands.

The Fifth Circuit held that the TVPA did not abrogate Obiano’s conduct-based immunity as a former foreign official. That decision seems correct. The harder question, which the Court of Appeals did not address, is whether Obiano was entitled to conduct-based immunity in the first place.

Foreign Official Immunity

In Samantar v. Yousuf (2010), the U.S. Supreme Court held that the Foreign Sovereign Immunities Act (FSIA) does not cover foreign officials. The immunities of foreign diplomats and consuls are governed by the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations, respectively. The immunities of other foreign officials are governed by federal common law.

Sitting heads of state, heads of government, and foreign ministers are absolutely immune from suit during their terms in office. This is commonly called “status-based immunity” or “head-of-state immunity.” Other foreign officials, and all former officials, are immune only from suits based on acts taken in their official capacities. This is commonly called “conduct-based immunity.” (Chimène Keitner and I discuss these immunities at length in our 2021 article A Roadmap for Foreign Official Immunity Cases in U.S. Courts, which the Fifth Circuit relied on along with other scholarship.)

Does the TVPA Abrogate Foreign Official Immunity?

In 1992, Congress passed the TPVA to create express causes of action for torture and extrajudicial killing under color of foreign law. The TVPA’s requirement that the defendant acted “under actual or apparent authority, or color of law, of any foreign nation” means that foreign officials are obvious defendants. And the TVPA has been used successfully to sue former foreign officials in U.S. courts.

So, does the TVPA abrogate any immunity to which such officials might be entitled? Writing for the Fifth Circuit panel, Judge Stuart Kyle Duncan held that it did not. “The problem for plaintiffs,” he wrote, “is that the TVPA says nothing about immunity.” Without a clear indication that Congress wanted to override common-law immunities, such immunities continue to apply.

The Fifth Circuit’s decision in Obiano accords with the Ninth Circuit’s in Dogan v. Barak (2019). Two judges on the D.C. Circuit, however, have disagreed. Concurring in Lewis v. Mutond (2019), Judge Raymond Randolph reasoned that the TVPA conflicted with common-law immunity so clearly that “the common law must give way,” and in a separate concurring opinion Judge Sri Srinivasan agreed with Judge Randolph on this point.

There is legislative history to support the argument that the TVPA overrides conduct-based immunity. Senate Report 102-249 says “[t]he TVPA is not intended to override traditional diplomatic immunities” and that “visiting heads of state” should not be “subject to suit under the TVPA.” “However,” the Report continues, “the committee does not intend these immunities to provide former officials with a defense to a lawsuit brought under this legislation” (emphasis added). Thus, the Report seems to distinguish between diplomatic and head-of-state immunity, which would continue to apply, and conduct-based immunity, which would not.

It is not clear, however, that legislative history alone is sufficient to displace common-law immunity. In addition, head-of-state immunity and conduct-based immunity for acts taken in an official capacity are required by customary international law. Under the venerable Charming Betsy canon, “an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains.”

The Scope of Conduct-Based Immunity

Although the TVPA does not abrogate conduct-based immunity, it does not follow that TVPA claims can never be brought against former officials. Conduct-based immunity applies only to acts taken in an official capacity.

To be sure, the TVPA requires that the defendant engaged in torture or extrajudicial killing under color of foreign law. But meeting this state-action requirement does not establish that an act was taken in an official capacity for purposes of conduct-based immunity. The two requirements serve different purposes. In the context of human rights law, as I have explained here, state action distinguishes offenses that are of international concern from those that are only of domestic concern. “In the context of conduct-based immunity, ‘official capacity’ is used to distinguish acts for which the State alone should bear responsibility from acts for which an individual should bear joint or sole responsibility.”

Thus, under international law, the state-action that makes torture a violation of international law does not simultaneously immunize the torturer. As Chimène and I discuss (pp. 705-08), recent state practice—on which customary international law is based—shows that many states deny conduct-based immunity for violations of universally accepted human rights norms, including those that require state action.

The Fifth Circuit did not address whether Obiano was entitled to conduct-based immunity because it concluded that plaintiffs forfeited the issue with inadequate briefing. The magistrate judge’s decision, adopted by the district court, concluded that Obiano acted in his official capacity because he possessed command and control of Nigerian forces under color of Nigerian law. But this reasoning makes precisely the mistake just identified—to equate acting under color of state law for liability purposes with acting in an official capacity for immunity purposes. The two are simply not the same.

The magistrate judge went on to ask whether “exercising jurisdiction would have the effect of enforcing a rule of law against Nigeria.” This additional requirement is drawn from § 66(f) of the Restatement (Second) of Foreign Relations Law (1965). As Chimène and I have explained (p. 692), the Supreme Court’s Samantar decision has now superseded this requirement—if exercising jurisdiction would really have the effect of exercising a rule of law against a foreign state, then the foreign state is the real party in interest, in which case the FSIA applies. So, the magistrate judge did not have to answer this question. But when he did, he gave the wrong answer. The complaint does not sue Obiano in his official capacity, and it seeks damages from his own pockets not those of Nigeria. This is not a case in which Nigeria is the real party in interest.

Despite all these criticisms, I think the magistrate judge was, in the end, correct to conclude that Obiano was immune from suit in this case. The complaint alleges no specific actions that Obiano took to direct or facilitate the extrajudicial killings of the plaintiffs’ husbands. It simply alleges that he had command responsibility and control over the Nigerian soldiers who engaged in the killings. Courts should assume that foreign officials have acted in their official capacities until plaintiffs can show the contrary. If the alleged facts are disputed, jurisdictional discovery may be necessary. Here, however, the complaint alleged no facts that would rebut this presumption.

Conclusion

The interaction of foreign official immunity and the TVPA is complex. The TVPA does not abrogate the common-law immunities of foreign officials, as the Fifth Circuit correctly held. But foreign officials will not be immune from all claims that can be brought under the TVPA.

Conduct-based immunity extends only to acts taken in an official capacity. Establishing that a foreign official acted under color of state law does not establish that he acted in an official capacity. But there is a presumption that foreign officials generally act in accordance with their duties, and a complaint must do more than allege that an official was in charge in order to overcome this presumption.