MBS’s Immunity and the Subject Matter Jurisdiction Problem
January 4, 2023
As previously discussed at TLB, a federal district court recently dismissed claims against Mohammad bin Salman (MBS) arising from the murder of journalist Jamal Khashoggi. When the claims were filed, MBS was merely Crown Prince of Saudi Arabia and not entitled to head-of-state immunity. MBS was subsequently appointed Prime Minister, however, a position that does entitled him to such immunity under international law, as the State Department recognized.
Federal courts today treat foreign official immunity as a question of subject matter jurisdiction. But, in MBS’s case, this presents a problem because subject matter jurisdiction is traditionally determined based on the facts that existed at the time of filing and is not defeated by subsequent changes. Under this rule, if MBS was not entitled to immunity when the case was filed, he is never entitled to immunity, even though that would put the United States in breach of international law. One way to solve this problem would be to stop treating foreign official immunity as a question of subject matter jurisdiction, a proposal that Chimène Keitner and I have made for a number of other reasons.
The Time-of-Filing Rule
The time-of-filing rule for subject matter jurisdiction is nearly two centuries old. In Mollan v. Torrance (1824), Chief Justice Marshall wrote “that the jurisdiction of the Court depends upon the state of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent events.” A few years later, Marshall repeated—in language that seems directly applicable to MBS—that “[w]hen there is no change of the parties to a suit, during its progress, a jurisdiction depending on the condition of the parties, is governed by that condition as it was at the commencement of the suit.”
More recently, the Supreme Court has adhered to the time-of-filing rule in diversity cases, holding that adding a non-diverse party after filing the complaint does not destroy jurisdiction. The Court has also extended the rule to cases involving the immunity of foreign states under the Foreign Sovereign Immunities Act (FSIA). In Dole Food Co. v. Patrickson (2003), the Court held that a company’s status as an agency or instrumentality of a foreign state under the FSIA must be “determined at the time suit is filed.” If this is true for foreign state instrumentalities, why not also for foreign state officials?
The Problem with Foreign Officials
In fact, the time-of-filing rule works perfectly well for most foreign officials. Most foreign officials are entitled only to conduct-based immunity, which attaches to actions taken in an official capacity, and the capacity in which an act was taken does not change after filing. The problem arises only with respect to status-based immunity because the status of an official can change after filing. An official might be made a diplomat, entitled to nearly absolute immunity from suit in the courts of the receiving state under Article 31 of the Vienna Convention on Diplomatic Relations. Or, like MBS, the official might become a head of state, head of government, or foreign minister, one of the three offices entitled to absolute head-of-state immunity.
A change in status might also occur in the other direction, with an official losing the status that brings immunity. In Wei Ye v. Jiang Zemin (7th Cir. 2004), members of Falun Gong sued China’s President Jiang for human rights violations, serving him with process during a visit to Chicago. Jiang left office while the suit was pending. The State Department maintained that its initial determination of immunity made while Jiang was in office continued to be binding. Although this is questionable, it is true that Jiang’s status as China’s head of state made him immune from service of process, as the State Department originally argued, thereby vitiating the suit. In Sikhs for Justice v. Singh (DDC 2014), the plaintiffs sued India’s Prime Minister Singh for human rights violations. Singh left office while the suit was pending, and the district court refused to dismiss the case, noting that “[t]he day he left office … Singh lost the absolute protection of status-based head-of-state immunity.” (It is not clear from the court’s opinion when or how Singh was served.) In neither case did the court consider the time-of-filing rule.
Although subject matter jurisdiction is constitutionally required, the time-of-filing rule is not. As Scott Dodson and Philip Pucillo have argued in a different context, the Supreme Court could shift the time at which it determines subject matter jurisdiction. But the problem that status-based immunity cases raise for the traditional time-of-filing rule might lead one to question why foreign official immunity is treated as a question of subject matter jurisdiction in the first place.
Why Is Foreign Official Immunity a Question of Subject Matter Jurisdiction?
The answer is blind imitation of the FSIA rather than reasoned analysis. The FSIA treats foreign state immunity as a question of subject matter jurisdiction in order to permit cases against foreign states and their agencies and instrumentalities to be brought in, and removed to, federal court. Some earlier cases held that the FSIA governed the immunity of foreign officials, too, and so naturally treated their immunity like the immunity of foreign states.
In 2010, however, the Supreme Court held in Samantar v. Yousuf that the FSIA does not apply to foreign officials, whose immunity is instead governed by federal common law. Among other things, this means that the FSIA does not provide a basis for subject matter jurisdiction over foreign officials in federal court. So, the reason that Congress made foreign state immunity a question of subject matter jurisdiction simply does not apply to foreign official immunity. Nevertheless, lower courts have persisted in treating foreign official immunity as a question of subject matter jurisdiction after Samantar, sometimes even citing the earlier decisions that Samantar overruled.
Keitner and I have criticized this practice on several grounds. First, to allow federal courts to recognize federal common law exceptions to subject matter jurisdiction for foreign officials is inconsistent with the basic principle that Congress controls the jurisdiction of the federal courts. Second, treating foreign official immunity as subject matter jurisdiction makes it difficult to explain how these rules bind state courts, which (unlike federal courts) are courts of general subject matter jurisdiction. Third, it is well established that foreign official immunity can be waived, whereas the general rule is that limitations on subject matter jurisdiction cannot be waived. Although we did not mention the time-of-filing rule in our article, the incongruity between this rule and situations like the MBS case provides another reason to question the current practice.
Foreign Official Immunity as an Affirmative Defense
Keitner and I have proposed treating foreign official immunity instead as an affirmative defense, which is how domestic official immunity is treated under federal law. This solution respects Congress’s control over subject matter jurisdiction, explains how the rules of foreign official immunity bind state courts (i.e., just like the act of state doctrine, which can also be raised as an affirmative defense), and allows foreign official immunity to be waived.
Treating foreign official immunity as an affirmative defense would also solve the MBS problem. Although parties must generally raise affirmative defenses in their answers, they may raise such defenses by motion either before or after filing an answer. When the basis for a defense did not exist at the time the answer was filed, it makes sense to allow a party to raise it later. In Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation (1971), for example, the Supreme Court, having recognized an affirmative defense of non-mutual collateral estoppel, held that the defendant must be given the opportunity to raise it on remand despite not having raised the defense in its answer.
Foreign official immunity raises a host of interesting procedural questions, including burdens of proof, discovery, sequencing, and appealability. The treatment of foreign official immunity as subject matter jurisdiction is yet another example, as the timing problem in the MBS case vividly illustrates.