As promised, this post surveys several Foreign Sovereign Immunity Act (FSIA) opinions penned by Judge Garland while on the D.C. Circuit. Judge Garland has had occasion to consider several of the statutory exceptions to foreign sovereign immunity. This post concludes with some general observations of Judge Garland as a jurist gleaned from his FSIA cases.
El-Hadid v. United Arab Emirates, 216 F.3d 29 (D.C. Cir. 2000). El-Hadidoriginated with a suit brought by an Egyptian citizen contesting the termination of his employment with the US embassy of the United Arab Emirates (UAE). El-Hadid, an auditor who alleged that he was terminated following his discovery that the embassy had misappropriated funds, brought suit under the FSIA against the sovereign and the embassy for breach of contract and defamation. The district court — ruling on the pleadings — denied UAE’s motion to dismiss and held that (1) the employment relationship fell within the “commercial activity” exception to FSIA and (2) the defamation claim did not trigger the libel exception to the non-commercial tort exception. The decision below hinged on the fact that the plaintiff was not a national of the UAE, which suggested he was not a part of the UAE’s national civil service — an employment relationship that would constitute governmental, rather than commercial, activity within the meaning of the statute. In so ruling, the district court had relied upon language in the D.C. Circuit’s opinion in Broadbent v. Organization of American States, which implied that employment relationships between an international organization and US citizens (or third country nationals) were per se a form of commercial activity. Incidentally, by suggesting in Broadbent that the nationality of the employee might be dispositive of whether the relationship between the parties was of a commercial or governmental nature, the D.C. Circuit had departed from the approach employed in other circuits, which had adopted a multifactorial test. See Holden v. Canadian Consulate.
The question presented on interlocutory appeal was whether the two claims fell within any of the FSIA’s exceptions, or within any exceptions to the exceptions. Undertaking de novo review as is customary, Judge Garland and the panel reversed in part and remanded for further proceedings to generate more facts in the record regarding the precise nature of the employment relationship. Judge Garland distinguished the Circuit’s Broadbentopinion, describing the relevant language as “dictum” in light of the fact that the defendant in that case was an international organization (which would not normally employ civil servants) rather than a foreign sovereign (which would). Judge Garland reasoned that a per se rule of non-immunity when a state employs third country nationals would be inconsistent with the general thrust of the FSIA and with Congress’s intention that states should enjoy immunity except under defined circumstances. In so ruling, heopined that the courts have “no warrant for formulating a test that turns solely on nationality.” Turning to the defamation claim, Judge Garland gave the FSIA a close read and noted that Congress did not provide that alleged acts of defamation arising out of commercial activities (as compared with non-commercial torts) would be immune from suit.
Although many appellate judges might have been content to simply remand the suit, this particular opinion is notable in going further and providing guidance to the district court as to the types of questions that should guide its inquiry into the nature of El-Hadid’s work, with his nationality being one factor among many. As with any multi-factor test, the opinion acknowledges the inevitable trade-off between precision and flexibility, but insists that this outcome was dictated by the vague terms of statute itself, as well as its legislative history, which contemplates courts exercising some discretion in applying undefined statutory terms. This statutory language and the FSIA’s legislative history are open to conflicting interpretations and could probably have gone either way. In reaching the outcome he did, Judge Garland gave greater weight to the presumed congressional intent behind the statutory scheme as a whole than to an ambiguous snippet drawn from the statute’s “muddy legislative history,” and better aligned the D.C. Circuit with the approach adopted elsewhere.
World Wide Minerals v. Republic of Kazakhstan, 296 F.3d 1154 (D.C. Cir. 2002). This case emerged out of the collapse of a business arrangement between a Canadian corporation and the Republic of Kazakhstan to manage a mining complex. Kazakhstan’s failure to issue the plaintiff an export license for mined uranium, and its subsequent expropriation of World Wide’s assets, gave rise to a constellation of claims for fraudulent inducement, conversion, tortious interference, conspiracy, and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). The plaintiff’s case hinged on the waiver exception to the FSIA and the argument that Kazakhstan had expressly waived its immunity in the web of agreements between the parties.
The panel, with Judge Garland at the helm, ultimately agreed that the first and fourth agreements contained express waivers of immunity. (Indeed, the text of the final agreement referred specifically to the FSIA). When it came to the scope of this waiver, however, the panel disagreed with the district court, which had held that the operative language expressed an intention to waive immunity for the entire lawsuit, rather than just for claims arising out of those two agreements. Concluding that Kazakhstan’s intent was sufficiently “ambiguous,” the panel refused to extend the express waivers to claims arising out of the other two agreements or to the tort/quasi-tort claims. The panel explained that this more cautious approach was dictated by its obligation to narrowly construe any waiver in favor of the sovereign. Although the plaintiff ultimately hung its hat on the express contractual waivers, the opinion does consider some of the grounds on which a sovereign defendant can be deemed to have impliedly waived sovereign immunity and found not present in the case.
Read the full post at Just Security.
- Publication Type:Other Writing
- Publication Date:07/13/2016