Foreing Immunity Procedure in the United States

See Jurisdictional, Procedural, and Evidentiary Issues in relation to foreign immunity in this legal Encylopedia.

Procedural and Evidentiary Issues

Because the issue is jurisdictional, a federal court must always inquire at the outset whether the defendant is entitled to immunity.47 In most cases, the issue will arise on motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), although sometimes it may be dealt with under Federal Rule of Civil Procedure 12(b)(6) as a failure to state a claim upon which relief can be granted. It may also be presented on motion for summary judgment under Federal Rule of Civil Procedure, on the basis that no genuine dispute exists as to any material fact and the movant is entitled to judgment as a matter of law. A defendant moving for dismissal for lack of subject-matter jurisdiction must present a prima facie case that it is a foreign state as that term is defined by the statute. Once the defendant establishes that prima facie case, the burden shifts to the plaintiff to show claim that one of the exceptions articulated in the FSIA applies. Nevertheless, the defendant retains the ultimate burden of persuasion to demonstrate, by a preponderance of the evidence, that an exception does not apply.

Jurisdictional discovery

The complaint itself should contain sufficient factual allegations for this purpose. The court must review those allegations as well as any undisputed facts presented by the parties. While the FSIA aims to protect foreign sovereigns and their agencies and instrumentalities from not only liability but also discovery and other burdens of litigation, limited jurisdictional discovery may be allowed. There is further information about Jurisdictional discovery here.

Interpleader

In Republic of Philippines v. Pimentel, the U.S. Supreme Court considered the operation of Federal Rule of Civil Procedure 19 in the context of foreign sovereign immunity. Because “[g]iving full effect to sovereign immunity promotes the comity interests that have contributed to the development of the immunity doctrine,” the Court held that where sovereign immunity has been asserted by parties whose participation is required by Rule 19(a), the entire action must be dismissed unless the sovereign’s substantive defenses are frivolous or its interests would not be prejudiced if the litigation proceeded without its participation.

Removal

Few FSIA cases are filed in state courts. Notably, 28 U.S.C. § 1441(d) gives foreign states (and their agencies and instrumentalities) the right to remove to federal court any action filed against them in a state court. Removal is to the district court “for the district and division embracing the place where such action is pending.” If the petitioner does not qualify as a “foreign state,” the federal court may order the case remanded. Such orders are subject to substantially limited appellate review under 28 U.S.C. § 1447(d).

Non-jury trial

Foreign states (and their agencies and instrumentalities) have the right to a non-jury trial if they so elect. Under § 1441(d), “[u]pon removal the action shall be tried by the court without jury.”

Damages

Under 28 U.S.C. § 1606, foreign states themselves are not liable for punitive damages, but this limitation does not apply to agencies and instrumentalities.

Default

Title 28 U.S.C. § 1608(e) provides that a court may not enter judgment by default against a foreign state “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” Thus, even if a foreign state does not enter an appearance, the court must determine that an exception to immunity applies and that an adequate legal and factual basis exists for the plaintiff’s claims.64 A copy of the proposed default judgment must first be sent to the foreign state or political subdivision in accordance with § 1608(a).

Appeal

“While denial of a motion to dismiss for lack of personal or subjectmatter jurisdiction is generally not subject to interlocutory review, a majority of the circuits have expressly held that denial of a claim of immunity is immediately appealable under the collateral order doctrine in order to prevent parties from having to litigate claims over which the court lacks jurisdiction. See, e.g., Abelesz v. OTP Bank, 692 F.3d 661 (7th Cir. 2012); Cassirer v.Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010); Abi Jaoudi & Ajar Trading Co. v. Cigna Worldwide Ins. Co., 391 F. App’x 173 (3d Cir. 2010); Hansen v. PT Bank Negara Indonesia (Persero), TBK, 601 F.3d 1059 (10th Cir. 2010); La Reunion Aerienne v. Socialist People’s Libyan Arab Jamahirya, 533 F.3d 837 (D.C. Cir. 2008); Filler v. Hanvit Bank, 378 F.3d 213 (2d Cir. 2004). Under the collateral order doctrine, appellate review is restricted to legal issues, but the jurisdictional issue is considered de novo because, as stated by the Sixth Circuit in Gould, Inc. v. Pechniney Ugine Kulhmann, 853 F.2d 445, 451 (6th Cir. 1988), deferring the question would “frustrate the significance and benefit of entitlement to immunity from suit.” See also Brief for the United States as Amicus Curiae Supporting Defendant-Appellants, in Licea v. Curacao, Nos. 11-15909, 11- 15910, 11-15944, 2012 WL 3264655, at *8–14 (11th Cir. June 21, 2012). An order granting a motion to dismiss on the basis of immunity is a final order from which an appeal may be taken under 28 U.S.C. § 1291.”