                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 KASIPPILLAI MANOHARAN, et al.,

    Plaintiffs,
                                                            Civil Action No. 11-235 (CKK)
      v.

 PERCY MAHENDRA RAJAPAKSA,

    Defendant.


                                 MEMORANDUM OPINION
                                    (February 29, 2012)

        Plaintiffs Kasippillai Manoharan, Kalaiselvi Lavan, and Jeyakumar Aiyathurai

(“Plaintiffs”) filed suit against Defendant Percy Mahendra Rajapaksa, in his individual and

official capacity as the President of Sri Lanka, alleging violations of the Torture Victim

Protection Act of 1991 (“TVPA”). Compl., ECF No. [1]. The United States filed a Suggestion

of Immunity on behalf of Defendant, asserting Defendant Rajapaksa is immune from suit while

he is in office. Suggestion of Immunity (“Sugg. of Imm.”), ECF No. [12], at 1. The Court

provided Plaintiffs an opportunity to respond to the Suggestion of Immunity, and the United

States filed a reply.1 The Court finds that the United States’ Suggestion of Immunity is binding

on the Court and dispositive of the Court’s jurisdiction. Therefore, Plaintiffs’ [8] Motion to

Enter Order Validating Service of Process is DENIED and this case is DISMISSED for lack of

jurisdiction.

        The Court does not take this step lightly. The Plaintiffs’ Complaint contains shocking



        1
          See Pls.’ Opp’n to Sugg. of Imm., ECF No. [17]; Reply of the United States in Supp. of
its Sugg. of Imm., ECF No. [18].
allegations of human rights abuses and violations of United States and international law. The

Court’s dismissal of this case is in no way a reflection of the merits of Plaintiffs’ claims or

Defendant’s defenses. Rather, two centuries of case law and basic constitutional and statutory

principles prevent this Court from allowing Plaintiffs’ Complaint to move forward at this time.

                                         I. BACKGROUND

        Plaintiffs filed this action as the legal representatives of relatives Plaintiffs allege were

the victims of extrajudicial killings while living in their native Sri Lanka. Compl. ¶¶ 3-5.

Plaintiffs allege Defendant has “virtually unlimited government power in Sri Lanka,”

“exercise[s] command responsibility over the Sri Lankan armed forces or security services,” and

“knew or should have known of the extrajudicial killings under color of foreign law of

[Plaintiffs’ relatives].” Id. at ¶ 6. Plaintiffs thus seek to hold Defendant liable for the killings

under the TVPA. Id. at ¶¶ 63-104. After filing the Complaint on January 28, 2011, Plaintiffs

spent nearly eleven months attempting to serve Defendant with process. See 5/31/11 Status

Report, ECF No. [4]; 8/12/11 Status Report, ECF No. [5]; 10/13/11 Order, ECF No. [7]

(authorizing service by publication); 11/21/11 Supplemental Mot. for Serv. by Publication, ECF

No. [8]. After attempting to serve Defendant via publication in Sri Lankan newspapers,

Plaintiffs filed a [8] Motion to Enter Order Validating Service of Process, which is currently

pending before the Court.

        On December 16, 2011, Defendant moved to solicit the views of the United States

regarding (i) Defendant’s entitlement to head of state and foreign official immunity;

(ii) justiciability of Plaintiffs’ claims under the political question doctrine; and (iii) the

applicability of the act of state doctrine to this case. Def.’s Mot. to Solicit Views of the United


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States and for Enlargement of Time to Resp. to the Compl., ECF No. [9], at 1. In the alternative,

Defendant moved for additional time to respond to the Complaint. Id. The Court ordered the

United States to indicate whether it would file a response to Defendant’s request. 12/30/11

Order, ECF No. [10]. In response to the Court’s Order, the United States filed a Suggestion of

Immunity, asserting that Defendant is immune from suit in this case while Defendant is in office.

Sugg. of Imm. at 1; 1/13/12 Ltr. H. H. Koh to T. West, ECF No. [12-1].

                                        II. DISCUSSION

       The United States submits that its determination that Defendant Rajapaksa is entitled to

head of state immunity “is controlling and is not subject to judicial review.” Sugg. of Imm. at 2.

Plaintiffs contend that the plain text of the TVPA bars the application of head of state immunity

to claims brought under the statute. As explained below, the Court agrees with the United States

that the Court is bound by the State Department’s Suggestion of Immunity, and after applying

the proper canon of statutory construction, it is clear head of state immunity applies to claims

brought under the TVPA. Lacking jurisdiction to proceed, the Court will dismiss the case.

       A.      Foreign Sovereign Immunity and Suggestions of Individual Immunity

       The immunity of foreign sovereigns in United States courts is a common law doctrine

recognized by the Supreme Court nearly two centuries ago. In Schooner Exchange v.

McFaddon, 7 Cranch 116 (1812), Chief Justice John Marshall “concluded that, while the

jurisdiction of a nation within its own territory ‘is susceptible of no limitation not imposed by

itself,’ the United States had impliedly waived jurisdiction over certain activities of foreign

sovereigns.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983) (quoting id. at




                                                  3
136).2 The decision in Schooner Exchange “came to be regarded as extending virtually absolute

immunity to foreign sovereigns.” Id. Following Schooner Exchange, courts employed a two-

part procedure to determine whether a foreign sovereign or foreign official was immune from

suit. As the Supreme Court explained:

       Under that procedure, the diplomatic representative of the sovereign could request
       a “suggestion of immunity” from the State Department. If the request was
       granted, the district court surrendered its jurisdiction. But “in the absence of
       recognition of the immunity by the Department of State,” a district court “had
       authority to decide for itself whether all the requisites for such immunity
       existed.”. . . Although cases involving individual foreign officials as defendants
       were rare, the same two-step procedure was typically followed when a foreign
       official asserted immunity.

Samantar v. Yousuf, 130 S.Ct. 2278, 2284-85 (2010) (quoting Ex parte Peru, 318 U.S. 578, 581,

587-88 (1943)).

       Prior to 1952, the State Department generally suggested immunity in all actions brought

against foreign sovereigns. Id. at 2285. In 1952, the State Department departed from this

practice, and adopted a “restrictive” theory of foreign sovereign immunity, which limited

immunity to “suits involving the foreign sovereign’s public acts,” but not “cases arising out of a

foreign state’s strictly commercial acts.” Id. (quoting Verlinden, 461 U.S. at 487). However, the

influence of political considerations led to inconsistent submission of suggestions of immunity

under this “restrictive” theory. Id. To remedy the inconsistent application of foreign sovereign

immunity by the State Department, Congress enacted the Foreign Sovereign Immunities Act



       2
          “In accordance with Chief Justice Marshall’s observation that foreign sovereign
immunity is a matter of grace and comity rather than a constitutional requirement,” Republic of
Austria v. Altmann, 541 U.S. 677, 689, Plaintiffs’ reliance on the test for evaluating the
President’s exercise of constitutional authority as outlined in Youngstown Sheet & Tube Co. V.
Sawyer, 343 U.S. 579, 634 (Jackson, J., concurring), is misplaced.

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(“FSIA”) in 1976. Id. Until 2010, a majority of Circuits held that the FSIA governed not only

foreign sovereign immunity, but also claims of immunity by individual officers of foreign states.

Yousuf v. Samantar, 552 F.3d 371, 378 (4th Cir. 2009) (collecting cases). In Samantar, the

Supreme Court interpreted the FSIA to govern only the application of foreign sovereign

immunity to foreign states, not foreign officials. 130 S.Ct. at 2292-93. Rather, the pre-FSIA

common law regarding head of state and diplomatic immunities continues to govern whether, as

in this case, an individual official from a foreign sovereign is entitled to immunity from suit. Id.

       In accordance with the post-Schooner Exchange procedure, the State Department filed a

Suggestion of Immunity in this case, reflecting the State Department’s determination that

Defendant Rajapaksa is entitled to head of state immunity while in office. The State

Department’s Suggestion of Immunity is conclusive and not subject to judicial review. E.g., Ex

parte Peru, 318 U.S. at 589-90 (“The certification and the request that the vessel be declared

immune must be accepted by the courts as a conclusive determination by the political arm of the

Government.”); Ye v. Zemin, 383 F.3d 620, 625-27 (7th Cir. 2004) (holding courts must defer to

the State Department’s Suggestion of Immunity even in cases involving alleged violations of jus

cogens norms). “The precedents are overwhelming. For more than 160 years American courts

have consistently applied the doctrine of sovereign immunity when requested to do so by the

executive branch.” Spacil v. Crowe, 489 F.2d 614, 617 (5th Cir. 1974). “When, as here, the

Executive has filed a Suggestion of Immunity as to a recognized head of a foreign state, the

jurisdiction of the Judicial Branch immediately ceases.” Doe I v. State of Israel, 400 F. Supp. 2d

86, 111 (D.D.C. 2005); accord, id. (“When the Executive Branch concludes that a recognized

leader of a foreign sovereign should be immune from the jurisdiction of American courts, that


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conclusion is determinative.”); First Am. Corp. v. Al-Nahyan, 948 F. Supp. 1107, 1119 (D.D.C.

1996) (“The United States has filed a Suggestion of Immunity on behalf of H.H. Sheikh Zayed,

and courts of the United States are bound to accept such head of state determinations as

conclusive.”); Saltany v. Reagan, 702 F. Supp. 319, 320 (D.D.C. 1988) (“[T]he United States has

suggested to the Court the immunity from its jurisdiction of Prime Minister Thatcher as the

sitting head of government of a friendly foreign state. . . . The Court must accept [the suggestion]

as conclusive.”) rev’d in part on other grounds, 886 F.2d 438 (D.C. Cir. 1989). Although the

Suggestion of Immunity is dispositive of the Court’s jurisdiction, the Court briefly addresses

Plaintiffs’ argument that head of state immunity does not apply to claims brought under the

TVPA.

        B.     Torture Victim Protection Act

        Plaintiffs filed suit under the Torture Victim Protection Act of 1991 (“TVPA”), Pub. L.

No. 102-256. Section 2(a) of the TVPA provides that

        An individual who, under actual or apparent authority, or color of law, of any
        foreign nation—

               (1) subjects an individual to torture shall, in a civil action, be liable for
               damages to that individual; or

               (2) subjects an individual to extrajudicial killing shall, in a civil action, be
               liable for damages to the individual's legal representative, or to any person
               who may be a claimant in an action for wrongful death.

Plaintiffs contend that the plain text of the TVPA holds any individual, including sitting heads of

state, liable for torture or extrajudicial killings, and that any suggestion of immunity in cases

such as this runs counter to the law. Pls.’ Opp’n at 6-7. Plaintiffs posit that the TVPA should

not be read to maintain the common law doctrine of head of state immunity “unless the result


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would be absurd or [] unreasonable in light of the statutory policy fashioned by Congress.” Id. at

6.

       Despite asserting that “[e]very relevant canon of statutory interpretation militates against

the Executive’s Suggestion of Immunity,” Pls.’ Opp’n at 5, Plaintiffs’ argument neglects the

canon of construction most relevant to interpretation of the TVPA. As the Supreme Court noted

in Samantar, a statute “should be interpreted consistently with the common law,” when the

statute “clearly covers a field formerly governed by the common law.” 130 S.Ct. at 2289; see

also Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991) (“Congress is

understood to legislate against a background of common-law [] principles.”). In other words,

“when a statute covers an issue previously governed by the common law, we interpret the statute

with the presumption that Congress intended to retain the substance of the common law.”

Samantar, 130 S.Ct. 2289 n.13. “Thus, where a common-law principle is well established . . .

the courts may take it as given that Congress has legislated with an expectation that the principle

will apply except ‘when a statutory purpose to the contrary is evident.’” Astoria, 501 U.S. at

108. It is undisputed that head of state immunity is a well established common law principle, see

Pls.’ Opp’n at 17, and according to Plaintiffs, the TVPA covers the issue of head of state

immunity for extrajudicial killings, which is traditionally governed by the common law, id. at 7.

Therefore, the relevant question for the Court is whether there is any evidence to suggest

Congress did not intend to maintain the common law doctrine of head of state immunity when it

enacted the TVPA.

       Framed this way, it is clear Congress intended to maintain head of state immunity to suit

under the TVPA. The House Report accompanying the TVPA explicitly stated “nothing in the


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TVPA overrides the doctrines of diplomatic and head of state immunity.” H.R. Rep. No. 102-

367, at 5 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 88; see also S. Rep. No. 102-249, at 8

(1991) (“Nor should visiting heads of state be subject to suit under the TVPA.”). The clear

statutory purpose behind the TVPA was to maintain the common law doctrine of head of state

immunity, not override it. To the extent Plaintiffs are correct that immunizing heads of state

from liability under the TVPA runs contrary to the general purposes of the statute, that

contradiction was recognized by Congress before the statute was enacted, and the Court is not in

a position to remedy that contradiction.

       The court in Lafontant v. Aristide reached a similar conclusion. 844 F. Supp. 128, 138-

39 (E.D.N.Y. 1994) (noting “[t]he legislative history of the TVPA lends ample support for the

proposition that the Act was not intended to trump diplomatic and head-of-state immunities.”).

Plaintiffs contend that Lafontant was wrongly decided because (1) the Lafontant court did not

analyze the text of the TVPA; (2) the legislative history of the TVPA refers only to visiting

heads of state; and (3) head of state immunity under international law has “changed

dramatically” since Lafontant was decided. None of these arguments are persuasive. First,

although the Lafontant court does not explicitly reference the canon of construction employed

here, it is clear from the court’s decision that the Lafontant court made the correct inquiry:

whether Congress intended to trump head of state immunity in enacting the TVPA. 844 F. Supp.

at 138. Second, the Plaintiffs are correct that the legislative history cited by the Lanfontant

court—and notably omitted from Plaintiffs’ quotation of the legislative history—refers only to

immunity for heads of state visiting the United States. Id. at 138. However, Plaintiffs fail to

explain how immunity differs for heads of state served with process in the United States versus


                                                  8
those served in their home countries. Moreover, the references in the legislative history might

simply reflect the logical assumption that, given the difficulty in effecting foreign service of

process, most foreign leaders would be served with complaints under the TVPA while visiting

the United States. Third, Plaintiffs failed to show that head of state immunity has evolved at all

since Lafontant was decided in 1994. Plaintiffs argue that the Rome Convention, which created

the International Criminal Court (“ICC”), “unambiguously exposed sitting heads of state to

criminal prosecution for actions condemned by the TVPA.” Pls.’ Opp’n at 21-22. This

argument is misplaced. By Plaintiffs’ own admission, the Rome Convention applies to criminal

liability, not civil liability. There is no evidence that the Rome Convention or any other

agreement to which the United States is a party modified head of state immunity for civil suits.

Additionally, all of the examples of cases cited by Plaintiffs wherein the head of state was

indicted for extrajudicial killings, involve the ICC or special criminal tribunals. Plaintiffs do not

provide any examples of a nation’s domestic courts holding the head of a foreign sovereign

civilly liable. Head of state immunity is premised on comity between individual nations.

Republic of Austria v. Altmann, 541 U.S. 677 (2004) (“[A]s a matter of comity, members of the

international community ha[ve] implicitly agreed to waive the exercise of jurisdiction over other

sovereigns in certain classes of cases, such as those involving foreign ministers or the person of

the sovereign.”) (citing Schooner Exchange, 7 Cranch 134). The application of immunity by

international tribunals in criminal cases is irrelevant to the question of how individual nations

treat each others’ leaders in civil cases.

        Finally, Plaintiffs assert that adhering to the United States’ Suggestion of Immunity

“would [] permit usurpation of the judicial power by the Executive.” Pls.’ Opp’n at 5. To the


                                                  9
contrary, “[s]eparation-of-powers principles impel a reluctance in the judiciary to interfere with

or embarrass the executive in its constitutional role as the nation’s primary organ of international

policy.” Spacil, 489 F.2d at 169. As the Seventh Circuit explained, “[t]he determination to grant

(or not grant) immunity can have significant implications for this country’s relationship with

other nations. A court is ill-prepared to assess these implications and resolve the competing

concerns the Executive Branch is faced with in determining whether to immunize a head of

state.” Ye, 383 F.3d at 626-27. This Court is not in a position to second-guess the Executive’s

determination that in this case, the nation’s foreign policy interests will be best served by

granting Defendant Rajapaksa head of state immunity while he is in office.

                                       III. CONCLUSION

       For the foregoing reasons, the Court finds it is bound by the United States’ Suggestion of

Immunity which suggests Defendant Rajapaksa is entitled to head of state immunity while he

remains in office. Head of state immunity is a well established principle of federal common law,

which Congress did not override in enacting the Torture Victim Protection Act. This Court is

required to defer to the Executive Branch’s finding that Defendant Rajapaksa is immune from

suit in this case while he remains in office. Therefore Plaintiffs’ [8] Motion to Enter Order

Validating Service of Process is DENIED this case is DISMISSED.

       An appropriate Order accompanies this Memorandum Opinion.

Date: February 29, 2012

                                                            /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge




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