John Doe v. Republic of Ethiopia , 851 F.3d 7 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 2, 2017 Decided March 14, 2017
No. 16-7081
JOHN DOE, ALSO KNOWN AS KIDANE,
APPELLANT
v.
THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00372)
Richard M. Martinez argued the cause for the appellant.
Samuel L. Walling, Nathan Cardozo, and Cindy Cohn were
with him on brief. Scott A. Gilmore entered an appearance.
David Kaye was on brief for the amici curiae United
Nations Human Rights Experts in support of the plaintiff-
appellant.
Thomas R. Snider argued the cause for the appellee.
Robert P. Charrow and Laura Metcoff Klaus were with him
on brief.
Before: HENDERSON and WILKINS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Plaintiff
John Doe—proceeding pseudonymously as “Kidane”—claims
he was tricked into downloading a computer program. The
program allegedly enabled the Federal Democratic Republic
of Ethiopia (Ethiopia) to spy on him from abroad. He wants
to sue the Republic of Ethiopia. But foreign states are
immune from suit unless an exception to the Foreign
Sovereign Immunities Act (FSIA) applies. Kidane invokes
the FSIA’s exception for noncommercial torts. We conclude
his reliance is misplaced. The noncommercial-tort exception
abrogates sovereign immunity for a tort occurring entirely in
the United States. Kidane, by contrast, alleges a transnational
tort. We therefore affirm the district court’s dismissal for lack
of subject matter jurisdiction.
I. BACKGROUND
Now an American citizen, Kidane was born in Ethiopia.1
He obtained asylum in the United States in the early 1990s
and has at all relevant times lived in Silver Spring, Maryland.
There, he has remained active in the Ethiopian community
and has maintained contacts who work to increase awareness
of corruption and human rights issues in Ethiopia.
As alleged in the complaint, in late 2012 or early 2013,
Kidane opened an attachment to an e-mail he received from
an acquaintance. The e-mail had been forwarded and was
1
Because, at this stage, Ethiopia has not disputed the factual
basis for our jurisdiction but “challenges only the legal sufficiency
of [Kidane’s] jurisdictional allegations,” we “take [his] factual
allegations as true and determine whether they bring the case
within” the FSIA’s noncommercial-tort exception. Phoenix
Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir.
2000).
3
allegedly sent originally by or on behalf of Ethiopia.
Kidane’s complaint is silent as to whether the individual who
sent Kidane the e-mail was located in the United States but
the e-mail’s text suggests that individual was located in
London. See Am. Compl. Ex. C (“You took your family to
London . . . .”). Once opened, the attachment allegedly
infected Kidane’s computer with a “clandestine . . . program[]
known as FinSpy.” Am. Compl. ¶ 4. FinSpy is “a system for
monitoring and gathering information from electronic
devices, including computers and mobile phones, without the
knowledge of the device’s user.” Id. ¶ 6. It is “sold
exclusively to government agencies.” Id. After installation
on Kidane’s computer, FinSpy “began . . . recording some, if
not all, of the activities undertaken by users of the computer,”
whether Kidane or his family members. Id. ¶ 5. It then
allegedly communicated with a server in Ethiopia.
Kidane filed suit against Ethiopia, pressing two claims.
First, Kidane sought relief under the Wiretap Act, 18 U.S.C.
§§ 2510 et seq., which prohibits “any person [from]
intentionally intercept[ing] . . . any wire, oral, or electronic
communication[,]” id. § 2511(1). Second, Kidane alleged
Ethiopia committed the Maryland common law tort of
intrusion upon seclusion.
The district court dismissed Kidane’s lawsuit in its
entirety. Doe v. Fed. Democratic Republic of Ethiopia, 189
F. Supp. 3d 6, 28 (D.D.C. 2016). It first concluded that the
relevant Wiretap Act provision could not be enforced via
private lawsuit against a foreign government.2 Id. at 12–15.
2
The district court reached this issue before addressing subject
matter jurisdiction under the FSIA. Although recognizing that
ordinarily it must address subject matter jurisdiction first, Doe, 189
F. Supp. 3d at 11, it forestalled the jurisdictional inquiry based on
Vermont Agency of Natural Resources v. United States ex rel.
4
It next dismissed Kidane’s state-law claim for lack of subject
matter jurisdiction. Id. at 15–28. The district court observed
that the FSIA grants all foreign states immunity from suit in
American courts, subject to limited enumerated exceptions.
Id. at 16. Kidane invoked only one—the noncommercial-tort
exception. Id. The district court found that exception
inapplicable because the “entire tort” did not occur in the
United States, as required.3 Id. at 18–25.
II. ANALYSIS
On appeal, Kidane challenges both grounds the district
court used for dismissal. Each challenge triggers de novo
review. Simon v. Republic of Hungary, 812 F.3d 127, 135
(D.C. Cir. 2016); El Paso Nat. Gas Co. v. United States, 750
F.3d 863, 874 (D.C. Cir. 2014). Unlike the district court, we
do not reach the question whether the Wiretap Act authorizes
a cause of action against Ethiopia for intercepting Kidane’s
communications. We instead conclude that the FSIA
withdraws jurisdiction in toto.
The FSIA is “the ‘sole basis for obtaining jurisdiction
over a foreign state in our courts.’” Weinstein v. Islamic
Stevens, 529 U.S. 765 (2000). There, the High Court concluded
that the statutory question was “logically antecedent” to Vermont’s
Eleventh Amendment immunity from suit and there existed “no
realistic possibility” that answering the statutory question first
“expand[ed] the Court’s power beyond the limits that the
jurisdictional restriction has imposed.” Id. at 779 (internal
quotation marks omitted).
3
Ethiopia made several other arguments against the
noncommercial-tort exception’s applicability but the district court
rejected each. Doe, 189 F. Supp. 3d at 17–18, 25–28. We need not
address those arguments.
5
Republic of Iran, 831 F.3d 470, 478 (D.C. Cir. 2016) (quoting
Argentine Republic v. Amerada Hess Shipping Corp., 488
U.S. 428, 434 (1989)). Unless an exception applies, “a
foreign state shall be immune from the jurisdiction of the
courts of the United States.” 28 U.S.C. § 1604. One of those
exceptions is the noncommercial-tort exception. It abrogates
immunity from an action involving “personal injury or death,
or damage to or loss of property, occurring in the United
States and caused by the tortious act or omission of [a]
foreign state or of any official or employee of that foreign
state while acting within the scope of his office or
employment[.]” Id. § 1605(a)(5).4 The phrase “occurring in
the United States” is no mere surplusage. “‘[T]he entire
tort’—including not only the injury but also the act
precipitating that injury—must occur in the United States.”
Jerez v. Republic of Cuba, 775 F.3d 419, 424 (D.C. Cir. 2014)
(quoting Asociacion de Reclamantes v. United Mexican
States, 735 F.2d 1517, 1525 (D.C. Cir. 1984)).
In Jerez, the plaintiff (Jerez) alleged he was intentionally
injected with hepatitis C while imprisoned in Cuba. See id. at
421. He sued Cuba, relying on the noncommercial-tort
exception. Id. at 424.5 We found the exception inapplicable.
4
Even in such circumstances, the FSIA restores sovereign
immunity from suits “based upon the exercise or performance or
the failure to exercise or perform a discretionary function regardless
of whether the discretion [has been] abused” and from suits “arising
out of malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights[.]” 28
U.S.C. § 1605(a)(5)(A)–(B).
5
Jerez initially sued Cuba in Florida state court, where he
obtained a default judgment. Jerez, 775 F.3d at 421. His case
came to us through his efforts to execute the judgment on certain
intellectual property. Id.
6
As we explained, the alleged injection of hepatitis C occurred
abroad and we rejected Jerez’s argument that a separate tort
occurred each time the virus replicated in his body. Id.
Replication showed only that Jerez suffered an “ongoing
injury,” not that the tort’s precipitating act also occurred in
the United States. Id. (emphasis omitted). To support his
replication theory, Jerez “analogiz[ed] the defendants’ actions
to a foreign agent’s delivery into the United States of an
anthrax package or a bomb.” Id. That analogy was flawed,
we explained, because “the defendants’ infliction of injury . . .
occurred entirely in Cuba, whereas the infliction of injury by
the hypothetical anthrax package or bomb would occur
entirely in the United States.” Id.
Kidane argues that Ethiopia’s tort is akin to the anthrax
hypothetical. But the hypothetical was dictum and, of course,
“[b]inding circuit law comes only from the holdings of a prior
panel, not from its dicta.” Gersman v. Grp. Health Ass’n, 975
F.2d 886, 897 (D.C. Cir. 1992). And Jerez’s holding hardly
helps Kidane. Jerez squarely held that “the entire
tort . . . must occur in the United States” for the
noncommercial-tort exception to apply. 775 F.3d at 424
(emphasis added) (internal quotation marks omitted). Here, at
least a portion of Ethiopia’s alleged tort occurred abroad.
Maryland’s intrusion-upon-seclusion tort shows why that
is so. The tort covers “[o]ne who intentionally intrudes,
physically or otherwise, upon the solitude or seclusion of
another or his private affairs or concerns, [making the
intruder] subject to liability to the other for invasion of his
privacy, if the intrusion would be highly offensive to a
reasonable person.” Bailer v. Erie Ins. Exch., 687 A.2d 1375,
1380–81 (Md. 1997) (emphasis and internal quotation marks
omitted) (quoting RESTATEMENT (SECOND) OF TORTS § 652B
(1977)). There is thus no tort without intentional intrusion.
But whether in London, Ethiopia or elsewhere, the tortious
7
intent aimed at Kidane plainly lay abroad and the tortious acts
of computer programming likewise occurred abroad.
Moreover, Ethiopia’s placement of the FinSpy virus on
Kidane’s computer, although completed in the United States
when Kidane opened the infected e-mail attachment, began
outside the United States. It thus cannot be said that the entire
tort occurred in the United States.
The two cases on which Kidane relies—Liu v. Republic
of China, 892 F.2d 1419 (9th Cir. 1989), and Letelier v.
Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980)—are
easily distinguished. In Liu, two gunmen allegedly acting at a
Taiwanese admiral’s direction assassinated a man in
California, 892 F.2d at 1421; in Letelier, Chilean government
agents allegedly constructed, planted and detonated a car
bomb in Washington, D.C., 488 F. Supp. at 665. In both, the
courts determined they had jurisdiction under the FSIA’s
noncommercial-tort exception to hear the victims’ survivors’
claims against the respective foreign sovereigns. Liu, 892
F.2d at 1425–26, 1431; Letelier, 488 F. Supp. at 673–74.
Both involved actions “occurring in the United States” that
were—without reference to any action undertaken abroad—
tortious.
Ethiopia’s digital espionage is of a different character.
Without the software’s initial dispatch or an intent to spy—
integral aspects of the final tort which lay solely abroad—
Ethiopia could not have intruded upon Kidane’s seclusion
under Maryland law. Kidane’s Wiretap Act claim is similarly
deficient. The Wiretap Act in pertinent part proscribes
“intentional[] intercept[ions]” of “wire, oral, or electronic
communication[s].” 18 U.S.C. § 2511(1)(a). But, again, the
“intent[],” id., and FinSpy’s initial deployment occurred
outside the United States. The tort Kidane alleges thus did
not occur “entire[ly]” in the United States, Jerez, 775 F.3d at
8
424 (internal quotation marks omitted); it is a transnational
tort over which we lack subject matter jurisdiction.
Kidane regards this conclusion as inconsistent with the
noncommercial-tort exception’s purpose and legislative
history. He argues that, when the Congress codified the
exception, it considered—but rejected—the approach of the
European Convention on State Immunity. The European
Convention abrogated sovereign immunity for certain torts if
the facts underlying the torts occurred in the forum nation and
if “the author of the injury or damage was present in that
territory at the time.” European Convention on State
Immunity art. 11, reprinted in Hearings on H.R. 11,315
Before the Subcomm. on Admin. Law & Governmental
Relations of the H. Comm. on the Judiciary, 94th Cong. 39
(1976) (1976 Hearings). Kidane notes the absence of similar
language in section 1605(a)(5). We think Kidane reads too
much into the Congress’s silence.6 As the Supreme Court has
explained, the “Congress’ primary purpose in enacting
§ 1605(a)(5) was to eliminate a foreign state’s immunity for
traffic accidents and other torts committed in the United
States, for which liability is imposed under domestic tort
law.” Amerada Hess Shipping Corp., 488 U.S. at 439–40. It
is thus unsurprising that transnational cyberespionage should
lie beyond section 1605(a)(5)’s reach.
Kidane also directs us to the FSIA’s commercial activity
exception to illuminate section 1605(a)(5)’s boundaries. The
6
As the district court acknowledged, Doe, 189 F. Supp. 3d at
24, and as Ethiopia observes, when the State Department Legal
Adviser was asked whether there was any inconsistency between
the European Convention and the FSIA, he responded that—subject
to one discrepancy not relevant here—there generally was not.
1976 Hearings, at 37.
9
commercial activity exception authorizes claims “based upon
a commercial activity carried on in the United States by [a]
foreign state[.]” 28 U.S.C. § 1605(a)(2). He observes that the
Supreme Court, interpreting this provision, found instructive
the “point of contact” between the tort and its victim in
determining where the tort occurred. OBB Personenverkehr
AG v. Sachs, 577 U.S. ____, 136 S. Ct. 390, 397 (2015)
(internal quotation marks omitted). But Sachs underscores
why the commercial activity exception is of limited
usefulness here. There, the American plaintiff purchased a
European rail travel pass from a Massachusetts travel agent.
Id. at 393. When she used the pass to board the defendant
Austrian state-owned railway’s train in Innsbruck, Austria,
she fell onto the tracks, where the moving train crushed her
legs. Id. She sued, invoking the FSIA’s commercial activity
exception. Id. at 394. The Supreme Court concluded,
however, that her lawsuit was not “based upon” the domestic
sale of the rail pass. Id. at 393. It noted that “an action is
based upon the particular conduct that constitutes the
gravamen of the suit.” Id. at 396 (internal quotation marks
omitted). It explained that “the conduct constituting the
gravamen of [her] suit plainly occurred abroad.” Id.7 But
Sachs interpreted the commercial activity exception. And
unlike the commercial activity exception, the noncommercial-
tort exception does not ask where the “gravamen” occurred,
7
In so concluding, the Court quoted a letter written by Justice
Oliver Wendell Holmes to then-Professor Felix Frankfurter opining
that “the ‘essentials’ of a personal injury narrative will be found at
the ‘point of contact’—‘the place where the boy got his fingers
pinched.’” Sachs, 136 S. Ct. at 397. Kidane reads Sachs—
particularly its reliance on the “point of contact” language—as
confirming that “a tort occurs at the place where the injury was
inflicted upon the plaintiff.” Appellant’s Br. 14. We disagree with
his reading.
10
id.; instead, it asks where the “entire tort” occurred,
Asociacion de Reclamantes, 735 F.2d at 1525 (emphasis
added).
For the foregoing reasons, we affirm the district court’s
dismissal of Kidane’s intrusion-upon-seclusion claim for lack
of subject matter jurisdiction. Because the same reasoning
applies with equal force to Kidane’s Wiretap Act claim, we
affirm the dismissal of that claim as well.8
So ordered.
8
We do not reach the applicability of the FSIA provisions
governing discretionary functions or torts based upon
misrepresentation or deceit. See 28 U.S.C. § 1605(a)(5)(A)–(B);
see also supra n.4.