Rusesabagina v. Republic of Rwanda ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PAUL RUSESABAGINA, ef al.,
Plaintiffs
Vv. Civil Case No. 22-469 (RJL)
THE REPUBLIC OF RWANDA, ef al.,
Defendants
MEMORANDUM OPINION
March _| 6, 2023 [Dkt. # 29]
Plaintiffs Paul Rusesabagina (“Rusesabagina’’), his wife, and his six children
(collectively, “plaintiffs”) have sued the Republic of Rwanda, its President, Paul Kagame,
and Rwandan officials Johnston Busingye, Joseph Nzabamwita and Jeannot Ruhunga
(collectively, “Officials”) for harms stemming from Rusesabagina’s alleged kidnapping,
torture, and detention. Now before the Court is the Officials’ motion to dismiss. While
the Officials lack immunity and this court may exercise jurisdiction over them, some of
plaintiffs’ claims nonetheless are precluded by the act of state doctrine. As such, I will
GRANT in part and DENY in part the Officials’ [Dkt. # 29] motion.
BACKGROUND
I. Factual Background
The factual background underlying this case was described in detail in this Court’s
previous opinion granting the motion to dismiss filed by Rwanda and President Paul
Kagame. See Rusesabagina v. Rwanda, --- F. Supp. 3d ----, Civ. No. 22-469, 2023 WL
355951, at *1-2 (D.D.C. Jan. 23, 2023). The Court will therefore limit its recitation of
facts to those necessary to resolve the pending motion. Except where otherwise noted, the
recitation of facts is drawn from the Amended Complaint. See Am. Compl. (“Compl.”)
[Dkt. #17]. As always, in resolving a motion to dismiss, the Court accepts all well-pleaded
allegations in the Amended Complaint as true and draws all inferences in plaintiffs’ favor.
Bernier v. Allen, 38 F 4th 1145, 1149 (D.C. Cir. 2022).
As this Court previously noted, plaintiffs allege that the Rwandan Officials engaged
in a wide-ranging conspiracy to surveil, kidnap, and ultimately imprison plaintiff Paul
Rusesabagina in Rwanda. See Rusesabagina, 2023 WL 355951, at *1—2. Plaintiffs allege
that two critical elements of the scheme were carried out while Rusesabagina, a United
States lawful permanent resident living in San Antonio, Texas, was physically present in
the United States. See Am. Compl. §{ 93-95, 103, 133-46. First, plaintiffs allege that
agents of the Rwandan government illegally surveilled Rusesabagina and his daughter
while in the United States using spyware illegally planted on their telephones. Id. 4§ 102—
05. No later than 2018, Rwandan intelligence agents acting in furtherance of the
conspiracy allegedly infected Rusesabagina’s Belgian cell phone with Pegasus, a form of
spyware, while he was in Belgium. Jd. § 103. Rusesabagina continued to use that cell
phone when he returned to the United States to communicate by voice and text message.
Id.
Second, plaintiffs allege that a Rwandan bishop named Constantin Niyomungere
(“Niyomwungere’”’), acting in furtherance of the conspiracy and at the direction of the
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Officials, fraudulently induced Rusesabagina to travel from the United States to Burundi
via the United Arab Emirates in August 2020. Am. Compl. §§ 133-46. Specifically,
Niyomwungere invited Rusesabagina to travel to Burundi to speak to church groups and
civil society leaders about his experiences during the 1994 Rwandan genocide. Jd. § 137.
Plaintiffs do not have access to Rusesabagina’s cell phone records because his phone was
seized by defendants and remains in their possession, id. ¥ 139, but plaintiffs assert that
these plans were in place by early February 2020, id. ¥ 136.
Shortly thereafter, Niyomwungere was arrested by the Rwandan Intelligence
Bureau (“RIB”) on February 27, 2020. Jd. § 141. Under threat of prosecution, he was
compelled to cooperate with the RIB by “coordinating with RIB to bring about the
kidnapping.” Jd. §| 142. Over the course of the next few months, Niyomwungere, acting
at the direction of the RIB, convinced Rusesabagina to fly to Dubai via commercial carrier
and then to board a privately chartered airplane that would take Rusesabagina to Burundi.
Id. {| 143-46. Niyomwungere offered to charter a private plane specifically to assuage
Rusesabagina’s concerns that a commercial airliner flying to Burundi could be forced to
divert to Rwanda. Jd. | 145. In fact, that is exactly what Niyomwungere and his
coconspirators intended to do. See id. {{ 146-47. In the event, the Rwandan government
chartered a private aircraft for Niyomwungere and Rusesabagina’s flight, id. § 152, and the
aircraft took Rusesabagina to Rwanda against his will, id. § 150.
Finally, plaintiffs have made specific allegations about the involvement of each
Official in the broader conspiracy to surveil and kidnap Rusesabagina. General Joseph
Nzabamwita, the head of Rwanda’s National Intelligence and Security Services, allegedly
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admitted that he “executed” the plot to kidnap Rusesabagina “from the planning to the full
execution, when he landed in Kigali.” Jd. ¢ 160. Similarly, Johnston Busingye, the former
Minister of Justice, allegedly admitted his involvement in the plan to pay for the private
aircraft used to kidnap Rusesabagina. Jd. § 167. And Colonel Jeannot Ruhunga both heads
the RIB, which allegedly planned and executed the scheme, and was personally involved
in its oversight. Jd. | 168.
I. Procedural Background
Plaintiffs initiated this suit on February 22, 2022 and filed the operative Amended
Complaint on May 31, 2022. See Complaint [Dkt. # 1]; Am. Compl. The Officials jointly
moved to dismiss on July 26, 2022. See Mot. of Defs. Johnston Busingye, Joseph
Nzabamwita, and Jeannot Ruhunga, High Gov’t Officials (Collectively, the “Officials”) of
the Republic of Rwanda (“Rwanda”), to Dismiss the Am. Compl. (“Officials’ Mot.”) [Dkt.
# 29].! The motion has been fully briefed and is now ripe.
LEGAL STANDARD
In resolving a motion to dismiss for lack of subject-matter jurisdiction under Rule
12(b)(1), the Court should “engage in sufficient pretrial factual and legal determinations to
‘satisfy itself of its authority to hear the case’ before trial.” Jungquist v. Sheikh Sultan Bin
Khalifa Al Nahyan, \15 F.3d 1020, 1027-28 (D.C. Cir. 1997) (quoting Foremost-
McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 449 (D.C. Cir. 1990)). Foreign
' This Court previously granted motions to dismiss filed by Rwanda and President Paul Kagame.
See generally Rusesabagina, 2023 WL 355951.
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diplomats and certain other foreign officials are immune from civil process in United States
courts. See Lewis v. Mutond, 918 F.3d 142, 145-46 (D.C. Cir. 2019).
In resolving a motion to dismiss for lack of personal jurisdiction under Rule
12(b)(2), “the plaintiff bears the burden of ‘establishing a factual basis for the exercise of
personal jurisdiction’ over each defendant.” Triple Up Ltd. v. Youku Tudou Inc., 235
F.Supp.3d 15, 20 (D.D.C. 2017) (Moss, J.) (quoting Crane v. N.Y. Zoological Soc’y, 894
F.2d 454, 456 (D.C. Cir. 1990)), aff'd, No. 17-7033, 2018 WL 4440459 (D.C. Cir. July 17,
2018). “When ruling on a 12(b)(2) motion, the court ‘may receive and weigh affidavits
and any other relevant matter to assist it in determining the jurisdictional facts.’” Doe 1 v.
Buratai, 318 F.Supp.3d 218, 226 (D.D.C. 2018) (Friedrich, J.) (quoting Triple Up Ltd., 235
F.Supp.3d at 20).
Finally, to survive a motion to dismiss under Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In resolving a motion to dismiss, the court accepts
as true all well-pleaded allegations in the amended complaint and draws all reasonable
factual inferences in favor of the plaintiff. Bernier, 38 F.4th at 1149. However, if an
element of a plaintiffs claim requires a determination that an official act of a foreign state
in that foreign state’s territory was illegal, then the court must dismiss that claim as a matter
of law under the act of state doctrine. See Banco Nacional de Cuba v. Sabbatino, 376 U.S.
398, 439 (1964).
DISCUSSION
The Officials argue that they are immune from suit, challenge the exercise of
personal jurisdiction, and raise a variety of merits defenses. The Court will address each
in turn.
1. Foreign-Sovereign Official Immunity
The Officials argue that they are immune from suit under the foreign-sovereign
official immunity doctrine. See Officials’ Mot. to Dismiss at 7. Because their argument,
if accepted by the Court, would “provide[] protection from suit and not merely a defense
to liability,” the Court should “engage in sufficient pretrial factual and legal determinations
to ‘satisfy itself of its authority to hear the case’ before trial.”? Jungquist, 115 F.3d at
1027-28 (quoting Foremost-McKesson, 905 F.2d at 449). Courts recognize two forms of
this immunity: status-based immunity and conduct-based immunity. The Officials argue
both apply. Officials’ Mot. to Dismiss . at 9-19. Neither does!
Status-based immunity “is reserved for diplomats and heads of state and attaches
‘regardless of the substance of the claim.’” Lewis, 918 F.3d at 145 (quotation omitted).
“Diplomatic immunity is governed by the Vienna Convention on Diplomatic Relations.”
Muthana v. Pompeo, 985 F.3d 893, 903 (D.C. Cir. 2021); see also Vienna Convention on
Diplomatic Relations, Apr. 23, 1961, 23 U.S.T. 3227 (the “Vienna Convention”).
* The Officials do not contest this Court’s jurisdiction over plaintiffs’ federal claims under 28
U.S.C. § 1331. Plaintiffs’ state-law claims arise from the same events and are so closely intertwined as to
be part of the same controversy, so jurisdiction over those claims is also proper. Id. § 1367(a).
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Diplomatic immunity extends only to persons “entitled to immunity with respect to
such action or proceeding under the Vienna Convention on Diplomatic Relations,” an
international treaty to which the United States is a party. 22 U.S.C. § 254d. The Vienna
Convention, in turn, provides that a “diplomatic agent shall enjoy immunity from the
criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and
administrative jurisdiction ....” Vienna Convention, Art. 31(1) (emphasis added). By its
express terms, Article 31 protects only those diplomats who have been received by the state
that might exercise jurisdiction. In contrast, a “third state’—i.e. a state other than a
diplomat’s home country or the country to which she has been posted—is only bound to
extend immunity to the official in limited circumstances. See id. Art. 40. The Convention
does not extend any form of immunity to a diplomat who is neither posted to nor compelled
to be physically present in a State that would exercise jurisdiction. See generally id.
Turning to the facts at hand, none of the three Officials are entitled to status-based
immunity. Two—Brigadier General Joseph Nzabamwita and Colonel Jeannot Ruhunga—
are neither diplomats nor heads of state: Nzabamwita is the Secretary General of the
Rwandan National Intelligence and Security Services and Ruhunga oversees the RIB. Am.
Compl. 4 32-33. Accordingly, neither is entitled to status-based immunity under any
theory. See Lewis, 918 F.3d at 145.
Unfortunately for Busingye, while he is a diplomat, he is not entitled to immunity
in a United States court. Busingye is currently posted as High Commissioner to the United
Kingdom, Non Resident Ambassador to Ireland, and Non Resident High Commissioner to
Malta. Officials’ Mot. to Dismiss at 2. As such, while Busingye falls within the category
of persons to whom status-based immunity can attach, immunity from suit in court in the
United States extends only to those diplomats posted to the United States itself, or
physically present in this country for certain reasons not applicable here. See 22 U.S.C.
§ 254; Vienna Convention Art. 31(1). Were Busingye to be posted to the United States, a
different outcome would result. But he is not, so he is not entitled to such immunity.
The Officials also argue that they are entitled to conduct-based immunity. To
resolve whether a particular foreign official is entitled to conduct-based immunity, courts
apply a two-step procedure. Lewis, 918 F.3d at 145-46 (citing Samantar, 560 U.S. at 311—
12). At the first step, the foreign official requests a “suggestion of immunity” from the
State Department. Jd. at 145. If the State Department notifies the district court that the
officials are immune, that determination is binding on the judiciary and the district court
must dismiss the suit. Jd. But if the State Department does not file such a notice, as is the
case here, the district court itself resolves the question of immunity itself. Id. at 145-46.
The parties agree that the Court should apply the three-part test outlined in the
Second Restatement of Foreign Relations law to determine if immunity applies. See
Officials’ Mot. at 8-9; Pls’ Resp. to Defs. Johnston Busingye’s, Joseph Nzabamwita's, and
Jeannot Ruhunga’s Motion to Dismiss the Am. Compl. (“Pls.’ Opp. to Officials’ Mot.”)
[Dkt. # 34] at 15 n.6. Neither the Supreme Court, nor our Circuit Court, has resolved
whether the Restatement “correctly sets out the scope of the common-law immunity
applicable to current or former foreign officials.” Lewis, 918 F.3d at 146 (quoting
Samantar, 560 U.S. at 321 n.15). But given that the parties in this case agree that it
correctly describes the law, the Court adopts that test to resolve that question in this case.
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See id. (“Here, however, both parties assume § 66 accurately sets out the scope of common-
law immunity for current or former officials, [] and we therefore proceed on that
understanding without deciding the issue.”).
Under the Restatement test, a foreign official is entitled to conduct-based immunity
if: (1) he is a “public minister, official, or agent” of the foreign state; (2) the acts underlying
the suit were “performed in his official capacity”; and (3) “the effect of exercising
jurisdiction would be to enforce a rule of law against the state.” Restatement (Second) of
Foreign Relations Law (“Restatement”) § 66(f). An official must establish all three
elements to establish immunity. Lewis, 918 F.3d at 146. A decision would have the effect
of “enforc[ing] a rule of law against the state” if the judgment against an official “would
bind (or be enforceable against) the foreign state.” Jd.
The Officials here cannot meet their burden of showing that a decision against them
would enforce a rule against the state because a decision against any Official would only
be binding on that person, not on Rwanda itself. Defendants have not shown that plaintiffs
“seek[] to draw on [Rwanda]’s treasury or force the state to take specific action, as would
be the case if the judgment were enforceable against the state.” Jd. at 147. Instead, each
Official is sued only in his individual capacity. Pls.’ Opp. to Officials’ Mot. at 15; see also
Lewis, 918 F.3d at 147. Because this is fatal to the Officials’ conduct-based immunity
argument, the Court need not resolve the Parties’ dispute whether the challenged conduct
was performed in an “official capacity.” See Lewis, 918 F.3d at 147. As such, no form of
immunity applies.
I. Personal Jurisdiction
The Officials also move to dismiss under Rule 12(b)(2), arguing that they are not
subject to the personal jurisdiction of this Court. Plaintiffs, in turn, argue that the Officials
are subject to jurisdiction in the District of Columbia under Rule 4(k)(1), or, in the
alternative, that jurisdiction is proper because the Officials have sufficient minimum
contacts with the United States to render jurisdiction proper despite not being subject to
personal jurisdiction in the courts of general jurisdiction of any state under Rule 4(k)(2).
This Court has jurisdiction over the Officials under the latter theory.
A. Service of Process
To establish personal jurisdiction under either provision of Rule 4(k), plaintiffs must
show that they have effectuated service on the Officials. See Fed. R. Civ. P. 4(k)(1), (k)(2);
Mwani v. Bin Laden, 417 F.3d 1, 8 (D.C. Cir. 2005). Contesting sufficiency of service, the
Officials argue that plaintiffs failed to comply with the provisions of Rule 4 because
certified mail does not suffice under Rwandan law and the Officials did not actually receive
the summons and Amended Complaint. Both arguments fail.
Rule 4 authorizes service on an individual in a foreign country by means “authorized
by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.”
Fed. R. Civ. P. 4(f)(1). Article 10(a) of the Hague Convention, in turn, authorizes service
“by postal channels.” Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters art. 10(a), Nov. 15, 1965, 658
U.N.T.S. 163. Courts that have considered the issue have held that service by means of
mail or commercial carrier on individual defendants located in the United Kingdom, a party
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to the Hague Convention, is proper. See, e.g., Birmingham v. Doe, 593 F. Supp. 3d 1151,
1159-60 (S.D. Fla. 2022). Alternatively, service of process of a defendant in a foreign
country that is not party to the Hague Convention or a similar regime—like Rwanda—is
sufficient if it is made “using any form of mail that the clerk addresses and sends to the
individual and that requires a signed receipt” as long as that method “is not prohibited by
the foreign country’s law.” Fed. R. Civ. P. 4(f)(2)(C), (C)(ii).
In this case, all three Officials were properly served. The summons and Amended
Complaint were received and signed for at defendant Ruhunga’s Rwanda office on July 5,
2022, and at defendant Nzabamwita’s office on July 6, 2022. While neither Official
personally signed for the documents, that is unnecessary. Rule 4 permits plaintiffs to prove
service “by other evidence satisfying the court that the summons and complaint were
delivered to the addressee.” Fed. R. Civ. P. 4())(2)(B). Plaintiffs have provided affidavits
and FedEx tracking documents showing that the Amended Complaint and summons were
“delivered to” Ruhunga and Nzabamwita at their places of work. See Aff. Of Service of
Def. Joseph Nzabamwita, Decl. of Tracey Chappell, Ex. 1, Ex. 2 [Dkt. # 27-1]; Aff. Of
Service of Def. Jeannot Ruhunga, Decl. of Tracy Chappell, Ex. 1, Ex. 2 [Dkt. # 28-1].
Further, the Officials’ argument notwithstanding, plaintiffs have met their burden of
establishing that service by mail is not “prohibited by [Rwandan] law.” Plaintiffs have
provided the Court sworn affidavits from two experts on Rwandan law for the proposition
that service by mail is not prohibited by Rwandan law. See Pls. Opp. to Officials’ Mot.
Ex. 4, Decl. of Remy Niyibizi (“Niyibizi Decl.”) 2-3; id. Ex. 5, Decl. of I. Edwards
(“Edwards Decl.”) 24 [Dkt. # 34-5]. Plaintiffs have satisfied Rule 4’s requirements.
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As for defendant Busingye, plaintiffs effectuated service upon him at his London
place of business on June 30, 2022, via international priority mail. Service of process by
international priority mail on a person in the United Kingdom is sufficient to satisfy the
requirements of Rule 4. See Fed. R. Civ. P. 4(f)(1); Birmingham, 593 F. Supp. 3d at 1159-
60. The summons and Amended Complaint were returned to plaintiffs’ counsel, with the
envelope having been opened and resealed with scotch tape, Busingye’s address crossed
out in black ink, and the words “send away” written on the address label with an arrow
pointing to plaintiffs’ counsel’s address. See Aff. of Service of Process of Def. Johnston
Busingye (“Jacque Aff.”) [Dkt. # 33]. The Court credits the affidavit submitted by
plaintiffs’ counsel stating that the individual who sealed the envelope did not use scotch
tape to do so. Id. § 12. The logical inference is that Busingye (or his agent) received the
documents, opened the envelope, viewed the contents, and only then directed them to be
returned to the sender. This is insufficient to avoid service. As my former colleague Judge
Roberts found in another case, service of process requires “actual notice” and “a good faith
effort to serve the defendant pursuant to the federal rule.” Ali v. Mid-Atlantic Settlement
Servs., 233 F.R.D. 32, 36 (D.D.C. 2006) (Roberts, J.). “Good faith efforts at service are
effective particularly where the defendant has engaged in evasion, deception, or trickery to
avoid being served.” Jd. Plaintiffs have complied with the requirements of Rule 4 in good
faith. Busingye’s artful attempts to evade service are unavailing.
All three Officials were properly served. Thus, the Court must resolve whether
plaintiffs have otherwise alleged sufficient facts to establish personal jurisdiction.
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B. Rule 4(k)(1)
Rule 4(k)(1) allows a federal district court to establish personal jurisdiction over a
defendant if the defendant would be subject to the jurisdiction of a state court of general
jurisdiction in the judicial district in which the federal court sits. Fed. R. Civ. P. 4(k)(1)(A).
Specific jurisdiction comports with due process where there are “(1) minimum contacts
demonstrating that the defendant purposefully availed itself of the forum; (2) relatedness
between the contacts and the claim”; and (3) the exercise of jurisdiction otherwise
“compli[es] with ‘fair play and substantial justice.’” Atchley v. AstraZeneca UK Ltd., 22
F.4th 204, 233 (D.C. Cir. 2022). The Washington, D.C., long-arm statute grants personal
Jurisdiction over claims arising from a defendant’s “transacting any business in the District
of Columbia,” whether in person or by an agent. D.C. Code § 13-423(a)(1). The longarm
statute’s reach under this provision is coextensive with the limits set by the Due Process
Clause. Forras v. Rauf, 812 F.3d 1102, 1106 (D.C. Cir. 2014) (quotations omitted).
Furthermore, a court may assert jurisdiction over defendants outside the forum based on a
co-conspirator’s case-related contacts with the forum if the plaintiff pleads “with
particularity the conspiracy as well as the overt acts within the forum taken in furtherance
of the conspiracy.” Jungquist, 115 F.3d at 1031 (quotations omitted).
Plaintiffs have not satisfied their burden under Rule 4(k)(1). The Amended
Complaint alleges facts which, taken as true, establish the existence of a conspiracy to spy
on Rusesabagina while in his Texas home, lure him abroad, kidnap him, and forcibly bring
him to Rwanda where he was tortured and imprisoned. Moreover, the Amended Complaint
adequately alleges the central role played by the RIB and its top leadership, including the
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Officials, in that conspiracy. However, plaintiffs did not plead specific acts within the
District of Columbia that would give a court of general jurisdiction in the District of
Columbia jurisdiction over the Officials. Instead, plaintiffs rely on the inference that
Rwanda’s ambassador and other embassy staff, who are not named as parties, took certain
unspecified actions to “coordinate” or “direct” the actions of other agents of the Rwandan
government, operating elsewhere within the United States, to harass or surveil
Rusesabagina.*? The claimed harmful conduct itself occurred outside the District of
Columbia. The only nexus to the District alleged in the Amended Complaint is that certain
activities of the conspiracy were coordinated through the Rwandan Embassy, which is
physically located in the District of Columbia. See Am. Compl. ¥§ 85, 105, 122-26. These
allegations are insufficient to establish the requisite minimum contacts necessary to
establish personal jurisdiction. See Iqbal, 556 U.S. at 678.
C. Rule 4(k)(2)
Unfortunately for the Officials, however, they are still subject nonetheless to this
Court’s jurisdiction under Rule 4(k)(2). Rule 4(k)(2) “is essentially a federal long-arm
statute.” Atchley., 22 F.4th at 231. The rule permits a federal court to establish personal
jurisdiction over a foreign defendant for “(1) claims arising under federal law (2) where a
summons has been served, (3) if the defendant is not subject to the jurisdiction of any single
> To the extent that plaintiffs’ amended complaint can be read to allege specific acts, they must be
read as acts “[falling] within [the] official duties” of the Rwandan diplomats working at the Rwandan
Embassy in Washington, D.C. Jungquist, 115 F.3d 1031. Our Circuit Court has held that this Court cannot
establish personal jurisdiction over defendants outside the forum in cases in which the only nexus with the
District is official acts of embassy-based personnel. Jd.
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state court, (4) provided that the exercise of federal jurisdiction is consistent with the
Constitution (and laws) of the United States.” Mwani, 417 F.3d at 10. “Whether the
exercise of jurisdiction is ‘consistent with the Constitution’ for purposes
of Rule 4(k)(2) depends on whether a defendant has sufficient contacts with the United
States as a whole to justify the exercise of personal jurisdiction under the Due Process
Clause of the Fifth Amendment.” Jd. at 11 (citations omitted). That, in turn, requires a
court find “(1) minimum contacts demonstrating that the defendant purposefully availed
itself of the forum; (2) relatedness between the contacts and the claim; and (3) compliance
with “fair play and substantial justice.” Atchley, 22 F.4th at 233.
Plaintiffs’ Amended Complaint does satisfy these requirements! Plaintiffs bring
multiple claims under federal law, including alleged violations of the Electronic
Communications Privacy Act, Torture Victim Protection Act, and Alien Tort Statute. See
generally Am. Compl. They have perfected service upon each Official. And the Officials
have declined to identify any state court of general jurisdiction in which they would consent
to personal jurisdiction. Under our Circuit Court’s precedent, that is sufficient for plaintiffs
to establish that the Officials are not subject to suit in any single state court. Mwani, 417
F.3d at 11. The critical question, then, is whether “the exercise of federal jurisdiction is
consistent with the Constitution (and laws) of the United States.” Jd. at 10. Put differently,
plaintiffs must allege sufficient minimum contacts between the Officials and the United
States, as a whole; that their claims arise from those contacts; and that the exercise of
personal jurisdiction would be consistent with norms of “fair play and substantial justice.”
Atchley, 22 F.4th at 233. Plaintiffs have met their burden here. How so?
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As to Atchley’s first prong, plaintiffs have alleged two critical, related contacts
between the Officials or their co-conspirators and the United States. First, they allege that
the conspirators monitored Rusesabagina’s communications on his Belgian cell phone
using spyware while Rusesabagina was in Texas. Am. Compl. §{ 103-04. Second, they
allege that the conspirators defrauded Rusesabagina by making “false statements ...
describing non-existent speaking opportunities with false promises of pay and employment
in Burundi.” Jd. § 224. The purpose of those false statements was to lure Rusesabagina
out of the United States and onto a private aircraft so that he could be brought to Rwanda
against his will. Jd. Rusesabagina was physically in the United States when those
statements were made. Jd. Moreover, the timing of Niyomwungere’s arrest by the RIB
supports the logical inference that that he was targeted by Rwandan security services
because its agents became aware that he was coordinating a possible trip to Burundi with
Rusesabagina. Specifically, the amended complaint alleges that Rusesabagina and
Niyomwungere began to firm up the specifics of the travel plans in early 2020. See id.
{ 136. Within a matter of weeks, the RIB arrested Niyomwungere and accused him of
conspiring with Rusesabagina. Jd. { 140-43. Niyomwungere, threatened with prosecution
himself, agreed to help the Rwandan government by convincing Rusesabagina to travel to
a location where he would be susceptible to kidnapping. Id. J 143.
According to the amended complaint, at the time these events transpired, the RIB
had access to Rusesabagina’s communications on his Belgian cell phone. Id. J 103.
Rusesabagina used that phone to communicate “with those who only had the phone number
of his Belgian cellphone.” Jd. And Rusesabagina met Niyomwungere in Belgium in 2017.
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Id. { 133. The logical inference is that the conspirators became aware of Niyomwungere
by intercepting communications between the two men using Rusesabagina’s telephone.
The RIB then exploited that knowledge by forcing Niyomwungere to lure Rusesabagina
from his safe haven in the United States through a series of false representations about the
planned Burundi trip.
These allegations satisfy the first two prongs laid out in Atchley. First, plaintiffs
have alleged sufficient facts to establish two critical contacts between the conspirators and
the United States: (1) the illegal monitoring of Rusesabagina’s phone over a period of at
least a year and (2) fraudulent statements relating the proposed Burundi trip. See
Restatement (First) of Conflict of Laws § 377, Note 4 (1934) (“When a person sustains
loss by fraud, the place of wrong is where the loss is sustained, not where fraudulent
representations are made.”). Those are sufficient minimum contacts. See Atchley, 22 F.4th
at 233. Moreover, Rusesabagina’s alleged harms flow directly from the Officials’
surveillance of him and their alleged exploitation of the information gleaned from that
spying to lure him to Dubai where he could be kidnapped. Am. Compl. §§ 103, 133-46.
Finally, the exercise of jurisdiction over the Officials would comport with “fair play
and substantial justice.” Atchley, 22 F.4th at 233. Applying the four-part test established
by the Supreme Court in Burger King Corp. v. Rudzewicz, the Court finds that the burden
on the Officials, while significant, does not outweigh the United States’ interest in
adjudicating this case, plaintiffs’ interest in convenient and effective relief, and the judicial
system’s interest in the efficient resolution of plaintiffs’ claims. 471 U.S. at 477; see also
Atchley, 22 F Ath at 234. First, the Amended Complaint alleges the existence and operation
17
of a conspiracy operating in part within the United States targeting a United States resident.
The Officials argue that the forum—the entire United States for purposes of Rule 4(k)(2)—
lacks any interest in resolving the case. This position is predicated on their argument that
they have had no contacts with the United States relevant to plaintiffs’ claims. Having
rejected the latter proposition, the Court now rejects the former as well. Second, plaintiffs
have a clear interest in litigating in this forum. Of the eight named plaintiffs, two are
American citizens and four others, including Paul Rusesabagina, are lawful permanent
residents of the United States. Moreover, one plaintiff, Rusesabagina’s daughter Anaise
Umubyeyi Kanimba, lives in Washington, D.C., see Compl. § 19, and plaintiffs’ choice to
bring this lawsuit in this district signals their interest in litigating here. As such, plaintiffs
have alleged sufficient interest in litigating in this forum. Third, the judicial system
maintains a strong interest in the efficient resolution of a complaint, brought by a
combination of U.S. residents and citizens, alleging criminal conduct directed at the United
States for the purpose of kidnapping and mistreating a resident of the United States.
While Rule 4(k)(2) only establishes personal jurisdiction over the Officials with
respect to claims under federal law, the Court may also exercise personal jurisdiction over
the Officials in resolving the related state-law claims under the doctrine of pendant
jurisdiction. The doctrine of pendent jurisdiction allows a plaintiff in federal court to
“obtain personal jurisdiction over the defendant with respect to any of his claims that arose
out of the same core of operative fact” giving rise to the underlying federal claims. Oetiker
v. Jurid Werke, G. m. b. H., 556 F.2d 1, 4 (D.C. Cir. 1977) (citing United Mine Workers v.
Gibbs, 383 U.S. 715, 725 (1966)). In this case, plaintiffs’ state law claims all arise from
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the same “core of operative fact” on which the federal claims are based. See generally
Compl. Therefore, the Court can exercise personal jurisdiction over the Officials as to
those claims.
Il. Merits Analysis
The Officials, adopting Rwanda’s brief, next challenge the sufficiency of plaintiffs’
claims. The Officials both invoke the act of state doctrine and argue that plaintiffs have
failed to make out a claim as to each count. See Officials’ Mot. at 33; Rwanda’s Mot. at
25~28. I will therefore proceed in two steps; first assessing the applicability, if any, of the
act of state doctrine to plaintiffs’ claims, and then resolving the Officials’ challenges to any
surviving claims on the merits.
A. Act of State Doctrine
The Officials move to dismiss plaintiffs’ Amended Complaint on the grounds that
the act of state doctrine bars plaintiffs’ claims. While it does bar some, it does not bar all
of their claims.
The act of state doctrine prohibits U.S. courts from “declar[ing] invalid the official
act of a foreign sovereign performed within its own territory.” W.S. Kirkpatrick & Co. v.
Env’tl Tectonics Corp., Int’l., 493 U.S. 400, 405 (1990). “The doctrine reflects the
prudential concern that the courts, if they question the validity of sovereign acts taken by
foreign states, may be interfering with the conduct of American foreign policy by the
Executive and Congress.” Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 707
(9th Cir. 1992) (citing W.S. Kirkpatrick, 493 U.S. at 404). In cases in which it applies, the
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act of state doctrine does not divest district courts of jurisdiction over a particular category
of claims, but it does establish a rule of decision that “the acts of foreign sovereigns taken
within their own jurisdictions shall be deemed valid.” W.S. Kirkpatrick., 493 U.S. at 409.
The act of state doctrine may apply “when the outcome turns upon the legality or illegality
... of official action by a foreign sovereign performed within its own territory.” Riggs Nat'l
Corp. & Subsidiaries v. Comm'r, 163 F.3d 1363, 1367 (D.C.Cir.1999); see also W.S.
Kirkpatrick, 493 U.S. at 406. The party invoking the act of state doctrine bears the burden
of proving its applicability. See Agudas Chasidei Chabad of United States v. Russian
Federation, 528 F.3d.934, 951 (D.C. Cir. 2008).
If the doctrine is invoked, courts must first resolve the threshold question whether a
foreign sovereign has in fact taken “an official act” within its territory. Courts then
consider three principal factors in assessing whether the act of state doctrine applies:
(1) whether consensus exists as to the particular question of international law at issue;
(2) the degree to which the contested issue implicates the United States’ foreign relations;
and (3) whether the government that carried out the challenged act is still in power. See
Sabbatino, 376 U.S. at 427-28; see also Doe v. State of Israel, 400 F. Supp. 2d 86, 113
(D.D.C. 2005) (Bates, J.). If the act of state doctrine applies, the “act within its own
boundaries of one Sovereign state ... becomes ... a rule of decision for the courts of this
country.” W.S. Kirkpatrick & Co., 493 U.S. at 406 (quotations and citations omitted).
However, “[t]he act of state doctrine does not establish an exception for cases and
controversies that may embarrass foreign governments, but merely requires that, in the
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process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall
be deemed valid.” Jd. at 409.
Adopting Rwanda’s brief, the Officials argue that the act of state doctrine applies to
all Counts. However, for the reasons that follow, the Court finds that the doctrine applies
only as to Counts III (solatium), IV (false imprisonment), V (assault), VI (battery), VII
(intentional infliction of emotional distress), and VIII (loss of consortium).
Counts II-VI, all common-law claims, contest the legality of Rwanda’s
imprisonment of Rusesabagina and his treatment by his Rwandan captors, in Rwanda. The
first question is whether the challenged conduct was “official conduct” of the Rwandan
government. It was. Plaintiffs challenge the acts of Rwandan law enforcement officers
who arrested, charged, detained, and allegedly mistreated Rusesabagina while he was in
Rwandan custody in a Rwandan prison. The fact that those alleged acts were reprehensible
does not mean that they were not “official action[s]” of the Rwandan Government. See
Doe, 400 F. Supp. 2d at 114 (finding that the act of state doctrine may apply even to
allegations of jus cogens norms); cf Saudi Arabia v. Nelson, 507 U.S. 349, 361 (1993) (“A
foreign state’s exercise of the power of its police [,] ... however monstrous such abuse
undoubtedly may be, ... [is] peculiarly sovereign in nature.”).
The Court next applies the three-factor test derived from Banco Nacional de Cuba
v. Sabbatino to resolve whether those official acts are subject to the act of state doctrine.
They are. Plaintiffs easily satisfy the first prong of the test. The Officials do not contest
that the illegality of torture and illegal detention are well-established under international
law. Indeed, the prohibition of torture is a paradigmatic example of jus cogens, defined by
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our Circuit Court as “peremptory norms [that] are nonderogable and enjoy the highest
status within international law.” Comm. of U.S. Citizens Living in Nicaragua v. Reagan,
859 F.2d 929, 940, 942 (D.C. Cir. 1988).
As to the second prong, the U.S. Government, via the State Department, has already
taken a position on this issue, finding that Rwanda has “wrongfully detained” Rusesabagina
and transferring responsibility for overseeing his case to the Special Presidential Envoy for
Hostage Affairs. See Pls. Resp. to Rwanda, Ex. A, Letter from Roger D. Carstens, Special
Presidential Envoy for Hostage Affairs, May 6, 2022 [Dkt. # 31-1]. That finding requires
a determination by the Secretary of State that, “based on the totality of the circumstances,
there is credible information that the detention of a United States national abroad is
unlawful or wrongful.” Plaintiffs argue that this resolves the question in their favor. 22
U.S.C. § 1741(b). However, “[t]he dangers of [hearing the case] are present regardless of
whether the State Department has, as it did in this case, asserted that the relevant act
violated international law.” Sabbatino, 376 U.S. at 432. Indeed, subsequent public
statements by the Department of State suggest that diplomatic efforts are ongoing. See 22
U.S.C. § 1741a; Letter from Roger Carstens, Pls. Opp. to Rwanda’s Mot., Ex. A.The Court
is reluctant to insert itself into those negotiations. This factor, then, favors the Officials’
position.
As to the third prong, the fact that the same Rwandan government that allegedly
harmed Rusesabagina is still in power weighs heavily against plaintiffs, because it tends to
increase the likelihood that judicial involvement would implicate those ongoing diplomatic
efforts. See, e.g., Warfaa v. Ali, 33 F. Supp. 3d 653, 662 (E.D.Va. 2014) (noting that the
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fact that the regime alleged to have harmed the plaintiff was no longer in power lessened
the likelihood that allowing the suit would “give rise to any new hostilities or political
tensions”). In light of the totality of the circumstances, the Court finds that the act of state
doctrine properly applies to Counts III—VIII, which cannot be resolved in plaintiffs’ favor
without a finding that official acts taken by Rwanda in its own territory were unlawful.
Because application of the doctrine precludes plaintiffs from establishing a necessary
element of those counts, they must be dismissed.
The act of state doctrine, of course, applies only to those official acts taken in
Rwanda. However, plaintiffs have also alleged that the Officials committed, directed
others to commit, or conspired to commit various other illegal acts outside Rwanda. These
include false statements to lure Rusesabagina from his Texas home to Dubai (Count J), acts
in furtherance of a civil conspiracy that occurred, at least in part, in Dubai (Count II), and
illegally intercepting plaintiffs’ electronic communications in the United States and
elsewhere (Counts IX and X). Because plaintiffs could prevail on those claims without the
Court finding that an official act of the Rwandan government, in Rwanda, was illegal, the
act of state doctrine does not bar those claims. Nor does the Court find that the act of state
doctrine bars plaintiffs’ claims against the Officials under the TVPA (Count XI) or ATS
(Counts XJ and XIII). How so?
First, while Rwanda raised the act of state doctrine in its motion to dismiss, those
counts were not brought against Rwanda, so Rwanda did not raise the act of state doctrine
with respect to those claims. See Rwanda’s Mot. to Dismiss at 25—28. Nor did the Officials
raise the act of state doctrine in their own pleading other than by a general incorporation of
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Rwanda’s motion. See Officials’ Mot. to Dismiss at 33. As the party invoking the doctrine,
the burden is on the Officials to show that it applies. See Agudas, 528 F.3d at 951. But the
Officials here have advanced no argument that resolving these statutory claims in
plaintiffs’ favor would require finding that an official act done by Rwandan officials in
Rwandan territory was unlawful.
Even if Rwanda and the Officials’ motions were read to encompass those claims,
the Officials’ argument still fails. Count XII alleges that the Officials violated the
prohibition on enforced disappearances under international law. But resolving plaintiffs’
claim would not require a finding that Rwandan agents acted illegally in Rwanda; the
tortious act occurred when the Officials, working with Niyomwungere, caused
Rusesabagina to be kidnapped while aboard a private jet from Dubai to Burundi and
diverted the aircraft. Because the tort occurred before the aircraft arrived in Rwanda, the
act of state doctrine does not bar plaintiffs’ claim. Similarly, Count XIII, plaintiffs’ other
claim under the ATS, alleges that the Officials violated the well-settled prohibition against
a sovereign state exercising its enforcement jurisdiction in the territory of another
sovereign state. See Am. Compl. { 300. As with Count XII, the relevant underlying
conduct relevant to Count XII—specifically fraudulently inducing Rusesabagina to leave
the United States and then seizing him—occurred outside Rwanda. By definition, the
tortious violation of the enforcement jurisdiction of another sovereign can only occur
outside the territory of the state whose official is accused of such conduct. As such, neither
Count XII nor Count XIII is barred by the act of state doctrine.
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Finally, plaintiffs’ claims under the TVPA alleged in Count X are not barred by the
doctrine. Unlike plaintiffs’ claims under the ATS, the TVPA claim squarely challenges
the legality of actions of Rwandan officials in Rwanda, thus implicating the act of state
doctrine. However, in light of the statutory framework of the TVPA, the court’s prudential
concerns must yield to the considered judgment of Congress that federal courts exercise
jurisdiction over complaints like that brought by plaintiffs. See Sabbatino, 376 U.S. at
427-28.
As noted previously, the first part of Sabbatino’s three-part test strongly favors
plaintiffs. There is no question that “consensus exists as to the particular question” whether
torture is illegal under customary international law: it is. Our Circuit Court, other courts,
and other authorities unanimously consider the prohibition on torture as a jus cogens norm
from which no derogation is permitted. See, e.g., Princz v. Fed. Republic of Germany, 26
F.3d 1166, 1173 (D.C. Cir. 1994); see also Sampson v. Fed. Republic of Germany, 250
F.3d 1145, 1151 (7th Cir. 2001); Siderman de Blake v. Republic of Argentina, 965 F.2d
699, 717 (9th Cir. 1992); Restatement (Third) of the Foreign Relations Law of the United
States (1987) § 702(d), cmt. n.
The critical difference between plaintiffs’ common law battery claims alleging
conduct amounting to torture and their claims under the TVPA is the existence of a specific
congressional enactment authorizing the latter claims to proceed. See Torture Victim
Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73(codified at 28 U.S.C. § 1350note). The statute provides that a defendant “under actual or apparent authority, or color
of law, of any foreign nation” is liable to a plaintiff ifthe defendant “subjects [that plaintiff]
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to torture.” Id. § 2(a), 2(a)(1) (emphasis added). By its terms, the TVPA applies only to
foreign officials acting in their official capacities. See id. Moreover, Congress enacted the
TVPA against the longstanding, baseline principle that foreign officials can only exercise
“actual” authority within the territory of their respective sovereign. See F.T.C. v.
Compagnie De Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300, 1313 & n.67 (D.C. Cir.
1980) (“[T]he first and foremost restriction imposed by international law upon a State is
that failing the existence of a permissive rule to the contrary it may not exercise its powers
in any form in the territory of another State.”) (quoting Case of The S.S. “Lotus,” (1927)
P.C.L.J., Ser. A., No. 10 at 18, 2 M. Hudson, World Court Reports 20, 35 (1935)). By its
own terms, then, the language of the statute unambiguously establishes the jurisdiction of
the federal courts over a narrow range of conduct—officially sanctioned torture abroad—
that would otherwise be deemed immune from challenge in United States courts under the
act of state doctrine. The statutory language reflects Congress’s determination that courts
need not consider “the degree to which the contested issue implicates the United States’
foreign relations” on this narrow question. The Officials have made no argument why the
third Sabbatino factor, standing alone, should overcome the first two factors in this
analysis!
This approach allows plaintiffs to pursue statutory claims against the Officials under
one theory while disallowing common law claims against the same Officials for the same
underlying conduct. But the act of state doctrine is prudential in nature; it is derived not
from limitations on the power of the judiciary but from a concern of improper interference
by courts in international affairs in which the judiciary must play a secondary role to that
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of the political branches. See Sabbatino, 376 U.S. at 427-28 (describing the act of state
doctrine as “compelled by neither international law nor the Constitution” but reflecting a
judgment on “the proper distribution of functions between the judicial and political
branches of the Government on matters bearing upon foreign affairs”); see also Ramirez
de Arellano v. Weinberger, 745 F.2d 1500, 1542 (D.C. Cir. 1984) (describing the act of
state doctrine as a “prudential balance”), vacated on other grounds, 471 U.S. 1113 (1985).
The Supreme Court decided Sabbatino in 1964, and Congress enacted the TVPA in in
1991. Congress was presumably aware of the act of state doctrine when it framed the cause
of action arising under the TVPA as applying only in cases in which the doctrine would
otherwise be implicated to bar a claim. Cf Douglas v. Seacoast Prods., Inc., 431 U.S. 265,
278-79 (1977) (holding that Congress is presumed to be aware of Supreme Court precedent
when legislating). Therefore, enactment of the TVPA represents a clear statement by
Congress that federal courts should not cite the act of state doctrine as grounds to refuse to
hear a case to which the statute applies. Cf Lewis, 918 F.3d at 150 (Randolph, J.,
concurring) (writing with respect to common-law immunity and the TVPA: “When there
is such a clear conflict between statutory law and judge-made common law, the common
law must give way.”) (citation omitted).
“ Congress was demonstrably aware of the core holding of Sabbatino. Indeed, Congress expressly
overruled the act of state doctrine as applied to foreign expropriation of American investment abroad—the
central issue in Sabbatino—in the Foreign Assistance Act of 1964. Foreign Assistance Act of 1964
§ 301(d)(4), Pub. L. No. 88-633, 78 Stat. 1009, 1013 (codified as amended at 22 U.S.C. § 2370(e)(2)).
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As such, the Officials are entitled to dismissal of Counts III—VIII on the act of state
doctrine for failure to state a claim on which relief could be granted, but Counts I, I, and
IX—XIII against the Officials may proceed.
B. Sufficiency of Plaintiffs’ Remaining Claims
Finally, the Officials argue that plaintiffs have failed to state a claim upon which
relief could be granted as to each of plaintiffs’ surviving claims against them.
Unfortunately for the Officials, plaintiffs have alleged sufficient facts upon which a jury
could find the Officials liable for fraud (Count I), civil conspiracy (Count IT), intentional
intrusion upon seclusion (Count IX), violation of ECPA (Count X), violation of the TVPA
(Count XJ), and violation of the ATS with respect to enforced disappearances (Count XII)
and violation of enforcement jurisdiction (Count XIII). Therefore, the Officials’ motion to
dismiss for failure to state a claim is denied as to those counts.
CONCLUSION
The Officials are not immune from suit, and they are subject to this Court’s
jurisdiction. Some, but not all of plaintiffs’ claims against Rwandan Officials Johnston
Busingye, Joseph Nzabamwita and Jeannot Ruhunga are barred by the act of state doctrine.
I will accordingly GRANT in part and DENY in part the Officials’ motion to dismiss
[Dkt. # 29]. An Order consistent with this Memorandum Opinion will issue on this date.
RICHARD J. LEON
United States District Judge
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