UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) MANI KUMARI SABBITHI, et al., ) ) Plaintiffs, ) ) Civil Action No. 07-115 (EGS) v. ) ) MAJOR WALEED KH N.S. AL SALEH, ) et al., ) ) Defendants. ) )
MEMORANDUM OPINION
Plaintiffs Mani Kumari Sabbithi, Joaquina Quadros, and Gila
Sixtina Fernandes, domestic workers from India, bring this action
against their former employers Major Waleed KH N.S. Al Saleh, his
wife, Maysaa KH A.O.A. Al Omar, (together “defendants”), and the
State of Kuwait.1 Plaintiffs bring suit under the Trafficking
Victims Protection Act of 2000 (“TVPA”), 18 U.S.C. § 1581, et
seq., the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq.,
and assert various contract and tort claims.2 Before this Court
1 Kuwait is a foreign state as defined in 28 U.S.C. § 1602, et seq. (the Foreign Sovereign Immunities Act of 1976). Compl. ¶ 11. Plaintiffs assert that Kuwait is liable for materially and practically assisting the defendants in the alleged offenses. Plaintiffs also seek to hold Kuwait liable under an agency theory for the actions of its employee, Defendant Al Saleh, and his wife, Defendant Al Omar. Id. ¶ 3. Kuwait is not a party to defendants’ motion to dismiss. See Mot. to Dismiss at 1. 2 Plaintiffs claim breach of contract; quantum merit; unjust enrichment; fraud and constructive fraud; false imprisonment; intentional infliction of emotional distress; negligent infliction of emotional distress; assault; battery; and civil is the defendants’ motion to dismiss the complaint and quash
service of process based on diplomatic immunity. Upon
consideration of the motion, the responses and replies thereto,
the amici curiae brief and response thereto, the Statement of the
United States and responses thereto, and the applicable law, the
Court GRANTS defendants Al Saleh and Al Omar’s motion to dismiss
and quashes service of process as to those defendants.
I. BACKGROUND
Defendant Major Waleed KH N.S. Al Saleh is a Kuwaiti
diplomat. Al Saleh and his wife, defendant Maysaa KH A.O.A. Al
Omar, lived in the United States from 2005 to 2007, while Al
Saleh served as Attaché to the Embassy of Kuwait. See Compl. ¶
9; see also Pls.’ Sur-rep. 2. Prior to moving to the United
States, the defendants employed plaintiffs as domestic workers in
the defendants’ home in Kuwait. The individual plaintiffs worked
for the defendants in Kuwait for a period ranging from five and a
half years to eight and a half months. See Compl. ¶¶ 16-46. In
Kuwait, plaintiffs allegedly worked seven days a week, for long
hours each day, and were paid between 35 Kuwaiti Dinar (KD)
(approximately $121 U.S. dollars) and 40 KD (approximately $138
U.S. dollars) per month. Id. According to plaintiffs, however,
before coming to the United States the defendants signed an
conspiracy.
2 employment contract promising to pay plaintiffs $1,314 U.S.
dollars per month and agreeing to comply with United States labor
laws in exchange for plaintiffs’ domestic work in the defendants’
home in the United States. Id. Plaintiffs assert that these
employment contracts were presented to the United States Embassy
in Kuwait for the purpose of obtaining plaintiffs’ A-3 visas,
which authorized plaintiffs to work as live-in domestic servants
in defendants’ home in McLean, Virginia. Id.
Plaintiffs claim that once in the United States, the
defendants did not comply with the terms of the employment
contracts. Allegedly, plaintiffs worked sixteen to nineteen
hours per day, seven days a week, and were not paid directly, but
instead defendants sent wages of 70 KD (approximately $242 U.S.
dollars) to 100 KD (approximately $346 U.S. dollars) per month to
plaintiffs’ families overseas. See id. ¶¶ 47-93. Plaintiffs
allege that the defendants deprived them of their passports,
threatened plaintiffs with physical harm, and physically abused
Sabbithi. Id.
Plaintiffs eventually escaped the defendants’ home, and, on
January 18, 2007, plaintiffs filed this complaint against
defendants and the State of Kuwait. In addition to this civil
action, plaintiffs pursued criminal charges against the
defendants through the U.S. Department of Justice (“DOJ”).
Pursuant to the DOJ’s request, the U.S. Department of State
3 (“State Department”) asked the State of Kuwait to waive the
defendants’ diplomatic immunity. Pls.’ Sur-rep. Ex. A.
According to the State Department, Kuwait declined to waive the
defendants’ immunity. Id. As a result, the DOJ closed its
investigation into defendants’ alleged illegal conduct. Id.
On July 18, 2007, the Court granted Break the Chain
Campaign, Casa of Maryland, Inc., Asian American Legal Defense
and Education Fund, Global Rights, and Boat People SOS, Inc.
leave to file as amici curiae a memorandum of law in support of
plaintiffs' opposition to the defendants' Motion to Dismiss and
Quash Service of Process. On March 20, 2008, this Court invited
the State Department to submit its views regarding this case.
The State Department responded on July 22, 2008.
II. DISCUSSION
A. Diplomatic Immunity
This Court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. § 1351, which states that district courts
“have original jurisdiction, exclusive of the courts of the
States, of all civil actions and proceedings against . . .
members of a mission or members of their families (as such terms
are defined in section 2 of the Diplomatic Relations Act).” 28
U.S.C. § 1351(2); see also Gonzalez Paredes v. Vila, 479 F. Supp.
2d 187, 191 (D.D.C. 2007).
4 Defendants argue that they have diplomatic immunity, and
that their immunity deprives this Court of jurisdiction in this
case, pursuant to the Vienna Convention on Diplomatic Relations
(“the Vienna Convention,” “Convention” or “VCDR”), to which both
Kuwait and the United States are parties. The Vienna Convention
provides that a “diplomatic agent shall . . . enjoy immunity from
[the receiving state's] civil and administrative jurisdiction. .
. .” VCDR, Article 31(1). The Convention further provides that
the “members of the family of a diplomatic agent forming part of
his household shall, if they are not nationals of the receiving
State, enjoy the privileges and immunities specified in Articles
29 to 36.” VCDR, Article 37. The Vienna Convention also
provides that a diplomatic agent “shall not in the receiving
State practice for personal profit any professional or commercial
activity.” VCDR, Article 42. Diplomatic immunity can be
forfeited “in the case of . . . an action relating to any
professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions.”
Id.; see also Article 32(3).
In accordance with the Vienna Convention, Congress enacted
22 U.S.C. § 254d, which provides that “[a]ny action or proceeding
brought against an individual who is entitled to immunity with
respect to such action or proceeding under the Vienna Convention
on Diplomatic Relations . . . shall be dismissed.” 22 U.S.C. §
5 254d. Therefore, if the Court concludes that defendants are
immune, it must dismiss the action pursuant to 22 U.S.C. § 254d.
Gonzalez Paredes, 479 F. Supp. 2d at 191.
A defendant’s diplomatic immunity “may be established upon
motion or suggestion by or on behalf of the individual. . . .”
22 U.S.C. § 254d. Defendants filed as an exhibit to their motion
to dismiss a letter from the State Department dated March 15,
2007. In that letter, the State Department confirmed that in
August 2004, the Embassy of Kuwait had notified the State
Department that Al Saleh was a diplomatic agent at the Embassy of
Kuwait and, as of March 2007, Al Saleh continued to serve in that
capacity. Mot. to Dismiss Ex. 2. The State Department also
certified that the Embassy of Kuwait had confirmed that Al Omar
was a national of Kuwait and Al Saleh’s spouse residing in his
household. Id. In addition, defendants filed the State
Department’s Diplomatic List from the summer of 2006, in which
the defendants’ names appear as diplomats of Kuwait. Mot. to
Dismiss Ex. 3.
In view of the State Department’s determination that the
defendants are diplomats and its certification that as diplomats
they are immune from suit pursuant to the Vienna Convention, the
Court concludes that these defendants are entitled to diplomatic
immunity. See Gonzales Paredes, 479 F. Supp. 2d. at 192; see
also Carrera v. Carrera, 174 F.2d 496, 497 (D.C. Cir. 1949) (“The
6 courts are disposed to accept as conclusive of the fact of the
diplomatic status of an individual claiming an exemption, the
views thereon of the political department of their government.”
(citation and internal quotation marks omitted)).
B. Proposed Liability Despite Diplomatic Immunity
Despite defendants’ status as diplomats, plaintiffs contend
that diplomatic immunity should not shield the defendants from
liability in this case. In support of this position, plaintiffs
argue that: (1) defendants’ alleged trafficking of plaintiffs
falls within the commercial activities exception to immunity
under the Vienna Convention; (2) diplomatic immunity cannot bar
plaintiffs’ claims challenging defendants’ conduct in violation
of the Thirteenth Amendment; (3) diplomatic immunity cannot bar
plaintiffs’ claims because defendants’ actions were so egregious
they violate jus cogens norms prohibiting slavery and slavery-
like practices; and (4) plaintiffs’ claims under the TVPA prevail
over defendants’ conflicting claims of diplomatic immunity
according to the “subsequent-in-time” rule. Amici curiae filed a
brief in support of plaintiffs’ arguments, specifically with
respect to plaintiffs’ assertion that the defendants’ conduct
constituted human trafficking and that the alleged trafficking
constitutes “commercial activity” within the meaning of the
Vienna Convention. See Amici Brief at 8-14.
1. The “Commercial Activity” Exception to Diplomatic Immunity
7 The purpose of diplomatic immunity is “to ‘contribute to the
development of friendly relations among nations’ and to ‘ensure
the efficient performance of the functions of diplomatic
missions’”. Hellenic Lines, Ltd v. Moore, 345 F.2d 978, 980
(D.C. Cir. 1965) (citing the Vienna Convention preamble).
Consistent with that purpose, the Vienna Convention provides that
a diplomatic agent “shall not in the receiving State practice for
personal profit any professional or commercial activity.” VCDR,
Article 42. Because diplomats are not to engage in professional
or commercial activity outside of their duties as diplomats, the
Vienna Convention includes an exception to diplomatic immunity
“in the case of . . . an action relating to any professional or
commercial activity exercised by the diplomatic agent in the
receiving State outside his official functions.” Id.; see also
VCDR, Article 32(3).
Plaintiffs allege that defendants’ conduct in bringing
plaintiffs from Kuwait to the United States to work as domestic
servants constituted human trafficking, and was therefore a
“commercial activity exercised by the diplomatic agent . . .
outside his official functions” within the meaning of the Vienna
Convention. Plaintiffs, and amici, argue at length that human
trafficking is a profitable commercial activity that results in
severe human rights violations. “But such a literal manner of
interpretation is superficial and incomplete, and, [this Court]
8 believe[s], yields an incorrect rendering of the meaning of
‘commercial activity’ as used in the Vienna Convention.” Tabion
v. Mufti, 73 F.3d 535, 537 (4th Cir. 1996).
Hiring household help is incidental to the daily life of a
diplomat and therefore not commercial for purposes of the
exception to the Vienna Convention. This Court agrees with the
Fourth Circuit in Tabion:
When examined in context, the term “commercial activity” does not have so broad a meaning as to include occasional service contracts as Tabion contends, but rather relates only to trade or business activity engaged in for personal profit. Accepting the broader meaning fails to take into account the treaty's background and negotiating history, as well as its subsequent interpretation. It also ignores the relevance of the remainder of the phrase-“outside his official functions.”
Id.; see also Gonzales Paredas, 479 F. Supp. 2d at 193.
According to the Statement of Interest filed by the United
States, “[t]he ‘commercial activity’ exception focuses on the
pursuit of trade or business activity that is unrelated to the
diplomatic assignment; it does not encompass contractual
relationships for goods and services that are incidental to the
daily life of the diplomat and his family in the receiving
State.” Statement of Interest of the United States of America
(“Statement”), at 5. The United States also stated that “[w]hen
diplomats enter into contractual relationships for personal goods
or services incidental to residing in the host country, including
9 the employment of domestic workers, they are not engaging in
‘commercial activity’ as that term is used in the Diplomatic
Relations Convention.” Id. at 14. “Although not conclusive, the
meaning attributed to treaty provisions by the Government
agencies charged with their negotiation and enforcement is
entitled to great weight.” United States v. Stuart, 489 U.S.
353, 369 (1989) (quoting Sumitomo Shoji Am., Inc. v. Avagliano,
457 U.S. 176, 184-85 (1982)). Furthermore, the facts in this
case support a conclusion that the defendants’ conduct in
bringing plaintiffs from Kuwait to the United States and
employing plaintiffs as domestic servants, albeit for marginal
wages, was not commercial activity outside of the defendants’
official functions.3
3 Plaintiffs urge the Court to give "commercial activity" as used in the Vienna Convention similar meaning as is given for consular and foreign sovereign immunities. Under the Foreign Sovereign Immunity Act (FSIA), a foreign state is not immune for actions "based upon a commercial activity carried on in the United States by a foreign state," 28 U.S.C. § 1605(a)(2), but there is no similar language in FSIA that the commercial activity be outside the foreign state's official functions. Cases interpreting the Vienna Convention on Consular Relations are equally inapplicable because consular immunity is narrower in scope than diplomatic immunity, in that consular immunity only exists for "acts performed in the exercise of consular functions," Vienna Convention on Consular Relations, Apr. 24, 1963, art. 43(1), 21 U.S.T. 77, 104, as opposed to diplomatic immunity which exists for all acts performed by the diplomat, with limited exceptions. The Vienna Convention is a multilateral treaty, and the Court’s analysis must begin with the language of the Treaty itself. See Rainbow Nav., Inc. v. Dep’t of Navy, 911 F.2d 797, 801 (D.C. Cir. 1990). “The clear import of treaty language controls unless application of the words of the treaty according to their obvious meaning effects a result inconsistent
10 This Court finds the reasoning in Gonzales Paredas, a case
with very similar facts, persuasive. In Gonzales Paredas, the
plaintiff, a citizen of Paraguay, was hired by defendants in
Argentina to work as a domestic servant for defendants while they
served on a diplomatic mission to the United States. Gonzales
Paredas, 479 F. Supp. 2d at 189. Plaintiff alleged that the
defendant signed an employment contract agreeing to pay plaintiff
$6.72 per hour, plus overtime, and that the contract was
presented to the United States Embassy in Argentina for the
purposes of obtaining an A-3 visa. Id. at 190. Plaintiff
claimed that, contrary to the promises made in the contract, she
worked seventy-seven hours per week, and was paid only $500 per
month. Plaintiff filed suit for violations of federal and local
wage laws, breach of contract, and unjust enrichment. Id. The
defendants moved to dismiss the complaint and quash service of
process based on diplomatic immunity. Id.
In determining whether the hiring of domestic help was a
commercial activity outside a diplomat’s official functions, the
Gonzales Paredas court considered Statements of Interest filed by
the State Department. Those statements mirror the statements the
with the intent or expectations of its signatories.” Id. (citation and internal quotations omitted). Thus, the Court will not consider as determinative cases interpreting the FSIA nor the Vienna Convention on Consular Relations. See also Gonzales Paredas, 479 F. Supp. 2d at 193 n.5 (citing Tabion, 73 F.3d at 539 n.7).
11 United States provided to the Court in this case. See id. at
193. Finding no reason to disagree with the conclusion of the
State Department, the Gonzales Paredas court found that a
contract for domestic services was not itself “commercial
activity” within the meaning of the Vienna Convention.
Similarly, this Court concludes that hiring domestic
employees is an activity incidental to the daily life of a
diplomat and his or her family, and does not constitute
commercial activity outside a diplomat’s official function. See
VCDR, Article 31(1)©.
2. Constitutional Claims and Diplomatic Immunity
Plaintiffs argue that the defendants’ actions in this case
violated the Thirteenth Amendment of the United States
Constitution prohibiting slavery, and that diplomatic immunity
does not apply against a constitutional challenge. Plaintiffs do
not cite a single case, however, in which diplomatic immunity was
withheld in order to provide redress for a constitutional
violation. Instead, case law suggests that diplomatic immunity
can shield a diplomat from liability for alleged constitutional
violations. See, e.g., FDIC v. Meyers, 510 U.S. 471, 474-75
(1994); Pierson v. Ray, 386 U.S. 547, 554-55 (1967); Tuck v. Pan
Am. Health Org., 668 F.2d 547, 549-50 (D.C. Cir. 1981); Persinger
v. Islamic Republic of Iran, 729 F.2d 835 (D.C. Cir. 1984)
(vacating earlier opinion and affirming the district court’s
12 dismissal of actions alleging violations of treaties and of
international, constitutional, and common law); Weinstock v.
Asian Dev. Bank, 2005 WL 1902858 (D.D.C. July 13, 2005)
(dismissing action seeking redress for constitutional violations
based on defendants’ immunity under the International
Organizations Immunity Act of 1945); Ahmed v. Hoque, 2002 WL
1964806 (S.D.N.Y. August 23, 2002) (holding that plaintiff’s
Thirteenth Amendment claim did not trump defendants’ diplomatic
immunity). Plaintiffs constitutional claims must also give way
to defendants’ diplomatic immunity.
3. Jus cogen norms and Diplomatic Immunity
Jus cogen norms are peremptory norms of international law
which enjoy the highest status in international law and prevail
over both customary international law and treaties. Comm. of
U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d 929, 935 (D.C.
Cir. 1988). Plaintiffs argue that the defendants’ human
trafficking conduct violated jus cogen norms, and as such
defendants diplomatic immunity pursuant to the Vienna Convention
should be denied.
The Court is not persuaded that defendants’ conduct
constituted human trafficking, and thus no jus cogen norm was at
issue. See supra II.B.1. See also Gonzales Paredas, 479 F.
Supp. 2d 187 (enforcing diplomatic immunity over plaintiff’s
claim that defendants violated jus cogen norms). Furthermore,
13 “[i]n the view of the United States, there is no jus cogens
exception to diplomatic immunity” and “there is not evidence that
the international community has come to recognize a jus cogens
exception to diplomatic immunity.” Statement, at 20 (citing
Jones v. Ministry of Interior, [2006] UKHL 26, ¶ 27 (U.K. House
of Lords 2006).
4. “Subsequent-in-Time” Rule
Finally, plaintiffs’ argument that the TVPA overrides the
Vienna Convention pursuant to the subsequent-in-time rule is
wholly unavailing. The subsequent-in-time rule applies “[w]here
a treaty and a statute ‘relate to the same subject,’” and the two
cannot be harmonized. Kappus v. CIR, 337 F.3d 1053, 1056 (D.C.
Cir. 2003) (quoting Whitney v. Robertson, 124 U.S. 190, 194
(1888)). The TVPA concerns peonage, slavery, and trafficking in
persons, whereas the Vienna Convention provides immunity from
criminal prosecution and civil actions to foreign diplomats.
Because the treaty and statute do not relate to the same subject,
the subsequent in time rule is inapplicable. “A treaty will not
be deemed to have been abrogated or modified by a later statute,
unless such purpose on the part of Congress has been clearly
expressed.” Cook v. United States, 288 U.S. 102, 120 (1933)
(citation omitted). There has been no such action on the part of
Congress, and inaction is not sufficient to abrogate a treaty.
See Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243,
14 252 (1984). Morever, “[i]n the view of the United States, the
TVPA does not override diplomatic immunity. First, the TVPA is
silent as to whether it limits the immunity of diplomats, and
courts should not read a statute to modify the United States’s
treaty obligations in the absence of a clear statement from
Congress.” Statement, at 23 (citation omitted).
C. Residual Immunity
In light of defendants leaving their diplomatic post in 2007
and returning to Kuwait, plaintiffs ask the Court to find that
defendants no longer have diplomatic immunity. Although Article
39 of the Vienna Convention states that an official’s privileges
and immunities end when his diplomatic functions cease, Article
39 provides that a residual immunity subsists with respect to
“acts performed by such a person in the exercise of his functions
as a member of the mission.” Therefore, defendant's immunity
remains intact for acts performed in the exercise of his duties
as a diplomatic officer of the State of Kuwait. See Knab v.
Republic of Geor., 1998 WL 34067108, *4 (D.D.C. May 29, 1998).
As the Court previously concluded, defendants’ conduct in
employing plaintiffs was not performed outside the exercise of
defendants’ diplomatic functions. See supra II.B.1. For this
reason, defendants’ current status does not affect their immunity
from civil jurisdiction.
The Court recognizes that foreclosing plaintiffs’ access to
15 the courts may have harsh implications, including even the denial
of legal or monetary relief. The application of the doctrine of
diplomatic immunity inevitably “deprives others of remedies for
harm they have suffered.” Hellenic Lines, 345 F.2d at 980.
Congress, however, is the appropriate body for plaintiffs to
present their concerns that the effectiveness of enforcing fair
labor practices in the United States is compromised by diplomatic
immunity. See Tabion, 73 F.3d at 539. This court will not
create new exceptions to the longstanding policy of diplomatic
immunity. See Belhas v. Ya’alon, 515 F.3d 1279 (D.C. Cir.
2008)(refusing to create a new exception under the FSIA when no
such exception had been created by Congress). “And the law that
binds this Court states that ‘[a]ny action or proceeding brought
against an individual who is entitled to immunity with respect to
such action or proceeding under the Vienna Convention on
Diplomatic Relations . . . shall be dismissed.’” Gonzales
Paredas, 479 F. Supp. 2d at 195 (quoting 22 U.S.C. § 254d).
III. CONCLUSION
Accordingly, for the reasons set forth above, the Court
GRANTS defendants’ Motion to Dismiss and Motion to Quash Service.
An appropriate order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
16 United States District Judge March 20, 2009