Denys Namystiuk V Russian Federation et al.

The principle of state immunity from the US Court’s perspective

By: Tatiana Khokhlova

1. Introduction

This case note analyses the United States District Court for the District of Columbia’s (hereinafter ‘Columbia District Court’) decision in Denys Namystiuk V Russian Federation et al.

Since the Russian Invasion of Ukraine occurred on 24 February 2022, international legal proceedings against Russia have begun in the International Court of Justice,[1] and in the European Court of Human Rights.[2] However, the lawsuit delivered by Mr Namystiuk in the Columbia District Court has become the first case in which a Ukrainian national living outside of the Ukrainian territory brought a civil claim against the Russian government with the aim to seek monetary damages.[3]

This case note consists of four parts. First, the factual background of the case will be provided. The second section will elaborate on the reasoning behind the court’s decision to dismiss the claim in question. After that, the third part will analyse the decision of the court, with an emphasis on the provisions of the U.S. legislation that create the possibility to file lawsuits against foreign states. This part will also answer the question of why the court found the case inadmissible. Lastly, the final section will deliver a brief summary of the most significant reasons the court relied on when issuing its decision to dismiss Mr Namystiuk’s claim.

2. The Facts of the Case

On 9 October 2022, the plaintiff, Denys Namystiuk a Ukrainian national residing in the United States of America, filed suit against Vladimir Putin and the Russian Federation through the Embassy of Russia.[4] The plaintiff claimed that during the military operation conducted by Russian Military Forces in Ukraine, the plaintiff’s home village was occupied.[5] Mr Namystiuk insisted that the actions of Russian soldiers caused him psychological trauma in violation of 18 U.S.C. 1091[6] and demanded USD $7,620 000 in damages[7] for moral suffering and mental distress caused to him and his relatives during the Russian occupation. On 17 November, the Columbia District Court issued an order dismissing the case.[8] Following the court decision, the plaintiff filed an appeal to the DC Circuit Court on 20 December 2022.[9]

3.The Court Decision and the Rationale

On 17 November 2022, the Columbia District Court dismissed a claim of Mr Namystiuk stating that in order for a claim against another sovereign state to be admitted, “a plaintiff must satisfy subject matter jurisdiction under the Foreign Sovereign Immunities Act (hereinafter ‘FSIA’) before the court can reach claims under the Alien Tort Claims”.[10] The FSIA contains general provisions on state immunity in the U.S. jurisdiction and the conditions which must be met in order to waive state immunity.[11] Such a waiver is only possible in very limited circumstances.[12] At the same time, the Alien Tort Claims Act which is in force since 1789, grants U.S. federal courts jurisdiction over civil actions brought by non-U.S. citizens for a tort in violation of international law or a treaty signed by the U.S.[13]

In its decision, the Court first affirmed that the FSIA is the only legal document that can provide exceptions for states’ immunity from U.S. courts.[14] In addition, foreign states’ embassies and representatives also enjoy immunity from being sued.[15]

Second, the Court stated that Mr Namystiuk, by way of his referral to the terrorism exception under 28 U.S.C.A. 1605 A (General exceptions to the jurisdictional immunity of a foreign state) failed to establish the conditions required to waive Russia’s immunity.[16] In order to fulfil the conditions prescribed in the given provision, the plaintiff must be either a U.S. citizen or a U.S. military servant and the defendant state must be ‘a state-sponsor of terrorism’.[17]

The Court explained that as the claimant did not possess U.S. citizenship and the defendant state was not recognised as a sponsor of terrorism, the lawsuit did not meet the requirements to be taken on.[18] In addition, the fact that Mr Namystiuk claimed against Russia via the Russian Embassy in the U.S. was not a justification to waive state immunities as the embassy is considered to be a part of the ‘foreign state’ it represents.[19] Furthermore, the Court rejected the plaintiff’s references to the Universal Declaration of Human Rights[20] and the Torture Victim Protection Act[21] as neither of these sources provides for a waiver of immunity for states responsible for violating the standards set out in these legal documents.[22] In conclusion, the case was dismissed without prejudice under 28 U.S.C. 1915(e)(2)(B)(iii) and Fed. R. Civ. P. 12(h)(3).[23]

4. Legal Analysis.

State immunity is a general principle of international law.[24] According to this principle, a state and its property enjoy immunity from the jurisdiction of other state’s courts.[25] The approach regarding state immunity is different across the world. Some states do not allow for any exceptions from the rule of state immunity and under no circumstances let foreign states be subjected to domestic adjudication processes. For instance, in China, a country that adopted the absolute immunity approach, domestic courts do not admit any claims against foreign states unless the foreign state agrees to waive its immunity to participate in an adjudication process.[26] On the other hand, several states like the USA provide a very limited list of conditions which allow the filing of a lawsuit against a foreign state.[27] In the U.S., such conditions are set out in the FSIA[28]. The conditions state that a claim against a foreign state can succeed only if

1) The respondent state itself consents to waive its immunity;[29]

2) The claimant’s property located in the U.S. was damaged by foreign state agents’ acts;[30]

3) A U.S. citizen sues one of the listed state sponsors of terrorism for terrorist acts committed on U.S. soil under the effective control of the state. The list of state sponsors of terrorism includes Cuba, the Democratic People’s Republic of Korea, Iran, and Syria.[31]

In light of the requirements mentioned above, Mr Namystiuk’s case did not satisfy any of the given conditions, as the wrongful act did not occur on U.S. territory and the claimant did not possess U.S. citizenship,[32] nor was he a federal employee,[33] or a government contractor.[34] Furthermore, the defendant state, namely the Russian Federation, was not recognised as a state-sponsor of terrorism by the U.S. government.[35]Therefore, the Court’s reasoning was appropriately made, and it is highly doubtful that the appeal filed by Mr Namystiuk will be reviewed and will bring any changes to the case’s outcome.[36]

5. Conclusion

To sum up, the reasons on which the court based its decision on dismissal were firstly, that foreign states are generally protected from the jurisdiction of U.S. courts.[37] Secondly, courts are strictly prohibited from considering claims against sovereign states that are not subject to exceptions from the FSIA.[38] The embassy is understood as a “foreign state”; therefore, it is also impossible to initiate a case against it.[39] The automatic waiver of immunities under the FSIA is valid only in regard to a handful of states listed as state sponsors of terrorism by the USA, and Russia is not amongst them.[40] Finally, 28 U.S.C. §1605A requires the plaintiff to be a U.S. citizen, a member of the Armed Forces, a federal employee, or a government contractor.[41] On this basis, the Columbia District Court dismissed the case.

[1]Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) 27 February 2022 ICJ General List No 182 <https://www.icj-cij.org/public/files/case-related/182/182-20220227-APP-01-00-EN.pdf> accessed on 1 January 2023. [2]1055/22б Ukraine v. Russia no 11055/22 (ECtHR, 28 February 2022) (Ukraine V Russia). [3] Denys Namystiuk V Russian Federation et al [2022] Civil Action No. 1:22-cv-03162 (UNA) (James E. Boasberg) (Namystiuk). [4]ibid, para 1. [5]ibid, para 1. [6] Genocide, Crimes and Criminal Procedure 18 U.S. Code (2011) Chapter 50A Section 1091. [7] Namystiuk (n 3) para 1. [8] ibid, para 5. [9] Denys Namystiuk V Russia et al (20 December 2022), U.S. Court of Appeals D.C. Circuit C-22-170. [10] Saltany v. Reagan (1989) C-440–41 (D.C. Cir.) (Saltany). [11] ibid, 441. [12] ibid. [13] ibid. [14] Roeder V Islamic Republic of Iran (2010) C-08-487 (Emmet G. Sullivan) (Roeder). [15] Jouanny V Embassy of France in the United States (2017) Case No. 1:16-cv-00135 (APM) (Jouanny). [16] Namystiuk (n 3) para 3. [17] U.S. Department of State, ‘State Sponsors of Terrorism” (2022) < https://www.state.gov/terrorist-designations-and-state-sponsors-of-terrorism/> accessed 2 January 2022 (States sponsors of terrorism). [18] Namystiuk (n 3) para 3. [19]Jouanny (n 15). [20] UN General Assembly, Universal Declaration of Human Rights, (adopted on 10 December 1948 217 A [III]) < https://www.un.org/en/about-us/universal-declaration-of-human-rights> accessed 2 January 2022. [21]Torture Victim Protection Act (1991) Public Law 102-256 <https://www.congress.gov/bill/102nd-congress/house-bill/2092/text> accessed 2 January 2022. [22] Namystiuk (n 3) para 4. [23] ‘Proceedings in forma pauperis’, Judiciary and Judicial Procedure (2012) United States Code 2012 Edition, Supplement 2, Title 28 < https://www.govinfo.gov/app/details/USCODE-2014-title28/USCODE-2014-title28-partV-chap123-sec1915> accessed 3 January 2022. [24] UNGA, United Nations Convention on Jurisdictional Immunities and Consular Relations (adopted on 2 December 2002) UN doc A/59/508, < https://treaties.un.org/doc/source/docs/A_59_508-E.pdf> accessed 3 January 2023. [25] ibid, art 5. [26] Roeder (n 14) Background para 4. [27] Saltany (n 11). [28] General exceptions to the jurisdictional immunity of a foreign state, Judiciary and Judicial Procedure (2012) United States Code 2012, Supplement 2, Title 28 < https://www.law.cornell.edu/uscode/text/28/1605> accessed 3 January 2023 (Exceptions to the jurisdictional immunity of a foreign state). [29] Roeder (n 14) para 4. [30] Exceptions to the jurisdictional immunity of a foreign state (n 28) (4). [31]States Sponsors of Terrorism (n 17). [32] Namystiuk (n 3) para 3. [33] ibid. [34] ibid. [35] ibid. [36] Notice of Appeal N 1978352 seeking review of a decision by the U.S. District Court in 1:22-cv-03162-UNA C/22-7170 [22-7170] < https://dockets.justia.com/docket/circuit-courts/cadc/22-7170> accessed 28 February 2023. [37] Saltany (n 10) 441. [38] ibid. [39] Jouanny (n 15). [40] ibid. [41] Namystiuk (n 3) para 3.