Burma Task Force v. Sein, No. 15 Civ. 7772 (S.D.N.Y. Mar. 30, 2016) [click for opinion]

Plaintiffs filed an action against six Defendants, who are current or former government officials in Myanmar, alleging that the Defendants committed heinous acts of persecution, torture and genocide against members of the Rohingya minority community in violation of the Alien Tort Statue ("ATS") and the Torture Victim Protect Action ("TVPA"), 28 U.S.C. § 1350.

On February 12, 2016, the U.S. Department of State filed a Suggestion of Immunity, under 28 U.S.C. § 517, informing the court that the Executive Branch had determined that Defendants Thein Sein and Wunna Maung Lwin, the President and Foreign Minister of Myanmar, are immune from suit while they serve in office as a head of state and foreign minister.

The district court considered whether it was required to recognize the Suggestion of Immunity and dismiss these Defendants. The district court found that, under the applicable Supreme Court precedent of Samantar v. Yousuf, the common law provides that if the State Department files a suggestion of immunity, the "district court surrender[s] its jurisdiction." The court recognized that decisions to grant foreign immunity are a matter of grace and comity, and courts must defer to a decision of the political branches. Thus, the court held that it had no jurisdiction over these Defendants while they remained in office.

Plaintiffs argued in response that the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602, applied, and that the exceptions to immunity contained in the FSIA allowed for the exercise of jurisdiction over these Defendants. The court rejected this argument, because, as foreign officials, the immunity of these Defendants is determined by common law, not the FSIA.

Plaintiffs then argued that the common law does not provide for immunity where the officials have violated jus cogens and have acted outside of their lawful authority. The court noted that the Second Circuit has expressly rejected this argument, and that courts routinely dismiss cases on grounds of immunity against heads of state and foreign officials facing similar charges.

Finally, Plaintiffs argued that where the TVPA or ATS provides federal jurisdiction, claims under those statutes survive an assertion of sovereign immunity. The court recognized that the Second Circuit has also rejected this argument. Statutes such as the TVPA or ATS would apply only to an individual whom the Executive declines to immunize.

Thus, despite Plaintiffs' allegations that Defendants committed heinous acts, the court found that it was bound to recognize the Suggestion of Immunity and dismissed the case as to the President and Foreign Minister of Myanmar for lack of jurisdiction.