Barapind v. Gov't of the Republic of India, 844 F.3d 824 (9th Cir. 2016) [click for opinion]

Plaintiff, an individual, alleged that by subjecting him to post-extradition torture, the Indian government violated an agreement with the United States Department of State.

Plaintiff, an Indian citizen, entered the United States in 1993 and soon thereafter applied for asylum and withholding of deportation. Plaintiff alleged that due to his involvement in a Sikh-nationalist group in India, Indian security forces had arrested him multiple times and subjected him to torture. While litigation relating to Plaintiff's immigration claims was pending, the Indian government submitted a request for Plaintiff's extradition, and the United States filed a complaint in district court on India's behalf requesting a warrant to bring Plaintiff before an extradition court. In 2005, the district court certified Plaintiff's extraditability for three murder charges brought against him in India.

Plaintiff sought relief from extradition pursuant to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (the "Convention"). Plaintiff alleged that the United States would violate the Convention if it extradited him to India because he would "more likely than not" be tortured there. Thereafter, the Department of State and India exchanged a series of diplomatic notes (the "Understanding"), wherein the Indian government stated that Plaintiff would not be tortured. Following the Indian government's assurances, the Department of State surrendered Plaintiff to the Indian government.

Back in India, Plaintiff was acquitted on all three charges against him and subsequently continued his involvement in his religious and political activities. In 2012, India police forces again arrested Plaintiff and allegedly subjected him to acts of torture. Plaintiff then filed this action, arguing that the Indian government violated the Understanding when it subjected Plaintiff to post-extradition torture.

The Indian government moved to dismiss on several grounds, most notably a factual challenge to subject matter jurisdiction. The district court agreed with the Indian government and dismissed Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Plaintiff appealed.

On appeal, Plaintiff argued that the district court had subject matter jurisdiction over his claim because the Indian government implicitly waived its sovereign immunity through its reference in the Understanding to the Convention and its diplomatic assurances not to torture Plaintiff.

Under U.S. law, foreign states are typically immune from suit in federal and state courts, and when a foreign state is immune from suit, jurisdiction is lacking. The Foreign Sovereign Immunities Act (the "FSIA") is the sole basis upon which jurisdiction may be obtained over a foreign state. The FSIA provides, however, for waivers of immunity by the foreign state either explicitly or by implication. Under Ninth Circuit precedent, an implied waiver is ordinarily found in three circumstances, when a foreign state: (i) has agreed to arbitration in another country; (ii) has agreed that a contract is governed by the law of a particular country; or (iii) has filed a responsive pleading in a case without raising the defense of sovereign immunity. This list, however, is not exclusive, and the Ninth Circuit has also recognized an implied waiver where a written agreement entered into by a foreign sovereign contemplates adjudication of a dispute by United States courts.

The Ninth Circuit found that the Understanding was not an implicit waiver of sovereign immunity by the Indian government. First, Plaintiff did not meet his burden of demonstrating that any of the three circumstances ordinarily giving rise to an implied waiver were implicated. The Understanding was plainly neither an agreement to arbitrate nor a responsive pleading, and the Understanding did not specify that the law of a particular country should govern.

Second, Plaintiff did not meet his burden of proving that the Indian government contemplated the involvement of the U.S. courts. The court found that India's assurances never explicitly discussed an intent to be bound by U.S. law, and instead only discussed India's obligations not to torture Plaintiff under the Convention, an international document. Moreover, the entirety of the conduct at issue—the potential torture of Plaintiff—was reasonably contemplated to occur only in India.

Additionally, the Understanding did not show an intent by the Indian government to avail itself of the privileges or protections of U.S. courts. The Indian government never directly filed documents in a U.S. court for the purpose of extraditing Plaintiff. Instead, India used diplomatic channels to request Plaintiff's extradition, and the U.S. government filed a complaint on India's behalf. The court found that this use of diplomatic channels did not, on its own, create the necessary relationship between the Indian government and U.S. Courts to establish a waiver of sovereign immunity.

Thus, the court held that the Understanding did not expressly or implicitly waive the Indian government's sovereign immunity. Accordingly, the court lacked subject matter jurisdiction over the Indian government, and dismissed Plaintiff's claims.