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FROLOVA v. UNION OF SOVIET SOCIALIST REPUBLICS

January 26, 1983

LOIS FROLOVA, PLAINTIFF,
v.
UNION OF SOVIET SOCIALIST REPUBLICS, DEFENDANT.



The opinion of the court was delivered by: Roszkowski, District Judge.

  ORDER

The instant motion is before the court sua sponte to determine whether jurisdiction exists over the defendant Union of Soviet Socialist Republics ("Soviet Union"), and if so, whether this court should exercise that jurisdiction. For the reasons set forth below, this action must be dismissed.

Plaintiff Lois Frolova ("Frolova") brought this action against the Soviet Union for refusing to allow her husband to immigrate to the United States. Mrs. Frolova's claims essentially sound in tort for the loss of consortium occasioned by the Soviet Union's retention of her husband. Frolova contends that the Foreign Sovereign Immunities Act of 1976 ("FSIA"), 28 U.S.C. § 1330,*fn1 provides for subject matter and personal jurisdiction in this case. Specifically, she contends that the loss of consortium tort falls within 28 U.S.C. § 1605(a)(5) which provides an exception to sovereign immunity for tortious acts. Alternatively she contends that the Soviet Union has waived sovereign immunity in this case and jurisdiction is therefore allowed by 28 U.S.C. § 1605(a)(1).

A suit brought in a United States court against a foreign sovereign faces two potential obstacles: the doctrine of sovereign immunity and the act of state doctrine. The doctrine of sovereign immunity, recently codified in the FSIA, is considered to be a jurisdictional doctrine. International Ass'n of Machinists v. OPEC, 649 F.2d 1354 (9th Cir. 1981). It recognizes, in a general sense, that a foreign sovereign will be immune from liability for its public acts. The doctrine arises from a mutual belief held by all nations that one sovereign will not and should not sit in judgment of the public acts of another. The act of state doctrine also stems from the need to respect the sovereignty of foreign states, but it is a doctrine of judicial restraint rather than a jurisdictional doctrine. Id. at 1359. It recognizes that the judicial branch should refrain from exercising its jurisdiction in sensitive foreign policy matters traditionally left to the executive branch. Thus, it has been said that the act of state doctrine "recognizes not only the sovereignty of foreign states, but also the spheres of power of the coequal branches of our government." Id. at 1359. Should either doctrine apply to the present case, the court's appropriate remedy is to dismiss the action. Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1378-81 (5th Cir. 1980). See also International Ass'n of Machinists v. OPEC, 649 F.2d 1354, 1361 (9th Cir. 1981) (dismissal is appropriate remedy where act of state doctrine applies).

THE FOREIGN SOVEREIGN IMMUNITIES ACT

Traditionally, a foreign sovereign was immune from suit in United States courts regardless of the nature of the suit. The Schooner Exchange v. M'Fadden, 7 Cranch (11 U.S.) 116, 136, 3 L.Ed. 287 (1812). This theory of absolute sovereign immunity remained in force until 1952 when the now-famous Tate Letter was issued by the Department of State. The Tate Letter expressed a "restrictive" theory of sovereign immunity whereby a foreign sovereign retained immunity from suit for claims based on its public acts ("jure imperii"). A foreign state's private acts ("jure gestionis"), which included its commercial activities, would no longer be immune from suit.

This theory of restrictive sovereign immunity was adopted by the United States courts, but difficulties arose. There was confusion as to whether an act was public or private; there were problems with service of process and judgment execution; courts tended to decide questions of sovereign immunity based on State Department suggestions rather than treating the question of immunity as a purely judicial function. With these problems in mind, the United States Congress passed the Foreign Sovereign Immunities Act of 1976.

The FSIA was designed to accomplish four objectives. First, the bill codified the "restrictive" principle of sovereign immunity; immunity of a foreign state was thereby statutorily "restricted" to suits involving its public acts. H.R.Rep. No. 94-1487, 94th Cong., 2d Sess., 7 (1976) ("House Report"), U.S.Code Cong. & Admin.News 1976, p. 6604. Second, the bill insured that immunity would be strictly a judicial rather than an executive determination. Id. Third, the bill provided a statutory procedure for service of process on a foreign state. Id. at 8; 28 U.S.C. § 1608. Finally, the bill provided a remedy should the foreign state fail to pay any judgment rendered against it. 28 U.S.C. § 1610, 1611. In short, the FSIA gave United States citizens full access to the courts to resolve ordinary legal disputes involving a foreign state.

The FSIA begins with the general premise that a foreign state is immune from the jurisdiction of American courts and then creates exceptions to this general principle. House Report, supra at 17. These exceptions to an otherwise broad immunity are set forth in 28 U.S.C. § 1605. Generally speaking, the Act provides exceptions for cases dealing with waiver of immunity, admiralty cases, certain commercial transactions, cases concerning rights to immovable property situated in the United States, and actions based in tort.*fn2

The statutory language defining the scope of the tort exception provides that a foreign state shall not be immune from the jurisdiction of courts of the United States in:

  [actions] in which money damages are sought against a
  foreign state for personal injury or death, or damage
  to or loss of property, occurring in the United
  States and caused by the tortious act or omission of
  that foreign state or of any official or employee of
  that foreign state while acting within the scope of
  his office or employment; except this paragraph shall
  not apply to —
  (A) any claim based upon the exercise or performance
  or the failure to exercise or perform a discretionary
  function regardless of whether the discretion be
  abused, or
  (B) any claim arising out of malicious prosecution,
  abuse of process, libel, slander, misrepresentation,
  deceit, or interference with contract rights.

28 U.S.C. ยง 1605(a)(5). The tort immunity exception was cast in general terms to encompass all noncommercial tortious actions for money damages but was directed primarily at problems like the traffic accidents of foreign diplomats. See generally, House Report. Section 1605(a)(5) also requires that the tortious act or omission of the foreign ...


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