By Dibussi Tande
“The United States hereby informs the Court that President Biya is immune from this suit...this determination is controlling and is not subject to judicial review. No court has ever subjected a sitting head of state to suit once the Executive Branch has determined that the head of state is immune." U.S. Department of Justice.
YVES MICHAEL FOTSO vs. Republic of Cameroon, Paul Biya, Pascal Magnaguemabe, Justice Soh, Jean Baptiste Bokam, Colonel Amadou, and Innocent Mbouem. In the United States District Court for the District of Oregon, Eugene Division.
In August 2012, Yves Michel Fotso, the former General Manager of CAMAIR, then in pre-trial detention for his alleged role in the Albatross presidential plane scandal, filed a civil suit in the US District Court in Eugene Oregon against President Biya and five other Cameroonian officials for torture by a public official, false imprisonment, and breach of contract. He later received a 25-year jail sentence for his role in that scandal.
As soon as the suit was filed, the Government of Cameroon formally requested that the Government of the United States “take the steps necessary to have this action against President Biya dismissed on the basis of his immunity from United States jurisdiction as a sitting foreign head of state.”
On December 7, 2012, presiding Judge Thomas M. Coffin asked the Government of the United Stated to provide its views on this issue:
The Court finds that it would benefit from the views of the United States government as to whether the United States recognizes and allows the claim of President Biya to Head of State Immunity from suit in this action... and on any related issue on which the United State considers it prudent to submit its views, including whether the Plaintiff's claims are non-justiciable under the political question doctrine or barred by the Act of State doctrine.
On December 12, 2012, Harold Hongju Koh, Legal Adviser at the U.S. State Department, wrote to Stuart F. Delery, Acting Assistant Attorney General, Civil Division, U.S. Department of Justice (DOJ), stating unequivocally that President Biya had immunity from prosecution in the United States:
Under common law principles of immunity articulated by the executive branch in the exercise of its constitutional authority over foreign affairs and informed by customary international law, President Biya, as the sitting head of state of a foreign state, is immune from the jurisdiction of the United States District Court in this suit while in office.
It is on this basis that the State Department called for “the prompt dismissal of the proceedings against President Biya in view of the significant foreign policy implications of such an action,” and demanded that “the Department of Justice submit a determination of immunity to the district court at the earliest opportunity.”
On December 22, 2012, the Department of Justice complied and filed a Suggestion of Immunity on behalf of President of Cameroon Paul Biya categorically stating that “The United States hereby informs the Court that President Biya is immune from this suit.”
The DOJ like the State Department before it stated that:
The interest of the United States in this matter arises from a determination by the Executive Branch of the Government of the United States, in consideration of the relevant principles of customary international law, and in the implementation of its foreign policy and in the conduct of its international relations, to recognize President Biya’s immunity from this suit while in office.
It reminded the Court that:
This determination is controlling and is not subject to judicial review. No court has ever subjected a sitting head of state to suit once the Executive Branch has determined that the head of state is immune… Congress left in place the practice of judicial deference to Executive Branch immunity determinations with respect to foreign officials… Thus, the Executive Branch retains its historic authority to determine a foreign official’s immunity from suit, including the immunity of foreign heads of state.
The DOJ, however, clarified that although a Head of State cannot be prosecuted while in office, this immunity was lost once the Head of State leaves office:
Under the customary international law principles accepted by the Executive Branch, head of state immunity attaches to a head of state’s status as the current holder of the office. After a head of state leaves office, however, that individual no longer has status-based immunity and generally retains residual immunity only for acts taken in an official capacity while in that position… In this case, because the Executive Branch has determined that President Biya, as the sitting head of a foreign state, enjoys head of state immunity from the jurisdiction of U.S. courts in light of his current status, President Biya is entitled to immunity from the jurisdiction of this Court over this suit.
On January 25, 20013, Magistrate Judge Thomas M. Coffin recommended that the case against Biya be dismissed:
I find that Defendant President Paul Biya is immune from suit in this action and recommend that this court dismiss this action against him…
It is well settled that the executive branch's suggestion of immunity is conclusive and not subject to judicial review… "For over 160 years American Courts have consistently applied the doctrine of sovereign immunity when requested to do so by the executive branch" with no additional review of the executive's determination… A court's deference to the Executive Branch's determination is motivated by caution "appropriate to the Judicial Branch when the conduct of foreign affairs is involved"… ("[I]t is a guiding principle in determining whether a court should [recognize a suggestion of immunity] in such cases, that the courts should not so act as to embarrass the executive arm in its conduct of foreign affairs. In such cases the judicial department of this government follows the action of the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction.")
Here, I recommend that this court apply the doctrine of sovereign immunity to President Biya as requested by the executive and dismiss plaintiff's claims against him.
On February 22 Chief Judge Ann L. Aiken adopted Judge Coffin's findings and recommendation:
“No objections have been timely filed. This relieves me of my obligation to give the factual findings de novo review… Having reviewed the legal principles de novo, I find no error. THEREFORE, IT IS HEREBY ORDERED that, I adopt Judge Coffin's Findings and Recommendation.
Court did Not Rule on the Merits of Case!
Contrary to what some Cameroonian newspapers have claimed, the District Court did not rule on the merits of the case but exclusively on the issue of sovereign immunity. As Judge Coffin clearly stated in his recommendation (citing Ye v. Zemin, 383 F.3d 620, 626-27 (7th Cir. 2004)):
"[A] determination by the Executive Branch that a foreign head of state is immune from suit is conclusive and a court must accept such a determination without reference to the underlying claims of a plaintiff."
Fotso’s legal team never raised any objection to Judge Coffin’s recommendation, definitively closing the door on any appeal – that said, it is unlikely that an appeal would have succeeded given the huge case law on this matter. For example, in Tachiona v. Mugabe, the Plaintiff lost her case against President Robert Mugabe of Zimbabwe and Foreign Minister Stan Mudenga in 2001 after the U.S. Government filed a Suggestion for Immunity on behalf of the defendants. In 2004 the U.S. Court of Appeals for the 2nd Circuit concluded that “the claims against Mugabe and Mudenge were properly dismissed on the basis of diplomatic immunity.”
The Case Against other Defendants in the Fotso Case
Fotso’s case continued even after President Biya was dropped as a defendant. In fact, a week before Judge Aiken adopted the recommendation to drop Biya as a defendant in the case, lawyers for the defense had filed a motion to dismiss the case against the other defendants for lack of jurisdiction:
[The defendants] respectfully move… to dismiss Plaintiff’s Complaint for lack of subject matter jurisdiction(i) over Plaintiff’s claims against Cameroon under the Foreign Sovereign Immunities Act, 28 U.S.C. §1602 et seq. and (ii) over Plaintiff’s claims against the Cameroon Government Officials based on their foreign official immunity from U.S. jurisdiction. Alternatively, the Cameroon Government Officials move... to dismiss Plaintiff’s Complaint for lack of personal jurisdiction. Finally, and without waiver of their jurisdictional defenses, Movants respectfully move… to dismiss Plaintiff’s Complaint pursuant to the Act of State Doctrine if the Court determines that it has both subject matter and personal jurisdiction.
The final judgment was issued on June 14, 2013.
According to news reports from Cameroon, the judgment will be the focus of a press conference that Lawyer Akere Muna, Legal Advisor for the Republic of Cameroon, is organizing at the Yaoundé Hilton Hotel tomorrow, Monday, September 2, 2013.
The June 14 judgment will be the focus of my next post.