UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) MANI KUMARI SABBITHI, et al., ) ) Plaintiffs, ) ) Civil Action No. 07-115 (EGS) v. ) ) MAJOR WALEED KH N.S. AL SALEH, ) et al., ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiffs Mani Kumari Sabbithi, Joaquina Quadros, and Gila

Sixtina Fernandes, domestic workers from India, bring this action

against their former employers Major Waleed KH N.S. Al Saleh, his

wife, Maysaa KH A.O.A. Al Omar, (together “defendants”), and the

State of Kuwait.1 Plaintiffs bring suit under the Trafficking

Victims Protection Act of 2000 (“TVPA”),

, et

seq., the Fair Labor Standards Act,

, et seq.,

and assert various contract and tort claims.2 Before this Court

1 Kuwait is a foreign state as defined in

, et seq. (the Foreign Sovereign Immunities Act of 1976). Compl. ¶ 11. Plaintiffs assert that Kuwait is liable for materially and practically assisting the defendants in the alleged offenses. Plaintiffs also seek to hold Kuwait liable under an agency theory for the actions of its employee, Defendant Al Saleh, and his wife, Defendant Al Omar.

. Kuwait is not a party to defendants’ motion to dismiss. See Mot. to Dismiss at 1. 2 Plaintiffs claim breach of contract; quantum merit; unjust enrichment; fraud and constructive fraud; false imprisonment; intentional infliction of emotional distress; negligent infliction of emotional distress; assault; battery; and civil is the defendants’ motion to dismiss the complaint and quash

service of process based on diplomatic immunity. Upon

consideration of the motion, the responses and replies thereto,

the amici curiae brief and response thereto, the Statement of the

United States and responses thereto, and the applicable law, the

Court GRANTS defendants Al Saleh and Al Omar’s motion to dismiss

and quashes service of process as to those defendants.

I. BACKGROUND

Defendant Major Waleed KH N.S. Al Saleh is a Kuwaiti

diplomat. Al Saleh and his wife, defendant Maysaa KH A.O.A. Al

Omar, lived in the United States from 2005 to 2007, while Al

Saleh served as Attaché to the Embassy of Kuwait. See Compl. ¶

9; see also Pls.’ Sur-rep. 2. Prior to moving to the United

States, the defendants employed plaintiffs as domestic workers in

the defendants’ home in Kuwait. The individual plaintiffs worked

for the defendants in Kuwait for a period ranging from five and a

half years to eight and a half months. See Compl. ¶¶ 16-46. In

Kuwait, plaintiffs allegedly worked seven days a week, for long

hours each day, and were paid between 35 Kuwaiti Dinar (KD)

(approximately $121 U.S. dollars) and 40 KD (approximately $138

U.S. dollars) per month.

According to plaintiffs, however,

before coming to the United States the defendants signed an

conspiracy.

2 employment contract promising to pay plaintiffs $1,314 U.S.

dollars per month and agreeing to comply with United States labor

laws in exchange for plaintiffs’ domestic work in the defendants’

home in the United States.

Plaintiffs assert that these

employment contracts were presented to the United States Embassy

in Kuwait for the purpose of obtaining plaintiffs’ A-3 visas,

which authorized plaintiffs to work as live-in domestic servants

in defendants’ home in McLean, Virginia.

Plaintiffs claim that once in the United States, the

defendants did not comply with the terms of the employment

contracts. Allegedly, plaintiffs worked sixteen to nineteen

hours per day, seven days a week, and were not paid directly, but

instead defendants sent wages of 70 KD (approximately $242 U.S.

dollars) to 100 KD (approximately $346 U.S. dollars) per month to

plaintiffs’ families overseas. See

. Plaintiffs

allege that the defendants deprived them of their passports,

threatened plaintiffs with physical harm, and physically abused

Sabbithi.

Plaintiffs eventually escaped the defendants’ home, and, on

January 18, 2007, plaintiffs filed this complaint against

defendants and the State of Kuwait. In addition to this civil

action, plaintiffs pursued criminal charges against the

defendants through the U.S. Department of Justice (“DOJ”).

Pursuant to the DOJ’s request, the U.S. Department of State

3 (“State Department”) asked the State of Kuwait to waive the

defendants’ diplomatic immunity. Pls.’ Sur-rep. Ex. A.

According to the State Department, Kuwait declined to waive the

defendants’ immunity.

As a result, the DOJ closed its

investigation into defendants’ alleged illegal conduct.

On July 18, 2007, the Court granted Break the Chain

Campaign, Casa of Maryland, Inc., Asian American Legal Defense

and Education Fund, Global Rights, and Boat People SOS, Inc.

leave to file as amici curiae a memorandum of law in support of

plaintiffs' opposition to the defendants' Motion to Dismiss and

Quash Service of Process. On March 20, 2008, this Court invited

the State Department to submit its views regarding this case.

The State Department responded on July 22, 2008.

II. DISCUSSION

A. Diplomatic Immunity

This Court has subject matter jurisdiction over this action

pursuant to

, which states that district courts

“have original jurisdiction, exclusive of the courts of the

States, of all civil actions and proceedings against . . .

members of a mission or members of their families (as such terms

are defined in section 2 of the Diplomatic Relations Act).”

(2); see also Gonzalez Paredes v. Vila,

(D.D.C. 2007).

4 Defendants argue that they have diplomatic immunity, and

that their immunity deprives this Court of jurisdiction in this

case, pursuant to the Vienna Convention on Diplomatic Relations

(“the Vienna Convention,” “Convention” or “VCDR”), to which both

Kuwait and the United States are parties. The Vienna Convention

provides that a “diplomatic agent shall . . . enjoy immunity from

[the receiving state's] civil and administrative jurisdiction. .

. .” VCDR, Article 31(1). The Convention further provides that

the “members of the family of a diplomatic agent forming part of

his household shall, if they are not nationals of the receiving

State, enjoy the privileges and immunities specified in Articles

29 to 36.” VCDR, Article 37. The Vienna Convention also

provides that a diplomatic agent “shall not in the receiving

State practice for personal profit any professional or commercial

activity.” VCDR, Article 42. Diplomatic immunity can be

forfeited “in the case of . . . an action relating to any

professional or commercial activity exercised by the diplomatic

agent in the receiving State outside his official functions.”

Id.; see also Article 32(3).

In accordance with the Vienna Convention, Congress enacted

22 U.S.C. § 254d, which provides that “[a]ny action or proceeding

brought against an individual who is entitled to immunity with

respect to such action or proceeding under the Vienna Convention

on Diplomatic Relations . . . shall be dismissed.”

254d. Therefore, if the Court concludes that defendants are

immune, it must dismiss the action pursuant to 22 U.S.C. § 254d.

Gonzalez Paredes,

.

A defendant’s diplomatic immunity “may be established upon

motion or suggestion by or on behalf of the individual. . . .”

22 U.S.C. § 254d. Defendants filed as an exhibit to their motion

to dismiss a letter from the State Department dated March 15,

2007. In that letter, the State Department confirmed that in

August 2004, the Embassy of Kuwait had notified the State

Department that Al Saleh was a diplomatic agent at the Embassy of

Kuwait and, as of March 2007, Al Saleh continued to serve in that

capacity. Mot. to Dismiss Ex. 2. The State Department also

certified that the Embassy of Kuwait had confirmed that Al Omar

was a national of Kuwait and Al Saleh’s spouse residing in his

household. Id. In addition, defendants filed the State

Department’s Diplomatic List from the summer of 2006, in which

the defendants’ names appear as diplomats of Kuwait. Mot. to

Dismiss Ex. 3.

In view of the State Department’s determination that the

defendants are diplomats and its certification that as diplomats

they are immune from suit pursuant to the Vienna Convention, the

Court concludes that these defendants are entitled to diplomatic

immunity. See Gonzales Paredes, 479 F. Supp. 2d. at 192; see

also Carrera v. Carrera,

(D.C. Cir. 1949) (“The

6 courts are disposed to accept as conclusive of the fact of the

diplomatic status of an individual claiming an exemption, the

views thereon of the political department of their government.”

(citation and internal quotation marks omitted)).

B. Proposed Liability Despite Diplomatic Immunity

Despite defendants’ status as diplomats, plaintiffs contend

that diplomatic immunity should not shield the defendants from

liability in this case. In support of this position, plaintiffs

argue that: (1) defendants’ alleged trafficking of plaintiffs

falls within the commercial activities exception to immunity

under the Vienna Convention; (2) diplomatic immunity cannot bar

plaintiffs’ claims challenging defendants’ conduct in violation

of the Thirteenth Amendment; (3) diplomatic immunity cannot bar

plaintiffs’ claims because defendants’ actions were so egregious

they violate jus cogens norms prohibiting slavery and slavery-

like practices; and (4) plaintiffs’ claims under the TVPA prevail

over defendants’ conflicting claims of diplomatic immunity

according to the “subsequent-in-time” rule. Amici curiae filed a

brief in support of plaintiffs’ arguments, specifically with

respect to plaintiffs’ assertion that the defendants’ conduct

constituted human trafficking and that the alleged trafficking

constitutes “commercial activity” within the meaning of the

Vienna Convention. See Amici Brief at 8-14.

1. The “Commercial Activity” Exception to Diplomatic Immunity

7 The purpose of diplomatic immunity is “to ‘contribute to the

development of friendly relations among nations’ and to ‘ensure

the efficient performance of the functions of diplomatic

missions’”. Hellenic Lines, Ltd v. Moore,

(D.C. Cir. 1965) (citing the Vienna Convention preamble).

Consistent with that purpose, the Vienna Convention provides that

a diplomatic agent “shall not in the receiving State practice for

personal profit any professional or commercial activity.” VCDR,

Article 42. Because diplomats are not to engage in professional

or commercial activity outside of their duties as diplomats, the

Vienna Convention includes an exception to diplomatic immunity

“in the case of . . . an action relating to any professional or

commercial activity exercised by the diplomatic agent in the

receiving State outside his official functions.” Id.; see also

VCDR, Article 32(3).

Plaintiffs allege that defendants’ conduct in bringing

plaintiffs from Kuwait to the United States to work as domestic

servants constituted human trafficking, and was therefore a

“commercial activity exercised by the diplomatic agent . . .

outside his official functions” within the meaning of the Vienna

Convention. Plaintiffs, and amici, argue at length that human

trafficking is a profitable commercial activity that results in

severe human rights violations. “But such a literal manner of

interpretation is superficial and incomplete, and, [this Court]

8 believe[s], yields an incorrect rendering of the meaning of

‘commercial activity’ as used in the Vienna Convention.” Tabion

v. Mufti,

(4th Cir. 1996).

Hiring household help is incidental to the daily life of a

diplomat and therefore not commercial for purposes of the

exception to the Vienna Convention. This Court agrees with the

Fourth Circuit in Tabion:

When examined in context, the term “commercial activity” does not have so broad a meaning as to include occasional service contracts as Tabion contends, but rather relates only to trade or business activity engaged in for personal profit. Accepting the broader meaning fails to take into account the treaty's background and negotiating history, as well as its subsequent interpretation. It also ignores the relevance of the remainder of the phrase-“outside his official functions.”

Id.; see also Gonzales Paredas,

.

According to the Statement of Interest filed by the United

States, “[t]he ‘commercial activity’ exception focuses on the

pursuit of trade or business activity that is unrelated to the

diplomatic assignment; it does not encompass contractual

relationships for goods and services that are incidental to the

daily life of the diplomat and his family in the receiving

State.” Statement of Interest of the United States of America

(“Statement”), at 5. The United States also stated that “[w]hen

diplomats enter into contractual relationships for personal goods

or services incidental to residing in the host country, including

9 the employment of domestic workers, they are not engaging in

‘commercial activity’ as that term is used in the Diplomatic

Relations Convention.” Id. at 14. “Although not conclusive, the

meaning attributed to treaty provisions by the Government

agencies charged with their negotiation and enforcement is

entitled to great weight.” United States v. Stuart,

(1989) (quoting Sumitomo Shoji Am., Inc. v. Avagliano,

(1982)). Furthermore, the facts in this

case support a conclusion that the defendants’ conduct in

bringing plaintiffs from Kuwait to the United States and

employing plaintiffs as domestic servants, albeit for marginal

wages, was not commercial activity outside of the defendants’

official functions.3

3 Plaintiffs urge the Court to give "commercial activity" as used in the Vienna Convention similar meaning as is given for consular and foreign sovereign immunities. Under the Foreign Sovereign Immunity Act (FSIA), a foreign state is not immune for actions "based upon a commercial activity carried on in the United States by a foreign state,"

(a)(2), but there is no similar language in FSIA that the commercial activity be outside the foreign state's official functions. Cases interpreting the Vienna Convention on Consular Relations are equally inapplicable because consular immunity is narrower in scope than diplomatic immunity, in that consular immunity only exists for "acts performed in the exercise of consular functions," Vienna Convention on Consular Relations, Apr. 24, 1963, art. 43(1), 21 U.S.T. 77, 104, as opposed to diplomatic immunity which exists for all acts performed by the diplomat, with limited exceptions. The Vienna Convention is a multilateral treaty, and the Court’s analysis must begin with the language of the Treaty itself. See Rainbow Nav., Inc. v. Dep’t of Navy,

(D.C. Cir. 1990). “The clear import of treaty language controls unless application of the words of the treaty according to their obvious meaning effects a result inconsistent

10 This Court finds the reasoning in Gonzales Paredas, a case

with very similar facts, persuasive. In Gonzales Paredas, the

plaintiff, a citizen of Paraguay, was hired by defendants in

Argentina to work as a domestic servant for defendants while they

served on a diplomatic mission to the United States. Gonzales

Paredas,

. Plaintiff alleged that the

defendant signed an employment contract agreeing to pay plaintiff

$6.72 per hour, plus overtime, and that the contract was

presented to the United States Embassy in Argentina for the

purposes of obtaining an A-3 visa.

. Plaintiff

claimed that, contrary to the promises made in the contract, she

worked seventy-seven hours per week, and was paid only $500 per

month. Plaintiff filed suit for violations of federal and local

wage laws, breach of contract, and unjust enrichment.

The

defendants moved to dismiss the complaint and quash service of

process based on diplomatic immunity.

In determining whether the hiring of domestic help was a

commercial activity outside a diplomat’s official functions, the

Gonzales Paredas court considered Statements of Interest filed by

the State Department. Those statements mirror the statements the

with the intent or expectations of its signatories.”

(citation and internal quotations omitted). Thus, the Court will not consider as determinative cases interpreting the FSIA nor the Vienna Convention on Consular Relations. See also Gonzales Paredas,

n.5 (citing Tabion,

n.7).

11 United States provided to the Court in this case. See id. at

193. Finding no reason to disagree with the conclusion of the

State Department, the Gonzales Paredas court found that a

contract for domestic services was not itself “commercial

activity” within the meaning of the Vienna Convention.

Similarly, this Court concludes that hiring domestic

employees is an activity incidental to the daily life of a

diplomat and his or her family, and does not constitute

commercial activity outside a diplomat’s official function. See

VCDR, Article 31(1)©.

2. Constitutional Claims and Diplomatic Immunity

Plaintiffs argue that the defendants’ actions in this case

violated the Thirteenth Amendment of the United States

Constitution prohibiting slavery, and that diplomatic immunity

does not apply against a constitutional challenge. Plaintiffs do

not cite a single case, however, in which diplomatic immunity was

withheld in order to provide redress for a constitutional

violation. Instead, case law suggests that diplomatic immunity

can shield a diplomat from liability for alleged constitutional

violations. See, e.g., FDIC v. Meyers,

(1994); Pierson v. Ray,

(1967); Tuck v. Pan

Am. Health Org.,

(D.C. Cir. 1981); Persinger

v. Islamic Republic of Iran,

(D.C. Cir. 1984)

(vacating earlier opinion and affirming the district court’s

12 dismissal of actions alleging violations of treaties and of

international, constitutional, and common law); Weinstock v.

Asian Dev. Bank,

(D.D.C. July 13, 2005)

(dismissing action seeking redress for constitutional violations

based on defendants’ immunity under the International

Organizations Immunity Act of 1945); Ahmed v. Hoque,

(S.D.N.Y. August 23, 2002) (holding that plaintiff’s

Thirteenth Amendment claim did not trump defendants’ diplomatic

immunity). Plaintiffs constitutional claims must also give way

to defendants’ diplomatic immunity.

3. Jus cogen norms and Diplomatic Immunity

Jus cogen norms are peremptory norms of international law

which enjoy the highest status in international law and prevail

over both customary international law and treaties. Comm. of

U.S. Citizens Living in Nicar. v. Reagan,

(D.C.

Cir. 1988). Plaintiffs argue that the defendants’ human

trafficking conduct violated jus cogen norms, and as such

defendants diplomatic immunity pursuant to the Vienna Convention

should be denied.

The Court is not persuaded that defendants’ conduct

constituted human trafficking, and thus no jus cogen norm was at

issue. See supra II.B.1. See also Gonzales Paredas,

(enforcing diplomatic immunity over plaintiff’s

claim that defendants violated jus cogen norms). Furthermore,

13 “[i]n the view of the United States, there is no jus cogens

exception to diplomatic immunity” and “there is not evidence that

the international community has come to recognize a jus cogens

exception to diplomatic immunity.” Statement, at 20 (citing

Jones v. Ministry of Interior, [2006] UKHL 26, ¶ 27 (U.K. House

of Lords 2006).

4. “Subsequent-in-Time” Rule

Finally, plaintiffs’ argument that the TVPA overrides the

Vienna Convention pursuant to the subsequent-in-time rule is

wholly unavailing. The subsequent-in-time rule applies “[w]here

a treaty and a statute ‘relate to the same subject,’” and the two

cannot be harmonized. Kappus v. CIR,

(D.C.

Cir. 2003) (quoting Whitney v. Robertson,

(1888)). The TVPA concerns peonage, slavery, and trafficking in

persons, whereas the Vienna Convention provides immunity from

criminal prosecution and civil actions to foreign diplomats.

Because the treaty and statute do not relate to the same subject,

the subsequent in time rule is inapplicable. “A treaty will not

be deemed to have been abrogated or modified by a later statute,

unless such purpose on the part of Congress has been clearly

expressed.” Cook v. United States,

(1933)

(citation omitted). There has been no such action on the part of

Congress, and inaction is not sufficient to abrogate a treaty.

See Trans World Airlines v. Franklin Mint Corp.,

,

14 252 (1984). Morever, “[i]n the view of the United States, the

TVPA does not override diplomatic immunity. First, the TVPA is

silent as to whether it limits the immunity of diplomats, and

courts should not read a statute to modify the United States’s

treaty obligations in the absence of a clear statement from

Congress.” Statement, at 23 (citation omitted).

C. Residual Immunity

In light of defendants leaving their diplomatic post in 2007

and returning to Kuwait, plaintiffs ask the Court to find that

defendants no longer have diplomatic immunity. Although Article

39 of the Vienna Convention states that an official’s privileges

and immunities end when his diplomatic functions cease, Article

39 provides that a residual immunity subsists with respect to

“acts performed by such a person in the exercise of his functions

as a member of the mission.” Therefore, defendant's immunity

remains intact for acts performed in the exercise of his duties

as a diplomatic officer of the State of Kuwait. See Knab v.

Republic of Geor.,

, *4 (D.D.C. May 29, 1998).

As the Court previously concluded, defendants’ conduct in

employing plaintiffs was not performed outside the exercise of

defendants’ diplomatic functions. See supra II.B.1. For this

reason, defendants’ current status does not affect their immunity

from civil jurisdiction.

The Court recognizes that foreclosing plaintiffs’ access to

15 the courts may have harsh implications, including even the denial

of legal or monetary relief. The application of the doctrine of

diplomatic immunity inevitably “deprives others of remedies for

harm they have suffered.” Hellenic Lines,

.

Congress, however, is the appropriate body for plaintiffs to

present their concerns that the effectiveness of enforcing fair

labor practices in the United States is compromised by diplomatic

immunity. See Tabion,

. This court will not

create new exceptions to the longstanding policy of diplomatic

immunity. See Belhas v. Ya’alon,

(D.C. Cir.

2008)(refusing to create a new exception under the FSIA when no

such exception had been created by Congress). “And the law that

binds this Court states that ‘[a]ny action or proceeding brought

against an individual who is entitled to immunity with respect to

such action or proceeding under the Vienna Convention on

Diplomatic Relations . . . shall be dismissed.’” Gonzales

Paredas,

(quoting 22 U.S.C. § 254d).

III. CONCLUSION

Accordingly, for the reasons set forth above, the Court

GRANTS defendants’ Motion to Dismiss and Motion to Quash Service.

An appropriate order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan

16 United States District Judge March 20, 2009

17