UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) JACQUES DIEUDONNE ) ITONG MIANGO, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 15-1265 (ABJ) ) DEMOCRATIC REPUBLIC OF CONGO ) Embassy of the Democratic ) Republic of the Congo, et al., ) ) Defendants. ) ____________________________________)

MEMORANDUM OPINION

Plaintiffs Jacques Miango, Matala Kayaya, and Ouwo Likutu filed a lawsuit alleging that

they were beaten by security forces of the Democratic Republic of the Congo (“DRC”) when they

participated in a protest across the street from the Washington, D.C. hotel where the DRC President

and his delegation were staying. See Second Am. Compl. [Dkt. # 39] ¶¶ 21–26. The lawsuit was

brought against a number of defendants, including the DRC; the president of the DRC, Joseph

Kabila Kabange; and five individuals who were allegedly part of the president’s entourage. Id.

¶¶ 6, 7, 12. On January 16, 2018, the Court granted the plaintiffs’ motion for default judgment as

to these seven defendants. Mem. Op. [Dkt. # 131].

Pending before the Court are the five individuals’ motion to vacate the default judgment

and motion to dismiss the case for lack of jurisdiction, on the grounds that they are entitled to

immunity under the Diplomatic Relations Act or the common-law foreign official immunity

doctrine. Defs.’ Mot. to Vacate Default J. & Mot. to Dismiss [Dkt. # 133] (“Defs.’ Mot.”); Defs.’ Mem. in Supp. of Defs.’ Mot. [Dkt. # 133-1] (“Defs.’ Mem.”). Plaintiffs have opposed the motion.

Pls.’ Opp. to Defs.’ Mot. [Dkt. # 138] (“Pls.’ Opp.”).

Because the Court finds that the five individual defendants are entitled to immunity under

the common-law foreign official immunity doctrine, it will grant their motion to vacate the default

judgment, and these defendants will be dismissed from the case. 1

BACKGROUND

The factual and procedural background of this case are laid out in detail in the Court’s

Memorandum Opinion granting motions to dismiss filed by other defendants – the District of

Columbia Metropolitan Police Department, the United States Secret Service, Capella Hotel

Groups, LLC, and Castleton Hotel Partners, LLC. See Miango v. Democratic Republic of the

Congo,

, 120–23 (D.D.C. 2017). Therefore, the Court will address the facts

only briefly here.

Plaintiff Jacques Miango is a refugee of the DRC who lives in Maryland with his wife,

plaintiff Micheline Miango. Second Am. Compl. ¶ 2. He describes himself as “a known opponent

and activist against the DRC government[’s] human rights violations.”

Plaintiffs Matala

Kayaya and Ouwo Likutu are Congolese by national original and are legal residents of Maryland.

¶¶ 4–5.

On August 6, 2014, plaintiffs Miango, Kayaya, and Likutu staged a protest against the

DRC on the sidewalk across the street from the Capella Hotel. Second Am. Compl. ¶¶ 24, 27.

Shortly after they arrived, plaintiffs saw the DRC’s press official, defendant Jeanmarie Kassamba,

returning to the hotel. Id. ¶ 27. Miango and his fellow protestors shouted at defendant Kassamba

1 The Court notes that the defendants could have resolved this issue much sooner and spared plaintiffs and the Court considerable time and effort had they filed a timely responsive pleading instead of waiting until after the entry of judgment against them to enter the case. 2 and held up signs condemning rape, corruption, genocide, dictatorship, and human rights

violations in the DRC. Id. Defendant Kassamba entered the hotel and came back out with

“apparent security enforcers of the Kabila regime[.]” Id. ¶ 28. Plaintiffs claim that the DRC

security forces approached Miango and “began belittling, threatening, intimidating and disrupting”

him and the other protestors. Id. Soon after, President Kabila arrived at the hotel. Id. ¶ 31. Miango

started shouting at him, and plaintiffs claim that the President recognized Miango as a

“dissident.” Id.

According to the complaint, after President Kabila entered the hotel, another group of DRC

security forces “rushed out” of the building and joined the group already harassing Miango and

the other protestors. Second Am. Compl. ¶ 32. They “immediately began physically attacking”

the protestors, and though plaintiff Kayaya was able to escape, Miango was “knocked down to the

ground, beaten, kicked, choked, and stomped on” by the security forces. Id. As a result, Miango

lost several teeth and suffered a concussion and injuries to his spine and neck. Id. Plaintiffs allege

that after the DRC security forces beat Miango, some of the security forces broke into his parked

car and stole protest materials, a computer, an iPod, a camera, and other property belonging to

plaintiffs. Id. ¶ 34.

Plaintiffs filed their Second Amended Complaint on May 10, 2016, alleging various torts

and constitutional claims against the DRC, Joseph Kabila Kabange, Jeanmarie Kassamba, Jacques

Mukaleng Makal, Seraphin Ngwej, Raymond Tshibanda, Leonard Ngoy Lulu, Sam Mpengo

Mbey, the United States Secret Service, District of Columbia Metropolitan Police Department

(“MPD”), Castleton Hotel Partners LLC, and Capella Hotels Group LLC. See Second Am. Compl.

The Court dismissed the claims against the Secret Service, MPD, Castleton Hotels and Capella

3 Hotels, see Miango,

, and it terminated defendant Lulu since he was never

properly served. See Min. Order (Dec. 15, 2016).

At that point, fourteen counts remained against the DRC and the six individual defendants.

The seven defendants failed to file an answer or otherwise respond to plaintiffs’ complaint. On

March 22, 2017, the Clerk of the Court entered default as to all seven defendants, see Clerk’s Order

of Default [Dkt. # 114], and plaintiffs on that same day moved for default judgment. See Mots.

For Default J. [Dkts. ## 116–23]. On January 16, 2018, the Court granted default judgment against

the seven defendants. Mem. Op. [Dkt. # 131]. On May 7, 2018, the six individual defendants

entered an appearance and moved to vacate the default judgment and to dismiss the case. Defs.’

Mot.; Defs.’ Mem.

Because the motion to dismiss and motion to vacate default judgment raised important

questions related to foreign sovereign immunity, on October 25, 2018, the Court sought the input

of the Department of State, pursuant to

. Letter from the Court to the United States

Dep’t of State [Dkt. # 141] (“10/25/18 Letter”). Specifically, the Court requested the Department’s

views on two issues:

1. The Department of State’s position as to the immunity of the defendants as diplomatic agents under the Diplomatic Relations Act, and

2. The Department of State’s position as to the immunity of DRC President Joseph Kabila as an official “head-of-state.”

.

On December 3, 2018, the Department of State filed a Suggestion of Immunity for

President Kabila, [Dkt. # 142], and the Court invited plaintiffs to submit their views as to why

President Kabila should not be dismissed from the case. Min. Order (Dec. 3, 2018). Plaintiffs did

not respond, and on January 19, 2019, the Court granted defendants’ motion to vacate default

4 judgment and motion to dismiss as to defendant President Kabila. Order [Dkt. # 144]. The

Department of State sought additional time to provide its views on the five remaining individual

defendants, see, e.g., Min. Order (Dec. 3, 2018); Min. Order (Feb. 19, 2019); Min. Order (Mar.

20, 2019), and on May 1, 2019, the Department of State finally filed a statement of interest, stating

that it needed additional facts before it could determine whether these defendants were immune.

Statement of Interest Submitted by the United States of America [Dkt. # 151] (“Statement of

Interest”) at 7–10.

The agency concluded that the individuals did not qualify for diplomatic immunity under

the Diplomatic Relations Act, Statement of Interest at 5–7, but that discovery would aid in its

determination of whether they were immune from suit under principles of common-law immunity.

at 7–9. The Court invited the parties to respond to the State Department’s statement. Min.

Order (May 2, 2019). The parties were in agreement that no jurisdictional discovery was

necessary, and that the Court should determine the issue of immunity based upon the papers.

Defs.’ Resp. to Statement of Interest [Dkt. # 152] (“Defs.’ Resp.”); Pls.’ Resp. to Statement of

Interest [Dkt. # 153] (“Pls.’ Resp.”).

STANDARD OF REVIEW

I. Relief from Judgment

Federal Rule of Civil Procedure 60(b) permits a court to relieve a party from a judgment

or order for any one of six reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2)

newly discovered evidence; (3) fraud, misrepresentation, or other misconduct by an opposing

party; (4) a void judgment; (5) a satisfied, released, or discharged judgment; or (6) any other reason

justifying relief. Fed. R. Civ. P. 60(b). All motions must be made “within a reasonable time.”

Fed. R. Civ. P. 60(c)(1). “The party seeking relief from judgment bears the burden of proof.”

Norris v. Salazar,

(D.D.C. 2011).

5 Rule 60(b)(4) applies when a judgment is void. A judgment is considered void if the court

lacks subject-matter jurisdiction in the case. United Student Aid Funds, Inc. v. Espinosa,

(2010); Ramirez v. Dep’t of Justice,

(D.D.C. 2010). A judgment is

also void if the court, although having jurisdiction, enters a judgment “not within the powers

granted to it by the law.” United States v. Walker,

(1883). “[I]f the judgment

is void, relief is mandatory.” Combs v. Nick Garin Trucking,

(D.C. Cir. 1987).

II. Subject Matter Jurisdiction

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a

preponderance of the evidence. See Lujan v. Defs. of Wildlife,

(1992); Shekoyan

v. Sibley Int’l Corp.,

(D.D.C. 2002). Federal courts are courts of limited

jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen

v. Guardian Life Ins. Co. of Am.,

(1994); see also Gen. Motors Corp. v. EPA,

(D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with

an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as

well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction

upon a federal court.’” Akinseye v. District of Columbia,

(D.C. Cir. 2003),

quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee,

(1982).

When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a

motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.”

Hohri v. United States,

(D.C. Cir. 1986), vacated on other grounds,

(1987). Rather, “a court may consider such materials outside the pleadings as it deems

appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v.

D.C. Bd. of Elections & Ethics,

(D.D.C. 2000), citing Herbert v. Nat’l

6 Acad. of Scis.,

(D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA,

(D.C. Cir. 2005).

ANALYSIS

The individual defendants ask the Court to vacate the default judgment entered against

them and dismiss the case. They maintain that the judgment is void under Federal Rule of Civil

Procedure 60(b)(4) because they are immune from suit, and so the Court does not have jurisdiction

over them. See Defs.’ Mem.

Defendants argue that they are immune under both the Diplomatic Relations Act and

common-law immunity principles.

The Court finds that defendants are not immune under the

Diplomatic Relations Act, but that they are immune under the common-law doctrine of conduct-

based immunity. Therefore, it will grant defendants’ motion.

I. The five individual defendants are not entitled to diplomatic immunity under the Diplomatic Relations Act.

The Diplomatic Relations Act (“DRA”) of 1978 gives effect to the Vienna Convention on

Diplomatic Relations (“VCDR”). See 22 U.S.C. § 254a et seq. It provides that:

Any 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 . . . or under any other laws extending diplomatic privileges and immunities, shall be dismissed.

22 U.S.C. § 254d. “[T]he purpose of such privileges and immunities is not to benefit individuals

but to ensure the efficient performance of the functions of diplomatic missions as representing

States[.]” VCDR, preamble.

The Vienna Convention provides a “diplomatic agent” immunity from the receiving state’s

“civil and administrative jurisdiction.” VCDR, art. 31(1). A “diplomatic agent” is defined as the

“head of the mission or a member of the diplomatic staff of the mission.” VCDR, art. 1(e). The

7 members of the “diplomatic staff” include “members of the staff of the mission” which are the

“administrative and technical staff and of the service staff of the mission.” VCDR Art. 1(c). The

VCDR does not define “mission,” but the DRA explains that the term “mission includes missions

within the meaning of the [VCDR] and any missions representing foreign governments,

individually or collectively, which are extended the same privileges and immunities, pursuant to

law, as are enjoyed by missions under the Vienna Convention.” 22 U.S.C. § 254a(3).

The D.C. Circuit has stated that “[t]he 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.” Carrera v. Carrera,

(D.C. Cir. 1949)

(internal quotation marks and citation omitted); see also Zdravkovich v. Consul General of

Yugoslavia, No. 98-7034,

, *1 (D.C. Cir. 1998) (per curiam) (“The courts are

required to accept the State Department’s determination that a foreign official possesses diplomatic

immunity from suit. Appellant’s claims do not fall within any of the exceptions to diplomatic

immunity.”) (internal citations omitted); Jungquist v. Nahyan,

, 321–22 (D.D.C.

1996), rev’d in part on other grounds,

(“[T]he determination of a diplomat’s status

is made by the State Department, not the Court.”).

On May 1, 2019, the Department of State submitted a notice to the Court indicating that

the individual defendants were not entitled to immunity under the Diplomatic Relations Act,

because “none of the individual DRC defendants had been notified to the State Department as

members of the DRC’s diplomatic mission in the United States.” Statement of Interest at 6. The

Court is bound to defer to the State Department’s conclusion, which is consistent with the

information contained in the complaint about the role played by these individuals. See Jungquist

v. Nahyan,

, 321–22 (D.D.C. 1996), rev’d in part on other grounds,

(D.C. Cir. 1997) (declining to dismiss claims against defendants under the DRA even though

they argued that they “occupied positions given diplomatic and mission status” because there was

“no evidence . . . that the State Department consider[ed] that to be the case”). Indeed, the parties

do not argue otherwise. See Pls.’ Resp.; Defs.’ Resp. Thus, because the individual defendants

were not members of a diplomatic mission, they do not benefit from diplomatic immunity under

the Diplomatic Relations Act.

II. The defendants are immune from suit under the common-law conduct-based immunity doctrine.

The Supreme Court has held that a foreign official sued for conduct undertaken in his or

her official capacity is not a “foreign state” entitled to immunity under the Foreign Sovereign

Immunities Act. Samantar v. Yousuf,

, 325–26 (2010). But the foreign official can

claim to be immune under common-law immunity principles.

. “[A] foreign official is

entitled to one of two different types of immunity: status-based or conduct-based immunity.”

Rishikof v. Mortada,

, 11–12 (D.D.C. 2014), citing Yousuf v. Samantar,

(4th Cir. 2012); see Sikhs for Justice v. Singh,

(D.D.C. Aug. 19,

2014). In their original memorandum, defendants claimed both status-based immunity and

conduct-based immunity for defendant President Joseph Kabila, Defs.’ Mem. at 7–8, and they

based their motion to dismiss the remaining defendants on conduct-based immunity only.

at

8–9.

Conduct-based immunity is determined through “a two-step procedure.” Samantar,

. The official can “request a suggestion of immunity from the State Department.”

(internal quotation marks omitted). If the State Department takes no action, “a district court ha[s]

authority to decide for itself whether all the requisites for such immunity exist[].”

quoting Ex

parte Republic of Peru,

(1943) (internal quotation marks omitted).

9 On April 26, 2018, defendants requested a Suggestion of Immunity on behalf of the

individual defendants. Declaration of Francois Nkuna Balumuene [Dkt. # 133-2] (“Balumuene

Decl.”) ¶ 11; see Diplomatic Note, Ex. 1 to Balumuene Decl. [Dkt. # 133-2]. The United States

has not responded to this request. Thus, the Court is “authorized to decide whether all the

requisites for foreign-official immunity exist.” 2 Lewis v. Mutond,

, 145–46 (D.C.

Cir. 2019) (emphasis omitted).

The “requisites for conduct-based immunity” are: (1) the actor must be a “public minister,

official, or agent of the foreign state”; (2) the act must have been performed in the actor’s “official

capacity”; and (3) “exercising jurisdiction” would have the effect of “enforc[ing] a rule of law

against the [foreign] state.” Lewis,

, citing Restatement (Second) of Foreign

Relations Law of the United States § 66 (1965); see also Rishikof v. Mortada,

(D.D.C. 2014).

Here, defendants submitted a declaration averring that the individual defendants were

officials who accompanied President Kabila as part of the Democratic Republic of the Congo’s

entourage, Balumuene Decl. ¶¶ 6–7, and plaintiffs do not dispute that the individual defendants

are officials or agents of the foreign state. See Pls.’ Opp. at 6–7. Indeed, plaintiffs’ second

amended complaint alleges that these individuals are “nationals, officials, agents, representatives

. . . of the DR Congo Government.” Second Am. Compl. ¶ 12.

2 The United States contends that additional discovery is needed to conduct this inquiry. Both parties disagreed. See Defs.’ Resp.; Pls.’ Resp. The Court finds that it is able to conduct the analysis based upon the record, and because the views of the Executive Branch do not “control questions of [common-law] foreign official immunity,” even though its opinion is entitled to deference, the Court is not required to ascertain the Department of State’s opinion as to whether conduct-based immunity applies. Yousuf v. Samantar,

(4th Cir. 2012). 10 Second, defendants contend that the acts were undertaken as part of the defendants’ official

duties. Defs.’ Mem. at 9. Plaintiffs argue that the acts of “brutally beating and robbing the

[p]laintiffs, were not carried out as part of their ‘official dut[ies].’” Pls.’ Opp. at 7. But plaintiffs

do not provide any support for this assertion, and they submit that no additional discovery is needed

to illuminate the issue. See Pls.’ Resp. Defendants, on the other hand, have supported their motion

with a sworn declaration that states that “all of the alleged conduct at issue in the lawsuit was

performed exclusively in [d]efendants’ respective official capacities as members of the Democratic

Republic of Congo’s diplomatic mission to the United States and in furtherance of the interests of

the Democratic Republic of Congo, namely protection of President Kabila.” Balumuene Decl.

¶ 10.

Putting aside the question of whether the level of force was justified for that purpose,

defendants’ assertions are entirely consistent with plaintiffs’ own allegations in this case, as

plaintiffs have consistently maintained throughout this litigation that the individual defendants

were acting in their official capacities. In the second amended complaint, plaintiffs repeatedly

alleged that the individual defendants were “acting under the color of state authority, and/or actual

or apparent state authority.” 3 Second Am. Compl. ¶¶ 44, 49, 56, 66, 77, 88, 100, 119. In their

motion for default judgment against the Democratic Republic of Congo, plaintiffs argued that the

individual defendants were acting within the scope of their office or employment. Pls.’ Am. &

Suppl. Mot. for Default J. & Renewed Mot. for Leave to Amend Pls.’ Initial Mots.’ for Default J.

[Dkt. # 128] at 8. Furthermore, in granting plaintiffs’ motion for default judgment, the Court found

3 Plaintiffs argue that their allegations in the complaint and their pleadings cannot “confer conduct-based immunity on the Individual Defendants.” Pls.’ Resp. at 4. But they do not explain why that is the case.

11 that the “named defendants were acting within the scope of their employment as security officials

of the DRC when they committed the acts alleged in the complaint,” Mem. Op. at 8, and plaintiffs

have not pointed to anything that would warrant revisiting that conclusion. 4

Third, exercising jurisdiction over the individual defendants would enforce a rule of law

against the DRC. This factor “allow[s] for immunity when a judgment against the official would

bind (or be enforceable against) the foreign state.” Lewis,

(finding the third

element not satisfied where only the foreign official was sued in his individual capacity and the

plaintiff did not seek to hold the foreign country liable for that defendant’s actions). In filing this

complaint, plaintiffs sought to hold the Democratic Republic of Congo jointly and severally liable

with the other defendants. Second Am. Compl. ¶ 183. As another court in this district held, “[b]y

claiming that the [foreign country] is liable for [the individual defendant’s] actions, [p]laintiff—

by definition—is seeking to enforce a rule of law against the [foreign country].” Risikof,

. The Court agrees. When plaintiffs filed a lawsuit against the DRC as well as the

individual defendants and asserted in their complaint that the DRC is liable for those actions,

plaintiffs sought to enforce a rule of law against the DRC. And plaintiffs do not dispute the

4 Another court in this district rejected a foreign defendant’s conduct-based immunity claim under similar circumstances. In Rishikof, the plaintiff was involved in a motor vehicle accident with an individual who was driving a vehicle owned by the Swiss Confederation.

. The plaintiff brought a lawsuit against the Swiss Confederation and the driver. The defendants moved to dismiss the driver from the case, arguing that conduct-based immunity precluded the claims against him. The Court granted the motion, in part because the plaintiff had attempted to retreat from his allegation that the driver was acting in an official capacity as an embassy employee.

. The court observed: “Where a plaintiff blatantly changes his statement of facts in order to respond to the defendants[’s] motion to dismiss ... [and] directly contradicts the facts set forth in his original complaint, a court is authorized to accept the facts described in the original complaint as true.”

, quoting Hourani v. Mirtchev,

(D.D.C. 2013). The court also observed that “[p]laintiff’s revised version of the facts . . . would warrant dismissal of this case” because if the driver was not acting in his official capacity, the Swiss Confederation would be immune from suit.

12 applicability of this factor. See Pls.’ Opp. at 6–7; Defs.’ Reply in Supp. of Defs.’ Mot. [Dkt. # 139]

at 6–7.

Since all of the factors in the test apply here, the individual defendants are covered by the

foreign official conduct-based immunity available as a matter of common law.

Plaintiffs argue that the tortious activity exception to the Foreign Sovereign Immunities

Act (“FSIA”) provides jurisdiction. Pls.’ Resp. at 5. But an individual sued for conduct undertaken

in his official capacity is not a “foreign state” entitled to immunity from suit within the meaning

of the FSIA. Samantar, 560 U.S. at 315–16. Thus, the tortious activity exception does not apply

to the individual defendants, and it cannot save the complaint.

Because defendants have satisfied all the requisites for common-law conduct-based

immunity, the Court finds that the five individual defendants are immune from suit. Thus, the

default judgment against them is void, and the defendants will be dismissed from the case.

CONCLUSION

In light of the foregoing, the Court will grant defendant’s motion to vacate and motion to

dismiss for lack of jurisdiction [Dkt. # 133].

A separate order will issue.

AMY BERMAN JACKSON United States District Judge

DATE: June 29, 2020

13