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Doe v. Federal Democratic Republic of Ethiopia

United States Court of Appeals, District of Columbia Circuit

March 14, 2017

John Doe, also known as Kidane, Appellant
v.
The Federal Democratic Republic of Ethiopia, Appellee

          Argued February 2, 2017

         Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-00372)

          Richard M. Martinez argued the cause for the appellant. Samuel L. Walling, Nathan Cardozo, and Cindy Cohn were with him on brief. Scott A. Gilmore entered an appearance.

          David Kaye was on brief for the amici curiae United Nations Human Rights Experts in support of the plaintiff-appellant.

          Thomas R. Snider argued the cause for the appellee. Robert P. Charrow and Laura Metcoff Klaus were with him on brief.

          Before: Henderson and Wilkins, Circuit Judges, and Sentelle, Senior Circuit Judge.

          OPINION

          Circuit Judge Henderson.

         Karen LeCraft Henderson, Circuit Judge: Plaintiff John Doe-proceeding pseudonymously as "Kidane"-claims he was tricked into downloading a computer program. The program allegedly enabled the Federal Democratic Republic of Ethiopia (Ethiopia) to spy on him from abroad. He wants to sue the Republic of Ethiopia. But foreign states are immune from suit unless an exception to the Foreign Sovereign Immunities Act (FSIA) applies. Kidane invokes the FSIA's exception for noncommercial torts. We conclude his reliance is misplaced. The noncommercial-tort exception abrogates sovereign immunity for a tort occurring entirely in the United States. Kidane, by contrast, alleges a transnational tort. We therefore affirm the district court's dismissal for lack of subject matter jurisdiction.

         I. BACKGROUND

         Now an American citizen, Kidane was born in Ethiopia.[1]He obtained asylum in the United States in the early 1990s and has at all relevant times lived in Silver Spring, Maryland. There, he has remained active in the Ethiopian community and has maintained contacts who work to increase awareness of corruption and human rights issues in Ethiopia.

         As alleged in the complaint, in late 2012 or early 2013, Kidane opened an attachment to an e-mail he received from an acquaintance. The e-mail had been forwarded and was allegedly sent originally by or on behalf of Ethiopia. Kidane's complaint is silent as to whether the individual who sent Kidane the e-mail was located in the United States but the e-mail's text suggests that individual was located in London. See Am. Compl. Ex. C ("You took your family to London . . . ."). Once opened, the attachment allegedly infected Kidane's computer with a "clandestine . . . program[] known as FinSpy." Am. Compl. ¶ 4. FinSpy is "a system for monitoring and gathering information from electronic devices, including computers and mobile phones, without the knowledge of the device's user." Id. ¶ 6. It is "sold exclusively to government agencies." Id. After installation on Kidane's computer, FinSpy "began . . . recording some, if not all, of the activities undertaken by users of the computer, " whether Kidane or his family members. Id. ¶ 5. It then allegedly communicated with a server in Ethiopia.

         Kidane filed suit against Ethiopia, pressing two claims. First, Kidane sought relief under the Wiretap Act, 18 U.S.C. §§ 2510 et seq., which prohibits "any person [from] intentionally intercept[ing] . . . any wire, oral, or electronic communication[, ]" id. § 2511(1). Second, Kidane alleged Ethiopia committed the Maryland common law tort of intrusion upon seclusion.

         The district court dismissed Kidane's lawsuit in its entirety. Doe v. Fed. Democratic Republic of Ethiopia, 189 F.Supp.3d 6, 28 (D.D.C. 2016). It first concluded that the relevant Wiretap Act provision could not be enforced via private lawsuit against a foreign government.[2] Id. at 12-15.

         It next dismissed Kidane's state-law claim for lack of subject matter jurisdiction. Id. at 15-28. The district court observed that the FSIA grants all foreign states immunity from suit in American courts, subject to limited enumerated exceptions. Id. at 16. Kidane invoked only one-the noncommercial-tort exception. Id. The district court found that exception ...


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