District Court Dismisses Claim by U.S. Citizen Against the U.S. Arising on Non-U.S. Soil On Sovereign Immunity Grounds

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Cottonham v. United States Embassy, Bankok, Thailand, No. C-11-3131 (N.D. Cal. 2011), is almost a more brief decision than this posting, but the issue is one worth consideration for those in international practice.

Plaintiff Cottonham alleged that when he went to the U.S. Embassy in Bangkok, Thailand to obtain more pages for his passport, his passport was taken from him without explanation; that he was then arrested in part for not having a passport; and then jailed in Thailand for eight days. 

Since Cottonham was a prisoner at the time he filed this complaint (for reasons undisclosed in the District Court opinion), the Court believed it was required to “engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity”.

Upon doing so, the Court reviewed the complaint and dismissed it, with prejudice and without leave to replead.  The Court’s ground was that the only possible claim was against the U.S., governed by the Federal Tort Claims Act, which, the Court said, waived the sovereign immunity of the United States for certain torts committed by federal employees acting within the scope of their employment.  However, there is an exception to the waiver of sovereign immunity:  to acts or omissions of the U.S. “arising in a foreign country.” 28 U.S.C. § 2680(k). The Court went on:

This exception applies even if “the tort occurs in a foreign area under United States control.” Nurse v. United States, 226 F.3d 996, 1003 (9th Cir. 2000). The foreign country exception “bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred.” Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004).

The District Court, however, did not consider whether other causes of action might exist.  Is it the case that there is and can be no cause of action in a U.S. court against the U.S. by a U.S. citizen allegedly mistreated by the U.S. on non-U.S. soil?