American Can't Sue Iraq and Lebanon for Allegedly Anti-Gay Policies

From Alshara v. Republic of Iraq, decided today by Judge Linda Parker (E.D. Mich.):

Pursuant to § 1915(e)(2), the Court is required to sua sponte dismiss a complaint filed [in forma pauperis, i.e., as an indigent litigant who can't afford a filing fee -EV] before service on a defendant if it determines that the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief….

In the Complaint, Plaintiff states that he is seeking to hold Iraq and Lebanon liable for their anti-LGBTQ+ policies, legislation, and systematic state-sponsored persecution. Plaintiff claims that these policies and laws “have been exported to the United States through their nationals” and “have directly caused catastrophic harm to Plaintiff, a gay United States citizen residing in Wayne County, Michigan.” Plaintiff’s family members, who are nationals and persons of Iraqi and Lebanese origin, have allegedly subjected Plaintiff to physical harm and threats of harm and death—behavior Plaintiff claims is “motivated exclusively by anti-gay animus rooted in the official state ideologies and legal frameworks of Iraq and Lebanon.” Plaintiff indicates that he has modeled this lawsuit on the jurisdictional and substantive framework established in Doe v. Deutsche Lufthansa (9th Cir. 2025).

In that case, however, the Ninth Circuit considered only whether there was personal jurisdiction over the defendant-airline in California and whether there was federal subject matter jurisdiction based on diversity jurisdiction. The court did not discuss whether the plaintiffs stated a viable cause of action against the defendant-airline. Moreover, the plaintiffs there were not suing a foreign country based on its laws and policies; instead, they were suing the defendant-airline for its own alleged misconduct.

It is well settled “that the subject-matter jurisdiction of the lower federal courts is determined by Congress ‘in the exact degrees and character which to Congress may seem proper for the public good.’” The Foreign Sovereign Immunities Act is the “sole basis for obtaining jurisdiction over a foreign state in our courts.” Section 1604 of the statute provides that “[s]ubject to existing international agreements to which the United States [was] a party at the time of the enactment of this Act[,] a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.” Plaintiff’s allegations do not suggest an exception immunity under the FSIA.

The acts of Iraq and Lebanon, of which Plaintiff complains, are officials acts and policies of those foreign governments. The Act of States Doctrine precludes United States courts from inquiring into the validity of the public acts of a recognized foreign sovereign power committed within its own territory. The doctrine “provides that a federal court ‘will not adjudicate a politically sensitive dispute which would require the court to judge the legality of the sovereign act of a foreign state.’” “It is built around separation of powers concerns relating to foreign affairs and reflects ‘the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder the conduct of foreign affairs.’”

While the FSIA has an exception “for personal injury or death … occurring in the United States,” such injury must be “caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment ….” As one district court has explained, “§ 1605(a)(5) is essentially a respondeat superior statute, providing an employer with liability for certain tortious acts of its employees.” State law governs whether the respondeat superior doctrine applies.

In Michigan, the doctrine imposes liability on an employer generally for the torts of its employees committed within the scope of their employment. The Michigan Supreme Court “has defined ‘within the scope of employment’ to mean ‘engaged in the service of his master, or while about his master’s business.’” Here, Plaintiff’s factual allegations do not suggest that any individual who has threatened to harm or has harmed him is an employee, official, or an agent of Iraq or Lebanon.

In short, the exceptions in the FSIA do not apply and, therefore, there is no basis for obtaining jurisdiction over these foreign nations. Plaintiff’s claims are also barred by the Act of State doctrine. Absent an act or omission in the United States, caused by an employee, official, or agent of Iraq or Lebanon, the United States courts are precluded from inquiring into the validity of Iraq’s and Lebanon’s official state policies and legislation….

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