The case of the day is Rishikof v. Mortada (D.D.C. 2014). Trudith N. Rishikof, a pedestrian, was struck and killed by a car driven by Kamal Mortada. Mortada was a deliveryman employed by the government of Switzerland and driving a Swiss government-owned vehicle. At the time of the accident, he was delivering a package from the Swiss embassy to the World Bank. Rishkkof’s estate sued Mortada and the Swiss state, claiming they were jointly and severally liable. Mortada moved to dismiss on grounds of immunity.

Of course, Mortada had no immunity under the FSIA, which applies only to states. The question was whether he had common law immunity. Under § 66 of the Restatement (Second) of the Foreign Relations Law of the United States, any “public minister, official, or agent of the [foreign state]” is immune “with respect to acts performed in his official capacity if the effect of exercising jurisdiction would be to enforce a rule of law against the state.”

One might suppose that this conduct-based immunity could apply in principle only to officials of the foreign state or to more senior agents who actually made decisions on behalf of the foreign state, not to mere employees. And the magistrate judge took that view, recommending that the judge deny the motion to dismiss. But the district judge disagreed. She saw nothing in the precedents requiring the agent of the foreign state to be a decision-making agent. Rather, she took the view that any agent, when acting within the scope of the agency, could potentially have immunity. This seems somewhat dubious to me. What is the possible policy rationale for such a rule?

You may ask why proceeding against Mortada could lead to enforcement of a rule of law against Switzerland itself. According to the judge, the reason is that because Rishikof is suing both Switzerland and Mortada and claiming that Switzerland is vicariously liable for Mortada’s tort under the doctrine of respondeat superior, a judgment against Rishikof is in effect a judgment against Switzerland. Doesn’t this ignore state immunity under the FSIA? Suppose Switzerland is immune under the FSIA. Then plainly proceeding against Mortada will not result in imposition of liability on Switzerland. Suppose Switzerland is not immune under the FSIA. If Congress has made the judgment that the foreign state should not be immune in the circumstances, how can the fact that the state may ultimately be held liable be a reason not to impose liability on the state’s agent?