The case of the day is Miango v. Democratic Republic of Congo (D.D.C. 2020). Jacques Miango is a refugee from the Democratic Republic of Congo who lives in Maryland. In 2014, he participated at a protest across the street from the Capella Hotel in Washington. After President Kabila entered the hotel, Miango alleged that DRC security personnel rushed out of the hotel and assaulted the protesters, broke into Miango’s car, and stole his property. Miango sued, and the court entered default judgments against the DRC, President Kabila, and other DRC personnel. The individual defendants moved to vacate the judgment and dismiss the action. The court granted the motion as to Kabila on grounds of head-of-state immunity. The court found that the remaining defendants did not have diplomatic immunity, and so the question was whether they had immunity at common law.

The judge thought the case was an easy one. The defendants said that they were acting in their official capacities to protect President Kabila, and the plaintiff had alleged that they were acting under color of law and in fact sought to hold the DRC liable for their misconduct. That’s the end of the story. I hope that the outcome of the case wasn’t the result of the plaintiff’s arguably inartful pleading. Rather than alleging that the defendants were acting under color of law, it would have been better, I think, to allege that their acts were ultra vires. Let the defendants or the DRC itself argue that beating up protestors and robbing them is within the scope of their official duties! If the case had been set up that way, I think it might have come out differently. But perhaps the plaintiff’s lawyer just made a strategic judgment that didn’t pan out: if the defendants were truly acting ultra vires, then it wouldn’t have been possible to seek to hold the DRC vicariously liable. It’s hard to know, ex ante, which strategy would have provided the best pathway to success.