United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 2, 2017 Decided March 14, 2017 

No. 16-7081 

JOHN DOE, ALSO KNOWN AS KIDANE, 

APPELLANT

v. 

THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA, 

APPELLEE

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 plaintiffappellant. 

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. 
2 

Opinion for the Court filed by 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 

 1

 Because, at this stage, Ethiopia has not disputed the factual 

basis for our jurisdiction but “challenges only the legal sufficiency 

of [Kidane’s] jurisdictional allegations,” we “take [his] factual 

allegations as true and determine whether they bring the case 

within” the FSIA’s noncommercial-tort exception. Phoenix 

Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 

2000). 
3 

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. 

 2

 The district court reached this issue before addressing subject 

matter jurisdiction under the FSIA. Although recognizing that 

ordinarily it must address subject matter jurisdiction first, Doe, 189 

F. Supp. 3d at 11, it forestalled the jurisdictional inquiry based on 

Vermont Agency of Natural Resources v. United States ex rel. 
4 

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 

inapplicable because the “entire tort” did not occur in the 

United States, as required.3

 Id. at 18–25. 

II. ANALYSIS 

On appeal, Kidane challenges both grounds the district 

court used for dismissal. Each challenge triggers de novo

review. Simon v. Republic of Hungary, 812 F.3d 127, 135 

(D.C. Cir. 2016); El Paso Nat. Gas Co. v. United States, 750 

F.3d 863, 874 (D.C. Cir. 2014). Unlike the district court, we 

do not reach the question whether the Wiretap Act authorizes 

a cause of action against Ethiopia for intercepting Kidane’s 

communications. We instead conclude that the FSIA 

withdraws jurisdiction in toto. 

The FSIA is “the ‘sole basis for obtaining jurisdiction 

over a foreign state in our courts.’” Weinstein v. Islamic 

 

Stevens, 529 U.S. 765 (2000). There, the High Court concluded 

that the statutory question was “logically antecedent” to Vermont’s 

Eleventh Amendment immunity from suit and there existed “no 

realistic possibility” that answering the statutory question first 

“expand[ed] the Court’s power beyond the limits that the 

jurisdictional restriction has imposed.” Id. at 779 (internal 

quotation marks omitted). 

3

 Ethiopia made several other arguments against the 

noncommercial-tort exception’s applicability but the district court 

rejected each. Doe, 189 F. Supp. 3d at 17–18, 25–28. We need not 

address those arguments. 

 
5 

Republic of Iran, 831 F.3d 470, 478 (D.C. Cir. 2016) (quoting 

Argentine Republic v. Amerada Hess Shipping Corp., 488 

U.S. 428, 434 (1989)). Unless an exception applies, “a 

foreign state shall be immune from the jurisdiction of the 

courts of the United States.” 28 U.S.C. § 1604. One of those 

exceptions is the noncommercial-tort exception. It abrogates 

immunity from an action involving “personal injury or death, 

or damage to or loss of property, occurring in the United 

States and caused by the tortious act or omission of [a] 

foreign state or of any official or employee of that foreign 

state while acting within the scope of his office or 

employment[.]” Id. § 1605(a)(5).4

 The phrase “occurring in 

the United States” is no mere surplusage. “‘[T]he entire 

tort’—including not only the injury but also the act 

precipitating that injury—must occur in the United States.” 

Jerez v. Republic of Cuba, 775 F.3d 419, 424 (D.C. Cir. 2014) 

(quoting Asociacion de Reclamantes v. United Mexican 

States, 735 F.2d 1517, 1525 (D.C. Cir. 1984)). 

In Jerez, the plaintiff (Jerez) alleged he was intentionally 

injected with hepatitis C while imprisoned in Cuba. See id. at 

421. He sued Cuba, relying on the noncommercial-tort 

exception. Id. at 424.5 We found the exception inapplicable. 

 4

 Even in such circumstances, the FSIA restores sovereign 

immunity from suits “based upon the exercise or performance or 

the failure to exercise or perform a discretionary function regardless 

of whether the discretion [has been] abused” and from suits “arising 

out of malicious prosecution, abuse of process, libel, slander, 

misrepresentation, deceit, or interference with contract rights[.]” 28 

U.S.C. § 1605(a)(5)(A)–(B). 

5

 Jerez initially sued Cuba in Florida state court, where he 

obtained a default judgment. Jerez, 775 F.3d at 421. His case 

came to us through his efforts to execute the judgment on certain 

intellectual property. Id. 
6 

As we explained, the alleged injection of hepatitis C occurred 

abroad and we rejected Jerez’s argument that a separate tort 

occurred each time the virus replicated in his body. Id. 

Replication showed only that Jerez suffered an “ongoing 

injury,” not that the tort’s precipitating act also occurred in 

the United States. Id. (emphasis omitted). To support his 

replication theory, Jerez “analogiz[ed] the defendants’ actions 

to a foreign agent’s delivery into the United States of an 

anthrax package or a bomb.” Id. That analogy was flawed, 

we explained, because “the defendants’ infliction of injury . . . 

occurred entirely in Cuba, whereas the infliction of injury by 

the hypothetical anthrax package or bomb would occur 

entirely in the United States.” Id. 

Kidane argues that Ethiopia’s tort is akin to the anthrax 

hypothetical. But the hypothetical was dictum and, of course, 

“[b]inding circuit law comes only from the holdings of a prior 

panel, not from its dicta.” Gersman v. Grp. Health Ass’n, 975 

F.2d 886, 897 (D.C. Cir. 1992). And Jerez’s holding hardly 

helps Kidane. Jerez squarely held that “the entire

tort . . . must occur in the United States” for the 

noncommercial-tort exception to apply. 775 F.3d at 424 

(emphasis added) (internal quotation marks omitted). Here, at 

least a portion of Ethiopia’s alleged tort occurred abroad. 

Maryland’s intrusion-upon-seclusion tort shows why that 

is so. The tort covers “[o]ne who intentionally intrudes, 

physically or otherwise, upon the solitude or seclusion of 

another or his private affairs or concerns, [making the 

intruder] subject to liability to the other for invasion of his 

privacy, if the intrusion would be highly offensive to a 

reasonable person.” Bailer v. Erie Ins. Exch., 687 A.2d 1375, 

1380–81 (Md. 1997) (emphasis and internal quotation marks 

omitted) (quoting RESTATEMENT (SECOND) OF TORTS § 652B 

(1977)). There is thus no tort without intentional intrusion. 

But whether in London, Ethiopia or elsewhere, the tortious 
7 

intent aimed at Kidane plainly lay abroad and the tortious acts 

of computer programming likewise occurred abroad. 

Moreover, Ethiopia’s placement of the FinSpy virus on 

Kidane’s computer, although completed in the United States 

when Kidane opened the infected e-mail attachment, began 

outside the United States. It thus cannot be said that the entire 

tort occurred in the United States. 

The two cases on which Kidane relies—Liu v. Republic 

of China, 892 F.2d 1419 (9th Cir. 1989), and Letelier v. 

Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980)—are 

easily distinguished. In Liu, two gunmen allegedly acting at a 

Taiwanese admiral’s direction assassinated a man in 

California, 892 F.2d at 1421; in Letelier, Chilean government 

agents allegedly constructed, planted and detonated a car 

bomb in Washington, D.C., 488 F. Supp. at 665. In both, the 

courts determined they had jurisdiction under the FSIA’s 

noncommercial-tort exception to hear the victims’ survivors’ 

claims against the respective foreign sovereigns. Liu, 892 

F.2d at 1425–26, 1431; Letelier, 488 F. Supp. at 673–74. 

Both involved actions “occurring in the United States” that 

were—without reference to any action undertaken abroad—

tortious. 

Ethiopia’s digital espionage is of a different character. 

Without the software’s initial dispatch or an intent to spy—

integral aspects of the final tort which lay solely abroad—

Ethiopia could not have intruded upon Kidane’s seclusion 

under Maryland law. Kidane’s Wiretap Act claim is similarly 

deficient. The Wiretap Act in pertinent part proscribes 

“intentional[] intercept[ions]” of “wire, oral, or electronic 

communication[s].” 18 U.S.C. § 2511(1)(a). But, again, the 

“intent[],” id., and FinSpy’s initial deployment occurred 

outside the United States. The tort Kidane alleges thus did 

not occur “entire[ly]” in the United States, Jerez, 775 F.3d at 
8 

424 (internal quotation marks omitted); it is a transnational 

tort over which we lack subject matter jurisdiction. 

Kidane regards this conclusion as inconsistent with the 

noncommercial-tort exception’s purpose and legislative 

history. He argues that, when the Congress codified the 

exception, it considered—but rejected—the approach of the 

European Convention on State Immunity. The European 

Convention abrogated sovereign immunity for certain torts if 

the facts underlying the torts occurred in the forum nation and 

if “the author of the injury or damage was present in that 

territory at the time.” European Convention on State 

Immunity art. 11, reprinted in Hearings on H.R. 11,315 

Before the Subcomm. on Admin. Law & Governmental 

Relations of the H. Comm. on the Judiciary, 94th Cong. 39 

(1976) (1976 Hearings). Kidane notes the absence of similar 

language in section 1605(a)(5). We think Kidane reads too 

much into the Congress’s silence.6

 As the Supreme Court has 

explained, the “Congress’ primary purpose in enacting 

§ 1605(a)(5) was to eliminate a foreign state’s immunity for 

traffic accidents and other torts committed in the United 

States, for which liability is imposed under domestic tort 

law.” Amerada Hess Shipping Corp., 488 U.S. at 439–40. It 

is thus unsurprising that transnational cyberespionage should 

lie beyond section 1605(a)(5)’s reach. 

Kidane also directs us to the FSIA’s commercial activity 

exception to illuminate section 1605(a)(5)’s boundaries. The 

 6

 As the district court acknowledged, Doe, 189 F. Supp. 3d at 

24, and as Ethiopia observes, when the State Department Legal 

Adviser was asked whether there was any inconsistency between 

the European Convention and the FSIA, he responded that—subject 

to one discrepancy not relevant here—there generally was not. 

1976 Hearings, at 37. 
9 

commercial activity exception authorizes claims “based upon 

a commercial activity carried on in the United States by [a] 

foreign state[.]” 28 U.S.C. § 1605(a)(2). He observes that the 

Supreme Court, interpreting this provision, found instructive 

the “point of contact” between the tort and its victim in 

determining where the tort occurred. OBB Personenverkehr 

AG v. Sachs, 577 U.S. ____, 136 S. Ct. 390, 397 (2015) 

(internal quotation marks omitted). But Sachs underscores 

why the commercial activity exception is of limited 

usefulness here. There, the American plaintiff purchased a 

European rail travel pass from a Massachusetts travel agent. 

Id. at 393. When she used the pass to board the defendant 

Austrian state-owned railway’s train in Innsbruck, Austria, 

she fell onto the tracks, where the moving train crushed her 

legs. Id. She sued, invoking the FSIA’s commercial activity 

exception. Id. at 394. The Supreme Court concluded, 

however, that her lawsuit was not “based upon” the domestic 

sale of the rail pass. Id. at 393. It noted that “an action is 

based upon the particular conduct that constitutes the 

gravamen of the suit.” Id. at 396 (internal quotation marks 

omitted). It explained that “the conduct constituting the 

gravamen of [her] suit plainly occurred abroad.” Id.7

 But 

Sachs interpreted the commercial activity exception. And 

unlike the commercial activity exception, the noncommercialtort exception does not ask where the “gravamen” occurred, 

 7

 In so concluding, the Court quoted a letter written by Justice 

Oliver Wendell Holmes to then-Professor Felix Frankfurter opining 

that “the ‘essentials’ of a personal injury narrative will be found at 

the ‘point of contact’—‘the place where the boy got his fingers 

pinched.’” Sachs, 136 S. Ct. at 397. Kidane reads Sachs—

particularly its reliance on the “point of contact” language—as 

confirming that “a tort occurs at the place where the injury was 

inflicted upon the plaintiff.” Appellant’s Br. 14. We disagree with 

his reading. 
10 

id.; instead, it asks where the “entire tort” occurred, 

Asociacion de Reclamantes, 735 F.2d at 1525 (emphasis 

added).

For the foregoing reasons, we affirm the district court’s 

dismissal of Kidane’s intrusion-upon-seclusion claim for lack 

of subject matter jurisdiction. Because the same reasoning 

applies with equal force to Kidane’s Wiretap Act claim, we 

affirm the dismissal of that claim as well.8

So ordered. 

 

 8

 We do not reach the applicability of the FSIA provisions 

governing discretionary functions or torts based upon 

misrepresentation or deceit. See 28 U.S.C. § 1605(a)(5)(A)–(B); 

see also supra n.4.