Misinterpreting the 'Entire Tort' Requirement of the FSIA's Noncommercial Tort Exception: A Critique of the D.C. Circuit's Opinion in Kidane v. Ethiopia

The D.C. Circuit’s recent decision in Kidane v. Ethiopia represents a dramatic, unexplained departure from various circuit court and Supreme Court precedent. It limits the so-called noncommercial tort exception of the Foreign Sovereign Immunities Act, retaining sovereign immunity for foreign states which allegedly commit a tort in the United States that originates in part outside the United States. Specifically, Kidane allowed Ethiopia sovereign immunity for cyber espionage on an American citizen in the United States because it sent the spyware to his computer from abroad and because Ethiopia’s mental intent supposedly lay beyond U.S. borders. More broadly, application of Kidane would lead to perhaps-bizarre results beyond the cyber context and would likely grant immunity for scenarios in which the Kidane court assures us immunity would be stripped. Under the Foreign Sovereign Immunities Act, foreign states are immune to suit in United States courts unless allegations fall into one of seven excepted categories, including, inter alia, waiver, commercial torts, and noncommercial torts. Both the commercial and noncommercial tort exceptions have territorial requirements. For the former, the action must be based on a commercial activity occurring in the United States, on an act performed in the United States in connection with commercial activity elsewhere, or else upon acts occurring entirely elsewhere but with a “direct effect” in the United States. In contrast, the noncommercial tort exception’s territorial reach is more limited, covering only “personal injury or death, or damage to or loss of property, occurring in the United States.” The D.C., Second, and Sixth Circuits have interpreted this territorial provision of the noncommercial tort exception to require that the “entire tort” occur in the United States. But perhaps surprisingly given the doctrine’s name, a review of the major cases in the D.C., Second, and Sixth Circuits, as well as relevant Supreme Court precedent, shows that until Kidane, the so-called “entire tort” doctrine has never been applied to require that the “entire tort” occur inside the United States. Rather, the doctrine has uniformly been applied to bar suits where all the tortious acts occurred outside the United States, but where plaintiffs argued that those acts had a tortious “direct effect” within the United States. The doctrine has certainly not been applied to require that, contra Kidane, every act and mental state composing or forming part of the causal chain of a noncommercial tort occurring in the United States must originate within the United States. Moreover, the Kidane court cursorily assures us that one of the seminal “entire tort” opinions – which stripped immunity from Chile where it allegedly set in motion a 1970s Washington, D.C. car bombing – survives and is distinguishable from its opinion. But under a close inspection of the facts in that case, it likely would not survive Kidane. The D.C. Circuit’s Kidane opinion thus represents an expansion of the entire tort doctrine without clear precedent in the Second, Sixth, and D.C. Circuits, nor the Supreme Court. And the court did so without recognizing either that it was dramatically expanding the doctrine, or the practical effects it might have. In making this argument, this Comment begins in Part I by tracing the roots of the “entire tort” through major cases in the circuit courts and Supreme court. In Part II, the Comment argues that Kidane represents an unreasoned and unrecognized expansion of the doctrine. Part III introduces and analyzes the possible implications of the Kidane court’s expanded approach.