Risk v. Halvorsen
936 F.2d 393, 1991 WL 91614 (1991)
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Rule of Law:
Under the Foreign Sovereign Immunities Act (FSIA), a foreign state is immune from suit for torts arising from discretionary functions, which include acts of consular officials assisting their nationals in ways that are grounded in public policy. Similarly, under the Vienna Convention on Consular Relations (VCCR), consular officials are immune from suit for acts, such as issuing travel documents and assisting nationals, performed in the exercise of their official consular functions.
Facts:
- In 1977, Larry Risk, an American, married Elisabeth Antonsen Risk, a Norwegian citizen, and they had two children.
- After a period in Norway, Larry Risk returned to the United States with the children.
- In 1984, a California Superior Court awarded the parents joint custody and issued an order prohibiting either parent from removing the children from the San Francisco Bay Area.
- The court order also required the parents to surrender their own and their children's passports to Larry Risk's attorney and barred them from applying for replacements without court permission.
- In July 1984, with assistance from Norwegian consular officials, Elisabeth Risk took the children and returned to Norway in violation of the custody order.
- This assistance included suggestions on how to travel, provision of travel documentation (a Norwegian Seaman's Certificate of Identity), and financial aid for the trip.
- Consular official Knut Halvorsen attested that Elisabeth was a Norwegian subject on the travel document and later denied knowing her when contacted by Larry Risk.
Procedural Posture:
- Larry Risk sued the Kingdom of Norway and two of its consular officials, Knut Halvorsen and Olaf Solli, in U.S. District Court for various torts.
- The defendants filed motions to dismiss the complaint, asserting they were immune from suit under the Foreign Sovereign Immunities Act and the Vienna Convention on Consular Relations.
- The district court granted the defendants' motions and dismissed them from the action, finding they were immune from civil liability.
- Larry Risk, as the appellant, appealed the district court's dismissals to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Do the discretionary function exception of the Foreign Sovereign Immunities Act (FSIA) and the Vienna Convention on Consular Relations (VCCR) provide immunity to a foreign nation and its consular officials from a civil suit for torts arising from their assistance to a Norwegian national in violating a U.S. state court child custody order?
Opinions:
Majority - Brunetti, Circuit Judge
Yes. The discretionary function exception of the FSIA and the consular immunity provisions of the VCCR shield Norway and its officials from this lawsuit. The court reasoned that Norway is protected by the FSIA's discretionary function exception. This exception is analyzed using a two-part test: (1) whether the employee had discretion or a choice in their conduct, and (2) whether that choice was grounded in social, economic, or political policy. The court found that Norwegian officials exercised discretion in deciding how to assist a Norwegian national. These actions, such as issuing travel documents and providing assistance, are defined as consular functions by the VCCR and are presumptively grounded in policy. The court distinguished this case from those involving acts like assassination or violations of the foreign state's own laws, holding that not every act that violates local law falls outside the discretionary function exception. Regarding the individual officials, the court found they were protected by Article 43 of the VCCR, which grants immunity for acts performed 'in the exercise of consular functions.' The specific functions at issue—issuing travel documents (Article 5(d)) and assisting nationals (Article 5(e))—do not contain language limiting this immunity to acts that comply with the laws of the receiving state. Therefore, because the officials' actions fell squarely within their defined consular functions, they are immune from suit.
Analysis:
This decision reinforces the significant legal protection afforded to foreign nations and their diplomats under U.S. and international law. It establishes that actions falling within recognized consular duties, such as aiding a country's own citizens, are considered discretionary policy functions and are thus shielded from lawsuits under the FSIA, even if they facilitate the violation of a local court order. The ruling also highlights the specific textual differences within the VCCR, demonstrating that certain consular functions carry broader immunity than others. This creates a high barrier for individuals seeking to hold foreign governments civilly liable for involvement in international child custody disputes.
