Russia’s Response to the DNC Lawsuit

In a very interesting filing, the Russian Federation has formally responded to the DNC lawsuit that seeks millions of dollars in damages for Moscow’s hack of the Democrats’ computer system during the 2016 election. On behalf of the Russian defendants in the case, the Russian Ministry of Justice filed a Statement of Immunity last week with Judge John Koeltl of the U.S. District Court for the Southern District of New York.

Although the Russian Federation insists the filing does not constitute a formal appearance in the case, the Statement of Immunity essentially constitutes a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. The filing also invokes the political question doctrine, raises a Rule 12(b)(3) venue issue, and even works in a 12(b)(6) reference to the strict pleading standard articulated in Bell Atlantic v. Twombly and Ashcroft v. Iqbal.

The cornerstone of the Russian Federation’s defense is the Foreign Sovereign Immunities Act, 26 U.S.C. § 1604. Relying on the FSIA, the Statement of Immunity urges the District Court to dismiss the case sua sponte on jurisdictional grounds. Here is an excerpt:

“a. In this Position Paper, the Russian Federation sets forth its legal analysis of the allegations contained within the Amended Complaint filed by the Democratic National Committee (‘DNC’) in the ongoing proceedings before the U.S. District Court in Case No. 1:18-CV-3501 (S.D.N.Y.).

b. By transmitting this Position Paper to the U.S. District Court and to the U.S. State Department, with copies to the litigants, the Russian Federation does not enter an appearance in the litigation, does not waive its sovereign immunity under customary international law or U.S. statutory law, and does not submit to the subject-matter jurisdiction of the U.S. District Court. The Russian Federation reserves all rights.

c. The Foreign Sovereign Immunities Act (‘FSIA’) creates an ‘independent obligation’ for the U.S. District Court ‘to consider the presence or absence of subject matter jurisdiction sua sponte.’ In Case No. l: 18-CV-3501 (S.D.N.Y.), the U.S. District Court lacks subject-matter jurisdiction under the FSIA to hear claims against the Russian Federation based on the DNC’s allegations.

i. Within the U.S. legal system, the FSIA is the exclusive basis for the U.S. District Court’s subject-matter jurisdiction as to claims against a foreign sovereign State, such as the Russian Federation.

ii. The FSIA provides that foreign sovereign States enjoy absolute jurisdictional immunity from suit unless a plaintiff can demonstrate that one of the FSIA’s enumerated ‘exceptions’ applies.

iii. As detailed below, the DNC’s allegations regarding a purported ‘military attack’ by ‘Russia’s military intelligence agency’ do not fall within any of the FSIA’s enumerated exceptions to the Russian Federation’s sovereign immunity. Accordingly, the U.S. District Court must dismiss the DNC’s claims against the Russian Federation sua sponte based on lack of subject matter jurisdiction.”

The Russians also cite the Twombly-Iqbal pleading standard to argue that the DNC has failed to state a claim upon which relief can be granted. The Russians assert:

“The DNC has alleged that ‘Russia’s military intelligence agency’ participated in ‘a brazen attack on American democracy.’ Specifically, the DNC identifies nine ‘Russian military officer[s]’ who acted pursuant to ‘military orders.’ . . .

By reference, the DNC’s Amended Complaint incorporates the unclassified version of a January 2017 report by the U.S. Intelligence Community and a July 2018 indictment filed by the Special Counsel for the U.S. Department of Justice, Robert S. Mueller III. Both of these incorporated documents contain identical allegations regarding the purportedly ‘military’ nature of the alleged cyber operations.

Under the standard applicable within the U.S. legal system under Twombly and Iqbal, and assuming the truth of all pleaded allegations, the U.S. District Court lacks jurisdiction to adjudicate any claims against the Russian Federation based upon the DNC’s allegations. As explained by the U.S. Supreme Court, the basis for any exception to the FSIA must be pleaded fully. . . .

Any alleged ‘military attack’ is a quintessential sovereign act that does not fall within any exception to the FSIA or the customary international law of foreign sovereign immunity. The Russian Federation’s sovereign immunity with respect to claims based upon such allegations is absolute.”  

The Russians’ defense ultimately boils down to the argument that the “commercial activity” exception to FSIA does not apply to the DNC hack:

“The DNC’s allegations do not permit the U.S. District Court to exercise jurisdiction in this case. The DNC attempts to invoke the U.S. District Court’s jurisdiction under the ‘commercial activity’ exception and the ‘tortious act’ exception of the FSIA. But neither exception applies to alleged military activities-such as alleged Cyberattacks on political infrastructure allegedly carried out by the State and/or its military officers.

The ‘commercial activity’ exception under § 1605(a)(2) does not apply here because: The gravamen of the DNC's complaint is an alleged military attack by a ‘military intelligence agency’ upon the United States’ political infrastructure. The similar allegations incorporated from the U.S. Intelligence Community’s 2017 Report and the Special Counsel’s 2018 Indictment confirm the ‘military’ nature of the alleged attack. The DNC therefore has not alleged a commercial activity, but a quintessentially sovereign activity. . . .

A tort case cannot be re-characterized as a commercial activity case simply to satisfy FSIA jurisdiction. . . . The U.S. Congress cannot have intended to create an exception to a foreign State’s sovereign immunity for interference in foreign elections or cyber warfare, because the U.S. Government routinely participates in both types of activities.”

It’s a fascinating document, one that certainly suggests the Russians have received sophisticated legal counsel even though no American attorney or law firm is referred to in the filing.

I found the Russian Ministry of Justice’s cover letter and Statement of Immunity on Westlaw. I assume Lexis has it as well. The case number is 1:18-CV-03501 (S.D.N.Y.). The filing has not gotten much attention from the television news media, but both the Washington Post and The Hill ran stories on it earlier this week.

 

Comments

[anon]

Perhaps this story is not pushed by the "television news media" because any semblance of fair and objective reporting would include the extent to which the US is willing to answer for its activities in the world in foreign courts.

ALso, I seem to remember the issue of claims against Iran came up last administration, including the use of frozen assets to satisfy those claims. How was that resolved?

Perhaps we should look at cases not in isolation, but in terms of the constitution, applicable law, precedent and principles of fairness (which entail consistency and equality).

[The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated]

The DNC should interplead the Republican Party to determine who really meddled the most....either through voter suppression or false propaganda. I never thought in a million years the Republicans would get in bed with the Russians. The damages are incalculable. A ruined environment, mass shootings on a weekly basis, emboldened white nationalists, trillions added to a budget deficit during a strongish economy....

[anon]

The ultimate issue with respect to the "Russian interference" is this: can the very utterance of words, based SOLELY on WHO is doing the speaking, be lawfully banned in this country? Only an Orwellian (and intellectually dishonest) ideologue could answer yes, in what purports to be a free country.

A while back, someone on this site posted a link to Frank Zappa on CNN's Crossfire.

The "progressives" (who have always fought against freedom of speech, see, e.g., the Wilson era and today) should listen to what Frank said.

[anon]

Let's make is even easier to understand: If you believe that the US can prosecute a Russian, for being a Russian who has said something that an American could have said with no fear of criminal liability, then you do not support the First Amendment, and don't understand its spirit and purpose.

Worse, if you believe that foreign nationals from countries OTHER THAN RUSSIA can publish inflammatory statements intended to influence elections in this country, while simultaneously advocating the punishment of "Russians" for attempting to "influence an election" than, once again, who are you kidding? Yourself, only.

Finally, the argument that there is a difference between "state sponsored" speech and speech can't be applied, and no one is even trying to do that. References to "Russians" are enough for most "progressives." Moreover, if we inquired, I believe we'd find that other foreign nationals who speak in this country to influence our elections are often supported by their governments, in one way or another.

[The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated]

^^^Well said. However, the problem is "I just looked into his eyes" Putin.

[J. Bogart]

Seems like a lot of argument being presented for one not submitting to the jurisdiction of the court.