Summary
holding that plaintiff's Thirteenth Amendment claim did not trump defendants' diplomatic immunity
Summary of this case from Sabbithi v. Al SalehOpinion
No: 01 CIV. 7224 (DLC)
August 23, 2002
Lana Choi, Kornstein Veisz Wexler Pollard, LLP, New York, NY, Kenneth Kimerling, Chaumtoli Huq Asian American Legal Defense Education Fund, New York, NY, Attorneys for Plaintiff.
Wendy A. Schwartz, Assistant United States Attorney, New York, NY, Jonathan B. Schwartz, Deputy Legal Adviser, Wynne Teel Attorney-Adviser Office of Diplomatic Law and Litigation, Attorneys for Defendants: No appearance.
AMENDED OPINION AND ORDER
The Opinion and Order issued in this action on August 14, 2002, has been amended as follows. The citations for the Diplomatic Relations Act of 1978 found in the text of the subsection entitled "Conflict with U.S. Constitution Claim" at page 14 and in note 6 are now " 22 U.S.C. § 254d."
The plaintiff, Ashik Ahmed ("Ahmed"), a former domestic servant in the home of the defendants AHM Sadiqul Hoque and Sabiha Hoque brings this action alleging that the defendants forced him to work fourteen to seventeen hour workdays, seven days a week, gave him only occasional spending money but no salary, verbally and physically abused him, and refused him access to his travel documents, in violation of the U.S. Constitution and federal statutes, New York State labor laws, international law treaties, conventions, and the customary law of nations, as well as the common law. The defendants have defaulted. Nonetheless, they claim that they enjoy diplomatic immunity from this suit, that a default judgment cannot be entered against them, and as such that this action must be dismissed. The Government of the United States agrees. For the reasons that follow, this action is dismissed.
BACKGROUND
The allegations in the complaint are as follows. Plaintiff Ahmed and the defendants are natives and citizens of Bangladesh. The defendants reside in Forest Hills, New York.
In December 1998, Mr. Hogue asked Ahmed if Ahmed would come to work for him for $20 per month in New York City, where Mr. Hoque had accepted employment as the Economics Minister for the Permanent Mission of Bangladesh. Ahmed had been working since 1993 for Mr. Hoque in Bangladesh, originally as a cook and then as an office assistant. When he agreed to come to New York, Ahmed signed some documents, including some in English that he was unable to understand. Mr. Hoque promised Ahmed free medical care, a round-trip airline ticket to New York, and that he would bring Ahmed's wife from Bangladesh to New York in two years, after which time Ahmed could pursue employment outside of the Hoque home.
Ahmed arrived in the United States in December of 1998, and began working as a domestic in the defendants' home in Forest Hills. Although there was a dishwashing machine and washer/dryer in the house, the defendants insisted that Ahmed wash the dishes and clothes by hand. On average, Ahmed worked from 6:30 a.m. to 11:30 p.m., seven days a week, with approximately two hours of free time per day. He was expected to be available at all times for errands.
The defendants gave Ahmed approximately $20 per month as "pocket money" when he requested it, and sent between $150 and $200 to Ahmed's wife in Bangladesh. The Hoques held Ahmed's passport and restricted his ability to leave their home.
On June 26, 2000, Mrs. Hoque pushed Ahmed to the floor, cutting his hand seriously. After a physical struggle, Ahmed managed to leave the house, was assisted by two passers-by in calling the police, and then fainted.
Hospital records indicate that Ahmed was "injured, trembling, and extremely frightened." Mr. Hoque made several attempts to contact Ahmed while he was in the hospital, but social workers denied Mr. Hoque contact with Ahmed. Mr. Hoque eventually returned Ahmed's passport and visa to him, although Ahmed is required to surrender the passport and apply for a new one in order to travel freely.
DISCUSSION
The Hoques maintain that they enjoy diplomatic immunity from this action because of Mr. Hoque's position as Economics Minister to the Permanent Mission of Bangladesh to the United Nations. In cases where questions of diplomatic immunity arise, the State Department often provides a formal certification that establishes the position held by a person and the level of immunity to which that person is entitled. Certifications were provided in this action for both defendants. These certifications identify Mr. Hoque as a Minister of the Permanent Mission of the People's Republic of Bangladesh to the United Nations and state that, pursuant to Article IV, Section 11 of the Convention on Privileges and Immunities of the United Nations (the "General Convention"), 21 U.S.T. 1418, T.I.A.S. 6900, and Article V, Section 15 of the Agreement between the United Nations and the United States Regarding the Headquarters of the United Nations (the "Headquarters Agreement"), 12 Bevans 956, T.I.A.S. 1676, Mr. and Mrs. Hoque are entitled to the same privileges and immunities in the United States as the United States accords to diplomatic envoys who are accredited to it. Such diplomatic immunity is described in the Vienna Convention on Diplomatic Relations (the "Vienna Convention"), 23 U.S.T. 3227, T.I.A.S. 7502, 500 U.N.T.S. 95. The United States of America appears in this action as an interested party pursuant to 28 U.S.C. § 517.
The United States contends that a certification of the State Department as to diplomatic immunity is binding on this Court. See U.S. v. Enger, 472 F. Supp. 490, 506 n. 19 (D.N.J. 1978); Arcaya v. Paez, 145 F. Supp. 464, 467 (S.D.N.Y. 1956), aff'd, 244 F.2d 958 (2d Cir. 1957)
Plaintiff cites to more recent case law in this district, however, for the proposition that such certifications are evidential but not conclusive. In Premier S.S. Corp. v. Embassy of Algeria, 336 F. Supp. 507, 509 (S.D.N.Y. 1971), there was no certification. A letter from the State Department addressed the general immunity of embassies and their diplomatic agents. In U.S. ex rel. Casanova v. Fitzpatrick, 214 F. Supp. 425, 432 (S.D.N.Y. 1963), the State Department certified that the United States had not agreed to grant diplomatic immunity to the defendant. Nonetheless, the Honorable Edward Weinfeld did observe in Fitzpatrick that while a State Department certificate may be conclusive for envoys accredited to the United States, id. at 432-33, the issue is a "justiciable controversy" for envoys accredited to the United Nations, id. at 433.
The plaintiff also cites to Vulcan Iron Works, Inc. v. Polish Am. Mach. Corp., 479 F. Supp. 1060 (S.D.N.Y. 1979). In Vulcan, the court concluded that the Foreign Sovereign Immunities Act of 1976 "effectively overruled" prior cases holding that a State Department suggestion of sovereign immunity is dispositive, and placed the immunity determination in the hands of the judiciary, to assure litigants that these decisions would be made on purely legal grounds and under procedures that insure due process." Id. at 1068 (citation omitted). The plaintiff contends that the same policy considerations require that the court not treat the State Department's certification of diplomatic immunity as binding. Because the Headquarters Agreement requires a finding of immunity for the defendants in this case, it is unnecessary to determine whether the State Department certification is binding.
The plaintiff's principal argument against the application of diplomatic immunity in this case is that the Vienna Convention, which codified the customary international law of diplomatic immunity in 1972, is not the proper source of the Hoques' immunity, for the Vienna Convention applies to diplomatic envoys to the United States and not to United Nations representatives. Specifically, the plaintiff argues that the level of immunity to be accorded these defendants is properly derived from the Headquarters Agreement, which he argues grants only functional immunity to United Nations representatives.
Article 31 of the Vienna Convention provides in relevant part:
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
. . . .
(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness.
Article 37 of the Vienna Convention provides in relevant part:
1. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36.
Immunity Under the Headquarters Agreement
The Headquarters Agreement became operative in 1947. S.J. Res. 144, 61 Stat. 756. This agreement establishes the seat of the United Nations in New York City and regulates the relationship between the United States and the United Nations. "With the United States as the site of the United Nations headquarters, our Government was particularly sensitive to the problem of assuring the independence and proper functioning of the United Nations, and also to the protection of its own security. The Headquarters Agreement was one of the means adopted to protect the respective interests." U.S. ex rel. Casanova v. Fitzpatrick, 214 F. Supp. 425, 431-32 (S.D.N.Y. 1963); see also Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 937 F.2d 44, 51 (2d Cir. 1991)
The immunity provision in the Headquarters Agreement at issue here is contained in Article V, Section 15, which provides as follows:
(1) Every person designated by a Member as the principal resident representative to the United Nations of such Member or as a resident representative with the rank of ambassador or minister plenipotentiary,
(2) such resident members of their staffs as may be agreed upon between the Secretary-General, the Government of the United States and the Government of the Member concerned,
. . . shall, whether residing inside or outside the headquarters district, be entitled in the territory of the United States to the same privileges and immunities subject to corresponding conditions and obligations, as it accords to diplomatic envoys accredited to it.
Headquarters Agreement, Article V, Section 15 (emphasis supplied). Ahmed agrees that Mr. Hoque's position places him within the categories enumerated in Section 15 of the Headquarters Agreement, but contends that the "corresponding conditions and obligations" limitation in this section requires its grant of immunity to be read along with the International Organizations Immunities Act ("IOIA"), 22 U.S.C. § 288 — 288f-4 (1999), the General Convention, and the United Nations Charter. When read in this context, Ahmed argues that the Headquarters Agreement provides only functional immunity for United Nations representatives.
Ahmed first points to Article 105 of the U.N. Charter, which provides:
1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.
2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.
U.N. Charter, art. 105 (emphasis supplied). Ahmed then points to Article IV of the General Convention, which similarly provides functional immunity for representatives to the United Nations:
The U.N. Charter was ratified by the United States on August 8, 1945 and came into force on October 24, 1945. See U.N. Charter, Intr.; S.J. Res. 144, P.L. 80-357, 61 Stat. 756 (1947).
Section 11. Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during the journey to and from the place of meeting, enjoy the following privileges and immunities:
(a) Immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and in all acts done by them in their capacity as representatives, immunity from legal process of every kind.
. . .
(g) such other privileges, immunities and facilities not inconsistent with the foregoing as diplomatic envoys enjoy . . .
General Convention, Article IV (emphasis supplied). Finally, Ahmed points to a contemporaneous federal statute, the IOIA, which was enacted in anticipation of the Headquarters Agreement. The IOIA provides:
The General Convention was approved by the United Nations Assembly in February 1946, and was initially submitted to Congress for approval in 1947 along with the Headquarters Agreement; however, the General Convention was not approved by Congress until April 29, 1970.
Representatives of foreign governments in or to international organizations and officers and employees of such organizations shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as representatives, officers, or employees except insofar as such immunity may be waived by the foreign government or international organization concerned.22 U.S.C. § 288d(b) (emphasis supplied). When it was enacted, it was understood that the IOIA was to be "the basic legislation" in the field and that "all of the privileges and immunities provided for . . . [would] be extended . . . to the United Nations Organization." Sen. Rep. No. 861, Committee of Finance, 79th Cong. 1st Sess., at 2-3 (1945)
The United States contends that the "corresponding conditions and obligations" language of the Headquarters Agreement does not require resort to any other statute, Convention or charter, and does not in any event indicate that the immunity of United Nations representatives is limited to functional immunity. According to the United States, the phrase means only that the immunity of United Nations representatives cannot be broader than that accorded to accredited diplomats. In this sense, then, the language simply means that representatives to the United Nations are entitled to diplomatic immunities, subject only to the corresponding conditions and obligations imposed on other diplomats.
In a 1948 letter from the State Department to a Congressional subcommittee, the Legal Adviser of the State Department observed that the "corresponding conditions and obligations" were "inserted by way of compromise to meet a desire on the part of the United States that persons covered by section 15 were not to receive privileges and immunities broader than those accorded to diplomatic envoys accredited to the . . . United States." 1948 Legal Adviser Letter, at 511; see also 1967 International Law Commission Yearbook, Vol. II, at 154, 177-78. The International Law Commission is a body of international legal experts commissioned by the United Nations.
Both the United States and the United Nations agree that permanent representatives and minsters of foreign nations to the United Nations are entitled to full diplomatic immunity, that is, the immunities codified in the Vienna Convention. See 1983 United Nations Juridical Yearbook at 222; 1986 United Nations Juridical Yearbook at 327; 1976 United Nations Juridical Yearbook at 224-29. See also 767 Third Ave. Assoc. v. Permanent Mission of Republic of Zaire to United Nations, 988 F.2d 295, 301-02 (2d Cir. 1993); H.R. No. 1093, 80th Cong., 1st Sess., at 11-12 (1947) ("the Charter itself . . . does not specify diplomatic status. It simply states the requirement of such immunity as is necessary for the performance of the function. The United States and the United Nations have come into an agreement that diplomatic status is the necessary formula here."). The Supreme Court has made clear:
When the parties to a treaty both agree to the meaning of a treaty provision, and that interpretation follows from the clear treaty language[, the court] must, absent extraordinarily strong contradictory evidence, defer to that interpretation.
Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185 (1982).
Similarly, courts have consistently held that representatives of member states to the United Nations, specifically individuals enumerated in Section 15 of the Headquarters Agreement, are entitled to the same level of diplomatic immunity that the United States extends to accredited diplomatic envoys, and are not limited to functional immunity. See Kadic v. Karadzic, 70 F.3d 232, 247 (2d Cir. 1995); 767 Third Ave. Assoc., 988 F.2d at 298; Firemen's Ins. Co. of Washington D.C. v. Onwualia, No. 94 Civ. 0095 (PKL), 1994 WL 706994, at *2 (S.D.N.Y. Dec. 19. 1994); Fitzpatrick, 214 F. Supp. at 434-35; see also S. Rep. No. 95-958, 95th Cong., 2d Sess., at 3, reprinted at 1978 U.S.C.C.A.N. 1935, 1935-36 (1978) (report accompanying the Diplomatic Relations Act which incorporated the Vienna Convention); H.R. No. 1093, 80th Cong., 1st Sess., at 11 (1947)
The scope of immunity extended to diplomatic envoys, and accordingly the scope of immunity to be extended to United Nations representatives, is that set out in the Vienna Convention, which is broadly understood as having "codified longstanding principles of customary international law with respect to diplomatic relations." 767 Third Av. Assoc., 988 F.2d at 300; see also U.S. v. Enger, 472 F. Supp. 490, 505 (D.N.J. 1978). This is true even though the Vienna Convention took effect after the Headquarters Agreement. See Tachiona v. Mugabe, 16.9 F. Supp.2d 259, 297 (S.D.N.Y. 2001); Foxworth v. Permanent Mission of Republic of Uganda to United Nations, 796 F. Supp. 761, 763 (S.D.N.Y. 1992)
Those courts that have discussed the level of immunity accorded to those working at the United Nations have distinguished between United Nations representatives or ministers and United Nations staff members or employees, noting that only representatives and ministers are accorded full diplomatic immunity, while staff members and employees are accorded only functional immunity. See Enger, 472 F. Supp. at 502; U.S. v. Egorov, 222 F. Supp. 106, 108 (S.D.N.Y. 1963); Fitzpatrick, 214 F. Supp. at 436; U.S. v. Melekh, 190 F. Supp. 67, 81 (S.D.N.Y. 1960); see also Tachiona, 169 F. Supp.2d at 298 (distinguishing between temporary and resident representatives). Thus, under the Headquarters Agreement, individuals such as defendants are entitled to full diplomatic immunity while employees are entitled only to functional immunity, or immunity while acting within the scope of their employment. The plaintiff's reliance on People v. Leo, 407 N.Y.S.2d 941 (N.Y. City Crim. Ct. 1978), in which the court held that United Nations employees are only entitled to functional immunity, is thus misplaced. In sum, no court has held that the individuals described in Section 15 of the Headquarters Agreement enjoy only functional immunity.
Ahmed contends that even if the Headquarters Agreement does extend full diplomatic immunity to United Nations member representatives, Mr. Hoque nonetheless enjoys only functional immunity because as an executive agreement, the Headquarters Agreement does not have the same status as a treaty or statute. Plaintiff therefore argues that because an interpretation of the Headquarters Agreement that provides full diplomatic immunity to United Nations representatives clearly contravenes the provisions of an earlier federal statute, the IOIA, such an interpretation is void. In contrast to many executive agreements, a Joint Resolution of the House of Representatives and the Senate authorized the President to enter into the Headquarters Agreement. The cases cited by the plaintiff which note that executive agreements lack the status of treaties and statutes are therefore inapposite.
Because Mr. Hoque's status accords him full diplomatic immunity under the Headquarters Agreement, and the scope of that immunity as defined by the Vienna Convention extends to Mrs. Hoque as well, this Court is without subject matter jurisdiction to consider the plaintiff's very serious claims against these defendants. This result is compelled for the reason that "by upsetting existing treaty relationships American diplomats abroad may well be denied lawful protection of their lives and property to which they would otherwise be entitled." 767 Third Ave. Assoc., 988 F.2d at 296. The "most secure way" to guarantee protection to American diplomats "`is through blanket immunities and privileges without exception." Id. at 300 (citations omitted)
Conflict with U.S. Constitution Claim
Ahmed contends that even if the defendants are entitled to full diplomatic immunity, his Thirteenth Amendment claim remains cognizable because no treaty-based immunity defense can operate to deprive plaintiff of his constitutional right to be free from involuntary servitude. Specifically, plaintiff argues that the Diplomatic Relations Act of 1978, 22 U.S.C. § 254d, which incorporated the Vienna Convention, is a jurisdiction-limiting statute because it requires the dismissal of judicial proceedings brought against individuals who are entitled to immunity. Plaintiff further argues that jurisdiction-limiting provisions are subject to judicial review, and that because Section 254d produces a direct conflict with the Constitution in its application, it cannot stand.
22 U.S.C. § 254d states: Any action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention on Diplomatic Relations, under section 254b or 254c of this title, or under any laws extending diplomatic privileges and immunities, shall be dismissed.
1. Thirteenth Amendment
Ahmed's constitutional argument has two prongs. First, Ahmed contends that statutes which take away all fora to hear constitutional claims are unconstitutional. Observing that the Vienna Convention includes some exceptions to immunity and does permit jurisdiction in certain cases, see supra note 2, Ahmed argues that those entitled to diplomatic immunity should also be subject to claims under the Thirteenth Amendment. Ahmed further notes that this exception to diplomatic immunity for constitutional claims would be a narrow limitation on immunity, particularly because almost all other constitutional claims require state action.
A long line of Supreme Court cases establishes that serious due process concerns would arise if Congress were to enact a statute which precluded judicial review of constitutional challenges to the statute or to government action pursuant to the statute. See, e.g., Bartlett v. Bowen, 816 F.2d 695, 700 n. 15 (D.C. Cir. 1987) (collecting cases); cf. I.N.S. v. St. Cyr, 533 U.S. 289, 305 (2001) (noting that a "serious Suspension Clause issue" would arise if statutes withdrew the power of federal judges to hear habeas petitions and provided no adequate substitute) Accordingly, federal courts have developed a "timehonored tradition" of interpreting congressional enactments so as not to preclude all judicial review, Bartlett, 816 F.2d at 699, and of requiring the congressional intent to effect such a preclusion to be clear. St. Cyr, 533 U.S. at 299-300; Webster v. Doe, 486 U.S. 592, 603 (1988) (citing Johnson v. Robison, 415 U.S. 361, 373-74 (1974)). The serious due process concern to which these cases refer relates to the essential judicial function of the federal courts under the constitutional mandate of separation of powers to review the Constitutionality of federal legislation. See Bartlett, 816 F.2d at 703. The Second Circuit has stated that "while Congress has the undoubted power to give, withhold, and restrict the jurisdiction of courts other than the Supreme Court," Congress's ability to limit the jurisdiction of lower federal courts is subject to compliance with "at least the requirements of the Fifth Amendment." Battaglia v. Gen. Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948).
These cases do not, however, establish that a judicial forum must be available for all constitutional claims including those not prompted by a congressional enactment. In particular, the plaintiff has cited no authority to suggest that a constitutional claim trumps the applicability of diplomatic immunity, a doctrine created not solely by congressional enactment, but formed largely from international treaty obligations entered into by the executive branch with the consent of Congress and from the executive's power generally to conduct foreign relations. Indeed, other non-statutory doctrines, such as the political question doctrine and the doctrine of sovereign immunity, demonstrate that some constitutional claims can and do go unheard. See F.D.I.c. v. Meyer, 510 U.S. 471, 484-86 (1994) (United States cannot be sued absent waiver of sovereign immunity, and there is no such waiver for constitutional torts); Baker v. Carr, 369 U.S. 186, 210-12 (1962) (political question doctrine); see also Imbler v. Pachtman, 424 U.S. 409, 410 (1976) (prosecutorial immunity from constitutional claims); Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (judicial immunity from constitutional claims); Dexter Carpenter, Inc. v. Kunglig Jarnvagsstyrelsen, 43 F.2d 705, 710 (2d Cir. 1930) (noting that "the Constitution, art. 3, Sec. 2, . . . is necessarily limited by the right of [a] sovereign state to plead immunity"); of. Tuck v. Pan Am. Health Org., 668 F.2d 547, 550 (D.C. Cir. 1981) (dismissing complaint asserting, inter alia, race discrimination claims in violation of the Fifth and Fourteenth Amendments on ground of immunity under the IOIA).
2. Article III
In a related argument, Ahmed next contends that if no federal court exists to hear his claim of involuntary servitude, then the whole judicial power of the United States has not been vested as required by Article III, Section 2. The Supreme Court "long ago held," however, "that the power not to create any lower federal courts at all includes the power to invest them with less than all of the judicial power." Webster, 486 U.S. at 611 (Scalia, J., dissenting); see also Battaglia, 169 F.2d at 257 ("Congress has the undoubted power to give, withhold, and restrict the jurisdiction of courts other than the Supreme Court.") In any event, the judicial recognition of the immunity doctrine described above applies with equal force in the context of Ahmed's Article III argument.
Alien Tort Claims Act Claim
Finally, Ahmed asserts that, despite the immunity of the defendants, this Court may exercise jurisdiction over his claim of involuntary servitude under the Alien Tort Claims Act (the "ATCA"), 28 U.S.C. § 1350, because he has alleged a tort in violation of well-established, universally recognized norms of international law. The ATCA provides:
The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.28 U.S.C. § 1350. The ATCA was adopted in 1789, as part of the original Judiciary Act but has only rarely been invoked since. It "creates federal court jurisdiction for suits alleging torts committed anywhere in the world against aliens in violation of the law of nations." Kadic, 70 F.3d at 236. Individual liability under the ATCA may be established for acts rising to the level of slavery. See id. at 239; Doe v. Unocal Corp., 110 F. Supp.2d 1294, 1307 (C.D. Cal. 2000)
It is not necessary to consider whether the plaintiff's allegations rise to the level of slavery for purposes of established international law. Neither the ATCA nor international human rights law abrogates properly asserted diplomatic immunity. See, e.g., Tachiona, 169 F. Supp.2d at 297 (dismissing claims pursuant to the ATCA, the Torture Victim Protection Act and human rights norms for lack of subject matter jurisdiction); Lafontant v. Aristide, 844 F. Supp. 128, 139-40 (E.D.N.Y. 1994) (dismissing claims pursuant to the ATCA, the U.S. Constitution, the Torture Victim Protection Act, and customary international law for the killing of plaintiff's husband) The seminal Second Circuit ATCA cases expressly inquired as to the applicability of diplomatic immunity, permitting actions to proceed where it was determined that the defendants were not immune from suit. See Kadic, 70 F.3d at 247 (observing that Karadzic as an invitee of the United Nations enjoys no immunity from service of process outside of the Headquarters District); Filartiga v. Pena-Irala, 630 F.2d 876, 879 (2d Cir. 1980) (noting that "there has been no suggestion that Pena claims diplomatic immunity from suit") Accordingly, Ahmed's assertion of a cause of action pursuant to the ATCA cannot override the defendants' properly asserted diplomatic immunity from suit.
CONCLUSION
This Court is without subject matter jurisdiction to consider the plaintiff's claims, for the defendants are immune from suit. Accordingly, a default judgment may not be entered, and this action must be dismissed. The Clerk of Court shall close the case.