Jane Does 1–5 v. Obiano: The TVPA Does Not Implicitly Abrogate Common-Law Foreign Official Immunity

Introduction

In Jane Does 1–5 v. Obiano, No. 24-20075 (5th Cir. May 29, 2025), the Fifth Circuit considered whether the Torture Victim Protection Act of 1991 (“TVPA”) implicitly abrogated the common-law doctrine of foreign official immunity. Five Nigerian widows sued former Anambra State Governor Willie Obiano in Texas federal court under the TVPA, alleging that he ordered military forces to fire on peaceful rallies in Nigeria, killing their husbands. The district court dismissed the suit on the ground that Obiano was entitled to conduct‐based immunity as a former foreign official. On appeal, plaintiffs argued that the TVPA implicitly waived that immunity. Rejecting this contention, the Fifth Circuit affirmed the dismissal.

Summary of the Judgment

The Court of Appeals first recounted the allegations: that Nigerian troops, under Governor Obiano’s command, opened fire on rally participants in August and October 2020, causing multiple deaths. Obiano, now residing in Texas, moved to dismiss for lack of subject-matter jurisdiction based on common-law foreign official immunity. The district court agreed and dismissed. On de novo review, the Fifth Circuit:

• Applied the two-step test from Samantar v. Yousuf to confirm Obiano’s entitlement to conduct-based immunity.
• Declined to recognize any implied “ius cogens” exception for atrocity crimes in the absence of clear authority or department suggestions.
• Held that the TVPA’s language imposing “liability” does not clearly indicate an intent to abolish common-law immunities, analogizing to § 1983 jurisprudence.
• Concluded that plaintiffs forfeited all other arguments and affirmed the dismissal.

Analysis

Precedents Cited

The court situated the dispute within a long lineage of immunity jurisprudence:

• The Schooner Exchange v. McFaddon (1812): Early recognition of sovereign immunity in suits against foreign vessels.
• Ex parte Republic of Peru, 318 U.S. 578 (1943), and Republic of Mexico v. Hoffman, 324 U.S. 30 (1945): The Supreme Court’s deference to State Department “suggestions of immunity.”
• Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983) and the 1952 Tate Letter: Adoption of the “restrictive” theory of sovereign immunity.
• The Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602–1611 (1976): Statutory codification of restrictive sovereign immunity, but silent on individual officials.
• Samantar v. Yousuf, 560 U.S. 305 (2010): Held FSIA does not govern personal immunity of foreign officials, endorsing a two‐step common‐law inquiry.
• Doe 1 v. Buratai, 318 F. Supp. 3d 218 (D.D.C. 2018): District court’s application of Restatement § 66(f) to grant conduct-based immunity to Nigerian officials, including Obiano.
• Doğan v. Barak, 932 F.3d 888 (9th Cir. 2019): Held the TVPA does not abrogate foreign official immunity.
• Other circuit decisions on ius cogens (e.g., Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009); Yousuf v. Samantar (4th Cir. 2012); Ye v. Zemin, 383 F.3d 620 (7th Cir. 2004)).

Legal Reasoning

The Fifth Circuit’s reasoning unfolded in three major steps:

1. Application of Samantar’s Two-Step Framework
   Having identified Obiano as a former governor (not a sitting head of state or foreign minister), the court applied conduct-based immunity. Because there was no State Department suggestion of immunity (step 1), the court proceeded to step 2, asking whether U.S. policy would recognize immunity for acts taken in his official capacity. Relying on Buratai and Restatement (Second) § 66(f), the court held that commanding military forces in official duties fell squarely within conduct-based immunity.
2. Rejection of an Implied ius cogens Exception
   Plaintiffs argued that international law’s peremptory norms (ius cogens) should strip immunity for extrajudicial killings. The district court—and the Fifth Circuit by forfeiture—declined to recognize such an exception absent clear precedent or State Department guidance. Most circuits, including D.C., Ninth, Seventh, and Second, have similarly refused to carve out a universal ius cogens exception to common-law immunity.
3. TVPA Does Not Implicitly Abrogate Immunity
   Turning to the TVPA’s text, the court invoked the long-standing presumption that Congress does not alter common-law immunities without explicit language. Citing Pierson v. Ray, Isbrandtsen Co. v. Johnson, and § 1983 case law (Rehberg v. Paulk; Procunier v. Navarette; Tenney v. Brandhove), the court held that a general grant of liability (“shall be liable”) does not “clear[ly] indicat[e]” an intent to abolish foreign official immunity. Accordingly, plaintiffs’ implicit-waiver argument failed.

Impact

This decision carries several implications:

• TVPA Litigation: Plaintiffs pursuing TVPA claims against former foreign officials must overcome common-law immunity defenses by securing explicit State Department suggestions of immunity waiver or clear statutory language.
• Two-Step Immunity Analyses: Lower courts will continue to apply Samantar’s framework and look to Restatement § 66(f) in the absence of departmental guidance.
• Ius Cogens Debate: The unresolved question of a universal peremptory‐norm exception remains open, likely prompting further circuit splits and potential Supreme Court review.
• Legislative Action: Congress seeking to expand victims’ remedies under the TVPA must expressly address common-law immunities, or consider a statutory scheme akin to the FSIA’s clear waiver provisions.

Complex Concepts Simplified

• Foreign Official Immunity: A common‐law principle protecting foreign state officials from suit in U.S. courts for acts performed in their official capacity. Two types exist:
  • Status-based immunity: Absolute immunity for sitting heads of state and foreign ministers.
  • Conduct-based immunity: Immunity for any official act, even after the official leaves office.
• Two-Step Samantar Test:
  1. See if there is a State Department “suggestion of immunity.” If yes, immunity controls.
  2. If not, the court independently assesses whether U.S. foreign‐policy practice and international law would recognize immunity for the official’s acts.
• TVPA Basics: A statute allowing civil suits in U.S. courts against individuals who, under foreign authority, torture or extrajudicially kill persons. It imposes “liability” but does not mention immunity.
• Ius Cogens: Peremptory norms of international law (e.g., prohibitions on torture, genocide). Some argue they nullify immunity, but courts disagree absent clear foreign‐policy pronouncements.

Conclusion

Jane Does 1–5 v. Obiano reaffirms that the TVPA, though a powerful tool for victims of torture and unlawful killings, does not implicitly repeal the long‐established common‐law doctrine of foreign official immunity. Absent a clear and specific congressional directive or State Department suggestion to the contrary, U.S. courts will protect former foreign officials from suit for acts taken in their official capacity—even when those acts involve grave human rights abuses. The decision underscores the enduring principle that immunities are not set aside by implication and highlights the need for explicit legislative or executive‐branch action to expand victims’ remedies against foreign actors.