LOS ANGELES – November 1, 2011 – In a precedent-setting case, Arent Fox LLP won a major victory on October 28, 2011, for its client, the President of the Republic of Rwanda Paul Kagame, when the US District Court for the Western District of Oklahoma dismissed a wrongful death suit filed by the widows of the deceased presidents of Burundi and Rwanda, who were killed in an airplane explosion in 1994.

In dismissing the case, US District Judge Lee R. West found that as a head of state recognized by the United States government President Kagame was absolutely immune from suit. Noting that on August 29, 2011, the Legal Adviser of the US Department of State had informed the court that the Executive Branch had determined that President Kagame was immune from this suit, Judge West wrote his decision was “grounded in a respect for the separation of powers and a determination that the courts should abstain from intrusion into matters that could trammel the Executive Branch’s conduct of foreign policy.”

Judge West rejected the plaintiffs’ arguments that the Foreign Sovereign Immunities Act (FSIA) and the US Supreme Court’s 1997 decision in Clinton v. Jones, which held that that the sexual harassment suit against President Bill Clinton could proceed while he was still in office, dictated that the suit against President Kagame be permitted to continue.

“Clinton is simply inapplicable to the matter at hand. In that case, the Supreme Court concluded that the doctrine of separation of powers does not require federal courts to stay all private actions against a sitting President of the United States until he leaves office,” wrote Judge West. “Such a holding provides no guidance to the only issue before this Court, namely, whether the Court is bound by tradition and applicable authorities to defer to the United States’ determination that President Kagame is immune from the plaintiffs’ suit.”

Arent Fox partner Ambassador Pierre-Richard Prosper, the lead defense attorney in the case, who served as a war crimes prosecutor for the UN International Criminal Tribunal for Rwanda from 1996 to 1998, reacted favorably to the court’s decision. “We are pleased that we were able to win this matter on the long-standing doctrine of head of state immunity. We are confident, however, that had we been forced to address this matter on the merits, we would have prevailed,” said Ambassador Prosper.

“This suit was an attempt by the plaintiffs to draw the court into the history of an international conflict that has already been examined by the UN Security Council, the International Criminal Tribunal for Rwanda, and other bodies,” said Prosper’s co-counsel, Arent Fox partner Robert C. O’Brien, a former US Representative to the United Nations.

Procedural History

Judge West’s decision followed his ruling earlier this year finding the court did not have personal jurisdiction over President Kagame because the plaintiffs had failed to properly serve the head of state with a copy of the summons and complaint under federal and Oklahoma law.

“The plaintiffs have offered nothing to establish that they ever delivered a copy of the complaint to President Kagame personally,” wrote Judge West in his June 2011 opinion. “The plaintiffs’ own evidence establishes that their process servers never came within close proximity of President Kagame. … Clearly the plaintiffs have not shown that they met the requirements of Federal Rule 4(e)(2) or 4(e)(4) because they failed to establish that they delivered a copy of the complaint to President Kagame or to his ‘authorized agent.’”

Judge West rejected the plaintiffs’ arguments that they had substantially complied with the state of Oklahoma’s process service requirements when on May 1, 2010, they handed a copy of the summons and complaint to an Oklahoma Christian University professor and a US Secret Service Agent, who were accompanying President Kagame at the university where the Rwandan leader was scheduled to give a speech.

The plaintiffs also alleged that they “attempted to hand the documents to defendant’s driver/staff member near the car waiting for him to exit the auditorium.”

The court ruled that these efforts were not in “substantial compliance” with Oklahoma’s statute that permits service by delivery to persons who are legally authorized to receive service of process.

Judge West dismissed the plaintiffs’ argument that their May 1, 2010, efforts to serve the summons on President Kagame were sufficient because President Kagame had “actual knowledge” of the lawsuit.

“President Kagame’s actual knowledge of the plaintiffs’ lawsuit does not excuse them from substantial compliance with Oklahoma’s requirements,” wrote Judge West. “Nor does it substitute for proper service of process under Oklahoma law.”

The court also rejected the plaintiffs’ argument that President Kagame was deliberately evading service, finding, “[t]he plaintiffs have failed to demonstrate by clear and convincing evidence any intentional evasion which would permit the Court to excuse compliance with the rules of service.”

“Based on the foregoing, the Court concludes that the plaintiffs failed to effectuate service upon President Kagame,” Judge West concluded in denying the default judgment motion. “The Court lacks personal jurisdiction over him.”

In addition to Ambassador Prosper and Mr. O’Brien, Michael Cryan, and Roy Z. Silva represented President Kagame in this matter.

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