U.S. Appeals Court Affirms Kuwait Immunity, Rejects Ex-Diplomat Immunity, in Abuse of Domestic Worker Case

By Haggai Carmon

On September 24, 2010, the Second Circuit U.S. Court of Appeals ruled in the matter of Swarna v. Al-Awadi, in which a Kuwaiti diplomat to the UN was accused of severely mistreating a domestic worker. The court affirmed the sovereign immunity of Kuwait and affirmed that the now ex-diplomat and his wife are no longer immune; however, it ruled that the District Court did not have the right to enter a default judgment against the individual defendants, thus remanding the case for a hearing on the merits.

Vishranthamma Swarna, a native of India, was brought to New York to work in a domestic capacity in the home of Al-Awadi, a diplomat serving the Kuwaiti mission to the UN, and his wife, Al-Shaitan. Swarna’s employers, however, allegedly failed to meet the terms of the employment agreement, paying her a small fraction of what she was owed, forcing her to work 17 hours a day, 7 days a week, never allowing her to leave their residence unescorted and confiscating her passport. She was also repeatedly raped and beaten.

Swarna managed to escape and subsequently filed a complaint against Kuwait and her abusive employers, once Al-Awadi’s diplomatic post in the U.S. had ended. The defendants, however, ignored numerous complaints and instances of service, until the plaintiff filed a motion for default judgment, at which point both Kuwait and Swarna’s ex-employers acquired counsel to contest the motion for default judgment.

The District Court ruled against the individual defendants, stating that they were no longer immune under the Vienna Convention given that Al-Awadi’s post to the UN was over. However, the court upheld Kuwait’s immunity under the Foreign Sovereign Immunity Act (FSIA).

The individual defendants appealed the decision against them, and Swarna appealed the decision in favor of Kuwait.

Although Article 39(2) of the Vienna Convention does allow ‘residual immunity’ to former diplomats, it is an immunity limited to those acts performed “in the exercise of [the former diplomat’s] functions as a member of the mission.” The Appeals Court ruled that this automatically excludes Al-Shaitan from any residual immunity, as she was not a member of the mission.

Given that Al-Awadi was indisputably a member of the mission, the court examined the nature of the acts for which he was being sued. It ruled that the employment and treatment of Swarna were not in fact “official acts:”

Al-Awadi argues that Swarna was “employed… to assist [him] in the exercise of [his] mission-related functions,” and, therefore, all acts arising from that employment relationship are immune from suit under the Vienna Convention’s provision for residual immunity. Ultimately, however, Al-Awadi’s argument must be rejected, as it assumes a fact that is not supported by the record. The alleged facts clearly show that Swarna was employed to meet Al-Awadi’s and his family’s private needs and not any mission-related functions. If Swarna’s work for the family may not be considered part of any mission-related functions, surely enduring rape would not be part of those functions either. Although Swarna also cooked and served guests at official functions from time to time and taught other servants how to cook Kuwaiti dishes, these duties were incidental to her regular employment as Al-Awadi’s personal servant.

Swarna was also remunerated with private funds and was on a G-5 visa, for “aliens employed in a domestic or personal capacity by a principal alien, who are paid from the private funds of the principal alien and seek to enter the United States solely for the purpose of such employment.”

Thus, the Appeals Court ruled that both individual defendants are not immune to the suit brought against them, however, the court also said there were insufficient grounds for the entry of a default judgment, as neither willful delay nor prejudice against the plaintiff by delay could be proven. The default judgment was thus improperly granted by the District Court.

With regards to Swarna’s appeal, she argued that the tort and commercial exceptions to FSIA apply, thus removing Kuwait’s immunity in this context. According to the Appeals Court, neither exception is applicable for the following reasons:

Under NY law, “an employer ‘is not liable for torts committed by the employee for personal motives unrelated to the furtherance of the employer’s business.’” Obviously, the individual defendants’ treatment of Swarna was not within the scope of furthering Kuwait’s business, and so whatever torts in existence do not affect Kuwait’s immunity.

Swarna was not an employee of Kuwait, her contract was with the individual defendants, and therefore any breach of contractual obligations created by that contract does not pertain to Kuwait. As a result, the commercial activity exception, invoked by the presence of a contract and an employer/employee relationship, cannot be used with regards to Kuwait’s FSIA-protected immunity.

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