Injunctive Relief and the FSIA’s Tort Exception

There has been a lot of recent attention to the issue of whether injunctions are permitted under the FSIA.  See, e.g., NML Capital, Ltd. v. Republic of Argentina, 699 F.3d 246, 262-63 (2d Cir. 2012) cert. denied, 134 S. Ct. 201 (U.S. 2013).  However, one issue that has not been widely discussed is the possibility of injunctive relief in a lawsuit proceeding under the FSIA’s tort exception.  Using Federal Tort Claims Act (“FTCA”) precedent, a foreign sovereign has a strong basis for arguing that injunctive relief is impermissible under 28 U.S.C. section 1605(a)(5).

The FSIA’s tort exception was modeled on the waiver of immunity contained in the FTCA.  Compare 28 U.S.C. § 1605(a)(5) with 28 U.S.C. § 1346(b)(1); see also, e.g., De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1398 (5th Cir. 1985).  Similar to the FTCA’s immunity waiver, the tort exception is limited to cases “in which money damages are sought against a foreign state.”  28 U.S.C. § 1605(a)(5) (emphasis added).  Courts have repeatedly held that analogous language in the FTCA precludes injunctive relief.  See Kaskaskia River/Marina Campgrounds, Inc. v. United States, 07-CV-0166-MJR, 2008 WL 4594979, at *2 (S.D. Ill. Oct. 15, 2008) (“The explicit terms of the FTCA only provide for money damages. . . . Given the plain meaning of the statute, it is clear that this Court lacks subject matter jurisdiction to award any relief other than money damages.”); see also Moher v. United States, 875 F. Supp. 2d 739, 755 (W.D. Mich. 2012) (collecting cases).  Accordingly, applying FTCA precedent to cases under the FSIA’s tort exception, section 1605(a)(5) does not confer subject matter jurisdiction over claims seeking injunctive relief against foreign sovereigns.