Tounkara v. Republic of Senegal

Background The court held an evidentiary hearing and heard argument concerning subject-matter jurisdiction, diplomatic immunity, and diversity of citizenship. The opinion identifies Elhadji Ousmane Tounkara and others as plaintiffs and the Republic of Senegal and others as defendants.

Issues for Further Briefing The court directed the parties to address three groups of issues:

1. Whether 28 U.S.C. § 1351, which gives federal courts exclusive jurisdiction over certain cases against members of missions, turns on the defendant’s membership at the time of the alleged misconduct, the filing of the complaint, or another time. The order specifically asks how that analysis would apply if the defendant was no longer a mission member after December 2019, where the alleged misconduct occurred in September 2018 and the complaint was filed in September 2021.

2. Which authorities may govern diplomatic immunity and its scope, including the Diplomatic Relations Act, the Vienna Convention on Diplomatic Relations, the United Nations Headquarters Agreement, the Convention on Privileges and Immunities of the United Nations, the International Organizations and Immunities Act, and any other relevant statute, convention, or treaty.

3. If the court finds that § 1351 jurisdiction applies and that the defendant was no longer a mission member after December 2019, whether immunity is determined as of the alleged misconduct, the complaint’s filing, or another date.

Order The court ordered the plaintiff to file a brief of no more than 15 pages by July 27, 2023. The defendant must file a brief of no more than 15 pages by August 28, 2023, and the plaintiff may file a reply of no more than 7 pages by September 12, 2023. Judge Robert W. Lehrburger’s order did not resolve the jurisdiction or diplomatic-immunity questions described above.