The score now seems to be 4-0. In the last four weeks, four Circuits have addressed the defense of sovereign immunity, and in each case they have upheld the plaintiff’s right to sue in federal court. The first three decisions are discussed in our postings of 13 and 16 August 2010.
In the most recent decision, the Third Circuit decided OSS Nokalva, Inc. v. European Space Agency (ESA), Nos. 09-3602, 3640 (3d Cir. 8/16/10)(link to decision). In OSS, the Court first determined, as have the other Circuits, that an interlocutory appeal lies from the denial of a motion to dismiss on sovereign immunity grounds, though the Third Circuit felt it needed to invoke the collateral order doctrine.
The issue in OSS arose because the absolute immunity granted the ESA was promulgated by Congress as part of the International Organizations Immunity Act (IOA), 22 U.S.C. § 288, et seq., which was enacted prior to the Foreign Sovereign Immunity Act of 1976. The IOA provides that international organizations have absolute immunity from suit – specifically, “the same immunity from suit and every form of judicial process as is enjoyed by foreign governments”. 22 U.S.C. § 288a(b). The question in the case was whether, by referring to a coordinate body of law to determine the extent of the ESA’s immunity, the IOA intended that the immunity conferred on international organizations would be frozen in the state it was in in 1945, when the IOA was enacted, or whether it was modified by subsequent enactments such as the FSIA. The Court of Appeals determined that the IOA did not freeze immunity in time but that that statute’s reference to another body of law included subsequent amendments or modifications, including in this case those wrought by the commercial activity exception to immunity as enacted by the FSIA.