Sovereign Immunity Attorney

Experienced Federal Defense Counsel for Sovereign Immunity Matters in the United States

Sovereign immunity laws protect federal personnel and foreign diplomats against personal liability in a wide range of circumstances. However, while their protections are broad, they are not absolute. As a result, federal personnel and foreign diplomats representing their home nations in the United States can face liability exposure in some cases—and, in these cases, an effective defense is critical. 

At Oberheiden P.C., we represent U.S. citizens and foreign nationals in all federal sovereign immunity matters. This includes both enforcing sovereign immunity protections and defending against lawsuits that fall outside of (or arguably fall outside of) these protections. Our sovereign immunity lawyers represent federal personnel and foreign diplomats before the U.S. Department of State and in federal court, and we are able to assist with matters involving the U.S. Department of Justice (DOJ), U.S. Department of Homeland Security (DHS), and other federal law enforcement authorities as well.  

Who We Represent

Within our federal sovereign immunity practice, we represent a wide range of clients. As discussed above, this includes both U.S. and foreign citizens. In the majority of cases, our practice involves representation of: 

• Foreign Diplomats in the United States – We represent foreign diplomats in federal sovereign immunity matters within the United States. This includes, but is not limited to, matters falling under the Foreign Sovereign Immunities Act (FISA) and its immunity exceptions. Our sovereign immunity attorneys represent diplomats from all foreign countries; and, when necessary, we are able to assist with cross-jurisdictional litigation involving foreign states and their political subdivisions, as well as cross-border law enforcement matters.
• U.S. Federal Officials – The Federal Employees Liability Reform and Tort Compensation Act (FELRTCA) protects federal officials against personal liability for official acts. In these cases, the federal sovereign immunity doctrine applies (unless a suit involves an alleged violation of the U.S. Constitution or a federal statute, in which case qualified immunity applies), and federal officials are entitled to strong protections. 
• U.S. Federal Employees – Along with protecting federal officials, FELRTCA also protects other government employees acting within the scope of their official duties (similar immunity doctrines may apply to local governments under different legal frameworks). As the DOJ makes clear, by enacting FELRTCA, “Congress abrogated this common law rule and extended absolute immunity for common law torts to all federal employees regardless of whether the conduct at issue was discretionary,” with exceptions for suits involving alleged constitutional or federal statutory violations, as noted above.

These are just examples—we are able to handle other federal sovereign immunity matters as well, including actions seeking prospective injunctive relief in constitutional or statutory cases. With a defense team that includes former senior-level federal prosecutors and law enforcement agents, we are well-positioned to provide strategic legal representation for any complex sovereign immunity issue that may arise. Our defense team also includes former U.S. Secretary of State Mike Pompeo, who serves in an advisory capacity as Of Counsel for select high-profile and high-stakes cases.

Matters We Handle

Our firm handles all sovereign immunity-related matters under FISA and FELRTCA. We also handle matters that are not strictly related to foreign diplomats’ and federal personnel’s sovereign immunity protections, but that nonetheless often accompany matters implicating these protections. Each sovereign immunity attorney at Oberheiden P.C. has significant experience in the areas of: 

Enforcement of Sovereign Immunity 

We assist foreign diplomats, federal officials, and federal employees with enforcing sovereign immunity under FISA and FELRTCA. This includes assisting with enforcement in federal court, in matters involving the U.S. Department of State, and in matters involving other federal departments and agencies. These matters are often highly complex—especially in cases involving cross-border issues, international law, or evolving Supreme Court jurisprudence—so it is imperative to have experienced defense counsel who can approach them on logical and practical grounds and serve as an effective representative and advocate in communications with any government agency, U.S. or international. 

Civil Defense for Personal Injury and Other Tort Claims Falling Outside of Sovereign Immunity

Along with providing representation in matters involving the enforcement of sovereign immunity, we also provide representation for tort claims that fall outside of the scope of these protections. For example, under FISA, tort claims that may not be subject to sovereign immunity protections include: 

• Claims that are subject to explicit or implicit immunity waivers by foreign states
• Claims involving commercial activity (either in the U.S. or abroad) that has a direct effect in the United States
• Claims involving allegations of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources
• Claims involving allegations of international terrorism or state-sponsored terrorism 
• Personal injury claims and wrongful death claims involving alleged tortious acts or omissions brought by injury victims or their families

Under FELRTCA, sovereign immunity does not extend to tort claims involving allegations of Constitutional violations or federal claims based on statutory violations. In these cases, “government officials . . . continue to be protected only by qualified immunity.”

Civil Defense for Other Types of Litigation 

Along with tort claims, certain other types of civil litigation are also excluded from the sovereign immunity protections afforded to foreign diplomats under FISA. Our firm also handles cases involving: 

• Claims for property taken in violation of international law 
• Claims involving property in the U.S. acquired by gift or succession 
• Suits in admiralty to enforce maritime liens against vessels and cargo 
• Suits to foreclose preferred mortgages 
• Actions seeking to enforce mandatory arbitration clauses in agreements between foreign states and private parties 

Here too, due to the complexity of these matters—and the narrowness of the exceptions to sovereign immunity that apply under FISA, experienced legal representation is essential. When you contact us, we will arrange for you to promptly speak with a senior-level sovereign immunity attorney who can help guide you forward. 

Federal Criminal Defense 

In some cases, allegations against foreign diplomats and federal personnel can also lead to criminal prosecution and other serious legal consequences. These include cases that may fall outside of the sovereign immunity protections afforded by FISA and FELRTCA. Federal criminal defense is the cornerstone of our practice; and, with multiple former DOJ prosecutors, U.S. Attorneys and Assistant U.S. Attorneys, and federal law enforcement agents on our defense team, we are well-positioned to provide effective representation for all types of high-stakes federal investigations and prosecutions. 

Federal Immigration Defense 

We are also able to provide federal immigration defense for foreign diplomats who are facing detention and removal (deportation). This has recently become a hot button issue in the U.S., and navigating the federal immigration system—even as a foreign diplomat who is entitled to clear protections—can prove challenging. Once again, we have the background and experience required to handle these matters effectively, and we are capable of providing emergency representation anywhere in the U.S. when necessary. 

FAQs: Federal Sovereign Immunity and Supreme Court Review

When Are Foreign Diplomats Entitled to Sovereign Immunity in the U.S.?

Foreign diplomats representing their home nations in the United States are entitled to sovereign immunity in a wide range of circumstances, even when their actions may be unlawful their country’s own laws. The Foreign Sovereign Immunities Act (FISA) provides broad immunity to foreign diplomats in their representative capacity, and then it carves out certain exceptions. The applicability of these exceptions is not always (or even often) clear–and can hinge on a Supreme Court decision–so foreign diplomats will often need to engage defense counsel to help them avoid facing liability. 

How Can Foreign Diplomats Enforce Their Sovereign Immunity Protections?

Foreign diplomats can enforce their sovereign immunity protections through the courts, invoking judicial power vested in the federal judiciary. In some cases, it may be possible to work with the U.S. Department of State to enforce these protections as well, although the Department of State has “no discretion” when it comes to complying with FISA—including serving process in cases involving statutory exceptions to sovereign immunity.

What is the U.S. Department of State’s Role With Regard to Sovereign Immunity of Foreign Diplomats?

The U.S. Department of State is responsible for enforcing FISA, the federal statute primarily responsible for affording sovereign immunity to foreign diplomats. This includes both helping to ensure that the protections afforded by FISA are respected and ensuring that U.S. parties can achieve service of process in cases falling under FISA’s exceptions. 

How Does Sovereign Immunity Protect Federal Officials and Employees?

The Federal Employees Liability Reform and Tort Compensation Act (FELRTCA) provides sovereign immunity to federal officials and employees—as extensions of the federal government—in most cases. However, there are certain cases in which FELRTCA does not apply; and, in these cases, the legal doctrine of qualified immunity applies instead. 

What Are the Exceptions to Sovereign Immunity?

There are several exceptions to sovereign immunity under FISA (which applies to foreign diplomats), and there are two main exceptions to sovereign immunity under FELRTCA (which applies to federal officials and employees) (as well as separate immunity considerations under the Eleventh Amendment, which applies to U.S. states). If you have questions about the scope of the sovereign immunity you are afforded, our attorneys can explain your legal rights and protections based on the specific circumstances at hand. 

Speak with a Sovereign Immunity Attorney at Oberheiden P.C. in Confidence 

If you would like to speak with a sovereign immunity attorney at Oberheiden P.C., we invite you to get in touch. Once you do, we will arrange a confidential and complimentary initial consultation as soon as possible. Call us at 888-680-1745 to schedule a call now, or tell us how we can reach you online and we will be in touch with you shortly.