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Sovereign Immunity Precludes Father’s Suit Against Kingdom of Norway—Ninth Circuit
Case Seeking Visitation, Communication With Children Living Abroad Dismissed
By a MetNews Staff Writer
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Above is an undated photo of twins whose father, a Los Angeles resident, has been barred by the Kingdom of Norway from having contact with them owing to his criminal record. The father sued Norway in the U.S. District Court for the Central District of California and the Ninth U.S. Circuit Court of Appeals on Monday affirmed a dismissal of his action with prejudice in light of sovereign immunity, finding the alleged exceptions to be inapplicable. |
The Ninth U.S. Circuit Court of Appeals has held that neither the domestic tort exception to sovereign immunity nor the commercial tort exception to that doctrine applies in an action against a foreign government and related entities by a father alleging conspiracy with his ex-wife to abduct and remove his children from the U.S.
The father, Marlon Rosasen, is seeking visitation and phone conversations with his children who now reside in the Kingdom of Norway with their mother.
A panel, in a memorandum opinion, on Monday affirmed a dismissal, without leave to amend, of the father’s complaint. The appeal from an order by District Court Judge Sherilyn Peace Garnett of the Central District of California was heard before Circuit Judges Mark J. Bennett, Bridget S. Bade and Daniel P. Collins.
On Aug. 24, 2021, Rosasen, a U.S. citizen and resident of Los Angeles, representing himself and his two children, twins then aged 6, sued Norway and several of its instrumentalities, seeking damages, declaratory relief and injunctive relief.
Born Abroad
The children were born as U.S. citizens on July 29, 2015, and the family soon after that point settled in Norway where the mother, Thea Rosasen, is a citizen. The plaintiff avers that he was deported from Norway a week after his former psychologist communicated a concern about him to Norway’s Child Protective Services (“NPCS”), one of the bases for his ejectment being his criminal record.
NCPS proceeded to open an investigation into Thea Rosasen’s parental fitness.
The parents went with the children to Denmark, then Marlon Rosasen took them to the U.S., with the mother returning to Norway. The District Court suit followed a custody dispute with Thea Rosasen, who successfully petitioned in a Norwegian court, under the Hague Convention and the International Child Abduction Remedies Act, to have the couple’s children returned to her care, with like proceedings taking place here also winding up in her favor.
The upshot was that U.S. deputy marshals were ordered by the federal court to seize the children and return them to Norway. Upon their arrival, NPCS took legal custody of them and allowed Thea Rosasen to have physical custody if she agreed to raise them in Norway without contact with their father, and she consented.
Norway did not make an appearance before Garnett, who nonetheless dismissed the case for failure to allege jurisdiction.
Marlon Rosasen has not seen the twins since April 3, 2020, and has not heard from them since November of that year. He did learn last Feb. 5 that they are in the custody of their mother, from whom he is now divorced.
Foreign Sovereign Immunity
The panel noted that federal jurisdiction does not exist in a case against a foreign government unless one of the exceptions to the Foreign Sovereign Immunities Act applies. Dismissing Marlon Rosasen’s contention that the District Court erred by litigating on Norway’s behalf given the nation’s failure to appear, the judges looked to the possible exceptions sua sponte.
The plaintiff asserted that the domestic tort exception, found at 28 U.S.C. §1605(a)(5), and the commercial tort exception, found at 28 U.S.C. §1605(a)(2), overcame sovereign immunity in this case.
The panel noted that the domestic tort exception does not apply to any claim arising out of malicious prosecution or abuse of process. In this case, they said:
“Rosasen alleged that Norway instigated and supported his wife’s custody petition under the Hague Convention and the International Child Abduction Remedies Act, which resulted in his wife obtaining custody of their children….Although Rosasen did not plead malicious prosecution or abuse of process claims, the gravamen of his claims is that Norway ‘misused legal procedures’ to return his children to Norway.”
Finding that his “use of labels such as kidnapping, deprivation of rights, or conspiracy” insufficient to render jurisdiction over his claims, the judges wrote:
“Because Rosasen’s claims are all predicated on Norway’s alleged ‘wrongful use of legal process,’ the exception in § 1605(a)(5) does not apply.”
The commercial tort exception similarly fails to save his action, the judges said. Assuming, as Marlon Rosasen asserts in his complaint, that Norway hired a law firm to represent its interests in the case under the Hague Convention, the panel found that fact alone did not provide a strong enough nexus to the noncommercial nature of his action as a whole.
The case is Rosasen v. Kingdom of Norway, 22-55980.
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