## Facts

- Larry Risk sued individually and as guardian ad litem for his two minor children.
- Risk and his former spouse, a Norwegian citizen, lived in Norway with their children before Risk returned to the United States with the children during a visitation period.
- A California superior court later awarded joint custody, barred either parent from removing the children from specified Bay Area counties, required surrender of the children’s passports, and prohibited obtaining replacement passports without a court order.
- Risk alleged that his former spouse took the children to Norway in violation of the California order.
- Risk alleged the Kingdom of Norway and two Norwegian consular officials provided financial assistance and travel documents that enabled the children’s removal from California.
- Risk filed a federal action seeking money damages for torts based on interference with custodial rights.

## Issues

1. Whether the FSIA’s noncommercial tort exception, 28 U.S.C. § 1605(a)(5), permitted suit against Norway, or whether the discretionary-function limitation preserved Norway’s immunity for alleged consular assistance that facilitated removal of children from California.
2. Whether the Norwegian consular officials were also immune for acts taken in an official capacity.

## Decision

- The Ninth Circuit affirmed dismissal for lack of subject-matter jurisdiction.
- The court held Norway remained immune because the alleged conduct fell within the discretionary-function limitation in § 1605(a)(5).
- The court also affirmed dismissal of the consular officials on immunity grounds tied to their official acts.

## Legal Principles

- Under the FSIA, a foreign state is presumptively immune from suit unless a statutory exception applies.
- The FSIA’s noncommercial tort exception in § 1605(a)(5) does not apply to claims “based upon” the exercise or failure to exercise a discretionary function, even if the discretion is allegedly abused.
- Consular and governmental decisions involving judgment and policy considerations may constitute discretionary functions for FSIA purposes.
- When alleged tort claims are premised on such discretionary governmental conduct, U.S. courts lack subject-matter jurisdiction over the foreign state, and officials acting in an official capacity may share the immunity applicable to the state.

## Conclusion

The Ninth Circuit held that claims arising from Norwegian consular assistance that allegedly enabled a parent to remove children from California contrary to a custody order were barred by sovereign immunity because the conduct was discretionary under FSIA § 1605(a)(5), and it affirmed dismissal of both Norway and the consular officials.


Risk v. Halvorsen, 936 F.2d 393 (9th Cir. 1991)