Are Former Government Officials Immune Under the FSIA?

[Michael Granne is a Visiting Assistant Professor at Hofstra Law School and has recently published Defining “Organ of a Foreign State” under the Foreign Sovereign Immunities Act of 1976 in the UC Davis Law Review.]

Greetings, all! I’d like to thank Julian and the rest of the OJ team for asking me to participate here. The Foreign Sovereign Immunities Act is a favorite of mine, so I look forward to some discussion on this and in the future.

Yesterday, the Supreme Court granted cert in Samantar v. Yousuf, a Fourth Circuit case that held that the Foreign Sovereign Immunities Act (FSIA) did not apply to former government officials even if they were being sued for actions within their official capacity. The various plaintiffs allege horrible mistreatment, including torture, rape and murder, by Somali government actors, with “the tacit approval and permission of the Armed Forces and their commander, Defendant Samantar.” Samantar, who served as the Minister of Defense and, subsequently, as Prime Minister of Somalia until 1990, fled Somalia after the Barre regime collapsed in January 1991. Samantar eventually resettled in the United States and now lives in Virginia. Plaintiffs sued under the Alien Torts Statute and the Torture Victim Protection Act of 1991, alleging that Samantar is liable for the actions of the military and other government actors under a theory of command responsibility, as he “knew or should have known” about the various and sundry abuses committed by his subordinates.

In Samantar, the Fourth Circuit decided two questions in the plaintiffs’ favor that each raise a circuit split. First, joining the Seventh Circuit, the court held that individuals are not included in the FSIA’s definition of “agency and instrumentality” in §1603(b). This conflicts directly with cases from the Second, Fifth, Sixth, Ninth and D.C. Circuits, all of whom have held that individuals can be included in the “agency and instrumentality” portion of a “foreign state.” Second, even if individuals were included, the court held that the FSIA would not apply to prevent suits against former officials who were no longer members of the government, creating a conflict with the D.C. Circuit.

In splitting from the majority view, the Fourth and Seventh Circuits take a fundamentally different approach. They each closely analyze the text of §1603(b) and recognize, quite correctly in my view, that it makes no sense to include individual within “agency and instrumentality.” The other five circuits have taken a functionalist view, which reaches a contrary conclusion. Those courts held that to allow such suits would create an end-run around FSIA immunity by allowing plaintiffs to sue officials of governments that were otherwise immune from suit. Thus, individuals acting in their official capacity must be covered.

Both arguments contain some intuitive appeal. On the one hand, the text of §1602(b) must, indeed, be stretched to include individuals. It refers to separate legal personhood, hardly normal usage regarding human beings, and asks under which law an agency or instrumentality was created and whether it would be a United States citizen by reference to the corporate diversity jurisdiction provisions, §1332(c) and (e). On the other hand, however, it makes little sense to bar suits against Somalia, but allow them against its officials. It would vitiate much of the protection that the FSIA offers and create the potential for considerable interference with foreign relations.

The second issue is whether, if one assumes that the FSIA does cover individuals, a former official would be covered after having left office. Plaintiffs naturally look for inspiration to Dole Food Co. v. Patrickson and, to a lesser extent, Republic of Austria v. Altmann, which both focused on the time at which the suit was brought, rather than that at which the actions occurred. Patrickson in particular is persuasive as it dealt with the temporal restrictions on determining ownership of a corporation under the agency/instrumentality definition, just as Samantar potentially seeks to be considered an individual agency/instrumentality. Samantar argues, in response, that the actions of former subsidiaries are less embarrassing to the government than the actions of former individual officials, an argument that may have some truth to it, but does not convince the Fourth Circuit.

There are several interesting additional questions that this case poses. First, in focusing on the agency/instrumentality part of §1602, the court and seemingly the parties ignore the argument that individuals, when acting within their official capacities, may simply be part of the foreign state itself. The definition of “foreign state” in §1603(a) “includes agencies or instrumentalities,” which, as noted, must be stretched if it is to include individuals. The definition of “foreign state” contains no such constraints. The fact that legal persons are included under the agency/instrumentality definition does not preclude the inclusion of natural persons elsewhere; indeed, it does not argue one way or the other. In a sense, this argument avoids the legal end run that these cases present—they see through the fiction that it is a suit against the individual, rather than the state itself. This obviously addresses the policy concerns raised by the five circuits that covered individuals within the FSIA’s cloak. It also avoid the linguistic gymnastics that would be necessary to force individuals within §1603(b).

The second issue is whether there is, in fact, a concrete distinction between the treatment of corporations and individuals under the FSIA. There is one that jumps out as crucial to the FSIA. A foreign state, like a corporation, cannot act except through its natural person officials. All Foreign state actions, therefore, must involve individuals; any law suit that calls into question the official acts of those officials, whether current or former, has the potential to embarrass, annoy or otherwise interfere with the United States’ foreign relations with that sovereign. This is in direct contradiction with the chief purpose of the FSIA, to avoid interference with the conduct of American foreign relations. Conversely, the ties between a majority-owned subsidiary and the foreign state are largely financial and do not automatically impugn the actions of the state itself. Once those financial ties are severed (or lessened) so too does the effect on the foreign state. The corporation does not act as the state, nor does the state act usually through it. (Some states do, indeed, manage large portions of their affairs through subsidiary corporations—these entities may still be organs of the foreign state, even if not majority-owned subsidiaries, entitled to treatment as the foreign state under the FSIA.) Thus, disparate treatment of individuals and corporations under the agency/instrumentality definition may be warranted.

Finally, one could argue that the corollary to a corporation’s ownership for Patrickson’s temporal purposes would be the official character of the actions of the individual. For Samantar, the current Somali government, such as it is, maintains that his actions were solely of an official nature in line with government policy. That characterization, rather than his status as a current or former employee of the government, is more closely tied to the goals of the FSIA. Lawsuits attacking acts by former officials that the state itself characterizes as properly official would create far more interference with the conduct of foreign relations than lawsuits against current officials that the foreign state admits were ultra vires. Using the characterization of the action as official, rather than the employment status, as of the filing of the lawsuit would more closely cleave to the purposes of the FSIA.