02 Jun Samantar Insta-Symposium: Foreclosing “Official Capacity” Suits
The most interesting aspect of the Samantar v. Yousuf opinion yesterday was the final section addressing the “artful pleading” problem. The Court stated that “[e]ven if a suit is not governed by the [FSIA], it may still be barred by foreign sovereign immunity under the common law. And not every suit can successfully be pleaded against an individual official alone.” It then raised three limitations to possible suits against individuals under the common law: (1) absence of personal jurisdiction; (2) dismissing the suit because of a necessary party; and (3) treating the state as the real party in interest where an individual’s conduct was done in his official capacity. (Slip op. at 18-19).
I think the last limitation could prove to significantly limit future suits against government officials. The Court stated that “it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest. Cf. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (‘[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.'”).
A quick search suggests that lower courts were split on the question of whether individuals acting in their official capacity enjoyed sovereign immunity. The Court yesterday rejected the argument that individuals fall within the FSIA, but affirmed that they could fall within common law immunity.
Henceforth the central focus of litigation against government officials will be whether they were acting within their official capacity. Defendants will seek to show they were acting with authority or under orders when they tortured or killed, while plaintiffs will argue the opposite. Unlike head of state immunity, it matters not whether they are government officials at the time of suit. All that matters is if their alleged unlawful conduct was taken as a government official. If so, then the state is the real party in interest, and sovereign immunity is triggered.
The question that is unstated in these instant analyses is whether these general comments refer to civil suits or criminal prosecutions also. I would be grateful if persons would speak to that. Given Noriega, it would seem that these discussions would not reach criminal prosecutions at all.
Best,
Ben
Ben,
That’s a great question. I would assume that individual immunity from criminal prosecution is governed in part by the VCCR, at least with respect to consular officials. Not sure about other government officials.
Roger Alford
This post posits that after Samantar, “central focus of litigation against government officials will be whether they were acting within their official capacity.” (emphasis added). While I’m sure defendants will make the argument suggested, I don’t think it will be a signifcant limitation on future suits. At least, it shouldn’t be. There is a crucial distinction between a suit brought against an official in his official capacity, and a suit brought against an official in his personal capacity for acts committed in an official capacity. The former are treated as suits against the state itself because they typically seek a remedy from the state itself. By contrast, the latter seek damages from the official’s own funds. When the Court noted that “some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest,” it was referring to suits brought against the defendant in his official capacity. Samantar, however, was not such a case. As the Court noted, “we think this case, in which respondents have sued petitioner in his personal capacity and seek damages from his own pockets, is properly governed by the common law because it is not a claim against a… Read more »
Response…
And acts in violation of international law, especially international crimes, are ultra vires, not lawful “public” or “official” acts — see cases and other materials cited in 25 Mich. J. Int’l L. 229, 235-37 (2004), available at http://ssrn.com/abstract=1487719
and/or 42 Case West. Res. J. Int’l L. 359, 371-74 (2009), available at http://ssrn.com/abstract=1458638
Jordan