Recent Developments in Official Act Immunity

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on immunity matters. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

The Fourth Circuit’s November 2, 2012 decision in Yousuf v. Samantar has generated discussion by Professor Curtis Bradley, former State Department Legal Adviser John Bellinger, and myself. There, the Court of Appeals held that State Department determinations of conduct-based immunity are entitled to substantial weight, but not absolute deference, and that foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms. But to understand the current state of so-called “official act” immunity in the United States, it is also worth looking at the U.S. Government’s recent filings.

To avoid confusion, it is important to keep the categories of immunity straight. The immunity of foreign officials in U.S. courts is distinct from the immunity of foreign states. Since 1976, foreign state immunity has been governed by the Foreign Sovereign Immunities Act (FSIA), but in 2010 the Supreme Court held in Samantar v. Yousuf that the FSIA does not apply to foreign officials. The immunities of foreign officials fall into two basic categories: (1) Status-based immunities attach to the current holders of certain offices, like heads of state. They extend to all acts (even to ones that are purely private) but apply only during the time the official is in office. (2) Conduct-based immunity, on the other hand, attaches only to acts taken in an “official capacity,” but applies even after an official leaves office. The immunities of diplomatic and consular personnel are covered by treaties, but otherwise the status- and conduct-based immunities of foreign officials in U.S. courts are governed by federal common law.

Since the Supreme Court’s decision in Samantar, determinations of status-based immunities have proved relatively straightforward. The U.S. Government has filed determinations of immunity in a number of cases involving sitting heads of state, and U.S. courts have deferred to those determinations. See, e.g., Habyarimana v. Kagame (10th Cir. Oct. 10, 2012). But the U.S. Government has also recently made several filings in cases involving conduct-based immunity.

The most recent came on December 17 in the Mumbai bombings case, Rosenberg v. Lashkar-e-Taiba. Plaintiffs brought suit against Pakistan’s intelligence service—the ISI—and two of its former Directors General, alleging their involvement in the 2008 terrorist attacks in Mumbai, India, which killed and injured both American and Israeli citizens. The U.S. statement of interest first argues that the ISI itself is immune from suit under the FSIA because “it is a fundamental part of the Pakistani government” and “there is no applicable exception to immunity” (p. 4). The filing thus rejects the notion of a rogue-agency exception to the FSIA, noting that no court “has concluded that a component of a foreign state lacks immunity because the foreign state allegedly does not control its actions” (p. 5).

This recent filing also says a number of interesting things about the State Department’s approach to conduct-based immunity. First, while the State Department will consider a foreign government’s request for a suggestion of conduct-based immunity, the Department makes its own determination whether the acts in question were taken in an official capacity (p. 9). Second, the filing states that “[o]n their face, acts of foreign officials who are sued for exercising the powers of their office are treated as acts taken in an official capacity” (p. 11). But third, the filing leaves open the possibility that better founded allegations might overcome that presumption. Specifically, the filing notes that the complaint’s allegations against the former officials are “largely unspecified and conclusory” (p. 10). If the plaintiffs’ claims were well substantiated, it would be remarkable to conclude that planning and supporting terrorist attacks against American citizens were “official acts” entitled to immunity from suit in U.S. courts.

The Rosenberg statement of interest is consistent with other recent filings in cases involving conduct-based immunity. In September, the U.S. Government filed a statement of interest in Doe v. Zedillo, suggesting immunity for the former President of Mexico from a suit alleging his responsibility for a 1997 massacre of villagers in Chiapas. The determination of immunity again stated that “the Department of State generally presumes that actions taken by a foreign official exercising the powers of his office were taken in his official capacity” (Ex. 1, p. 1). It also emphasized that, “[p]articularly in light of the generalized allegations in the instant complaint,” the plaintiffs have not supplied a “sufficient reason” to question that preliminary assessment (Ex. 1, p. 2). To the same effect is the U.S. government’s amicus brief to the D.C. Circuit in Giraldo v. Drummond, in which the State Department determined that former Colombian president Uribe was entitled to testimonial immunity for acts taken in his official capacity as a government official. The U.S. amicus brief noted that plaintiffs’ assertions were “unsubstantiated” and in some instances contradicted by their own materials (p. 17). “[M]ere allegations of illegality are not sufficient to overcome the State Department’s presumption that the alleged conduct was undertaken in an official capacity” (p. 14).

The lesson for human rights plaintiffs should be clear. To avoid a determination of conduct-based immunity in suits against foreign officials, they will have to do more than generally allege that human rights violations occurred or that a foreign official was somehow indirectly responsible for them. At a minimum, they will need to make the sort of facially plausible claim that would be sufficient to survive a motion to dismiss under Ashcroft v. Iqbal. That is not to suggest that State Department determinations of conduct-based immunity will turn entirely on the pleadings. In Giraldo, for example, the U.S. amicus brief stated that “the State Department’s review has been informed by its own knowledge of circumstances in Colombia” (p. 16). In other words, the U.S. Government may rely on its own information in determining whether the allegations in the complaint may be true.

The State Department clearly hopes that it will not have to engage in this sort of fact-specific analysis very often. The recent Rosenberg filing suggests that courts should consider other threshold questions of service and jurisdiction before reaching the immunity question (p. 8, n. 3). This would be nothing new. In suits against foreign governments prior to 1976, “the Department generally refused to decide immunity claims while jurisdictional defenses remained to be decided by the court.” Sovereign Immunity Decisions of the Department of State, in 5 Digest of U.S. Practice in International Law 1017, 1019 (1977).

But is it a good idea for the State Department to leave open the possibility that well substantiated allegations of human rights violations could overcome its presumption that acts exercising the powers of an official’s office were taken in an official capacity so as to be entitled to conduct-based immunity? If the U.S. Government wants courts to defer to its determinations of immunity, the answer is clearly yes. In a 2011 article in the Vanderbilt Journal of Transnational Law, State Department Legal Adviser Harold Koh predicted, “[o]nly if our suggestions of immunity became unreasonable, . . . would courts be tempted to explore the delicate and uncharted zone between ‘substantial deference’ and ‘absolute deference’ to executive branch immunity determinations” (p. 1161). The Fourth Circuit’s November 2 decision in Samantar should serve as a warning that U.S. courts will be unlikely to defer to State Department determinations of immunity in the face of well substantiated allegations of grave human rights violations.