Thoughts on Samantar

by Peter Rutledge

[Peter “Bo” Rutledge is Associate Professor of Law at the University of Georgia Law School and the author, with Gary Born, of International Civil Litigation in United States Courts]

I’ve been thinking a lot about Samantar since its release as I expect it’ll occupy an important place in the next edition of Gary’s and my International Civil Litigation (we’re working on it right now – should be in proof stage by Spring 2011, in book form for Fall 2011 classes). In addition to the several comment, I offer some thoughts on the profoundly unsatisfying decision in the case. To be clear, like Bill and Chimene, I don’t think that the Court necessarily reached the wrong result. Rather, like Roger and Beth, I believe the way it went about resolving the case leaves far too many unanswered questions that, I can attest from recent work on a difficult sovereign immunity case, desperately need some clarification:

1. What’s the scope of the common law immunity for foreign officials? The ultimate section of Samantar can be read to support the notion that this common law immunity survives the FSIA. But prior to Samantar a great deal of confusion persisted among the lower courts over how it operated with respect to such matters as scope of employment, the treatment of highl-level ministers close to the head of state, former employees, and conduct committed in violation of international law. Samantar supplies no guidance on these matters.

2. Whatever the scope, what’s the source of law? Federal common law one might naturally say. But not so fast. How do we square that with the scope of employment prong under the non-commercial tort exception? Some lower court case law suggests that state law, not federal law, informs the question. Other case law looks to the law of the sovereign itself. Consequently, we end up in a situation where different sources of law inform the same inquiry, an unfortunate result.

3. What’s the authority for the federal common law? Most of you are familiar with the very good Seventh Circuit cases arising out of the Enahoro litigation that discuss this question. After Erie and maybe Sosa too, one might reasonably wonder what’s the residual scope of a federal court’s common law making authority in the field. Clearly, there’s some. But just as Sosaleft a lot of people scratching their heads about how extensive it was, this case does too. Of course, one might distinguish between a federal common law to create a cause of action vs federal common law making power to generate an affirmative defense (like immunity). But the defensibility of that distinction depends critically on the value underpinning one’s view of federal common law power. If the underlying value is comity, then perhaps the distinction makes sense. But if the underlying value is separation of powers (or simply a more modest view of judicial lawmaking power), then the two are not so easily distinguished.

4. What do we do about forum shopping? However textually twisted it might have been, the FSIA-based approach to individual immunity at least had the functional value of keeping these cases in federal court. As a result of Verlinden, one could avoid the risk of inconsistent results in federal and state court through the FSIA’s removal provision. But after this case, the risk of forum shopping become rampant – to keep a case in state court, just file align the parties in a way to avoid 1332 removal and structure your causes of action to avoid federal claims. Wouldn’t that be a pretty airtight way of keeping a case out of federal court despite the potentially profound impact of the case on foreign relations (though I agree with Duncan this actually clears a barrier for folks who wish to go the ATS route)? The effect, I suggest, may be greater pressure to find substantive federal common law with preemptive effect in state court (much like we saw in a couple of post-Sabbatino act of state cases)

Unfortunately, the Court simply blew past much of this. Instead of confronting them either in the opinion, or at least some well written separate opinions, they regurgitated the tired old debates over legislative history which don’t meaningfully illuminate things.

Grateful in advance for any reactions (on- or off-line) to these comments as well as, more generally, suggestions in the sovereign immunity chapter in the book. Cheers!

Samantar Insta-Symposium: The View From the Counsel’s Table

by Beth Stephens

[Prof. Beth Stephens of Rutgers Law School at Camden has litigated and written widely on related issues. Additionally, she served a counsel for one of the (victorious) respondents in the Samantar case.  We are of course honored that she is able to share her views with us. Again, a reminder that “Related Posts” will send you to a collection of all of the posts on this topic.] 

The Supreme Court decision in Samantar v. Yousuf put to rest to a line of Circuit court decisions that has baffled me for twenty years. Immunity for some foreign government officials for some official acts may or may not be good policy, but I’ve never understood the argument that such immunity could be found within the text of the FSIA. Moreover, the executive branch under multiple administrations, shared my reading of the statute – a level of support that has been rare in my professional career. 


The executive branch has also argued consistently over many years that common law immunity for foreign government officials survived passage of the FSIA. The Supreme Court in Samantar seemed to agree, but took pains to say very little about the scope of any such immunity. The Court acknowledged the existence of “specialized” or “position-based” immunities for diplomats, consuls and heads-of-state, and stated that “we do not doubt that in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official capacity.” The decision remanded the case to the District Court to consider any non-FSIA defenses, including whether Samantar “is entitled to immunity under the common law.”


Putting aside the issues likely to arise on remand in Samantar, a case on which I served as one of the counsel for the Respondents, a few points on where other cases may go from here:


Prior to Samantar, even in Circuits that followed Chuidian, the FSIA had not posed a significant hurdle to human rights cases because most cases followed the pattern of the lawsuit against Ferdinand Marcos, in which the Ninth Circuit applied Chuidian but found that Marcos’ acts of torture, execution, and disappearance “were clearly acts outside of his authority as President,” “were not taken within any official mandate,” and, as a result, were not protected by the FSIA.


A key issue for future cases will be to determine what law will govern the circumstances in which a suit will be deemed an “official capacity” suit for immunity purposes. Looking purely to the law of the foreign state, as interpreted by the government of that state, would pose a difficult conflict. I do not think, for example, that our courts will conclude that a foreign official accused of genocide can claim sovereign immunity based upon an assertion that, in committing the genocide, he or she was acting within the official policy of a foreign government. If the reach of official authority that will entitle an individual to assert immunity is governed at least in part by international law, government officials who have committed violations of widely accepted international human rights norms will not be protected by immunity. The Torture Victim Protection Act provides a model: The TVPA states clearly that some acts are tortious and subject to suit in U.S. courts when committed under color of foreign law.


Finally, the common law of immunity today is not necessarily identical to the common law of 1976. Since that time, relevant doctrines of U.S. law, domestic law in other countries, and international law have all evolved. Human rights norms have expanded greatly, along with international and domestic approaches to accountability. For example, statutory changes in the United States such as the TVPA would override pre-existing common law. Similarly, treaties and customary international law may impose obligations to hold accountable those who violate human rights that did not exist when the executive branch and the courts last addressed the immunity of foreign government officials.

Samantar Insta-Symposium: What Samantar Doesn’t Decide

by William S. Dodge

[We are grateful to continue our discussion on Samantar with a comment from Prof. William Dodge of the UC Hastings College of Law. Please keep following us for more thoughts in future posts and click “Related Posts” to see earlier contributions on this question.]


Like my colleague Chimene Keitner, I wrote an amicus brief supporting respondents (co-authored with Mike Ramsey), and I too am happy with the result in Samantar.


Although Curt Bradley’s post magnanimously notes that his position lost 9-0 in Samantar, it would be wrong to see the decision as a defeat for Curt and his co-author Jack Goldsmith. What they have succeeded in doing, despite the loss in Samantar, is to raise the issue of official immunity, which it is safe to predict will now be pleaded as a defense to many ATS and TVPA claims.


After Samantar, we know that the immunities of foreign officials (at least those not covered by treaties) are “properly governed by the common law.” I find it interesting that the Court never says “federal common law,” though I doubt anyone thinks the Court meant for the district court to apply the common law of Virginia on remand. Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421-27 (1964) (holding that the closely analogous act of state doctrine must be applied as a matter of federal common law).


One critical issue the district court will have to address is the relationship between the (federal) common law of immunity and customary international law. Curt’s post finds it remarkable, that the Court didn’t say more about international law, but as footnote 14 of the opinion points out, the Court didn’t have to say anything in order to decide this case. In fact, sovereign immunity has long been treated as a question of comity in the United States rather than as a question of customary international law. The Schooner Exchange v. McFaddon, 11 U.S. 116, 136-37, 146 (1812), says that immunity is based on consent and may be withdrawn. (The analysis of Schooner Exchange gets somewhat complicated because international law at the time recognized that some rules of the law of nations were optional, a topic Curt has also written about recently.) The Santissima Trinidad, 20 U.S. 283, 353 (1822), expressly states that sovereign immunity is a matter of “public comity and convenience” and modern decisions like Verlinden are to the same effect. Thus, even if the House of Lords decision in Jones were a relevant statement of customary international law (and Chimene’s brief does an able job of explaining why it is not), it would not necessarily be applied directly as common law.


Another critical issue is the role of the executive. The Court’s brief history of foreign sovereign immunity skips from 1812 to 1938, omitting a period during which the executive’s determinations of immunity were not treated as conclusive. See, e.g., Berizzi Bros. Co. v. The Pesaro, 271 U.S. 562 (1926). Most (perhaps all) of the modern cases deferring to the executive’s determinations of official immunity have involved diplomatic or head of state immunity. It is one thing for the President to determine under his power to send and receive ambassadors who is a diplomat or under his recognition power who is a head of state, but perhaps quite another to determine whether torture is an “official act” for which a defendant is entitled to immunity. The Solicitor General’s brief took the position that the immunity of foreign officials is governed by “principles adopted by the executive branch,” but it is not immediately obvious where the President gets this law-making power from.


In any event, Samantar should provide lots of grist for the law review mill.

Samantar Insta-Symposium: Recognizing Personal Responsibility

by Chimene Keitner

[In our continuing discussion of Samantar, we are very pleased to share the thoughts of Professor Chimene Keitner, of U.C. Hastings College of Law.  More comments to come soon.]

As counsel for Professors of Public International Law and Comparative Law as amici curiae in support of Respondents, I obviously agree with the Court’s disposition. As Opinio Juris readers know courtesy of Julian, I recently published a brief essay in YJIL Online that argues against reading the FSIA to encompass individuals as a matter of logic, policy, and international law. In my view, it is entirely appropriate that the Court read the FSIA as it was written, and left it to the district court to address Samantar’s claim of common law immunity in the first instance.

In arguing for immunity, Samantar seemed to take for granted that, if the FSIA applied to individuals, he would enjoy immunity for torture and extrajudicial killing. He argued that, both under the common law and the FSIA, “individual immunity … was coextensive with the law of state immunity and always immunized a foreign official for acts taken on behalf of the foreign state” (slip op. at 14). As a historical matter, this is demonstrably false. The Court correctly observed that “the relationship between a state’s immunity and an official’s immunity is more complicated than petitioner suggests” (slip op. at 15).

I do not think it is a fair criticism of the Court’s decision to say that it will invite further litigation because, even if the FSIA applied to individuals, one would still have to decide when to treat an individual as the foreign state. The only decision that would have precluded further litigation would have been one that ignored the long-standing principle that individuals can be personally responsible, both civilly and criminally, for certain conduct that is also attributable to the state.

I agree that Samantar will not open the floodgates to unrestricted ATS and TVPA cases against current and former officials. Status-based immunities shield many current officials from suit in U.S. court. Suits will be dismissed if the state is an indispensable party under Republic of Philippines v. Pimentel, 553 U.S. 851 (2008), or if the state is the real party in interest under the line of cases I discuss in the amicus brief (Section II.B). It is not contrary to a textual analysis of the FSIA to acknowledge that certain cases nominally brought against individuals will be dismissed on common law immunity grounds, such as those involving claims for breach of contract or entitlement to state funds.

What struck me most as I was doing research for the amicus brief, and that has led me to continue researching historical practice in this area, is the relative lack of scholarly or judicial attention to the contours of conduct-based immunity, as opposed to status-based immunity (or “position-based individual immunities,” slip op. at 13 n.12). I see it as a strength, rather than a weakness, that the Court abstains from pronouncing prematurely on this question. For example, my research indicates that the Solicitor General overstates the case for absolute executive deference to determinations of conduct-based (as opposed to status-based) immunity in its amicus brief by neglecting U.S. practice before the 1940s. I also take issue with characterizations of early U.S. practice and customary international law that suggest immunity is required for all conduct that involves state action, regardless of the nature of that conduct, as discussed in the amicus brief.

Kentucky v. Graham, 473 U.S. 159 (1985), does not suggest otherwise. The quoted language refers to a suit brought against an official in his or her official capacity, which by definition imposes direct financial liability on the state itself. It is well established in U.S. law that individual officials may be sued in their personal capacity for certain conduct performed under color of law. As the Supreme Court emphasized in Hafer v. Melo, which followed Kentucky v. Graham, “[p]ersonal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under color of state law.” 502 U.S. 21, 25 (1991). The Court futher observed: “The requirement of action under color of state law means that Hafer may be liable for  discharging respondents precisely because of her authority as auditor general. We cannot accept the novel proposition that this same official authority insulates Hafer from suit.” Id. at 27-28. The Court’s citation to Kentucky v. Graham in Samantar suggests that it finds this domestic law reasoning relevant to determining when a foreign state is the real party in interest. Moreover, as I discuss in the amicus brief and the YJIL Online essay, other courts have also focused on the nature of the relief requested to differentiate between personal capacity and official capacity suits.

This does not mean that, as soon as an official leaves office, he or she will face the prospect of a trial in U.S. court for any controversial decision taken on behalf of the state. Multiple filters, including status-based immunities, the requirement of personal jurisdiction, the act of state doctrine, the political question doctrine, the exhaustion requirement in the Torture Victim Protection Act, the limited class of actionable violations under the Alien Tort Statute as interpreted by Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), and others limit the number of cases that will actually go forward. To the extent that some continue to object to the use of U.S. courts to impose personal responsibility on individuals who commit serious international law violations, any filters that allow even a few cases to proceed will inevitably seem insufficient. However, re-inventing the law of immunity to create a categorical barrier to such cases is not warranted. In addition to misreading prior case law, categorical immunity would undermine Congress’s provision of civil remedies (e.g., in the Torture Victim Protection Act) and criminal penalties (e.g., in the Torture Convention Implementation Act and the Genocide Accountability Act) against individuals who are responsible for certain core violations. Individuals may be entitled to claim immunity in certain circumstances, but such claims must go beyond simply asserting that they acted on behalf of the state.

Samantar Insta-Symposium: Foreclosing “Official Capacity” Suits

by Roger Alford

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.

Samantar Insta-Symposium: Samantar and Foreign Official Immunity

by Curtis Bradley

[We are pleased to share comments on the U.S. Supreme Court’s decision yesterday in Samantar v. Yousuf from Professor Curtis Bradley, who has written a great deal on the issue considered by the Court yesterday.  We hope to share comments from other informed observers on the decision over the next couple of days ].

As I bask in the glow of not having a single Justice in Samantar accept the theory of the FSIA that Jack Goldsmith and I had proposed, the following thoughts occur to me:

1. The decision strikes me as a perfectly reasonable construction of the FSIA’s text. I’ve always liked and admired Justice Stevens, but I’ve also thought that he had a tendency sometimes to gravitate towards the eccentric. This decision, however, is very lawyerly and does a nice job of addressing most of the counter-arguments. It is easy to imagine that Stevens’ opinion might have persuaded some Justices who were leaning the other way, especially Justices committed to textualism.

2. Supporters of broad executive power should be pleased with the decision. The Court describes with approval the pre-FSIA practice whereby an executive suggestion of immunity would cause courts to “surrender their jurisdiction,” and it appears to view that executive authority as part of the “common law” regime that it says has been preserved for suits against foreign officials despite the enactment of the FSIA. The Court says, for example, that “[w]e have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in determinations regarding individual official immunity.”

3. Those who would describe this decision as a big victory for international human rights litigation are getting ahead of themselves. For a long time, the Filartiga line of cases simply ignored the issue of individual official immunity. That had started to change with some recent lower court cases (e.g., cases brought against Israeli officials), and now the issue will be front and center. The Court in Samantar emphasizes the “narrowness” of its holding and makes clear that it is deciding only the issue of the FSIA’s applicability. It also says that it “does not doubt that in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official capacity,” and it repeatedly suggests that the common law may offer immunity to individual officials. As noted above, the Court also seems to indicate that the executive branch can issue binding suggestions of immunity in suits against foreign officials. Finally, it says (somewhat surprisingly given its textual analysis of the FSIA), 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.”

4. The Court, like the executive branch in its amicus brief, says remarkably little about international law. Contrast that with the British House of Lords’ 2006 decision in Jones, where the court was faced with a similar statutory construction issue and focused extensively on the international law backdrop (and concluded that the Filartiga line of cases was in violation of the customary international law of immunity). Contrast it as well with Justice Stevens’ own opinion in Hamdan v. Rumsfeld, which relied heavily on international law in construing the Uniform Code of Military Justice.

5. Regardless of your views of the impact of the decision on executive power, human rights litigation, or international law, the decision is good for lawyers and law professors. With its undefined references to common law immunity, and its lack of clarification regarding the role of international law, the Court has invited years of litigation and law review articles. Amusingly, one of the reasons the Court cites for declining to construe the FSIA to cover foreign official immunity is that the courts that have adopted this construction “have had to develop, in the complete absence of any statutory text, rules governing when an official is entitled to immunity under the FSIA.” But now that is still going to happen, albeit this time with even less effort by courts to connect their decisions to the policy choices that Congress has made. For discussion of one of the many areas of likely debate in the coming years, see here.

ATS vs. FSIA, ATS wins?

by Duncan Hollis

I’m interrupting my current teaching assignment in Rome (a tough gig I know) to flag for reader’s the U.S. Supreme Court’s decision today in Samantar v. Yousef (see here).  As Julian noted in an earlier post, the question before the Court in this case was whether the Foreign Sovereign Immunities Act (FSIA) immunized foreign government officials for their official acts.  For human rights activists, however, the case had real import for the future of litigation under the Alien Tort Statute (ATS).  Simply put, the FSIA already makes it difficult to bring an ATS suit vs. a foreign state directly (barring the application of one of that statute’s exceptions to immunity).  If the FSIA were read to also afford immunity to foreign officials who commit international law violations, the pool of possible ATS defendants would be quite small indeed (and, ironically, might end up being limited primarily to non-state actors for their complicity in bad acts performed by the very state and government officials who had immunity under the FSIA). 

The Court today, however, declined to go down that road.  Instead, it found that the FSIA does not apply to foreign government offcials.  I’d welcome commentary on what folks think this means for the future of ATS suits or the FSIA itself.  My own first take, however, is a simple one, namely, that human rights activists should be breathing a huge sigh of relief tonight.  The Court had a chance here to gut the ATS, and it declined to do so.  Now, maybe foreign government officials will eventually find an alternative path to immunity (the Court, for example, declined to address the question of whether such officials qualify for common law immunities).  But, at least in the near term, it seems foreign government offiicals remain inside the potential ATS defendant pool.

Keitner Takes on Bradley/Goldsmith on Government Official Immunity

by Julian Ku

Prof. Chimene Keitner at UC-Hastings has posted a short essay in the online version of the Yale Journal of International Law criticizing the novel and influential interpretation of the Foreign Sovereign Immunities Act proposed by Profs. Curtis Bradley and Jack Goldsmith.  In a series of articles, Bradley and Goldsmith have argued that the FSIA’s immunity for “foreign state[s]” should be interpreted to include foreign government officials.  This argument may very well be adopted by the Supreme Court this term in Samantar v. Yousuf (for background, see here and for my take on oral argument, see here). Here is a summary of her critique:

Stated briefly, the observation that “a state acts through individuals” does not support Bradley and Goldsmith’s proposal as a matter of logic, because both U.S. and international law attribute personal responsibility to individuals for certain types of illegal conduct precisely because they engage in such conduct under color of law.  When a certain criterion defines conduct as illegal, it does not make sense for that same criterion to place individuals who have engaged in that conduct categorically beyond the reach of U.S. courts. Nor do policy considerations support Bradley and Goldsmith’s proposal. There are at least three reasons for this: the FSIA was not designed to include individuals, reading it to do so would conflict with the Torture Victim Protection Act, and various specialized  immunities and other non-statutory doctrines already afford substantial protections to foreign officials and to the interests of foreign states in U.S. courts. Finally, neither international treaties nor customary international law require treating all “official capacity suits” as suits against the state itself, without regard to the conduct at issue. It would be anomalous to find that international law categorically prevents states from holding individuals accountable for universally condemned violations of international law.

I still don’t know what I think about this issue. Hopefully, I’ll figure something out before the Supreme Court comes down with a decision, but perhaps not. In any event, it is always worth considering Chimene’s take on these things.

Square Pegs and Round Holes: Individuals and the FSIA

by Chimene Keitner

As Opinio Juris readers know, the U.S. Supreme Court heard arguments on Wednesday in the case of Samantar v. Yousuf (briefs and transcript available here), which asks the Court to interpret the 1976 Foreign Sovereign Immunities Act. Commentators, including OJ’s own Julian Ku, have reported that the Justices seemed “unconvinced by all sides” (Julian’s words) and that none of the lawyers “seemed to make a convincing case” (according to Lyle Denniston over at ScotusBlog). The Justices did not seem unconvinced about what the FSIA actually says. But they seemed to wish that it provided more guidance on a subject about which it is silent, namely, the various immunities that may be available to former foreign officials such as Samantar. The question now is whether they will interpret the FSIA as it is (leaving the question of individual immunities to be worked out by the lower courts in the first instance), or whether they will instead interpret the statute as they would like it to be.

When Congress passed the FSIA in 1976, it had a particular problem in front of it: the diplomatic pressures that were being brought to bear on the Executive Branch by foreign states who wanted the U.S. State Department to conclude that a given action was based upon a commercial activity, and that the foreign state or state entity was therefore immune from suit under the terms of the 1952 Tate Letter. But this suit for torture and extrajudicial killing was brought against Samantar, a former Somali official who now lives in Virginia, not against Somalia itself. As Justice Kennedy interjected after Samantar’s lawyer Shay Dvoretzky had barely introduced himself, “I’m having difficulty seeing how the issues as presented in the brief really resolve very much.” That is because, with respect to suits against individuals, the FSIA doesn’t resolve very much.

Does that mean that plaintiffs can simply circumvent state immunity by naming individuals as defendants? No. In certain cases, suits against individuals may well be the functional equivalent of suits against the state, in which case, as Justice Ginsburg emphasized, “[w]hether it’s injunctive relief or money relief, if the relief is against the state, obviously, you can’t dodge it by naming the officer.” But (again in Justice Ginsburg’s words) “this is a case seeking money out of the pocket of Samantar and no money from the treasury of Somalia.” Even though states necessarily act through individuals, individuals can be held accountable for their acts without violating the immunity of states for those same acts. (If a concern arises that adjudicating a particular claim would require invalidating the act of a foreign sovereign taken within its own territory, that can be resolved under the Act of State doctrine, as Justice Ginsburg and Justice Breyer emphasized at oral argument.) It would be bizarre to suggest that a U.S. court couldn’t impose consequences on an individual such as Charles “Chuckie” Taylor Jr. by sentencing him to prison for torture committed in Liberia just because Liberia itself would enjoy immunity for torture under the FSIA. The same is true of consequences in the form of civil remedies….

Samantar v. Yousef and the Mysteries of the Foreign Sovereign Immunities Act

by Julian Ku

The Foreign Sovereign Immunities Act of 1976 is perhaps the most important example of the U.S. Congress exercising its power to implement and interpret international law principles as part of domestic law.  It is a basic and foundational statute implicating almost all kinds of international litigation in the U.S.  And it is a statute which the Supreme Court (and lower courts) can’t get enough of.  Today, the U.S. Supreme Court heard oral arguments in Samantar v. Yousef, at least the third FSIA case the Court has taken in the past 7 years. The issue this time is whether a foreign government official is entitled to immunity under the FSIA for official acts.   I haven’t paid as much attention to this as I should have, but I plan to blog about it more later this week (here is Michael Granne’s original analysis from October). In the meantime, it is worth looking at the transcript of oral argumentSCOTUSBlog’s report on oral argument today as well as dueling podcasts from the counsel in the case.

There seem to be at least three possible results here.  Foreign government officials get immunity for official acts because they are “the state” or an “agency or instrumentality” of a state under the FSIA. The Court seemed skeptical of this (in that no justice seemed happy with it) Or such officials don’t, and the FSIA only protects government entities. No justice seemed to embrace this theory either, and Justice Breyer seemed skeptical.   Or they don’t, but they might be entitled to some common law immunity (this appears to be the U.S. Government’s view).  I don’t know how the Court would react to this approach, although it is always safe to bet against the Court deferring to the Executive, even this executive and even on matters related to foreign affairs.  The upshot: The Court seems unconvinced by all sides and may come up with its own result, thus confusing matters more.

Bradley and Goldsmith on Government Officials and the FSIA

by Roger Alford

Curtis Bradley and Jack Goldsmith have a nice piece in Green Bag on foreign sovereign immunity as applied to current and former government officials. The article tees up the issues that will be presented in Samantar v. Yousef. Here is a key part of their argument:

We agree with those courts that have concluded that suits against individual foreign officials are not easily accommodated within the “agency or instrumentality” language of the FSIA. There is, however, a better textual basis for applying the FSIA: these suits can be considered to be directed against the foreign state itself for purposes of the FSIA. Since a state acts through individuals, a suit against an individual official for actions carried out on behalf of the state is in reality a suit against the foreign state, even if that is not how the plaintiff captions his or her complaint. This approach is consistent with the FSIA’s definition of “foreign state,” which does not purport to be comprehensive, but rather simply “includes” various entities, including agencies and instrumentalities.

Bradley and Goldsmith then argue that this reading is consistent with (1) jurisprudence from the Ninth and Second Circuits; (2) the pre-FSIA common law approach; and (3) international law understandings of foreign sovereign immunity; and (4) the approach taken by foreign courts.

The arguments are persuasive and I would not at all be surprised if the Supreme Court follows an approach similar to this.

The other analogy that Bradley and Goldsmith do not reference but that I suspect will weigh heavily in the balance in Samantar is the approach taken in the domestic context with the Federal Tort Claims Act. Under the FTCA, if a suit is brought against a federal official for a common law tort, the federal official is dismissed from the suit and the federal government becomes the defendant.

If this approach is taken, then the debate will turn to whether government officials that engage in international law violations acted within the scope of their authority.

Are Former Government Officials Immune Under the FSIA?

by Michael Granne

[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.