560 U.S. 305 (2010), 08-1555, Samantar v. Yousuf

Docket Nº:08-1555
Citation:560 U.S. 305, 130 S.Ct. 2278, 176 L.Ed.2d 1047, 78 U.S.L.W. 4460
Opinion Judge:Stevens Justice.
Party Name:MOHAMED ALI SAMANTAR, Petitioner v. BASHE ABDI YOUSUF et al
Attorney:Shay Dvoretzky argued the cause for petitioner. Patricia A. Millett argued the cause for respondent. Edwin S. Kneedler argued the cause for the United States, as amicus curiae, by special leave of court.
Judge Panel:Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Alito, and Sotomayor, JJ., joined. Alito, J., filed a concurring opinion, post, p.___. Thomas, J., filed an opinion concurring in part and concurring in the judgment, post, p.___. Scalia, J., ...
Case Date:June 01, 2010
Court:United States Supreme Court
 
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560 U.S. 305 (2010)

130 S.Ct. 2278, 176 L.Ed.2d 1047, 78 U.S.L.W. 4460

MOHAMED ALI SAMANTAR, Petitioner

v.

BASHE ABDI YOUSUF et al

No. 08-1555

United States Supreme Court

June 1, 2010

Argued March 3, 2010.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.

Affirmed and remanded.

DECISION: Foreign Sovereign Immunities Act (28 U.S.C.S. §§1330, 1602 et seq.) held not to govern determination of asserted immunity of former official of Somalia from federal-court damages suit based on his actions allegedly taken in former official capacity.

SYLLABUS

[130 S.Ct. 2280] Respondents, who were persecuted by the Somali government during the 1980's, filed a damages action alleging that petitioner, who then held high-level government positions, exercised command and control over the military forces committing the abuses; that he knew or should have known of these acts; and that he aided and abetted in their commission. The District Court concluded that it lacked subject-matter jurisdiction and granted petitioner's motion to dismiss the suit, resting its decision on the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), which provides that a "foreign state shall be immune from the jurisdiction" of both [176 L.Ed.2d 1055] federal and state courts except as provided in the Act, 28 U.S.C. § 1604. The Fourth Circuit reversed, holding that the FSIA does not apply to officials of a foreign state.

Held:

The FSIA does not govern petitioner's claim of immunity. Pp. ___-___, 176 L.Ed.2d, at 1058-1067.

(a) Under the common-law doctrine of foreign sovereign immunity, see Schooner Exchange v. McFaddon, 11 U.S. 116, 7 Cranch 116, 3 L.Ed. 287, if the State Department granted a sovereign's diplomatic request for a "suggestion of immunity," the district court surrendered its jurisdiction, Ex parte Peru, 318 U.S. 578, 581, 587, 63 S.Ct. 793, 87 L.Ed. 1014 . If the State Department refused, the court could decide the immunity issue itself. Id., at 587, 63 S.Ct. 793, 87 L.Ed. 1014. In 1952, the State Department moved from a policy of requesting immunity in most actions against friendly sovereigns to a "restrictive" theory that confined immunity [130 S.Ct. 2281] "to suits involving the foreign sovereign's public acts." Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 487, 103 S.Ct. 1962, 76 L.Ed.2d 81. Inconsistent application of sovereign immunity followed, leading to the FSIA, whose primary purposes are (1) to endorse and codify the restrictive theory, and (2) to transfer primary responsibility for deciding "claims of foreign states to immunity" from the State Department to the courts. § 1602. This Act now governs the determination whether a foreign state is entitled to sovereign immunity. Pp. ___-___, 176 L.Ed.2d, at 1058-1060.

(b) Reading the FSIA as a whole, there is nothing to suggest that "foreign state" should be read to include an official acting on behalf of that state. The Act specifies that a foreign state "includes a political subdivision . . . or an agency or instrumentality" of that state, § 1603(a), and specifically delimits what counts as an "agency or instrumentality,"

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§ 1603(b). Textual clues in the "agency or instrumentality" definition--"any entity" matching three specified characteristics, ibid.--cut against reading it to include a foreign official. "Entity" typically refers to an organization; and the required statutory characteristics--e.g., "separate legal person," § 1603(b)(1) --apply awkwardly, if at all, to individuals. Section 1603(a)'s "foreign state" definition is also inapplicable. The list set out there, even if illustrative rather than exclusive, does not suggest that officials are included, since the listed defendants are all entities. The Court's conclusion is also supported by the fact that Congress expressly mentioned officials elsewhere in the FSIA when it wished to count their acts as equivalent to those of the foreign state. Moreover, other FSIA provisions--e.g., § 1608(a) --point away from reading "foreign state" to include foreign officials. Pp. ___-___, 176 L.Ed.2d, at 1060-1063.

(c) The FSIA's history and purposes also do not support petitioner's argument that the Act governs his immunity claim. There is little reason to presume that when Congress codified state immunity, it intended to codify, sub silentio, official immunity. The canon of construction that statutes should be interpreted consistently with the common law does not help decide the question whether, when a statute's coverage is ambiguous, Congress intended it to govern a particular field. State and official immunities may not be coextensive, and historically, the Government has suggested common-law immunity for individual officials even when the foreign state [176 L.Ed.2d 1056] did not qualify. Though a foreign state's immunity may, in some circumstances, extend to an individual for official acts, it does not follow that Congress intended to codify that immunity in the FSIA. Official immunity was simply not the problem that Congress was addressing when enacting that Act. The Court's construction of the Act should not be affected by the risk that plaintiffs may use artful pleading to attempt to select between application of the FSIA or the common law. This case, where respondents have sued petitioner in his personal capacity and seek damages from his own pockets, is governed by the common law because it is not a claim against a foreign state as defined by the FSIA. Pp. ___-___, 176 L.Ed.2d, at 1063-1067.

(d) Whether petitioner may be entitled to common-law immunity and whether he may have other valid defenses are matters to be addressed in the first instance by the District Court. P. ___, 176 L.Ed.2d, at 1067.

552 F.3d 371, affirmed and remanded.

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Shay Dvoretzky argued the cause for petitioner.

Patricia A. Millett argued the cause for respondent.

Edwin S. Kneedler argued the cause for the United States, as amicus curiae, by special leave of court.

Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Alito, and Sotomayor, JJ., joined. Alito, J., filed a concurring opinion, post, p.___. Thomas, J., filed an opinion concurring in part and concurring in the judgment, post, p.___. [130 S.Ct. 2282] Scalia, J., filed an opinion concurring in the judgment, post, p.___.

OPINION

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Stevens Justice.

From 1980 to 1986 petitioner Mohamed Ali Samantar was the First Vice President and Minister of Defense of Somalia, and from 1987 to 1990 he served as its Prime Minister. Respondents are natives of Somalia who allege that they, or members of their families, were the victims of torture and extrajudicial killings during those years. They seek damages from petitioner based on his alleged authorization of those acts. The narrow question we must decide is whether the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), 28 U.S.C. §§ 1330, 1602 et seq., provides petitioner with immunity from suit based on actions taken in his official capacity. We hold that the FSIA does not govern the determination of petitioner's immunity from suit.

I

Respondents are members of the Isaaq clan, which included well-educated and prosperous Somalis who were subjected to systematic persecution during the 1980's by the military regime then governing Somalia. They allege that petitioner exercised command and control over members of the Somali military forces who tortured, killed, or arbitrarily detained them or members of their families; that petitioner knew or should have known of the abuses perpetrated by his subordinates; and that he aided and abetted the commission of these abuses.1 Respondents' complaint sought damages from petitioner pursuant to the Torture Victim Protection [176 L.Ed.2d 1057] Act of 1991, 106 Stat. 73, note following 28 U.S.C. § 1350, and the Alien Tort Statute, 28 U.S.C. § 1350. [130 S.Ct. 2283] Petitioner, who was in charge of Somalia's Armed Forces before its military

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regime collapsed, fled Somalia in 1991 and is now a resident of Virginia. The United States has not recognized any entity as the government of Somalia since the fall of the military regime. See Brief for United States as Amicus Curiae 4.

Respondents filed their complaint in November 2004, and petitioner promptly moved to dismiss. The District Court stayed the proceedings to give the State Department an opportunity to provide a statement of interest regarding petitioner's claim of sovereign immunity. Each month during the ensuing two years, petitioner advised the court that the State Department had the matter " 'still under consideration.' No. 1:04cv1360, 2007 U.S. Dist. LEXIS 56227 (ED Va., Aug. 1, 2007), App. to Pet. for Cert. 44a. In 2007, having received no response from the State Department, the District Court reinstated the case on its active docket. The court concluded that it did not have subject-matter jurisdiction and granted petitioner's motion to dismiss.

The District Court's decision rested squarely on the FSIA.2 The FSIA provides that a "foreign state shall be immune from the jurisdiction" of both federal and state courts except as provided in the Act, 28 U.S.C. § 1604, and the District Court noted that none of the parties had argued that any exception was applicable, App. to Pet. for Cert. 46a-47a. Although characterizing the statute as silent on its applicability to the officials of a foreign state, the District Court followed appellate decisions holding that a foreign state's sovereign immunity under the Act extends to " 'an individual acting in his official capacity on behalf of a foreign state,' " but not to " 'an official who acts beyond the...

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