699 F.3d 763 (4th Cir. 2012), 11-1479, Yousuf v. Samantar

Docket Nº:11-1479.
Citation:699 F.3d 763
Opinion Judge:TRAXLER, Chief Judge:
Party Name:Bashe Abdi YOUSUF; John Doe 1; John Doe 2; Aziz Deria, Plaintiffs-Appellees, v. Mohamed Ali SAMANTAR, Defendant-Appellant. and John Doe 3; John Doe 4; Jane Doe 1, Plaintiffs, United States of America, Amicus Supporting Appellees.
Attorney:Joseph Peter Drennan, Alexandria, Virginia, for Appellant. James Edward Tysse, Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, D.C., for Appellees. Lewis Yelin, United States Department of Justice, Washington, D.C., for Amicus Supporting Appellees. Natasha E. Fain, Center for Justice & Accoun...
Judge Panel:Before TRAXLER, Chief Judge, and KING and DUNCAN, Circuit Judges. Affirmed by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge KING and Judge DUNCAN joined.
Case Date:November 02, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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699 F.3d 763 (4th Cir. 2012)

Bashe Abdi YOUSUF; John Doe 1; John Doe 2; Aziz Deria, Plaintiffs-Appellees,

and

John Doe 3; John Doe 4; Jane Doe 1, Plaintiffs,

v.

Mohamed Ali SAMANTAR, Defendant-Appellant.

United States of America, Amicus Supporting Appellees.

No. 11-1479.

United States Court of Appeals, Fourth Circuit.

November 2, 2012

Argued: May 16, 2012.

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[Copyrighted Material Omitted]

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ARGUED:

Joseph Peter Drennan, Alexandria, Virginia, for Appellant.

James Edward Tysse, Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, D.C., for Appellees.

Lewis Yelin, United States Department of Justice, Washington, D.C., for Amicus Supporting Appellees.

ON BRIEF:

Natasha E. Fain, Center for Justice & Accountability, San Francisco, California; Patricia A. Millett, Steven H. Schulman, Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, D.C., for Appellees.

Harold Hongju Koh, Legal Adviser, Department of State, Washington, D.C.; Tony West, Assistant Attorney General,

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Douglas N. Letter, United States Department of Justice, Washington, D.C.; Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Amicus Supporting Appellees.

Before TRAXLER, Chief Judge, and KING and DUNCAN, Circuit Judges.

Affirmed by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge KING and Judge DUNCAN joined.

OPINION

TRAXLER, Chief Judge:

For the second time in this case, we are presented with the question of whether Appellant Mohamed Ali Samantar enjoys immunity from suit under the Torture Victim Protection Act of 1991 (" TVPA" ), see Pub.L. 102-256, 106 Stat. 73 (1992), 28 U.S.C. § 1350 note, and the Alien Tort Statute (" ATS" ), see 28 U.S.C. § 1350. In the previous appeal, we rejected Samantar's claim to statutory immunity under the Foreign Sovereign Immunities Act (" FSIA" ), see 28 U.S.C. §§ 1602-1611, but held open the possibility that Samantar could " successfully invoke an immunity doctrine arising under pre-FSIA common law." Yousuf v. Samantar, 552 F.3d 371, 383-84 (4th Cir.2009). The Supreme Court affirmed our reading of the FSIA and likewise suggested Samantar would have the opportunity to assert common law immunity on remand. See Samantar v. Yousuf, __ U.S. __, 130 S.Ct. 2278, 2293, 176 L.Ed.2d 1047 (2010) (noting that the viability of a common law immunity defense was a " matter[ ] to be addressed in the first instance by the District Court" ).

On remand to the district court, Samantar sought dismissal of the claims against him based on common law immunities afforded to heads of state and also to other foreign officials for acts performed in their official capacity. The district court rejected his claims for immunity and denied the motion to dismiss. See Yousuf v. Samantar, 2011 WL 7445583 (E.D.Va. Feb. 15, 2011). For the reasons that follow, we agree with the district court and affirm its decision.

I.

Because our previous opinion recounted the underlying facts at length, see Samantar, 552 F.3d at 373-74, we will provide only a brief summary here. Samantar was a high-ranking government official in Somalia while the military regime of General Mohamed Barre held power from about 1969 to 1991. Plaintiffs are natives of Somalia and members of the " prosperous and well-educated Isaaq clan, which the [Barre] government viewed as a threat." Id. at 373. Plaintiffs allege that they, or members of their families, were subjected to " torture, arbitrary detention and extrajudicial killing" by government agents under the command and control of Samantar, who served as " Minister of Defense from January 1980 to December 1986, and as Prime Minister from January 1987 to September 1990." Id. at 374 (internal quotation marks omitted). Following the collapse of the Barre regime in January 1991, Samantar fled Somalia for the United States. He now resides in Virginia as a permanent legal resident. Two of the plaintiffs also reside in the United States, having become naturalized citizens.

Plaintiffs brought a civil action against Samantar under the TVPA and the ATS. See 28 U.S.C. § 1350 and note. Samantar moved to dismiss plaintiffs' claims on the ground that he was immune from suit under the FSIA, and the district court dismissed the case. This court reversed, however, concluding that the FSIA applies

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to sovereign states but not " to individual foreign government agents." Samantar, 552 F.3d at 381. We remanded the case for the district court to consider whether Samantar could " successfully invoke an immunity doctrine arising under pre-FSIA common law." Id. at 383-84.

The Supreme Court granted Samantar's petition for certiorari and affirmed our decision, holding that the FSIA— based on its text, purpose and history— governs only foreign state sovereign immunity, not the immunity of individual officials. See Samantar, 130 S.Ct. at 2289 (" Reading the FSIA as a whole, there is nothing to suggest we should read ‘ foreign state’ in § 1603(a) to include an official acting on behalf of the foreign state, and much to indicate that this meaning was not what Congress enacted." ). It is now clear after Samantar that the common law, not the FSIA, governs the claims to immunity of individual foreign officials. See id. at 2292 (" [W]e think this case, in which respondents have sued [Samantar] 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 foreign state as the [FSIA] defines that term." ).

On remand, Samantar renewed his motion to dismiss based on two common law immunity doctrines. First, Samantar alleged he was entitled to head-of-state immunity because at least some of the alleged wrongdoing occurred while Samantar was Prime Minister. Second, Samantar sought foreign official immunity on the basis that any actions for which the plaintiffs sought to hold him responsible were taken in the course and scope of his official duties.

The district court renewed its request to the State Department for a response to Samantar's immunity claims. Despite having remained silent during Samantar's first appeal, the State Department here took a position expressly opposing immunity for Samantar. The United States submitted to the district court a Statement of Interest (SOI) announcing that the Department of State, having considered " the potential impact of such a[n] [immunity] decision on the foreign relations interests of the United States," J.A. 73, had determined that Samantar was not entitled to immunity from plaintiffs' lawsuit. The SOI indicated that two factors were particularly important to the State Department's determination that Samantar should not enjoy immunity. First, the State Department concluded that Samantar's claim for immunity was undermined by the fact that he " is a former official of a state with no currently recognized government to request immunity on his behalf," or to take a position as to " whether the acts in question were taken in an official capacity." J.A. 71. Noting that " [t]he immunity protecting foreign officials for their official acts ultimately belongs to the sovereign rather than the official," J.A. 71, the government reasoned that Samantar should not be afforded immunity " [i]n the absence of a recognized government ... to assert or waive [Samantar's] immunity," J.A. 73. Second, Samantar's status as a permanent legal resident was particularly relevant to the State Department's immunity determination. According to the SOI, " U.S. residents like Samantar who enjoy the protections of U.S. law ordinarily should be subject to the jurisdiction of our courts, particularly when sued by U.S. residents" or naturalized citizens such as two of the plaintiffs. J.A. 71.

The district court denied Samantar's motion to dismiss, apparently viewing the Department of State's position as controlling and surrendering jurisdiction over the issue to the State Department: " The government has determined that the defendant

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does not have foreign official immunity. Accordingly, defendant's common law sovereign immunity defense is no longer before the Court, which will now proceed to consider the remaining issues in defendant's Motion to Dismiss." Samantar, 2011 WL 7445583, at *1. But, in denying Samantar's subsequent motion to reconsider, the district court implied that it performed its own analysis and merely took the State Department's view into account: " The Executive Branch has spoken on this issue and ... [is] entitled to a great deal of deference. They don't control but they are entitled to deference in this case. " J.A. 81 (emphasis added). The district court noted that both " the residency of the defendant" and " the lack of a recognized government" were factors properly considered in the immunity calculus. J.A. 82.

Samantar immediately appealed the district court's denial of common law immunity.1 Samantar advances a two-fold argument. First, he contends that the order denying him immunity cannot stand because the district court improperly deferred to the Department of State and abdicated its duty to independently assess his immunity claim. In contrast to the view offered by the United States in its amicus brief that the State Department is owed absolute deference from the courts on any question of foreign sovereign immunity, Samantar claims that deference to the Executive's immunity determination is appropriate only when the State Department recommends that immunity be granted. Second, Samantar argues that under the common law, he is entitled to immunity for all actions taken within the scope of his duties and in his capacity as a foreign government official, and that he is immune to any claims alleging wrongdoing while he was the Somali Prime Minister. We address these arguments below.

II.

Before proceeding further, we must decide the appropriate level of deference courts should give...

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