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

Docket Nº:08-1555.
Citation:___ U.S. ___, 130 S.Ct. 2277
Opinion Judge:STEVENS, Justice.
Party Name:Mohamed Ali SAMANTAR, Petitioner, v. Bashe Abdi YOUSUF et al.
Attorney:Shay Dvoretzky, Washington, DC, for petitioner. Patricia A. Millett, Washington, DC, for respondents. Edwin S. Kneedler, for the United States as amicus curiae, by special leave of the Court, supporting the respondents. Julian H. Spirer, Fred B. Goldberg, Spirer & Goldberg, P.C, Bethesda, MD, Mic...
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. Thomas, J., filed an opin
Case Date:June 01, 2010
Court:United States Supreme Court
 
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Page _

___ U.S. ___ (2010)

130 S.Ct. 2277

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 NO. 08–1555.

[130 S.Ct. 2280] Syllabus[*]

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 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. 2284-2293.

(a) Under the common-law doctrine of foreign sovereign immunity, see Schooner Exchange v. McFaddon, 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. 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. 2284 - 2285.

(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, " §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. 2285 - 2289.

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 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. 2289 - 2292.

(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. 2292-2293.

552 F.3d 371, affirmed and remanded.

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. Thomas, J., filed an opin­ion concurring in part and concurring in the judgment. Scalia [130 S.Ct. 2282], J., filed an opinion concurring in the judgment.

Shay Dvoretzky, Washington, DC, for petitioner.

Patricia A. Millett, Washington, DC, for respondents.

Edwin S. Kneedler, for the United States as amicus curiae, by special leave of the Court, supporting the respondents.

Julian H. Spirer, Fred B. Goldberg, Spirer & Goldberg, P.C, Bethesda, MD, Michael A. Carvin (Counsel of Record), Shay Dvoretzky, David J. Strandness, Paul V. Lettow, Jones Day, Washington, DC, for Petitioner.

Pamela S. Karlan, Jeffrey L. Fisher, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, Beth Stephens, Pamela M. Merchant, Andrea C. Evans, Natasha E. Fain, L. Kathleen Roberts, San Francisco, CA, Amy Howe, Kevin K. Russell, Howe & Russell, P.C, Bethesda, MD, Patricia A. Millett, Counsel of Record, Mark J. MacDougall, Thomas C. Goldstein, Steven Schulman, Lauren Kerwin, Akin, Gump, Strauss, Hauer & Feld LLP, Washington, DC, Robert R. Vieth, Lori R. E. Ploeger, Maureen P. Alger, Kyle C. Wong, Cooley Godward Kronish LLP, Reston, VA, for Respondents.

OPINION

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 Act of 1991, 106 Stat. 73, note following 28 U.S.C. §1350, and the Alien Tort Statute, 28 [130 S.Ct. 2283] U.S.C. §1350. Petitioner, who was in charge of Somalia's armed forces before its military 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 (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...

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