Samantar v. Yousuf, No. 08–1555.

CourtUnited States Supreme Court
Writing for the CourtJustice STEVENS delivered the opinion of the Court.
Citation176 L.Ed.2d 1047,130 S.Ct. 2278,560 U.S. 305
Decision Date01 June 2010
Docket NumberNo. 08–1555.
PartiesMohamed Ali SAMANTAR, Petitioner, v. Bashe Abdi YOUSUF et al.

560 U.S. 305
130 S.Ct.
2278
176 L.Ed.2d 1047

Mohamed Ali SAMANTAR, Petitioner,
v.
Bashe Abdi YOUSUF et al.

No. 08–1555.

Supreme Court of the United States

Argued March 3, 2010.
Decided June 1, 2010.


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

Justice STEVENS delivered the opinion of the Court.

560 U.S. 308

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,

130 S.Ct. 2283

28 U.S.C. § 1350. Petitioner, who was in charge of Somalia's armed forces before its military

560 U.S. 309

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 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 scope of his authority.’ ” Id., at 47a (quoting Velasco v. Government of Indonesia, 370 F.3d 392, 398, 399 (C.A.4 2004)). The court rejected respondents' argument that petitioner was necessarily

560 U.S. 310

acting beyond the scope of his authority because he allegedly violated international law.3

The Court of Appeals reversed, rejecting the District Court's ruling that the FSIA governs petitioner's immunity from suit. It acknowledged “the majority view” among the Circuits that “the FSIA applies to individual officials of a foreign state.” 552 F.3d 371, 378 (C.A.4 2009).4 It disagreed

130 S.Ct. 2284

with that view, however, and concluded, “based on the language and structure of the statute, that the FSIA does not apply to individual foreign government agents like [petitioner].” Id., at 381.5 Having found that the FSIA does not

560 U.S. 311

govern whether petitioner enjoys immunity from suit, the Court of Appeals remanded the case for further proceedings, including a determination of whether petitioner is entitled to immunity under the common law. Id., at 383–384. We granted certiorari. 557 U.S. ––––, 130 S.Ct. 49, 174 L.Ed.2d 632 (2009).

II

The doctrine of foreign sovereign immunity developed as a matter of common law long before the FSIA was enacted in 1976. In Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983), we explained that in Schooner Exchange v. McFaddon, 7 Cranch 116, 3 L.Ed. 287 (1812), “Chief Justice Marshall concluded that ... the United States had impliedly waived jurisdiction over certain activities of foreign sovereigns.” The Court's specific holding in Schooner Exchange was that a federal court lacked jurisdiction over “a national armed vessel ... of the emperor of France,” id., at 146, but the opinion was interpreted as extending virtually absolute immunity to foreign sovereigns as “a matter of grace and comity,” Verlinden, 461 U.S., at 486, 103 S.Ct. 1962.

Following Schooner Exchange, a two-step procedure developed for resolving a foreign state's claim of sovereign immunity, typically asserted on behalf of seized vessels. See, e.g., Republic of Mexico v. Hoffman, 324 U.S. 30, 34–36, 65 S.Ct. 530, 89 L.Ed. 729 (1945); Ex parte Peru, 318 U.S. 578, 587–589, 63 S.Ct. 793, 87 L.Ed. 1014 (1943); Compania Espanola de Navegacion Maritima, S.A. v. The Navemar, 303 U.S. 68, 74–75, 58 S.Ct. 432, 82 L.Ed. 667 (1938). Under that procedure, the diplomatic representative of the sovereign could request a “suggestion of immunity” from the State Department. Ex parte Peru, 318 U.S., at 581, 63 S.Ct. 793. If the request was granted, the district court surrendered its jurisdiction. Id., at 588, 63 S.Ct. 793; see also Hoffman, 324 U.S., at 34, 65 S.Ct. 530. But “in the absence of recognition of the immunity by the Department of State,” a district court “had authority to decide for itself whether all the requisites for such immunity existed.” Ex parte Peru, 318 U.S., at 587, 63 S.Ct. 793; see also Compania Espanola, 303 U.S., at 75, 58 S.Ct. 432 (approving judicial inquiry into sovereign

560 U.S. 312

immunity when the “Department of State ... declined to act”); Heaney v. Government of Spain, 445 F.2d 501, 503, and n. 2 (C.A.2 1971) (evaluating sovereign immunity when the State Department had not responded to a request for its views). In making that decision, a district court inquired “whether the ground of immunity is one which it is the established policy of the [State Department] to recognize.” Hoffman, 324 U.S., at 36, 65 S.Ct. 530. Although cases involving individual foreign officials as defendants were rare, the same two-step procedure was typically followed when a foreign

130 S.Ct. 2285

official asserted immunity. See, e.g., Heaney, 445 F.2d, at 504–505; Waltier v. Thomson, 189 F.Supp. 319 (S.D.N.Y.1960).6

Prior to 1952, the State Department followed a general practice of requesting immunity in all actions against friendly sovereigns, but in that year the Department announced its adoption of the “restrictive” theory of sovereign immunity. Verlinden, 461 U.S., at 486–487, 103 S.Ct. 1962; see also Letter from Jack B. Tate, Acting Legal Adviser, Department of State, to Acting Attorney General Philip B. Perlman (May 19, 1952), reprinted in 26 Dept. State Bull. 984–985 (1952). Under this theory, “immunity is confined to suits involving the foreign sovereign's public acts, and does not extend to cases arising out of a foreign state's strictly commercial...

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358 practice notes
  • Kirtsaeng v. Wiley, No. 11–697.
    • United States
    • U.S. Supreme Court
    • March 19, 2013
    ...governed by the common law,” it is presumed that “Congress intended to retain the substance of the common law.” Samantar v. Yousuf, 560 U.S. 305, ––––, 130 S.Ct. 2278, 176 L.Ed.2d 1047. The common-law “first sale” doctrine, which has an impeccable historic pedigree, makes no geographical di......
  • Ashton v. Al Qaeda Islamic Army (In re Terrorist Attacks On Sept. 11, 2001), 03–MDL–1570(GBD)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 28, 2018
    ...III "), 538 F.3d 71, 80 (2d Cir. 2008) (quotation marks and alterations omitted), abrogated on other grounds by Samantar v. Yousuf, 560 U.S. 305, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010) ; see also MMA Consultants 1, Inc. v. Republic of Peru, 245 F.Supp.3d 486, 497 (S.D.N.Y. 2017) ("When res......
  • European Cmty. ex rel. Member States It Has Power to Represent v. RJR Nabisco, Inc., Docket No. 11–2475–cv.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 20, 2014
    ...satisfied. See In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 85 (2d Cir.2008), abrogated on other grounds by Samantar v. Yousuf, 560 U.S. 305, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010). The European Community satisfies four of these factors and, very likely, also the fifth: it was c......
  • Lantheus Med. Imaging, Inc. v. Zurich Am. Ins. Co., No. 10 Civ. 9371(JPO)(JLC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 11, 2012
    ...mid-twentieth century, superseding the complete, or “absolute,” immunity that previously existed. See Samantar v. Yousuf, ––– U.S. ––––, 130 S.Ct. 2278, 2284–86, 176 L.Ed.2d 1047 (2010) (outlining evolution of foreign sovereign immunity principles). For example, under this restrictive theor......
  • Request a trial to view additional results
355 cases
  • Kirtsaeng v. Wiley, No. 11–697.
    • United States
    • U.S. Supreme Court
    • March 19, 2013
    ...governed by the common law,” it is presumed that “Congress intended to retain the substance of the common law.” Samantar v. Yousuf, 560 U.S. 305, ––––, 130 S.Ct. 2278, 176 L.Ed.2d 1047. The common-law “first sale” doctrine, which has an impeccable historic pedigree, makes no geographical di......
  • Ashton v. Al Qaeda Islamic Army (In re Terrorist Attacks On Sept. 11, 2001), 03–MDL–1570(GBD)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 28, 2018
    ...III "), 538 F.3d 71, 80 (2d Cir. 2008) (quotation marks and alterations omitted), abrogated on other grounds by Samantar v. Yousuf, 560 U.S. 305, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010) ; see also MMA Consultants 1, Inc. v. Republic of Peru, 245 F.Supp.3d 486, 497 (S.D.N.Y. 2017) ("When res......
  • European Cmty. ex rel. Member States It Has Power to Represent v. RJR Nabisco, Inc., Docket No. 11–2475–cv.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 20, 2014
    ...satisfied. See In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 85 (2d Cir.2008), abrogated on other grounds by Samantar v. Yousuf, 560 U.S. 305, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010). The European Community satisfies four of these factors and, very likely, also the fifth: it was c......
  • Lantheus Med. Imaging, Inc. v. Zurich Am. Ins. Co., No. 10 Civ. 9371(JPO)(JLC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 11, 2012
    ...mid-twentieth century, superseding the complete, or “absolute,” immunity that previously existed. See Samantar v. Yousuf, ––– U.S. ––––, 130 S.Ct. 2278, 2284–86, 176 L.Ed.2d 1047 (2010) (outlining evolution of foreign sovereign immunity principles). For example, under this restrictive theor......
  • Request a trial to view additional results
2 firm's commentaries
  • This Week At The Ninth: Sovereign Immunity And Plausible Defamation
    • United States
    • Mondaq United States
    • November 16, 2021
    ...states" is the exclusive means for entities to claim foreign sovereign immunity. The Supreme Court's holding in Samantar v. Yousuf, 560 U.S. 305 (2010) that individual foreign officials are not subject to the FSIA does not defeat this interpretation because the FSIA did not address, at all,......
  • This Week At The Ninth: Sovereign Immunity And Plausible Defamation
    • United States
    • Mondaq United States
    • November 16, 2021
    ...states" is the exclusive means for entities to claim foreign sovereign immunity. The Supreme Court's holding in Samantar v. Yousuf, 560 U.S. 305 (2010) that individual foreign officials are not subject to the FSIA does not defeat this interpretation because the FSIA did not address, at all,......
2 books & journal articles
  • A Canary in a Coal Mine: What We Haven’t Learned From Deepwater Horizon and How Courts Can Help
    • United States
    • Georgetown Environmental Law Review Nbr. 33-1, October 2020
    • October 1, 2020
    ...the risk of harming others, as opposed to unheedful of it.”367 Although common law does not control law.’” (quoting Samantar v. Yousuf, 560 U.S. 305, 320 n.13 (2010))); Evans v. United States, 504 U.S. 255, 259 (1992) (“[A] statutory term is generally presumed to have its common-law meaning......
  • The Missing D in U.s. Foreign Relations Law
    • United States
    • Georgetown Law Journal Nbr. 109-5, June 2021
    • June 1, 2021
    ...Austl. Bank Ltd., 561 U.S. 247, 265 (2010) (constraining the extraterritorial application of U.S. securities law); Samantar v. Yousuf, 560 U.S. 305, 314–15 (2010) (concluding that the Foreign Sovereign Immunity Act does not govern foreign off‌icial immunity); Boumediene v. Bush, 553 U.S. 72......

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