Samantar v Yousuf

Petitioner Mohamed Ali Samantar was the First Vice President and Minister of Defense of Somalia, and later the Prime Minister. Respondents were natives of Somalia who alleged that they, or members of their families, were the victims of torture and extrajudicial killings during those years and sought damages from petitioner based on his alleged authorization of those acts. The question to be decided was whether the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), 28 U. S. C. §§1330, 1602 et seq., provided petitioner with immunity from suit based on actions taken in his official capacity.

Respondents further alleged 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. Respondents’ complaint also sought damages from petitioner pursuant to the Torture Victim Protection Act of 1991 and the Alien Tort Statute. Petitioner fled Somalia in 1991 and was now a resident of Virginia.

Respondents filed their complaint in November 2004,and petitioner 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. But having received no response the district court heard the matter and resting on the FISA concluded that it did not have subject-matter jurisdiction and granted petitioner’s motion to dismiss.

FSIA provide 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. It also rejected respondents’ argument that petitioner was necessarily acting beyond the scope of his authority because he allegedly violated international law. But the Court of Appeals reversed, rejecting the District Court’s ruling that the FSIA governs petitioner’s immunity from suit and held that the FSIA does not 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.

Discussing the practice, the Supreme Court held that 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 so that immunity was to be 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 acts.

Section 1602 describe the Act’s two primary purposes: (1) to endorse and codify the restrictive theory of sovereign immunity, and (2) to transfer primary responsibility for deciding “claims of foreign states to immunity” from the State Department to the courts. After the enactment of the FSIA, the Act—and not the pre-existing common law—indisputably govern the determination of whether a foreign state is entitled to sovereign immunity.

Now the question to be answered was whether the Act also covered the immunity claims of foreign officials. The FSIA provide that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States” except as provided in the Act. §1604. Thus, if a defendant is a “foreign state” within the meaning of the Act, then the defendant is immune from jurisdiction unless one of the exceptions in the Act applies.

The Act define “foreign state” in §1603 as follows: “(a) A ‘foreign state’ . . . includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).

“(b) An ‘agency or instrumentality of a foreign state’ means any entity—

           “(1) which is a separate legal person, corporate or otherwise, and

“(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and

“(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title, nor created under the laws of any third country.”

Petitioner argued that either “foreign state,” §1603(a), or “agency or instrumentality,” §1603(b), could be read to include a foreign official.

The court held that Congress expressly mentioned officials elsewhere in the FSIA when it wished to count their acts as equivalent to those of the foreign state, which suggested that officials are not included within the term “foreign state.” It also rejected the argument of the Petitioner that a suit against an official must always be equivalent to a suit against the state because acts taken by a state official on behalf of a state are to be considerd acts ofthe state. Even the legislative history pointed toward an intent to leave official immunity outside the scope of the Act.

It further held that even if a suit is not governed by the Act, 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. Even when a plaintiff names only a foreign official, it may be the case that the foreign state itself, its political subdivision, or an agency or instrumentality is a required party, because that party has “an interest relating to the subject of the action” and “disposing of the action in the person’s absence may . . . as a practical matter impair or impede the person’s ability to protect the interest. If this is the case, and the entity is immune  from suit under the FSIA, the district court may have to dismiss the suit, regardless of whether the official is immune or not under the common law.”

As respondents in the case had sued petitioner in his personal capacity and seek damages from his own pockets, it was  properly governed by the common law because it is not a claim against a foreign state. Although Congress clearly intended to supersede the common-law regime for claims against foreign states, the court found nothing in the statute’s origin or aims to indicate that Congress similarly wanted to codify the law of foreign official immunity.

The Act therefore did not deprive the District Court of subject-matter jurisdiction.  Whether petitioner may be entitled to immunity under the common law, and whether he may have other valid defenses to the grave charges against him, were left to be decided by the District Court on remand.