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Published online by Cambridge University Press: 27 February 2017
* This text was reproduced and reformatted from the text available at the U.S. Supreme Court website (visited October 6, 2010) http://www.supremecourt.gov/opinions/09pdf/08-1555.pdf.
1 Samantar v. Yousuf, 130 S. Ct. 2278 (2010).
2 Foreign Sovereign Immunities Act, 28 U.S.C.S. §§ 1330, 1602 (1976) [hereinafter FSIA].
3 Alien Tort Statute, 28 U.S.C. § 1330.
4 Torture Victim Protection Act of 1991, 106 Stat. 73, note following 28 U.S.C. § 1350.
5 FSIA, supra note 2, § 1602.
6 Id. § 1603(a).
7 Yousuf v. Samantar, No. 04-1360, 2007 U.S. Dist. LEXIS 56227, at *24 (E.D. Va. Aug. 1, 2007).
8 Yousuf v. Samantar, 552 F.3d 371, 381 (4th Cir. 2009).
9 Samantar, 130 S. Ct. at 2289.
10 Under the act of state doctrine, the courts of one country will not sit in judgment on the acts of the government of another state done within its own territory. Banco Nacional de Cuba v. Sabbatino, 368 U.S. 398 (1964).
11 Samantar, 130 S. Ct. at 2290-91.
1 Although we do not set out respondents’ allegations in detail, the District Court’s written opinion contains a comprehensive summary, describing not only the abuses respondents suffered but also the historical context in which the abuses occurred, as well as some of the attempts to establish a stable government in Somalia in recent years. See No. 1:04cv1360 (ED Va., Aug. 1, 2007), App. to Pet. for Cert. 31a–43a.
2 Petitioner argued that, in addition to his immunity under the FSIA, the complaint should be dismissed on a number of other grounds, which the District Court did not reach. See id., at 45a, n. 11.
3 Because we hold that the FSIA does not govern whether an individual foreign official enjoys immunity from suit, we need not reach respondents’ argument that an official is not immune under the FSIA for acts of torture and extrajudicial killing. See Brief for Respondents 51–53. We note that in determining petitioner had not acted beyond the scope of his authority, the District Court afforded great weight to letters from the Somali Transitional Federal Government (TFG) to the State Department, App. to Pet. for Cert. 55a, in which the TFG supported petitioner’s claim of immunity and stated “the actions attributed to [petitioner] in the lawsuit . . . would have been taken by [petitioner] in his official capacities,” App. 104. Although the District Court described the TFG as “recognized by the United States as the governing body in Somalia,” App. to Pet. for Cert. 54a, the United States does not recognize the TFG (or any other entity) as the government of Somalia, see Brief for United States as Amicus Curiae 5.
4 Compare 552 F. 3d, at 381 (holding the FSIA does not govern the immunity of individual foreign officials), and Enahoro v. Abubakar, 408 F. 3d 877, 881–882 (CA7 2005) (same), with Chuidian v. Philippine Nat. Bank, 912 F. 2d 1095, 1103 (CA9 1990) (concluding that a suit against an individual official for acts committed in his official capacity must be analyzed under the FSIA), In re Terrorist Attacks on September 11, 2001, 538 F. 3d 71, 83 (CA2 2008) (same), Keller v. Central Bank of Nigeria, 277 F. 3d 811, 815 (CA6 2002) (same), Byrd v. Corporacion Forestal y Industrial de Olancho S. A., 182 F. 3d 380, 388 (CA5 1999) (same), and El-Fadl v. Central Bank of Jordan, 75 F. 3d 668, 671 (CADC 1996) (same).
5 As an alternative basis for its decision, the Court of Appeals held that even if a current official is covered by the FSIA, a former official is not. See 552 F. 3d, at 381–383. Because we agree with the Court of Appeals on its broader ground that individual officials are not covered by the FSIA, petitioner’s status as a former official is irrelevant to our analysis.
6 Diplomatic and consular officers could also claim the “specialized immunities” accorded those officials, Restatement (Second) of Foreign Relations Law of the United States §66, Comment b (1964–1965) (hereinafter Restatement), and officials qualifying as the “head of state” could claim immunity on that basis, see Schooner Exchange v. McFaddon, 7 Cranch 116, 137 (1812) (describing “the exemption of the person of the sovereign” from “a jurisdiction incompatible with his dignity”).
7 The full text of §1602, entitled “Findings and declaration of purpose,” reads as follows:
“The Congress finds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.”
8 Petitioner points out that §1603(b)(3) describes only which defendants cannot be agencies or instrumentalities. He suggests that it therefore tells us nothing about which defendants can be covered by that term. Brief for Petitioner 46. Even if so, reading §1603(b) as petitioner suggests would leave us with the odd result that a corporation that is the citizen of a state is excluded from the definition under §1603(b)(3), and thus not immune, whereas a natural person who is the citizen of a state is not excluded, and thus retains his immunity.
9 Nor does anything in the legislative history suggest that Congress intended the term “agency or instrumentality” to include individuals. On the contrary, the legislative history, like the statute, speaks in terms of entities. See, e.g., H. R. Rep. No. 94–1487, p. 15 (1976) (hereinafter H. R. Rep.) (“The first criterion, that the entity be a separate legal person, is intended to include a corporation, association, foundation, or any other entity which, under the law of the foreign state where it was created, can sue or be sued in its own name”).
JUSTICE SCALIA may well be correct that it is not strictly necessary to confirm our reading of the statutory text by consulting the legislative history, see post, at 1–2 (opinion concurring in judgment). But as the Court explained some years ago in an opinion authored by Justice White:
“As for the propriety of using legislative history at all, common sense suggests that inquiry benefits from reviewing additional information rather than ignoring it. As Chief Justice Marshall put it, “[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived.’ United States v. Fisher, 2 Cranch 358, 386 (1805). Legislative history materials are not generally so misleading that jurists should never employ them in a good-faith effort to discern legislative intent. Our precedents demonstrate that the Court’s practice of utilizing legislative history reaches well into its past. See, e.g., Wallace v. Parker, 6 Pet. 680, 687–690 (1832). We suspect that the practice will likewise reach well into the future.” Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 611–612, n. 4 (1991) (alteration in original).
10 See 2A N. Singer & J. Singer, Sutherland Statutory Construction §47.7, p. 305 (7th ed. 2007) (“[T]he word ‘includes’ is usually a term of enlargement, and not of limitation” (some internal quotation marks omitted)).
11 Petitioner argues that §1605A abrogates immunity for certain acts by individual officials, which would be superfluous if the officials were not otherwise immune. See Brief for Petitioner 41–43. But the import of §1605A is precisely the opposite. First, §1605A(a)(1) eliminates the immunity of the state for certain acts of its officers; it says a “foreign state shall not be immune” in a suit “in which money damages are sought against a foreign state.” As it does not expressly refer to the immunity of individual officers, it adds nothing to petitioner’s argument. Second, the creation of a cause of action against both the “foreign state” and “any official, employee, or agent” thereof, §1605A(c), reinforces the idea that “foreign state” does not by definition include foreign officials.
12 Nor is it the case that the FSIA’s “legislative history does not even hint of an intent to exclude individual officials,” Chuidian, 912 F. 2d, at 1101. The legislative history makes clear that Congress did not intend the FSIA to address positionbased individual immunities such as diplomatic and consular immunity. H. R. Rep., at 12 (“The bill is not intended . . . . to affect either diplomatic or consular immunity”). It also suggests that general “official immunity” is something separate from the subject of the bill. See id., at 23 (“The bill does not attempt to deal with questions of discovery. . . . [I]f a plaintiff sought to depose a diplomat in the United States or a high-ranking official of a foreign government, diplomatic and official immunity would apply”).
13 Congress “is understood to legislate against a background of common-law . . . principles,” Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 108 (1991), and when a statute covers an issue previously governed by the common law, we interpret the statute with the presumption that Congress intended to retain the substance of the common law. See Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952) (“Statutes which invade the common law . . . are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident”).
14 We find similarly inapposite petitioner’s invocation of the canon that a statute should be interpreted in compliance with international law, see Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804), and his argument that foreign relations and the reciprocal protection of United States officials abroad would be undermined if we do not adopt his reading of the Act. Because we are not deciding that the FSIA bars petitioner’s immunity but rather that the Act does not address the question, we need not determine whether declining to afford immunity to petitioner would be consistent with international law.
15 The Restatement does not apply this caveat to the head of state, head of government, or foreign minister. See Restatement §66. Whether petitioner may be entitled to head of state immunity, or any other immunity, under the common law is a question we leave open for remand. See 552 F. 3d 371, 383 (CA4 2009). We express no view on whether Restatement §66 correctly sets out the scope of the common law immunity applicable to current or former foreign officials.
16 Respondents contend that this caveat refers to “the compulsive effect of the judgment on the state,” Brief for Respondents 42, but petitioner disputes that meaning, Reply Brief for Petitioner 17–18. We need not resolve their dispute, as it is enough for present purposes that the Restatement indicates a foreign official’s immunity may turn upon a requirement not applicable to any other type of defendant.
17 The courts of appeals have had to develop, in the complete absence of any statutory text, rules governing when an official is entitled to immunity under the FSIA. For example, Courts of Appeals have applied the rule that foreign sovereign immunity extends to an individual official “for acts committed in his official capacity” but not to “an official who acts beyond the scope of his authority.” Chuidian, 912 F. 2d, at 1103, 1106. That may be correct as a matter of common-law principles, but it does not derive from any clarification or codification by Congress. Furthermore, if Congress intended the FSIA to reach individuals, one would expect the Act to have addressed whether former officials are covered, an issue it settled with respect to instrumentalities, see Dole Food Co. v. Patrickson, 538 U. S. 468, 478 (2003) (“[I]nstrumentality status [must] be determined at the time suit is filed”).
18 A study that attempted to gather all of the State Department decisions related to sovereign immunity from the adoption of the restrictive theory in 1952 to the enactment of the FSIA reveals only four decisions related to official immunity, and two related to head of state immunity, out of a total of 110 decisions. Sovereign Immunity Decisions of the Dept. of State, May 1952 to Jan. 1977 (M. Sandler, D. Vagts, & B. Ristau eds.), in Digest of U. S. Practice in Int’l Law 1020, 1080 (1977) (hereinafter Digest).
19 The FSIA was introduced in accordance with the recommendation of the State Department. H. R. Rep., at 6. The Department sought and supported the elimination of its role with respect to claims against foreign states and their agencies or instrumentalities. See Hearings on H. R. 11315 before the Subcommittee on Administrative Law and Governmental Relations of the House of Representatives Committee on the Judiciary, 94th Cong., 2d Sess., 34 (1976) (testimony of Monroe Leigh, Legal Adviser, Dept. of State) (“[I]t is our judgment…that the advantages of having a judicial determination greatly outweigh the advantage of being able to intervene in a lawsuit”). But the Department has from the time of the FSIA’s enactment understood the Act to leave intact the Department’s role in official immunity cases. See Digest 1020 (“These decisions [of the Department regarding the immunity of officials] may be of some future significance, because the Foreign Sovereign Immunities Act does not deal with the immunity of individual officials, but only that of foreign states and their political subdivisions, agencies and instrumentalities”).
20 Furthermore, a plaintiff seeking to sue a foreign official will not be able to rely on the Act’s service of process and jurisdictional provisions. Thus, a plaintiff will have to establish that the district court has personal jurisdiction over an official without the benefit of the FSIA provision that makes personal jurisdiction over a foreign state automatic when an exception to immunity applies and service of process has been accomplished in accordance with 28 U. S. C. §1608. See §1330(b) (“Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsection (a),” i.e., claims for which the foreign state is not entitled to immunity, “where service has been made under section 1608 of this title”).