Bashe Yousuf v. Mohamed Samantar ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BASHE ABDI YOUSUF; JOHN DOE 1; 
JOHN DOE 2; AZIZ DERIA,
Plaintiffs-Appellees,
and
JOHN DOE 3; JOHN DOE 4; JANE
DOE 1,
Plaintiffs,
 No. 11-1479
v.
MOHAMED ALI SAMANTAR,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Amicus Supporting Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:04-cv-01360-LMB-JFA)
Argued: May 16, 2012
Decided: November 2, 2012
Before TRAXLER, Chief Judge, and KING and DUNCAN,
Circuit Judges.
2 YOUSUF v. SAMANTAR,
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge King and Judge Duncan joined.
COUNSEL
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 JUS-
TICE, 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, Douglas N. Letter, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C.; Neil H. MacBride,
United States Attorney, Alexandria, Virginia, for Amicus
Supporting Appellees.
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 "suc-
cessfully invoke an immunity doctrine arising under pre-FSIA
YOUSUF v. SAMANTAR, 3
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 oppor-
tunity to assert common law immunity on remand. See
Samantar v. Yousuf, 130 S. Ct. 2278, 2293 (2010) (noting that
the viability of a common law immunity defense was a "mat-
ter[ ] 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 dis-
miss. 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 Saman-
tar, 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 omit-
ted). 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
4 YOUSUF v. SAMANTAR,
plaintiffs also reside in the United States, having become nat-
uralized 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 dis-
missed the case. This court reversed, however, concluding
that the FSIA applies 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 certio-
rari 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 Saman-
tar was Prime Minister. Second, Samantar sought foreign offi-
cial immunity on the basis that any actions for which the
YOUSUF v. SAMANTAR, 5
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 Depart-
ment 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 rela-
tions 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 Depart-
ment 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 offi-
cial 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 recog-
nized government . . . to assert or waive [Samantar’s] immu-
nity," 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. resi-
dents 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 citi-
zens 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 con-
trolling and surrendering jurisdiction over the issue to the
State Department: "The government has determined that the
6 YOUSUF v. SAMANTAR,
defendant does not have foreign official immunity. Accord-
ingly, defendant’s common law sovereign immunity defense
is no longer before the Court, which will now proceed to con-
sider the remaining issues in defendant’s Motion to Dismiss."
Samantar, 2011 WL 7445583, at *1. But, in denying Saman-
tar’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 defer-
ence 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 con-
sidered 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 determina-
tion is appropriate only when the State Department recom-
mends 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
1
A pretrial order denying sovereign immunity is immediately appealable
under the collateral-order exception to the final judgment rule. See Cohen
v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). This court has
previously determined that an order denying a claim of sovereign immu-
nity under the FSIA is immediately appealable. See Rux v. Republic of
Sudan, 461 F.3d 461, 467 n.1 (4th Cir. 2006). We see no reason to draw
a distinction in this regard for orders denying claims of sovereign immu-
nity under the common law.
YOUSUF v. SAMANTAR, 7
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 the Executive Branch’s
view on case-specific questions of individual foreign sover-
eign immunity. The FSIA displaced the common law regime
for resolving questions of foreign state immunity and shifted
the Executive’s role as primary decision maker to the courts.
See Samantar, 130 S. Ct. at 2285. After Samantar, it is clear
that the FSIA did no such thing with respect to the immunity
of individual foreign officials; the common law, not the FSIA,
continues to govern foreign official immunity. See id. at 2292.
And, in light of the continued viability of the common law for
such claims, the Court saw "no reason to believe that Con-
gress saw as a problem, or wanted to eliminate, the State
Department’s role in determinations regarding individual offi-
cial immunity" under the common law. Id. at 2291. The extent
of the State Department’s role, however, depends in large part
on what kind of immunity has been asserted.
A.
In this case, Samantar claims two forms of immunity: (1)
head-of-state immunity and (2) "foreign official" or "official
acts" immunity. "Head-of-state immunity is a doctrine of cus-
tomary international law" pursuant to which an incumbent
"head of state is immune from the jurisdiction of a foreign
state’s courts." In re Grand Jury Proceedings, 817 F.2d 1108,
1110 (4th Cir. 1987). "Like the related doctrine of sovereign
[state] immunity, the rationale of head-of-state immunity is to
promote comity among nations by ensuring that leaders can
perform their duties without being subject to detention, arrest
or embarrassment in a foreign country’s legal system." Id.8 YOUSUF v. SAMANTAR,
"A head-of-state recognized by the United States govern-
ment is absolutely immune from personal jurisdiction in
United States courts unless that immunity has been waived by
statute or by the foreign government recognized by the United
States." Lafontant v. Aristide, 844 F. Supp. 128, 131-32
(E.D.N.Y. 1994). Although all forms of individual immunity
derive from the State, head-of-state immunity is tied closely
to the sovereign immunity of foreign states. See Restatement
(Second) of Foreign Relations Law § 66(b) ("The immunity of
a foreign state . . . extends to . . . its head of state"). Indeed,
head-of-state immunity "is premised on the concept that a
state and its ruler are one for purposes of immunity." Lafon-
tant, 844 F. Supp. at 132.2
Samantar also seeks immunity on the separate ground that
all of the actions for which plaintiffs seek to hold him liable
occurred during the course of his official duties within the
Somali government. See Restatement (Second) of Foreign
Relations Law § 66(f) (stating that "[t]he immunity of a for-
eign state . . . extends to . . . any . . . public minister, official,
or agent of the state with respect to acts performed in his offi-
cial capacity if the effect of exercising jurisdiction would be
to enforce a rule of law against the state"); Matar v. Dichter,
563 F.3d 9, 14 (2d Cir. 2009) ("At the time the FSIA was
enacted, the common law of foreign sovereign immunity rec-
ognized an individual official’s entitlement to immunity for
acts performed in his official capacity.") (internal quotation
marks omitted); Samantar, 130 S. Ct. at 2290-91 ("[W]e do
not doubt that in some circumstances the immunity of the for-
eign state extends to an individual for acts taken in his official
capacity."). This is a conduct-based immunity that applies to
2
"Under customary international law, head of state immunity encom-
passes the immunity of not only the heads of state but also of other ‘hold-
ers of high-ranking office in a State’ such as ‘the Head of Government and
Minister of Foreign Affairs.’" Lewis S. Yelin, Head of State Immunity As
Sole Executive Lawmaking, 44 Vand. J. Transnat’l L. 911, 921 n.42
(2011).
YOUSUF v. SAMANTAR, 9
current and former foreign officials. See Matar, 563 F.3d at
14 ("An immunity based on acts—rather than status—does
not depend on tenure in office.").
B.
The United States, participating as amicus curiae, takes the
position that federal courts owe absolute deference to the
State Department’s view of whether a foreign official is enti-
tled to sovereign immunity on either ground. According to the
government, under long-established Supreme Court prece-
dent, the State Department’s opinion on any foreign immunity
issue is binding upon the courts. The State Department’s posi-
tion allows for the federal courts to function as independent
decision makers on foreign sovereign immunity questions in
only one instance: when the State Department remains silent
on a particular case.3 Thus, the United States contends that the
State Department resolved the issues once it presented the dis-
trict court with its view that Samantar was not entitled to
immunity.
Samantar, by contrast, advocates the view that deference to
the Executive’s immunity determination is required only when
the State Department explicitly recommends that immunity be
granted. Samantar argues that when the State Department
concludes, as it did in this case, that a foreign official is not
entitled to immunity or remains silent on the issue, courts can
and must decide independently whether to grant immunity.
And, the plaintiffs offer yet a third view, suggesting that the
State Department’s position on foreign sovereign immunity
does not completely control, but that courts must defer "to the
reasonable views of the Executive Branch" regardless of
whether the State Department suggests that immunity be
3
Even then, however, the State Department insists that the courts must
fashion a decision based on principles that it has articulated. See Saman-
tar, 130 S. Ct. at 2284. In making this argument, the government fails to
distinguish between status-based and conduct-based immunity.
10 YOUSUF v. SAMANTAR,
granted or denied. Appellees’ Response Brief at 20. In this
case, plaintiffs contend the State Department’s rationale for
urging denial of immunity, as set forth in its SOI, was reason-
able and that the district court properly deferred to it.
1. Executive’s Pre-FSIA Role in Foreign State Immunity
We begin by observing that, although the doctrine of for-
eign sovereign immunity has well-established roots in Ameri-
can jurisprudence, the Executive Branch’s assumption of the
role of primary decision-maker on various foreign sovereign
immunity matters is of a more recent vintage. Foreign sover-
eign immunity, insofar as American courts are concerned, has
its doctrinal roots in The Schooner Exchange v. McFaddon,
11 U.S. (7 Cranch) 116 (1812), which ushered in nearly a cen-
tury of "absolute" or "classical" immunity, "under which a
sovereign [could not], without his consent, be made a respon-
dent in the courts of another sovereign." Permanent Mission
of India to the United Nations v. City of New York, 551 U.S.
193, 199 (2007) (internal quotation marks omitted); see
Samantar, 130 S. Ct. at 2284 (explaining The Schooner
Exchange "was interpreted as extending virtually absolute
immunity to foreign sovereigns as a matter of grace and com-
ity") (internal quotation marks omitted).4 "Absolute" immu-
nity for the foreign sovereign, however, is not to be confused
with absolute judicial deference to the Executive Branch. In
fact, during the lengthy period of absolute immunity, courts
did not necessarily consider themselves obliged to follow
executive pronouncements regarding immunity. In The
Schooner Exchange itself, for example, the Court received
and considered the view of the Executive Branch on the
immunity claim but conducted its own independent review of
4
For nearly a century, "foreign sovereigns in national courts enjoyed a
high level of immunity and exceptions, if any, were not widely recog-
nized." Wuerth, Ingrid, Foreign Official Immunity Determinations in U.S.
Courts: The Case Against the State Dep’t, 51 Va. J. Int’l Law 915, 925
(2011).
YOUSUF v. SAMANTAR, 11
the relevant international law doctrines. See 11 U.S. (7
Cranch) at 132-35; 136-47. As late as the 1920s, the Court
still did not necessarily view questions of foreign sovereign
immunity as matters solely for the Executive Branch. For
example, the Court in Berizzi Bros. Co. v. Steamship Pesaro,
271 U.S. 562, 576 (1926), concluded that a steamship owned
by a foreign sovereign was entitled to immunity despite the
fact that the Secretary of State had expressed the opposite
view earlier in the litigation. See The Pesaro, 277 F. 473, 479
n.3 (S.D.N.Y. 1921).
It was not until the late 1930s—in the context of in rem
actions against foreign ships—that judicial deference to exec-
utive foreign immunity determinations emerged as standard
practice. See Compania Espanola de Navegacion Maritima,
S.A. v. The Navemar, 303 U.S. 68, 74 (1938) ("If the claim is
recognized and allowed by the executive branch of the gov-
ernment, it is then the duty of the courts to release the vessel
upon appropriate suggestion by the Attorney General of the
United States, or other officer acting under his direction."); Ex
parte Republic of Peru, 318 U.S. 578, 587-89 (1943); Repub-
lic of Mexico v. Hoffman, 324 U.S. 30, 34-36 (1945). Citing
a line of cases involving ships owned by foreign sovereigns,
Samantar explained that
a two-step procedure developed for resolving a for-
eign 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
(1945); Ex parte Peru, 318 U.S. 578, 587–589
(1943); Compania Espanola de Navegacion Mari-
tima, S.A. v. The Navemar, 303 U.S. 68, 74–75
(1938). Under that procedure, the diplomatic repre-
sentative of the sovereign could request a "sugges-
tion of immunity" from the State Department. Ex
parte Peru, 318 U.S. at 581. If the request was
granted, the district court surrendered its jurisdiction.
Id. at 588; see also Hoffman, 324 U.S. at 34. But "in
12 YOUSUF v. SAMANTAR,
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;
see also Compania Espanola, 303 U.S. at 75(approving judicial inquiry into sovereign immunity
when the "Department of State . . . declined to act");
Heaney v. Government of Spain, 445 F.2d 501, 503,
and n.2 (2d Cir. 1971) (evaluating sovereign immu-
nity 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 immu-
nity is one which it is the established policy of the
[State Department] to recognize." Hoffman, 324 U.S.
at 36.
Samantar, 130 S. Ct. at 2284 (citations omitted; alteration in
original). Subsequently, there was a shift in State Department
policy from a theory of absolute immunity to restrictive
immunity, but this shift "had little, if any, impact on federal
courts’ approach to immunity analyses . . . and courts contin-
ued to abide by that Department’s suggestions of immunity."
Republic of Austria v. Altmann, 541 U.S. 677, 690 (2004)
(internal quotation marks and alteration omitted).5 Thus, at the
time that Congress enacted the FSIA, the clearly established
5
Interestingly, even at this point the State Department expressed uncer-
tainty about the relationship between the executive and judicial branches
on questions of foreign sovereign immunity. The State Department
announced its change in policy through a 1952 letter to the Attorney Gen-
eral from Jack B. Tate, Legal Adviser to the State Department. The "Tate
Letter," as it has come to be known, stated that "[i]t is realized that a shift
in policy by the executive cannot control the courts but it is felt that the
courts are less likely to allow a plea of sovereign immunity where the
executive has declined to do so." See Letter from Jack B. Tate, Acting
Legal Adviser, Dep’t of State, to Philip B. Perlman, Acting Att’y Gen.
(May 19, 1952), 26 Dep’t St. Bull. 984-85 (1952), reprinted in Alfred
Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 714 app. 2
(1976).
YOUSUF v. SAMANTAR, 13
practice of judicial deference to executive immunity determi-
nations had been expressed largely in admiralty cases.
In this pre-FSIA era, decisions involving claims of individ-
ual foreign sovereign immunity were scarce. See Samantar,
130 S. Ct. at 2291 (noting that "questions of official immunity
. . . in the pre-FSIA period . . . were few and far between").
But, to the extent such individual claims arose, they generally
involved status-based immunities such as head-of-state immu-
nity, see, e.g., Ye v. Zemin, 383 F.3d 620, 624-25 (7th Cir.
2004), or diplomatic immunity arising under international
treaties, see Vienna Convention on Consular Relations art. 43,
Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261; Vienna Con-
vention on Diplomatic Relations art. 31, Apr. 18, 1961, 23
U.S.T. 3227, 500 U.N.T.S. 95. The rare cases involving
immunity asserted by lower-level foreign officials provided
inconsistent results. See generally Chimene I. Keitner, The
Common Law of Foreign Official Immunity, 14 Green Bag 2d
61 (2010) [hereinafter Keitner].
2. Executive Power
The Constitution assigns the power to "receive Ambassa-
dors and other public Ministers" to the Executive Branch,
U.S. Const. art. II, § 3, which includes, by implication, the
power to accredit diplomats and recognize foreign heads of
state. Courts have generally treated executive "suggestions of
immunity" for heads of state as a function of the Executive’s
constitutional power and, therefore, as controlling on the judi-
ciary. See, e.g., Ye, 383 F.3d at 626 ("[A] determination by
the Executive Branch that a foreign head of state is immune
from suit is conclusive and a court must accept such a deter-
mination without reference to the underlying claims of a
plaintiff."); Doe v. State of Israel, 400 F. Supp. 2d 86, 111
(D.D.C. 2005) ("When, as here, the Executive has filed a Sug-
gestion of Immunity as to a recognized head of a foreign state,
the jurisdiction of the Judicial Branch immediately ceases.");
United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir.
14 YOUSUF v. SAMANTAR,
1997) (deferring to the Executive Branch where it "mani-
fested its clear sentiment that Noriega should be denied head-
of-state immunity"); see generally Keitner, 14 Green Bag 2d
at 71 (reasoning that "[c]ourts should treat Executive repre-
sentations about status-based immunity as conclusive because
they are a function of the Executive’s power under Article II,
section 3 of the Constitution"). Like diplomatic immunity,
head-of-state immunity involves "a formal act of recognition,"
that is "a quintessentially executive function" for which abso-
lute deference is proper. Peter B. Rutledge, Samantar, Official
Immunity & Federal Common Law, 15 Lewis & Clark L. Rev.
589, 606 (2011).
Accordingly, consistent with the Executive’s constitution-
ally delegated powers and the historical practice of the courts,
we conclude that the State Department’s pronouncement as to
head-of-state immunity is entitled to absolute deference. The
State Department has never recognized Samantar as the head
of state for Somalia; indeed, the State Department does not
recognize the Transitional Federal Government or any other
entity as the official government of Somalia, from which
immunity would derive in the first place. The district court
properly deferred to the State Department’s position that
Samantar be denied head-of-state immunity.
Unlike head-of-state immunity and other status-based
immunities, there is no equivalent constitutional basis sug-
gesting that the views of the Executive Branch control ques-
tions of foreign official immunity. Such cases do not involve
any act of recognition for which the Executive Branch is con-
stitutionally empowered; rather, they simply involve matters
about the scope of defendant’s official duties.
This is not to say, however, that the Executive Branch has
no role to play in such suits. These immunity decisions turn
upon principles of customary international law and foreign
policy, areas in which the courts respect, but do not automati-
cally follow, the views of the Executive Branch. See Sosa v.
YOUSUF v. SAMANTAR, 15
Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004) (noting that
"there is a strong argument that federal courts should give
serious weight to the Executive Branch’s view of [a] case’s
impact on foreign policy"); Altmann, 541 U.S. at 702 (sug-
gesting that with respect to foreign sovereign immunity,
"should the State Department choose to express its opinion on
the implications of exercising jurisdiction over particular
petitioners in connection with their alleged conduct, that opin-
ion might well be entitled to deference as the considered judg-
ment of the Executive on a particular question of foreign
policy") (footnote omitted). With respect to foreign official
immunity, the Executive Branch still informs the court about
the diplomatic effect of the court’s exercising jurisdiction
over claims against an official of a foreign state, and the
Executive Branch may urge the court to grant or deny official-
act immunity based on such considerations. "That function,
however, concerns the general assessment of a case’s impact
on the foreign relations of the United States," Rutledge, 15
Lewis & Clark L. Rev. at 606, rather than a controlling deter-
mination of whether an individual is entitled to conduct-based
immunity.
In sum, we give absolute deference to the State Depart-
ment’s position on status-based immunity doctrines such as
head-of-state immunity. The State Department’s determina-
tion regarding conduct-based immunity, by contrast, is not
controlling, but it carries substantial weight in our analysis of
the issue.
III.
A.
We turn to the remaining question of whether Samantar is
entitled to foreign official immunity under the common law.
In considering the contours of foreign official immunity, we
must draw from the relevant principles found in both interna-
tional and domestic immunity law, as well as the experience
16 YOUSUF v. SAMANTAR,
and judgment of the State Department, to which we give con-
siderable, but not controlling, weight.
From the earliest Supreme Court decisions, international
law has shaped the development of the common law of for-
eign sovereign immunity. See The Schooner Exchange, 11
U.S. (7 Cranch) at 136, 145-46 (noting that "a principle of
public law" derived from "common usage" and "common
opinion" that "national ships of war, entering the port of a
friendly power open for their reception, are to be considered
as exempted by the consent of that power from its jurisdic-
tion"); Restatement (Third) of the Foreign Relations Law part
IV, ch. 5, subch. A intro. note ("The immunity of a state from
the jurisdiction of the courts of another state is an undisputed
principle of customary international law."). Indeed, an impor-
tant purpose of the FSIA was the "codification of international
law at the time of the FSIA’s enactment." Samantar, 130 S.
Ct. at 2289 (internal quotation marks omitted); see id. ("[O]ne
of the primary purposes of the FSIA was to codify the restric-
tive theory of sovereign immunity, which Congress recog-
nized as consistent with extant international law."). Even after
the FSIA was enacted, international law continued to be rele-
vant to questions of foreign sovereign immunity as the Court
interpreted the FSIA in light of international law. See Perma-
nent Mission of India, 551 U.S. at 200-01.
As previously noted, customary international law has long
distinguished between status-based immunity afforded to sit-
ting heads-of-state and conduct-based immunity available to
other foreign officials, including former heads-of-state. With
respect to conduct-based immunity, foreign officials are
immune from "claims arising out of their official acts while
in office." Restatement (Third) of Foreign Relations Law
§ 464, reprt. note 14; Matar, 563 F.3d at 14 ("An immunity
based on acts—rather than status—does not depend on tenure
in office."). This type of immunity stands on the foreign offi-
cial’s actions, not his or her status, and therefore applies
whether the individual is currently a government official or
YOUSUF v. SAMANTAR, 17
not. See Chimene I. Keitner, Officially Immune? A Response
to Bradley and Goldsmith, 36 Yale J. Int’l L. Online 1, *9
(2010) ("Conduct-based immunity is both narrower and
broader than status-based immunity: it is narrower, because it
only provides immunity for specific acts . . . but it is also
broader, because it endures even after an individual has left
office."). This conduct-based immunity for a foreign official
derives from the immunity of the State: "The doctrine of the
imputability of the acts of the individual to the State . . . in
classical law . . . imputes the act solely to the state, who alone
is responsible for its consequence. In consequence any act
performed by the individual as an act of the State enjoys the
immunity which the State enjoys." Hazel Fox, The Law of
State Immunity at 455 (2d ed. 2008).
At least as early as its decision in Underhill v. Hernandez,
168 U.S. 250, 252 (1897), the Supreme Court embraced the
international law principle that sovereign immunity, which
belongs to a foreign state, extends to an individual official
acting on behalf of that foreign state. By the time the FSIA
was enacted, numerous domestic courts had embraced the
notion, stemming from international law, that "[t]he immunity
of a foreign state . . . extends to . . . any . . . public minister,
official, or agent of the state with respect to acts performed in
his official capacity if the effect of exercising jurisdiction
would be to enforce a rule of law against the state." Restate-
ment (Second) of Foreign Relations Law § 66(f). Although the
context for these cases was different—almost all involved the
erroneous (pre-Samantar) application of the FSIA to individ-
ual foreign officials claiming immunity—these decisions are
instructive for post-Samantar questions of common law
immunity. See, e.g., Belhas v. Ya’alon, 515 F.3d 1279, 1285
(D.C. Cir. 2008) (observing that the FSIA had incorporated
the well-settled principle of international law that former offi-
cials could still claim immunity for acts performed on behalf
of the government); Chuidian v. Philippine Nat’l Bank, 912
F.2d 1095, 1106 (9th Cir. 1990) (recognizing that an individ-
ual is not "entitled to sovereign immunity for acts not com-
18 YOUSUF v. SAMANTAR,
mitted in his official capacity" and explaining that where "the
officer purports to act as an individual and not as an official,
a suit directed against that action is not a suit against the sov-
ereign") (internal quotation marks omitted); Hilao v. Estate of
Marcos (In re Estate of Ferdinand Marcos, Human Rights
Litigation), 25 F.3d 1467, 1472 (9th Cir. 1994) (stating that
"[i]mmunity is extended to an individual only when acting on
behalf of the state because actions against those individuals
are the practical equivalent of a suit against the sovereign
directly" and that "[a] lawsuit against a foreign official acting
outside the scope of his authority does not implicate any of
the foreign diplomatic concerns involved in bringing suit
against another government in United States courts") (internal
quotation marks omitted); Matar, 563 F.3d at 14 (concluding
that even if Dichter was not entitled to statutory immunity
under the FSIA, he was "nevertheless immune from suit under
common-law principles [i.e., conduct-based foreign official
immunity] that pre-date, and survive, the enactment of that
statute").
These cases sketch out the general contours of official-act
immunity: a foreign official may assert immunity for official
acts performed within the scope of his duty, but not for pri-
vate acts where "the officer purports to act as an individual
and not as an official, [such that] a suit directed against that
action is not a suit against the sovereign." Chuidian, 912 F.2d
at 1106 (internal quotation marks omitted). A foreign official
or former head-of-state will therefore not be able to assert this
immunity for private acts that are not arguably attributable to
the state, such as drug possession or fraud. See, e.g., In re
Doe, 860 F.2d 40, 45 (2d Cir. 1988) ("[W]ere we to reach the
merits of the issue, we believe there is respectable authority
for denying head-of-state immunity to a former head-of-state
for private or criminal acts in violation of American law.").
YOUSUF v. SAMANTAR, 19
B.
In response, plaintiffs contend that Samantar cannot raise
this immunity as a shield against atrocities such as torture,
genocide, indiscriminate executions and prolonged arbitrary
imprisonment or any other act that would violate a jus cogens
norm of international law. A jus cogens norm, also known as
a "peremptory norm of general international law," can be
defined as "a norm accepted and recognized by the interna-
tional community of States as a whole as a norm from which
no derogation is permitted and which can be modified only by
a subsequent norm of general international law having the
same character." Vienna Convention on the Law of Treaties
art. 53, May 23, 1969, 1155 U.N.T.S. 331; see Siderman de
Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir.
1992) (adopting same definition). Prohibitions against the acts
involved in this case—torture, summary execution and pro-
longed arbitrary imprisonment—are among these universally
agreed-upon norms. See, e.g., Evan J. Criddle & Evan Fox-
Decent, A Fiduciary Theory of Jus Cogens, 34 Yale J. Int’l L.
331, 331 (2009) (explaining that "jus cogens . . . include[s],
at a minimum, the prohibitions against genocide; slavery or
slave trade; murder or disappearance of individuals; torture or
other cruel, inhuman, or degrading treatment or punishment;
prolonged arbitrary detention"); Tel–Oren v. Libyan Arab
Republic, 726 F.2d 774, 791 n.20 (D.C. Cir. 1984) (Edwards,
J., concurring) ("On the basis of international covenants,
agreements and declarations, commentators have identified at
least four acts that are now subject to unequivocal interna-
tional condemnation: torture, summary execution, genocide
and slavery."); Restatement (Third) of Foreign Relations Law
§ 702 and cmt. n (identifying murder, torture and "prolonged
arbitrary detention" as jus cogens violations). Unlike private
acts that do not come within the scope of foreign official
immunity, jus cogens violations may well be committed under
color of law and, in that sense, constitute acts performed in
the course of the foreign official’s employment by the Sover-
eign. However, as a matter of international and domestic law,
jus cogens violations are, by definition, acts that are not offi-
cially authorized by the Sovereign. See, e.g., Siderman de
20 YOUSUF v. SAMANTAR,
Blake, 965 F.2d at 718 ("International law does not recognize
an act that violates jus cogens as a sovereign act."); Paul v.
Avril, 812 F. Supp. 207, 212 (S.D. Fla. 1993) ("[A]cts . . . [of
torture, cruel, inhuman and degrading treatment, and arbitrary
detention in violation of customary international law] hardly
qualify as official public acts.").6
There has been an increasing trend in international law to
abrogate foreign official immunity for individuals who com-
mit acts, otherwise attributable to the State, that violate jus
cogens norms—i.e., they commit international crimes or
human rights violations:
Over the last decade . . . a growing number of
domestic and international judicial decisions have
considered whether a foreign official acts as an arm
of the state, and thus is entitled to conduct immunity,
when that official allegedly violates a jus cogens
norm of international law or commits an interna-
tional crime.
Curtis A. Bradley & Laurence R. Helfer, International Law
and the U.S. Common Law of Foreign Official Immunity,
2010 Sup. Ct. Rev. 213, 236-37 (2011). A number of deci-
sions from foreign national courts have reflected a willingness
to deny official-act immunity in the criminal context for
alleged jus cogens violations, most notably the British House
of Lords’ Pinochet decision denying official-acts immunity to
a former Chilean head of state accused of directing wide-
spread torture. See Regina v. Bartle, ex parte Pinochet, 38
I.L.M. 581, 593-95 (H.L. 1999) (concluding that official-acts
6
In spite of this, allegations of jus cogens violations do not overcome
head-of-state or any other status-based immunity. See, e.g., Case Concern-
ing the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo
v. Belgium) (2002) ICJ 3 (concluding that the sitting foreign minister of
the Democratic Republic of Congo was entitled to status-based immunity
against alleged jus cogens violations).
YOUSUF v. SAMANTAR, 21
immunity is unavailable to shield foreign officials from prose-
cution for international crimes because acts of torture do not
constitute officially-approved acts). "In the decade following
Pinochet, courts and prosecutors across Europe and elsewhere
. . . commenced criminal proceedings against former officials
of other nations for torture and other violations of jus cogens."
Bradley & Helfer, 2010 Sup. Ct. Rev. at 239. Some foreign
national courts have pierced the veil of official-acts immunity
to hear civil claims alleging jus cogens violations, but the jus
cogens exception appears to be less settled in the civil con-
text. Compare Ferrini v. Germany, Oxford Rep Int’l in Dom
Cts 19 (Italian Ct. of Cassation 2004) (denying "the functional
immunity of foreign state organs" for jus cogens violations in
criminal context), with Jones v. Saudi Arabia, 129 I.L.R. 713,
at ¶ 24 (H.L. 2006) (rejecting jus cogens exception to foreign
official immunity in civil context).
American courts have generally followed the foregoing
trend, concluding that jus cogens violations are not legitimate
official acts and therefore do not merit foreign official immu-
nity but still recognizing that head-of-state immunity, based
on status, is of an absolute nature and applies even against jus
cogens claims. Compare Sarei v. Rio Tinto, PLC, 487 F.3d
1193, 1209 (9th Cir. 2007) (recognizing that acts in "viola-
tion[ ] of jus cogens norms . . . cannot constitute official sov-
ereign acts"); Siderman de Blake, 965 F.2d at 718("International law does not recognize an act that violates jus
cogens as a sovereign act."); Enahoro v. Abubakar, 408 F.3d
877, 893 (7th Cir. 2005) (Cudahy, J., dissenting) ("[O]fficials
receive no immunity for acts that violate international jus
cogens human rights norms (which by definition are not
legally authorized acts)."), with Ye, 383 F.3d at 626-27 (defer-
ring to Executive’s suggestion that head-of-state immunity be
allowed for individual accused of international crimes); Devi
v. Rajapaksa, No. 11 Civ. 6634, 2012 WL 3866495, at *3
(S.D.N.Y. Sept. 4, 2012) (holding that a sitting head of state
is entitled to immunity, even in the context of alleged jus
cogens violations). We conclude that, under international and
22 YOUSUF v. SAMANTAR,
domestic law, officials from other countries are not entitled to
foreign official immunity for jus cogens violations, even if the
acts were performed in the defendant’s official capacity.
Moreover, we find Congress’s enactment of the TVPA, and
the policies it reflects, to be both instructive and consistent
with our view of the common law regarding these aspects of
jus cogens. Plaintiffs asserted claims against Samantar under
the TVPA which authorizes a civil cause of action against
"[a]n individual who, under actual or apparent authority, or
color of law, of any foreign nation . . . subjects an individual
to torture" or "extrajudicial killing." Pub. L. 102-256, § 2(a),
28 U.S.C. 1350 note. "The TVPA thus recognizes explicitly
what was perhaps implicit in the Act of 1789—that the law
of nations is incorporated into the law of the United States
and that a violation of the international law of human rights
is (at least with regard to torture) ipso facto a violation of U.S.
domestic law." Wiwa v. Royal Dutch Petroleum Co., 226 F.3d
88, 105 (2d Cir. 2000). Thus, in enacting the TVPA, Congress
essentially created an express private right of action for indi-
viduals victimized by torture and extrajudicial killing that
constitute violations of jus cogens norms. See S. Rep. No.
102-249, at 8 (1991) ("[B]ecause no state officially condones
torture or extrajudicial killings, few such acts, if any, would
fall under the rubric of ‘official actions’ taken in the course
of an official’s duties.").
C. SOI from the State Department
In its SOI, the State Department submitted a suggestion of
non-immunity. The SOI highlighted the fact that Samantar "is
a former official of a state with no currently recognized gov-
ernment to request immunity on his behalf" or to take a posi-
tion as to "whether the acts in question were taken in an
official capacity." J.A. 71. Noting that "[t]he immunity pro-
tecting 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
YOUSUF v. SAMANTAR, 23
immunity "[i]n the absence of a recognized government . . .
to assert or waive [Samantar’s] immunity," J.A. 73. The sec-
ond major basis for the State Department’s view that Saman-
tar was not entitled to immunity was Samantar’s status as a
permanent legal resident. According to the SOI, "U.S. resi-
dents like Samantar who enjoy the protections of U.S. law
ordinarily should be subject to the jurisdiction of the courts,
particularly when sued by U.S. residents" or naturalized citi-
zens such as two of the plaintiffs. J.A. 71.
Both of these factors add substantial weight in favor of
denying immunity. Because the State Department has not
officially recognized a Somali government, the court does not
face the usual risk of offending a foreign nation by exercising
jurisdiction over the plaintiffs’ claims. Likewise, as a perma-
nent legal resident, Samantar has a binding tie to the United
States and its court system.
Because this case involves acts that violated jus cogens
norms, including torture, extrajudicial killings and prolonged
arbitrary imprisonment of politically and ethnically disfavored
groups, we conclude that Samantar is not entitled to conduct-
based official immunity under the common law, which in this
area incorporates international law. Moreover, the SOI has
supplied us with additional reasons to support this conclusion.
Thus, we affirm the district court’s denial of Samantar’s
motion to dismiss based on foreign official immunity.
IV.
For the foregoing reasons, we affirm the district court’s
denial of both head-of-state and foreign official immunity to
Samantar.
AFFIRMED