Kasippillai Manoharan v. Percy Rajapaksa ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 8, 2013 Decided March 29, 2013
No. 12-5087
KASIPPILLAI MANOHARAN, DR., ET AL.,
APPELLANTS
v.
PERCY MAHENDRA RAJAPAKSA,
APPELLEE
UNITED STATES OF AMERICA,
AMICUS CURIAE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00235)
Bruce Fein argued the cause and filed the briefs for
appellants.
Mitchell R. Berger argued the cause for appellee. With him
on the brief was Benjamin D. Wood.
Adam C. Jed, Attorney, U.S. Department of Justice, argued
the cause for amicus curiae United States of America. With him
on the brief were Stuart F. Delery, Acting Assistant Attorney
General, Ronald C. Machen Jr., U.S. Attorney, Mark B. Stern,
Attorney, and Harold Hongju Koh, Legal Adviser, U.S.
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Department of State. R. Craig Lawrence, Assistant U.S.
Attorney, entered an appearance.
Before: GARLAND, Chief Judge, and BROWN and
KAVANAUGH, Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: The plaintiffs have brought civil claims
against the sitting president of Sri Lanka under the Torture
Victim Protection Act (TVPA), 28 U.S.C. § 1350 note.
Although the defendant maintains that the plaintiffs failed to
serve him with process, he appeared before the district court for
the limited purpose of requesting the United States’ view as to
whether he was immune from suit. The United States
Department of State filed a Suggestion of Immunity in the
district court. Without expressing any opinion regarding the
merits of the plaintiffs’ claims, the State Department
“determined that President Rajapaksa, as the sitting head of a
foreign state, enjoys head of state immunity from the
jurisdiction of U.S. courts in light of his current status.”
Suggestion of Immunity at 6 (Jan. 13, 2012) (J.A. 47). The
district court then dismissed the plaintiffs’ suit.
On appeal, the plaintiffs urge us to reverse the judgment of
the district court, contending that the sitting president of Sri
Lanka is not immune from civil suit under the TVPA. We
disagree.
As the Supreme Court has held, “[t]he doctrine of foreign
sovereign immunity developed as a matter of common law.”
Samantar v. Yousuf, 130 S. Ct. 2278, 2284 (2010). In Samantar,
the Court explained that “a two-step procedure developed for
resolving a foreign state’s claim of sovereign immunity,” and
that “the same two-step procedure was typically followed when
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a foreign official asserted immunity.” Id. at 2284-85. Under the
first step of that procedure, the only one that is relevant here,
“the diplomatic representative of the sovereign could request a
‘suggestion of immunity’ from the State Department,” and “[i]f
the request was granted, the district court surrendered its
jurisdiction.” Id. at 2284; accord Habyarimana v. Kagame, 696
F.3d 1029, 1032-33 (10th Cir. 2012); Matar v. Dichter, 563 F.3d
9, 13-14 (2d Cir. 2009); Ye v. Zemin, 383 F.3d 620, 625-27 (7th
Cir. 2004); Spacil v. Crowe, 489 F.2d 614, 617 (5th Cir. 1974);
cf. Republic of Mexico v. Hoffman, 324 U.S. 30, 36 (1945) (“[I]t
is an accepted rule of substantive law governing the exercise of
the jurisdiction of the courts that they accept and follow the
executive determination that the vessel shall be treated as
immune.”). Here, the defendant did request a suggestion of
immunity, and the United States granted that request by
submitting a suggestion of immunity to the court. Accordingly,
as the district court recognized, it was without jurisdiction, see
Saltany v. Reagan, 886 F.2d 438, 441 (D.C. Cir. 1989), unless
Congress intended the TVPA to supersede the common law.
“The canon of construction that statutes should be
interpreted consistently with the common law helps us interpret
a statute that,” as here, “clearly covers a field formerly governed
by the common law.” Samantar, 130 S. Ct. at 2289. “In order
to abrogate a common-law principle, the statute must ‘speak
directly’ to the question addressed by the common law.” United
States v. Texas, 507 U.S. 529, 534 (1993) (quoting Mobil Oil
Corp. v. Higginbotham, 436 U.S. 618, 625 (1978)). Whether or
not legislative history would be sufficient to satisfy the
requirement of speaking “directly,” the plaintiffs’ view is that
the legislative history of the TVPA is ambiguous on the subject
of head of state immunity. In fact, if anything the legislative
history appears to indicate that Congress expected the common
law of head of state immunity to apply in TVPA suits. See H.R.
REP. NO. 102-367, at 5 (1991) (“[N]othing in the TVPA
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overrides the doctrines of diplomatic and head of state
immunity.”).
This leaves only the language of the TVPA, which the
plaintiffs contend supersedes the common law because it renders
“an individual” liable for damages in a civil action, and a head
of state is “an individual.” But as even the plaintiffs
acknowledge, the term “an individual” cannot be read to cover
every individual; plaintiffs agree that both diplomats and
visiting heads of state retain immunity when they visit the
United States. Oral Arg. Recording at 33:19-34:04. Indeed,
although the most analogous statute, 42 U.S.C. § 1983, provides
a cause of action against “[e]very person” who deprives another
of his or her Constitutional rights under color of state law, id.(emphasis added), the Court has held that Congress did not
intend that language to abrogate the preexisting common law of
immunity applicable to executive officials. See Malley v.
Briggs, 475 U.S. 335, 339-40 (1986). We likewise conclude that
the common law of head of state immunity survived enactment
of the TVPA. Accord Matar, 563 F.3d at 15; see Devi v.
Rajapaksa, No. 12-4081 (2d Cir. Jan. 30, 2013) (holding that the
defendant, who is the same defendant as in this case, “clearly is
entitled to head-of-state immunity”).
Because, as a consequence of the State Department’s
suggestion of immunity,* the defendant is entitled to head of
state immunity under the common law while he remains in
office, and because the TVPA did not abrogate that common law
*
This case does not require us to decide what deference we should
give to the State Department when the Department indicates that a
defendant, whether a sitting head of state or otherwise, should not
receive immunity. Cf. Yousuf v. Samantar, 699 F.3d 763 (4th Cir.
2012).
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immunity, the judgment of the district court dismissing the
plaintiffs’ complaint is
affirmed.