Posted: 02 Jun 2010 10:48 AM PDT
by Roger Alford
The most interesting aspect of the Samantar v. Yousuf opinion yesterday was the final section addressing the “artful pleading” problem. The Court stated that “[e]ven if a suit is not governed by the [FSIA], 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.” It then raised three limitations to possible suits against individuals under the common law: (1) absence of personal jurisdiction; (2) dismissing the suit because of a necessary party; and (3) treating the state as the real party in interest where an individual’s conduct was done in his official capacity. (Slip op. at 18-19).
I think the last limitation could prove to significantly limit future suits against government officials. The Court stated that “it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest. Cf. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (’[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.’”).
A quick search suggests that lower courts were split on the question of whether individuals acting in their official capacity enjoyed sovereign immunity. The Court yesterday rejected the argument that individuals fall within the FSIA, but affirmed that they could fall within common law immunity.
Henceforth the central focus of litigation against government officials will be whether they were acting within their official capacity. Defendants will seek to show they were acting with authority or under orders when they tortured or killed, while plaintiffs will argue the opposite. Unlike head of state immunity, it matters not whether they are government officials at the time of suit. All that matters is if their alleged unlawful conduct was taken as a government official. If so, then the state is the real party in interest, and sovereign immunity is triggered.
Posted: 02 Jun 2010 06:51 AM PDT
by Curt Bradley
[We are pleased to share comments on the U.S. Supreme Court's decision yesterday in Samantar v. Yousuf from Professor Curtis Bradley, who has written a great deal on the issue considered by the Court yesterday. We hope to share comments from other informed observers on the decision over the next couple of days ].
As I bask in the glow of not having a single Justice in Samantar accept the theory of the FSIA that Jack Goldsmith and I had proposed, the following thoughts occur to me:
1. The decision strikes me as a perfectly reasonable construction of the FSIA’s text. I’ve always liked and admired Justice Stevens, but I’ve also thought that he had a tendency sometimes to gravitate towards the eccentric. This decision, however, is very lawyerly and does a nice job of addressing most of the counter-arguments. It is easy to imagine that Stevens’ opinion might have persuaded some Justices who were leaning the other way, especially Justices committed to textualism.
2. Supporters of broad executive power should be pleased with the decision. The Court describes with approval the pre-FSIA practice whereby an executive suggestion of immunity would cause courts to “surrender their jurisdiction,” and it appears to view that executive authority as part of the “common law” regime that it says has been preserved for suits against foreign officials despite the enactment of the FSIA. The Court says, for example, that “[w]e have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in determinations regarding individual official immunity.”
3. Those who would describe this decision as a big victory for international human rights litigation are getting ahead of themselves. For a long time, the Filartiga line of cases simply ignored the issue of individual official immunity. That had started to change with some recent lower court cases (e.g., cases brought against Israeli officials), and now the issue will be front and center. The Court in Samantar emphasizes the “narrowness” of its holding and makes clear that it is deciding only the issue of the FSIA’s applicability. It also says that it “does not doubt that in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official capacity,” and it repeatedly suggests that the common law may offer immunity to individual officials. As noted above, the Court also seems to indicate that the executive branch can issue binding suggestions of immunity in suits against foreign officials. Finally, it says (somewhat surprisingly given its textual analysis of the FSIA), that “it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest.”
4. The Court, like the executive branch in its amicus brief, says remarkably little about international law. Contrast that with the British House of Lords’ 2006 decision in Jones, where the court was faced with a similar statutory construction issue and focused extensively on the international law backdrop (and concluded that the Filartiga line of cases was in violation of the customary international law of immunity). Contrast it as well with Justice Stevens’ own opinion in Hamdan v. Rumsfeld, which relied heavily on international law in construing the Uniform Code of Military Justice.
5. Regardless of your views of the impact of the decision on executive power, human rights litigation, or international law, the decision is good for lawyers and law professors. With its undefined references to common law immunity, and its lack of clarification regarding the role of international law, the Court has invited years of litigation and law review articles. Amusingly, one of the reasons the Court cites for declining to construe the FSIA to cover foreign official immunity is that the courts that have adopted this construction “have had to develop, in the complete absence of any statutory text, rules governing when an official is entitled to immunity under the FSIA.” But now that is still going to happen, albeit this time with even less effort by courts to connect their decisions to the policy choices that Congress has made. For discussion of one of the many areas of likely debate in the coming years, see here.
Posted: 04 Jun 2010 06:12 PM PDT
by Peter Rutledge
[Peter "Bo" Rutledge is Associate Professor of Law at the University of Georgia Law School and the author, with Gary Born, of International Civil Litigation in United States Courts]
I’ve been thinking a lot about Samantar since its release as I expect it’ll occupy an important place in the next edition of Gary’s and myInternational Civil Litigation (we’re working on it right now – should be in proof stage by Spring 2011, in book form for Fall 2011 classes). In addition to the several comment, I offer some thoughts on the profoundly unsatisfying decision in the case. To be clear, like Bill and Chimene, I don’t think that the Court necessarily reached the wrong result. Rather, like Roger and Beth, I believe the way it went about resolving the case leaves far too many unanswered questions that, I can attest from recent work on a difficult sovereign immunity case, desperately need some clarification:
1. What’s the scope of the common law immunity for foreign officials? The ultimate section of Samantar can be read to support the notion that this common law immunity survives the FSIA. But prior to Samantar a great deal of confusion persisted among the lower courts over how it operated with respect to such matters as scope of employment, the treatment of highl-level ministers close to the head of state, former employees, and conduct committed in violation of international law. Samantar supplies no guidance on these matters.
2. Whatever the scope, what’s the source of law? Federal common law one might naturally say. But not so fast. How do we square that with the scope of employment prong under the non-commercial tort exception? Some lower court case law suggests that state law, not federal law, informs the question. Other case law looks to the law of the sovereign itself. Consequently, we end up in a situation where different sources of law inform the same inquiry, an unfortunate result.
3. What’s the authority for the federal common law? Most of you are familiar with the very good Seventh Circuit cases arising out of theEnahoro litigation that discuss this question. After Erie and maybe Sosa too, one might reasonably wonder what’s the residual scope of a federal court’s common law making authority in the field. Clearly, there’s some. But just as Sosaleft a lot of people scratching their heads about how extensive it was, this case does too. Of course, one might distinguish between a federal common law to create a cause of action vs federal common law making power to generate an affirmative defense (like immunity). But the defensibility of that distinction depends critically on the value underpinning one’s view of federal common law power. If the underlying value is comity, then perhaps the distinction makes sense. But if the underlying value is separation of powers (or simply a more modest view of judicial lawmaking power), then the two are not so easily distinguished.
4. What do we do about forum shopping? However textually twisted it might have been, the FSIA-based approach to individual immunity at least had the functional value of keeping these cases in federal court. As a result of Verlinden, one could avoid the risk of inconsistent results in federal and state court through the FSIA’s removal provision. But after this case, the risk of forum shopping become rampant – to keep a case in state court, just file align the parties in a way to avoid 1332 removal and structure your causes of action to avoid federal claims. Wouldn’t that be a pretty airtight way of keeping a case out of federal court despite the potentially profound impact of the case on foreign relations (though I agree with Duncan this actually clears a barrier for folks who wish to go the ATS route)? The effect, I suggest, may be greater pressure to find substantive federal common law with preemptive effect in state court (much like we saw in a couple of post-Sabbatino act of state cases)
Unfortunately, the Court simply blew past much of this. Instead of confronting them either in the opinion, or at least some well written separate opinions, they regurgitated the tired old debates over legislative history which don’t meaningfully illuminate things.
Grateful in advance for any reactions (on- or off-line) to these comments as well as, more generally, suggestions in the sovereign immunity chapter in the book. Cheers!
