OPINION OF THE COURT
SAMANTAR V. YOUSUF
560 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 08-1555
MOHAMED ALI SAMANTAR, PETITIONER
v. BASHE
ABDI YOUSUF et al.
on writ of certiorari to the united states court of
appeals for the fourth circuit
[June 1, 2010]
Justice Stevens delivered the
opinion of the Court.
From 1980 to 1986 petitioner
Mohamed Ali Samantar was the First Vice President and Minister of
Defense of Somalia, and from 1987 to 1990 he served as its Prime
Minister. Respondents are natives of Somalia who allege that they,
or members of their families, were the victims of torture and
extrajudicial killings during those years. They seek damages from
petitioner based on his alleged authorization of those acts. The
narrow question we must decide is whether the Foreign Sovereign
Immunities Act of 1976 (FSIA or Act), 28 U. S. C. §§1330, 1602
et seq., provides petitioner with immunity from suit based
on actions taken in his official capacity. We hold that the FSIA
does not govern the determination of petitioner’s immunity from
suit.
I
Respondents are members of the
Isaaq clan, which included well-educated and prosperous Somalis who
were subjected to systematic persecution during the 1980’s by the
military regime then governing Somalia. They allege 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.[
Footnote 1] Respondents’ complaint sought
damages from petitioner pursuant to the Torture Victim Protection
Act of 1991, 106 Stat. 73, note following 28 U. S. C. §1350,
and the Alien Tort Statute, 28 U. S. C. §1350. Petitioner, who
was in charge of Somalia’s armed forces before its military regime
collapsed, fled Somalia in 1991 and is now a resident of Virginia.
The United States has not recognized any entity as the government
of Somalia since the fall of the military regime. See Brief for
United States as
Amicus Curiae 4.
Respondents filed their complaint
in November 2004, and petitioner promptly 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. Each month during the
ensuing two years, petitioner advised the court that the State
Department had the matter “ ‘still under
consideration.’ ” No. 1:04cv1360 (ED Va., Aug. 1, 2007), App.
to Pet. for Cert. 44a. In 2007, having received no response from
the State Department, the District Court reinstated the case on its
active docket. The court concluded that it did not have
subject-matter jurisdiction and granted petitioner’s motion to
dismiss.
The District Court’s decision rested squarely
on the FSIA.[
Footnote 2] The
FSIA provides 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, App. to Pet. for Cert. 46a–47a. Although characterizing
the statute as silent on its applicability to the officials of a
foreign state, the District Court followed appellate decisions
holding that a foreign state’s sovereign immunity under the Act
extends to “ ‘an individual acting in his official capacity on
behalf of a foreign state,’ ” but not to “ ‘an official
who acts beyond the scope of his authority.’ ”
Id.,
at 47a (quoting
Velasco v.
Government of
Indonesia, 370 F. 3d 392, 398, 399 (CA4 2004)). The court
rejected respondents’ argument that petitioner was necessarily
acting beyond the scope of his authority because he allegedly
violated international law.[
Footnote 3]
The Court of Appeals reversed, rejecting the
District Court’s ruling that the FSIA governs petitioner’s immunity
from suit. It acknowledged “the majority view” among the Circuits
that “the FSIA applies to individual officials of a foreign state.”
552 F. 3d 371, 378 (CA4 2009).[
Footnote 4] It disagreed with that view, however, and
concluded, “based on the language and structure of the statute,
that the FSIA does not apply to individual foreign government
agents like [petitioner].”
Id., at 381.[
Footnote 5] Having found 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.
Id., at 383–384. We granted certiorari.
557 U. S. ___ (2009).
II
The doctrine of foreign sovereign
immunity developed as a matter of common law long before the FSIA
was enacted in 1976. In
Verlinden B. V. v.
Central
Bank of Nigeria,
461 U. S. 480, 486
(1983), we explained that in
Schooner Exchange v.
McFaddon, 7 Cranch 116 (1812), “Chief Justice Marshall
concluded that … the United States had impliedly waived
jurisdiction over certain activities of foreign sovereigns.” The
Court’s specific holding in
Schooner Exchange was that a
federal court lacked jurisdiction over “a national armed vessel …
of the emperor of France,”
id., at 146, but the opinion
was interpreted as extending virtually absolute immunity to foreign
sovereigns as “a matter of grace and comity,”
Verlinden,
461 U. S., at 486.
Following
Schooner
Exchange, a two-step procedure developed for resolving a
foreign 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 Maritima, S. A. v.
The Navemar,
303 U. S. 68, 74–75
(1938). Under that procedure, the diplomatic representative of the
sovereign could request a “suggestion 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 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 (CA2 1971) (evaluating
sovereign immunity 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 immunity is one which it is the
established policy of the [State Department] to recognize.”
Hoffman, 324 U. S., at 36. Although cases involving
individual foreign officials as defendants were rare, the same
two-step procedure was typically followed when a foreign official
asserted immunity. See,
e.g.,
Heaney, 445
F. 2d, at 504–505;
Waltier v.
Thomson, 189
F. Supp. 319 (SDNY 1960).[
Footnote 6]
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.
Verlinden, 461 U. S., at 486–487; see also Letter from
Jack B. Tate, Acting Legal Adviser, Department of State, to Acting
Attorney General Philip B. Perlman (May 19, 1952), reprinted in 26
Dept. State Bull. 984–985 (1952). Under this theory, “immunity is
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.”
Verlinden, 461 U. S., at 487.
This change threw “immunity determinations into some disarray,”
because “political considerations sometimes led the Department to
file ‘suggestions of immunity in cases where immunity would not
have been available under the restrictive theory.’ ”
Republic of Austria v.
Altmann,
541 U. S. 677, 690
(2004) (quoting
Verlinden, 461 U. S., at 487).
Congress responded to the inconsistent
application of sovereign immunity by enacting the FSIA in 1976.
Altmann, 541 U. S., at 690–691; see also
Verlinden, 461 U. S., at 487–488. Section 1602 describes
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.[
Footnote 7] After the enactment of the FSIA,
the Act—and not the pre-existing common law—indisputably governs
the determination of whether a foreign state is entitled to
sovereign immunity.
What we must now decide is whether the Act
also covers the immunity claims of foreign officials. We begin with
the statute’s text and then consider petitioner’s reliance on its
history and purpose.
III
The FSIA provides 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. See §§1605–1607
(enumerating exceptions). The Act, if it applies, is the “sole
basis for obtaining jurisdiction over a foreign state in federal
court.”
Argentine Republic v.
Amerada Hess Shipping
Corp.,
488 U.
S. 428, 439 (1989). The question we face in this case is
whether an individual sued for conduct undertaken in his official
capacity is a “foreign state” within the meaning of the Act.
The Act defines “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.”
The term “foreign state” on its
face indicates a body politic that governs a particular territory.
See,
e.g., Restatement §4 (defining “state” as “an entity
that has a defined territory and population under the control of a
government and that engages in foreign relations”). In §1603(a),
however, the Act establishes that “foreign state” has a broader
meaning, by mandating the inclusion of the state’s political
subdivisions, agencies, and instrumentalities. Then, in §1603(b),
the Act specifically delimits what counts as an agency or
instrumentality. Petitioner argues that either “foreign state,”
§1603(a), or “agency or instrumentality,” §1603(b), could be read
to include a foreign official. Although we agree that petitioner’s
interpretation is literally possible, our analysis of the entire
statutory text persuades us that petitioner’s reading is not the
meaning that Congress enacted.
We turn first to the term “agency or
instrumentality of a foreign state,” §1603(b). It is true that an
individual official could be an “agency or instrumentality,” if
that term is given the meaning of “any thing or person through
which action is accomplished,”
In re Terrorist Attacks on
Sept. 11, 2001, 538 F. 3d 71, 83 (CA2 2008). But Congress
has specifically defined “agency or instrumentality” in the FSIA,
and all of the textual clues in that definition cut against such a
broad construction.
First, the statute specifies that
“ ‘agency or instrumentality …’ means any
entity”
matching three specified characteristics, §1603(b) (emphasis
added), and “entity” typically refers to an organization, rather
than an individual. See,
e.g., Black’s Law Dictionary 612
(9th ed. 2009). Furthermore, several of the required
characteristics apply awkwardly, if at all, to individuals. The
phrase “separate legal person, corporate or otherwise,”
§1603(b)(1), could conceivably refer to a natural person, solely by
virtue of the word “person.” But the phrase “separate legal person”
typically refers to the legal fiction that allows an entity to hold
personhood separate from the natural persons who are its
shareholders or officers. Cf.
First Nat. City Bank v.
Banco Para el Comercio Exterior de Cuba,
462 U. S. 611, 625
(1983) (“Separate legal personality has been described as ‘an
almost indispensable aspect of the public corporation’ ”). It
is similarly awkward to refer to a person as an “organ” of the
foreign state. See §1603(b)(2). And the third part of the
definition could not be applied at all to a natural person. A
natural person cannot be a citizen of a State “as defined in
section 1332(c) and (e),” §1603(b)(3), because those subsections
refer to the citizenship of corporations and estates. Nor can a
natural person be “created under the laws of any third country.”
Ibid.[
Footnote 8]
Thus, the terms Congress chose simply do not evidence the intent to
include individual officials within the meaning of “agency or
instrumentality.”[
Footnote 9]
Cf.
Dole Food Co. v.
Patrickson,
538 U. S. 468, 474 (2003) (describing
§1603(b) as containing “indicia that Congress had corporate
formalities in mind”).
Petitioner proposes a second textual route to
including an official within the meaning of “foreign state.” He
argues that the definition of “foreign state” in §1603(a) sets out
a nonexhaustive list that “includes” political subdivisions and
agencies or instrumentalities but is not so limited. See Brief for
Petitioner 22–23. It is true that use of the word “include” can
signal that the list that follows is meant to be illustrative
rather than exhaustive.[
Footnote
10] And, to be sure, there are fewer textual clues within
§1603(a) than within §1603(b) from which to interpret Congress’
silence regarding foreign officials. But even if the list in
§1603(a) is merely illustrative, it still suggests that “foreign
state” does not encompass officials, because the types of
defendants listed are all entities. See
Russell Motor Car
Co. v.
United States,
261 U. S. 514, 519
(1923) (“[A] word may be known by the company it keeps”).
Moreover, elsewhere in the FSIA Congress
expressly mentioned officials when it wished to count their acts as
equivalent to those of the foreign state, which suggests that
officials are not included within the unadorned term “foreign
state.” Cf.
Kimbrough v.
United States,
552 U. S. 85, 103 (2007)
(“Drawing meaning from silence is particularly inappropriate …
[when] Congress has shown that it knows how to [address an issue]
in express terms”). For example, Congress provided an exception
from the general grant of immunity for cases in which “money
damages are sought against a foreign state” for an injury in the
United States “caused by the tortious act or omission
of that
foreign state or of any official or employee of that foreign
state while acting within the scope of his office.” §1605(a)(5)
(emphasis added). The same reference to officials is made in a
similar, later enacted exception. See 28 U. S. C. A.
§1605A(a)(1) (Supp. 2009) (eliminating immunity for suits “in which
money damages are sought against a foreign state” for certain acts
“engaged in by an official, employee, or agent of such foreign
state while acting within the scope of his or her office,
employment, or agency”); see also §1605A(c) (creating a cause of
action against the “foreign state” and “any official, employee, or
agent” thereof).[
Footnote
11] If the term “foreign state” by definition includes an
individual acting within the scope of his office, the phrase “or of
any official or employee …” in 28 U. S. C. §1605(a)(5) would
be unnecessary. See
Dole Food Co., 538 U. S., at 476–477
(“[W]e should not construe the statute in a manner that is strained
and, at the same time, would render a statutory term
superfluous”).
Other provisions of the statute also point
away from reading “foreign state” to include foreign officials.
Congress made no express mention of service of process on
individuals in §1608(a), which governs service upon a foreign state
or political subdivision. Although some of the methods listed could
be used to serve individuals—for example, by delivery “in
accordance with an applicable international convention,”
§1608(a)(2)—the methods specified are at best very roundabout ways
of serving an individual official. Furthermore, Congress made
specific remedial choices for different types of defendants. See
§1606 (allowing punitive damages for an agency or instrumentality
but not for a foreign state); §1610 (affording a plaintiff greater
rights to attach the property of an agency or instrumentality as
compared to the property of a foreign state). By adopting
petitioner’s reading of “foreign state,” we would subject claims
against officials to the more limited remedies available in suits
against states, without so much as a whisper from Congress on the
subject. (And if we were instead to adopt petitioner’s other
textual argument, we would subject those claims to the different,
more expansive, remedial scheme for agencies). The Act’s careful
calibration of remedies among the listed types of defendants
suggests that Congress did not mean to cover other types of
defendants never mentioned in the text.
In sum, “[w]e do not … construe statutory
phrases in isolation; we read statutes as a whole.”
United
States v.
Morton,
467 U. S. 822, 828
(1984). 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.[
Footnote 12] The text does not expressly
foreclose petitioner’s reading, but it supports the view of
respondents and the United States that the Act does not address an
official’s claim to immunity.
IV
Petitioner argues that the FSIA
is best read to cover his claim to immunity because of its history
and purpose. As discussed at the outset, one of the primary
purposes of the FSIA was to codify the restrictive theory of
sovereign immunity, which Congress recognized as consistent with
extant international law. See §1602. We have observed that a
related purpose was “codification of international law at the time
of the FSIA’s enactment,”
Permanent Mission of India to United
Nations v.
City of New York,
551 U. S. 193, 199
(2007), and have examined the relevant common law and international
practice when interpreting the Act,
id., at 200–201.
Because of this relationship between the Act and the common law
that it codified, petitioner argues that we should construe the
FSIA consistently with the common law regarding individual
immunity, which—in petitioner’s view—was coextensive with the law
of state immunity and always immunized a foreign official for acts
taken on behalf of the foreign state. Even reading the Act in light
of Congress’ purpose of codifying
state sovereign
immunity, however, we do not think that the Act codified the common
law with respect to the immunity of individual officials.
The canon of construction that
statutes should be interpreted consistently with the common law
helps us interpret a statute that clearly covers a field formerly
governed by the common law.[
Footnote 13] But the canon does not help us to decide the
antecedent question whether, when a statute’s coverage is
ambiguous, Congress intended the statute to govern a particular
field—in this case, whether Congress intended the FSIA to supersede
the common law of official immunity.[
Footnote 14]
Petitioner argues that because state and
official immunities are coextensive, Congress must have codified
official immunity when it codified state immunity. See Brief for
Petitioner 26–30. But the relationship between a state’s immunity
and an official’s immunity is more complicated than petitioner
suggests, although we need not and do not resolve the dispute among
the parties as to the precise scope of an official’s immunity at
common law. The very authority to which petitioner points us, and
which we have previously found instructive, see
, e.g.,
Permanent Mission, 551 U. S., at 200, states that the
immunity of individual officials is subject to a caveat not
applicable to any of the other entities or persons[
Footnote 15] to which the foreign state’s
immunity extends. The Restatement provides that the “immunity of a
foreign state … extends to … any other 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.”
Restatement §66 (emphasis added).[
Footnote 16] And historically, the Government sometimes
suggested immunity under the common law for individual officials
even when the foreign state did not qualify. See,
e.g.,
Greenspan v.
Crosbie, No. 74 Civ. 4734 (GLG),
1976 WL 841 (SDNY, Nov. 23, 1976). There is therefore little reason
to presume that when Congress set out to codify state immunity, it
must also have,
sub silentio, intended to codify official
immunity.
Petitioner urges 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
acts of the state. See Brief for Petitioner 26. We have recognized,
in the context of the act of state doctrine, that an official’s
acts can be considered the acts of the foreign state, and that “the
courts of one country will not sit in judgment” of those acts when
done within the territory of the foreign state. See
Underhill v.
Hernandez,
168 U. S. 250, 252, 254
(1897). Although the act of state doctrine is distinct from
immunity, and instead “provides foreign states with a substantive
defense on the merits,”
Altmann, 541 U. S., at 700, we do
not doubt that in some circumstances the immunity of the foreign
state extends to an individual for acts taken in his official
capacity. But it does not follow from this premise that Congress
intended to codify that immunity in the FSIA. It hardly furthers
Congress’ purpose of “clarifying the rules that judges should apply
in resolving sovereign immunity claims,”
id., at 699, to
lump individual officials in with foreign states without so much as
a word spelling out how and when individual officials are
covered.[
Footnote 17]
Petitioner would have a stronger case if there
were any indication that Congress’ intent to enact a comprehensive
solution for suits against states extended to suits against
individual officials. But to the extent Congress contemplated the
Act’s effect upon officials at all, the evidence points in the
opposite direction. As we have already mentioned, the legislative
history points toward an intent to leave official immunity outside
the scope of the Act. See n. 12,
supra. And although
questions of official immunity did arise in the pre-FSIA period,
they were few and far between.[
Footnote 18] The immunity of officials simply was not the
particular problem to which Congress was responding when it enacted
the FSIA. The FSIA was adopted, rather, to address “a modern world
where foreign state enterprises are every day participants in
commercial activities,” and to assure litigants that decisions
regarding claims against states and their enterprises “are made on
purely legal grounds.” H. R. Rep., at 7. We 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.[
Footnote 19]
Finally, our reading of the FSIA will not “in
effect make the statute optional,” as some Courts of Appeals have
feared, by allowing litigants through “artful pleading … to take
advantage of the Act’s provisions or, alternatively, choose to
proceed under the old common law,”
Chuidian v.
Philippine Nat. Bank, 912 F. 2d 1095, 1102 (CA9
1990). 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.[
Footnote 20]
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.” Fed. Rule Civ. Proc. 19(a)(1)(B). 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. See
Republic of Philippines v.
Pimentel,
553 U. S. 851, 867
(2008) (“[W]here sovereign immunity is asserted, and the claims of
the sovereign are not frivolous, dismissal of the action must be
ordered where there is a potential for injury to the interests of
the absent sovereign”). Or 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” (citation omitted)).
We are thus not persuaded that our
construction of the statute’s text should be affected by the risk
that plaintiffs may use artful pleading to attempt to select
between application of the FSIA or the common law. And we think
this case, in which respondents have sued petitioner 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 Act defines that term. Although
Congress clearly intended to supersede the common-law regime for
claims against foreign states, we find nothing in the statute’s
origin or aims to indicate that Congress similarly wanted to codify
the law of foreign official immunity.
V
Our review of the text, purpose,
and history of the FSIA leads us to the conclusion that the Court
of Appeals correctly held the FSIA does not govern petitioner’s
claim of immunity. The Act therefore did not deprive the District
Court of subject-matter jurisdiction. We emphasize, however, the
narrowness of our holding. 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, are matters to be
addressed in the first instance by the District Court on remand.
The judgment of the Court of Appeals is affirmed, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
Footnote 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.
Footnote 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.
Footnote 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.
Footnote 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).
Footnote 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.
Footnote 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”).
Footnote 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.”
Footnote 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.
Footnote 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).
Footnote 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)).
Footnote 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.
Footnote 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 position-based 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”).
Footnote 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”).
Footnote 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.
Footnote 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.
Footnote 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.
Footnote 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”).
Footnote 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).
Footnote 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”).
Footnote 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”).
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