U.S. Supreme Court Decides that Foreign Sovereign Immunities Act Does Not Apply to Former Foreign Government Official

As discussed in a prior post, the U.S. Foreign Sovereign Immunities Act (FSIA) codifies the conditions for a U.S. court’s deciding that a “foreign state” as defined in that statute shall be granted immunity from a lawsuit in the U.S. courts.

Somali plaintiffs

The issue of whether the FSIA applied to individuals who had been officials of a foreign state was raised in a case brought by four Somalis against former Somali General Mohamed Ali Samantar for money damages under two U.S. statutes–the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA).

Mohamed Ali Samantar

The complaint alleged that Samantar aided and abetted, and had command responsibility for, extrajudicial killing; arbitrary detention; torture; cruel, inhuman or degrading treatment; crimes against humanity; and war crimes in Somalia from 1969 through 1991.[1]

U.S. District Judge Leonie Brinkema of the Eastern District of Virginia[2] in August 2007 dismissed the case on the ground that Samantar was an “agency or instrumentality of” the state of Somalia and, therefore, entitled to immunity under FSIA (2007 U.S. Dist. LEXIS 56227). This judgment was reversed in January 2009 by the U.S. Court of Appeals for the Fourth Circuit (552 F.3d 371) on the ground that the FSIA did not cover individuals, after which the U.S. Supreme Court agreed to review the case.

In Yousuf v. Samantar, 560 U.S.__, 130 S. Ct. 2278, 176 L.Ed.2d 1047 (2010), the Supreme Court decided, 9 to 0, that the FSIA did not apply to government officials and that the immunity of such individuals was a matter of federal common law.[3]

In an opinion for the Supreme Court by Justice Stevens that was joined by Chief Justice Roberts and five Associate Justices (Kennedy, Ginsburg, Breyer, Alito and Sotomayor), Justice Stevens said there was nothing in the FSIA suggesting that “foreign state” should be read to include an official acting on behalf of that state. Indeed, according to the opinion, FSIA specifies that a foreign state “includes a political subdivision . . . or an agency or instrumentality” of that state, §1603(a), and specifically delimits what counts as an “agency or instrumentality,” §1603(b). Moreover, the statutory “agency or instrumentality” definition militates against its covering individuals.

The Court’s opinion also stated that FSIA’s history and purposes do not support an argument that the Act governs individual immunity claims. There is little reason to presume, said the Court, that when Congress codified state immunity, it intended to codify, sub silentio, official immunity. [4]

The Supreme Court remanded the case to the district court for its determination in the first instance as to whether Samantar was entitled to any common law immunity.

Upon remand, as will be discussed in a subsequent post, the district court decided that Samantar was not entitled to common law immunity and awarded the plaintiffs compensatory and punitive damages of $21 million.


[1]  This case was supported by the Center for Justice and Accountability, a human rights NGO based in San Francisco, California.

[2]  Judge Brinkema presided over the criminal trial of Zacarias Moussaoui, who was convicted for conspiring to kill U.S. citizens in the 9/11 attacks. I appeared before her in another case, one involving Scientology.

[3] According to John B. Bellinger, III, a former Legal Adviser to the U.S. State Department, this Supreme Court decision vindicated the position of the Department’s Office of the Legal Adviser, which had long argued that the immunities of current and former foreign government officials in U.S. courts are defined by federal common law and customary international law as articulated by the Executive Branch, rather than by FSIA. But, says Bellinger, the decision will place a burden on that Office, which will now be asked to submit its views on the potential immunity of every foreign government official sued in the U.S.

[4]  Justices Alito, Thomas and Scalia each filed concurring opinions to say that the Court’s references to FSIA’s   legislative history were unnecessary.

Litigating Against Scientology

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Arnoldo Lerma

In the mid-1990s one of my partners in the Denver office of Faegre & Benson was retained to represent Arnoldo Lerma, who had been sued by the Religious Technology Center, an affiliate of the Church of Scientology. The complaint alleged copyright infringement and misappropriation of trade secrets by Lerma’s posting certain Scientology documents on the Internet.

The case was brought in the federal district court in Alexandria, Virginia, near where Lerma lived. At the time this court was known as “The Rocket Docket” because it put civil cases on a fast track to complete discovery and go to trial. As a result, our Denver office needed help on the case, and I volunteered.

My major task in the case was to represent Mr. Lerma at a deposition that the plaintiff was taking in Fort Lauderdale, Florida of a former Scientologist who previously had posted certain Scientology documents on the Internet. The deposition, in my opinion, was a very unpleasant professional experience.

I am glad that I had no other significant involvement in the case. From the Internet I believe that the district court eventually determined that Mr. Lerma had committed a small number of non-willful copyright violations and imposed a small fine. The Internet also reports that the court apparently dismissed claims by the Religious Technology Center against the Washington Post for articles it had published about the case.

U.S. District Court Alexandria, VA
Judge Leonie Brinkema

The judge in the case, by the way, was U.S. District Judge Leonie Brinkema. After 9/11, she presided over the criminal trial of Zacarias Moussaoui, who was convicted for conspiring to kill U.S. citizens in the 9/11 attacks.