Samantar v. Yousuf – Oral Argument – March 03, 2010

Media for Samantar v. Yousuf

Audio Transcription for Opinion Announcement – June 01, 2010 in Samantar v. Yousuf

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John G. Roberts, Jr.:

We’ll hear argument today in Case 08-1555, Samantar v. Yousuf.

Mr. Dvoretzky.

Shay Dvoretzky:

Mr. Chief Justice, and may it please the Court: The FSIA applies to suits against foreign officials for acts taken on the state’s behalf, because such suits are the equivalent of a suit against the state directly.

Anthony M. Kennedy:

Counsel, I — I want to just say that I have one problem with the case at the outset.

And I don’t mean to interrupt the organization of your argument.

You might want to address it later.

And it’s a question that goes to the other counsel, too.

I’m having difficulty seeing how the issues as presented in the brief really resolve very much.

Let’s assume — I know this is not your position.

Let’s assume the Foreign Sovereign Immunities Act grants immunity to the state for this conduct and for a then-serving official who is its agent and for a former agent.

Let’s assume there is — there is immunity.

Why isn’t it just repealed, overridden, by the later enactment of the Torture Victims Protection Act?

I just don’t see the issue structured that way in the briefs, and I’m puzzled by it.

But I say that at the outset, and I really didn’t mean to interrupt your — your good introduction.

Shay Dvoretzky:

The Torture Victim Protection Act creates a cause of action but is silent about immunity, and, therefore, has to be interpreted consistently with background immunity principles and consistently with a preexisting statute codifying immunity, rather than–

Anthony M. Kennedy:

What — what authority do you have for that?

Shay Dvoretzky:

–I’m sorry.

Could you repeat–

Anthony M. Kennedy:

What case authority do you have for that proposition?

Shay Dvoretzky:

–Dellmuth v. Muth, for one thing.

Also, the government previously argued that the TVPA has to be interpreted consistent with preexisting immunity principles.

When Congress wants to waive immunity, it knows how to do that.

For example, it amended the FSIA to specifically waive immunity for actions against state sponsors of terrorism.

Anthony M. Kennedy:

It’s like a — it’s like a clear statement rule?

Shay Dvoretzky:

Yes.

If Congress wishes to waive immunity, it has to do so expressly.

Ruth Bader Ginsburg:

If you are right about that — I guess it would be the same under the Alien Tort Statute — then the Filartiga case — if the — if there had been a quest — request to dismiss because Filartiga was a former officer, and the same thing in Karadzic, none of those could have gone forward?

Shay Dvoretzky:

If, in those cases, an immunity defense had been asserted and it had been established that the official was acting on behalf of the state, then, yes, immunity would apply.

Those defenses were not asserted in those cases, though.

Ruth Bader Ginsburg:

Is there — is there any Alien Tort Statute or the torture statute that would have survived, under your view, because your view is it’s no exception under the Foreign Sovereign Immunities Act, end of case?

Shay Dvoretzky:

Absolutely, there are Torture Victim Protection Act and ATS claims that could be brought.

They could be brought whenever an FSIA exception applies.

So, for example, if an action were brought against an official of a state sponsor of terrorism, the FSIA exception for that would apply.

If a foreign state waived immunity, either explicitly or implicitly–

Ruth Bader Ginsburg:

Yes, but that doesn’t — that’s not going to happen.

[Laughter]

Shay Dvoretzky:

–There are cases where it has happened.

For example, the Philippines effectively waived immunity when claims were brought against Marcos.

So it certainly could happen.

Congress envisioned that the statute would be interpreted consistently with immunity principles.

The legislative history supports that inference.

There are reports in the legislative history and a floor statement by Senator Specter saying that the FSIA could provide an immunity defense to a claim against an official where the official can establish an agency relationship with the state.

Here, there is no question that Mr. Samantar was acting in an official capacity, because he is being sued for his actions as a prime minister and as a defense minister, in the midst of what was effectively quelling a secessionist insurgency.

That’s an inherent–

Anthony M. Kennedy:

Of course, that — again, the Torture Victim Protection Act says

“an individual who, under actual or apparent authority, or under color of law of any foreign nation, subjects an individual to torture. “

Why isn’t that a clear statement?

And then I’ll get off this hobby horse, and you can get back to talking about the FSIA.

Shay Dvoretzky:

–Well, it’s not a clear statement because it’s only a clear statement creating a cause of action.

It’s not a clear statement that speaks to immunity.

And, again, where Congress has wanted to waive immunity, it has done that expressly, as where it waived the immunity of a foreign state for claims brought against state sponsors of terrorism.

And Dellmuth v. Muth, I think, is on point because there the Court held that even though a cause of action was created that would principally apply only to state agencies, that in and of itself was not sufficient to waive the sovereign immunity of the states.

John G. Roberts, Jr.:

Well, I’ll jump on the hobby horse even if Justice Kennedy is jumping off.

I mean, the — the exception in the TVPA is to the jurisdictional immunity of a foreign state.

That doesn’t sound the way you would just establish a cause of action.

Shay Dvoretzky:

You’re talking about the exception in the TVPA for state sponsors of terrorism?

John G. Roberts, Jr.:

Yes.

Shay Dvoretzky:

But the TVPA — the FSIA, in addition, also has a cause of action applicable to state sponsors of terrorism.

That’s in the red brief at 17a.

It’s 28 U.S.C. section 1605A(c).

Shay Dvoretzky:

And so in that situation, what Congress did was it both created a cause of action against state sponsors of terrorism and their officials and waived immunity.

In the TVPA, all that Congress did was to create a cause of action.

And so that cause of action has to be read consistently with background principles of immunity.

Ruth Bader Ginsburg:

Well, when you — going back to where you started — you started saying the officer must go together with the state, because in reality it’s the same thing; it’s a suit against the state.

But this is a case seeking money out of the pocket of Samantar and no money from the treasury of Somalia, so why is the suit against the officer here equivalent to a suit against the state?

Shay Dvoretzky:

Because the touchstone of foreign sovereign immunity law, which the FSIA codified, is that one nation’s courts cannot sit in judgment of another nation’s acts.

And the basis for liability that’s asserted in this case is Samantar’s acts on behalf of the state of Somalia.

The issue is not who pays the judgment; the issue is whose acts are in question.

Now, in the domestic context, of course, the distinction between personal liability and liability from the state may matter, but that’s only because–

Ruth Bader Ginsburg:

Well, that sounds like you’re — you’re talking about an “act of state” doctrine, not that the suit against one is the equivalent of a suit against the other.

Shay Dvoretzky:

–The “act of state” doctrine is distinct from immunity doctrines, although they have certain shared underpinnings and shared comity considerations.

And just as the under — act of state doctrine is concerned with not judging the acts of foreign states, so too is foreign sovereign immunity law.

That’s the fundamental premise of foreign — of foreign sovereignty immunity law.

In the domestic context, courts do sometimes say that an official can be sued for personal liability because he wasn’t acting for the state if he violated the state’s controlling law.

U.S. courts are able to make that determination because our courts are the ultimate arbiters of domestic law.

U.S. courts are not the ultimate arbiters of foreign law.

In fact, a determination that an official was not acting for a foreign state because he must have violated the foreign state’s law or international law is precisely what foreign sovereign immunity prohibits.

So in the foreign sovereign immunity context, as long as the underlying acts are those of the state, foreign sovereign immunity prohibits the case from proceeding.

And that–

Ruth Bader Ginsburg:

I’m not sure that I followed your distinction of the domestic law, per se, because say, the Federal Tort Claims Act, to come within that Act and to have the government cover it, the officer has to be acting within the scope of her employment, however careless or reckless she may be.

Shay Dvoretzky:

–That — and that goes to when the government would be liable for the employee’s acts.

In our case, what we’re talking about here is when the official can be personally liable for acts of the state.

And in the domestic context, we say the official can be liable when he must not have been acting for the state because he violated the state’s controlling law.

Foreign sovereign immunity prohibits that determination with respect to the law of foreign states, and it prohibits U.S. courts from imposing their view of international law on other courts to conclude that an official must not have been acting for his state.

Samuel A. Alito, Jr.:

How will a court determine whether an official was acting within the official scope of the official’s responsibilities?

Shay Dvoretzky:

Ordinarily, the foreign state would tell you, and that would be dispositive of the matter.

If the foreign state doesn’t tell you, you would look at the nature of the allegations in the complaint and see if they fall within a category of conduct that is inherently viewed in — as sovereign.

Atop that list–

Samuel A. Alito, Jr.:

What if the court can’t tell by looking at the complaint?

Is there going to be direct communication between the court and the foreign government on this issue?

Shay Dvoretzky:

–A foreign government ordinarily is going to — is going to get involved in the case and indicate whether it wishes to assert immunity on behalf of the official or not.

For example, there have been several cases involving suits against Israeli officials, and the Israeli embassy communicated to the courts and to the State Department that these were acts of Israel and the official policy of the state.

Again, if you don’t have that, though, it’s not going to be a difficult inquiry, typically, to look and see whether inherently sovereign acts are what’s at issue.

For example, if you have military or police conduct, as this Court said in Saudi Arabia v. Nelson, that’s inherently sovereign conduct.

Legislative–

Sonia Sotomayor:

So how is the inquiry any different than the one that would go under the common law head of state inquiry?

What would be different in the two?

Shay Dvoretzky:

–I — I think the inquiry as to whether it’s an official act would be the same, but head of state immunity is a different sort of immunity than sovereign immunity.

It’s much broader, insofar as it covers even personal acts by a head of state while he’s in office, whereas for foreign sovereign immunity, what you’re looking to distinguish is whether the official was engaged in personal activity or whether he was engaged in acts on behalf of the state.

Sonia Sotomayor:

So your–

Antonin Scalia:

Is head of state immunity implicit in the Foreign Sovereign Immunities Act as well?

Shay Dvoretzky:

No.

Head of state immunity is a different body of common law immunity that the FSIA–

Antonin Scalia:

So why can’t this be a — a different body of common law?

Shay Dvoretzky:

–Do you mean, why can’t this–

Antonin Scalia:

No.

I mean, you’re saying they — they left head of state immunity to the common law, did not incorporate it in the Foreign Sovereign Immunities Act.

Why — why should I believe that they did not do the same for — for agent of state immunity?

Shay Dvoretzky:

–Because head of state immunity is not a form of sovereign immunity.

And what Congress did in this Act was it codified the law of foreign sovereign immunity.

At common law, the sovereign immunity of the state was always understood to extend to officials for their official acts.

Sonia Sotomayor:

–Wait a minute.

Why — why — that doesn’t make any sense to me.

Why would we have had the creation of all of these common law immunities attached to foreign individuals like consular and diplomatic and heads of state if state sovereign immunity was going to cover them naturally?

Shay Dvoretzky:

Because consular and diplomatic immunity are very different in scope and in purpose than state sovereign immunity.

There are two sources of immunity that an individual might be entitled to.

There is the immunity that flows from the state itself for official acts, and there is immunity that flows from the individual’s office, like diplomatic and consular immunity.

Diplomatic and consular immunity are meant to ensure that states can conduct their business without tying up their officials while they are in office in litigation in foreign courts over any matters, personal or official.

Sonia Sotomayor:

I’m trying to go before the Act, the Foreign Sovereign Immunities Act, before it was passed, because that was Congress’s first statement, and we have to figure out what they intended to replace or not replace.

Before the Act came in, what activities of a consular office would not have been covered under the foreign sovereign immunity of a state?

Sonia Sotomayor:

What activity could a diplomat have engaged in or a consular officer have engaged in that state immunity, as it was understood at the time, would not have given him or her?

Shay Dvoretzky:

He could get into a car accident.

Diplomatic and consular immunity would prevent the diplomat or the consul from being sued for tort damages for a car accident in a foreign state.

Official immunity would not, because driving is not considered an official policy of the state in the way that, as I was saying to Justice Alito, police or military conduct would be.

So that’s the distinction between official conduct and conduct that may well be within the scope of employment but is not entitled to the state’s immunity.

And where Congress–

Antonin Scalia:

Can — can you get to the text of the Foreign Sovereign Immunities Act that you — that you assert embraces this personal immunity?

Shay Dvoretzky:

–Section 1603(a) — excuse me — section 1604 says that

“a foreign state shall be immune from the jurisdiction. “

of the United States and of the States.

When a suit is brought against an official for his official act, that is effectively subjecting the foreign state itself to U.S. jurisdiction.

Stephen G. Breyer:

Suppose that the — the Department of the Army orders clothes for the soldiers at a time when the department is a separate agency of Government X in 1940.

In 1950, this department is bought by the Dior clothing company.

Now, it’s a private entity, and someone would like to sue the department because they didn’t pay the bill.

It is now a private entity.

They are suing them for what happened years ago when they were part of the state.

Is it sovereign immunity, this statute that blocks the suit, or some other principle?

Shay Dvoretzky:

I think this statute would block the suit–

Stephen G. Breyer:

The statute would block the suit.

There’s precedent with — you know, famous precedent with King Farouk, which says the opposite.

It says: You were king, you are not king now; therefore, there may be a different principle, but we can sue you now.

Shay Dvoretzky:

–Because the source of immunity in that case was head of state immunity, which is different from the state sovereign immunity–

Stephen G. Breyer:

All right.

And you’re saying if a state disappears, it no longer exists, so you couldn’t possibly be interfering.

You couldn’t possibly be interfering in the workings of the state–

Shay Dvoretzky:

–If the state–

Stephen G. Breyer:

–you still can’t sue anybody–

Shay Dvoretzky:

–It was–

Stephen G. Breyer:

–who was part of the official operation–

Shay Dvoretzky:

–If the–

Stephen G. Breyer:

–even though there is no present interference?

Shay Dvoretzky:

–If the state does not exist, then I think you probably could sue the official–

Stephen G. Breyer:

Why?

Shay Dvoretzky:

–Because–

Stephen G. Breyer:

Because if the state doesn’t exist, why is there any stronger reason than in the incident where the entity is no longer part of the state?

Shay Dvoretzky:

–Because ultimately, what foreign sovereign immunity and this statute are concerned with is protecting a foreign state’s act from being judged in court.

In your example of the Department of the Army which subsequently is bought by another company, and the foreign state exists, the foreign state’s acts are still being judged regardless of the status of that department–

Stephen G. Breyer:

Oh, no, you may have act of state doctrine.

At that point, the State Department comes in and says: You can’t maintain this suit because of the act of state doctrine for the very reason you’ve said.

Shay Dvoretzky:

–You may very well have the act of state doctrine, but–

Stephen G. Breyer:

And that’s my question: Do you need the act of state doctrine or does this statute cover it which removes the discretion from the Executive Branch to decide on a case-by-case basis?

Shay Dvoretzky:

–The act of state doctrine might very well cover your hypothetical, but it’s a different doctrine that is not duplicative of immunity.

It serves different purposes.

Immunity prevents the suit from proceeding at the outset.

It’s an immunity not only from liability, but an immunity from the litigation process itself.

The act of state doctrine is a discretionary doctrine, first of all.

It’s not automatic in the way that immunity is; and, second of all, it applies only on the merits; and, third, it serves different purposes because it can be used even offensively and even in cases where the state itself is not a party, simply to establish the legality of a state’s conduct within its own territory.

So the act of state doctrine is a judge-made prudential doctrine that serves different purposes than immunity.

In your hypothetical, Justice Breyer, immunity would apply to the acts of the — of the Department of the Army because, regardless of when suit is brought, those acts are still those of the state.

In the hypothetical where a state does not exist at all, then 1604 would not come into play because there is no foreign state to be held immune.

That’s not this case, though.

Antonin Scalia:

Can I come back — can I come back to the text?

I — just for a moment there we were on the text of this Act–

[Laughter]

–that the suit is about.

And you said where — where the immunity exists is at 604, which says a foreign state shall be immune, but 1603 defines a foreign state, which — which says that it includes an agency or instrumentality of a foreign state.

And then it defines agency or instrumentality in a way which, it seems to me, does not include private individuals, but rather just artificial legal persons.

Shay Dvoretzky:

Section 1603(a) does not define a foreign state exhaustively.

It simply states what a foreign state includes.

We know that because, if you look at 1603(b), the very next subsection, Congress said what “an agency or instrumentality” means.

Shay Dvoretzky:

So had it meant to define exhaustively what “a foreign state” means, it could have said: “A foreign state” means its political subdivisions, agencies, or instrumentalities.

The fact that Congress said that a foreign state includes a political subdivision and its agencies or instrumentalities suggests that it includes more than just the enumerated entities.

Antonin Scalia:

Well, I — I would find it extraordinary that it would go out of its way to say that it includes the Department of Defense but would leave up in the air whether it includes the Secretary of Defense.

I mean, I — I — it seems to me much more likely that you would understand a foreign state to include the departments of — of that state than that you would assume a foreign state to include individuals who happen to be officials of the state.

Shay Dvoretzky:

And the reason that I think that Congress had to go out of its way to define what constitutes an agency or instrumentality is that, at the time that the FSIA was passed, there was uncertainty about whether certain governmental or corporate entities were included, maybe not the Department of Defense, but whether certain commercial entities owned by the state were entitled to the state’s immunity.

There was–

Antonin Scalia:

And there was no uncertainty about — about individuals?

Shay Dvoretzky:

–Precisely.

There was no uncertainty about whether individuals were included.

And so when Congress was simply continuing the common law against which it passed this statute, it didn’t need to expressly say–

Ruth Bader Ginsburg:

How can you maintain that position when the Department of State takes the position that the Foreign Sovereign Immunities Act applies to a state and agencies and instrumentalities, but it doesn’t apply to officers?

If it was all that certain that they didn’t even have to put it in, then is — the State Department is being recalcitrant?

Shay Dvoretzky:

–The State Department asked, before the FSIA was passed, to have Executive discretion take — taken away with respect to immunity determinations.

Congress agreed with that judgment and passed the FSIA, and now the Executive Branch has to be held to that judgment that was made.

As far–

Samuel A. Alito, Jr.:

It’s something of a — it’s something of a mystery that the FSIA doesn’t say anything at all about this form of immunity; doesn’t codify it, doesn’t abrogate it, doesn’t preserve the preexisting law.

Do you have an explanation for that?

Shay Dvoretzky:

–I don’t, other than the explanation that I gave Justice Scalia, which is: This immunity was not in question at the time that the FSIA was passed, and when Congress passes a statute in an area where there had been preexisting common law, this Court presumes that Congress meant to incorporate and continue that common law and not abrogate it unless Congress has spoken directly to the contrary.

Samuel A. Alito, Jr.:

But was this Act originally drafted by the Executive?

Do you know?

Shay Dvoretzky:

I’m not sure whether it was drafted by the Executive or whether it was drafted by Congress, but it was passed at the request of the Executive Branch because there was — the State Department was put in a position of being under diplomatic pressure to grant immunity on — on favored status to certain nations who asked for it when they wouldn’t otherwise be entitled to it.

This–

Sonia Sotomayor:

Is there any case by us in which we — prior to the FSIA, where we recognize that an individual was immunized in the way that the state was, if he was acting as an agent of the state?

Or were all of our cases having to do with other common law doctrines?

Shay Dvoretzky:

–This Court’s cases generally had to do with other doctrines.

The one possible exception to that is Underhill, in which the Second Circuit’s decision decided the issue on foreign sovereign immunity grounds, and this Court affirmed.

It’s unclear entirely whether this Court’s affirmance was on act of state or immunity grounds, but also at the time that that decision was — came down, act of state and immunity doctrines were very much intertwined.

There is no question, however, as the government argues, that the common law before the FSIA recognized that officials were entitled to immunity — to the state’s immunity for their official acts.

The Second Restatement, which was — which was promulgated in 1965 just before the FSIA, says that.

The Second Circuit’s decision from 1971, just before the FSIA was passed, in Heaney, says that.

Shay Dvoretzky:

And it–

Antonin Scalia:

Well, entitled to it, or — or able to obtain a letter from the State Department that would confer it upon them?

Shay Dvoretzky:

–No, Your Honor–

Antonin Scalia:

I mean — well, I mean, prior to the FSIA, you — you had to get it from the State Department, didn’t you?

Even the state, for that matter?

Shay Dvoretzky:

–No.

The — the — prior to the FSIA, this was a common law doctrine that courts would often apply without any input from the State Department.

In the Heaney case, for example, the State Department was asked to provide input and provided none, and the Second Circuit nonetheless held that, using the generally applicable common law principles, that the official was entitled to immunity for the state’s acts.

Antonin Scalia:

And what — what if the State Department came in and said no, no sovereign immunity here, what would the court do?

Would the court be bound by that?

Shay Dvoretzky:

Ordinarily, the court would at least defer to that.

Whether it would be definitively bound by — by that or not, it would at least be entitled to deference.

Antonin Scalia:

So they didn’t have to say yes, but if they said no, that — it pretty much carried the day?

Shay Dvoretzky:

That’s probably right.

And — but the real issue that prompted the FSIA–

Antonin Scalia:

Well, you — you don’t assert that to be — to be the law now, do you?

Has — has that been carried forward–

Shay Dvoretzky:

–No–

Antonin Scalia:

–under the FSIA?

Shay Dvoretzky:

–No, because the whole purpose of the FSIA — again, at the Executive Branch’s request — was to take the Executive out of that process and to–

Anthony M. Kennedy:

Well, and then I — I had thought — again, correct me if I am wrong — that, ultimately, in this case, whether or not within the issues here present — ultimately, you have two arguments.

One is that it’s just implicit, inherent, necessary for the Foreign Sovereign Immunities Act that agents be covered; otherwise it won’t work.

The other — I take it you have a backup position that even if that’s wrong, that under generally accepted principles of international law, that agents still have immunity.

Or am I wrong about that?

Shay Dvoretzky:

–Well–

Anthony M. Kennedy:

I had thought when I read the House of Lords opinion in Jones and they talked about the statute, that they took your position, this first position, that the Act just won’t work unless there’s an agent — immunity for the agent.

But I take it that even if we reject that position, you still have a fallback position in the — in the — in further proceedings on remand?

Shay Dvoretzky:

–Our position is that the FSIA incorporates the common law and that Mr. Samantar is entitled to immunity under the statute.

If you disagree with us on that, we would certainly wish to assert common law defenses on remand, but we believe that the statute resolves the question.

If the Court has no further questions, I’d like to reserve my time.

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Millett.

Patricia A. Millett:

Mr. Chief Justice, and may it please the Court: Justice Kennedy, the hobby horse that you were talking about actually goes right — right to the heart of this case, and that is of the Torture Victim Protection Act, in which Congress did create a cause of action, was — that cause of action was created for — to impose a liability, personal liability, for acts that were done with “actual or apparent” — but included with “actual” — authority of the foreign state.

Now, if Congress believed that the FSIA immunized everyone who undertook acts under color of law, or at a minimum with actual authority of the foreign state, that was a very empty statute.

Now, part of the — part of the–

Antonin Scalia:

Ms. Millett, I think it’s a pretty empty statute as well to interpret the Foreign Sovereign Immunities Act to immunize the Department of Defense, but not the Secretary of Defense.

I mean, that seems very strange.

Patricia A. Millett:

–It doesn’t seem strange, for precisely the reason that we have still with us today a former minister of defense when we have no Ministry of Defense and no Government of Somalia whatsoever.

The reason is that individuals come and go.

Individuals engage in acts that are not acts of the state–

John G. Roberts, Jr.:

But the state — there is — the distinction strikes me as artificial as well.

We’re talking about insulating state acts.

The only way a state can act is through people.

And you’re saying: Well, the state is insulated, but the people who do the acts for the state are not.

I don’t see how that can — can work.

Patricia A. Millett:

–The only question here is whether the Foreign Sovereign Immunities Act is the source of that insulation.

And the very difficulty with–

John G. Roberts, Jr.:

Oh, well, then — but the whole point of the Act was to codify what was there before, and — and it seems odd to say, well, they were codifying the immunity of the state, but not the immunity of the only way a state can act, which is through individuals.

Patricia A. Millett:

–Well, first of all, states do corporate acts that are greater than the — the whole is much greater than the parts here.

And the issue in this case is whether the part can claim the immunity of the whole, and that is a very different thing.

The — the individual — individuals may act.

They may act without authority; they may act contrary to authority.

And the problem with the FSIA, which is the issue here, is there is no mechanism in it for addressing, for example, whether this was authorized.

Antonin Scalia:

The — the Ministry of Defense is not the whole, either.

I mean, you — you acknowledge that — that each individual piece of a foreign sovereign acquires the immunity, but somehow not — not the principal officers of — of the sovereign entity.

That seems to me very strange.

I mean, I guess — I guess you could write it that way, but I don’t know why anybody would want to write it that way.

Patricia A. Millett:

Well, Justice Scalia, if you’re going to write a statute that addresses individual immunities — in particular, what this case is about, personal immunity for personal liability, then those statutes look very different.

What’s the first thing you are going to want?

You are going to want some way to decide what is official capacity or what is on behalf of a state, and you are going to want a mechanism for the foreign state, or at least the State Department, to have input on that.

Patricia A. Millett:

There’s nothing in the Foreign Sovereign Immunities Act that addresses that.

You’re going to–

Stephen G. Breyer:

Well, what is your–

Patricia A. Millett:

–want to identify–

Stephen G. Breyer:

–Right.

The question I think, as I understand it, which is certainly why it’s bothering me, is: Don’t think of this case.

Think of the set of cases where it’s clear that the plaintiff is suing an active state.

He’s suing France or he’s suing England or — he’s suing an active state for an official act.

And the judge says: I have read the Foreign Sovereign Immunities Act; dismissed.

Judge, let me amend this.

And all he does is he fills in the names of the individuals, because there were some individuals who did the act.

Now, does he suddenly fall outside the Foreign Sovereign Immunities Act just because he listed the names of the people who did it, and everything else was the same?

Patricia A. Millett:

–Yes, he does, because–

Stephen G. Breyer:

Well, then, this Act does nothing whatsoever.

Patricia A. Millett:

–No, that’s — that’s not true.

That’s not true, Justice Breyer.

This Act is designed to protect the state from being sued.

Stephen G. Breyer:

Well, it doesn’t protect–

Patricia A. Millett:

You can’t–

Stephen G. Breyer:

–the state, because all I did there is I made my complaint the same, relief was the same, everything was the same.

I happened to go to the Internet to find out who were the human beings working for the state who did the thing I’m complaining did.

And all I did was fill their names in, in the complaint.

And I cannot imagine any complaint that isn’t open to that, because a — a state can only act through an individual.

Patricia A. Millett:

–Justice Breyer, there — the question is whether Congress, in the FSIA, would have thought that is a suit against the state.

Now, there may be many reasons that they would have.

If they thought, in the Restatement’s words — which are not just if you are doing an official act.

If you are doing an official act, and the exercise of jurisdiction would have the effect of enforcing a rule of law against the state, then you get immunized.

Stephen G. Breyer:

So wait–

Patricia A. Millett:

That–

Stephen G. Breyer:

–you’re saying this Act is only good as against a bad lawyer?

Stephen G. Breyer:

Because any good lawyer would simply fill in the right names.

Patricia A. Millett:

–I think–

Stephen G. Breyer:

There is never a case where this Act would give immunity if the plaintiff has a good lawyer.

Is that what you’re saying?

Ruth Bader Ginsburg:

Ms. Millett–

Patricia A. Millett:

–This Act is good against–

Ruth Bader Ginsburg:

–I thought your point is, if the relief is against the state, it doesn’t matter who you name as the plaintiff.

Patricia A. Millett:

–That–

Ruth Bader Ginsburg:

Whether it’s injunctive relief or money relief, if the relief is against the state, obviously, you can’t dodge it by naming the officer instead.

Patricia A. Millett:

–That’s precisely right.

That is the second half of the Restatement–

Stephen G. Breyer:

Oh.

Oh, that’s a different answer–

Patricia A. Millett:

–Well, that’s what I was trying to say.

The second half of the Restatement says you have to be enforcing a rule — the effect–

Stephen G. Breyer:

–Fine.

If you’re going to give that answer–

Patricia A. Millett:

–if you’re enforcing a rule of law against–

Stephen G. Breyer:

–which I thought was what you would give–

Patricia A. Millett:

–That’s what I was trying to give.

[Laughter]

Stephen G. Breyer:

–then I have added my question: Sometimes the individual, in the first set of cases that Justice Ginsburg mentioned, does count as the state.

Sometimes the individual does not count as the state.

And the trouble I’m having, in this case, is to work out the principle of when that individual would fall within the FSIA — as you now, via Justice Ginsburg, have conceded, sometimes it does — and when it doesn’t.

And I’ve tried to work with the idea of relief, or maybe the nature of the cause of action, or maybe the time that the suit is brought, such as a time afterwards.

I’m not an expert.

You’re more of an expert than I.

What are the principles that determine when?

Patricia A. Millett:

Well, there’s — there’s two levels here.

First of all, we’d look — and this is — Congress, presumably, was drawing on a well-established domestic law analogies here.

Patricia A. Millett:

And they may not be 100 percent controlling here, but we have well-established ways of understanding whether a — an action is against an official in — in their official capacity.

We look at the form of relief, the nature of the claim.

I do think we need to be careful here–

Samuel A. Alito, Jr.:

What is there to suggest that Congress was looking to domestic analogies?

This has nothing — immunity of officials under domestic law doesn’t bear very much resemblance to the immunities that are available to foreign officials, does it?

Patricia A. Millett:

–Well, this is a domestic statute, and for Congress — for purposes of Congress deciding whether a lawsuit is a suit against a sovereign or not against a sovereign, then that is obviously a relevant framework.

And we know from two things — the Torture Victim Protection Act, that they looked at that framework, but also embedded in the FSIA itself, in the Foreign Sovereign Immunities Act itself, is that same distinction between holding people personally liable and holding the state liable.

In 1605A, the terrorist state exception, on 15a to 17a of the addendum to our brief, they create a cause of action, one against the state and one against the individual officials.

Now, the one against the individual officials is a recognition that individual officials can have personal capacity liability for damages, consistent with the Foreign Sovereign Immunities Act.

Otherwise, if — if, under Petitioner’s theory, every lawsuit against an individual — and the language there, is

“acting under color of office or employment. “

–if every suit against someone under color of office or employment morphs into a suit against the state, there is no cause of action to create against the individual.

John G. Roberts, Jr.:

Ms. Millett, I thought–

Patricia A. Millett:

They understood it was individual liability.

John G. Roberts, Jr.:

–I thought the whole point of the FSIA was to get the Executive Branch out of the business of sending letters to the court every time a state was sued.

The government requested it for that purpose.

Now they are just back into it again if you say, well, you can just sue the individuals.

And the government’s position in this case confirms that.

They’re — they tell us the way you should proceed is to look to the Executive Branch and, basically, we’ll send you a letter and let you know.

So it seems to me the whole reason you have the FSIA is undermined by the position you’re taking today.

Patricia A. Millett:

No, I think it’s because the inquiries are very different, as this case illustrates.

And that is — first of all, the point of the FSIA, as section 1602 says, is to codify — as this Court’s cases have said, was to — largely to codify the restrictive theory of sovereign immunity, which did not apply to individual immunity.

It did not apply to the head of state.

The head of state was still immune for commercial acts while a sitting head of state.

So, if that was codified, that was a dramatic change done silently in the FSIA.

The reason Congress would want to retain Executive Branch role here is because the inquires are different, and the first one is the most elemental one in Petitioner’s case and that is the assertion that: I was acting in my official capacity.

Who decides?

How do we decide?

Which agents?

For which actions?

Patricia A. Millett:

For how long?

What level of immunity?

If the FSIA eliminated the head of state’s normal absolute immunity while sitting from all actions, commercial or not, that’s a dramatic revolution.

We can now sue sitting prime ministers and presidents and distract them from their duties.

If the Foreign Sovereign Immunities Act made any official’s official act an act of the state — and remember, they are now every level of the foreign government down to the mayor’s office, and corporate officials, too, so we’ve now eliminated the long-standing principle in corporate law — corporations also only act through individuals — that corporate liability and individual liability go hand-in-hand.

The — the FSIA did not uproot all that, and it provides no mechanisms.

That’s why we need to return to the common law immunity.

Now, what happens when you have a case that, in effect, is seeking relief against the state–

Antonin Scalia:

Excuse me.

The — the mechanism it provides is judicial determination of these questions that — that you say have to be determined — whether he was acting within the scope of authority and all that stuff.

Patricia A. Millett:

–As you–

Antonin Scalia:

Isn’t that what it did?

It took it away from the Executive, gave it–

Patricia A. Millett:

–When you’re interpreting the language in the FSIA, like “under color of law” — “under color of office”, that is undoubtedly a job for the court.

FSIA.

Deciding which agents will be agents of the state is nowhere in the FSIA.

One court has applied this agency — agent principle to say that when we hire an independent contractor, in the — the United States independent contractor, that gets the immunity of the foreign sovereign state.

John G. Roberts, Jr.:

Courts — courts decide this sort of question all the time, whether you’re talking about principles of domestic immunity or even corporate liability: Is the employee on a frolic or is it a detour?

Determining when an individual is acting for another entity as opposed to on — on his own business, that’s a very common inquiry.

Patricia A. Millett:

Not in this area, where those decisions have foreign relations implications.

This Court has done the opposite.

And it has — it has waited for the political branches to lead, and it has followed.

Because the decision whether we’re displacing head of state immunity and now we’re going to have commercial immunity–

Stephen G. Breyer:

Then that — I mean, I’m sort of there.

You may agree with this, that if you have an individual and with what’s being charged here is he is, in fact, now acting as Secretary of Defense, and this action is an action he took in his official capacity, that’s it.

Forget it.

This Act covers it.

But where you’re claiming it’s not and he’s not now a member, the reason for the Act disappears, and you go back to the act of state doctrine.

Patricia A. Millett:

–Justice Breyer, the — I don’t think — I think — and this may seem a little formless, but I simply think it’s right, because you’re dealing with statutory text here.

It’s not so much that the defense minister himself becomes the state; it’s that the court looking at that action goes: This is really an action against the state.

Patricia A. Millett:

The state is a necessary party under Pimentel and must be here.

You, individual, actually have a common law immunity, an absolute immunity, when you are, under the Restatement, sued for official acts.

And the effect of exercising jurisdiction would be to enforce a rule of law against the state.

When you have those two things together, both of them, you are entitled to immunity because this is an action against the state.

The state’s a necessary party.

Under Republic of Philippines v. — excuse me — Pimentel, they must be joined, and that will — then we’ll look at the FSIA and decide whether they can be joined or not.

That’s the way it works.

It’s not that individuals — and this is a problem — that are sort of popping in and out all throughout the FSIA.

If it were, we need mechanisms that we don’t have here to deal with the very sensitive decisions of which individuals.

Well, how will we say you’re the agent?

It’s — the individual can show up and say I was working for the state; I was doing torture; we loved torture; that was our policy — you can imagine many a government, if notified, if there was a mechanism for them to come in, would say: Hang on, that was not our policy.

But there’s no mechanism under his theory.

What else happens?

I don’t even understand, under this theory, what happens.

Normally, what happens in these official capacity suits that we’re familiar with is if it really is an official capacity, then we — we substitute the state, relief will run against the state.

John G. Roberts, Jr.:

Your friend — you friend–

Patricia A. Millett:

But there’s no mechanism here for — I’m sorry.

John G. Roberts, Jr.:

–Your friend said it happens all the time.

He cited the example of the Israeli embassy is always sending letters or showing up in court when their agents are — are sued.

Patricia A. Millett:

That may be.

Nobody showed up in court here until we got to this Court.

There was no Somali government to show up to say whether this was official or not, and the State Department didn’t show up for 2 years.

What is a court supposed to do?

Well, it was not supposed to do what it did here and declare that it’s essentially recognizing the transitional federal government as the government of Somalia, because it didn’t know what else to do.

That can’t be right.

And, again, we need to keep in mind the — there is no mechanism in the text of the FSIA.

This Court will be engaged in an expedition of constructing and reconstructing the FSIA if you are going to turn it into either a Westfall substitution act with no language here, or you have to turn it into a personal immunity for personal liability act.

That’s not the text.

Sovereign immunity has never been a personal liability from personal — personal immunity from personal liability statute.

Samuel A. Alito, Jr.:

Well, do you agree with the Solicitor General’s position about the preservation of the immunities that existed before?

Patricia A. Millett:

Yes, as to — as individualized, the specialized immunities–

Samuel A. Alito, Jr.:

Yes.

Patricia A. Millett:

–I do — we do agree.

Now, whether we — we don’t agree, I think — we may not agree 100 percent on what the scope or content of that immunity is.

We certainly agree that head of state immunity was preserved, so we can’t sue the head of state at all while sitting.

Samuel A. Alito, Jr.:

No, but whatever immunity existed previously for an official or former official was not abrogated by the FSIA.

The FSIA just doesn’t address that subject at all.

Patricia A. Millett:

Our position is that the FSIA does not address that.

Our view of what the common law did beforehand was it packed most of this into the act of state doctrine.

That’s exactly what happened in Underhill v. Hernandez, that when you start getting to lower level officials who are not heads of state, who are not diplomatically protected, consular protected, mission on — have mission immunity, that that — a lot of that worked through act of state doctrine, and–

Samuel A. Alito, Jr.:

There’s no — there was no immunity for someone who is the equivalent of a — of a cabinet officer, previously?

Patricia A. Millett:

–There — there–

Samuel A. Alito, Jr.:

The minister of this or that in another government — they have no official immunity?

Patricia A. Millett:

–Well, look — and much is to be debated on remand.

That issue is clearly not before this Court.

As we look at the cases and the authorities, in fact what you have are different things coming together, and it can be — a lot of times, it was act of state doctrines that were going on there.

But the notion that individual foreign officials are not personally liable for actions is just wrong, and that is because–

Ruth Bader Ginsburg:

Ms. Millett, do you agree with the–

Patricia A. Millett:

–or cannot be.

Ruth Bader Ginsburg:

–Do you agree with the government that it’s the government’s advice — the government said, in the old days, the Tate letters went out in all these cases.

Now, they no longer go out when we’re dealing with a state itself or a state agency, but we still — the Executive — basically, as I read the government’s position, the government is saying: The Executive Branch decides.

We tell the court.

And if we don’t tell the court that this person can be sued, then the person can’t be sued.

Are you in sync with the government in that we are now back to the Executive — essentially, the Executive decides, not the court?

Patricia A. Millett:

I don’t think that’s the exclusive one, and I think, as this Court explained even in Altmann that deference given — respectful deference is always going to be given when the Executive Branch weighs in, because these are foreign — cases that have foreign policy implications.

I don’t think it’s a rubber stamp on the part of the courts.

As this Court said in Altmann, it depends on whether they’re speaking with particularized specialty.

If they come in and say Mr. Samantar was the head of state, we’re done.

I don’t think there’s — I’d like to think of something; I can’t think of anything that would save us from that.

If they say who a head of state is, then that, I think, has largely been treated as binding on the courts.

Patricia A. Millett:

If they say someone — they’ve determined that someone was acting in an official capacity, that’s going to receive — either whether communicated from the foreign state or based on principles that they have — that’s going to carry weight, but it’s not going to necessarily mean you automatically dismiss when you have — you could have times where the Executive Branch said anyone acting under color of law should be immunized.

Then–

Antonin Scalia:

–No, I gather the–

Patricia A. Millett:

–you’re going to have the Executive Branch and the TVPA at war.

Antonin Scalia:

–the State Department asserts the right to say: Yes, he was acting in a — in an official capacity, but sock it to him.

Patricia A. Millett:

Yes.

Antonin Scalia:

I mean, the — the State Department wants to be able to decide whether individuals will be held liable, whether they were acting in an official capacity or not; isn’t that it?

Patricia A. Millett:

Well, they — that — I’ll let them speak for their own position.

I think certainly — certainly there are a variety of doctrines, a variety of hurdles any case has to get through.

And it’s not just the Executive’s views on a case.

There’s things like exhaustion.

There’s necessary party inquiries.

There’s the act of state doctrine.

There’s substantive limits on what one can sue for.

You know, the Torture Victim Protection Act is Congress’s judgment that individuals who do this, consistent with international law, whatever else — individuals who engage in torture and extrajudicial killing are held personally liable in Congress’s views and in the views of international law.

And the Foreign Sovereign Immunities Act doesn’t stop that.

And what’s critical, again, is the–

Antonin Scalia:

I must say–

Patricia A. Millett:

–language that’s missing–

Antonin Scalia:

–that I find it much more acceptable to have the State Department say that a particular foreign country should be let off the hook, which is what they used to do with the Tate letters, than I do to leave it up to the State Department whether — whether an individual human being shall be — shall be punished or not.

I — I somehow find that less within the realm of the — of the foreign affairs power of the State Department.

Anthony M. Kennedy:

And your red light has gone off.

I could just add — make an addition to that same question.

I would agree that the State Department might have some expertise in telling us what the facts were: Who was the government, who was — who was in office at the time, what the policies were.

But it’s just not clear to me what body of principles the State Department looks to, to make this determination that, as Justice Scalia said, Smith is immune and Jones isn’t.

Patricia A. Millett:

–I think–

John G. Roberts, Jr.:

Please.

Patricia A. Millett:

–May I, sir?

The — first of all, whether one thinks it’s the right rule or not, the FSIA doesn’t tell us any way of answering who was in official capacity and getting input, at a minimum, from the foreign government whose mantle this individual is trying to wrap themselves in.

So the FSIA is not the source.

Patricia A. Millett:

The Executive viewpoint is not — in our view, is not the sole source.

And there are — there are a number of other doctrines, whether it’s act of state doctrine, whether it is exhaustion principles, whether it’s a necessary party inquiries, whether it’s substantive limits on, you know, law of nations requirements for the Alien Tort Statute or the Torture Victim Protection Act.

There’s forum non conveniens.

There are a battery of doctrines that come together to very narrowly limit these actions.

And what the State Department looks for is — what it has said is that it has — it has a pattern of decisionmaking, factors it lays out in its brief, that I think it finds — it says it finds — influential in the process.

But in — forgive me for–

John G. Roberts, Jr.:

Finish your sentence.

Patricia A. Millett:

–But in any given case, the role of the Executive Branch is going to have more or less deference based on whether it is speaking something within its traditional expertise: Are you a head of state?

Were you a diplomat?

But when it comes to war — and I — I’m not saying it would, but if it were to come to war with the very elements of the Torture Victim Protection Act and say that torture by an individual can be immunized just because it was done under color of law, then I think the Court has a very difficult concern that was flagged in Altmann to resolve, and I think we might draw a different — we would definitely come to a different answer than the Executive Branch in that situation.

John G. Roberts, Jr.:

You made that a long sentence.

[Laughter]

Patricia A. Millett:

I’m sorry.

I apologize.

John G. Roberts, Jr.:

Thank you, counsel.

Patricia A. Millett:

Thank you.

John G. Roberts, Jr.:

Mr. Kneedler.

Edwin S. Kneedler:

Mr. Chief Justice, and may it please the Court: The text, the context, the purposes, and legislative history of the Foreign Sovereign Immunities Act demonstrate that it was not intended to apply to the preexisting common law–

Sonia Sotomayor:

Could you–

Edwin S. Kneedler:

–doctrine of official immunity, but rather — yes–

Sonia Sotomayor:

–Mr. Kneedler–

Edwin S. Kneedler:

–Yes.

Sonia Sotomayor:

–Could you — I’m–

Edwin S. Kneedler:

I’m–

Sonia Sotomayor:

–I’m sure one of my colleagues–

Edwin S. Kneedler:

–Yes.

Sonia Sotomayor:

–will get you back.

Could you address the practical implications of your position?

And by that I mean, it took 2 years for the State — for the government to respond to the district court in this case.

Tell us why your reading of the statute would not grind the courts to a halt.

Sonia Sotomayor:

What happens when Justice Breyer’s situation arises?

Someone takes a complaint against the state and just substitutes the names of the persons.

What — why wouldn’t the courts come to a grinding halt?

Edwin S. Kneedler:

Well, let me answer that in two ways.

First, there’s — there is a very practical distinction between suing the state and suing the individual.

The Foreign Sovereign Immunities Act is not just about immunity; it’s about the subject matter of the courts.

If a foreign sovereign is found to be immune, the court has no jurisdiction over the case.

So to say that the individual is — is governed by the FSIA means that it would be a threshold subject matter jurisdictional inquiry in every case.

So in terms of judicial administration, that is a problem.

It is also a problem, as a practical matter, to apply the FSIA’s very reticulated standards that were carefully negotiated between the Executive Branch and Congress when they knew what they were dealing with.

They were dealing with the immunity of states and the — and the principals of states.

And this is reflected, as Ms. Millett said, in section 1602.

That’s the business that Congress wanted to get — Congress and the Executive — wanted the Executive to be out of, which was the immunity of foreign states–

Stephen G. Breyer:

But all you have to do is write a different word in.

Now, that’s the question that’s–

Edwin S. Kneedler:

–Okay.

And — right and–

Stephen G. Breyer:

–and then Ms. Millett sort of backed off that.

Edwin S. Kneedler:

–Right.

Stephen G. Breyer:

And that — and if — what I’m seeing here is two extreme positions.

You’re saying: Never, no matter what, can you simply write the name “Joe Smith” under the word “Niger”.

Okay?

Can’t do it.

Even though every act — no matter what, you write that human name in, and you — this statute doesn’t apply.

To me, that means it never applies.

All right?

The opposite would be that never, under any circumstances, can you sue an individual for a — for a — for an official act.

That seems the opposite.

I should think sometimes you certainly could.

Maybe after he has left the government.

Stephen G. Breyer:

But I’m looking for the principle, if I’m right, that would divide the two.

Edwin S. Kneedler:

And–

Stephen G. Breyer:

You want to stick to your extreme position?

Never, just write the thing in–

Edwin S. Kneedler:

–I don’t — I don’t regard the position as extreme at all.

It’s exactly–

Stephen G. Breyer:

–Well, do you want to stick to that position, that all the plaintiff–

Edwin S. Kneedler:

–Because this–

Stephen G. Breyer:

–has to do is rewrite the name?

Edwin S. Kneedler:

–this is a statute that invaded the common law in the — the background was the common law in which the Executive made the determinations for both foreign sovereigns and individual officials.

This — and in addition, it — it affected the relationship of the political branches.

It had been a power of the Executive Branch for foreign sovereigns.

The Foreign Sovereign Immunities Act took that away with the agreement of the political branches.

There’s none of — there’s no indication whatsoever that Congress addressed common law immunities, and there’s a good reason.

And that is that there — there are a lot of diplomatic sensitivities about whether immunity should be recognized in a particular case or not.

And with respect to foreign sovereigns, the political branches addressed those in very precise ways.

There’s nothing in the Foreign Sovereign Immunities Act to take into account the different sensitivities that might well arise with respect to foreign sovereigns–

Stephen G. Breyer:

That’s an excellent reason.

Can you give me one single example ever of a complaint that would ever be dismissed under this statute–

Edwin S. Kneedler:

–It would — it–

Stephen G. Breyer:

–if — if my lawyer is clever enough to look up who the individuals were and substitute their names?

Edwin S. Kneedler:

–And — and it would — here’s one example in which it would work: If the relief was going to run against the state, if there was an injunction to take money out of the state treasury or to convey land, for example, that would, in substance, be an action against the state, just like under Ex parte Young.

If you tried to bring an injunction against a state officer to make him pay money out of the state treasury, you couldn’t do that.

It’s not because the officer being sued is the state.

It’s that the state is a necessary party to that lawsuit.

The state not being joined, the suit against the individual would have to be dismissed.

Samuel A. Alito, Jr.:

Do you think as a practical matter–

Edwin S. Kneedler:

That’s Pimentel.

Samuel A. Alito, Jr.:

–there’s a — I’m sorry.

Do you think, as practical matter, there’s a difference between a $10 million judgment against a state for something that is official state policy in relation to defense, and a $10 million judgment against the current foreign — defense minister of that state for exactly the same policy?

Edwin S. Kneedler:

There — there — there is a difference in the operation of the suit.

We’re not saying that such an official should not be immune.

What we are saying is that the immunity derives from the common law immunity.

There’s a presumption against a statute invading the common law, and particularly a common law that was primarily shaped by the Executive.

There should be a strong presumption against taking that flexibility away in the absence of a clear statement in the statute.

And as — and — if the — if a — if a suit should go to judgment like that, perhaps the state would indemnify the person.

But we are not saying that that person is not immune.

A question that was asked–

Sonia Sotomayor:

Could we go back to the practical–

Edwin S. Kneedler:

–Yes.

To the — and — and I — I understand the practical problem that the district court faced, and the district court was very patient.

I think it’s important to appreciate, though, the — the — this case really illustrates the sensitivities of — of foreign official immunity.

This is — this is a claim of foreign official immunity by a former official of a collapsed state in a — in Somalia, as some of the briefs point out.

There has not been a functioning central government since 1991.

There are a number of factions.

On the ground in Somalia, the absence of a central government has led to foreign governments coming in and exercising influence, to domestic terrorist groups, and to piracy off the — off the coast of Somalia.

The request to the United States, to the State Department for its views, arose in that context.

This very case at this moment arises in a context where things are fluid, and — and there are circumstances in which the Executive Branch or sometimes even the court–

Antonin Scalia:

That’s — that’s very nice.

A few years ago, a Spanish magistrate allowed a lawsuit to proceed, as I recall, against our Secretary of Defense.

And what you say is that that’s perfectly okay.

It’s up to the Spanish government to assert that that suit should not proceed, and if it doesn’t, it’s perfectly okay?

Edwin S. Kneedler:

–It — such a suit would not be perfectly okay in — because, I mean, it would depend on the circumstances.

But as was pointed out with respect to the suits against the two Israeli defense ministers, in that circumstance, the Israeli Government said, listen, these two officers were acting on behalf of — of the government when they carried — that’s the Dichter case and the — and the case this Court had from the Second Circuit last term.

John G. Roberts, Jr.:

I wonder — I wonder if the example you give or the point you make, that there’s no functioning Somali Government, doesn’t cut the other way.

Let’s assume you have somebody who was acting in an official capacity, doing what his job required, whether you like it or not, and then there’s a change in the Somali government; and the United States likes the new Somali government.

That guy is kind of put out to — to dry because he can’t get anybody to say what he maintains is true, which was I was acting pursuant to official policy of the government.

Edwin S. Kneedler:

Well–

John G. Roberts, Jr.:

And the United States is not going to give him the letter he needs because they like the new Somali government.

Edwin S. Kneedler:

–Well, under international law the — the official immunity exists for the benefit of the state, not for the individual.

Edwin S. Kneedler:

The state can waive that immunity, and the state can determine whether, as happened in the Philippines case, that the — that the actions being complained of were not — were not within the official activity.

Anthony M. Kennedy:

But I take it your answer to Justice Scalia with reference to the indictment against the Secretary of Defense, is that that’s not covered by the Foreign Sovereign Immunities Act.

And if a state interprets international law to allow the suit, then it goes forward.

Edwin S. Kneedler:

No.

If — if — if one of our officials was sued in a foreign court, then we would expect the dynamic to play out as — as I have described, where the United States would take the position, presumably that what was being done was within the scope of official conduct after investigation and assert immunity, and expect that to be respected.

My only point is that–

Anthony M. Kennedy:

But that just goes back to the Tate letter era, where we wait to get an e-mail from the State Department to tell us what to do.

Edwin S. Kneedler:

–And the — this–

Anthony M. Kennedy:

I thought that was the whole purpose of the Federal — of Foreign Sovereign Immunities Act.

Edwin S. Kneedler:

–It — it was the purpose with respect to foreign sovereigns, but there were good reasons why the court did that, precisely because immunity questions — as I’ve said, this case illustrates, to — to recognize an immunity or not to recognize would — might favor one faction or another in the ongoing dispute in — in Somalia.

Ruth Bader Ginsburg:

Mr. Kneedler–

Edwin S. Kneedler:

And so the — what–

Ruth Bader Ginsburg:

–This is — it’s now many years, and we still don’t — the State Department has said in effect: We decide.

Can you tell the Court, is this defendant amenable to suit or is there an immunity that would cover him?

Edwin S. Kneedler:

–We are not addressing that here.

The court of appeals remanded for consideration of common law head of state and other immunities.

Suggestions of immunity traditionally have been tendered to the district court.

And the legislative history of the Foreign Sovereign Immunities Act shows — clearly says that the official type immunities — using the word “official” immunity, head of state immunity, diplomatic immunity, consular immunity — those things are not addressed by the Foreign Sovereign Immunities Act.

Section — section 1602 shows that Congress wanted to take the Executive away because the government was being pressured by foreign governments with respect to the restrictive theory with respect to commercial activities.

And that’s where the pressure was being applied, and the Executive Branch wanted to get out of that business, and agreed to.

If you read 1602, it specifically refers to commercial activities.

There was no such conscious abrogation of the Executive’s critical role to make immunity determinations on behalf of officials in the legislative history.

And this Court should not strain to read the rigid provisions of the Foreign Sovereign Immunities Act, which were just not tailored to the immunities that the Underhill decision of this Court specifically said officials have immunity for their official acts exercising governmental authority.

John G. Roberts, Jr.:

Thank you, Mr. Kneedler.

Antonin Scalia:

There were a lot of long sentences in there–

[Laughter]

John G. Roberts, Jr.:

Mr. Dvoretzky, because of that, we’ll give you 5 minutes.

Shay Dvoretzky:

I’ll try to keep it short.

I’d like to make three points: First of all, when a suit is brought against a — an official or former official, the only question that a court will need to answer under the FSIA is whether the acts challenged are those of the state.

That’s a determination that courts can readily make and are accustomed to making.

Shay Dvoretzky:

By contrast–

Sonia Sotomayor:

Wouldn’t that be the same question that you would ask invoking a common law protection like head of state or act of state?

Isn’t it — whether it’s under the FSIA or under a common law theory — the identical question?

Shay Dvoretzky:

–It is the same inquiry that you would have asked under the common law in inquiring whether the state’s immunity extends to its officials.

What the FSIA did was it codified that rule, and it took away Executive Branch discretion to deviate from it.

If you look at the Solicitor–

Sonia Sotomayor:

Isn’t that the very point?

If the inquiry is the same under the FSIA and under the common law, and we’re unsure what Congress intended in the FSIA, because it certainly doesn’t explicitly say it covers individual acts, shouldn’t we defer to the Executive’s decisionmaking in what is — has been, for centuries now, within its jurisdiction?

Why should we take that power away when the inquiry would be the same under either doctrine?

Shay Dvoretzky:

–First of all, as we argue in our brief, this has not historically been a long-standing power of the Executive in the way that the immunity itself has been recognized under the common law.

And what Congress did in 1976 was it codified the substance of the common law but took away that procedure.

And this case demonstrates exactly why it’s necessary to extend the FSIA to foreign officials in order to — in order to make the FSIA mean anything at all, and in order to ensure the uniformity and predictability that Congress intended through the statute.

If you look at the factors that the Solicitor General proposes to take into account in this case — I’m looking at page 7 of the Solicitor General’s brief —

“Petitioner’s residence in the United States rather than Somalia, the nature of the acts alleged. “

the

“invocation of a particular statutory right. “

the — the state of the government in Somalia — these are factors that have no basis in the common law that the FSIA codified.

No case has ever held that a foreign official or former official loses immunity for official acts on the basis of these sorts of factors.

Moreover–

Stephen G. Breyer:

Why can’t you say that if the person, the individual you are suing, is a member of the foreign state, is engaged in the kind of activity that you’re complaining about, is subject to the orders of the foreign state, and the relief would affect the foreign state, you are suing the foreign state?

But where he was a member of the foreign state, and you want money from him, even though what he did in the past was an act of a foreign state, this lawsuit is not affecting him in his capacity — is not affecting the foreign state.

Indeed, there isn’t even one.

So in the first set, he falls in the FSIA.

In the second set, he doesn’t.

And you happen to have the second set, and, therefore, he may still be immune for what he did in the past, but that would be a different docket.

Shay Dvoretzky:

–All right.

Stephen G. Breyer:

That — that’s where this is all leading me.

Shay Dvoretzky:

Because the Restatement — what the Restatement, which summarized the common laws as of the time of the FSIA’s enactment, says that an official is immune for his acts on behalf of a state if exercising jurisdiction would enforce a rule of law against the foreign state.

You enforce a rule of law against a foreign state just as much by threatening to bankrupt an official as soon as he leaves office–

Ruth Bader Ginsburg:

How does this case–

Shay Dvoretzky:

–as you do by issuing–

Ruth Bader Ginsburg:

–How does this very case establish a rule of law for the foreign state?

The Act is aimed at torturers.

The remedy comes out of the private pocket.

How does this establish — if the thing plays out and the plaintiffs prevail, there will a remedy against an individual actor; there will be no relief awarded against any government.

How would it set a rule for the foreign government?

Shay Dvoretzky:

–Because enforcing a judgment against a foreign official, threatening to bankrupt the person as soon as he or she leaves office, has just as much effect on the state itself as — as enforcing a judgment directly against the state.

It will force officials to conform their conduct on behalf of–

Ruth Bader Ginsburg:

Never mind that this person has long lived in the United States, in Virginia.

It will have no effect — will have no effect whatever on the government of Somalia?

Shay Dvoretzky:

–But the — the rule that the government proposes, and the courts would presumably be left to apply on their own in the many cases like this one and the 9/11 litigation against the Saudis where the government doesn’t weigh in, that rule does not draw those neat lines.

Why, for example, would we know that a prime minister who comes to visit the United States has not spent enough time here in order to have his official immunity abrogated?

John Paul Stevens:

May I ask just ask one quick question?

Am I correct in understanding that you do not contend that your client was covered by 1603(b)(1)?

Shay Dvoretzky:

1603(b)(1) is the agency–

John Paul Stevens:

It defines an agency or instrumentality of the–

Shay Dvoretzky:

–We do argue that in the alternative.

We think our principal argument is that–

John Paul Stevens:

–The principal argument is not based on the text.

You do make that argument in the alternative then?

Shay Dvoretzky:

–We make that argument in the alternative.

Our principal argument is based–

John Paul Stevens:

It’s interesting that nobody has talked about that section during the entire argument.

Shay Dvoretzky:

–Our principal argument is based on the text of 1604, which is that in — that subjecting official acts–

John Paul Stevens:

If they don’t qualify under 1603(b)(1), it’s kind of hard to get the statute to apply to them at all.

Shay Dvoretzky:

–I respectfully disagree, Your Honor, because 16 (b)(1) defines agencies or instrumentalities.

And an official, like an agency or instrumentality, is the means through which the state acts.

And, so, if the foreign state include–

John G. Roberts, Jr.:

It’s kind of hard — I mean, I assume the reason you don’t rely heavily on it — because it says that an agency or instrumentality is an entity.

I mean, we usually don’t think of individuals as being entities.

John Paul Stevens:

And 1602 applies only to foreign states.

Shay Dvoretzky:

–1602 applies to states, and our argument is that exercising jurisdiction over the official in the circumstances like these would be exercising jurisdiction over the state.

An entity, Your Honor, is not — is not automatically read to include a person, but it doesn’t preclude persons, either, as the Ninth Circuit held in Chuidian.

John G. Roberts, Jr.:

Thank you, counsel.

Counsel.

Shay Dvoretzky:

Thank you.

John G. Roberts, Jr.:

The case is submitted.