Affirmed by Supreme Court, June 1, 2010
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BASHE ABDI YOUSUF; OFFICER JOHN
DOE 1; JANE DOE 1; JOHN DOE 2;
JOHN DOE 3; JOHN DOE 4; AZIZ
DERIA,
Plaintiffs-Appellants,
v.
MOHAMED ALI SAMANTAR,
Defendant-Appellee.
ALLARD K. LOWENSTEIN
INTERNATIONAL HUMAN RIGHTS
CLINIC, Yale Law School; No. 07-1893
AMERICAN FRIENDS SERVICE
COMMITTEE; BOSTON CENTER FOR
REFUGEE HEALTH AND HUMAN
RIGHTS; CONSISTENT LIFE;
EARTHRIGHTS INTERNATIONAL;
DOLLY FILARTIGA; FLORIDA
CENTER FOR SURVIVORS OF
TORTURE; GLOBAL LAWYERS AND
PHYSICIANS; HUMAN RIGHTS FIRST;
HUMAN RIGHTS WATCH;
MARYKNOLL OFFICE OF GLOBAL
CONCERNS; MUSLIM PUBLIC AFFAIRS
COUNCIL; SISTER DIANNA ORTIZ;
2 YOUSUF v. SAMANTAR
PROGRAM FOR SURVIVORS OF
TORTURE AND SEVERE TRAUMA;
PROGRAM FOR TORTURE VICTIMS;
ROCKY MOUNTAIN SURVIVORS
CENTER; SURVIVORS OF TORTURE,
INTERNATIONAL; THE SHALOM
CENTER; TORTURE ABOLITION AND
SURVIVORS SUPPORT COALITION
INTERNATIONAL; WORLD
ORGANIZATION FOR HUMAN RIGHTS
USA; INTERNATIONAL RIGHTS
ADVOCATES; INTERNATIONAL HUMAN
RIGHTS CLINIC, Human Rights
Program of Harvard Law School;
UNITED STATES MEMBER OF
CONGRESS AND LAW PROFESSORS,
Amici Supporting Appellants.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:04-cv-01360-LMB)
Argued: September 23, 2008
Decided: January 8, 2009
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Reversed and remanded by published opinion. Judge Traxler
wrote the opinion, in which Judge King joined. Judge Duncan
wrote a separate concurring opinion.
YOUSUF v. SAMANTAR 3
COUNSEL
ARGUED: Tara M. Lee, COOLEY, GODWARD & KRON-
ISH, L.L.P., Reston, Virginia, for Appellants. Frederick B.
Goldberg, Bethesda, Maryland, for Appellee. ON BRIEF:
Robert R. Vieth, Sherron N. Thomas, COOLEY, GODWARD
& KRONISH, L.L.P., Reston, Virginia; Maureen P. Alger,
COOLEY, GODWARD & KRONISH, L.L.P., Palo Alto,
California; Pamela Merchant, Moira Feeney, CENTER FOR
JUSTICE & ACCOUNTABILITY, San Francisco, California,
for Appellants. Julian H. Spirer, SPIRER & GOLDBERG,
P.C., Bethesda, Maryland, for Appellee. Tyler Giannini,
HARVARD LAW SCHOOL, International Human Rights
Clinic, Human Rights Program, Cambridge, Massachusetts,
for Torture Survivors Support Organizations, Human Rights
Organizations, Religious Organizations and Torture Survivors
and Their Family Members, Amici Supporting Appellants.
Deena R. Hurwitz, Germaine S. Dunn, Kerry M. Shapleigh,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Char-
lottesville, Virginia, for United States Member of Congress
and Law Professors, Amici Supporting Appellants.
OPINION
TRAXLER, Circuit Judge:
Plaintiffs, all of whom are natives of Somalia, brought this
action under the Torture Victim Protection Act of 1991, see
Pub. L. 102-256, 106 Stat. 73 (1992), and the Alien Tort Stat-
ute, see 28 U.S.C. § 1350, seeking to impose liability against
and recover damages from Defendant Mohamed Ali Samantar
for alleged acts of torture and human rights violations com-
mitted against them by government agents commanded by
Samantar during the regime of Mohamed Siad Barre. The dis-
trict court concluded that Samantar enjoys immunity under
the Foreign Sovereign Immunities Act ("FSIA"), see 28
4 YOUSUF v. SAMANTAR
U.S.C. §§ 1602-1611, and dismissed the action for lack of
subject matter jurisdiction.
For the reasons set forth below, we conclude that the FSIA
does not apply to individuals and, as a result, Samantar is not
entitled to immunity under the FSIA. Because the FSIA does
not apply in this case, it consequently does not deprive the
district court of jurisdiction. Accordingly, we reverse the rul-
ing of the district court dismissing for lack of subject matter
jurisdiction under the FSIA and remand this action for further
proceedings.
I.
A.
Plaintiffs all claim to have suffered torture or other abuses
in violation of international law at the hands of Somali sol-
diers or other government agents under the general command
of Samantar. Samantar became a high-ranking government
official in Somalia as a result of his participation in a socialist
coup staged by General Mohamed Barre in 1969. According
to plaintiffs, "[p]ower was assumed by the Supreme Revolu-
tionary Council (SRC), which consisted primarily of the
Army Officers who had supported and participated in the
coup, including Defendant Samantar." J.A. 32. In order to
squelch potential opposition to its seizure of power, the SRC
outlawed political parties and any organization not sanctioned
by the government, and the SRC "systematically favored its
own clans and oppressed other clans." J.A. 32. In particular,
plaintiffs allege that the military government brutally
oppressed the generally prosperous and well-educated Isaaq
clan, which the government viewed as a threat, and imposed
measures intended to harm the clan politically and economi-
cally.
Beginning in the late 1970s, opposition to the Barre regime
developed within the disfavored clans and grew among the
YOUSUF v. SAMANTAR 5
general citizenry following Somalia’s unsuccessful war
against Ethiopia over the Ogaden territory. The military lead-
ership reacted by imposing harsh control measures against
government opponents, including the alleged commission of
"numerous atrocities against ordinary citizens" in order to
"terrorize the civilian population and to deter it from support-
ing the growing opposition movements." J.A. 33. Plaintiffs
allege that government intelligence agencies, including the
National Security Service ("NSS") and the military police,
engaged in "the widespread and systematic use of torture,
arbitrary detention and extrajudicial killing against the civil-
ian population of Somalia." J.A. 33.
Three of the plaintiffs allege that they were personally sub-
jected to this brutality. Plaintiff Bashe Abdi Yousuf, a mem-
ber of the Isaaq clan, claims that NSS agents, suspecting him
of anti-government activities, abducted him and tortured him
by various methods, including electric shock and "the Mig,"
a means of torture whereby Yousuf’s hands and feet were
bound together in the air behind his back and a heavy rock
was placed on his back. Plaintiff Jane Doe, also an Isaaq clan
member, alleges that in 1985, she was abducted from her fam-
ily home in Hargeisa by NSS agents, repeatedly tortured and
raped, beaten to the point that she could not walk, and placed
in solitary confinement for three and a half years. Finally,
plaintiff John Doe II, also born into the Isaaq clan, alleges
that, although he was a non-commissioned officer in the
Somali National Army, he was arrested in 1988 with other
Somali soldiers who were Isaaq clansmen and then shot dur-
ing a mass execution. Doe survived his non-fatal wound by
hiding under a pile of bodies.
The remaining plaintiffs are pursuing claims as personal
representatives of the estates of family members allegedly
killed by government agents. Plaintiff Aziz Mohamed Deria
alleges that his father and brother were tortured and killed by
soldiers based on his family’s affiliation with the Isaaq clan.
Plaintiff John Doe I, an Isaaq clansman, asserts that his two
6 YOUSUF v. SAMANTAR
brothers were abducted by government forces while tending
the family’s livestock and then executed.
Plaintiffs do not allege that Samantar personally committed
these atrocities or that he was directly involved, but they
claim that the responsible government agents operated against
them and other civilians "with the tacit approval and permis-
sion of the Armed Forces and their commander, Defendant
Samantar," J.A. 33, who served as Somalia’s Minister of
Defense from January 1980 to December 1986, and as Prime
Minister from January 1987 to September 1990. Regardless of
whether the alleged acts occurred during Samantar’s tenure as
Prime Minister or his stint as Minister of Defense, plaintiffs
claim Samantar is subject to liability because, in either capac-
ity, he knew or should have known about this conduct and,
essentially, gave tacit approval for it.
Ultimately, any oppression of Somali civilians ended in
January 1991, when the Barre regime collapsed and high
ranking officials, including Samantar, fled Somalia. Samantar
ended up in Virginia, where the plaintiffs, some of whom
apparently are naturalized American citizens, found him.
B.
Plaintiffs brought this action for damages under the aus-
pices of two statutes. First, plaintiffs seek to impose liability
against Samantar under the Alien Tort Statute ("ATS"). The
ATS grants district courts "original jurisdiction of any civil
action by an alien for a tort only, committed in violation of
the law of nations or a treaty of the United States." 28 U.S.C.
§ 1350. The ATS was enacted as part of the Judiciary Act of
1789 and has been on the books, in essentially its current
form, ever since. See Sosa v. Alvarez-Machain, 542 U.S. 692,
712-13 & n.10 (2004). Fundamentally, "the ATS is a jurisdic-
tional statute [that] creat[ed] no new causes of action"; rather,
it was "enacted on the understanding that the common law
would provide a cause of action for the modest number of
YOUSUF v. SAMANTAR 7
international law violations with a potential for personal lia-
bility at the time." Id. at 724.1
Plaintiffs claim that the torture they suffered and the extra-
judicial killings of their family members constituted viola-
tions of international law. Plaintiffs contend that Samantar is
liable for these acts, both in his capacity as Minister of
Defense and as Prime Minister of Somalia, because he "pos-
sessed and exercised command and effective control over the
Armed Forces of Somalia" and that he "knew or should have
known that his subordinates had committed, were committing,
or were about to commit extrajudicial killings, . . . torture,
crimes against humanity, war crimes, cruel, inhuman, or
degrading treatment." J.A. 45.
Plaintiffs also contend that Samantar is liable under the
Torture Victim Protection Act of 1991 ("TVPA"). The TVPA
provides that "[a]n individual who, under actual or apparent
authority, or color of law, of any foreign nation . . . subjects
an individual to torture" or "subjects an individual to extraju-
dicial killing," is liable in a civil action for damages to the
victim or the victim’s legal representative. § 2(a), 106 Stat.
73. "Though the Torture Victim Act creates a cause of action
for official torture, this statute, unlike the Alien Tort Act, is
not itself a jurisdictional statute." Kadic v. Karadzic, 70 F.3d
232, 246 (2d Cir. 1995) (concluding that the TVPA "permits
the appellants to pursue their claims of official torture under
the jurisdiction conferred by the Alien Tort Act and also
under the general federal question jurisdiction of section
1
According to the plain statutory language, one precondition for subject-
matter jurisdiction to be conferred under the ATS is that suit be filed by
an alien, not a citizen. See Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir.
1995) ("[The ATS] confers federal subject-matter jurisdiction when the
following three conditions are satisfied: (1) an alien sues (2) for a tort (3)
committed in violation of the law of nations (i.e., international law).") To
the extent that any of the claims under the ATS are being asserted by
plaintiffs who are American citizens, federal subject-matter jurisdiction
may be lacking. This issue should be explored upon remand.
8 YOUSUF v. SAMANTAR
1331"); see Arce v. Garcia, 434 F.3d 1254, 1257 n.8 (11th
Cir. 2006) (assuming that § 1331, not the ATS, provides the
jurisdictional basis for the TVPA).
C.
Samantar moved to dismiss for lack of jurisdiction under
Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing
that he is entitled to immunity under the FSIA. The FSIA pro-
vides that, subject to certain exceptions not relevant here, "a
foreign state shall be immune from the jurisdiction of the
courts of the United States." 28 U.S.C. § 1604 (emphasis
added).
Plaintiffs, of course, did not bring this action against Soma-
lia or any other foreign state — they brought it against
Samantar individually. Under the FSIA, however, the term
"foreign state" encompasses more than merely the foreign
sovereign itself; "foreign state" includes "a political subdivi-
sion of a foreign state or an agency or instrumentality of a for-
eign state as defined in [§ 1603(b)]." 28 U.S.C. § 1603(a).2 A
majority of the courts considering the scope of "agency or
instrumentality" have concluded that an individual foreign
official acting within the scope of his official duties qualifies
as an "agency or instrumentality of a foreign state." See, e.g.,
Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095, 1103 (9th
Cir. 1990).
The district court followed the majority view that individu-
als are covered under the FSIA and granted Samantar’s
motion to dismiss because "[t]he allegations in the complaint
2
The FSIA distinguishes between "foreign state" and "agency or instru-
mentality of a foreign state" in only one instance – service of process
under section 1608, which prescribes different methods for serving a for-
eign state and an instrumentality of that state. See 28 U.S.C. § 1608(a),
(b). Otherwise, the phrase "agency or instrumentality of a foreign state" is
essentially interchangeable with "foreign state" as those terms appear in
the FSIA.
YOUSUF v. SAMANTAR 9
clearly describe Samantar, at all relevant times, as acting upon
the directives of the then-Somali government in an official
capacity, and not for personal reasons or motivation." J.A.
223. Additionally, the district court found it important that the
current government in Somalia has expressly adopted the
position that Samantar’s alleged actions were taken in his
official capacity.
The district court relied heavily upon two district court
decisions. In Belhas v. Ya’Alon, 466 F. Supp. 2d 127 (D.D.C.
2006), a decision later affirmed by the District of Columbia
Circuit Court of Appeals, see 515 F.3d 1279 (D.C. Cir. 2008),
the court held that former Israeli general Moshe Ya’Alon was
entitled to sovereign immunity under the FSIA against claims
by civilian bombing victims pursuant to the ATS and the
TVPA based on attacks conducted by the Israeli military in a
1996 skirmish with Hezbollah. Ya’Alon submitted a letter
from the State of Israel officially affirming that his alleged
acts were within the scope and course of his official duties
and were "approved by the government of Israel in defense of
its citizens against terrorist attacks." 466 F. Supp. 2d at 129
(internal quotation marks omitted). The court concluded that
because plaintiffs attempted to impose liability based on
Ya’Alon’s command responsibility for state-approved attacks
rather than acts of a personal or private nature, Ya’Alon "was
acting as an agency or instrumentality of the foreign state [and
was therefore] immune from suit under the FSIA." Id. at 130.
Similarly, in Matar v. Dichter, 500 F.Supp.2d 284 (S.D.N.Y.
2007), the district court concluded that the FSIA immunized
a former director of an Israeli intelligence agency from claims
asserted under the ATS and the TVPA based on the director’s
involvement in the planning and execution of the bombing of
a residential neighborhood in Gaza City. The district court in
Matar based its conclusion on the absence of allegations sug-
gesting that the director’s conduct was of a personal nature
and on a letter from the Israeli state department asserting that
anything the director did in connection to the bombing inci-
dent was done in furtherance of his official duties.
10 YOUSUF v. SAMANTAR
In light of these decisions, the district court below reasoned
that, "[a]s in the Belhas and Matar complaints, the complaint
at issue does not allege that Samantar was acting on behalf of
a personal motive or for private reasons." J.A. 218. The court
further accorded "great weight" to the letters submitted by the
current Somali government, concluding that the government’s
opinion reaffirmed that Samantar’s involvement in the alleged
atrocities was "in his official capacit[y]" and in furtherance of
government efforts to "quell[ ] . . . the insurgencies from 1981
to 1989." J.A. 219. Accordingly, the district court concluded
that Samantar was entitled to sovereign immunity under the
FSIA and dismissed the plaintiffs’ claims for lack of subject-
matter jurisdiction. See Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 434 (1989) ("[T]he text and
structure of the FSIA demonstrate Congress’ intention that the
FSIA be the sole basis for obtaining jurisdiction over a for-
eign state in our courts.")
Plaintiffs challenge the district court’s application of the
FSIA on numerous grounds. Plaintiffs’ most fundamental
assertion is that Congress did not intend for individual foreign
officials to claim sovereign immunity under the FSIA, i.e.,
that the FSIA applies only to foreign states, not to individuals.
Alternatively, plaintiffs contend that, even if the FSIA does
apply to individual foreign officials, such persons are immune
only if they are agents or officials of a foreign state at the time
of suit. The FSIA, plaintiffs argue, does not shield former
officials like Samantar from suit. We address each of these
issues below.3
3
Plaintiffs also contend that, even if the FSIA extends sovereign immu-
nity to former foreign officials, the alleged acts attributed to Samantar,
such as the torture and killing of civilians, are per se violations of "univer-
sally accepted norms of international law," Kadic, 70 F.3d at 243, which
can never be within the scope of a foreign official’s duties. Plaintiffs also
claim that the FSIA is inapplicable because Somalia currently does not
even exist in a form that would qualify it as a "foreign state" under the
FSIA. See 28 U.S.C. § 1603(a). If there is no "foreign state," then a forti-
ori there is no "agency or instrumentality of a foreign state," 28 U.S.C.
§ 1603(b), as there would be no source from which an individual could
derive sovereign immunity. In light of our disposition of this appeal, we
need not address these arguments.
YOUSUF v. SAMANTAR 11
II.
When Congress enacted the FSIA in 1976, it did so against
a backdrop of foreign sovereign immunity jurisprudence
spanning more than 150 years. See Amerada Hess, 488 U.S.
at 434 n.1. Beginning with The Schooner Exchange, 11 U.S.
(7 Cranch) 116 (1812), the Supreme Court essentially granted
absolute immunity from suit to all foreign states. Since for-
eign sovereign immunity is a matter of comity rather than
constitutional law, the Court routinely "deferred to the deci-
sions of the political branches . . . on whether to take jurisdic-
tion over actions against foreign sovereigns and their
instrumentalities." Verlinden B.V. v. Central Bank of Nigeria,
461 U.S. 480, 486 (1983). And, "[u]ntil 1952, the State
Department ordinarily requested immunity in all actions
against friendly foreign sovereigns." Id. In 1952, however, the
State Department changed its policy of suggesting immunity
in every case involving a foreign sovereign and instead
adopted a restrictive theory of sovereign immunity which per-
mitted "foreign states [to] be sued in United States courts for
their commercial acts, but not for their public acts." Amerada
Hess, 488 U.S. at 431 n.1. One consequence of the restrictive
theory, however, was that "foreign nations often placed diplo-
matic pressure on the State Department," which still bore the
primary "responsibility for deciding questions of sovereign
immunity." Verlinden, 461 U.S. at 487.
In 1976, Congress enacted the FSIA, shifting responsibility
for deciding questions of foreign sovereign immunity from
the Executive Branch to the Judicial Branch "in order to free
the Government from the case-by-case diplomatic pressures,
[and] to clarify the governing standards." Id. at 488; see 28
U.S.C. § 1602. The FSIA essentially codifies the restrictive
theory of foreign sovereign immunity under which a "foreign
state" is "immune from the jurisdiction of the courts of the
United States . . . except as provided in sections 1605 to 1607."4
4
None of these sections contains an applicable exception in this case.
See 28 U.S.C. § 1605 (exceptions to foreign state’s presumptive immunity
12 YOUSUF v. SAMANTAR
28 U.S.C. § 1604. Congress did not define the term "foreign
state" except to say that it "includes a political subdivision of
a foreign state or an agency or instrumentality of a foreign
state as defined in subsection (b)." 28 U.S.C. § 1603(a). In
turn, subsection (b) defines "agency or instrumentality of a
foreign state" as
any entity—
(1) which is a separate legal person, corporate or oth-
erwise, 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.
28 U.S.C. § 1603(b).
Because there is no explicit mention of individuals or natu-
ral persons, it is not readily apparent that Congress intended
the FSIA to apply to individuals. Before we address the merits
of this issue, however, we must make sure that we are not
foreclosed from doing so by circuit precedent.
include waiver of immunity; commercial activity within or directly affect-
ing the United States; various claims involving property; noncommercial
torts committed in the United States; and maritime liens); § 1606 (pre-
scribing the extent of a foreign state’s liability on claims "with respect to
which [it] is not entitled to immunity"; § 1607 (involving counterclaims in
lawsuits brought in federal courts by a foreign state); see generally Argen-
tine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439-40
(1989) (listing and discussing exceptions set forth in § 1605).
YOUSUF v. SAMANTAR 13
A.
Samantar takes the position that we settled the question of
whether the FSIA applies to individual foreign government
officials in Velasco v. The Government of Indonesia, 370 F.3d
392 (4th Cir. 2004), siding with the majority of the federal
appellate courts that have directly addressed the issue.
As noted previously, the majority view clearly is that the
FSIA applies to individual officials of a foreign state, as
explained in the Ninth Circuit’s seminal Chuidian decision.
See 912 F.2d at 1099-1103. Most of the decisions embracing
the view that individuals are covered by the FSIA either
expressly adopt Chuidian’s reasoning or incorporate substan-
tially similar reasoning. See, e.g., In re Terrorist Attacks on
September 11, 2001, 538 F.3d 71, 83 (2d Cir. 2008) (explain-
ing that "agency or instrumentality" is broad enough to
encompass "senior members of a foreign state’s govern-
ment"); Keller v. Central Bank of Nigeria, 277 F.3d 811, 815-
16 (6th Cir. 2002) (concluding individual defendants were
within "agency or instrumentality" provision); Byrd v. Cor-
poracion Forestal y Industrial de Olancho, 182 F.3d 380,
388-89 (5th Cir. 1999) (adopting majority position as articu-
lated in Chuidian); El-Fadl v. Central Bank of Jordan, 75
F.3d 668, 671 (D.C. Cir. 1996) (same). Chuidian holds the
definition of an "agency or instrumentality of a foreign state"
under § 1603(b) encompasses "individual officials acting in
their official capacity." 912 F.2d at 1101. By contrast, the
Seventh Circuit stands alone in concluding that the FSIA does
not apply to individuals. See Enahoro v. Abubakar, 408 F.3d
877, 881-82 (7th Cir. 2005) (rejecting the Chuidian approach
as inconsistent with the statutory text).
For the reasons that follow, we believe this is still an open
question in the Fourth Circuit. In fairness to Samantar, how-
ever, he is not alone in his reading of Velasco, as a number
of courts and commentators believe Velasco adopted the
majority position. See, e.g., Kensington Int’l Ltd. v. Itoua, 505
14 YOUSUF v. SAMANTAR
F.3d 147, 160 (2d Cir. 2007) (reading Velasco as "conclud[-
ing] that the FSIA applies to individuals acting in their official
capacity" in reliance on Chuidian); Stewart, David P., The UN
Convention on Jurisdictional Immunities of States and Their
Property, 99 Am. J. Int’l L. 194, 196 n.13 (2005) (including
Velasco in a list of decisions by "[a] growing number of U.S.
courts [that] have held that the FSIA applies to individual
officials of foreign governments to the extent their actions
were performed in their official capacities"). We do not read
our decision in Velasco in this manner.
It is true that Velasco cited Chuidian and noted that numer-
ous courts have construed the FSIA to cover individual for-
eign officials acting within the scope of their authority.
Velasco, however, was ultimately focused on the wholly sepa-
rate question of whether, and under what circumstances, the
acts of an individual operate to bind a foreign sovereign
claiming immunity under the FSIA. See Velasco, 370 F.3d at
399-400.
The plaintiff in Velasco brought an action to collect on an
Indonesian promissory note issued by staff members of Indo-
nesia’s National Defense Security Council ("NDSC"). Indo-
nesia claimed sovereign immunity under the FSIA, and the
parties agreed the only possible basis for jurisdiction was the
FSIA’s "commercial activity" exception under which there is
no immunity against claims "based upon a commercial activ-
ity carried on in the United States by the foreign state." 28
U.S.C. § 1605(a)(2). As it turned out, the promissory notes
were fraudulent instruments that the NDSC staff members had
no authority to issue. Indonesia argued that the lawsuit was
not based on commercial activity "by [a] foreign state," i.e.,
that the unauthorized conduct of the NDSC staffers could not
be attributed to Indonesia. See Velasco, 370 F.3d at 398.
Applying the well-established tenet that an "act of an agent
beyond what he is legally empowered to do is not binding on
the government," id. at 399, we concluded that
YOUSUF v. SAMANTAR 15
[b]y issuing the notes, the individual Defendants
acted ultra vires and in violation of Indonesian law.
As a consequence, the issuance of the notes cannot
be characterized as the commercial activity of a for-
eign state which divests the NDSC or the Govern-
ment of Indonesia of their sovereign immunity.
Id. at 402. Thus, despite the reference to Chuidian and other
decisions addressing the scope of § 1603(b), Velasco was not
about whether an individual government official was entitled
to sovereign immunity as an "agency or instrumentality of a
foreign state." Rather, it was about whether the Indonesian
government was bound, through agency principles, by the
unauthorized acts of individual government officials.5
Accordingly, Velasco did not settle the question of whether
Congress intended to confer sovereign immunity under the
FSIA on an individual acting within the scope of his author-
ity.
B.
In determining congressional intent, we focus of course on
the language of the provision at issue, but we also consider
the overall structure and purpose of the statute. See Morales
v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992).
Under the FSIA, an "agency or instrumentality of a foreign
state" is defined as an "entity" that "is a separate legal person,
corporate or otherwise." 28 U.S.C. § 1603(b)(1). The phrase
5
Velasco also examined and rejected the question of whether a foreign
state can be bound under the FSIA by an individual agent who has appar-
ent but not actual authority. See Velasco v. The Government of Indonesia,
370 F.3d 392, 400 (4th Cir. 2004) ("Whether a third party reasonably per-
ceives that the sovereign has empowered its agent to engage in a transac-
tion . . . is irrelevant if the sovereign’s constitution or laws . . . do not
authorize the agent’s conduct and the third party fails to make a proper
inquiry. We conclude that a foreign official’s manifestation of authority to
bind the sovereign is insufficient to bind the sovereign.").
16 YOUSUF v. SAMANTAR
"separate legal person" is laden with corporate connotations.
Generally, courts use this phrase as "a convenient way to cap-
ture the essence of the principal of limited liability" that flows
from "[t]he fiction of corporate personhood." Beiser v.
Weyler, 284 F.3d 665, 670 (5th Cir. 2002). "A basic tenet of
American corporate law is that the corporation and its share-
holders are distinct entities." Dole Food Co. v. Patrickson,
538 U.S. 468, 474 (2003). The idea of a "[s]eparate legal per-
sonality has been described as an almost indispensible aspect
of the public corporation." First Nat’l City Bank v. Banco
Para El Comercio Exterior de Cuba, 462 U.S. 611, 625
(1983) (internal quotation marks omitted). We find the Sev-
enth Circuit’s view of this passage especially persuasive:
[I]f it was a natural person Congress intended to
refer to, it is hard to see why the phrase "separate
legal person" would be used, having as it does the
ring of the familiar legal concept that corporations
are persons, which are subject to suit. Given that the
phrase "corporate or otherwise" follows on the heels
of "separate legal person," we are convinced that the
latter phrase refers to a legal fiction—a business
entity which is a legal person. If Congress meant to
include individuals acting in the official capacity in
the scope of the FSIA, it would have done so in clear
and unmistakable terms.
Enahoro, 408 F.3d at 881-82. Thus, the FSIA’s use of the
phrase "separate legal person" suggests that corporations or
other business entities, but not natural persons, may qualify as
agencies or instrumentalities.
Moreover, in order to ensure that an "agency or instrumen-
tality" seeking the benefits of sovereign immunity is actually
connected to a "foreign state," the FSIA requires that the "en-
tity" be "neither a citizen of a State of the United States as
defined in section 1332(c) and (e) of [Title 28], nor created
under the laws of any third country." 28 U.S.C. § 1603(b)(3)
YOUSUF v. SAMANTAR 17
(emphasis added). Sections 1332(c) and (e), which govern the
citizenship of corporations and legal representatives of
estates, are inapplicable to individuals, and it is nonsensical to
speak of an individual, rather than a corporate entity, being
"created" under the laws of a country.
Construing "agency or instrumentality" to refer to a politi-
cal body or corporate entity, but not an individual, is also con-
sistent with the overall statutory scheme of the FSIA. Section
1608, for example, establishes the exclusive means for service
of process on a foreign state or its agencies or instrumentali-
ties. See 28 U.S.C. § 1608(a), (b); Fed. R. Civ. P. 4(j)(1). Sec-
tion 1608(b), which addresses service upon an agency or
instrumentality, does not contemplate service on an individ-
ual, but instead provides that absent a "special arrangement
for service between the plaintiff and the agency or instrumen-
tality," service must be perfected "by delivery of a copy of the
summons and complaint either to an officer, a managing or
general agent, or to any other agent authorized by appoint-
ment or by law to receive service of process in the United
States; or in accordance with an applicable international con-
vention on service of judicial documents." 28 U.S.C.
§ 1608(b) (emphasis added). This language is strikingly simi-
lar to the general procedural rule for service on a corporation
or other business entity. See Fed. R. Civ. P. 4(h)(1)(B). The
requirements for serving an individual, by contrast, can be
found back in Rule 4(e) ("Serving an Individual Within a
Judicial District of the United States"), or even Rule 4(f)
("Serving an Individual in a Foreign Country"). The fact that
section 1608 uses language virtually identical to that found in
Rule 4(h) for service upon corporate entities and fails to pre-
scribe or refer to service provisions for individual defendants
strongly supports our interpretation that "an agency or instru-
mentality of a foreign state" cannot be an individual.
We also find confirmation for our understanding of the
FSIA in the House Committee Report on the FSIA. The
House Report explained that "separate legal person" was "in-
18 YOUSUF v. SAMANTAR
tended 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, con-
tract in its own name or hold property in its own name." H.R.
Rep. No. 94-1487, at 15 (1976), as reprinted in 1976
U.S.C.C.A.N. 6604, 6614. The House Committee Report pro-
vided some examples of entities that would satisfy the prereq-
uisites for an agency or instrumentality under section 1603(b),
"including a state trading corporation, a mining enterprise, a
transport organization such as a shipping line or airline, a
steel company, a central bank, an export association, a gov-
ernmental procurement agency or a department or ministry
which acts and is suable in its own name." H.R. Rep. No. 94-
1487, at 16, as reprinted in 1976 U.S.C.C.A.N. at 6614.
Accordingly, we conclude, based on the language and
structure of the statute, that the FSIA does not apply to indi-
vidual foreign government agents like Samantar. Accordingly,
the district court erred by concluding that Samantar is
shielded from suit by the FSIA.
III.
Plaintiffs also present the closely related argument that the
FSIA requires the court to assess whether an entity qualifies
as an "agency or instrumentality of a foreign state" under sec-
tion 1603(b) based on that entity’s status at the time that the
action is filed rather than the time of the underlying conduct.
More simply, plaintiffs believe that even if the FSIA applies
to individual defendants, Congress did not intend to shield
former government agents from suit under the FSIA. We
agree.
The Supreme Court addressed the temporal implications of
section 1603(b) in Dole Food Co. v. Patrickson, 538 U.S. 480
(2003). In Dole Food, the Dead Sea Companies corporation
claimed immunity under the FSIA as an instrumentality of the
State of Israel, which owned a majority share in parent com-
YOUSUF v. SAMANTAR 19
panies of the Dead Sea Companies at the time of the events
being litigated but not at the time of suit. See 28 U.S.C.
§ 1603(b)(2) ("An ‘agency or instrumentality of a foreign
state’" includes an entity "a majority of whose shares or other
ownership interest is owned by a foreign state or political sub-
division thereof."). The Court held that "the plain text of this
provision, because it is expressed in the present tense,
requires that instrumentality status be determined at the time
suit is filed." Id. at 478. The Court explained that its focus on
the significance of the present tense was faithful to the general
rule "that ‘the jurisdiction of the Court depends upon the state
of things at the time of the action brought.’" Id. (quoting
Keene Corp. v. United States, 508 U.S. 200, 207 (1993)).
Samantar argues that Dole Food does not apply here
because the Court was construing language that applied exclu-
sively to corporations. Unfortunately for Samantar, this argu-
ment knocks the legs out from under his own contention that
the FSIA applies to individuals. If, as Samantar suggests, an
individual can be an "agency or instrumentality of a foreign
state," then the language of section 1603(b)(2) — the very
section considered in Dole Food—must apply to both corpo-
rations and individuals. An entity, regardless of its form, can
be an "agency or instrumentality of a foreign state" only if
that entity satisfies all three provisions of subsection (b). See
28 U.S.C. § 1603(b). Therefore, we cannot dismiss the
Supreme Court’s construction merely because the defendant
in Dole Food was a corporate entity. And, like the "ownership
interest" clause at issue in Dole Food, the clause immediately
preceding it is also expressed in the present tense. Under sec-
tion 1603(b)(2), an entity can be an "agency or instrumental-
ity of a foreign state" only if that entity "is an organ of a
foreign state or political subdivision thereof." 28 U.S.C.
§ 1603(b)(2) (emphasis added); cf. Yi v. Federal Bureau of
Prisons, 412 F.3d 526, 533 (4th Cir. 2005) (noting "the strong
presumption that identical terms used in the same sentence of
a statute carry the same meaning"). Samantar’s interpretation
would require us to bypass the plain text of the statute in favor
20 YOUSUF v. SAMANTAR
of a reading at odds with Dole Food. We see nothing in the
statute suggesting that, if Congress intended individual for-
eign officials to be covered by the FSIA in the first place, it
likewise intended to treat individuals differently than any
other entity qualifying as an "agency or instrumentality" or
depart from the principle that jurisdiction hinges on "the state
of things at the time of the action" only in the case of individ-
uals. Dole Food, 538 U.S. at 478 (internal quotation marks
omitted).
Finding the plain text unavailing, Samantar offers a policy
basis for distinguishing between former individual govern-
ment officials and corporations formerly owned by a foreign
state. He suggests that when a government sells or transfers
its majority interest in a corporation, the new purchasers have
an opportunity to bargain for indemnification for any liabili-
ties arising before the transfer of ownership, making immu-
nity from suit less critical than it is for former individual
government agents, who have no such opportunity. Beyond
requiring us to ignore unambiguous language in a statute,
which we cannot do, see Barnhart v. Sigmon Coal Co., 534
U.S. 438, 461-62 (2002), Samantar’s reasoning is inconsistent
with the purpose of foreign sovereign immunity, which is to
protect international relations between the United States and
foreign sovereigns as a matter of comity. See Republic of Aus-
tria v. Altmann, 541 U.S. 677, 696 (2004). Samantar’s
hypothesis, by contrast, focuses on the protection of individ-
ual foreign officials in a way that is reminiscent of qualified
immunity or other status-based immunities that are concerned
with matters as they exist at the time of the offending conduct.
Dole Food is instructive on this point, explaining that quali-
fied immunity, for example, "prevent[s] the threat of suit from
crippling the proper and effective administration of public
affairs," id. at 479 (alteration and internal quotation marks
omitted), while "[f]oreign sovereign immunity, by contrast, is
not meant to avoid chilling foreign states or their instrumen-
talities in the conduct of their business but to give foreign
YOUSUF v. SAMANTAR 21
states and their instrumentalities some protection from the
inconvenience of suit as a gesture of comity between the
United States and other sovereigns." Id. (emphasis added); see
Verlinden, 461 U.S. at 486 (explaining that the underpinnings
of "foreign sovereign immunity" are "a matter of grace and
comity on the part of the United States"). The doctrine of for-
eign sovereign immunity developed in the pre-FSIA common
law out of a concern for "our national interest" and the preser-
vation of amicable international relations. Ex parte Republic
of Peru, 318 U.S. 578, 589 (1943); Republic of Mexico v.
Hoffman, 324 U.S. 30, 36 (1945) (observing that the assertion
of judicial power over the property of a foreign state may be
viewed as "an affront to its dignity and may . . . affect our
relations with it"). The FSIA preserves this basic purpose of
sovereign immunity, which "has never been to permit foreign
states and their instrumentalities to shape their conduct in reli-
ance on the promise of future immunity from suit," but
instead "aims to give foreign states . . . some present protec-
tion from the inconvenience of suit as a gesture of comity."
Altmann, 541 U.S. at 696 (internal quotation marks omitted)
(emphasis in original).
In sum, we conclude that even if an individual foreign offi-
cial could be an "agency or instrumentality under the FSIA,"
sovereign immunity would be available only if the individual
were still an "agency or instrumentality" at the time of suit.
Dole Food guides our resolution of this issue, regardless of
whether the purported agency or instrumentality is a corpora-
tion owned by a foreign government or an individual foreign
official; we see nothing in the statute or its underlying pur-
pose to suggest otherwise. Samantar was certainly no longer
a Somali government official at the time the plaintiffs brought
this action and is therefore not entitled to immunity under the
FSIA.
IV.
For these reasons, we reverse the decision of the district
court that it lacks subject matter jurisdiction under the FSIA,
22 YOUSUF v. SAMANTAR
and we remand for further proceedings. Samantar suggests,
despite the adverse ruling on the question of sovereign immu-
nity, that we ought to affirm the result on alternative grounds.
Samantar contends that, even if he is not covered under the
FSIA, he is shielded from suit by a common law immunity
doctrine such as head-of-state immunity. See In re Grand Jury
Proceedings, 817 F.2d 1108, 1110 ("Head-of-state immunity
is a doctrine of customary international law . . . maintain[ing]
that a head of state is immune from the jurisdiction of a for-
eign state’s courts, at least as to authorized official acts taken
while the ruler is in power.") (4th Cir. 1987); see also Ye v.
Zemin, 383 F.3d 620, 625 (7th Cir. 2004) ("Because the FSIA
does not apply to heads of states, the decision concerning the
immunity of foreign heads of states remains vested where it
was prior to 1976 — with the Executive Branch."). He also
contends that plaintiffs’ claims under the ATS and the TVPA
are time-barred, and that plaintiffs’ claims are also barred
because they failed to exhaust their legal remedies in Somalia.
In view of its conclusion that it lacked jurisdiction, the district
court did not address these issues below. We conclude that
these questions are better addressed in the first instance by the
district court and therefore decline to address them now. We
conclude only that Samantar is not entitled to sovereign
immunity under the FSIA; whether he can successfully invoke
an immunity doctrine arising under pre-FSIA common law is
an open question which Samantar is free to pursue on remand,
along with the aforementioned procedural questions. Finally,
our decision should not be read to intimate that plaintiffs have
necessarily stated viable claims against Samantar under the
ATS or TVPA; those are also open questions for remand.
REVERSED AND REMANDED
DUNCAN, Circuit Judge, concurring in Parts I and II and
concurring in the judgment:
With respect, I join in all but Part III of Judge Traxler’s
incisive opinion. I agree with the majority that the Foreign
YOUSUF v. SAMANTAR 23
Sovereign Immunities Act ("FSIA") does not, upon examina-
tion of its plain language and the context of its drafting, apply
to individual officers of foreign states. I note as well that our
decision on this issue is not the radical departure from the
course of current authority that it might seem. While few of
our sister circuits have reached the same conclusion, the
United States Department of State has argued in analogous
cases that the common law immunities that predate the FSIA
remain the appropriate body of law under which courts should
consider the sovereign immunity of individuals. Our decision
in this case is in keeping with this position and with the statu-
tory text of the FSIA itself. I therefore concur in Parts I and
II of the opinion and in the judgment reversing the district
court and remanding this case for further proceedings.
Our conclusion that the FSIA does not apply to individuals
is sufficient to resolve the case before us. Therefore, I do not
join my colleagues in reaching the question of whether and
how Dole Food Co. v. Patrickson, 538 U.S. 480 (2003),
would apply to individual foreign officers. Prudential consid-
erations also militate against an expansive holding. Sovereign
immunity, while a judicial question, is inextricably bound up
with the executive branch’s conduct of foreign affairs, and I
would prefer to err on the side of caution in the extension of
our jurisprudence.