Non-immunity: Us Brief as Amicus in the us Court of Appeals For the Fourth Circuit in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): After the district court accepted the U.S. Department of State's determination of non-immunity and denied Samantar's motion to dismiss, Samantar appealed to the Court of Appeals for the Fourth Circuit. Yousuf v. Samantar, No. 11-1479 (4th Cir.). On October 24, 2011, the United States filed a brief as amicus curiae in the Fourth Circuit to reiterate its determination of non-immunity and support a decision affirming the district court's dismissal of the motion to dismiss. The U.S. amicus brief is excerpted below (with footnotes and citations to the record in the case omitted) and is available in full at (internet link)

After the Government informed the district court that the State Department had determined that Samantar is not immune from this suit, the district court properly denied Samantar's motion to dismiss.


1. In holding that the FSIA does not govern Samantar's claim of foreign official immunity, the Supreme Court described the courts' historic deference to Executive Branch foreign sovereign immunity determinations before Congress enacted the FSIA. Samantar, 130 S. Ct. at 2284. The Supreme Court explained that “[t]he doctrine of foreign sovereign immunity developed as a matter of common law long before the FSIA was enacted in 1976.” Samantar, 130 S. Ct. at 2284. The Court first recognized the doctrine in The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch.) 116 (1812). Samantar, 130 S. Ct. at 2284. “Following Schooner Exchange, a two-step procedure developed for resolving a foreign state's claim of sovereign immunity.” Ibid. A foreign state facing suit in the U.S. courts could request a “suggestion of immunity” from the State Department. Ibid. (quotation marks omitted). If the State Department accepted the request and filed a suggestion of immunity, the district court “surrendered its jurisdiction.” Ibid. But if the State Department took no position in the suit, “a district court had authority to decide for itself whether all the requisites for such immunity existed.” Ibid. (quotation marks omitted). In such a circumstance, the district court was to apply “the established policy of the [State Department]” to determine whether the foreign state was entitled to immunity. Ibid. (quotation marks omitted).

Of considerable significance to this case, the Supreme Court further explained that, “[a]lthough cases involving individual foreign officials as defendants were rare, the same two-step procedure was typically followed when a foreign official asserted immunity.” Id. at 2284–85 (citing cases). Accepting the Government's argument as amicus curiae, the Samantar Court explained that “[t]he immunity of officials simply was not the particular problem to which Congress was responding when it enacted the FSIA.” Id. at 2291. Accordingly, the Court could discern “no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department's role in determinations regarding individual official immunity.” Ibid. And, as the Supreme Court explained, the State Department's role was to determine whether a foreign state or official was immune from suit and courts would look to principles articulated by the State Department when determining foreign official immunity in suits in which the State Department did not participate. Id. at 2284.


At the time this suit was before the Supreme Court, the State Department had made no determination concerning Samantar's immunity. Accordingly, the Court left open the question whether Samantar “may be entitled to immunity under the common law,” and it remanded the suit “for further proceedings consistent with this opinion.” Id. at 2292–93. On remand, the Government informed the district court that the State Department had determined that Samantar is not immune from this suit…. Under the Supreme Court's decision in this case, that determination was binding, and the district court properly gave it effect.

2.a. In attacking the district court's order, Samantar principally argues that the common law of foreign official immunity impels courts to defer only to Executive Branch determinations that a foreign official is immune from suit, but not to determinations that the official lacks immunity. But Samantar's argument is contrary to the Supreme Court's explanation of the State Department's role in foreign official immunity determinations.

First, Samantar focuses on the Supreme Court's statement, describing pre-FSIA practice, that “'in the absence of recognition of the immunity by the Department of State, a district court had authority to decide for itself whether all the requisites for such immunity existed.'” Ibid. (quoting Samantar, 130 S. Ct. at 2284 (emphasis omitted)). Samantar's reliance on this sentence is misplaced. As plaintiffs argue in their appellee brief , in context, it is clear that the Supreme Court did not suggest that courts had authority before the FSIA was enacted to disregard the State Department's determination that a foreign sovereign was not immune from suit. Rather, the Supreme Court explained that, when the State Department made no immunity determination, the district court should make the determination, by considering “'whether the ground of immunity is one which it is the established policy of the[State Department] to recognize.'” Samantar, 130 S. Ct. at 2284 (quoting Republic of Mexico v. Hoffman, 324 U.S. 30, 36 (1945)) (emphasis added). Thus, the Supreme Court recognized that the State Department's immunity principles govern the courts' determinations regarding foreign official immunity.

More about the Issue

This rule is confirmed by the pre-FSIA immunity decisions cited by the Court in Samantar. In Ex Parte Peru, for example, the Supreme Court held that in suits against foreign governments, “'the judicial department of this government follows the action of the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction.'” 318 U.S. 578, 588 (1943) (quoting United States v. Lee, 106 U.S. 196, 209 (1882)). In that case, involving an in rem action against a foreign state-owned vessel, the Supreme Court unambiguously stated “that courts are required to accept and follow the executive determination that the vessel is immune.” Ibid.

More importantly, the Supreme Court shortly thereafter noted that “[e]very judicial action exercising or relinquishing jurisdiction over the vessel of a foreign government has its effect upon the U.S. relations with that government.” Hoffman, 324 U.S. at 35 (emphasis added). For that reason, the Court instructed that — in words that directly rebut Samantar's argument — it is “not for the courts to deny an immunity which the U.S. government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize.” Ibid. (emphasis added). The Supreme Court added that “recognition by the courts of an immunity upon principles which the political department of government has not sanctioned may be equally embarrassing to it in securing the protection of the U.S. national interests and their recognition by other nations.” Id. at 36.

In sum, the law that developed in various Supreme Court opinions — and that the Court in Samantar held had not been displaced by Congress when it enacted the FSIA — stated unequivocally that the courts should not either deny or recognize immunity for a foreign official contrary to determinations of the State Department. Samantar's argument that a district court may disregard the State Department's determination that a specific former foreign official is not immune from suit is contrary to the Supreme Court's decision in this case. In a case like this one in which the Government has clearly stated the State Department's conclusion that Samantar is not entitled to foreign official immunity, and pointed to the particularly significant circumstances underlying the Government's Statement of Interest, a court would obviously not be following the “established policy of the State Department” (Samantar, 130 S. Ct. at 2284 (quotation and alternation marks omitted)), if it chose to overrule the State Department and grant immunity anyway.


See Also

  • Privileges
  • Immunities
  • Immunity
  • Foreign Officials






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