Thursday, April 26, 2012

Yousuf v. Samantar case brief

Yousuf v. Samantar552 F.3d 371 (2009)

Procedural History:
Appeal from dismissal of action for damages for acts of torture and human rights violations under the Torture Victim Protection Act of 1991.

Overview:
Natives of Somalia (P) brought suit under the Torture Victim Protection Act of 1991 against Samantar (D), claiming that they were victims of acts of torture and human rights violations committed against them by Somali government agents commanded by Samantar (D), who claimed immunity under the Foreign Sovereign Immunities Act (FSIA). 
-Natives of Somalia (P) brought suit under the Torture Victim Protection Act of 1991 against Samantar (D), claiming that they were victims of acts of torture and human rights violations committed against them by Somali government agents commanded by Samantar (D), who claimed immunity under the Foreign Sovereign Immunities Act (FSIA).
-The district court, following the majority view that individuals acting within the scope of their official duties qualifies them as an “agency or instrumentality of a foreign state” under the FSIA, and finding that Samantar (D) had acted in his official capacity, held that Samantar (D) had immunity from suit, and dismissed the case. The court of appeals granted review.

Issue:

Does the FSIA apply to individual officials of a foreign state?

Rule:

the FSIA does not apply to individual officials of a foreign state.

Analysis:

One criticism of the approach taken by the court in this case is that since there is little practical difference between a suit against a state and a suit against an individual acting in high official capacity, plaintiffs will be able to circumvent state immunity by suing government officials in their individual capacities, thus undermining one of the FSIA’s primary goals.

Outcome:

-The FSIA does not apply to individual officials of a foreign state. A majority of the courts considering the scope of the meaning of “agency or instrumentality” under the FSIA 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.” However, the language and overall structure and purpose of the statute must also be considered.
-The FSIA defines an “agency or instrumentality” as an ”entity” that is a “separate legal person …. ” The phrase “separate legal person” seems to be drawn from corporate law, which holds that a corporation and its shareholders are distinct entities.
-If Congress had intended to cover individuals, it could have said so, without using a corporate concept. Thus, the FSIA’s use of the phrase suggests that natural persons are not covered thereby.
-Moreover, in ensuring that an “agency or instrumentality” seeking the benefits of sovereign immunity is actually connected to a “foreign state,” the FSIA requires that the “entity” be “neither a citizen of a State of the United States as defined in § 1332(c) and (e) … nor created under the laws of any third country.” Sections 1332(c) and (e) govern the citizenship of corporations and legal representatives of estates, and are inapplicable to individuals. Also, it is nonsensical to speak of an individual, rather than a corporate entity, being “created” under the laws of a country.
-Therefore, these references support the interpretation that natural persons are not covered by the FSIA. Such an interpretation is also consistent with the FSIA’s overall statutory scheme. For example, the rules for service of process under the FSIA are strikingly similar to the general procedural rules for service on a corporation or other business entity, and do not contain the rules for service of process on an individual. Finally, the legislative history also supports the interpretation that “an agency or instrumentality of foreign state” cannot be an individual.
-The House Committee Report on the FSIA explained that “separate legal person” was “intended to include a corporation, association, foundation, or any other entity that, under the law of the foreign state where it was created, can sue or be sued in its own name, contract in its own name or hold property in its own name.”
-Because the FSIA does not apply to individual foreign government agents like Samantar (D), the district court erred that he had immunity. Reversed.

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