Yousuf v. Samantar

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.