Samantar v. Yousuf

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

SAMANTAR v. YOUSUF ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

No. 08–1555. Argued March 3, 2010—Decided June 1, 2010

Respondents, who were persecuted by the Somali government during

the 1980’s, filed a damages action alleging that petitioner, who then

held high level government positions, exercised command and control

over the military forces committing the abuses; that he knew or

should have known of these acts; and that he aided and abetted in

their commission. The District Court concluded that it lacked sub

ject-matter jurisdiction and granted petitioner’s motion to dismiss the

suit, resting its decision on the Foreign Sovereign Immunities Act of

1976 (FSIA or Act), which provides that a “foreign state shall be im

mune from the jurisdiction” of both federal and state courts except as

provided in the Act, 28 U. S. C. §1604. The Fourth Circuit reversed,

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

Held: The FSIA does not govern petitioner’s claim of immunity. Pp. 4–

20.

(a) Under the common-law doctrine of foreign sovereign immunity,

see Schooner Exchange v. McFaddon, 7 Cranch 116, if the State De

partment granted a sovereign’s diplomatic request for a “suggestion

of immunity,” the district court surrendered its jurisdiction, Ex parte

Peru, 318 U. S. 573, 581, 587. If the State Department refused, the

court could decide the immunity issue itself. Id., at 587. In 1952, the

State Department moved from a policy of requesting immunity in

most actions against friendly sovereigns to a “restrictive” theory that

confined immunity “to suits involving the foreign sovereign’s public

acts.” Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 487.

Inconsistent application of sovereign immunity followed, leading to

the FSIA, whose primary purposes are (1) to endorse and codify the

restrictive theory, and (2) to transfer primary responsibility for decid

ing “claims of foreign states to immunity” from the State Department

2 SAMANTAR v. YOUSUF

Syllabus

to the courts. §1602. This Act now governs the determination

whether a foreign state is entitled to sovereign immunity. Pp. 4–7.

(b) Reading the FSIA as a whole, there is nothing to suggest that

“foreign state” should be read to include an official acting on behalf of

that state. The Act specifies that a foreign state “includes a political

subdivision . . . or an agency or instrumentality” of that state,

§1603(a), and specifically delimits what counts as an “agency or in

strumentality,” §1603(b). Textual clues in the “agency or instrumen

tality” definition—“any entity” matching three specified characteris

tics, ibid.—cut against reading it to include a foreign official.

“Entity” typically refers to an organization; and the required statu

tory characteristics—e.g., “separate legal person,” §1603(b)(1)—apply

awkwardly, if at all, to individuals. Section 1603(a)’s “foreign state”

definition is also inapplicable. The list set out there, even if illustra

tive rather than exclusive, does not suggest that officials are in

cluded, since the listed defendants are all entities. The Court’s con

clusion is also supported by the fact that Congress expressly

mentioned officials elsewhere in the FSIA when it wished to count

their acts as equivalent to those of the foreign state. Moreover, other

FSIA provisions—e.g., §1608(a)—point away from reading “foreign

state” to include foreign officials. Pp. 7–13.

(c) The FSIA’s history and purposes also do not support petitioner’s

argument that the Act governs his immunity claim. There is little

reason to presume that when Congress codified state immunity, it in

tended to codify, sub silentio, official immunity. The canon of con

struction that statutes should be interpreted consistently with the

common law does not help decide the question whether, when a stat

ute’s coverage is ambiguous, Congress intended it to govern a par

ticular field. State and official immunities may not be coextensive,

and historically, the Government has suggested common-law immu

nity for individual officials even when the foreign state did not qual

ify. Though a foreign state’s immunity may, in some circumstances,

extend to an individual for official acts, it does not follow that Con

gress intended to codify that immunity in the FSIA. Official immu

nity was simply not the problem that Congress was addressing when

enacting that Act. The Court’s construction of the Act should not be

affected by the risk that plaintiffs may use artful pleading to attempt

to select between application of the FSIA or the common law. This

case, where respondents have sued petitioner in his personal capacity

and seek damages from his own pockets, is governed by the common

law because it is not a claim against a foreign state as defined by the

FSIA. Pp. 13–19.

(d) Whether petitioner may be entitled to common-law immunity

and whether he may have other valid defenses are matters to be ad

Cite as: 560 U. S. ____ (2010) 3

Syllabus

dressed in the first instance by the District Court. P. 20.

552 F. 3d 371, affirmed and remanded.

STEVENS, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ.,

joined. ALITO, J., filed a concurring opinion. THOMAS, J., filed an opin

ion concurring in part and concurring in the judgment. SCALIA, J., filed

an opinion concurring in the judgment.

Cite as: 560 U. S. ____ (2010) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1555

_________________

MOHAMED ALI SAMANTAR, PETITIONER v. BASHE

ABDI YOUSUF ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[June 1, 2010]

JUSTICE STEVENS delivered the opinion of the Court.

From 1980 to 1986 petitioner Mohamed Ali Samantar

was the First Vice President and Minister of Defense of

Somalia, and from 1987 to 1990 he served as its Prime

Minister. Respondents are natives of Somalia who allege

that they, or members of their families, were the victims of

torture and extrajudicial killings during those years. They

seek damages from petitioner based on his alleged au

thorization of those acts. The narrow question we must

decide is whether the Foreign Sovereign Immunities Act of

1976 (FSIA or Act), 28 U. S. C. §§1330, 1602 et seq., pro

vides petitioner with immunity from suit based on actions

taken in his official capacity. We hold that the FSIA does

not govern the determination of petitioner’s immunity

from suit.

I

Respondents are members of the Isaaq clan, which

included well-educated and prosperous Somalis who were

subjected to systematic persecution during the 1980’s by

the military regime then governing Somalia. They allege

that petitioner exercised command and control over mem

2 SAMANTAR v. YOUSUF

Opinion of the Court

bers of the Somali military forces who tortured, killed, or

arbitrarily detained them or members of their families;

that petitioner knew or should have known of the abuses

perpetrated by his subordinates; and that he aided and

abetted the commission of these abuses.1 Respondents’

complaint sought damages from petitioner pursuant to the

Torture Victim Protection Act of 1991, 106 Stat. 73, note

following 28 U. S. C. §1350, and the Alien Tort Statute, 28

U. S. C. §1350. Petitioner, who was in charge of Somalia’s

armed forces before its military regime collapsed, fled

Somalia in 1991 and is now a resident of Virginia. The

United States has not recognized any entity as the gov

ernment of Somalia since the fall of the military regime.

See Brief for United States as Amicus Curiae 4.

Respondents filed their complaint in November 2004,

and petitioner promptly moved to dismiss. The District

Court stayed the proceedings to give the State Depart

ment an opportunity to provide a statement of interest

regarding petitioner’s claim of sovereign immunity. Each

month during the ensuing two years, petitioner advised

the court that the State Department had the matter “ ‘still

under consideration.’ ” No. 1:04cv1360 (ED Va., Aug. 1,

2007), App. to Pet. for Cert. 44a. In 2007, having received

no response from the State Department, the District Court

reinstated the case on its active docket. The court con

cluded that it did not have subject-matter jurisdiction and

granted petitioner’s motion to dismiss.

The District Court’s decision rested squarely on the

——————

1 Although we do not set out respondents’ allegations in detail, the

District Court’s written opinion contains a comprehensive summary,

describing not only the abuses respondents suffered but also the his

torical context in which the abuses occurred, as well as some of the

attempts to establish a stable government in Somalia in recent years.

See No. 1:04cv1360 (ED Va., Aug. 1, 2007), App. to Pet. for Cert. 31a–

43a.

Cite as: 560 U. S. ____ (2010) 3

Opinion of the Court

FSIA.2 The FSIA provides that a “foreign state shall be

immune from the jurisdiction” of both federal and state

courts except as provided in the Act, 28 U. S. C. §1604,

and the District Court noted that none of the parties had

argued that any exception was applicable, App. to Pet. for

Cert. 46a–47a. Although characterizing the statute as

silent on its applicability to the officials of a foreign state,

the District Court followed appellate decisions holding

that a foreign state’s sovereign immunity under the Act

extends to “ ‘an individual acting in his official capacity on

behalf of a foreign state,’ ” but not to “ ‘an official who acts

beyond the scope of his authority.’ ” Id., at 47a (quoting

Velasco v. Government of Indonesia, 370 F. 3d 392, 398,

399 (CA4 2004)). The court rejected respondents’ argu

ment that petitioner was necessarily acting beyond the

scope of his authority because he allegedly violated inter

national law.3

The Court of Appeals reversed, rejecting the District

Court’s ruling that the FSIA governs petitioner’s immu

nity from suit. It acknowledged “the majority view”

——————

2 Petitioner argued that, in addition to his immunity under the FSIA,

the complaint should be dismissed on a number of other grounds, which

the District Court did not reach. See id., at 45a, n. 11.

3 Because we hold that the FSIA does not govern whether an individ

ual foreign official enjoys immunity from suit, we need not reach

respondents’ argument that an official is not immune under the FSIA

for acts of torture and extrajudicial killing. See Brief for Respondents

51–53. We note that in determining petitioner had not acted beyond

the scope of his authority, the District Court afforded great weight to

letters from the Somali Transitional Federal Government (TFG) to the

State Department, App. to Pet. for Cert. 55a, in which the TFG sup

ported petitioner’s claim of immunity and stated “the actions attributed

to [petitioner] in the lawsuit . . . would have been taken by [petitioner]

in his official capacities,” App. 104. Although the District Court de

scribed the TFG as “recognized by the United States as the governing

body in Somalia,” App. to Pet. for Cert. 54a, the United States does not

recognize the TFG (or any other entity) as the government of Somalia,

see Brief for United States as Amicus Curiae 5.

4 SAMANTAR v. YOUSUF

Opinion of the Court

among the Circuits that “the FSIA applies to individual

officials of a foreign state.” 552 F. 3d 371, 378 (CA4

2009).4 It disagreed with that view, however, and con

cluded, “based on the language and structure of the stat

ute, that the FSIA does not apply to individual foreign

government agents like [petitioner].” Id., at 381.5 Having

found that the FSIA does not govern whether petitioner

enjoys immunity from suit, the Court of Appeals re

manded the case for further proceedings, including a

determination of whether petitioner is entitled to immu

nity under the common law. Id., at 383–384. We granted

certiorari. 557 U. S. ___ (2009).

II

The doctrine of foreign sovereign immunity developed as

a matter of common law long before the FSIA was enacted

in 1976. In Verlinden B. V. v. Central Bank of Nigeria,

461 U. S. 480, 486 (1983), we explained that in Schooner

Exchange v. McFaddon, 7 Cranch 116 (1812), “Chief Jus

tice Marshall concluded that . . . the United States had

impliedly waived jurisdiction over certain activities of

——————

4 Compare 552 F. 3d, at 381 (holding the FSIA does not govern the

immunity of individual foreign officials), and Enahoro v. Abubakar, 408

F. 3d 877, 881–882 (CA7 2005) (same), with Chuidian v. Philippine

Nat. Bank, 912 F. 2d 1095, 1103 (CA9 1990) (concluding that a suit

against an individual official for acts committed in his official capacity

must be analyzed under the FSIA), In re Terrorist Attacks on September

11, 2001, 538 F. 3d 71, 83 (CA2 2008) (same), Keller v. Central Bank of

Nigeria, 277 F. 3d 811, 815 (CA6 2002) (same), Byrd v. Corporacion

Forestal y Industrial de Olancho S. A., 182 F. 3d 380, 388 (CA5 1999)

(same), and El-Fadl v. Central Bank of Jordan, 75 F. 3d 668, 671

(CADC 1996) (same).

5 As an alternative basis for its decision, the Court of Appeals held

that even if a current official is covered by the FSIA, a former official is

not. See 552 F. 3d, at 381–383. Because we agree with the Court of

Appeals on its broader ground that individual officials are not covered

by the FSIA, petitioner’s status as a former official is irrelevant to our

analysis.

Cite as: 560 U. S. ____ (2010) 5

Opinion of the Court

foreign sovereigns.” The Court’s specific holding in Schoo

ner Exchange was that a federal court lacked jurisdiction

over “a national armed vessel . . . of the emperor of

France,” id., at 146, but the opinion was interpreted as

extending virtually absolute immunity to foreign sover

eigns as “a matter of grace and comity,” Verlinden, 461

U. S., at 486.

Following Schooner Exchange, a two-step procedure

developed for resolving a foreign state’s claim of sovereign

immunity, typically asserted on behalf of seized vessels.

See, e.g., Republic of Mexico v. Hoffman, 324 U. S. 30, 34–

36 (1945); Ex parte Peru, 318 U. S. 578, 587–589 (1943);

Compania Espanola de Navegacion Maritima, S. A. v. The

Navemar, 303 U. S. 68, 74–75 (1938). Under that proce

dure, the diplomatic representative of the sovereign could

request a “suggestion of immunity” from the State De

partment. Ex parte Peru, 318 U. S., at 581. If the request

was granted, the district court surrendered its jurisdic

tion. Id., at 588; see also Hoffman, 324 U. S., at 34. But

“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 immu

nity existed.” Ex parte Peru, 318 U. S., at 587; see also

Compania Espanola, 303 U. S., at 75 (approving judicial

inquiry into sovereign immunity when the “Department of

State . . . declined to act”); Heaney v. Government of Spain,

445 F. 2d 501, 503, and n. 2 (CA2 1971) (evaluating sov

ereign immunity when the State Department had not

responded to a request for its views). In making that

decision, a district court inquired “whether the ground of

immunity is one which it is the established policy of the

[State Department] to recognize.” Hoffman, 324 U. S., at

36. Although cases involving individual foreign officials as

defendants were rare, the same two-step procedure was

typically followed when a foreign official asserted immu

nity. See, e.g., Heaney, 445 F. 2d, at 504–505; Waltier v.

6 SAMANTAR v. YOUSUF

Opinion of the Court

Thomson, 189 F. Supp. 319 (SDNY 1960).6

Prior to 1952, the State Department followed a general

practice of requesting immunity in all actions against

friendly sovereigns, but in that year the Department

announced its adoption of the “restrictive” theory of sover

eign immunity. Verlinden, 461 U. S., at 486–487; see also

Letter from Jack B. Tate, Acting Legal Adviser, Depart

ment of State, to Acting Attorney General Philip B.

Perlman (May 19, 1952), reprinted in 26 Dept. State Bull.

984–985 (1952). Under this theory, “immunity is confined

to suits involving the foreign sovereign’s public acts, and

does not extend to cases arising out of a foreign state’s

strictly commercial acts.” Verlinden, 461 U. S., at 487.

This change threw “immunity determinations into some

disarray,” because “political considerations sometimes led

the Department to file ‘suggestions of immunity in cases

where immunity would not have been available under the

restrictive theory.’ ” Republic of Austria v. Altmann, 541

U. S. 677, 690 (2004) (quoting Verlinden, 461 U. S., at

487).

Congress responded to the inconsistent application of

sovereign immunity by enacting the FSIA in 1976.

Altmann, 541 U. S., at 690–691; see also Verlinden, 461

U. S., at 487–488. Section 1602 describes the Act’s two

primary purposes: (1) to endorse and codify the restrictive

theory of sovereign immunity, and (2) to transfer primary

responsibility for deciding “claims of foreign states to

immunity” from the State Department to the courts.7

——————

6 Diplomatic and consular officers could also claim the “specialized

immunities” accorded those officials, Restatement (Second) of Foreign

Relations Law of the United States §66, Comment b (1964–1965)

(hereinafter Restatement), and officials qualifying as the “head of state”

could claim immunity on that basis, see Schooner Exchange v. McFad

don, 7 Cranch 116, 137 (1812) (describing “the exemption of the person

of the sovereign” from “a jurisdiction incompatible with his dignity”).

7 The full text of §1602, entitled “Findings and declaration of pur

Cite as: 560 U. S. ____ (2010) 7

Opinion of the Court

After the enactment of the FSIA, the Act—and not the

pre-existing common law—indisputably governs the de

termination of whether a foreign state is entitled to sover

eign immunity.

What we must now decide is whether the Act also covers

the immunity claims of foreign officials. We begin with

the statute’s text and then consider petitioner’s reliance on

its history and purpose.

III

The FSIA provides that “a foreign state shall be immune

from the jurisdiction of the courts of the United States and

of the States” except as provided in the Act. §1604. Thus,

if a defendant is a “foreign state” within the meaning of

the Act, then the defendant is immune from jurisdiction

unless one of the exceptions in the Act applies. See

§§1605–1607 (enumerating exceptions). The Act, if it

applies, is the “sole basis for obtaining jurisdiction over a

foreign state in federal court.” Argentine Republic v.

Amerada Hess Shipping Corp., 488 U. S. 428, 439 (1989).

The question we face in this case is whether an individual

sued for conduct undertaken in his official capacity is a

“foreign state” within the meaning of the Act.

The Act defines “foreign state” in §1603 as follows:

“(a) A ‘foreign state’ . . . includes a political subdivi

——————

pose,” reads as follows:

“The Congress finds that the determination by United States courts

of the claims of foreign states to immunity from the jurisdiction of such

courts would serve the interests of justice and would protect the rights

of both foreign states and litigants in United States courts. Under

international law, states are not immune from the jurisdiction of

foreign courts insofar as their commercial activities are concerned, and

their commercial property may be levied upon for the satisfaction of

judgments rendered against them in connection with their commercial

activities. Claims of foreign states to immunity should henceforth be

decided by courts of the United States and of the States in conformity

with the principles set forth in this chapter.”

8 SAMANTAR v. YOUSUF

Opinion of the Court

sion of a foreign state or an agency or instrumentality

of a foreign state as defined in subsection (b).

“(b) An ‘agency or instrumentality of a foreign state’

means any entity—

“(1) which is a separate legal person, corporate or

otherwise, 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.”

The term “foreign state” on its face indicates a body

politic that governs a particular territory. See, e.g., Re

statement §4 (defining “state” as “an entity that has a

defined territory and population under the control of a

government and that engages in foreign relations”). In

§1603(a), however, the Act establishes that “foreign state”

has a broader meaning, by mandating the inclusion of the

state’s political subdivisions, agencies, and instrumentali

ties. Then, in §1603(b), the Act specifically delimits what

counts as an agency or instrumentality. Petitioner argues

that either “foreign state,” §1603(a), or “agency or instru

mentality,” §1603(b), could be read to include a foreign

official. Although we agree that petitioner’s interpretation

is literally possible, our analysis of the entire statutory

text persuades us that petitioner’s reading is not the

meaning that Congress enacted.

We turn first to the term “agency or instrumentality of a

foreign state,” §1603(b). It is true that an individual

official could be an “agency or instrumentality,” if that

term is given the meaning of “any thing or person through

which action is accomplished,” In re Terrorist Attacks on

Cite as: 560 U. S. ____ (2010) 9

Opinion of the Court

Sept. 11, 2001, 538 F. 3d 71, 83 (CA2 2008). But Congress

has specifically defined “agency or instrumentality” in the

FSIA, and all of the textual clues in that definition cut

against such a broad construction.

First, the statute specifies that “ ‘agency or instrumen

tality . . .’ means any entity” matching three specified

characteristics, §1603(b) (emphasis added), and “entity”

typically refers to an organization, rather than an individ

ual. See, e.g., Black’s Law Dictionary 612 (9th ed. 2009).

Furthermore, several of the required characteristics apply

awkwardly, if at all, to individuals. The phrase “separate

legal person, corporate or otherwise,” §1603(b)(1), could

conceivably refer to a natural person, solely by virtue of

the word “person.” But the phrase “separate legal person”

typically refers to the legal fiction that allows an entity to

hold personhood separate from the natural persons who

are its shareholders or officers. Cf. First Nat. City Bank v.

Banco Para el Comercio Exterior de Cuba, 462 U. S. 611,

625 (1983) (“Separate legal personality has been described

as ‘an almost indispensable aspect of the public corpora

tion’ ”). It is similarly awkward to refer to a person as an

“organ” of the foreign state. See §1603(b)(2). And the

third part of the definition could not be applied at all to a

natural person. A natural person cannot be a citizen of a

State “as defined in section 1332(c) and (e),” §1603(b)(3),

because those subsections refer to the citizenship of corpo

rations and estates. Nor can a natural person be “created

under the laws of any third country.” Ibid.8 Thus, the

——————

8 Petitioner points out that §1603(b)(3) describes only which defen

dants cannot be agencies or instrumentalities. He suggests that it

therefore tells us nothing about which defendants can be covered by

that term. Brief for Petitioner 46. Even if so, reading §1603(b) as

petitioner suggests would leave us with the odd result that a corpora

tion that is the citizen of a state is excluded from the definition under

§1603(b)(3), and thus not immune, whereas a natural person who is the

citizen of a state is not excluded, and thus retains his immunity.

10 SAMANTAR v. YOUSUF

Opinion of the Court

terms Congress chose simply do not evidence the intent to

include individual officials within the meaning of “agency

or instrumentality.”9 Cf. Dole Food Co. v. Patrickson, 538

U. S. 468, 474 (2003) (describing §1603(b) as containing

“indicia that Congress had corporate formalities in mind”).

Petitioner proposes a second textual route to including

an official within the meaning of “foreign state.” He ar

gues that the definition of “foreign state” in §1603(a) sets

out a nonexhaustive list that “includes” political subdivi

sions and agencies or instrumentalities but is not so lim

ited. See Brief for Petitioner 22–23. It is true that use of

the word “include” can signal that the list that follows is

meant to be illustrative rather than exhaustive.10 And, to

——————

9 Nor does anything in the legislative history suggest that Congress

intended the term “agency or instrumentality” to include individuals.

On the contrary, the legislative history, like the statute, speaks in

terms of entities. See, e.g., H. R. Rep. No. 94–1487, p. 15 (1976) (here

inafter H. R. Rep.) (“The first criterion, that the entity be a separate

legal person, is intended to include a corporation, association, founda

tion, 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”).

JUSTICE SCALIA may well be correct that it is not strictly necessary to

confirm our reading of the statutory text by consulting the legislative

history, see post, at 1–2 (opinion concurring in judgment). But as the

Court explained some years ago in an opinion authored by Justice

White:

“As for the propriety of using legislative history at all, common sense

suggests that inquiry benefits from reviewing additional information

rather than ignoring it. As Chief Justice Marshall put it, ‘[w]here the

mind labours to discover the design of the legislature, it seizes every

thing from which aid can be derived.’ United States v. Fisher, 2 Cranch

358, 386 (1805). Legislative history materials are not generally so

misleading that jurists should never employ them in a good-faith effort

to discern legislative intent. Our precedents demonstrate that the

Court’s practice of utilizing legislative history reaches well into its past.

See, e.g., Wallace v. Parker, 6 Pet. 680, 687–690 (1832). We suspect

that the practice will likewise reach well into the future.” Wisconsin

Public Intervenor v. Mortier, 501 U. S. 597, 611–612, n. 4 (1991) (altera

tion in original).

10 See 2A N. Singer & J. Singer, Sutherland Statutory Construction

Cite as: 560 U. S. ____ (2010) 11

Opinion of the Court

be sure, there are fewer textual clues within §1603(a) than

within §1603(b) from which to interpret Congress’ silence

regarding foreign officials. But even if the list in §1603(a)

is merely illustrative, it still suggests that “foreign state”

does not encompass officials, because the types of defen

dants listed are all entities. See Russell Motor Car Co. v.

United States, 261 U. S. 514, 519 (1923) (“[A] word may be

known by the company it keeps”).

Moreover, elsewhere in the FSIA Congress expressly

mentioned officials when it wished to count their acts as

equivalent to those of the foreign state, which suggests

that officials are not included within the unadorned term

“foreign state.” Cf. Kimbrough v. United States, 552 U. S.

85, 103 (2007) (“Drawing meaning from silence is particu

larly inappropriate . . . [when] Congress has shown that it

knows how to [address an issue] in express terms”). For

example, Congress provided an exception from the general

grant of immunity for cases in which “money damages are

sought against a foreign state” for an injury in the United

States “caused by the tortious act or omission of that

foreign state or of any official or employee of that foreign

state while acting within the scope of his office.”

§1605(a)(5) (emphasis added). The same reference to

officials is made in a similar, later enacted exception. See

28 U. S. C. A. §1605A(a)(1) (Supp. 2009) (eliminating

immunity for suits “in which money damages are sought

against a foreign state” for certain acts “engaged in by an

official, employee, or agent of such foreign state while

acting within the scope of his or her office, employment, or

agency”); see also §1605A(c) (creating a cause of action

against the “foreign state” and “any official, employee, or

——————

§47.7, p. 305 (7th ed. 2007) (“[T]he word ‘includes’ is usually a term of

enlargement, and not of limitation” (some internal quotation marks

omitted)).

12 SAMANTAR v. YOUSUF

Opinion of the Court

agent” thereof).11 If the term “foreign state” by definition

includes an individual acting within the scope of his office,

the phrase “or of any official or employee . . .” in 28

U. S. C. §1605(a)(5) would be unnecessary. See Dole Food

Co., 538 U. S., at 476–477 (“[W]e should not construe the

statute in a manner that is strained and, at the same

time, would render a statutory term superfluous”).

Other provisions of the statute also point away from

reading “foreign state” to include foreign officials. Con

gress made no express mention of service of process on

individuals in §1608(a), which governs service upon a

foreign state or political subdivision. Although some of the

methods listed could be used to serve individuals—for

example, by delivery “in accordance with an applicable

international convention,” §1608(a)(2)—the methods

specified are at best very roundabout ways of serving an

individual official. Furthermore, Congress made specific

remedial choices for different types of defendants. See

§1606 (allowing punitive damages for an agency or in

strumentality but not for a foreign state); §1610 (affording

a plaintiff greater rights to attach the property of an

agency or instrumentality as compared to the property of a

foreign state). By adopting petitioner’s reading of “foreign

state,” we would subject claims against officials to the

more limited remedies available in suits against states,

——————

11 Petitioner argues that §1605A abrogates immunity for certain acts

by individual officials, which would be superfluous if the officials were

not otherwise immune. See Brief for Petitioner 41–43. But the import

of §1605A is precisely the opposite. First, §1605A(a)(1) eliminates the

immunity of the state for certain acts of its officers; it says a “foreign

state shall not be immune” in a suit “in which money damages are

sought against a foreign state.” As it does not expressly refer to the

immunity of individual officers, it adds nothing to petitioner’s argu

ment. Second, the creation of a cause of action against both the “for

eign state” and “any official, employee, or agent” thereof, §1605A(c),

reinforces the idea that “foreign state” does not by definition include

foreign officials.

Cite as: 560 U. S. ____ (2010) 13

Opinion of the Court

without so much as a whisper from Congress on the sub

ject. (And if we were instead to adopt petitioner’s other

textual argument, we would subject those claims to the

different, more expansive, remedial scheme for agencies).

The Act’s careful calibration of remedies among the listed

types of defendants suggests that Congress did not mean

to cover other types of defendants never mentioned in the

text.

In sum, “[w]e do not . . . construe statutory phrases in

isolation; we read statutes as a whole.” United States v.

Morton, 467 U. S. 822, 828 (1984). Reading the FSIA as a

whole, there is nothing to suggest we should read “foreign

state” in §1603(a) to include an official acting on behalf of

the foreign state, and much to indicate that this meaning

was not what Congress enacted.12 The text does not ex

pressly foreclose petitioner’s reading, but it supports the

view of respondents and the United States that the Act

does not address an official’s claim to immunity.

IV

Petitioner argues that the FSIA is best read to cover his

claim to immunity because of its history and purpose. As

discussed at the outset, one of the primary purposes of the

FSIA was to codify the restrictive theory of sovereign

immunity, which Congress recognized as consistent with

extant international law. See §1602. We have observed

——————

12 Nor is it the case that the FSIA’s “legislative history does not even

hint of an intent to exclude individual officials,” Chuidian, 912 F. 2d, at

1101. The legislative history makes clear that Congress did not intend

the FSIA to address position-based individual immunities such as

diplomatic and consular immunity. H. R. Rep., at 12 (“The bill is not

intended . . . . to affect either diplomatic or consular immunity”). It also

suggests that general “official immunity” is something separate from

the subject of the bill. See id., at 23 (“The bill does not attempt to deal

with questions of discovery. . . . [I]f a plaintiff sought to depose a

diplomat in the United States or a high-ranking official of a foreign

government, diplomatic and official immunity would apply”).

14 SAMANTAR v. YOUSUF

Opinion of the Court

that a related purpose was “codification of international

law at the time of the FSIA’s enactment,” Permanent

Mission of India to United Nations v. City of New York,

551 U. S. 193, 199 (2007), and have examined the relevant

common law and international practice when interpreting

the Act, id., at 200–201. Because of this relationship

between the Act and the common law that it codified,

petitioner argues that we should construe the FSIA con

sistently with the common law regarding individual im

munity, which—in petitioner’s view—was coextensive with

the law of state immunity and always immunized a for

eign official for acts taken on behalf of the foreign state.

Even reading the Act in light of Congress’ purpose of

codifying state sovereign immunity, however, we do not

think that the Act codified the common law with respect to

the immunity of individual officials.

The canon of construction that statutes should be inter

preted consistently with the common law helps us inter

pret a statute that clearly covers a field formerly governed

by the common law.13 But the canon does not help us to

decide the antecedent question whether, when a statute’s

coverage is ambiguous, Congress intended the statute to

govern a particular field—in this case, whether Congress

intended the FSIA to supersede the common law of official

immunity.14

——————

13 Congress “is understood to legislate against a background of com

mon-law . . . principles,” Astoria Fed. Sav. & Loan Assn. v. Solimino,

501 U. S. 104, 108 (1991), and when a statute covers an issue previ

ously governed by the common law, we interpret the statute with the

presumption that Congress intended to retain the substance of the

common law. See Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952)

(“Statutes which invade the common law . . . are to be read with a

presumption favoring the retention of long-established and familiar

principles, except when a statutory purpose to the contrary is evident”).

14 We find similarly inapposite petitioner’s invocation of the canon

that a statute should be interpreted in compliance with international

law, see Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804),

Cite as: 560 U. S. ____ (2010) 15

Opinion of the Court

Petitioner argues that because state and official immu

nities are coextensive, Congress must have codified official

immunity when it codified state immunity. See Brief for

Petitioner 26–30. But the relationship between a state’s

immunity and an official’s immunity is more complicated

than petitioner suggests, although we need not and do not

resolve the dispute among the parties as to the precise

scope of an official’s immunity at common law. The very

authority to which petitioner points us, and which we have

previously found instructive, see, e.g., Permanent Mission,

551 U. S., at 200, states that the immunity of individual

officials is subject to a caveat not applicable to any of the

other entities or persons15 to which the foreign state’s

immunity extends. The Restatement provides that the

“immunity of a foreign state . . . extends to . . . any other

public minister, official, or agent of the state with respect

to acts performed in his official capacity if the effect of

exercising jurisdiction would be to enforce a rule of law

against the state.” Restatement §66 (emphasis added).16

——————

and his argument that foreign relations and the reciprocal protection of

United States officials abroad would be undermined if we do not adopt

his reading of the Act. Because we are not deciding that the FSIA bars

petitioner’s immunity but rather that the Act does not address the

question, we need not determine whether declining to afford immunity

to petitioner would be consistent with international law.

15 The Restatement does not apply this caveat to the head of state,

head of government, or foreign minister. See Restatement §66.

Whether petitioner may be entitled to head of state immunity, or any

other immunity, under the common law is a question we leave open for

remand. See 552 F. 3d 371, 383 (CA4 2009). We express no view on

whether Restatement §66 correctly sets out the scope of the common

law immunity applicable to current or former foreign officials.

16 Respondents contend that this caveat refers to “the compulsive

effect of the judgment on the state,” Brief for Respondents 42, but

petitioner disputes that meaning, Reply Brief for Petitioner 17–18. We

need not resolve their dispute, as it is enough for present purposes that

the Restatement indicates a foreign official’s immunity may turn upon

a requirement not applicable to any other type of defendant.

16 SAMANTAR v. YOUSUF

Opinion of the Court

And historically, the Government sometimes suggested

immunity under the common law for individual officials

even when the foreign state did not qualify. See, e.g.,

Greenspan v. Crosbie, No. 74 Civ. 4734 (GLG), 1976 WL

841 (SDNY, Nov. 23, 1976). There is therefore little rea

son to presume that when Congress set out to codify state

immunity, it must also have, sub silentio, intended to

codify official immunity.

Petitioner urges that a suit against an official must

always be equivalent to a suit against the state because

acts taken by a state official on behalf of a state are acts of

the state. See Brief for Petitioner 26. We have recog

nized, in the context of the act of state doctrine, that an

official’s acts can be considered the acts of the foreign

state, and that “the courts of one country will not sit in

judgment” of those acts when done within the territory of

the foreign state. See Underhill v. Hernandez, 168 U. S.

250, 252, 254 (1897). Although the act of state doctrine is

distinct from immunity, and instead “provides foreign

states with a substantive defense on the merits,” Altmann,

541 U. S., at 700, we do not doubt that in some circum

stances the immunity of the foreign state extends to an

individual for acts taken in his official capacity. But it

does not follow from this premise that Congress intended

to codify that immunity in the FSIA. It hardly furthers

Congress’ purpose of “clarifying the rules that judges

should apply in resolving sovereign immunity claims,” id.,

at 699, to lump individual officials in with foreign states

without so much as a word spelling out how and when

individual officials are covered.17

——————

17 The courts of appeals have had to develop, in the complete absence

of any statutory text, rules governing when an official is entitled to

immunity under the FSIA. For example, Courts of Appeals have

applied the rule that foreign sovereign immunity extends to an individ

ual official “for acts committed in his official capacity” but not to “an

official who acts beyond the scope of his authority.” Chuidian, 912

Cite as: 560 U. S. ____ (2010) 17

Opinion of the Court

Petitioner would have a stronger case if there were any

indication that Congress’ intent to enact a comprehensive

solution for suits against states extended to suits against

individual officials. But to the extent Congress contem

plated the Act’s effect upon officials at all, the evidence

points in the opposite direction. As we have already men

tioned, the legislative history points toward an intent to

leave official immunity outside the scope of the Act. See

n. 12, supra. And although questions of official immunity

did arise in the pre-FSIA period, they were few and far

between.18 The immunity of officials simply was not the

particular problem to which Congress was responding

when it enacted the FSIA. The FSIA was adopted, rather,

to address “a modern world where foreign state enter

prises are every day participants in commercial activities,”

and to assure litigants that decisions regarding claims

against states and their enterprises “are made on purely

legal grounds.” H. R. Rep., at 7. We have been given no

reason to believe that Congress saw as a problem, or

wanted to eliminate, the State Department’s role in de

terminations regarding individual official immunity.19

——————

F. 2d, at 1103, 1106. That may be correct as a matter of common-law

principles, but it does not derive from any clarification or codification

by Congress. Furthermore, if Congress intended the FSIA to reach

individuals, one would expect the Act to have addressed whether former

officials are covered, an issue it settled with respect to instrumentali

ties, see Dole Food Co. v. Patrickson, 538 U. S. 468, 478 (2003)

(“[I]nstrumentality status [must] be determined at the time suit is

filed”).

18 A study that attempted to gather all of the State Department deci

sions related to sovereign immunity from the adoption of the restrictive

theory in 1952 to the enactment of the FSIA reveals only four decisions

related to official immunity, and two related to head of state immunity,

out of a total of 110 decisions. Sovereign Immunity Decisions of the

Dept. of State, May 1952 to Jan. 1977 (M. Sandler, D. Vagts, & B.

Ristau eds.), in Digest of U. S. Practice in Int’l Law 1020, 1080 (1977)

(hereinafter Digest).

19 The FSIA was introduced in accordance with the recommendation

18 SAMANTAR v. YOUSUF

Opinion of the Court

Finally, our reading of the FSIA will not “in effect make

the statute optional,” as some Courts of Appeals have

feared, by allowing litigants through “artful pleading . . .

to take advantage of the Act’s provisions or, alternatively,

choose to proceed under the old common law,” Chuidian v.

Philippine Nat. Bank, 912 F. 2d 1095, 1102 (CA9 1990).

Even if a suit is not governed by the Act, it may still be

barred by foreign sovereign immunity under the common

law. And not every suit can successfully be pleaded

against an individual official alone.20 Even when a plain

tiff names only a foreign official, it may be the case that

the foreign state itself, its political subdivision, or an

agency or instrumentality is a required party, because

——————

of the State Department. H. R. Rep., at 6. The Department sought and

supported the elimination of its role with respect to claims against

foreign states and their agencies or instrumentalities. See Hearings on

H. R. 11315 before the Subcommittee on Administrative Law and

Governmental Relations of the House of Representatives Committee on

the Judiciary, 94th Cong., 2d Sess., 34 (1976) (testimony of Monroe

Leigh, Legal Adviser, Dept. of State) (“[I]t is our judgment . . . that the

advantages of having a judicial determination greatly outweigh the

advantage of being able to intervene in a lawsuit”). But the Depart

ment has from the time of the FSIA’s enactment understood the Act to

leave intact the Department’s role in official immunity cases. See

Digest 1020 (“These decisions [of the Department regarding the immu

nity of officials] may be of some future significance, because the Foreign

Sovereign Immunities Act does not deal with the immunity of individ

ual officials, but only that of foreign states and their political subdivi

sions, agencies and instrumentalities”).

20 Furthermore, a plaintiff seeking to sue a foreign official will not be

able to rely on the Act’s service of process and jurisdictional provisions.

Thus, a plaintiff will have to establish that the district court has

personal jurisdiction over an official without the benefit of the FSIA

provision that makes personal jurisdiction over a foreign state auto

matic when an exception to immunity applies and service of process has

been accomplished in accordance with 28 U. S. C. §1608. See §1330(b)

(“Personal jurisdiction over a foreign state shall exist as to every claim

for relief over which the district courts have jurisdiction under subsec

tion (a),” i.e., claims for which the foreign state is not entitled to immu

nity, “where service has been made under section 1608 of this title”).

Cite as: 560 U. S. ____ (2010) 19

Opinion of the Court

that party has “an interest relating to the subject of the

action” and “disposing of the action in the person’s absence

may . . . as a practical matter impair or impede the per

son’s ability to protect the interest.” Fed. Rule Civ. Proc.

19(a)(1)(B). If this is the case, and the entity is immune

from suit under the FSIA, the district court may have to

dismiss the suit, regardless of whether the official is im

mune or not under the common law. See Republic of

Philippines v. Pimentel, 553 U. S. 851, 867 (2008)

(“[W]here sovereign immunity is asserted, and the claims

of the sovereign are not frivolous, dismissal of the action

must be ordered where there is a potential for injury to

the interests of the absent sovereign”). Or it may be the

case that some actions against an official in his official

capacity should be treated as actions against the foreign

state itself, as the state is the real party in interest. Cf.

Kentucky v. Graham, 473 U. S. 159, 166 (1985) (“[A]n

official-capacity suit is, in all respects other than name, to

be treated as a suit against the entity. It is not a suit

against the official personally, for the real party in inter

est is the entity” (citation omitted)).

We are thus not persuaded that our construction of the

statute’s text should be affected by the risk that plaintiffs

may use artful pleading to attempt to select between

application of the FSIA or the common law. And we think

this case, in which respondents have sued petitioner in his

personal capacity and seek damages from his own pockets,

is properly governed by the common law because it is not a

claim against a foreign state as the Act defines that term.

Although Congress clearly intended to supersede the

common-law regime for claims against foreign states, we

find nothing in the statute’s origin or aims to indicate that

Congress similarly wanted to codify the law of foreign

official immunity.

20 SAMANTAR v. YOUSUF

Opinion of the Court

V

Our review of the text, purpose, and history of the FSIA

leads us to the conclusion that the Court of Appeals cor

rectly held the FSIA does not govern petitioner’s claim of

immunity. The Act therefore did not deprive the District

Court of subject-matter jurisdiction. We emphasize, how

ever, the narrowness of our holding. Whether petitioner

may be entitled to immunity under the common law, and

whether he may have other valid defenses to the grave

charges against him, are matters to be addressed in the

first instance by the District Court on remand. The judg

ment of the Court of Appeals is affirmed, and the case is

remanded for further proceedings consistent with this

opinion.

It is so ordered.

Cite as: 560 U. S. ____ (2010) 1

ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1555

_________________

MOHAMED ALI SAMANTAR, PETITIONER v. BASHE

ABDI YOUSUF ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[June 1, 2010]

JUSTICE ALITO, concurring.

I join the opinion of the Court, although I think that the

citations to legislative history are of little if any value

here.

Cite as: 560 U. S. ____ (2010) 1

Opinion of THOMAS, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1555

_________________

MOHAMED ALI SAMANTAR, PETITIONER v. BASHE

ABDI YOUSUF ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[June 1, 2010]

JUSTICE THOMAS, concurring in part and concurring in

the judgment.

I join the Court’s opinion except for those parts relying

on the legislative history of the Foreign Sovereign Immu

nities Act of 1976, 28 U. S. C. §§1330, 1602, et seq. In my

view, the Court’s textual analysis is sufficient to re-

solve this case. See post, at 1–4 (SCALIA, J., concurring in

judgment).

Cite as: 560 U. S. ____ (2010) 1

SCALIA, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1555

_________________

MOHAMED ALI SAMANTAR, PETITIONER v. BASHE

ABDI YOUSUF ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[June 1, 2010]

JUSTICE SCALIA, concurring in the judgment.

The Court’s admirably careful textual analysis, ante, at

7–13, demonstrates that the term “foreign state” in the

provision “a foreign state shall be immune from the juris

diction of the courts of the United States and of the

States,” 28 U. S. C. §1604, does not include foreign offi

cials. Yet the Court insists on adding legislative history to

its analysis. I could understand that (though not agree

with it) if, in the absence of supposed legislative-history

support, the Court would reach a different result. Or even

if there was something in the legislative history that

clearly contradicted the Court’s result, and had to be

explained away. That is not the situation here (or at least

the Court’s opinion does not think it to be so). The Court

assures us, however (if this could be thought assurance),

that legislative history is “ ‘not generally so misleading’ ”

that it should “ ‘never’ ” be used. Ante, at 10, n. 9 (quoting

Wisconsin Public Intervenor v. Mortier, 501 U. S. 597,

611–612, n. 4 (1991)). Surely that is damning by faint

praise. And the Court’s mention of the past practice of

using legislative history, ante, at 10, n. 9, does not support

the Court’s use of it today. The past practice was “not the

practice of using legislative history for the purpose of

giving authoritative content to the meaning of a statutory

text,” Mortier, supra, at 622 (SCALIA, J., concurring in

2 SAMANTAR v. YOUSUF

SCALIA, J., concurring in judgment

judgment).

The Court’s introduction of legislative history serves no

purpose except needlessly to inject into the opinion a mode

of analysis that not all of the Justices consider valid. And

it does so, to boot, in a fashion that does not isolate the

superfluous legislative history in a section that those of us

who disagree categorically with its use, or at least dis

agree with its superfluous use, can decline to join. I there

fore do not join the opinion, and concur only in the result.

The Court relies on legislative history to support three

of its positions. First, after explaining why the phrase

“agency or instrumentality” in the definition of “foreign

state,” see §1603(a), (b), does not refer to natural persons,

ante, at 9–10, the Court says “[n]or does anything in the

legislative history suggest that Congress intended the

term ‘agency or instrumentality’ to include individuals,”

ante, at 10, n. 9. According to the Court, “the legislative

history, like the statute, speaks in terms of entities.” Ibid.

Apparently, the legislative history must be consulted, not

to show that it supports the Court’s textual analysis, or

even to explain why its seeming contradiction of the

Court’s analysis is inconsequential, but to show nothing

more than that it contains the same ambiguous language

as the text. This is beyond all reason.

Second, after concluding its review of the statute’s text,

the Court states that the “legislative history makes clear

that Congress did not intend the [Foreign Sovereign Im

munities Act of 1976] to address position-based individual

immunities such as diplomatic and consular immunity,”

ante, at 13, n. 12. See also ante, at 17. It cites for this

proposition a House Committee Report that we have no

reason to believe was read (much less approved) by the

Senate—or, indeed, by the Members of the House who

were not on the Committee—or even, for that matter, by

the members of the Committee, who never voted on the

Report. In any case, the quoted excerpt does not address

Cite as: 560 U. S. ____ (2010) 3

SCALIA, J., concurring in judgment

“position-based individual immunities” in general but only

“consular and diplomatic immunity,” which is not at issue

here. Unless consular and diplomatic immunity, on the

one hand, and, on the other hand, what is at issue here—

state-agent immunity—are always treated the same

(which I doubt and the Court does not attempt to estab

lish), the passage contributes nothing to analysis of the

present case.

The same footnote also quotes a portion of the same

House Report as follows:

“ ‘The bill does not attempt to deal with questions of

discovery. . . . [I]f a plaintiff sought to depose a diplo

mat in the United States or a high-ranking official of

a foreign government, diplomatic and official immu

nity would apply.’ ” Ante, at 13, n. 12.

If anything, this passage cuts against the Court’s result.

The two sentences omitted from the above quotation read

as follows:

“Existing law appears to be adequate in this area. For

example, if a private plaintiff sought the production of

sensitive governmental documents of a foreign state,

concepts of governmental privilege would apply.”

H. R. Rep. No. 94–1487, p. 23 (1976).

Thus, the House Report makes it clear that the bill’s

failure to deal with discovery applies to both discovery

against sovereigns and discovery against foreign officials.

But the latter would have been unnecessary if the bill

dealt only with sovereigns. The implication (if any) is that

the bill’s provisions regarding immunity from suit apply to

both sovereigns and foreign officials.

Third, and finally, the Court points to legislative history

to establish the purpose of the statute. See ante, at 17,

and n. 19. This is particularly puzzling, because the en

acted statutory text itself includes findings and a declara

4 SAMANTAR v. YOUSUF

SCALIA, J., concurring in judgment

tion of purpose—the very same purpose (surprise!) that

the Court finds evidenced in the legislative history. See

28 U. S. C. §1602. To make matters worse, the Court

itself notes this statutory declaration of purpose twice

earlier, in the body of its opinion, see ante, at 6, 13. If

those textual references to the statute itself were deleted,

the footnoted citation of legislative history would at least

perform some function. As it is, however, it adds nothing

except the demonstration of assiduous law-clerk research.

It should be no cause for wonder that, upon careful

examination, all of the opinion’s excerpts from legislative

history turn out to be, at best, nonprobative or entirely

duplicative of text. After all, legislative history is almost

never the real reason for the Court’s decision—and make

weights do not deserve a lot of the Court’s time.