# Supplemental Brief — Federal Insurance Insurance Co. Co. v. Kingdom of Saudi Arabia (No. 08-640) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0806%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Supplemental Brief - **Published:** January 1, 2008 ## Text Z Supreme Court, U_S. FILED “\ ani ‘\ \ LK \ N \ ‘@) JAN 4 2 2009 \ \ Vy) OFFICE OF THE CLERK IN THE Supreme Court of the Anited States FEDERAL INSURANCE COMPANY, ET AL.., Petitioners, KINGDOM OF SAUDI ARABIA, ET AL., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit SUPPLEMENTAL BRIEF FOR RESPONDENTS HRH CROWN PRINCE SULTAN BIN ABDULAZIZ AL-SAUD, HRH PRINCE NAIF BIN ABDULAZIZ AL-SAUD, HRH PRINCE SALMAN BIN ABDULAZIZ AL-SAUD, AND HRH PRINCE TURKI AL-FAISAL BIN ABDULAZIZ AL-SAUD MICHAEL K. KELLOG« JEFFREY A. LAMKEN Counsel of Record Counsel of Record MARK C. HANSEN WILLIAM H. JEFFRESS COLIN S. STRETCH SARA E. Krovt KELLY P. DUNBAI JAMIE S. KILBERE KELLOGG, HUBER. HANSED RORERT K. KRS TODD, EVANS & FIGI MARTIN Vo TOrARO P.t,.t4 BAKER BOTTS L.L..P 515 M Street. N.W 1299 Pennsvivania Avenue, NW s 10 \ hingt ene My Y \\ nu I » ( 20 (POL) ¢ ’ ) 6 7 { ( in } Counse } ide HRH ¢ Prince S HRH } \/-/ loau S HH ! \/ | Sa | ~ i? Hi / Q | Respondents HRH Crown Prince Sultan bin Abdul- aziz al-Saud, HRH Prince Naif bin Abdulaziz al- Saud, t!RH Prince Salman bin Abdulaziz al-Saud, and H&M Prince Turki Al-Faisal bin Abdulaziz AlI- Saud respectfully submit this supplemental brief pursuant to this Court’s Rule 15.8 to advise the Court of the Fourth Circuit’ recent decision in Yousuf v. Samantar, No. 07-1893, 2009 WL 40942 (4th Cir. Jan. 8, 2009). In that case, a panel of the Fourth Circuit held — as an alternative basis for deci- sion — that “the FSIA does not apply to individuals.” Id. at *1. Although the decision appears to diminish the consensus among courts of appeals that the FSIA applies to official-capacity suits against individuals, it provides no basis for this Court’s review here. First, Yousuf at most raises an academic issue con- cerning the source of sovereign immunity for individ- ual officers; it raises no issue about whether immu- nity is available. As noted in the briefs in opposition, everyone avrees that individual officers are entitled to immunity for their official acts either under the FSIA or under the common law. Because common- law immunity is broader than the FSIA immunit\ the Second Circuit held to be available here, peti- tioners cannot proceed against tne Princes even u they prevail on the question they seek to raise. Se HRH Crown Prince Sultan et al. Opp. 22-24: HRH Prince Turki Opp. 25-26. The Yousuf court did not dispute that individual officers could claim common.- law immunity, emphasizing that the defendant that case remained ‘tree te ursue on remand Mis entitlement to “immunit irisll 1. r pre-FSIA common law 009 WL 4094 it *1l1. And the rence in Yi red tl OU serving ture” from other authority because the decision was “in keeping with thle] position” that “common law immunities” continue to apply. /d. (Duncan, J., concurring in part and concurring in the judgment). For that reason, any disagreement in reasoning between Yousuf and the decision below lacks practi- cal significance. What matters 1s whether officers are immune, not the source of their immunity. No court has ever suggested that the FSIA eliminated immu- nity for individual officers; nor has any court sug- gested that the common law would afford narrower immunity than the FSIA (which is hardly surprising because the FSIA codified common-law principles). Unless a dispute arises over the scope and availabil- ity of immunity, any conflict over the source of 1m- munity is wholly academic. Second, the decision in Yousuf is in any event unlikely to be the last word from the Fourth Circuit on the apphcability of the FSIA to individuals. As an initial matter, it creates a direct conflict with that Court’s prior decision in Velasco v. Government of Indonesia, 370 F.3d 392 (4th Cir. 2004), which held that the FSIA does provide immunity to government officials sued in their individual capacity. The Yousuf panel purported to distinguish Velasco on the ground that Velasco addressed when “the acts of an individual operate to bind a foreign sovereign,” not whether the FSIA applies to individuals. 2009 WL 40942, at *6-*7 (emphasis omitted). But that is incorrect. The plaintiff in Velasco sued the govern- ment of Indonesia and several officials “in their offi- cial capacities’ tor, inter alia, payment of a prom1s- sorv note. 370 F.3d at 395-97. Following Chuidian v. Philippine National Bank, 912 F.2d 1095 (9th Cir. 1990). and other cases, the Velasco court explained that “|c]laims against the individual in [an] official capacity are the practical equivalent of claims against the foreign state.” 370 F.3d at 399. The court then addressed whether issuance of the promissory note constituted the commercial activity of a foreign state within the meaning of the FSIA’s commercial activities exception (28 U.S.C. § 1605(a)(2)), such that the defendants (including the individual defendants) were not immune from suit. See 370 F.3d at 398. The court concluded that the promis- sory note was not issued pursuant to actual authority and that the commercial activities exception there- fore did not apply. See id. at 401. The court thus held that “the District Court properly dismissed” all claims in the case, including the claims against “the individual Defendants ... in their official capacities,” because all defendants were “immune from suit under the FSIA.” Jd. at 402. In hght of that clear holding — which petitioners themselves have previously acknowledged, see Pet. 16 — the Yousuf panel’s statement that Velasco did not address the issue is incorrect. That makes en bane review extraordinarily likely. The decision, moreover, 1s by 1ts terms 1n conflict with “a majority of the courts,” 2009 WL 40942, at *3, and its analysis is substantially incomplete even apart from its mis- reading of Velasco. The panel simply ignores, for example, the principle that an official-capacity suit is In every meaningful sense a sult against the “foreign state” itself and that the FSIA’s use of “including” in the definition of “foreign state” means that the definition is illustrative, not exhaustive. See HRH Crown Prince Sultan et al. Opp. 13-14; HRH Prince Turki Opp. 24. The dectsion also fails to address Congresss recent amendment to the FSIA’s terror 4 ism exception. As the Second Circuit observed, that amendment “evince[s] congressional recognition that claims against individual officials of a foreign gov- ernment must be brought within the confines of the FSIA.” Pet. App. 2la. The Yousuf panel, however, did not acknowledge or address the current statutory language and instead appears to rest on an outdated version of the statute, rendering the decision subject to revisiting on that ground alone. Given those many defects, and given that the analysis of whether the FSIA affords immunity to individual officers was unnecessary to the judgment in that case,“ Yousuf has a dubious future even in the Fourth Circuit. Indeed, because Yousuf’s contrary holding came after Velasco, future Fourth Circuit panels will be required to follow Velasco, not Yousuf, even absent en banc review. See McMellon v. United Stuies, 387 F.3d 329, 333 (4th Cir. 2004) (en banc) (“|A]s to conflicts between panel opinions, application of the basic rule that one panel cannot overrule another requires a panel to follow the earlier of the conflicting opinions.”). Yousuf thus does not support petitioners request for review. The petition for denied. MICHAEL K. KELLOGG Counsel of Record MARK C. HANSEN COLIN S. STRETCH KELLY P. DUNBAR KELLOGG, HUBER, HANS! TODD, EVANS & FIGEL P.L.L.C 1615 M Street, N.W Suite 400 Washington, D.C. 20036 (202) 326-7900 Counsel for Respondent } hin Abdulaziz Al-Saud January 12, 2009 a HRH Prince Turki Al-Faisal writ of certiorari should be Respectfully submitted, JEFFREY A. LAMKEN Counsel of Record WILLIAM H. JEFFRESS SARA E. KROPF JAMIE S. KILBERG ROBERT K. KR) MARTIN V. TOTARO BAKER Botts L.L.P 1299 Pennsylvania Avenue, N.W Washington, D.C. 20004-2400 (202) 639-7700 Counsel for Respondents HRH Crown Prince Sultan bin Abdulaziz al-Saud, HRH Prin € Nauf bin Abdulaziz al-Saud, mad HRH Prince Saiman bin ‘ y cy IWaAULA 7 . , Thee ©! TFT 6 | Lhe AL a*aethlilll --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0806%3A06. Public record. Not legal advice.