Appeals Court Allows Suit against Government Officials of Chile to proceed

Posted on June 30, 2010 by Edward Joffe

Carpenter alleged that he was subject to abuse by the courts of Chile in a criminal case that was initiated in Santiago, Chile over ten years ago. He was prosecuted for fraud, but declared not guilty by the Chilean courts. He sued the Republic of Chile and various government officials of Chile, among others, in the Eastern District of New York to remedy these alleged wrongs. The District Court dismissed Carpenter's complaint against the Republic of Chile and the government officials of Chile because it concluded that the Foreign Sovereign Immunities Act (“FSIA”), 28 U .S.C. § 1602 et seq., barred the District Court from exercising jurisdiction over those defendants.

Carpenter made 5 arguments concerning the Republic of Chile:
1) the Torture Victim Protection Act , 28 U.S.C. § 1350 note (a)(1), effectively overrides the jurisdictional bar set forth in FSIA;
2) the Republic of Chile lost its sovereign immunity under FSIA's exception for state-sponsored terrorist acts set forth in 28 U.S.C. § 1605A;
3) the Republic of Chile waived its sovereign immunity by joining various treaties;
4) his claim falls under the commercial activity exception to FSIA set forth in 28 U.S.C. § 1605(a)(2);
5) the international law doctrine of jus cogens provides a further exception to FSIA.

The Second Circuit rejected all of these arguments and concluded that the District Court did not err in dismissing Carpenter's claims against the Republic of Chile.

The District Court had relied on the Second Circuit’s 2008 decision in In re Terrorist Attacks of September 11, 2001, 538 F.3d 71(2d Cir.2008) to conclude that FSIA extended to individual officials of foreign governments acting in their official capacities. The Supreme Court's recent decision in Samantar v. Yousuf, however, abrogated that 2008 precedent insofar as it held that FSIA applied to individual officials. No. 08-1555, 2010 WL 2160785 (S.Ct. June 1, 2010). Although FSIA no longer protects government officials, the Supreme Court expressly noted in Samantar that “[e]ven if a suit is not governed by [FSIA], it may still be barred by foreign sovereign immunity under the common law.” Accordingly, the Second Circuit vacated the judgment of the District Court insofar as it dismissed Carpenter's complaint against the government officials of Chile on the grounds that FSIA provided immunity. It left it to the District Court to determine, in the first instance, whether Carpenter's claims against the government officials of Chile are barred by foreign sovereign immunity under the common law.

[Carpenter v. Republic of Chile , --- F.3d ----, 2010 WL 2558012 (2nd Cir. June 28, 2010)]
 

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Supreme Court Hears Arguments over Immunity for Foreign Leaders

Posted on March 3, 2010 by Edward Joffe


As reported by  Jess Bravin in the Wall Street Journal On Line, the Supreme Court heard arguments on March 3 over whether foreign leaders are entitled to legal immunity in the U.S. for their official acts, in a case that some justices suggested could hold ramifications for former American officials.The court is seeking to reconcile two U.S. laws in apparent conflict.

The Torture Victim Protection Act of 1991 authorizes lawsuits against people who allegedly committed torture or extrajudicial killing "under actual or apparent authority…of any foreign nation" when the home nation lacks adequate remedies for such offenses. But the 1976 Foreign Sovereign Immunities Act exempts foreign governments and their "agencies" and "instrumentalities" from being sued.

The case involves a former Somali official, Mohamed Ali Samantar. Five Somali natives, including two U.S. citizens, claim that they or their relatives were abused or killed by forces under Mr. Samantar's command. Mr. Samantar, who now lives in Fairfax, Va., contends that because he was prime minister or defense minister from 1980 until the Somali regime's 1991 collapse, he was an "instrumentality" of government and thus immune from liability.

In a ruling last year, the Fourth U.S. Circuit Court of Appeals disagreed. The Richmond, Va., court said the Immunities Act was designed to cover entities such as national airlines and other state-owned businesses, not individuals. Other appeals courts have read the Immunities Act more broadly, and the Supreme Court seemed similarly divided over how to construe the law.

Shay Dvoretzky, a lawyer representing Mr. Samantar, said there was no way to distinguish between a foreign government and the individuals who ran it. Congress immunized "foreign officials for acts taken on the state's behalf, because such suits are the equivalent of a suit against the state directly," he told the court.

Patricia Millett, an attorney representing the plaintiffs, said that if Mr. Samantar was right, then the Torture Victim Act "was a very empty statute."

Deputy Solicitor General Edwin Kneedler said the law's ambiguity was intended to leave discretion with the executive branch, which could advise courts whether specific torture lawsuits should be allowed to proceed. "There are a lot of diplomatic sensitivities about whether immunity should be recognized in a particular case or not," Mr. Kneedler said.

Last year, Baltazar Garzon, a Spanish magistrate, opened an investigation into torture allegations against six former Bush administration officials, including former Justice Department lawyer John Yoo.

A decision in Samantar v. Yousuf is expected before July.

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