Bashe Yousuf v. Mohamed Samantar
699 F.3d 763
| 4th Cir. | 2012Background
- Samantar, a former Somali official, seeks immunity from US suit under common law for TVPA/ATS claims.
- FSIA did not bar claims against individuals; court had invited common-law immunity analysis on remand.
- Supreme Court in Samantar v. Yousuf held FSIA governs foreign-state immunity, not official-immunity; common law governs officials.
- State Department issued a SOI denying immunity, citing lack of recognized Somali government and Samantar’s resident status.
- District court deferred to the State Department’s stance; Samantar appealed challenging deference and arguing for conduct-based immunity.
- Court affirms district court’s denial of both head-of-state and foreign-official immunity according to common-law analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Level of deference to State Department on immunity | Samantar argues deference should be limited to grant-ready cases. | US favors absolute deference for status-based immunity determinations. | Executive pronouncements on status-based immunity control; conduct-based not controlling but weighted. |
| Head-of-state immunity applicability | Head-of-state immunity should apply if Samantar acted as Somali head of state. | Somali head-of-state status not recognized by State Dept.; immunity lacks footing. | State Department denial of head-of-state immunity is binding; no head-of-state immunity here. |
| Foreign official immunity for acts within official capacity | Samantar claims official-immunity covers acts within official duties. | Official-immunity may not extend to acts violating jus cogens unless authorized by state. | No conduct-based foreign official immunity; jus cogens acts not immune; immunity denied. |
| Jus cogens exception in this context | Jus cogens norms may override official-immunity defenses. | Jus cogens violations do not automatically defeat status-based immunity. | Jus cogens does not confer immunity; still subject to common-law official immunity framework. |
| Impact of residency/status on immunity analysis | Permanent residency and lack of recognized government weigh against immunity. |
Key Cases Cited
- The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116 (1812) (foundational immunity principles; court reviews executive views but may decide.)
- Ex parte Peru, 318 U.S. 578 (1943) (two-step approach; absence of State Dept. immunity allows judicial ruling.)
- Compania Espanola de Navegacion Maritima v. The Navemar, 303 U.S. 68 (1938) (immunity issues deferred to executive unless State Dept. declines to act.)
- Hoffman v. United States, 324 U.S. 30 (1945) (recognition-based immunity in admiralty; early framework for courts’ role.)
- Republic of Austria v. Altmann, 541 U.S. 677 (2004) (FSIA interpretation and executive influence on immunity inquiries.)
- Ye v. Zemin, 383 F.3d 620 (7th Cir. 2004) (status-based immunity considerations; executive deference context.)
- Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 (9th Cir. 1990) (official acts vs. private acts immunity distinction.)
- Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009) (conduct-based immunity survives FSIA; official acts immunity scope.)
- Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992) (jus cogens violations and official-immunity boundaries.)
- Sarei v. Rio Tinto, PLC, 487 F.3d 1193 (9th Cir. 2007) (jus cogens norms and state immunity interplay.)
- In re Estate of Ferdinand Marcos (Marcos Human Rights Litig.), 25 F.3d 1467 (9th Cir. 1994) (immunity and official capacity; scope of official acts.)
- Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000) (TVPA incorporation of international-law norms.)
- Doe v. State of Israel, 400 F. Supp. 2d 86 (D.D.C. 2005) (Executive views on immunity considered, not controlling.)