ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Court Below: 552 F.3d 371
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 subject-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 immune 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 Department granted a sovereign's diplomatic request for a "suggestion of immunity," the district court surrendered its jurisdiction, Ex parte Peru,
The opinion of the court was delivered by: Justice Stevens
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 extra-judicial killings during those years. They seek damages from petitioner based on his alleged authorization 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., provides 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.
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 members 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.*fn1 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 government 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 Department 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 concluded that it did not have subject-matter jurisdiction and granted petitioner's motion to dismiss.
The District Court's decision rested squarely on the FSIA.*fn2 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' argument that petitioner was necessarily acting beyond the scope of his authority because he allegedly violated international law.*fn3
The Court of Appeals reversed, rejecting the District Court's ruling that the FSIA governs petitioner's immunity from suit. It acknowledged "the majority view" among the Circuits that "the FSIA applies to individual officials of a foreign state." 552 F. 3d 371, 378 (CA4 2009).*fn4 It disagreed with that view, however, and concluded, "based on the language and structure of the statute, that the FSIA does not apply to individual foreign government agents like [petitioner]." Id., at 381.*fn5 Having found that the FSIA does not govern whether petitioner enjoys immunity from suit, the Court of Appeals remanded the case for further proceedings, including a determination of whether petitioner is entitled to immunity under the common law. Id., at 383--384. We granted certiorari. 557 U. S. ___ (2009).
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 Justice Marshall concluded that . . . the United States had impliedly waived jurisdiction over certain activities of foreign sovereigns." The Court's specific holding in Schooner 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 sovereigns 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 procedure, the diplomatic representative of the sovereign could request a "suggestion of immunity" from the State Department. Ex parte Peru, 318 U. S., at 581. If the request was granted, the district court surrendered its jurisdiction. 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 immunity 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 sovereign 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 immunity. See, e.g., Heaney, 445 F. 2d, at 504--505; Waltier v. Thomson, 189 F. Supp. 319 (SDNY 1960).*fn6
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 sovereign immunity. Verlinden, 461 U. S., at 486--487; see also Letter from Jack B. Tate, Acting Legal Adviser, Department 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 ...