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Samantar v. Yousuf, 130 S.Ct. 2278

Published online by Cambridge University Press:  27 February 2017

Ernesto J. Sanchez
Ernesto J. Sanchez*
Affiliation:
Coral Gables, Florida
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Abstract

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Type
International Decisions
Information
American Journal of International Law , Volume 105 , Issue 2 , April 2011 , pp. 319 - 325
Copyright
Copyright ©by the American Society of International Law,2011

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References

1 130 S.Ct. 2278(2010).

2 28 U.S.C. §§1330, 1332(a)(4), 1391(f), 1441(d), 1602–1611.

3 See The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 137 (1812) (holding a French warship to be immune from a U.S. court’s jurisdiction as part of a “class of cases in which every sovereign. . . [waived] complete exclusive territorial jurisdiction” due to comity considerations and articulating the need to exempt “the person of the sovereign from . . . a jurisdiction incompatible with his dignity”).

4 Citing Letter from Jack B., Tate, Acting Legal Adviser, Department of State, to Acting Attorney General Philip B. Perlman, Acting Attorney General (May 19, 1952), reprinted in 26 Deft. State Bull. 984–85 (1952).Google Scholar

5 See, e.g., Nat’l City Bank of New York v. Republic of China, 348 U.S. 356, 360, 363–64 (1955); Republic of Mexico v. Hoffman, 324 U.S. 30, 34–36 (1945).

6 See Republic of Austria v. Altmann, 541 U.S. 677, 690 (2004) (quoting Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 487–88 (1983)).

7 28 U.S.C. §1602.

8 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989).

9 28 U.S.C. §1604.

10 Id. § 1603(a).

11 Id. §§1605(a)(l), (2), (3), (5).

12 Id. § 1605A(a)(l), (2)(A)(i)(I), (c).

13 Id. § 1605A(a)(l). At the current time, the State Department has designated Syria, Cuba, Iran, and Sudan as state sponsors of terrorism. U.S. Department of State, State Sponsors of Terrorism, at http://www.state.gOv/s/ct/c14151.htm (last visited Mar. 14, 2011).

14 28 U.S.C. §1350.

15 Id. note. The TVPA was enacted in part to implement U.S. obligations pursuant to ratification of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 20-100 (1988), 1465 UNTS 85.

16 See Velasco v. Gov’t of Indonesia, 370 F.3d 392,398,399 (4th Cir. 2004) (ruling that FSIA immunity extends to individuals acting in their official capacities on foreign states’ behalf but not to individuals acting beyond the scope of their authority).

17 Citing 28 U.S.C. §1603(a), (b).

18 Citing 28 U.S.C. §§1605(a)(5), 1605A(a)(l), (c).

19 Citing 28 U.S.C. §1605(a)(2).

20 Citing 28 U.S.C. §§1606, 1610.

21 Citing Republic of Austria v. Altmann, 541 U.S. 677, 700 (2004); Underhill v. Hernandez, 168 U.S. 250, 252, 254 (1897).

22 Under the Federal Rules of Civil Procedure, a required party is described as follows:

A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a parry if:

  • (A)

    (A) in that person’s absence, the court cannot afford complete relief among existing parties; or

  • (B)

    (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may

    • (i)

      (i) as a practical matter impair or impede the person’s ability to protect the interest; or

    • (ii)

      (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

Fed. R. Civ. P. 19(a)(1) (emphasis added).

23 A real party in interest, in whose name an action must generally be prosecuted, is a person entitled under substantive law to enforce the right sued upon and who generally benefits from the lawsuit’s final outcome. Black’s Law Dictionary 1154 (8th ed. 2004); Fed. R. Civ. P. 17(a) (requiring actions to be prosecuted in the names of real parties in interest, save for specified exceptions (e.g., executors)); see also 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 die real party in interest is the entity.”).

24 Citing Fed. R. Civ. P. 19(a)(1)(B); Republic of the Philippines v. Pimentel, 553 U.S. 851, 867 (2008).

25 See Vienna Convention on Diplomatic Relations, Apr. 18, 1961, Arts. 31 (1), 35, 23 UST 3227, 500 UNTS 95 (immunizing diplomats and their family members from civil, criminal, and administrative jurisdiction, as well as from personal service, for official activities); see also Tachiona v. Mugabe, 169F.Supp.2d 259, 296–97 (S.D.N.Y. 2001) (noting that diplomatic immunity precluded ATS and TVPA claims against Zimbabwean President Robert Mugabe and Foreign Minister Stan Mudenge).

26 Matar v. Dichter, 563 F.3d 9, 14 (2d Cir. 2009) (quoting Republic of Mexico v. Hoffman, 324 U.S. 30, 35 (1945)); see also Nat’l City Bank of New York v. Republic of China, 348 U.S. 356, 360, 363–64 (1955).

27 See, e.g., United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir. 1997) (rejecting immunity from drug charges for former Panamanian military dictator); Doe v. United States, 860 F.2d 40, 44–46 (2d Cir. 1988) (Philippine government waived former leader’s immunity).

28 See, e.g., Matar, 563 F.3d at 14 (plaintiffs in ATS and TVP A action had been injured or represented those who had been injured or killed in Israeli bombing of Gaza Strip apartment building, allegedly orchestrated by Israeli Security Agency headed by defendant, who was immune from suit under common-law principles).

29 See id. (State Department supported ultimately successful immunity claim); Noriega, 117F.3d at 1212 (State Department did not support ultimately unsuccessful immunity claim); Kadic v. Karadzic, 70 F.3d 232, 248 (2d Cir. 1995) (ruling that “it would be entirely inappropriate for a court to [grant immunity to president of self-proclaimed Bosnian Serb republic in Bosnia-Herzegovina for actions during Bosnian civil war] based on speculation about what the Executive Branch might do in the future”); Tachiona, 169 F.Supp.2d at 296–97 (S.D.N.Y. 2001) (dismissing ATS and TVPA claims against Zimbabwean President Mugabe and Foreign Minister Mudenge on government recommendation); Lafontant v. Aristide, 844 F.Supp. 128,131–32 (E.D.N.Y. 1994) (dismissing ATS and TVPA claims against deposed defendant Haitian president allegedly responsible for execution of plaintiff’s husband because the United States still recognized him as Haiti’s lawful head of state).

30 See, e.g., Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244,259– 68 (2d Cir. 2009) (dismissing Sudanese citizens’ ATS claims alleging plaintiff corporation’s conspiracy with the Sudanese government to commit genocide and war crimes); Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115–16 (2d Cir. 2008) (use of Agent Orange for defoliation purposes during Vietnam War did not violate Vietnamese plaintiffs’ rights under law of nations, as defined by international conventions, international custom, general principles of law recognized by civilized nations, judicial decisions, and teachings by qualified publicists); Corrie v. Caterpillar, Inc., 503 F.3d 974, 982 (9th Cir. 2007) (dismissing ATS claims stemming from killings of Palestinians during Israeli military demolition of homes using bulldozers manufactured by and ordered from defendant); Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1261 (D.C. Cir. 2006) (dismissing ATS and TVPA claims against former U.S. national security adviser for complicity in alleged human rights violations in Chile).

31 Sosa v. Alvarez-Machain, 542 U.S. 692, 732–33 (2004) (emphasis added).

32 See Talisman, 582 F.3d at 258–59.

33 See 28 U.S.C. §1350(2)(b) note; Sarei v. Rio Tinto, PLC, 550 F.3d 822, 824, 827–28 (9th Cir. 2008).

34 See, e.g., Aldana v. Del Monte Fresh Produce, N.A., Inc., 578 F.3d 1283, 1300 (11th Cir. 2009) (affirming dismissal of ATS and TVPA claims because of forum non conveniens).

35 See28 U.S.C. §1350(2)(c) note; Chavez v. Carranza, 559 F.3d 486,492–93 (6th Cir. 2009) (concluding, following other courts’ decisions, that the ten-year limitations period applying to the TVPA also applies to the ATS).

36 See Arce v. Garcia, 434 F.3d 1254, 1265 (11th Cir. 2006).