Samantar v. Yousuf

Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus SAMANTAR v. YOUSUF ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

No. 08–1555. Argued March 3, 2010—Decided June 1, 2010 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 sub ject-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 im mune 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 De partment granted a sovereign’s diplomatic request for a “suggestion of immunity,” the district court surrendered its jurisdiction, Ex parte Peru, 318 U. S. 573, 581, 587. If the State Department refused, the court could decide the immunity issue itself. Id., at 587. In 1952, the State Department moved from a policy of requesting immunity in most actions against friendly sovereigns to a “restrictive” theory that confined immunity “to suits involving the foreign sovereign’s public acts.” Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 487. Inconsistent application of sovereign immunity followed, leading to the FSIA, whose primary purposes are (1) to endorse and codify the restrictive theory, and (2) to transfer primary responsibility for decid ing “claims of foreign states to immunity” from the State Department to the courts. §1602. This Act now governs the determination whether a foreign state is entitled to sovereign immunity. Pp. 4–7.

(b) Reading the FSIA as a whole, there is nothing to suggest that “foreign state” should be read to include an official acting on behalf of that state. The Act specifies that a foreign state “includes a political subdivision . . . or an agency or instrumentality” of that state, §1603(a), and specifically delimits what counts as an “agency or in strumentality,” §1603(b). Textual clues in the “agency or instrumen tality” definition—“any entity” matching three specified characteris tics, ibid.—cut against reading it to include a foreign official. “Entity” typically refers to an organization; and the required statu tory characteristics—e.g., “separate legal person,” §1603(b)(1)—apply awkwardly, if at all, to individuals. Section 1603(a)’s “foreign state” definition is also inapplicable. The list set out there, even if illustra tive rather than exclusive, does not suggest that officials are in cluded, since the listed defendants are all entities. The Court’s con clusion is also supported by the fact that Congress expressly mentioned officials elsewhere in the FSIA when it wished to count their acts as equivalent to those of the foreign state. Moreover, other FSIA provisions—e.g., §1608(a)—point away from reading “foreign state” to include foreign officials. Pp. 7–13.

(c) The FSIA’s history and purposes also do not support petitioner’s argument that the Act governs his immunity claim. There is little reason to presume that when Congress codified state immunity, it in tended to codify, sub silentio, official immunity. The canon of con struction that statutes should be interpreted consistently with the common law does not help decide the question whether, when a stat ute’s coverage is ambiguous, Congress intended it to govern a par ticular field. State and official immunities may not be coextensive, and historically, the Government has suggested common-law immu nity for individual officials even when the foreign state did not qual ify. Though a foreign state’s immunity may, in some circumstances, extend to an individual for official acts, it does not follow that Con gress intended to codify that immunity in the FSIA. Official immu nity was simply not the problem that Congress was addressing when enacting that Act. The Court’s construction of the Act should not be affected by the risk that plaintiffs may use artful pleading to attempt to select between application of the FSIA or the common law. This case, where respondents have sued petitioner in his personal capacity and seek damages from his own pockets, is governed by the common law because it is not a claim against a foreign state as defined by the FSIA. Pp. 13–19.

(d) Whether petitioner may be entitled to common-law immunity and whether he may have other valid defenses are matters to be ad dressed in the first instance by the District Court. P. 20. 552 F. 3d 371, affirmed and remanded.

STEVENS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined. ALITO, J., filed a concurring opinion. THOMAS, J., filed an opin ion concurring in part and concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment.

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________ No. 08–1555 _________________

MOHAMED ALI SAMANTAR, PETITIONER v. BASHE

ABDI YOUSUF ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[June 1, 2010] JUSTICE STEVENS delivered the opinion of the Court. 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 extrajudicial killings during those years. They seek damages from petitioner based on his alleged au thorization 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., pro vides 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.

I

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 mem bers 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.1 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 gov ernment 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 Depart ment 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 con cluded 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.2 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’ argu ment that petitioner was necessarily acting beyond the scope of his authority because he allegedly violated inter national law.3

The Court of Appeals reversed, rejecting the District Court’s ruling that the FSIA governs petitioner’s immu nity 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).4 It disagreed with that view, however, and con cluded, “based on the language and structure of the stat ute, that the FSIA does not apply to individual foreign government agents like [petitioner].” Id., at 381.5 Having found that the FSIA does not govern whether petitioner enjoys immunity from suit, the Court of Appeals re manded the case for further proceedings, including a determination of whether petitioner is entitled to immu nity under the common law. Id., at 383–384. We granted certiorari. 557 U. S. ___ (2009).

II

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 Jus tice Marshall concluded that . . . the United States had impliedly waived jurisdiction over certain activities of foreign sovereigns.” The Court’s specific holding in Schoo ner 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 sover eigns 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 proce dure, the diplomatic representative of the sovereign could request a “suggestion of immunity” from the State De partment. Ex parte Peru, 318 U. S., at 581. If the request was granted, the district court surrendered its jurisdic tion. 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 immu nity 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 sov ereign 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 immu nity. See, e.g., Heaney, 445 F. 2d, at 504–505; Waltier v. Thomson, 189 F. Supp. 319 (SDNY 1960).6

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 sover eign immunity. Verlinden, 461 U. S., at 486–487; see also Letter from Jack B. Tate, Acting Legal Adviser, Depart ment 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 deciding “claims of foreign states to immunity” from the State Department to the courts.7 After the enactment of the FSIA, the Act—and not the pre-existing common law—indisputably governs the de termination of whether a foreign state is entitled to sover eign immunity.

What we must now decide is whether the Act also covers the immunity claims of foreign officials. We begin with the statute’s text and then consider petitioner’s reliance on its history and purpose.

III

The FSIA provides that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States” except as provided in the Act. §1604. Thus, if a defendant is a “foreign state” within the meaning of the Act, then the defendant is immune from jurisdiction unless one of the exceptions in the Act applies. See §§1605–1607 (enumerating exceptions). The Act, if it applies, is the “sole basis for obtaining jurisdiction over a foreign state in federal court.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 439 (1989). The question we face in this case is whether an individual sued for conduct undertaken in his official capacity is a “foreign state” within the meaning of the Act.

The Act defines “foreign state” in §1603 as follows:

“(a) A ‘foreign state’ . . . includes a political subdivi sion of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).

“(b) An ‘agency or instrumentality of a foreign state’ means any entity—

“(1) which is a separate legal person, corporate or otherwise, and

“(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and

“(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title, nor created under the laws of any third country.”

The term “foreign state” on its face indicates a body politic that governs a particular territory. See, e.g., Re statement §4 (defining “state” as “an entity that has a defined territory and population under the control of a government and that engages in foreign relations”). In §1603(a), however, the Act establishes that “foreign state” has a broader meaning, by mandating the inclusion of the state’s political subdivisions, agencies, and instrumentali ties. Then, in §1603(b), the Act specifically delimits what counts as an agency or instrumentality. Petitioner argues that either “foreign state,” §1603(a), or “agency or instru mentality,” §1603(b), could be read to include a foreign official. Although we agree that petitioner’s interpretation is literally possible, our analysis of the entire statutory text persuades us that petitioner’s reading is not the meaning that Congress enacted.

We turn first to the term “agency or instrumentality of a foreign state,” §1603(b). It is true that an individual official could be an “agency or instrumentality,” if that term is given the meaning of “any thing or person through which action is accomplished,” In re Terrorist Attacks on Sept. 11, 2001, 538 F. 3d 71, 83 (CA2 2008). But Congress has specifically defined “agency or instrumentality” in the FSIA, and all of the textual clues in that definition cut against such a broad construction.

First, the statute specifies that “ ‘agency or instrumen tality . . .’ means any entity” matching three specified characteristics, §1603(b) (emphasis added), and “entity” typically refers to an organization, rather than an individ ual. See, e.g., Black’s Law Dictionary 612 (9th ed. 2009). Furthermore, several of the required characteristics apply awkwardly, if at all, to individuals. The phrase “separate legal person, corporate or otherwise,” §1603(b)(1), could conceivably refer to a natural person, solely by virtue of the word “person.” But the phrase “separate legal person” typically refers to the legal fiction that allows an entity to hold personhood separate from the natural persons who are its shareholders or officers. Cf. First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611, 625 (1983) (“Separate legal personality has been described as ‘an almost indispensable aspect of the public corpora tion’ ”). It is similarly awkward to refer to a person as an “organ” of the foreign state. See §1603(b)(2). And the third part of the definition could not be applied at all to a natural person. A natural person cannot be a citizen of a State “as defined in section 1332(c) and (e),” §1603(b)(3), because those subsections refer to the citizenship of corpo rations and estates. Nor can a natural person be “created under the laws of any third country.” Ibid.8 Thus, the terms Congress chose simply do not evidence the intent to include individual officials within the meaning of “agency or instrumentality.”9 Cf. Dole Food Co. v. Patrickson, 538 U. S. 468, 474 (2003) (describing §1603(b) as containing “indicia that Congress had corporate formalities in mind”).

Petitioner proposes a second textual route to including an official within the meaning of “foreign state.” He ar gues that the definition of “foreign state” in §1603(a) sets out a nonexhaustive list that “includes” political subdivi sions and agencies or instrumentalities but is not so lim ited. See Brief for Petitioner 22–23. It is true that use of the word “include” can signal that the list that follows is meant to be illustrative rather than exhaustive.10 And, to be sure, there are fewer textual clues within §1603(a) than within §1603(b) from which to interpret Congress’ silence regarding foreign officials. But even if the list in §1603(a) is merely illustrative, it still suggests that “foreign state” does not encompass officials, because the types of defen dants listed are all entities. See Russell Motor Car Co. v. United States, 261 U. S. 514, 519 (1923) (“[A] word may be known by the company it keeps”).

Moreover, elsewhere in the FSIA Congress expressly mentioned officials when it wished to count their acts as equivalent to those of the foreign state, which suggests that officials are not included within the unadorned term “foreign state.” Cf. Kimbrough v. United States, 552 U. S. 85, 103 (2007) (“Drawing meaning from silence is particu larly inappropriate . . . [when] Congress has shown that it knows how to [address an issue] in express terms”). For example, Congress provided an exception from the general grant of immunity for cases in which “money damages are sought against a foreign state” for an injury in the United States “caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office.” §1605(a)(5) (emphasis added). The same reference to officials is made in a similar, later enacted exception. See 28 U. S. C. A. §1605A(a)(1) (Supp. 2009) (eliminating immunity for suits “in which money damages are sought against a foreign state” for certain acts “engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency”); see also §1605A(c) (creating a cause of action against the “foreign state” and “any official, employee, or agent” thereof).11 If the term “foreign state” by definition includes an individual acting within the scope of his office, the phrase “or of any official or employee . . .” in 28 U. S. C. §1605(a)(5) would be unnecessary. See Dole Food Co., 538 U. S., at 476–477 (“[W]e should not construe the statute in a manner that is strained and, at the same time, would render a statutory term superfluous”). Other provisions of the statute also point away from reading “foreign state” to include foreign officials. Con gress made no express mention of service of process on individuals in §1608(a), which governs service upon a foreign state or political subdivision. Although some of the methods listed could be used to serve individuals—for example, by delivery “in accordance with an applicable international convention,” §1608(a)(2)—the methods specified are at best very roundabout ways of serving an individual official. Furthermore, Congress made specific remedial choices for different types of defendants. See §1606 (allowing punitive damages for an agency or in strumentality but not for a foreign state); §1610 (affording a plaintiff greater rights to attach the property of an agency or instrumentality as compared to the property of a foreign state). By adopting petitioner’s reading of “foreign state,” we would subject claims against officials to the more limited remedies available in suits against states, without so much as a whisper from Congress on the sub ject. (And if we were instead to adopt petitioner’s other textual argument, we would subject those claims to the different, more expansive, remedial scheme for agencies). The Act’s careful calibration of remedies among the listed types of defendants suggests that Congress did not mean to cover other types of defendants never mentioned in the text.

In sum, “[w]e do not . . . construe statutory phrases in isolation; we read statutes as a whole.” United States v. Morton, 467 U. S. 822, 828 (1984). Reading the FSIA as a whole, there is nothing to suggest we should read “foreign state” in §1603(a) to include an official acting on behalf of the foreign state, and much to indicate that this meaning was not what Congress enacted.12 The text does not ex pressly foreclose petitioner’s reading, but it supports the view of respondents and the United States that the Act does not address an official’s claim to immunity.

IV

Petitioner argues that the FSIA is best read to cover his claim to immunity because of its history and purpose. As discussed at the outset, one of the primary purposes of the FSIA was to codify the restrictive theory of sovereign immunity, which Congress recognized as consistent with extant international law. See §1602. We have observed that a related purpose was “codification of international law at the time of the FSIA’s enactment,” Permanent Mission of India to United Nations v. City of New York, 551 U. S. 193, 199 (2007), and have examined the relevant common law and international practice when interpreting the Act, id., at 200–201. Because of this relationship between the Act and the common law that it codified, petitioner argues that we should construe the FSIA con sistently with the common law regarding individual im munity, which—in petitioner’s view—was coextensive with the law of state immunity and always immunized a for eign official for acts taken on behalf of the foreign state. Even reading the Act in light of Congress’ purpose of codifying state sovereign immunity, however, we do not think that the Act codified the common law with respect to the immunity of individual officials.

The canon of construction that statutes should be inter preted consistently with the common law helps us inter pret a statute that clearly covers a field formerly governed by the common law.13 But the canon does not help us to decide the antecedent question whether, when a statute’s coverage is ambiguous, Congress intended the statute to govern a particular field—in this case, whether Congress intended the FSIA to supersede the common law of official immunity.14 Petitioner argues that because state and official immu nities are coextensive, Congress must have codified official immunity when it codified state immunity. See Brief for Petitioner 26–30. But the relationship between a state’s immunity and an official’s immunity is more complicated than petitioner suggests, although we need not and do not resolve the dispute among the parties as to the precise scope of an official’s immunity at common law. The very authority to which petitioner points us, and which we have previously found instructive, see, e.g., Permanent Mission, 551 U. S., at 200, states that the immunity of individual officials is subject to a caveat not applicable to any of the other entities or persons15 to which the foreign state’s immunity extends. The Restatement provides that the “immunity of a foreign state . . . extends to . . . any other public minister, official, or agent of the state with respect to acts performed in his official capacity if the effect of exercising jurisdiction would be to enforce a rule of law against the state.” Restatement §66 (emphasis added).16 And historically, the Government sometimes suggested immunity under the common law for individual officials even when the foreign state did not qualify. See, e.g., Greenspan v. Crosbie, No. 74 Civ. 4734 (GLG), 1976 WL 841 (SDNY, Nov. 23, 1976). There is therefore little rea son to presume that when Congress set out to codify state immunity, it must also have, sub silentio, intended to codify official immunity.

Petitioner urges that a suit against an official must always be equivalent to a suit against the state because acts taken by a state official on behalf of a state are acts of the state. See Brief for Petitioner 26. We have recog nized, in the context of the act of state doctrine, that an official’s acts can be considered the acts of the foreign state, and that “the courts of one country will not sit in judgment” of those acts when done within the territory of the foreign state. See Underhill v. Hernandez, 168 U. S. 250, 252, 254 (1897). Although the act of state doctrine is distinct from immunity, and instead “provides foreign states with a substantive defense on the merits,” Altmann, 541 U. S., at 700, we do not doubt that in some circum stances the immunity of the foreign state extends to an individual for acts taken in his official capacity. But it does not follow from this premise that Congress intended to codify that immunity in the FSIA. It hardly furthers Congress’ purpose of “clarifying the rules that judges should apply in resolving sovereign immunity claims,” id., at 699, to lump individual officials in with foreign states without so much as a word spelling out how and when individual officials are covered.17

Petitioner would have a stronger case if there were any indication that Congress’ intent to enact a comprehensive solution for suits against states extended to suits against individual officials. But to the extent Congress contem plated the Act’s effect upon officials at all, the evidence points in the opposite direction. As we have already men tioned, the legislative history points toward an intent to leave official immunity outside the scope of the Act. See n. 12, supra. And although questions of official immunity did arise in the pre-FSIA period, they were few and far between.18 The immunity of officials simply was not the particular problem to which Congress was responding when it enacted the FSIA. The FSIA was adopted, rather, to address “a modern world where foreign state enter prises are every day participants in commercial activities,” and to assure litigants that decisions regarding claims against states and their enterprises “are made on purely legal grounds.” H. R. Rep., at 7. We have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in de terminations regarding individual official immunity.19

Finally, our reading of the FSIA will not “in effect make the statute optional,” as some Courts of Appeals have feared, by allowing litigants through “artful pleading . . . to take advantage of the Act’s provisions or, alternatively, choose to proceed under the old common law,” Chuidian v. Philippine Nat. Bank, 912 F. 2d 1095, 1102 (CA9 1990). Even if a suit is not governed by the Act, it may still be barred by foreign sovereign immunity under the common law. And not every suit can successfully be pleaded against an individual official alone.20 Even when a plain tiff names only a foreign official, it may be the case that the foreign state itself, its political subdivision, or an agency or instrumentality is a required party, because that party has “an interest relating to the subject of the action” and “disposing of the action in the person’s absence may . . . as a practical matter impair or impede the per son’s ability to protect the interest.” Fed. Rule Civ. Proc. 19(a)(1)(B). If this is the case, and the entity is immune from suit under the FSIA, the district court may have to dismiss the suit, regardless of whether the official is im mune or not under the common law. See Republic of Philippines v. Pimentel, 553 U. S. 851, 867 (2008) (“[W]here sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign”). Or it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest. Cf. 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 the real party in inter est is the entity” (citation omitted)).

We are thus not persuaded that our construction of the statute’s text should be affected by the risk that plaintiffs may use artful pleading to attempt to select between application of the FSIA or the common law. And we think this case, in which respondents have sued petitioner in his personal capacity and seek damages from his own pockets, is properly governed by the common law because it is not a claim against a foreign state as the Act defines that term. Although Congress clearly intended to supersede the common-law regime for claims against foreign states, we find nothing in the statute’s origin or aims to indicate that Congress similarly wanted to codify the law of foreign official immunity.

V

Our review of the text, purpose, and history of the FSIA leads us to the conclusion that the Court of Appeals cor rectly held the FSIA does not govern petitioner’s claim of immunity. The Act therefore did not deprive the District Court of subject-matter jurisdiction. We emphasize, how ever, the narrowness of our holding. Whether petitioner may be entitled to immunity under the common law, and whether he may have other valid defenses to the grave charges against him, are matters to be addressed in the first instance by the District Court on remand. The judg ment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered. SUPREME COURT OF THE UNITED STATES

_________________ No. 08–1555 _________________

MOHAMED ALI SAMANTAR, PETITIONER v. BASHE

ABDI YOUSUF ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT [June 1, 2010]

JUSTICE ALITO, concurring.

I join the opinion of the Court, although I think that the citations to legislative history are of little if any value here.

SUPREME COURT OF THE UNITED STATES

_________________ No. 08–1555 _________________

MOHAMED ALI SAMANTAR, PETITIONER v. BASHE

ABDI YOUSUF ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT [June 1, 2010]

JUSTICE THOMAS, concurring in part and concurring in the judgment.

I join the Court’s opinion except for those parts relying on the legislative history of the Foreign Sovereign Immu nities Act of 1976, 28 U. S. C. §§1330, 1602, et seq. In my view, the Court’s textual analysis is sufficient to re- solve this case. See post, at 1–4 (SCALIA, J., concurring in judgment).

SUPREME COURT OF THE UNITED STATES

_________________ No. 08–1555 _________________

MOHAMED ALI SAMANTAR, PETITIONER v. BASHE

ABDI YOUSUF ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT [June 1, 2010]

JUSTICE SCALIA, concurring in the judgment.

The Court’s admirably careful textual analysis, ante, at 7–13, demonstrates that the term “foreign state” in the provision “a foreign state shall be immune from the juris diction of the courts of the United States and of the States,” 28 U. S. C. §1604, does not include foreign offi cials. Yet the Court insists on adding legislative history to its analysis. I could understand that (though not agree with it) if, in the absence of supposed legislative-history support, the Court would reach a different result. Or even if there was something in the legislative history that clearly contradicted the Court’s result, and had to be explained away. That is not the situation here (or at least the Court’s opinion does not think it to be so). The Court assures us, however (if this could be thought assurance), that legislative history is “ ‘not generally so misleading’ ” that it should “ ‘never’ ” be used. Ante, at 10, n. 9 (quoting Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 611–612, n. 4 (1991)). Surely that is damning by faint praise. And the Court’s mention of the past practice of using legislative history, ante, at 10, n. 9, does not support the Court’s use of it today. The past practice was “not the practice of using legislative history for the purpose of giving authoritative content to the meaning of a statutory text,” Mortier, supra, at 622 (SCALIA, J., concurring in judgment).

The Court’s introduction of legislative history serves no purpose except needlessly to inject into the opinion a mode of analysis that not all of the Justices consider valid. And it does so, to boot, in a fashion that does not isolate the superfluous legislative history in a section that those of us who disagree categorically with its use, or at least dis agree with its superfluous use, can decline to join. I there fore do not join the opinion, and concur only in the result.

The Court relies on legislative history to support three of its positions. First, after explaining why the phrase “agency or instrumentality” in the definition of “foreign state,” see §1603(a), (b), does not refer to natural persons, ante, at 9–10, the Court says “[n]or does anything in the legislative history suggest that Congress intended the term ‘agency or instrumentality’ to include individuals,” ante, at 10, n. 9. According to the Court, “the legislative history, like the statute, speaks in terms of entities.” Ibid. Apparently, the legislative history must be consulted, not to show that it supports the Court’s textual analysis, or even to explain why its seeming contradiction of the Court’s analysis is inconsequential, but to show nothing more than that it contains the same ambiguous language as the text. This is beyond all reason.

Second, after concluding its review of the statute’s text, the Court states that the “legislative history makes clear that Congress did not intend the [Foreign Sovereign Im munities Act of 1976] to address position-based individual immunities such as diplomatic and consular immunity,” ante, at 13, n. 12. See also ante, at 17. It cites for this proposition a House Committee Report that we have no reason to believe was read (much less approved) by the Senate—or, indeed, by the Members of the House who were not on the Committee—or even, for that matter, by the members of the Committee, who never voted on the Report. In any case, the quoted excerpt does not address “position-based individual immunities” in general but only “consular and diplomatic immunity,” which is not at issue here. Unless consular and diplomatic immunity, on the one hand, and, on the other hand, what is at issue here— state-agent immunity—are always treated the same (which I doubt and the Court does not attempt to estab lish), the passage contributes nothing to analysis of the present case.

The same footnote also quotes a portion of the same House Report as follows:

“ ‘The bill does not attempt to deal with questions of discovery. . . . [I]f a plaintiff sought to depose a diplo mat in the United States or a high-ranking official of a foreign government, diplomatic and official immu nity would apply.’ ” Ante, at 13, n. 12.

If anything, this passage cuts against the Court’s result. The two sentences omitted from the above quotation read as follows:

“Existing law appears to be adequate in this area. For example, if a private plaintiff sought the production of sensitive governmental documents of a foreign state, concepts of governmental privilege would apply.” H. R. Rep. No. 94–1487, p. 23 (1976).

Thus, the House Report makes it clear that the bill’s failure to deal with discovery applies to both discovery against sovereigns and discovery against foreign officials. But the latter would have been unnecessary if the bill dealt only with sovereigns. The implication (if any) is that the bill’s provisions regarding immunity from suit apply to both sovereigns and foreign officials.

Third, and finally, the Court points to legislative history to establish the purpose of the statute. See ante, at 17, and n. 19. This is particularly puzzling, because the en acted statutory text itself includes findings and a declara tion of purpose—the very same purpose (surprise!) that the Court finds evidenced in the legislative history. See 28 U. S. C. §1602. To make matters worse, the Court itself notes this statutory declaration of purpose twice earlier, in the body of its opinion, see ante, at 6, 13. If those textual references to the statute itself were deleted, the footnoted citation of legislative history would at least perform some function. As it is, however, it adds nothing except the demonstration of assiduous law-clerk research.

It should be no cause for wonder that, upon careful examination, all of the opinion’s excerpts from legislative history turn out to be, at best, nonprobative or entirely duplicative of text. After all, legislative history is almost never the real reason for the Court’s decision—and make weights do not deserve a lot of the Court’s time.