THE SUPREME COURT OF THE UNITED STATES SPRING TERM, 2010 DOCKET NO. 08-8888 MEPHISTO VALENTIN, Petitioner, v. JANE MARGARETE and JOHN WERTHER, Respondents. ON WRIT OF CERTIORARI TO THE COURT OF APPEALS FOR THE TWELFTH CIRCUIT Brief for Respondents Team # R28 Issue # 2 Jacob Mutert (608) 341-6510!
TABLE OF CONTENTS TABLE OF AUTHORITIES... ii QUESTION PRESENTED... 1 OPINIONS BELOW... 1 CONSTITUTIONAL PROVISIONS AND RULES... 1 INTRODUCTION... 2 STATEMENT OF THE CASE... 5 ARGUMENT... 7 I. THE FSIA S PLAIN LANGUAGE CLEARLY DEMONSTRATES THAT CONGRESS DID NOT INTEND FOR THE ACT TO GRANT IMMUNITY TO INDIVIDUALS.... 7 II. THE FSIA CONTAINS A TEMPORAL REQUIREMENT AND THUS APPLIES ONLY TO DEFENDANTS WHO ARE PRESENTLY AN AGENCY OR INSTRUMENALITY OF A STATE WHEN THE SUIT IS FILED.... 13 CONCLUSION... 17!! i!
TABLE OF AUTHORITIES Cases Argentine Republic v. Amerada Hess Shipping Corp. 488 U.S. 428 (1989)... 3 Belhas v. Ya alon 515 F.3d 1279 (D.C. Cir. 2008)... 11 Chuidian v. Philippine National Bank 912 F.2d 1095 (9th Cir. 1990)... 11 Dole Food Co. v. Patrickson 538 U.S. 468 (2003)... 4, 13, 14 Enahoro v. Abubakar, 408 F.3d 877 (7th Cir. 2005)... 8, 9 Matar v. Dichter 563 F.3d 9 (2d Cir. 2009)... 7, 9 Republic of Austria v. Altmann 541 U.S. 677 (2004)... 2, 3, 7, 13 Statutes 28 U.S.C. 1330, 1602-1611... 3, 4, 10, 13, 14 28 U.S.C. 1350 note... 11! ii!
QUESTION PRESENTED Whether a foreign state s immunity from suit under the Foreign Sovereign Immunities Act, 28 U.S.C. 1604, extends to an individual for acts taken in the individual s former capacity as an official acting on behalf of a foreign state? 888 F.9th 888 (12th Cir. 2010) OPINIONS BELOW CONSTITUTIONAL PROVISIONS AND RULES 28 U.S.C. 1330, 1602-1611 28 U.S.C. 1350 28 U.S.C. 1350 note "!!
INTRODUCTION The petitioner, Mephisto Valentin, is the former leader of military forces that tortured, murdered, arbitrarily detained and abducted civilians, and committed war crimes and crimes against humanity in the country of Tamland in the 1980 s. Valentin, as the former defense minister of Tamland, had both control and knowledge of the incidents but failed to take any disciplinary actions against his men or attempt to prevent the human rights violations from occurring. Valentin is personally responsible to the numerous victims, including the respondents, under the Alien Tort Claims Act ( ATCA ), and the Torture Victims Protection Act ( TVPA ) for the oppressive acts undertaken by troops he controlled. Valentin, cognizant of his responsibility and guilt under those valid claims, is instead trying to escape his individual responsibility under the guise of state immunity of the Foreign Sovereign Immunities Act ( FSIA ). The FSIA was enacted in 1976 to end the difficulty in administering the common law rule of immunity by the Executive Branch s discretion. Republic of Austria v. Altmann, 541 U.S. 677, 690 (2004). Due to policy objectives and political pressure, the State Department, and as a #!!
corollary, the judiciary, was often placed in impossible positions in making their rulings. Id. The FSIA alleviated these problems by establishing a presumptive right of immunity for states and the agencies or instrumentalities of states. 28 U.S.C. 1603. That presumption may only be overcome by a finding that one of the enumerated exceptions is applicable. 28 U.S.C. 1604. The Supreme Court has held that the FSIA is now the sole means by which an individual may claim jurisdiction over a foreign state. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989). The FISA did not however establish a presumptive right for immunity for individuals, even those acting in an official capacity. The Court of Appeals for the 12th Circuit recognized this in overturning the District Court s dismissal for lack of subject matter jurisdiction. The dismissal was based on the District Court s mistaken understanding that the FSIA s agencies or instrumentalities provision applied to individuals of the state acting in an official capacity. The 12th Circuit closely examined the plain language of the statute and noted that it contained no explicit inclusion of individuals. Furthermore the statute s definition of agencies or instrumentalities makes no implicit suggestion that $!!
individuals are covered by the act. 28 U.S.C. 1603(b). That provision uses distinct terminology like legal persons, organs and entities, which cannot be commonly understood to refer to individuals. The 12th Circuit rightly decided that this language failed to express an intention of Congress that the FSIA extend to individuals like Valentin. Given that the statute marked a dramatic shift in common law as it transformed what had previously been a mere expectation of immunity for states into a legal right, Congress decision not to include individuals in the statute s language, either explicitly or implicitly, is fatal to Valentin s claims. Further damning to Valentin s argument is the fact that the Supreme Court has already interpreted the FSIA s agencies or instrumentalities provision to include a temporal requirement. Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003). The Supreme Court ruled unanimously in Dole Food that questions on whether a corporation s is an agency or instrumentality of a foreign state turn on the defendant s status at the time the suit is first filed and not when the incident giving rise to liability occurred. Id. There is nothing in the language of the statute, nor inherently different about individuals and corporations visà-vis their affect on foreign states after disassociation, %!!
to determine that the Court s holding in Dole Food fails to apply to individuals as well. Thus even if the FSIA were to be interpreted to contain a presumptive right of immunity to individuals, this presumption only exists to those acting in an official capacity of the state at the time of the suit. Since Valentin was not an official of Tamland or any other government at the time the suit was filed, he has no immunity under the FSIA. The 12th Circuit s ruling should be affirmed. STATEMENT OF THE CASE During the 1980 s, the Supreme Revolutionary Council SRC ruled the nation of Tamland through a brutal suppression of the civilian population. (R. at 16). Petitioner Valentin was the Tamland defense minister and was in charge of the SRC s security forces. (R. at 15). Conflict eventually broke out between the SRC and an armed resistance group, with the SRC increasing in scale its human rights violations and war crimes. (R. at 16). Troops under Valentin s command engaged in widespread destruction of civilian livestock, wanton destruction of homes and cities, destruction of water reservoirs, tortured and detained supporters of the resistance and indiscriminately killed civilians. Id. Respondent Margartere was tortured and held in detention for three and &!!
a half years without a trial. Id. Respondent Werther and his brothers were forcibly abducted. Id. Werther s brothers were later executed. Id. During these incidents and others engaged in by Valentin s forces, Valentin had effective control over his troops and knowledge of the atrocities. Id. Nevertheless, Valentin failed to take any measures to discipline his forces for the atrocities committed and prevent further crimes from occurring. Id. In 1991 the SRC s regime finally collapsed. Id. Valentin is today a private U.S. citizen. Id. Plaintiffs brought charges against Valentin under the ATS and TVPA. (R. at 15). The District Court dismissed the suit for lack of subject matter jurisdiction. Id. The Court determined that the FSIA extended its presumptive right of immunity to individuals acting in an official capacity. Id. Since none of the exceptions of the FSIA applied in the case, Valentin was entitled to immunity. Id. The Court of Appeals for the 12th Circuit reversed holding that the FSIA does not extend immunity to individuals. (R. at 16). The Court reasoned that the language of 1603 contains no indication, express or implied, that the Act covers individuals. (R. at 16-17). The Court also reasoned that regardless of whether '!!
individuals were included, the Act contained a temporal requirement that the individual be an official of a foreign state at the time the suit is filed. (R. at 17). Since Valentin was presently a private citizen he was not entitled to immunity. Id. The ruling of the 12th Circuit should be affirmed. ARGUMENT I. THE FSIA S PLAIN LANGUAGE CLEARLY DEMONSTRATES THAT CONGRESS DID NOT INTEND FOR THE ACT TO GRANT IMMUNITY TO INDIVIDUALS The FSIA was enacted to end the administrative difficulties in granting states immunity by discretion. Republic of Austria v. Altmann, 541 U.S. 677, 690 (2004). By codifying immunity from a discretionary grant into a legal presumptive right, the FSIA neutralized the political pressure placed on the U.S. by foreign states to grant them immunity and established clear markers for the judiciary in deciding these kinds of cases. Id. The establishment of the legal right of immunity marked a dramatic break with the common law, which for almost 200 years had only recognized an expectation of immunity at the Executive s discretion. Matar v. Dichter, 563 F.3d 9, 13 (2d Cir. 2009); Republic of Austria v. Altmann, 541 U.S. 677, 688 (2004) (citing Schooner Exchange v. McFaddon, 11 U.S at 136). Congress cautiously extended this right to (!!
only a few select categories of defendants. The FSIA grants the presumptive right of immunity only for foreign states and agencies or instrumentalities of foreign states. 28 U.S.C. 1603. In determining whether the agencies or instrumentalities of states includes individuals acting in their official capacity, the rules of statutory interpretation provide the proper analysis. If the plain language of the statute reveals Congress intent unambiguously, such intent would hold. In the event the statute needs further interpretation the Court s may turn to accompanying texts and statements in ascertaining Congress intent. A searching inquiry of the plain language of the FSIA and relevant outside text and statements reveals no indication that Congress intended the act s grant of immunity to extend to individuals. The language of the FSIA lacks any explicit referral to individuals in any of its provisions. Enahoro v. Abubakar, 408 F.3d 877, 881 (7th Cir. 2005). This defect alone is fatal to Valentin s argument. The common law s discretionary grant of immunity extended to individuals as well as foreign states. Congress was well aware of this when it enacted the FSIA yet it did not include individuals explicitly in the text of the FSIA. )!!
This conspicuous absence is meaningful. Given that the FSIA established a powerful new legal right, one that completely shields the entities mentioned from all civil suits, the FSIA was meant to be limited in scope. The statute should be read narrowly and additional entities should not be imputed into the text of the FSIA. Congress did not include individuals in the Act because they did not intend for individuals to be covered by the FSIA. A ruling that because Congress failed to explicitly exclude individuals from the Act they must be included in the FSIA stands logic on its head. Id. at 882. For one it purports to find not only meaning where Congress was silent but to be able to interpret that silence. Secondly, that interpretation is inconsistent with the purpose of the Act. Congress knew it was abrogating common law principles in passing the FSIA. An act intended to abrogate the common law needs to speak clearly on the issue to actually abrogate it. Matar v. Dichter, 563 F.3d 9, 14 (2d Cir. 2009) (citing Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978)). Put more bluntly, Congress gains nothing from being coy. If it intended for the FSIA to extend to individuals not only should it have explicitly said so, it was required to. Id. Since individuals are not explicitly mentioned as being covered by the FSIA, Congress did not intend for individuals *!!
to be covered. Valentin is thus not granted immunity by the FSIA. Furthermore, the provisions of the FSIA do not imply that individuals were intended to be included in the act. 1603(b) defines an entity qualifying as agencies or instrumentalities of foreign states in the FSIA. The provision relies heavily on terms that are not typically used to describe individuals. 1603(b)(1) requires those entities be separate legal persons, corporate or otherwise. 1603(b)(3) states that entities must not be created under the laws of any third country. The references to legal created persons are not ones commonly used to describe individuals. A person is not created by the laws of a country nor are they commonly referred to as legal persons. They are terms though, that are commonly used to describe corporations and other types of business entities. Indeed 1603(b)(1) specifically mentions corporations as an example of a legal person. Additionally the legislative history surrounding 1603(b) supports the idea that the terms did not refer to individuals. The history states in part: As a general matter, entities which meet the definition of an agency or instrumentality could assume a variety of forms, including a state trading corporation, a mining enterprise, a transport organization such as a shipping line or airline, a steel company, a central "+!!
bank, an export association, a governmental procurement agency or a department or ministry. The listed examples demonstrate that Congress intended that 1603(b) encompass different types of businesses and organizations and not individuals. Chuidian v. Philippine National Bank, 912 F.2d 1095, 1101 (9th Cir. 1992) (citing H.R. Rep on 1603(b) at 6614). The Torture Victim s Prevention Act ( TVPA ) provides further guidance of Congress understanding on immunity for individuals. The TVPA was enacted some fifteen years after the FSIA was signed into law. 28 U.S.C. 1350 note. The TVPA creates a private cause of action against individuals who under actual or apparent authority, or color of law, of any foreign nation torture or perform extrajudicial killings. Id. The TVPA doesn t create a new exception in the FSIA and there is no indication in the legislative history or any case law that holds that the TVPA preempts the FSIA in any way. Belhas v. Ya alon, 515 F.3d 1279, 1288 (D.C. Cir. 2008). The FSIA does not contain an exception for jus cogens violations of international law like torture and extrajudicial killings. Id. at 1292 (Williams, J., concurring). The interpretation of the FSIA sought by the respondent would make the TVPA nonsensical. The TVPA s application to ""!!
individuals with actual or apparent authority of a foreign state has essentially the same meaning as individuals acting in their official capacity for the state. Since the TVPA doesn t preempt the FSIA nor create an exception in it, and the FSIA has no current exception for jus cogens violations of international law, the end result is that individuals sued under the TVPA would be able to block all such actions by claiming immunity under the FSIA. Thus if the FSIA granted immunity to individuals acting in their official capacities, the TVPA would be both toothless and meaningless. Congress cannot be said to have intended such an irrational result. The only interpretation that avoids this irrationality is to recognize that Congress did not understand the FSIA to extend sovereign immunity to individuals, even those acting under the authority of the state. The TVPA s subsequent passage is thus a clear marking that Congress did not intend for nor understand the FSIA to extend immunity to individuals. The plain language of the FSIA operative language, its definition provision and relevant outside language like the legislative history and TVPA demonstrate that Congress did not intend for the FSIA to extend immunity to individuals. Valentin thus cannot claim immunity under the act. "#!!
II. THE FSIA CONTAINS A TEMPORAL REQUIREMENT AND THUS APPLIES ONLY TO DEFENDANTS WHO ARE PRESENTLY AN AGENCY OR INSTRUMENTALITIES OF A STATE WHEN THE SUIT IS FILED. The traditional concept of sovereign immunity is concerned about the defendant s status at the time of the suit, not about the defendant s conduct before the suit. Republic of Austria v. Altmann, 541 U.S. 677, 708 (2004) (Breyer, J., concurring). The Supreme Court, following this principle, has held that whether a defendant corporation is an instrumentality of a foreign state under the FSIA is determined by the defendant s status at the time the complaint is filed and not when the incident giving rise to liability occurred. Dole Food Co. v. Patrickson, 538 U.S. 468, 480 (2003). The FSIA requires that an agency or instrumentality is an organ of a foreign state or political division thereof, a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof (emphasis added). 28 U.S.C. 1603(b)(2). The Court in Dole Food unanimously held that the plain language of the Act requires that agency or instrumentality status be determined at the time the suit is filed since the language is written in the present tense. Dole Food, 538 U.S. at 480. The Court found that since the state of Israel did not own a majority of the defendant corporation s shares at the time "$!!
the suit was filed, the corporation was not an instrumentality of the state and therefore not entitled to immunity under the FSIA. Id. The Supreme Court s holding in Dole Food is controlling in this case. The present tense of 1603(b) is uniform throughout the entire provision. It requires that organs and political subdivisions of foreign states presently be organs and political subdivisions when the suit is filed. Thus even if the provision is interpreted to include individuals acting in an official capacity, precedent demonstrates that the immunity doesn t extend to former officials. 1608 lends further support to the temporal requirement interpreted in Dole Food. The provision covers the service of the suit and states that suits are to be served to foreign states or political subdivisions of foreign states. 28 U.S.C. 1608. The language results in an odd result if the act does indeed apply to former officials. Foreign states will physically receive suits that are against individuals they ve stopped associating with. In many cases it will likely be extremely difficult and perhaps impossible for the foreign state to track down the named individual. In Valentin s case, the suit against him would "%!!
be delivered to the current Tamland government even though the regime Valentin was part of collapsed nearly two decades ago and Valentin has been a private citizen living in the United States. This is not the result Congress intended. If individuals are deemed to be included in the FSIA, Congress intent was to only cover present officials of the foreign state. Service of suits sent to that foreign state or a division of that state could then be fairly certain to reach the individual charged. The process of service provision of the FSIA thus shows that Congress intended for the Act to apply only to present officials of the state when the suit is filed. Any attempt to distinguish between the adverse impact suits against corporations and suits against individuals have on their former states is misguided. For one it fails to overcome the plain language of the Act, which extends the present tense to the entirety of 1603(b). Secondly, there is nothing inherently different between corporations and individuals as to the amount of political embarrassment a suit against one can cause for their former state. Many countries have strong ownership ties with select corporations that as a result create a strong international and public association between the corporation and the controlling state. The state shifting from being a "&!!
majority owner to a non-controlling owner does not splinter these perceptions. Suits against those corporations will invariably reflect poorly against the states that had prior ownership and may cause political drawback. Yet these are precisely the kinds of suits permitted in Dole Food. Additionally, the argument is inconsistent with the goal of FSIA. The premise of the argument is that Courts should place consideration into the inconvenience the suits cause foreign states. This is precisely the kind of analysis that the FSIA was enacted to eliminate. The FSIA established bright line rules to give clear guidance to courts and to neutralize outside political pressure so that the court may apply the law objectively. Among those bright line rules is the temporal aspect of 1603(b)(2) the Supreme Court illuminated in Dole Food: that the status of the defendant at the time of suit is the relevant inquiry. If the defendant was acting in their capacity as an official of the state at the time of suit, the presumptive right of immunity is granted. If the defendant was not an official at the time of suit, then the FSIA does not apply. Courts should refrain from discussions of the political consequences of their decisions and instead focus on determining the status of the defendant at the time of suit. "'!!
In the present case, that determination is readily apparent. At the time of suit Valentin was a private citizen living in the United States. He was not an official of Tamland acting in an official capacity, nor was he an official of any other country. Therefore he fails to meet the necessary definition of an agency or instrumentality of a foreign state as laid out in 1603 and the FSIA does not apply to him. CONCLUSION For the foregoing reasons, the respondents respectfully request that the Court affirm the judgment of the Court of Appeals for the 12th Circuit. Respectfully submitted, Jacob Mutert Attorney for Respondents!! "(!!