THE SUPREME COURT OF THE UNITED STATES

SPRING TERM 2010

DOCKET NO. 01-01234

MEPHISTO VALENTIN Petitioner, v. JANE MARGARETE and JOHN WERTHER Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS FOR THE TWELFTH CIRCUIT

Brief for Petitioners Advocate #31 Issue #2 Ira Steinberg – (310)-507-5718

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Table of Contents

Table of Contents..............................................i

Table of Authorities.........................................iii

Question Presented.............................................1

Opinion Below..................................................1

Constitutional Provisions & Rules..............................1

Introduction...................................................1

Statement of the Case..........................................4

Argument.......................................................4

I. Foreign Sovereign immunity is a crucial, broad, and long-lived doctrine in international law.......................5

A. The policy motivations for foreign sovereign immunity

have traditionally given it broad application...........5

B. The FSIA is the sole basis for jurisdiction over a foreign sovereign.......................................6

II. The FSIA applies to former officials such as Mr. Valentin.7

A. The language, history, and policy scheme of the FSIA show that the act covers natural persons.....................7

B. The FSIA protects former officials from suit for actions taken in an official capacity..........................10

C. Even if the FSIA did not protect former officials they

like retain their common law immunity..................11

III. Valentin’s actions were within the scope of his authority and thus he may assert immunity as a former official.....12

A. Applying the functional approach to determining official

capacity, Mr. Valentin’s actions were within his official capacity even if against Tamland law...................12

B. There is no exception from immunity for jus cogens violations.............................................15

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Conclusion....................................................17

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Table of Authorities

U.S. SUPREME COURT CASES

Argentine Republic v. Amerada Hess Shipping Co.

488 U.S. 428 (1989)....................................6, 7

Dole Food Co. v. Patrickson

538 U.S. 468 (2003)..................................10, 11

Republic of Austria v. Altmann

541 U.S. 677 (2004).......................................5

Underhill v. Fernandez

168 U.S. 250 (1897).................2, 3, 9, 12, 13, 16, 17

Verlinden B.V. v. Central Bank of Nigeria

461 U.S. 480 (1983)............................6, 9, 11, 12

FEDERAL APPELLATE COURT CASES

Belhas v. Ya’Alon

515 F.3d 1279 (D.C. Cir. 2008).........3, 7, 10, 11, 14, 15

Chuidian v. Phillipine National Bank

912 F.2d 1095 (9th Cir. 1990)...................6, 8, 12, 13

Heaney v. Spain

445 F.2d 501 (2nd Cir. 1971)........................5, 9, 10

In re Terrorist Attacks of September 11, 2001

538 F.3d 71 (2nd Cir. 2008).........................2, 8, 17

Matar v. Dichter

563 F.3d 9 (2nd Cir. 2009)................................11

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Valentin v. Margarete

888 F.9th 888 (12 Cir. 2010)......2, 4, 7, 9, 10, 13, 14, 17

STATUTES

28 U.S.C. §1330.............................................5, 6

28 U.S.C. §1350........................................7, 14, 16

28 U.S.C. §1602.............................................5, 6

28 U.S.C. §1603.......................................2, 5, 6, 8

28 U.S.C. §1604...............................1, 2, 5, 6, 14, 15

28 U.S.C. §1605.....................................5, 6, 14, 16

28 U.S.C. §1605A....................................5, 6, 14, 16

28 U.S.C. §1608.............................................5, 6

EXECUTIVE MATERIALS

1 U.S. Op. Att’y Gen. 81 (1797)......................1, 5, 9, 16

INTERNATIONAL MATERIALS

Jones v. Saudi Arabia

[2006] UKHL 26.....................3, 9, 12, 13, 15, 16, 17

Tamland Const. art 24..................................3, 13, 14

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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 acting official on behalf of a foreign state.

OPINIONS BELOW

888 F.9th 888 (12th Cir. 2010)

CONSTITUTIONAL PROVISIONS & RULES

28 U.S.C. §1330

28 U.S.C. §1350

28 U.S.C. §1602

28 U.S.C. §1603

28 U.S.C. §1604

28 U.S.C. §1605

28 U.S.C. §1605A

28 U.S.C. 1608

Tamland Const. art. 24

INTRODUCTION

Petitioner, Mr. Valentin, is entitled to immunity under the

Foreign Sovereign Immunities Act for actions taken while Defense

Minister of Tamland.

Since our nation’s inception it has adhered to the

principle of foreign sovereign immunity, immunizing sovereigns

from suit for official actions. 1 U.S. Op. Att’y Gen. 81

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(1797). The doctrine, now codified as the Foreign Sovereign

Immunities Act (FSIA), serves to aid diplomacy and respect for

sovereignty by preventing courts from being used to politicize

international litigation and judge other nations’ policy

choices. 28 U.S.C. §1604; Underhill v. Hernandez, 168 U.S. 250,

252 (1897); In re Terrorist Attacks of September 11, 2001, 538

F.3d 71, 82 (2nd Cir. 2008). The doctrine is an important

foundation for effective diplomacy and international relations.

Petitioner, Mr. Valentin, served as Defense Minister in the

government of Tamland, a cold war ally of the United States.

Valentin v. Margarete, 888 F.9th 888, 16 (12th Cir. 2010). As

Defense Minister, Mr. Valentin was engaged on behalf of the

government in a campaign to combat an armed resistance by an

ethnic minority that involved possible human rights abuses. Id.

The respondents claim they were detained and tortured by Tamland

defense forces and are now suing Mr. Valentin. Id.

Mr. Valentin is protected by the FSIA because the act

applies to natural persons and former officials. 28 U.S.C.

§1603. Though the FSIA is ambiguous in its application to

natural persons, immunizing people is necessary since a nation

can only act through its human officials. Id. Immunity has

historically been provided to individuals and is consistent with

the policy purposes of the doctrine. Underhill, 168 U.S. at

252. Similarly, not applying the FSIA to former officials would

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defeat the purposes of the FSIA by allowing courts to judge the

policy actions of foreign officials. Id. In both cases it

would allow plaintiffs to commence politicized and

diplomatically disruptive litigation by simply suing current or

former officials instead of the government.

Only Mr. Valentin’s official actions are protected, and

what is official should be determined under the functional

approach, whereby actions taken under color of law or apparent

authority are also considered official. See e.g., Jones v.

Saudi Arabia, [2006] UKHL 26 at §74. The functional approach

reflects how governments work and assures that courts aren’t

forced into foreign statutory and constitutional interpretation.

See Id. That Mr. Valentin’s actions violated the literal terms

of Tamland law does not alter the official nature of his acts

under the functional approach. Tamland Const. art. 24.

Furthermore, substantive international norms banning torture do

not confer jurisdiction or make torture by an official a per se

unofficial act. Jones, [2006] UKHL 26 at §§46-49. There is no

FSIA exception for violations of domestic law or international

norms, and to create one would be inconsistent with the purpose

and international understanding of the doctrine. Belhas v.

Ya’Alon, 515 F.3d 1279, 1286 (D.C. Cir. 2008).

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STATEMENT OF THE CASE

In the early 1980s the Supreme Revolutionary Council came

to power in Tamland. Valentin, 888 F.9th at 16. The regime was

a cold war ally of the United States and received international

support and military aid from the United States. Id.

Suppression of ethnic minorities in Tamland led to an armed

resistance by the respondents ethnic group, which was met with

harsh tactics by the Tamland government. Id. During this time

Mr. Valentin was serving the government as Defense Minister.

Id. In that capacity he carried out the government’s policy of

combating the armed resistance with U.S. military aid. Id.

While the government’s policy was being carried out respondents

claim they were abducted, held, and tortured without trial. Id.

Respondents brought suit as a result of their detention and

treatment. Id.

Mr. Valentin, the petitioner, argues that he is entitled to

immunity under the Foreign Sovereign Immunities Act (FSIA) and

the complaint should be dismissed. Id. at 15. The District

Court accordingly dismissed the claim under the FSIA because Mr.

Valentin was immune. Id. However, the Circuit Court reversed

on the mistaken belief that the FSIA does not apply to former

foreign officials. Id. at 17. Mr. Valentin now appeals,

requesting this court to reverse the Circuit Court and find that

Mr. Valentin is entitled to immunity for his actions.

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ARGUMENT

I. Foreign Sovereign immunity is a crucial, broad, and long-lived doctrine in international law.

A. The policy motivations for foreign sovereign immunity

have traditionally given it broad application.

Foreign sovereign immunity is the long-standing doctrine

that the courts of one nation should not be used to judge the

official actions of other nations. Underhill, 168 U.S. at 252.

The United States has adhered closely to this doctrine, most

recently through the adoption of the Foreign Sovereign

Immunities Act. 28 U.S.C. §§1330, 1602-1611; 1 U.S. Op. Att’y

Gen. 82 (1797). The United States and other nations adhere to

the doctrine of sovereign immunity for several reasons. The

first is comity and mutual respect among nations. Underhill,

168 U.S. at 252. Foreign sovereign immunity is one method by

which nations respect the sovereignty of other nations by

refraining from passing judgment on their official actions in

court. Id. The second justification is the facilitation of

diplomacy by ensuring that the judicial process is not used as a

political weapon for embarrassing other nations. Heaney v.

Government of Spain, 445 F.2d 501, 503 (2nd Cir. 1971). Under

both justifications reciprocity is a crucial because the

doctrine is premised on nations according each other equal

respect for their sovereignty. Republic of Austria v. Altmann,

541 U.S. 677, 688 (2004).

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To provide more consistent, apolitical application of the

doctrine, Congress passed the Foreign Sovereign Immunities Act

in 1976 (FSIA) to codify the common law of foreign sovereign

immunity. 28 U.S.C. §1604. As the codification of the common

law the FSIA embodied the principles of foreign sovereign

immunity and became the sole basis for obtaining jurisdiction

over a foreign sovereign. Argentine Republic v. Amarenda Hess

Shipping Corp., 488 U.S. 428, 434 (1989). The FSIA provided for

broad immunity with very specific exceptions that further the

principles behind foreign sovereign immunity. 28 U.S.C. §§1330,

1602-11; Chuidian v. Phillipine National Bank, 912 F.2d 1095,

1100 (9th Cir. 1990).

B. The FSIA is the sole basis for jurisdiction over a foreign sovereign.

Given the broad application and policy basis of foreign

sovereign immunity it comes as no surprise that the Supreme

Court stated in Verlinden that the FSIA must be applied in

“every action against a foreign sovereign.” Verlinden B.V. v.

Central Bank of Nigeria, 461 U.S. 480, 483 (1983). This

tradition of broad application led the court to state

unequivocally in Hess Shipping that the FSIA was the “sole

basis” for obtaining jurisdiction over a foreign sovereign in

U.S. courts. 488 U.S. at 434.

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Specifically, in Hess Shipping the court held that the FSIA

acted as a jurisdictional hurdle to claims brought under the

Alien Tort Claims Act (ATCA) in light of the fact that the FSIA

was enacted as a comprehensive scheme to govern immunity. 488

U.S. at 489. As an addition to the ATCA, the same reasoning

applies to the Torture Victim Protection Act (TVPA). Belhas,

515 F.3d at 1289. Since both the House and Senate explicitly

stated that the TVPA was not intended to override the FSIA, the

D.C. Circuit held that the FSIA applies to TVPA actions under

Hess Shipping. Id.; 28 U.S.C. §1350(2); 488 U.S. at 489. In

short, the route to any potential recovery for respondents goes

through the FSIA.

II. The FSIA applies to former officials such as Mr. Valentin

A. The language, history, and policy scheme of the FSIA show that the act covers natural persons.

Given that the FSIA applies to the claims by the plaintiffs

under the ATCA and TVPA, the respondents must either (1) fit

into a FSIA exception, or (2) show that the FSIA does not apply

to Mr. Valentin. The respondents do not claim any exception

applies to them. Therefore, the applicability of the FSIA to

Mr. Valentin turns on whether the statute covers natural persons

and former officials. Valentin, 888 F.9th 888. In both cases

the FSIA is applicable.

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To determine whether the FSIA applies to natural persons

one can begin with the text of the statue. The text of the

§1603 is ambiguous, neither excluding the possibility of

including natural persons or explicitly including natural

persons in its reach. Chuidian, 912 F.2d at 1101. Definitions

of agency or instrumentality such as “legal person” and “organ

of a foreign state” are not explicit descriptions of natural

persons, but do not prohibit such a definition either. Id.

However, the majority of Circuit Courts examining the issue have

resolved the ambiguity in favor of including natural persons.

September 11, 538 F.3d at 81.

The ambiguity in the text should be resolved in favor of

covering natural persons under the statute for several reasons.

First, a state can only act through the human officials who

implement the policies of the state. Chuidian, 912 F.2d at

1102. Not providing natural persons with immunity would

frustrate the purpose of the FSIA by allowing plaintiffs to

circumvent FSIA immunity simply by suing an official instead of

a state agency. Id.

Second, and relatedly, according natural persons immunity

is most consistent with the history and purpose of foreign

sovereign immunity. See, Supra Part I.A. The FSIA was intended

to codify the common law of sovereign immunity, which executive

and judicial precedent shows was historically extended to

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natural persons. Underhill, 168 U.S. at 252-253; Verlinden, 461

U.S. at 488; 1 U.S. Op. Att’y Gen. 82 (1797). Aside from

decisions of American courts at the Circuit level, U.N.

conventions and decisions of European courts remain in general

agreement that foreign sovereign immunity protects natural

persons acting in an official capacity. Valentin, 888 F.9th at

18 n. 5; Jones, [2006] UKHL 26 at §10.

Not covering natural persons under FSIA would jeopardize

important policy justifications for foreign sovereign immunity.

The ability to circumvent immunity by suing officials would

undermine the policy of not allowing our courts to be used to

judge, embarrass, and undermine other nations. See Heaney, 445

F.2d at 503 (immunity intended to avoid conflict and

embarrassment). Additionally, since the U.N. and other nations

immunize natural persons, not providing them immunity in the

U.S. could seriously breach reciprocity, as other nations would

immunize American officials, but the U.S. would not accord their

officials equal immunity. Id.; Valentin, 888 F.9th at 18 n. 5;

Jones, [2006] UKHL at §10.

Finally, as a textual matter the 28 U.S.C. §1605A(a)(1)

FSIA exception for state sponsors of terror explicitly includes

officials and employees. This provision would be relegated to

surplusage if officials had no FSIA immunity for §1605A to

except them from. Id. At minimum this shows Congress assumed

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that the FSIA applied to natural persons acting in an official

capacity. The language, history, and purpose of foreign

sovereign immunity all point towards including natural persons.

B. The FSIA protects former officials from suit for actions taken in an official capacity.

The issue of immunity for former officials raises many of

the same issues as with natural persons. The common law of

immunity has long granted immunity to former officials, and as a

codification of the common law the FSIA should carry on the

rule. Belhas, 515 F.3d at 1285. Not according former officials

immunity would be a drastic change from the common law rule and

would allow plaintiffs to circumvent immunity by simply waiting

for foreign officials to leave office to sue them. Id. Such

lawsuits would raise the same mutual comity and sovereignty

issues as with natural persons because lawsuits against them

could potentially turn courts into arbiters of essentially

foreign political issues. See Heaney, 445 F.2d at 503.

Dole Food Co. v. Patrickson held that corporations must be

majority owned by a government at the time of suit to enjoy

immunity. 538 U.S. 468 (2003). Petitioners accept Dole but

disagree with the Circuit Court’s extension of Dole to former

officials. Id.; Valentin, 888 F.9th at 17. Natural persons and

corporate entities are fundamentally different in that a

government does not suffer if a company it used to own is sued.

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See Belhas, 515 F.3d at 1286. However, a government does suffer

when officials in its service or considering service fear a

lawsuit when leaving office. See Id. This difference make Dole

inapplicable to former officials. See Id.; Dole, 538 U.S. 468.

When Dole is properly limited to the corporate context, the

history of purpose of foreign sovereign immunity shows the FSIA

should apply to former officials. Dole, 538 U.S. 468; Belhas,

515 F.3d at 1286.

C. Even if the FSIA did not protect former officials they likely retain their common law immunity.

The history of common law immunity for natural persons and

former officials is both evidence that FSIA provides them

immunity as well as evidence that any protection FSIA does not

provide is supplied by the common law. Matar v. Dichter, 563

F.3d 9, 13-14 (2nd Cir. 2009). Given that the purpose of the

FSIA was to codify the common law, it is unlikely that in

passing the FSIA Congress intended to radically reverse

longstanding common law rules of immunity that applied to former

officials. Id.; Verlinden, 461 U.S. 488. This is particularly

true given the traditional presumption favoring retention of

traditional common law rules and the importance of the immunity

of former officials to the purpose of the doctrine. Matar, 563

F.3d at 13-14. Therefore, the aspects of the common law

12

granting immunity for former officials remain intact even if the

FSIA does not reach to such former officials.

III. Valentin’s actions were within the scope of his authority and thus he may assert immunity as a former official.

A. Applying the functional approach to determining official

capacity, Mr. Valentin’s actions were within his official capacity even if against Tamland law.

Even in jurisdictions where the FSIA is applied to natural

persons, there is consensus that immunity only protects acts

taken in the person’s official capacity. See Chuidian, 912 F.2d

at 1101-1102. This approach is consistent with the restrictive

theory, in which the private or commercial acts of sovereigns

are not protected. Verlinden, 461 U.S. at 487. However, it

must still be determined how to discern acts in an official

capacity. Examining the purpose and language of the statute,

the “functional approach” to official capacity is the most

appropriate standard. Jones, [2006] UKHL 26 at §74. The

“functional approach” standard looks at whether an official

acted under the actual or apparent authority or color of law and

thus takes a flexible and functional view of what is an official

action, as opposed to a more rigid formalistic view. Id.

Since the FSIA is intended, in part, to respect and not

interfere with the policy decisions of other nations, the

functional approach is most appropriate. See Underhill, 168

U.S. at 252 (non-interference & respect important purposes of

13

immunity). The functional approach is most appropriate because

it accounts for how governments actually work and is consistent

with the rule of law, as even in the U.S. there are few

absolutes in constitutional or statutory law. Id. (same).

Strict adherence to statutory or constitutional authority would

require courts to wade into issues of foreign constitutional and

statutory interpretation which the FSIA seeks to avoid.

Underhill, 168 U.S. at 252; Chuidian, 912 F.2d at 1106 (if

action exceeding authority not immune, courts must ascertain

authority).

Furthermore, much of the international community has

adopted the functional approach. Jones, [2006] UKHL 26 at §75-

76. Not adopting the functional approach thus undermines the

larger purpose of immunity and risks the comity and reciprocity

we enjoy with the other nations that currently afford Americans

immunity under the functional approach. See Underhill, 168 U.S.

at 252; Jones, [2006] UKHL 26 at §76-77.

The respondents’ allegations, taken as true, show that Mr.

Valentin may have violated the Tamland constitution. Tamland

Const. art 24; Valentin, 888 F.9th at 16. However, Mr.

Valentin’s role in what happened was as an official, acting as

defense minister to quell the armed resistance. Id. Not only

was he acting under color of law by carrying out the policy of

the government, his government was explicitly recognized as a

14

partner by the United States, and the conflict implicitly

supported by the United States through the supply of weapons.

Id. One might condemn Tamland’s tactics and reasonable minds

can differ on the propriety of the United States’ support, but

Mr. Valentin satisfied the functional authority standard when he

implemented his government’s policy which was legitimized and

supported by other members of the international community. Id.

The official nature of Mr. Valentin’s acts therefore bring him

under the FSIA irrespective of the literal language in the

Tamland constitution. Id.; Tamland Const. art 24.

Besides being consistent with the purposes of the FSIA and

practices of other nations, the functional approach is also

consistent with the text of the FSIA and other statutes. 28

U.S.C. §§1350, 1604-1605, 1605A. The TVPA, for example, adopts

the functional approach by its own terms, defining authority as

“actual or apparent authority, or color of law.” 28 U.S.C.

§1350(2)(a) Relying on the text of the FSIA, the D.C. Circuit

in Belhas, another case where a government official was charged

with violating domestic and international laws, held that there

was no exception from immunity for exceeding authority since it

was not among the specific exceptions listed in the FSIA. 515

F.3d at 1289. The textual evidence thus complements the

international authority and policy argument that a broad

functional approach to authority is most appropriate.

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B. There is no exception from immunity for jus cogens violations.

Over time the international community has coalesced around

norms regarding international law. These norms are known as jus

cogens, and torture is almost universally regarded as a

violation of jus cogens. Belhas, 515 F.3d at 1286. This has

led some to argue that there is no immunity for a violation of

jus cogen norms because one can never be authorized to undertake

such an act. Id. However, both American and international

authority undermine any such potential exception.

The primary mistake respondents make in this area is to

confuse jurisdiction with merits. As the Jones case made clear

in its review of international law, jus cogens confer

substantive rights on individuals such as the respondents, but

do not automatically confer on all courts jurisdiction to hear

claims for violation of jus cogens. Jones, [2006] UKHL 26 at

§§46-49. Petitioners do not dispute that the plaintiffs have a

right to be free of torture, and may have a claim on the merits,

but they must still overcome the jurisdictional hurdle of the

FSIA. Id.; 28 U.S.C. §1604.

Allowing violations of jus cogens to serve as an exception

to FSIA immunity would be inconsistent with American law and the

law of our international partners. Id. Regarding American law,

the argument against a jus cogens exception to immunity is

16

twofold. First, if torture is inherently an unofficial act the

application of the TVPA would be severely limited. 28 U.S.C.

§1350(2). The TVPA applies to “individuals who, under actual or

apparent authority, or color of law...” engage in torture. 28

U.S.C. §1350(2)(a). If torture cannot be official, at best

parts of the TVPA are mere surplusage as one could never torture

with actual authority, and at worst the very purpose of the TVPA

is frustrated. Id. Second, the FSIA lists several explicit

exceptions to immunity and jus cogens violations are not

included among them. 28 U.S.C. §1605, 1605A. Given the history

of according broad immunity for non-commercial acts, exceptions

to the FSIA should not be judicially grafted lightly. See 1

U.S. Op. Att’y Gen. 82 (1797).

Regarding other nations, the Jones case points out that

neither the U.N. conventions on torture or immunity provide for

jurisdiction based on a violation of jus cogens. Jones, [2006]

UKHL 26 at §§46-49. Disregarding immunity in this case

therefore risks a breach of reciprocity that could make

diplomacy more challenging and frustrate the purpose of the

FSIA. Id., See Underhill, 168 U.S. at 252 (purposes of foreign

sovereign immunity). A breach of reciprocity in this area is

particularly risky given the constantly evolving law of human

rights and thus the increased potential of using jus cogens

immunity exceptions as tools of politics in the face of unclear

17

legal standards. September 11, 538 F.3d at 82 (aim of FSIA is

to depoliticize international litigation); Jones, [2006] UKHL 26

at §26.

What happened in Tamland was an ugly tragedy, and the

actions of the government reprehensible, but even still, this

court must take the long view. The FSIA provides a basis for

effective diplomacy and peacemaking through international

respect, comity, and reciprocity. See Underhill, 168 U.S. at

252; September 11, 538 F.3d at 82. Under the FSIA, Mr.

Valentin, an official acting under his authority as defense

minister, is entitled to immunity for his actions. See

Valentin, 888 F.9th at 16. Weakening the FSIA in this case will

frustrate peacemaking and diplomacy that might prevent such

situations in the future.

CONCLUSION

For the foregoing reasons the Petitioner requests that the

Court reverse the decision of the Twelfth Circuit.

Respectfully Submitted,

_______________________

Ira Steinberg

Attorney for Petitioner