U.S. Supreme Court allows tort suits against foreign officials

The background of sovereign immunity

When a resident of the United States is injured abroad because of the intentional or careless (that is, tortuous) acts of a foreign government, he or she will frequently resort to filing a lawsuit in federal court seeking damages and other remedies for his or her injuries. In the past, foreign governments have raised the defense of sovereign immunity, which is a judicial doctrine preventing a government (or any of its agencies, departments, or political subdivisions) from being sued against its consent. The doctrine evolves from the English common law that "the king can do no wrong."

In 1976, Congress passed the Foreign Sovereign Immunities Act, which sets forth the principles under which the claims of foreign states to immunity would be recognized. Up to 2010, it was thought by most courts that the Act applied to foreign officials, as well as foreign governments. In that year, the U.S. Supreme Court decided Samantar v. Yousuf, stating that the FSIA is not applicable (that is, it does not provide immunity) to foreign governmental officials.

The Samantar decision

In Samantar, natives of Somalia, now living in this country, filed a suit against a former high Somalian government official in a federal district court, alleging that the official committed tortious acts (specifically, torture and human rights violations) against them while the official commanded government agents during a former governmental regime. The case was dismissed by the district court, which held that the official was given immunity under the FSIA. The case was appealed and the Fourth Circuit federal Court of Appeals reversed, saying that the official was not immune under FSIA. The case was appealed to the U.S. Supreme Court, which affirmed the appellate decision.

The Supreme Court held, in a unanimous decision, that foreign official sued as an individual for his or her conduct undertaken in his or her official capacity is not a "foreign state" entitled to immunity from suit within the meaning of FSIA. The court stated, "The term 'foreign state' on its face indicates a body politic that governs a particular territory. See, e.g., Restatement § 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[.]'"

The holding clarified that no present nor former foreign government official is entitled to raise FSIA as a defense, except in the situation under which the foreign state proves to be the real, or actual, party in interest. Whether FSIA applies in a lawsuit which names an official as a defendant will probably depend on whether a remedy is being sought personally from the official, or whether the government involved will be held responsible for paying the damages. The decision rejected an interpretation largely followed by the federal judicial circuits, which held that officials were covered by FSIA for lawsuits which were based on any official action that was taken within the "scope of authority."

Conclusion

If you are a U.S. citizen traveling abroad, or if you are a resident of a foreign country, and you are injured by the wrongful acts of a foreign government official, once you return (or immigrate) to the United States, you should immediately contact an experienced personal injury attorney, who will examine the facts of your situation and decide where the filing of a federal torts case against the foreign official may be your best option to get the relief to which you are entitled.