[00:00:00] Speaker 00: Please. [00:00:01] Speaker 00: Case number 17-7118. [00:00:02] Speaker 00: Daryl Lewis, appellant versus Khalid Mottan et al. [00:00:08] Speaker 00: Mr. Godfrey for the appellant, Mr. Weiner for the appellees. [00:00:20] Speaker 04: Good morning. [00:00:21] Speaker 04: May it please the court, Merrill Godfrey on behalf of appellant Daryl Lewis. [00:00:26] Speaker 04: I'm reserving three minutes for rebuttal. [00:00:30] Speaker 04: As the Supreme Court noted in Samantar v. Yusuf, courts of appeals have applied the rule that foreign sovereign immunity extends to an individual official for acts committed in his official capacity, but not to an official who acts beyond the scope of his authority. [00:00:48] Speaker 04: The conduct-based immunity the defendants have invoked here is limited by its very nature to a certain category of conduct. [00:00:55] Speaker 04: It can apply only to actions that are shown by those invoking the immunity to be within the scope of their actual legal authority as governmental officials. [00:01:06] Speaker 04: The question for this court is whether it was within the scope of these defendants' actual authority to torture Mr. Lewis. [00:01:15] Speaker 04: The answer to that question is no. [00:01:17] Speaker 02: Why does that question really [00:01:21] Speaker 02: matter given the language of the statute. [00:01:25] Speaker 02: I mean, the statute explicitly says that in Section 2A, defining liability that an individual who under actual or apparent authority or color of law of any foreign nation subjects an individual to torture. [00:01:47] Speaker 02: So it seems to me that you would be arguing that Congress said, we don't care whether the person is acting under authority because even if they are, they're liable anyway. [00:02:00] Speaker 02: I mean, that's what the statute says. [00:02:02] Speaker 04: Yes, that is what the statute says. [00:02:04] Speaker 04: And in fact, in the legislative history, both the Senate and the House noted that in cases just like this one, there would be liability. [00:02:12] Speaker 04: What the Senate said on page 8 of its report was, because no state officially condones torture or extrajudicial killings, few such acts, if any, would fall under the rubric of official actions taken in the course of an official's duties. [00:02:27] Speaker 04: And the House report also notes that sovereign immunity would not generally be an available defense. [00:02:34] Speaker 04: The only thing that was reserved was status-based immunities for heads of state and diplomats. [00:02:40] Speaker 03: So on that issue, so it certainly makes sense to look at the language of the TVPA and put forward the argument that you're making. [00:02:51] Speaker 03: You concede that there's at least some immunities that kick in to limit the coverage of the seat, the TVPA, which it sounds like you just did, at least with respect to status-based immunity. [00:03:01] Speaker 03: Yes. [00:03:01] Speaker 03: Then why would we stop there other than [00:03:06] Speaker 03: It's true that the legislative history makes that reference. [00:03:09] Speaker 03: So if one were going to read the legislative history and think that the statute is completely coterminous with what the legislative history says, I would understand that argument. [00:03:17] Speaker 03: But beyond the legislative history, why looking at the statute would we think that there's some forms of immunity that kick in to limit the coverage of the TVPA, but other forms of immunity that don't? [00:03:30] Speaker 04: Because the Torture Victim Protection Act was directed at a specific issue, which was the liability of individuals, and it's limited to individuals, who carry out torture or extrajudicial killings. [00:03:41] Speaker 04: And so Congress was specifically focused on cases like this one, where you have an individual who would be liable. [00:03:48] Speaker 03: That's also true of the status-based immunity, though, right? [00:03:50] Speaker 03: That would also be an individual who would allegedly be [00:03:54] Speaker 04: Yes, but because it's a status-based immunity, it's something that is very clearly defined under the common law. [00:04:08] Speaker 04: It's limited to either the head of state or the foreign minister. [00:04:13] Speaker 04: Very clearly defined. [00:04:16] Speaker 04: We're talking about a whole broad category of conduct that Congress wanted to reach, and it's certainly rational for Congress to want to reach that, except for the extreme case of bringing into court the president or the monarch or the foreign minister of a foreign country that is sitting. [00:04:31] Speaker 04: And that status-based immunity applies to the sitting official. [00:04:37] Speaker 02: I mean, not withstanding whether Congress intended to impose liability on a foreign official, even if they are acting pursuant to authority, Samantar held that common law immunity still governs. [00:04:59] Speaker 02: And the third prong of the common law immunity under [00:05:05] Speaker 02: restatement section 66 that's cited in Samantar provides that the immunity will hold if basically the [00:05:23] Speaker 02: The effect of exercising jurisdiction would be to enforce a rule of law against a state. [00:05:32] Speaker 02: So why isn't that a problem here? [00:05:37] Speaker 04: Well, it has to satisfy both prongs, of course. [00:05:40] Speaker 04: It has to be within the scope of authority under the second prong, which it's not here, because there's no actual authority to torture. [00:05:46] Speaker 02: Well, let's suppose for the sake of my question that I find convincing and I am willing to defer to the letter from the DRC saying that they're acting within authority. [00:06:01] Speaker 02: So you've got to deal with the third prong. [00:06:06] Speaker 04: The question is whether this is effectively an action against the state. [00:06:11] Speaker 04: And in a case where we are seeking only personal liability from the personal assets of these individuals for actions that have no, that have no, we're seeking to impose no liability on the state. [00:06:28] Speaker 02: What if the state's going to indemnify them? [00:06:32] Speaker 04: Well, whether the state indemnifies them or not is something that the state can choose to do, but the act of enforcing the Torture Victim Protection Act against these... What if the state's going to defend them? [00:06:46] Speaker 02: you know, provide counsel for them. [00:06:49] Speaker 04: The foreign state's choice to defend or to indemnify can't change the scope of immunity or the liability. [00:06:56] Speaker 02: How is it a choice if the state is taking the position that these people were performing official acts for us? [00:07:03] Speaker 02: It's not really a choice. [00:07:04] Speaker 02: It's part and parcel of them saying that these are official acts. [00:07:10] Speaker 04: Well, the question under the restatement, though, is whether the actual imposition of liability on these defendants is an act that imposes liability on the foreign state. [00:07:22] Speaker 04: And whether the foreign state chooses to indemnify or defend is not something that comes within the test under the restatement for that reason. [00:07:31] Speaker 02: What does the restatement mean? [00:07:36] Speaker 02: How are we supposed to construe what the restatement means when it says the effect of exercising jurisdiction would be to enforce a rule of law against the state? [00:07:48] Speaker 04: The best example is Ryshikov v. Mortada, which was a district court case in this circuit, which held that because the plaintiff had sought to impose joint and several liability [00:07:57] Speaker 04: on the state as well as the individuals, that the effect of imposing liability there would be to sue the state, the foreign state. [00:08:06] Speaker 02: Okay, that's one example though, but how is, I mean, is that the only way that you're enforcing a rule of law against the state? [00:08:17] Speaker 04: No, but in a circumstance where we're seeking to impose, where the plaintiff is the master of his complaint, the plaintiff pleads only personal liability against individuals for actions that they took that were outside the scope of their authority. [00:08:33] Speaker 04: In that situation, the imposition of liability on those officials isn't an imposition of liability against the state. [00:08:41] Speaker 04: The state is not the effective defendant there. [00:08:43] Speaker 03: So I'm not saying this is necessarily wrong. [00:08:45] Speaker 03: I just want to understand this couple of your arguments. [00:08:47] Speaker 03: So it sounds like the upshot of your position is with respect to this third criterion under the restatement, whether it's a rule against the state. [00:08:57] Speaker 03: On your view, as long as the complaint is framed as one that seeks individual liability against an official rather than official liability against a sovereign, that criterion is not satisfied and so the official couldn't claim immunity. [00:09:12] Speaker 03: I'm not saying that's wrong. [00:09:13] Speaker 03: I'm just saying I want to understand that that's your position that any time it's what we would conventionally describe as an individual capacity suit such that [00:09:21] Speaker 03: the recovery sought only against an individual, qua individual, then immunity doesn't kick in. [00:09:27] Speaker 04: Well, I wouldn't rule out the possibility of artful pleading. [00:09:30] Speaker 04: I think a court has to look at the substance, has to look at what's actually going to happen here. [00:09:35] Speaker 04: And so I wouldn't adopt just a bright line rule, but in general, yes. [00:09:39] Speaker 03: In general, yeah. [00:09:40] Speaker 03: And then I take it like, also Sam and Tar discuss situations in which, for example, if the state's a real party in interest and has to be brought into play, then that's a situation in which [00:09:48] Speaker 03: immunity would kick in because the FSIA immunity vis-a-vis the state would kick in. [00:09:52] Speaker 03: Exactly. [00:09:53] Speaker 03: But in rough contours, your view is that that third criterion really focuses on whether the suit is brought against an individual in their individual capacity or not. [00:10:04] Speaker 04: Yes, that would be satisfied from their individual assets. [00:10:07] Speaker 05: Are you going to say anything about personal jurisdiction? [00:10:10] Speaker 04: You know, personal jurisdiction wasn't addressed by the district court. [00:10:14] Speaker 04: It needs to be addressed in the first instance there. [00:10:18] Speaker 04: We certainly pleaded a basis for personal jurisdiction. [00:10:22] Speaker 04: The basis is that these defendants targeted Americans for the purpose of drawing the United States into conflict with the DRC. [00:10:30] Speaker 05: They alleged that there was... That contradicts your complaint. [00:10:36] Speaker 04: In what way? [00:10:38] Speaker 05: I forget what paragraph it is, but you allege that the only reason that your client, Mr. Lewis, got stopped was because of his association with the opposition leader. [00:10:51] Speaker 05: Not because he was an American, not because of any impact on the United States, but he was stopped [00:10:58] Speaker 05: Am I right about that? [00:11:00] Speaker 05: That's my memory. [00:11:01] Speaker 04: That's why he was stopped. [00:11:02] Speaker 04: What we're challenging here is the torture, and the torture occurred because when the defendants had him in custody. [00:11:08] Speaker 04: Torture occurred because he was arrested? [00:11:11] Speaker 04: No, it occurred because when they had him in custody, they came up with a story that the ERC was being infiltrated by the United States through mercenaries, and that drew a response from the State Department. [00:11:21] Speaker 04: So this was intended to draw the United States into conflict with the DOC. [00:11:26] Speaker 04: Where is that allegation? [00:11:27] Speaker 04: It's in paragraph 30, I believe it's 35 of the complaint. [00:11:39] Speaker 04: Paragraph 35, Tomboy asserted that 600 United States citizens had entered the DRC in the preceding six months. [00:11:47] Speaker 04: And in paragraph 37, Tomboy was trying to create a narrative about U.S. [00:11:55] Speaker 04: military personnel infiltrating the DRC. [00:11:58] Speaker 04: And we reference here the State Department's [00:12:03] Speaker 04: response to this. [00:12:05] Speaker 04: I believe that's paragraph 40. [00:12:09] Speaker 04: The State Department made a press release denying this. [00:12:12] Speaker 05: What I was referring to, I just looked at paragraph 19. [00:12:19] Speaker 04: Yes, Judge Randolph, and you're right. [00:12:22] Speaker 04: That's what the complaint alleges regarding why they were detained. [00:12:28] Speaker 04: But the continued detention and the torture were for the purpose of causing harm in the United States. [00:12:35] Speaker 03: But I don't know about that because... I don't know that follows either. [00:12:39] Speaker 03: Right. [00:12:40] Speaker 03: That's the question. [00:12:40] Speaker 03: Because I do understand that the complaint has allegations in it about the American citizenship of the plaintiff. [00:12:49] Speaker 03: The theory behind the complaint, as I understand it, is that the point that was sought to be made by the regime was that these were American mercenaries, and American mercenaries brought in to try to destabilize the DRC. [00:13:06] Speaker 03: But that doesn't necessarily mean that it intends to visit consequences vis-a-vis the United States. [00:13:13] Speaker 03: It's just that these are American mercenaries who are coming in to destabilize things that are going on here. [00:13:19] Speaker 04: Well, to be clear, we sought jurisdictional discovery in the district court that hasn't been ruled on. [00:13:25] Speaker 04: If the allegations were, if in reviewing the district court found the allegations wanting, we would seek leave to amend. [00:13:32] Speaker 04: And under Moani v. Bin Laden, [00:13:34] Speaker 04: The test really is whether residents of the forum, whether the defendants directed their activities purposefully at residents of the forum and hear that happen. [00:13:45] Speaker 02: I think that that's, you know, we said that, but I think that that was effectively [00:13:52] Speaker 02: limited or overruled by the Supreme Court in Walden v. Fiore in 2014 because there the court said that it's not sufficient that the defendant directed their content directed their actions and a person kind of knowing that they were a resident of the forum state or even because they were a resident of the forum state [00:14:22] Speaker 02: that just the fact that the person was a resident and they knew that and they targeted them for the tort or whatever the wrongdoing isn't sufficient. [00:14:35] Speaker 02: They said we still have to look at whether there are effects in the forum state and whether overall there are contacts with the forum state and contacts with the resident of the forum state, even if intentional, [00:14:52] Speaker 02: um, isn't sufficient. [00:14:53] Speaker 02: I mean, that's, that's the holding. [00:14:55] Speaker 02: They don't, they don't, um, cite or reference Moani, but, but I think that it really limits, um, limits that language in, in Moani. [00:15:07] Speaker 04: Well, still, in this situation where Americans are singled out for torture for purposes of drawing the United States State Department into conflict with the DRC for purposes of causing effects in the United States, that still satisfies that language and theory. [00:15:31] Speaker 02: Did the district court [00:15:33] Speaker 02: simply not rule on your request for jurisdictional discovery, or did the district court deny the request? [00:15:39] Speaker 04: It did not rule. [00:15:40] Speaker 04: It didn't address personal jurisdiction at all, which is why what we're asking the court to do is to reverse on the issue of immunity and remand to the district court, which would then address personal jurisdiction in the first instance. [00:15:51] Speaker 05: Is your theory, first of all, the price, our opinion in price also says that [00:15:59] Speaker 05: simply because they targeted American citizens, that's not sufficient to establish personal jurisdiction, right? [00:16:09] Speaker 04: No, I understood Price to say that simply because someone was an American wasn't enough, but that it didn't involve facts where Americans were singled out and tortured specifically. [00:16:19] Speaker 05: Okay, but I want to get your theory. [00:16:20] Speaker 05: Is your theory that your client was tortured in order to get a confession [00:16:29] Speaker 05: that he was a mercenary and the effect of getting that confession was to, or the purpose of getting that confession was to put pressure on the State Department to do what? [00:16:42] Speaker 04: It was to implicate the United States as trying to overthrow the current government of the DRC. [00:16:52] Speaker 04: that the United States had sent mercenaries into the DRC to overthrow President Kabila. [00:16:57] Speaker 05: But what's the purpose of implicating the United States? [00:17:00] Speaker 05: Is it to make sure that the opposition leader will not be successful? [00:17:08] Speaker 04: Well, to be clear, we don't have the full story because we didn't get the jurisdictional discovery, but the basic outlines are that the current government was trying to paint the opposition as enthralled to the United States. [00:17:24] Speaker 05: I thought where you were going was that I think you need a visa to go to the Congo, don't you? [00:17:31] Speaker 04: I believe so. [00:17:32] Speaker 05: Yeah, and I thought you were, where you were going is to put pressure on the State Department to not issue visas to individuals who might or might not or may act as bodyguards or any other such thing. [00:17:49] Speaker 04: Yes, that's certainly, I mean, we don't spell that out, but that's certainly implicit. [00:17:53] Speaker 05: It's not in the complaint. [00:17:55] Speaker 04: Right, but those are exactly the kinds of effects that were intended here by torturing Americans specifically. [00:18:06] Speaker 03: Thank you. [00:18:06] Speaker 04: Thank you. [00:18:18] Speaker 01: May it please the court, Robert Weiner for Defendant Tomboy and Mutand. [00:18:24] Speaker 01: There are two reasons, as the court recognizes, why there is no jurisdiction in this case. [00:18:30] Speaker 01: The first, the court ruled on below, which is that the defendants are immune under official immunity. [00:18:37] Speaker 01: And the second is that there's no personal jurisdiction. [00:18:41] Speaker 01: Since the court last focused on personal jurisdiction, let me start there. [00:18:44] Speaker 01: There are no allegations. [00:18:49] Speaker 01: that there are intended effects in the United States. [00:18:54] Speaker 01: There are only allegations that there were Americans who were singled out. [00:19:00] Speaker 01: And those allegations are on information and belief. [00:19:04] Speaker 01: It says Mr. Lewis and other Americans were singled out because they were Americans, not because the United States did anything, but because they were Americans. [00:19:13] Speaker 01: And it doesn't identify the other Americans. [00:19:17] Speaker 01: It's on information and belief. [00:19:19] Speaker 01: and there is nothing about what they're supposed to have done. [00:19:24] Speaker 03: So can I ask a question just on in terms of our purview to dispose of a case on this basis given that the district court as I recall specifically said it wasn't reaching the question of personal jurisdiction. [00:19:36] Speaker 03: So the district court says it's not reaching the question of personal jurisdiction. [00:19:39] Speaker 03: There is a motion that has been filed I think for jurisdictional discovery [00:19:42] Speaker 03: vis-a-vis personal jurisdiction that wasn't resolved. [00:19:45] Speaker 03: And yes, we can affirm decisions on alternative grounds. [00:19:50] Speaker 03: Of course, there's always that authority. [00:19:51] Speaker 03: But do you know of a situation in which, an analogous situation in which an appellate court affirmed on personal jurisdiction, even though there was a pending motion for jurisdictional discovery that wasn't resolved? [00:20:02] Speaker 01: Well, first, Your Honor, I don't believe there was a motion. [00:20:04] Speaker 01: I don't recall a motion. [00:20:05] Speaker 01: I think he said it in his brief. [00:20:09] Speaker 03: OK, so at least there was an overture to the effect that we would like to file a motion, even if the motion, in fact, hadn't been filed. [00:20:14] Speaker 01: Second, this Court would have to look at whether there was any basis for discovery. [00:20:18] Speaker 01: There have to be allegations in the complaint where discovery would be appropriate. [00:20:24] Speaker 01: And that discovery would not be just speculative. [00:20:27] Speaker 01: That discovery would lead to, or possibly lead to, [00:20:31] Speaker 01: a determination on personal jurisdiction. [00:20:35] Speaker 01: The allegations in the complaint are completely inadequate. [00:20:39] Speaker 01: They say nothing. [00:20:39] Speaker 02: What kind of allegations with respect to effects are needed? [00:20:44] Speaker 01: Well, they're like the allegations in Milwaukee, where there were intended effects in the United States. [00:20:51] Speaker 01: There are terrorist activities that were overseas, but they're intended to have an impact in the United States, to sow terror in the United States here. [00:21:04] Speaker 01: It's obvious from the complaint that what was going on is an election in the DRC and that they were trying to say that there was a mercenary plot with Americans and South Africans. [00:21:20] Speaker 01: And so this is just, the plaintiff might have played it differently. [00:21:27] Speaker 01: I don't think there was any basis for pleading it this way as opposed to any other way. [00:21:34] Speaker 02: What was pled was that these individuals from the DRC put out an order that if we find any Americans acting as bodyguards to the opposition leader, kill them. [00:21:52] Speaker 02: And American bodyguards were killed, so there were extrajudicial killings. [00:21:58] Speaker 02: And so this is a TVPA case. [00:22:01] Speaker 02: And those are the allegations that for whatever reason they didn't like Americans, they wanted to send some sort of a message, maybe deter Americans from coming over there, they killed Americans. [00:22:17] Speaker 02: Is that enough to at least get some jurisdictional discovery? [00:22:21] Speaker 01: There would have to be allegations regarding intended effects in the United States. [00:22:27] Speaker 01: It is a geographic notion, not just a citizenship notion. [00:22:32] Speaker 01: And that's what Warden holds, that you really need to have activities directed at the United States. [00:22:38] Speaker 01: And this court held in Price and Judge Bates held in Nipkin that it's not enough [00:22:44] Speaker 01: that there are injuries or even torture or extrajudicial killing inflicted on Americans overseas. [00:22:51] Speaker 02: But part of the question that, I'm sorry. [00:22:53] Speaker 02: So we would properly dismiss that TVPA case, that complaint. [00:23:00] Speaker 01: Absent any allegations that there was an effort to project into the United States to cause effects in the United States, [00:23:10] Speaker 01: then I think this court would need to dismiss. [00:23:13] Speaker 03: So if the complaint fleshed out the allegations in the way Judge Wilkins' question did such that the reason that there was a targeted extrajudicial killing of an American is at least in part to deter Americans from coming, that would be enough? [00:23:32] Speaker 01: I think that I'm not sure that would be enough because to deter Americans from coming [00:23:38] Speaker 01: It's not necessarily an effort to have an effect in the United States. [00:23:43] Speaker 01: It might be. [00:23:44] Speaker 01: And it might be. [00:23:45] Speaker 03: Well, I don't understand. [00:23:45] Speaker 03: What's stopping short of having an effect in the United States if what you're saying is anybody in the United States, meaning people over there in the United States, listen to me. [00:23:54] Speaker 03: I don't want you to come here. [00:23:55] Speaker 01: If that's what the allegation was and it was designed to have an effect in the United States, they would have an argument that there was a jurisdiction or at least [00:24:07] Speaker 01: an argument for discovery, but here there is nothing like that. [00:24:11] Speaker 01: All they say is that they picked out unnamed Americans and Mr. Lewis, and that was because there was an election and they were alleged to be plotting U.S. [00:24:24] Speaker 01: mercenaries, not the U.S. [00:24:26] Speaker 01: government. [00:24:28] Speaker 01: the presidential candidate. [00:24:30] Speaker 01: And there's a reference to the State Department. [00:24:32] Speaker 03: But I don't understand why it has to be a focus on the U.S. [00:24:34] Speaker 03: government, because the hypothetical in which there's an effect on U.S. [00:24:39] Speaker 03: citizens, because the claim is, we don't want any Americans coming here. [00:24:43] Speaker 03: I don't care if it's a government program. [00:24:44] Speaker 03: Maybe the United States government doesn't want you to come here either. [00:24:48] Speaker 03: But I don't want people coming here from America. [00:24:51] Speaker 05: There's already a deterrence. [00:24:55] Speaker 05: People were really not anxious to go visit the Congo. [00:24:58] Speaker 05: I knew the ambassador, and he said, come visit me. [00:25:01] Speaker 05: And that was a joke. [00:25:07] Speaker 01: I think, Your Honor, that it would have to be more than US citizens [00:25:12] Speaker 01: that were, there would have to be, doesn't have to be the US government, but it would have to be intended to cause effects in the United States, and there is not anything that remotely approaches such an allegation in the complaint, and I don't think they could allege that with a good faith basis, given that what they've alleged so far was thin, to say the least. [00:25:35] Speaker 03: Yeah, so I'm just trying to tease out the limitations, because suppose the allegation was, [00:25:41] Speaker 03: there was a campaign to torture anybody who came here from America. [00:25:49] Speaker 03: That's what the allegation is. [00:25:51] Speaker 01: In order to deter Americans from coming to that country? [00:25:54] Speaker 03: I'm buying into your notion now and saying that the complaint doesn't spell that out. [00:26:00] Speaker 03: It just says the policy of the DRC was to torture anyone here who's from America. [00:26:07] Speaker 01: I think under the terms of the price decision, that would not be enough, but it might be enough under those circumstances to justify some discovery. [00:26:19] Speaker 01: But with regard to the allegation about the State Department response, when you look at that response, and there's a link to it in the [00:26:29] Speaker 01: in the plaintiff's complaint, that response doesn't say anything about the involvement of the United States. [00:26:37] Speaker 01: It says, Mr. Lewis, we believe the allegations are false, period. [00:26:42] Speaker 01: It doesn't say anything about U.S. [00:26:43] Speaker 01: government isn't conspiring. [00:26:45] Speaker 01: And in fact, when Mr. Lewis, as the letter from the ambassador here says, when Mr. Lewis was released, the United States thanked the GRC for allowing [00:26:58] Speaker 01: consular visits. [00:26:59] Speaker 01: And so I don't think there was any demonstrated opposition here, any effort to implicate the United States. [00:27:09] Speaker 01: So I think that that doesn't hit any of the milestones for jurisdiction. [00:27:17] Speaker 01: And then we have the second ground here, which is immunity. [00:27:22] Speaker 01: Now, the plaintiff sued [00:27:25] Speaker 01: these individuals, the Attorney General essentially and the Director of National Intelligence, and he sued them purportedly in their personal capacity. [00:27:36] Speaker 01: A personal capacity suit is one where the individual is alleged to be acting beyond their authority because they are not acting on behalf of the state. [00:27:48] Speaker 01: but for their personal gain, not one where they're acting on behalf of the state, but the allegation is the state didn't have authority to do the things that they did. [00:27:59] Speaker 01: And that's what we have here. [00:28:01] Speaker 01: And case after case, including most significantly the Bellhas case, has said that there is that the illegality, alleged illegality of an action under the state's law [00:28:17] Speaker 01: is not sufficient to [00:28:19] Speaker 01: defeat official immunity. [00:28:22] Speaker 01: And that's the statement. [00:28:23] Speaker 03: So can I ask a question about Belhasen, the general way of the land here? [00:28:27] Speaker 03: So part of what we talked about in your colleague's argument is the third criterion under the restatement, which is whether it's, I'm forgetting the exact language of the restatement, but it's whether the effective exercising jurisdiction would be to enforce a rule of law against the state. [00:28:45] Speaker 03: Yes. [00:28:45] Speaker 03: So let's just assume for present purposes we're past the official acts part. [00:28:49] Speaker 03: And we're on to this part. [00:28:50] Speaker 03: I know there's arguments on the other part, too, but let's just assume for the purpose of this question that we're past that. [00:28:56] Speaker 03: As to this part of it, which is whether you'd be enforcing a rule of law against the state, Belhas doesn't say anything about that, right? [00:29:05] Speaker 03: Because Belhas assumed that the governing framework was [00:29:08] Speaker 03: prescribed by the FSIA, and the FSIA just doesn't treat with this. [00:29:13] Speaker 03: So on this issue, Belhas doesn't come into play. [00:29:16] Speaker 03: Am I right? [00:29:17] Speaker 01: Belhas does not speak to that issue. [00:29:21] Speaker 03: So then on this issue, as I understood your argument in your brief, it seemed largely coterminous with the argument about official acts, which is to say that as long as these individuals were engaged in official acts, then by nature, [00:29:37] Speaker 03: the ruling would seek a rule enforceable against the state? [00:29:41] Speaker 01: I think that's so, Your Honor, but I think there's more to it as well. [00:29:45] Speaker 03: Yeah, what's the extra? [00:29:46] Speaker 03: Because as I read the restatement, the way the restatement is framed, and everybody seems to be operating on the assumption that the restatement sets forth the governing framework, the restatement assumes that the acts were carried out in their official capacity, and then says there's still this extra requirement for immunity to apply, which it has to be a rule enforceable against the state. [00:30:03] Speaker 03: So what's the extra that we're talking about under your theory beyond [00:30:07] Speaker 03: the fact that these were official acts. [00:30:10] Speaker 01: So let me say first leading into that, Your Honor, that the State Department in suggestion of immunity after suggestion of immunity says that these kinds of actions enforce a rule of law. [00:30:24] Speaker 01: And the problem with the plaintiff's argument is that they confuse enforcement of a judgment for money with enforcement of a rule of law. [00:30:33] Speaker 01: This enforces a rule of law [00:30:36] Speaker 01: because it rules on the legality of an action of a foreign government. [00:30:42] Speaker 02: But I think that's the problem with your argument or potential Achilles heel for your argument. [00:30:49] Speaker 02: because Restatement Section 6 talks about, you know, how we define enforcing a rule of law as opposed to enforcing or prescribing the law. [00:31:05] Speaker 02: And so, yes, any time you're taking any sort of adjudicatory or litigation extra-tortality [00:31:17] Speaker 02: in another country, I can't say that word, you are enforcing a rule of law. [00:31:24] Speaker 02: But Restatement Section 66 says enforcing a rule of law against the state. [00:31:30] Speaker 02: And then illustration number three in the comments, [00:31:35] Speaker 02: In giving an example of when that happens gives an example where there's a suit against someone in the foreign state where they are requesting damages against the individual that will be paid by the state. [00:31:52] Speaker 02: So it's not just that the individual in the foreign state is being sued, but that he is going or she is going to have to satisfy the damages necessarily with funds from that state. [00:32:08] Speaker 02: So Restatement 66 adds the words against the state. [00:32:15] Speaker 02: Those words have to have some meaning. [00:32:16] Speaker 02: They have to do some work. [00:32:19] Speaker 02: And so those suggestions of immunity, I don't think, help you because they are directed at the Restatement Section 6 issue of whether you're just enforcing a rule of law in another state. [00:32:35] Speaker 02: Do you see what I'm saying? [00:32:37] Speaker 01: Yes, Your Honor, but I think you have to take a practical view. [00:32:41] Speaker 01: And the practical view is that when you pass on the legality of a state action, [00:32:46] Speaker 01: you are enforcing a rule of law. [00:32:49] Speaker 01: Otherwise, there would be no official immunity. [00:32:54] Speaker 01: All that would happen is point of suing an official instead of the government, and that would be the end of the immunity. [00:33:02] Speaker 01: It can't mean that. [00:33:04] Speaker 03: And- Well, so that wouldn't be the case necessarily, because any time the State Department comes in, there would be immunity. [00:33:10] Speaker 01: Well, if you take the position that the State Department's coming in is [00:33:15] Speaker 01: is a determinative yes, but that doesn't relate to the degree of which this, it doesn't relate to the interpretation of the restatement, where you have to interpret it, whether if it stands alone, it makes any sense. [00:33:33] Speaker 01: And I will tell you, the State Department's position now is that that third prong doesn't do very much, but. [00:33:39] Speaker 05: I don't want to divert you, so keep in mind where you're going, [00:33:45] Speaker 05: The talk about the State Department triggers a question that came to me when I was preparing this case, and that is, is there a particular procedure for involving the State Department in a litigation, or is it simply sufficient if the ambassador to the Congo writes a letter? [00:34:07] Speaker 05: What goes on here in terms of the State Department's involvement? [00:34:11] Speaker 01: It generally is a letter from an official of the country to the ambassador. [00:34:17] Speaker 01: That is usually the case because the ambassador is the spokesman for the country. [00:34:23] Speaker 01: The court can also do it suesponte. [00:34:25] Speaker 01: Well, that's where I was going. [00:34:29] Speaker 05: I mean, it's common for the Supreme Court to invite the views of the Solicitor General, and since the State Department's views here could be conclusive, why shouldn't the Court invite the State Department to weigh in? [00:34:42] Speaker 01: I think that's within the court's discretion. [00:34:44] Speaker 01: That's what the district court did in Matardus's Dictor and the Second Circuit. [00:34:51] Speaker 03: So the court could do that, but based on your experience in this area, I take it that the State Department knows that it can do that. [00:34:58] Speaker 03: Yes. [00:34:59] Speaker 03: And in certain situations, the State Department, when it's elicited to do it by a letter of the kind that's at issue here, the State Department will file a statement of interest. [00:35:08] Speaker 03: And usually, I think, we [00:35:09] Speaker 03: In other words, it's not inadvertent that the State Department decided not to file something. [00:35:15] Speaker 01: Well, Your Honor, I think in this case, if the State Department thought that the District Court had gotten the issue wrong, they would be in here with a statement of interest that was trying to correct the law. [00:35:28] Speaker 01: Yes, I think you can draw an inference, and the inference is that the State Department is perfectly content to leave it where it lay. [00:35:37] Speaker 02: Well, or didn't there an inference the other way because it didn't say anything to the district courts? [00:35:43] Speaker 01: No, Your Honor, because we did talk to the State Department on that issue, and the State Department told us that their practice is [00:35:51] Speaker 01: not to intervene or not to speak in the district court cases, in most cases, where the other defenses have a shot at getting rid of the case. [00:36:04] Speaker 01: In other words, if they thought we were going to win, they wouldn't come in. [00:36:07] Speaker 01: And they didn't say it in those words, Your Honor, but that's how we interpreted it when we spoke to them. [00:36:13] Speaker 01: And so I think at best, there could be no inference drawn [00:36:17] Speaker 01: from what happened in the district court, but I think it's a fair inference as to what happened here. [00:36:26] Speaker 01: I see that my time has expired here. [00:36:28] Speaker 03: No, I'd still like to hear from you on – you were going to, I think, flesh out what's the extra. [00:36:35] Speaker 03: What – you brought into play the State Department statement of interest as an indication, at least, of what ought to be the role that governs in this area in terms of this third criteria under the restatement. [00:36:45] Speaker 03: So it can't be that where we're talking about official acts, that it's necessarily a case in which the third criterion is met, such that it involves a rule enforced against the state. [00:36:56] Speaker 03: So what else has to happen besides it being a case that involves official acts? [00:37:01] Speaker 01: Well, I think, Your Honor, where you have a case like this one, and I think this was the case in a number of cases, like Matar and Doe versus Beratai, [00:37:13] Speaker 01: where you have a ratification by the state, where the state has stepped forward and said, this is our act, then I think you have a particularly strong case. [00:37:25] Speaker 03: Sure, but okay, then let me ask the question this way. [00:37:27] Speaker 03: What's the case that wouldn't be enough, even though you do have official acts? [00:37:35] Speaker 01: I think, well, for one thing, as your honor pointed out before, where the State Department comes in, that could be a situation where the State Department says these may be official acts, but we do not grant their commitment. [00:37:47] Speaker 03: Right, but as you rightly pointed out, I'm talking about one where we're trying to construe this actual language. [00:37:52] Speaker 03: And so in terms of this actual language, what's the situation in which you get past official acts, but nonetheless, it's still not something where it's a rule enforceable against the state? [00:38:02] Speaker 01: Your Honor, I think I would have to say that I don't think that this prong has much independent force. [00:38:10] Speaker 03: Even though the restatement frames it in terms that clearly give it independent force. [00:38:13] Speaker 01: Well, it could have independent force, I think, in a situation where, like the car, like an accident. [00:38:22] Speaker 01: I think that is a situation. [00:38:23] Speaker 01: That's an example in the restatement. [00:38:25] Speaker 01: It is that example. [00:38:25] Speaker 01: And that's a situation where you don't have a core function of the state, and it's not something where the state [00:38:32] Speaker 01: would find it necessary or appropriate to step forward and take responsibility and ownership of the acts. [00:38:40] Speaker 01: Where you have something that's in the official capacity, the person was driving at work or to work or from work or doing errands. [00:38:52] Speaker 01: Under those circumstances, you could have [00:38:55] Speaker 01: as you could have an enforcement of a rule of. [00:38:58] Speaker 02: But isn't that example, doesn't it explicitly say that they were driving and had the accident while they're performing their official duties? [00:39:08] Speaker 01: Yes, but under those circumstances, the restatement says it wouldn't be enforcing a rule of law, and that's because it's not something that is, and the extra here is that this goes to [00:39:22] Speaker 01: high government officials and core government functions that are ratified by the government. [00:39:30] Speaker 01: What is going on in that kind of case is just an accident. [00:39:35] Speaker 03: So there's obviously that example, which the restatement itself illustrates as a basis for the delta between official acts and circumstances in which they're an official act, but it's not one seeking rule against the state. [00:39:47] Speaker 03: The problem for us is we don't know why every statement says that one doesn't qualify. [00:39:51] Speaker 03: One argument as to why that doesn't qualify is because the claim wasn't seeking damages against the state. [00:39:56] Speaker 03: It was only going against the individual, which would favor your colleague's position. [00:40:00] Speaker 03: Another argument is no, something about actually what was going on, that what was going on is [00:40:05] Speaker 03: It was just driving, and although it was driving in the scope of one's official duties, that's not a core official duty because driving is something that everybody does all the time, and it's not intimately bound up with the exercise of sovereign prerogatives. [00:40:19] Speaker 03: And we just don't know which one of those is the limiting principle, right? [00:40:23] Speaker 01: I think it's not clear from the restatement, but I think that to say that it doesn't – the damages against an individual employee don't matter. [00:40:34] Speaker 01: Well, first of all, we have all the cases like Chippalong that say that damages are a way of enforcing policy. [00:40:41] Speaker 01: But the issue is, is it enforcing policy when it's against the employee instead of the state? [00:40:47] Speaker 01: And as a practical matter, you're going to chill employees. [00:40:51] Speaker 01: If an employee knows that they take a particular act on behalf of the state, they face damages in this other jurisdiction. [00:40:59] Speaker 05: Well, then that is going to impede and chill their carrying out those... What this illustrates, and it's moving in that direction, is it may be a mistake to read the restatement as if it's a code. [00:41:16] Speaker 05: to draw any kind of inferences out of cases that are so far different than the situation that we have here may be in error. [00:41:27] Speaker 05: I just don't know that there's much so-called common law about immunity of foreign officials that has any bearing on the particular circumstances of this case. [00:41:39] Speaker 05: Where does it come from? [00:41:41] Speaker 05: Not the federal courts, at least after Erie it shouldn't be. [00:41:46] Speaker 01: I think, Your Honor, I'd say that the common law, when a summontar suggests that the common law is in large part what the State Department says, because before, [00:41:58] Speaker 01: there was the FSIA, the State Department was making these determinations. [00:42:02] Speaker 01: They weren't common law cases. [00:42:04] Speaker 05: The Supreme Court said they might have been. [00:42:07] Speaker 01: But there wasn't a statute at that point, so they were just making... The pre-FSIA cases. [00:42:11] Speaker 01: The pre-FSIA. [00:42:14] Speaker 01: And so now you have the State Department, in the case of officials, making those same kinds of determinations. [00:42:20] Speaker 01: And in making those determinations, they have said that [00:42:24] Speaker 01: There is no illegality exception to official capacity. [00:42:28] Speaker 01: There's no just Cohen's exception and that the TVPA does not trump official immunity. [00:42:36] Speaker 01: And so that I would submit is the common law of official immunity at this stage. [00:42:43] Speaker 02: The TVPA may, I don't think that the Supreme Court held that the TVPA didn't trump official immunity. [00:42:54] Speaker 02: That wasn't the issue. [00:42:55] Speaker 02: The issue was whether immunity applies through either the FSIA or through the common law, and they held it would apply through the common law. [00:43:06] Speaker 02: But I think that what the Supreme Court has said, and I know our court has said it, [00:43:12] Speaker 02: is that we're supposed to give, if there's explicit intent of Congress that we can divine from the text of the statute, even if it kind of overrides international law norms, we give effect to the intent of the statute. [00:43:30] Speaker 02: Because Congress, you know, in their wisdom, can promulgate a statute that violates international law if they want to. [00:43:40] Speaker 02: It's not like, you know, the Constitution where we would strike that statute down. [00:43:44] Speaker 02: If it violates international law and that's what Congress wanted to do, we give effect to the intent of the statute. [00:43:52] Speaker 02: Here, Congress explicitly said that if the person is acting under authority, either actual or apparent, and they commit torture, there's liability. [00:44:09] Speaker 02: So I don't see how we square Congress's intent with your argument that, well, if we adjudicate here and make some sort of finding [00:44:21] Speaker 02: that this official act was torture when the DRC says it wasn't, we are somehow doing something wrong here, essentially having some sort of improper effect against the state. [00:44:41] Speaker 02: Well, that's the effect that Congress explicitly wanted us to have. [00:44:45] Speaker 02: was to say, if it's torture, we don't care whether it's authorized. [00:44:49] Speaker 02: We don't care if it's your policy. [00:44:52] Speaker 02: We're going to hold you liable for it, because there's actually international law against torture. [00:45:00] Speaker 02: So what do we do with that? [00:45:03] Speaker 01: Well, Your Honor, I think, first of all, I would say that the TVPA is silent on the role of common law. [00:45:15] Speaker 01: because it prescribes certain action, that that overrules immunity. [00:45:20] Speaker 01: Because any prescription then would overrule immunity. [00:45:23] Speaker 01: 1983 would overrule immunity. [00:45:26] Speaker 01: And yet, the law is that if the statute does not specifically overrule the common law, then the common law applies if you can reconcile it. [00:45:39] Speaker 01: And you can reconcile it. [00:45:40] Speaker 01: And by the way, I think in the Manohanran case, which is where this court said, [00:45:45] Speaker 01: that common law status immunities survived in a TVPA case. [00:45:53] Speaker 01: Well, because the statute was silent on the issue, I think silence is silence. [00:45:59] Speaker 01: There's no reason that the silence as to that common law immunity means something different than the silence as to this common law immunity. [00:46:06] Speaker 01: That would be odd, I think. [00:46:08] Speaker 01: But beyond that, [00:46:16] Speaker 01: The TVPA, if it can be reconciled with immunity, that is the question. [00:46:23] Speaker 01: Does recognizing immunity leave significant parts of the TVPA standing? [00:46:29] Speaker 02: Isn't the recognition, isn't the reconciliation with immunity law, that specific phrase, enforcing a rule of law against the state, isn't that the reconciliation? [00:46:44] Speaker 01: I think that [00:46:46] Speaker 01: Making that the reconciliation, Your Honor, would do away with immunity law for individuals, because somebody would have to do with sue the individual. [00:46:58] Speaker 01: And here we have plenty of circumstances. [00:47:00] Speaker 01: The court held in Belos where they were interpreting what is the meaning of official capacity. [00:47:06] Speaker 01: Yes, it was under the statute, but it was the same analysis, and the analysis was, [00:47:12] Speaker 01: that there were exceptions where the TVPA would continue to apply and that that was sufficient to reconcile the TVPA to immunity. [00:47:21] Speaker 01: And there are circumstances where the TVPA would apply, most significantly where the country doesn't assert immunity, which is what happened in the Marcos cases, or where there's no government, which is what happened in the Samantara cases, or where [00:47:41] Speaker 01: The government takes no position, which was in the Philartega case. [00:47:47] Speaker 01: Most importantly, when the State Department comes in and says that there should be no immunity, because that is where this decision that affects foreign policy interests most appropriately lies. [00:48:01] Speaker 01: That's not to say the Court doesn't have a significant role, but the Supreme Court in Summantar said that the Court [00:48:10] Speaker 01: When the State Department comes in, the Court is supposed to honor what the State Department says. [00:48:15] Speaker 01: And there's a suggestion in addition in Summantar that where the State Department doesn't come in, the Court should look to the positions the State Department has taken. [00:48:24] Speaker 01: And the State Department here has been very clear that the TVPA does not, per se, trump the official immunity. [00:48:36] Speaker 01: Thank you. [00:48:36] Speaker 01: But that only gets you so far. [00:48:39] Speaker 01: I think it gets us the whole way, Your Honor, because the immunity here is an immunity for acts that the state has said were on behalf of the state. [00:48:52] Speaker 01: And the state is really the real party in interest. [00:48:57] Speaker 01: Any action here will be an adjudication of the actions of the DRC. [00:49:05] Speaker 01: And that implicates the issues that are important that underlay the immunity determination. [00:49:14] Speaker 03: Before you say that, just one technical question based on something you just said, which is you said the state is really the real party in interest. [00:49:21] Speaker 03: But was that an argument that was made in the district court? [00:49:23] Speaker 03: Because if the state was the real party in interest, then the FSIA would come into play. [00:49:27] Speaker 01: We didn't argue it in those terms, Your Honor, but we argued that the ratification made [00:49:33] Speaker 01: There's an act of the state, essentially. [00:49:35] Speaker 03: The ratification. [00:49:36] Speaker 03: OK. [00:49:37] Speaker 03: Thank you, Mr. Reiner. [00:49:38] Speaker 01: Thank you, Your Honor. [00:49:44] Speaker 03: So we'll give you your two minutes of rebuttal, please. [00:49:47] Speaker 04: I have just one quick point to make, which is that in Samantar, the Supreme Court noted specifically the third prong of the restatement test. [00:49:55] Speaker 04: Although it wasn't applying it, it noted on page 321 [00:49:59] Speaker 04: That this third prong was a difference between the FSIA and the common law and that that was a reason why the Foreign official immunity was still governed by the common law and then later in the opinion the Supreme Court emphasized that [00:50:14] Speaker 04: that in this case, respondents have sued Petitioner in his personal capacity and seek damages from his own pockets, and that as a result, it was properly governed by the common law. [00:50:25] Speaker 04: So this is clearly a significant prong in the Supreme Court's view, although it didn't apply it directly in this case. [00:50:30] Speaker 03: And what's your response to your colleague's argument that if all the third prong means is that a plaintiff could style his complaint as one involving individual capacity, then that effectively does away with official immunity? [00:50:43] Speaker 04: Well, there's all sorts of situations where that won't be true. [00:50:47] Speaker 04: You have to satisfy Iqbal and Twombly, so you have to have a substantial case. [00:50:52] Speaker 03: You have to be able to show... But that has to be true even for official capacity, so that's not drawing the line. [00:50:58] Speaker 03: That doesn't derogate from the fact that allowing a plaintiff to style a complaint as individual capacity doesn't amount to anything because [00:51:09] Speaker 03: And that allegation isn't one that's subject to it voluntarily, as far as I know, because all that's saying is, where am I going to seeking recovery from? [00:51:16] Speaker 03: That's entirely up to the plaintiff. [00:51:18] Speaker 04: Well, if the case is against the state as the real party in interest, then that argument's going to be raised, and you're not going to have that situation. [00:51:26] Speaker 04: But in a case where it's truly only personal liability sought against an individual, [00:51:33] Speaker 04: Those are cases that is a fairly narrow category. [00:51:36] Speaker 04: And in fact, you know, the Fourth Circuit, you know, on the Samantar remand held an entire category of violations of use Cogan's violations were subject to liability and that hasn't opened the floodgates. [00:51:52] Speaker 04: And so it's not as easy as just naming an individual official. [00:51:55] Speaker 04: You have to actually be able to articulate facts that show that the individuals [00:52:01] Speaker 04: took actions that were, for which they're personally liable and you have to seek liability from them in their personal capacity. [00:52:08] Speaker 03: Okay, I feel like I'm just going to be basic. [00:52:11] Speaker 03: I just want to make sure I understand. [00:52:12] Speaker 03: So, I guess the question would be, in any case that can get past the pleadings, if it were an official capacity case, [00:52:20] Speaker 03: Isn't it true that simply by restyling it as an individual capacity case, which is to say the plaintiff makes the choice only to seek recovery against the individual and not to try to get to the bank account of the state, it's only seeking the city bank account of the individual, that that transformation can happen and it would mean that immunity automatically wouldn't come into play? [00:52:43] Speaker 04: I don't think that there's a, I don't think you can say categorically that somebody couldn't articulate why, in a particular circumstance, a foreign official may, if he has to provide personal liability in a particular circumstance, why that would have some effect on the state. [00:52:59] Speaker 04: I mean, there could be such a circumstance. [00:53:02] Speaker 04: I'm not saying there couldn't. [00:53:03] Speaker 04: But in this situation, there isn't anything like that. [00:53:08] Speaker 03: Okay. [00:53:08] Speaker 03: Thank you, counsel. [00:53:09] Speaker 03: Thank you, counsel. [00:53:09] Speaker 03: The case is submitted. [00:53:10] Speaker 03: Thank you.