Monday, August 18, 2008

Second Circuit Determines that FSIA Protects an Individual Official of a Foreign Government Acting in His Official Capacity

Per In re Terrorist Attacks on September 11, 2001, --- F.3d ----, 2008 WL 3474167 (2d Cir. Aug. 14, 2008):

This Circuit has not yet decided whether the FSIA protects an individual official of a foreign government acting in his official capacity. . . .

We join our sister circuits in holding that an individual official of a foreign state acting in his official capacity is the “agency or instrumentality” of the state, and is thereby protected by the FSIA. See Velasco v. Gov't of Indonesia, 370 F.3d 392, 399 (4th Cir.2004) (“Claims against the individual in his official capacity are the practical equivalent of claims against the foreign state.”); Keller v. Cent. Bank of Nigeria, 277 F.3d 811, 815 (6th Cir.2002) (“[N]ormally foreign sovereign immunity extends to individuals acting in their official capacities as officers of corporations considered foreign sovereigns.”); Byrd v. Corporacion Forestal y Industrial de Olancho S.A., 182 F.3d 380, 388 (5th Cir.1999) (same); Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1027 (D.C.Cir.1997) ( “Individuals acting in their official capacities are considered ‘agenc[ies] or instrumentalit[ies] of a foreign state;’ these same individuals, however, are not entitled to immunity under the FSIA for acts that are not committed in an official capacity.”); Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095, 1101-03 (9th Cir.1990) (“We thus join the majority of courts which have similarly concluded that section 1603(b) can fairly be read to include individuals sued in their official capacity.”). Several district judges in this Circuit have reached the same conclusion. See, e.g., Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah, 184 F.Supp.2d 277, 286-87 (S.D.N.Y.2001) (Lynch, J.); Tannenbaum v. Rabin, 1996 WL 75283, at *2 (E.D.N.Y. Feb. 13, 1996) (Glasser, J.); Bryks v. Canadian Broad. Corp., 906 F.Supp. 204, 210 (S.D.N.Y.1995) (Mukasey, J.); Kline v. Kaneko, 685 F.Supp. 386, 389 n. 1 (S.D.N.Y.1988) (Ward, J.).

The Seventh Circuit is an outlier. It has construed the FSIA's grant of immunity narrowly, to exclude individual government officials, reasoning that “[i]f Congress meant to include individuals acting in the official capacity in the scope of the FSIA, it would have done so in clear and unmistakable terms.” Enahoro v. Abubakar, 408 F.3d 877, 881-82 (7th Cir.2005).


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