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

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 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

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 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

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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 official acting on behalf of a foreign state?

OPINIONS BELOW

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

CONSTITUTIONAL PROVISIONS AND RULES

28 U.S.C. §§ 1330, 1602-1611

28 U.S.C. § 1350

28 U.S.C. § 1350 note

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 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

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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

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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 vis-

à-vis their affect on foreign states after disassociation,

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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

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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

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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

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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.

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 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

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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

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 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

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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.

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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

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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

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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

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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.

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 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

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