Anyone familiar with the work of William Dodge and Chimène Keitner will expect nothing less than an expert, precise, and innovative piece of scholarship that deftly explains and advances the law. And so it goes with A Roadmap for Foreign Official Immunity Cases in U.S. Courts.
The authors join forces to both explain the doctrine of foreign official immunity and propose sensible and workable rules for courts to follow against a messy doctrinal background left in the wake of Samantar v. Yousuf, where the Supreme Court held that the Foreign Sovereign Immunity Act (FSIA) does not regulate suits against foreign officials; rather, such suits are governed by the common law, which includes international law.
The authors carefully explain and differentiate forms of immunity in U.S. courts, including status-based immunity (absolute while the individual holds office) and conduct-based immunity (applicable only to official acts but endures after the officeholder leaves office). The topic is of paramount importance to U.S. foreign affairs and headline grabbing cases involving human rights violations as well as sabotage, kidnapping, and political assassination, particularly to whether such conduct qualifies as “official acts.”
The authors argue that the Executive has the power to recognize the status of certain officials, like a head of state. From that recognition flows status-based immunity. But the rules of both status-based and conduct-based immunity are rules of federal common law created by courts that reflect customary international law. In this connection, courts should follow extant rules of international law in discerning both kinds of immunity.
In addition to laying out clearly the substantive law of foreign official immunity, perhaps the most salient contribution the Article makes is to argue that such immunity should be treated as an affirmative defense, not a question of subject matter jurisdiction. This makes sense, the authors argue, because “[s]uch a change in approach would answer some difficult questions about how foreign official immunity works in federal and state courts and account for the fact that such immunity can be waived.” To this reader, the argument is clearly persuasive in the pleading context.
Immunity is designed to avoid the burden of trial, and affirmative defenses can be pled before the answer. Moreover, the party with the most information—here the foreign official—ought to have the burden of proof as it would in mounting an affirmative defense. As Dodge and Keitner explain, courts can engage in limited discovery to sort out threshold factual issues, but avoidance of full-blown discovery and trial remains intact. Moreover, treating official immunity as an affirmative defense does not remove the plaintiff’s burden after Iqbal v. Ashcroft to plead plausible grounds for relief as an initial matter. They also make the case that findings of non-immunity ought to be immediately appealable similarly to avoid the burdens of full-blown discovery and trial for ultimately unmeritorious cases and because of the often big stakes foreign relations issues the cases raise.
The Article is obligatory reading for anyone interested in the law of foreign official immunity in U.S. courts. It is both descriptive and normative—laying out the law clearly and precisely and offering analysis that brings coherence to a massively messy and massively important area of the law.
