I

I'M 0 Q ^j,

No. 13-1361i

L s. ,

7 r* >

In The

>upreme Court of tfje ^Hntt^b States!

MOHAMED ALI SAMANTAR,Petitioner,

v.

Bashe Abdi Yousuf, etajl,

Respondents.

On Petition for a Writ of Certiorarito the United States Court of Appeals

for the Fourth Circuit

REPLY IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

July 29, 2014

Shay Dvoretzky

Counsel ofRecord

Michael A. Carvin

Paul V. Lettow

David T. Raimer

Jones Day

51 Louisiana Ave., NWWashington, DC 20001sdvoretzky@jonesday.com(202) 879-3939

Counsel for Petitioner

TABLE OF CONTENTS j

Page

TABLE OF AUTHORITIES ii

I. THE FOURTH CIRCUIT'S

CATEGORICAL JUS COGENSEXCEPTION TO COMMON-LAW

IMMUNITY WARRANTS THIS

COURT'S IMMEDIATE REVIEW 1

II. RESPONDENTS' ARGUMENTS ARE

WITHOUT MERIT . 3

A. The District Court's Factual

Findings Have No Bearing on theFourth Circuit's Categorical Non-Immunity Rule for Jus CogensViolations 3

B. The Somali Government's

Request for Immunity forPetitioner Does Not Preclude

Review 6

C. Petitioner Is Not Foreclosed fromObtaining Relief on a PotentialRemand 7

D. The Circuits Are Divided on the

Important Question Presented 9

CONCLUSION 12

&

Cases

11

TABLE OF AUTHORITIES

Page(s)

Am. Canoe Ass'n v. Murphy Farms, Inc.,326 F.3d 505 (4th Cir. 2003) 4

Arizona v. California,460 U.S. 605 (1983) 3

Ashcroft v. Iqbal,556 U.S. 662 (2009) 6

Belhas v. Ya'alon,515 F.3d 1279 (D.C. Cir. 2008) 11

Boeing Co. v. United States,131 S. Ct. 62 (2010) 5

General Dynamics Corp. v. United States,131 S. Ct. 1900 (2011) 4, 5

Matar v. Dichter,563 F.3d 9 (2d Cir. 2009) \ 9, 10, 11

McDonnell Douglas Corp. v. United States,323 F.3d 1006 (Fed. Cir. 2003) 5

Mitchell v. Forsyth,472 U.S. 511 (1985) | 6

Quackenbush v. Allstate Ins. Co.,517 U.S. 706 (1996) 4

Republic ofIraq v. Beaty,556 U.S. 848 (2009) ?

Ill

TABLE OF AUTHORITIES

(continued)J Page(s)

Samantar v. Yousuf,560 U.S. 305 (2010) 11

Wyant v. US. Fid. & Guar. Co.,116 F.2d 83 (4th Cir. 1940) (per curiam) 4

Ye v. Zemin,383 F.3d 620 (7th Cir. 2004) 11

REPLY FOR PETITIONER

Respondents do not dispute that t)he FourthCircuit adopted a categorical rule eliminatingcommon-law immunity for foreign officials in casesinvolving alleged violations of jus cogens norms. Pet.App. 65a-66a. This per se immunity exceptioncontravenes international law, abrogates immunityin virtually all ATS and TVPA cases against foreignofficials, opens the floodgates to suits againstofficials traveling through the Fourth Circuit, andrisks reciprocal treatment of U.S. officials abroad.Trying to forestall this Court's review, Respondentsconjure a series of illusory "procedural concerns."Those "concerns" have nothing to do with thecategorical rule created by the Fourth Circuit, castno doubt on this Court's ability to review the decisionbelow, and in no way foreclose Petitioner'sentitlement to relief on any potential remand.

L THE FOURTH CIRCUITS CATEGORICAL JUSCOGENS EXCEPTION TO COMMON-LAWIMMUNITY WARRANTS THIS COURTSIMMEDIATE REVIEW

The Fourth Circuit's generally applicable rule oflaw could not be clearer: "We conclude that, underinternational and domestic law, officials from othercountries are not entitled to foreign official immunityfor jus cogens violations, even if the acts wereperformed in the defendant's official capacity." Pet.App. 65a-66a. As the Solicitor General hasrecognized, this "per se rule of non-immunity" admitsno exceptions. Br. of the United States 19, Samantarv. Yousuf, 134 S. Ct. 897 (2014) (No. 12-1078) ("U.S.Br."). Given the breadth of this "categorical judicialexception to immunity," the Solicitor General

explained that the Fourth Circuit's interlocutorydecision "would warrant review by th[ts] Court at anappropriate time." U.S. Br. 19, 22.

Now, following final judgment, is the"appropriate time" for review. The Fourth Circuit'srule threatens "negative consequences for the UnitedStates' foreign-relations interests." U.S. Br. 12. Notonly does this rule "reduce the protection foreignofficials receive in our Nation's courts," but it also"very likely would be applied to U.S. officials facingsuit in foreign courts." Br. of Amid Curiae FormerAttorneys General 2. This, in turn, "affects how ourleaders govern this Nation," as their "judgments onimportant matters of international security andforeign affairs may be adversely affected by thepolicy preferences of foreign states, the views_ offoreign courts on international law, and foreignsubstantive legal standards." Id. 12-13.

Moreover, the Fourth Circuit's rule opens thefloodgates to suits against foreign officials, includingofficials of close allies of the United States. Pet. 19 &n.4. Given the sweeping nature of the FourthCircuit's rule, plaintiffs could "proceed to discoveryand perhaps ultimately trial" based on mereallegations of jus cogens violations. See Br. of theKingdom of Saudi Arabia as Amicus Curiae 17. Asthis litigation demonstrates, such cases can takeyears to make their way through the courts. SeeOpp. 24. Thus, by the time another Vehicle presentsitself to this Court, important national interests willhave already suffered irreparable harm. ThisCourt's immediate intervention is warranted.

II. RESPONDENTS' ARGUMENTS AREWITHOUT MERIT

Respondents' attempts to cloud t}ie purely legalquestion before this Court are unavailing.

A. The District Court's Factual Findings HaveNo Bearing on the Fourth Circuit'sCategorical Non-Immunity Rule for JusCogens Violations

Respondents claim that, "[i]n his final judgmentappeal, petitioner raised no arguments on thedistrict court's immunity judgment." Opp. 12.Contrary to Respondents' suggestion, the scope ofPetitioner's final-judgment appeal has nothing to dowith this Court's review of the Fourth Circuit's

categorical non-immunity rule. Id. 12-15.

1. As an initial matter, Respondents do not arguethat Petitioner has forfeited his objection to theFourth Circuit's immunity ruling, nor could they.Whatever the scope of his final-judgment appeal,1Petitioner had no reason to reiterate his underlyingimmunity arguments. The Fourth Circuit hadalready created a categorical jus cogens exception inPetitioner's previous appeal, and "when a courtdecides upon a rule of law, that decision shouldcontinue to govern the same issues in subsequentstages in the same case." Arizona v. California, 460

1 Respondents incorrectly suggest that immunity was irrelevantto Petitioner's final-judgment appeal. The basis for Petitioner'sappeal was that "'the District Court was divested of jurisdiction'during the pendency of his earlier interlocutory appeal" of thedistrict court's denial of immunity. Opp. 12. In rejecting thatargument, the Fourth Circuit expressly relied on its earlierimmunity ruling. Pet. 13.

US 605 618 (1983). Any attempt to challenge theFourth Circuit's prior ruling would have been futileSee Am. Canoe Ass'n v. Murphy Farms, Inc., 326F3d 505, 521 (4th Cir. 2003) ("By law, theconclusions reached in [the first appeal] are bindingon the district court, and they are binding on thispanel [in the second appeal] as well . . ); Wyant v.U.S Fid. &Guar. Co., 116 F.2d 83, 85 (4th Cir. 1940)(per curiam) ("Of course the matters settled on thesecond appeal in this cause cannot be reopened [in]this [third] appeal").

Moreover, Respondents themselves havepreviously explained that, "once a final judgmentissues, challenges to interlocutory rulings . . .mustproceed through review of the final judgment intowhich all interlocutory rulings have merged^Respondents' 12-24-2013 Supplemental Br 4Samantar 134 S. Ct. 897 (No. 12-1078) (citing Ortizv Jordan 131 S. Ct. 884 (2011)); see alsoQuackenbush v. Allstate Ins. Co., 517 U.S. 706, 712(1996) (stating the "general rule" that "'claims ofdistrict court error at any stage of the litigation maybe ventilated"' after "final judgmenthas_ beenentered'" (citation omitted)). Here, he FourthCircuit's immunity decision merged into the finaljudgment and is ripe for this Court's review.

Indeed, this Court has granted certiorari insimilar situations. For example m Genera^Dynamics Corp. v. United States, 131 S Ct. 1900(2011) this Court granted certiorari after finaludgment to consider the scope of the state secre sprivilege. As in this case, petitioners took multipleappeals during the course of the litigation Id a1905. The privilege question reviewed by this Oourt

following final judgment was the subject of dn earliernterlocutory appeal. Id, McDonnell Dou^as Corp.\ United States, 323 F.3d 1006, 1020-24 (Fed Ci,2003) Though petitioners did not refer to the statesecrets question in their final-judgment appeal seeOpening Br. of Appellant Gen. ^T%^McDonnell Douglas Corp. v. ^tedStaes,^ YM1340 (Fed. Cir. 2009) (No. 07-5131), 2007 WL3308261; Opening Br. of Appellant McDonnellDouglas Corp., McDonnell Douglas Corp. vUmtedStates 567 F.3d 1340 (Fed. Cir. 2009) (No. 07-5111),2^07 USFed. Cir. Briefs LEXIS 1297, that was nobar to this Court's grant of certiorari, Boeing Co. v.United States, 131 S. Ct. 62 (2010).

2 Perhaps recognizing the futility of a waiverargument, Respondents argue ^f^^thebecause conduct-based immunity depends on theW in question," and the "Fourth Circuitynever asked to analyze how petitioners claim ofimmunity should be treated now that respondentsStations have been supplanted by proven facts.Opp. 14.

But Respondents fail to explain how a factualrecord impacts the Fourth Circuit's purely legalconclusion that common-law immunity iscategorically unavailable for alleged jus cogenscategori y termSj theviolations. See supra rart ±. ^yFourth Circuit's exception applies in all casesinvolving "arts] that would violate ajus cogens norm5 international law," such as "tortuH genocideindiscriminate executions and prolonged. arbitraryimprisonment." Pet. App. 62a (emphasis added) Atno point did the Fourth Circuit indicate that itsnoldTng turned on whether those "acts" were alleged

versus proven. Id. 62a-66a. Rather, the courtbroadly held that, "under international and domesticlaw, officials from other countries are not entitled toforeign official immunity for jus cogens violations,even if the acts were performed in the defendant'sofficial capacity." Id. 65a-66a.

Furthermore, the Fourth Circuit's interlocutoryopinion involved the denial of Petitioner's motion todismiss, id. 44a-46a, in which a court accepts as truethe factual allegations of the complaint, Ashcroft v.Iqbal, 556 U.S. 662, 678 (2009). Respondents do notcontend that there is any distinction between the juscogens violations assumed to be true by the FourthCircuit and the jus cogens violations later found bythe district court—nor could they. Compare Pet.App 62a (Fourth Circuit) (describing allegations incomplaint), with id. 7a, 33a (Dist. Ct.) (describingfactual findings).

Finally, the whole point of immunity is to shielddefendants from liability and the burdens oflitigation—whether or not the defendant actuallycommitted the acts in question. See Mitchell v.Forsyth, 472 U.S. 511, 526 (1985). That is whydeterminations of foreign official immunity aretypically made at the outset of litigation, and it iswhy the Fourth Circuit's categorical denial ofimmunity for alleged jus cogens violations does notdepend on whether those allegations are ultimatelyproven.

B. The Somali Government's Request forImmunity for Petitioner Does Not PrecludeReview

Respondents next argue that Petitioner's citationof the Somali Prime Minister's request for immunity

for Petitioner somehow 'compounc.s the

inappropriateness of certiorari review." Oppl 15.

The position of the Somali government played norole in the Fourth Circuit's reasoning for creating ajus cogens exception to foreign official immunity.This Court can review that purely legaldetermination without reaching the Somaligovernment's request for immunity, which the lowercourts can consider on any potential remand, alongWith any new immunity determination by theExecutive Branch.

In any event, there is nothing improper aboutPetitioner's advising this Court of developmentsregarding the Somali government. See generallyRepublic of Iraq v. Beaty 556 U.S. 848, 864-65(2009) ("Foreign sovereign immunity 'reflects currentpolitical realities and relationships . . . ,'")H Nor isthere any ambiguity about a request for iinmunityqigned by the recognized head of the Goveriiment ofSomalia. Pet. 23. And Respondents can hardly faultPetitioner for raising this evidence now because, asRespondents themselves observe, the Somali PrimeMinister's letter is dated "six weeks after the Fourth

Circuit dismissed petitioner's final judgment appeal."Gpp. 15; Pet. App. 73a.

C. Petitioner Is Not Foreclosed from ObtainingRelief on a Potential Remand

Respondents further contend that this Courtshould deny certiorari because the United Statespreviously recommended against immunity forPetitioner. Opp. 19. The Government's outdatediinmunity recommendation does not diminish thecertworthiness of this case.

8

First, the Fourth Circuit created a jus cogensexception without regard for the1 Government'srecommendation. Not once in the critical part of itsopinion—i.e., the portion of the opinion explainingthe "conclusion]" that there is n(j> immunity forforeign officials in cases involving jus cogensviolations—did the Fourth Circuit cite theGovernment's immunity recommendation. Pet. App.62a-66a. Only after adopting its per se non-immunity rule did the court briefly note that theGovernment's Statement of Interest supplied"additional reasons to support" the denial ofimmunity. Id. 68a (emphasis added). Even then, theFourth Circuit never suggested that the factors citedby the Government were independently sufficientgrounds for denying immunity.

Second, the Solicitor General has previouslyindicated that the United States would engage in"further consideration" of Petitioner^ case in light ofsubsequent developments in U.S.-Somali relations.U.S. Br. 23. The State Department's original"suggestion of non-immunity . . . rested principallyon the fact that there was no recognized governmentof Somalia to assert immunity on petitioner's behalf."Id. 22. Since that determination, the United Stateshas recognized the government of Somalia, id. 9-10,and the Somali government has twice requestedimmunity for Petitioner, Pet. App. ?3a, 113a. Withthese developments having overtaken the primarybasis for the United States' recommendation of non-immunity, the Government is free to "submit anynew determination it might irjake concerningpetitioner's immunity," and "the lower courts [could]consider such matters in the first instance" duringany potential remand. U.S. Br. 23.

Third, even absent a new immunityrecommendation, the State Department's now-datedrecommendation cannot be entitled to absolutedeference when the "principal!]" basis for thatrecommendation has evaporated. Id. 22. After all,the only other ground for the suggestion of non-immunity was Petitioner's "residence] in the UnitedStates," Pet. App. 86a, which according to the StateDepartment, "[wa]s not, in itself, determinative of[Petitioner's] immunity from suit," id. Rather, it wasrelevant only "in the circumstances" then at issue,where Petitioner was "a former official of a statewith no currently recognized government," id. 83a,85a-86a. At a minimum, speculation about theoutcome of any remand that this Court might orderprovides no basis for denying certiorari.

D. The Circuits Are Divided on the ImportantQuestion Presented

The Fourth Circuit's decision is at odds with

decisions of the Second, Seventh, and D.C. Circuits.Respondents' attempt to minimize this conflict iswithout merit.

1. In both Matar v. Dichter, 563 F.3d 9 (2d Cir.2009), and the present case, the Government arguedagainst a jus cogens exception to foreign officialimmunity. While the Second Circuit adopted theGovernment's interpretation of the coijamon law, theFourth Circuit recognized a categorical jus cogensexception, thus creating a circuit split acknowledgedby the Solicitor General. U.S. Br. 22; Pet. 14-16.

That Matar pre-dated this Court's decision inSamantar is irrelevant. Opp. 22. Samantar wasdecided under the FSIA; Matar held that, regardlessof the FSIA, the defendant was "immune from suit

10

I

under common-law principles thai; pre-date, andsurvive, the enactment of that statute." 563 F.3d at14. That was so, according to the Second Circuit,even though the plaintiffs alleged violations of juscogens norms. Id. at 14-15. Thus, in conflict withthe decision below, the Second Circuit squarelyrejected a jus cogens exception to common-lawforeign official immunity.

Respondents argue that because Matar wasdecided before Samantar, the Second Circuit neverhad the opportunity "to consider the factors andprinciples announced by the Executive Branch in itsSamantar brief and Vost-Samantar statements ofinterest." Opp. 22 (citing Br. for the United States asAmicus Curiae 24-26, Samantar v. Yousuf, 560 U.S.305 (2010) (No. 08-1555)). But the passage thatRespondents cite from a brief focused on FSIAimmunity did not announce a drarhatic shift m theGovernment's interpretation of common-lawimmunity. It merely restated the settled principlethat official acts, unlike private acts, are subject toimmunity. U.S. Br. 25 (No. 08-1555) Critically, theGovernment has steadfastly maintained—includingin this very case—that courts should not create acategorical jus cogens exception. While Mataraccepted the Government's argument, the FourthCircuit rejected it.

Finally, while the Second Circuit's holding "camein the context of an Executive Branch suggestionthat immunity be granted," Qpp. 22-23, thatprovides no basis for distinguishing Matar. As notedabove, the Government's position as to a jus cogensexception was consistent in both cases. Moreover, inagreeing with the Government, the Second Circuit

11

independently discussed the scope of common-lawimmunity, see Matar, 563 F.3d at 14-15, just as theFourth Circuit discussed its own reasons for

recognizing a jus cogens exception to immunity. Thecircuit split between these courts warrants thisCourt's intervention.

2. The decision below is also at odds with the

D.C. Circuit's decision in Belhas v. Ya'alon, 515 F.3d11279, 1286-88 (D.C. Cir. 2008), which rejected a jus\cogens exception to an individual official's (pre-Samantaf) immunity under the FSIA. While theD.C. Circuit has not yet had to decide the question,see Opp. 21, the logic of Belhas applies equally tocommon-law immunity. Indeed, this Court notedthat rules developed for foreign official immunityunder the FSIA also "may be correct as a matter ofcommon-law principles." Samantar, 560 U.S. at 322n.17.

3. Respondents characterize the SeventhjCircuit's decision in Ye v. Zemin, 383 F.3d 620 (7thCir. 2004), as rejecting a jus cogens exception only asto head-of-state immunity. Opp. 21-22. Yet thebriefing in that case shows that both he^d-of-stateand foreign official immunity were at issue, and theGovernment urged the Seventh Circuit to reject a juscogens exception to both forms of immunity. See Pet.17-18. Thus, the Seventh Circuit's rejection of theplaintiffs' argument that "the Executive Branch hasno power to immunize a head of state (or anypersonfor that mattex) for acts that violate jus cogensnorms of international law," Ye, 383 F.3d at 625(emphasis added), covers both categories ofimmunity. Indeed, the Government has sincecharacterized Ye as rejecting a jus cogens exception

12

in both the head-of-state anjl foreign officialimmunity contexts. See Pet. 18.

CONCLUSIONFor the reasons stated above, the petition for a

writ of certiorari should be granted.

Respectfully submitted,

Shay Dvoretzky

Counsel ofRecordMichael A. CarvinPaulV.Lettow

David T. Raimer

Jones Day51 Louisiana Ave., NWWashington, DC 20001sdvoretzky@jonesday.com(202) 879-3939

Counsel for Petitioner

July 29, 2014