Cluster 547287 (1990)

Nor is it the case that the FSIA’s “legislative history does not even hint of an intent to exclude individual officials,” Chuidian, 912 F. 2d, at 1101.

See, e.g., Garb v. Republic of Poland, 440 F.3d 579, 588 (2d Cir.2006) (declining to credit plaintiffs’ invocation of the Commercial Activities Exception, which “simply reeharacterize[d] plaintiffs’ ‘takings’ argument”); Chuidian, 912 F.2d at 1106 (“To hold otherwise would be to allow plaintiffs to escape the requirements of section 1605(a)(3) through artful recharacterization of their takings claims.”); de Sanchez v. Banco Cent. de Nicaragua, 770 F.2d 1385, 1399 (5th Cir.19…

See, e.g., Chuidian, 912 F.2d at 1106 (“Sovereign immunity . . . will not shield an official who acts beyond the scope of his authority.”); Hilao v. Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir. 1994) (“acts of torture, execution, and disappearance were clearly acts outside of his authority as President . . . .

III. 47 Verlinden, 461 U.S. at 492-93 , 103 S.Ct. at 1971 . 9 See also Chuidian, 912 F.2d at 1098 ("Federal courts have jurisdiction over suits against foreign sovereigns under [FSIA], even where the parties are not diverse and the underlying claims do not present a federal question") (citation to Verlinden omitted); Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir.1980). 48 In conclusion, this action brought for torts "committed by military intelligence officials through …

Verlinden, 461 U.S. at 492-93 , 103 S.Ct. at 1971 . 9 See also Chuidian, 912 F.2d at 1098 (“Federal courts have jurisdiction over suits against foreign sovereigns under [FSIA], even where the parties are not diverse and the underlying claims do not present a federal question”) (citation to Verlinden omitted); Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir.1980).

Chuidian holds the definition of an “agency or instrumentality of a foreign state” under § 1603(b) encompasses “individual officials acting in their official capacity.” 912 F.2d at 1101.

Chuidian, 912 F.2d at 1101.

Chuidian, 912 F.2d at 1101.

Id. at 1099, 1103.

See, e.g., Chuidian, 912 F.2d at 1106 ("Sovereign immunity ... will not shield an official who acts beyond the scope of his authority."); Hilao v. Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir. 1994) ("acts of torture, execution, and disappearance were clearly acts outside of his authority as President ....

Thus, in Chuidian, although the plaintiff alleged that the defendant had intentionally interfered with his contractual relations out of malice, the Ninth Circuit focused on whether the defendant was authorized in his official capacity to so interfere. 912 F.2d at 1106.

Chuidian, 912 F.2d at 1103, 1106; Trajano, 978 F.2d at 497-98 .

Chuidian, 912 F.2d at 1103, 1106; Trajano, 978 F.2d at 497-98 .

For example, in Chuidian, U.S. courts applied the domestic takings rule and found no violation of international law when officials of the new Aquino government in the Philippines instructed a U.S. bank to dishonor a letter of credit that had been issued in favor of a close associate of former president Mar *675 cos. 912 F.2d at 1105, abrogated on other grounds by Samantar v. Yousuf, — U.S. -, 130 S.Ct. 2278 , 176 L.Ed.2d 1047 (2001).

In Chuidian, this court stated that the Act's presumption of juridical separateness is based on "due respect for the actions taken by foreign sovereigns," "principles of comity," and the notion that "[i]f U.S. law did not respect the separate juridical identities of different agencies or instrumentalities, it might encourage foreign jurisdictions to disregard the juridical divisions between different U.S. corporations or between a U.S. corporation and its independent subsidi…

In Chuidian, this court stated that the Act’s presumption of juridical separateness is based on “due respect for the actions taken by foreign sovereigns,” “principles of comity,” and the notion that “[i]f U.S. law did not respect the separate juridical identities of different agencies or instrumen-talities, it might encourage foreign jurisdictions to disregard the juridical divisions between different U.S. corporations or between a U.S. corporation and its independent subsid…

In Chuidian, we held that the FSIA covers a foreign official acting in an official capacity, but that an official is not entitled to immunity -for acts which are not committed in an official capacity (such as selling, personal property), and for acts beyond the scope of her authority (for example, doing something the sovereign has not empowered the official to do). 912 F.2d at 1106.

The decisions he cites also are of little value here because they predate Samantar: each decision analyzed whether the official was a “foreign state” within the meaning of the FSIA based on the then-current 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.” Chuidian, 912 F.2d at 1103, 1106; see In re Estate of Ferdinand Marcos, 25 F.3d at 147…

These cases sketch out the general contours of official-act immunity: a foreign official may assert immunity for official acts performed within the scope of his duty, but not for private acts where “the officer purports to act as an individual and not as an official, [such that] a suit directed against that action is not a suit against the sovereign.” Chuidian, 912 F.2d at 1106 (internal quotation marks omitted).

However this right is derivative; courts provide individual immunity because “[t]he rule that foreign states can be sued only pursuant to the specific provisions of sections 1605-07 would be vitiated if litigants could avoid immunity simply by recasting the form of their pleadings.” Chuidian, 912 F.2d at 1102.

Chuidian, 912 F.2d at 1102. 100 .

Otherwise, “to allow unrestricted suits against individual foreign officials acting in their official capacities ... would amount to a blanket abrogation of foreign sovereign immunity by allowing litigants to accomplish indirectly what [FISA] barred them from doing directly.” Id. at 1102.

Cf. Chuidian, 912 F.2d at 1106.

Furthermore, in support of the proposition that an “individual can qualify as an ‘agency or instrumentality of a foreign state,’ ” 75 F.3d at 671 (emphasis added), the El-Fadl opinion relied on Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 , 1101-03 (9th Cir.1990), in which the Ninth Circuit explicitly stated that the immune defendant’s employer, the Philippine National Bank, “qualifies as an ‘agency or instrumentality of a foreign state,’ under 28 U.S.C. § 1603 (b),” 912…

Bank of Jordan, 75 F.3d 668, 671 (D.C.Cir. 1996); Chuidian, 912 F.2d at 1103; Leutwyler v. Al-Abdullah, 184 F.Supp.2d 277, 286-87 (S.D.N.Y.2001); Tannenbaum v. Rabin, No. 95 Civ. 4357(ILG), 1996 WL 75283 , at *2 (E.D.N.Y.

Defendants Fidel and Raul Castro Ruz were sued individually and in their capacity as political figures. "[A]n individual can qualify as an agency or instrumentality of a foreign state.” Belhas v. Ya’alon, 515 F.3d 1279, 1283 (D.C.Cir.2008), citing El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 671 (D.C.Cir.1996) (internal quotations omitted); Chuidian v. Philippine National Bank, 912 F.2d 1095, 1101-03 (9th Cir.1990).

Chuidian, 912 F.2d at 1106; Trajano, 978 F.2d at 496-497 ; Phaneuf, 106 F.3d at 306 ; see also Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1028 (D.C.Cir.1997) (finding that a sultan was not a “foreign state” because his promises of compensation to plaintiffs were not in furtherance of the interests of the sovereign, but in furtherance of personal interests).

Chuidian, 912 F.2d at 1107.

Similarly, in Chuidian v. Philippine National Bank, 912 F.2d 1095, 1103 (9th Cir.1990), the Court of Appeals found that an individual member of a commission created by the executive branch, to recover “ill-gotten wealth” accumulated by the former President of the Philippines Ferdinand Marcos and his associates, was immune to suit in American courts under the FSIA In this instance, it is undisputed that the second named defendant, the Ufficio, is a Swiss governmental entity i…

However, the FSIA “will not shield an official who acts beyond the scope of his authority.” Chuidian, 912 F.2d at 1106.

See also Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 , 1101 (9th Cir. 1990) (“It is generally recognized that a suit against an individual acting in his official capacity is the practical equivalent of a suit against the sovereign directly.”)19 In a suit involving a foreign state, a plaintiff must satisfy the court’s subject matter jurisdiction under the Foreign Sovereign Immunities Act, (“FSIA”), 28 U.S.C. §§1330 , 1602, et seq., before the court can reach claims under…

Bank of Nig., 277 F.3d 811, 815 (6th Cir.2002), Byrd v. Corporacion Forestal y Industrial de Olancho S.A., 182 F.3d 380, 388 (5th Cir.1999), Jun gquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1027 (D.C.Cir.1997), and Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095, 1101-03 (9th Cir.1990) (holding that the immunity granted by the FSIA extends to individual governmental officials for acts taken in their official capacity), with Enahoro v. Abubakar, 408 F.3d 877…

See 28 U.S.C. § 1603 (defining foreign state and its agencies and instru-mentalities under the FSIA); Chuidian, 912 F.2d at 1101 (“Nowhere in the text or legislative history does Congress state that individuals are not encompassed within 28 U.S.C § 1603(b).”); see also discussion of Ishihara supra. 6 .

The Ninth Circuit has explicitly concluded that “[expropriation by a sovereign state of the property of its own nationals does not implicate settled principles of international law.” 33 Chuidian, 912 F.2d at 1105 (considering applicability of FSIA where Philippine bank official instructed California branch of bank not to honor letter of credit issued to Philippine national); see also Bank Tejarat v. Varsko-Saz, 723 F.Supp. 516, 520 (C.D.Cal.1989) (confiscation by Iranian gov…

Chuidian v. Philippine National Bank, 912 F.2d 1095, 1099-1103 (9th Cir.1990); 28 U.S.C. §§ 1603 (a), (b).

Id. at 1103; Kline v. Kaneko, 685 F.Supp. 386 , 389 n. 1 (S.D.N.Y. 1988); American Bonded Warehouse Corp. v. Compagnie Nationale Air France, 653 F.Supp. 861, 863 (N.D.Ill.1987); Rios v. Marshall, 530 F.Supp. 351, 371 (S.D.N.Y.1981).

See Marcos Estate I, 978 F.2d at 497 ; Chuidian, 912 F.2d at 1106.

Cf. Chuidian v. Philippine National Bank, 912 F.2d 1095, 1102 (9th Cir.1990) (holding individuals acting in official capacity immune under FSIA and citing Monell v. Department of Social Services, 436 U.S. 668 , 690 n. 65, 98 S.Ct. 2018 , 2035 n. 55, 56 L.Ed.2d 611 (1978) and Morongo Band of Mission Indians v. California State Board of Equalization, 858 F.2d 1376 , 1382 n. 5 (9th Cir.1988) in context of a suit against foreign sovereign); Filartiga v. Pena-Irala, 630 F.2d 876 …

See, e.g., Nolan v. Boeing Co., 919 F.2d 1058 , 1064-66 (5th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 1587 , 113 L.Ed.2d 651 (1991); Chuidian v. Philippine National Bank, 912 F.2d 1095, 1098-99 (9th Cir.1990).

See Chuidian, 912 F.2d at 1099-1100.

See Chuidian v. Philippine National Bank, 912 F.2d 1095, 1106 (9th Cir.1990) ( “An obvious example would be if a dispute occurs pertaining to the sale of an employ *389 ee’s personal house, his government employment provides him no shield to liability”)- Appellees argue that Pacheco and Figueroa acted beyond their official capacity, and therefore fall outside the shelter of the FSIA.

See Dodge & Keitner at 689–90. 3 The Supreme Court settled that in Samantar v. Yousuf, 560 U.S. 305 (2010). _____________________ 3 Compare Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 , 1103 (9th Cir. 1990); Belhas v. Ya’alon, 515 F.3d 1279, 1284 (D.C.

See Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 , 1100-03 (9th Cir.1990) (holding that the FSIA applies to individuals acting in their official capacity on behalf of a foreign sovereign).

See Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 , 1100-03 (9th Cir. 1990) (holding that the FSIA applies to individuals acting in their 6 Kensington’s motion for leave to file a response to the government’s amicus brief is granted.

See Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 , 1106-07 (9th Cir.1990) (explaining that “[sjovereign immunity ... will not shield an official who acts beyond the scope of his authority,” but defendant was authorized to perform the types of acts alleged, even if he did so for improper motives).

Co., 55 F.3d 331, 333 (7th Cir. 1995); see Chuidian, 912 F.2d at 1098; Surinam, 974 F.2d at 1260 ; Nolan, 919 F.2d at 1066 .

Co., 55 F.3d 331, 333 (7th Cir.1995); see Chuidian, 912 F.2d at 1098; Surinam, 974 F.2d at 1260 ; Nolan, 919 F.2d at 1066.

See, Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 (9th Cir.1990) (Only the defendant, or his sovereign, and not juridically separate government instrumentalities can waive defendant’s FSIA immunity.). 4 .

See Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 , 1106 (9th Cir.1990); Hilao v. Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir.1994).

See Chuidian, 912 F.2d at 1107 (stating that “[t]he most [plaintiff] can allege is that [defendant] experienced a convergence between his personal interest and his official duty and authority.