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 to conduct based immunity the defendants have  is limited by its very nature to a certain category of conduct it can apply only to actions that are shown by those invoking the immunity to be within the scope of their actual legal authority as governmental officials the question for this court is whether it was with within the scope of these defendants actual authority to torture mr lewis the answer to that question is no why why does a question really said we don't care whether the person is acting dearth already because even if they are they're liable anyway that's what the statute says yes that is what the statute says and in fact in the legislative history both the senate and the house noted that in cases just like this one there would be liability what the senate said on page eight of its report was because no state officially condones torture or extra judicial killings few such acts if any would fall under the rubric of official actions taken in the course of an official's duties and that house report also notes that that sovereign immunity would not generally be in available defense the only thing that was reserved was status based unities for heads of state and diplomats so that on on that issue so it certainly makes sense to look at the language that he v a and put for the argument that you're making but if you c the legislative history makes that reference so if one were going to be the legislative history and think that the statute is completely coterminous with the legislative history says i would understand that argument but beyond the legislative history why looking at the statute would we think that individual who would allegedly be involved in torture yes but it's because it's a status yes and that's correct and because it's a status based immunity it's something that is very clearly defined under the common law it's limited to either the head of state or the foreign minister very clearly defined we're talking about a whole broad category of conduct that congress wanted to reach and it's certainly rational for congress to want to reach that except for the extreme case of bringing into court the president or the monarch or the the foreign minister of a foreign country but a city that is sitting in that that that clock that status based community applies to the sitting official mean notwithstanding whether congress and tended to impose live military on a foreign official even if they are acting pursuant to authority  the effect of exercising jurisdiction would be to enforce the rule of law against the state so why isn't the problem here well it has to satisfy both problems of course it has to it has to be within the scope of authority under the second prong which it's not here because there's no actual authority to torture so there's no let's suppose for the sake of my question then did i find convincing and i am willing to defer to the letter from the d r c saying that they're acting with them so you've got to deal with so under the third prong the  question is whether this is effectively an action against the state and in a case where we are seeking only personal liability from the personal assets of these individuals for actions that have  defend or to indemnify i can't change the scope of immunity or good how's life choice if the state is taking the position that these people were performing official acts for us it's not really a choice it's part and parcel of which was a district court case in the circuit which held that because the plaintiff had sought to impose joint and several liability on the state as well as the individuals that the effect of of imposing liability there would be to sue t no but in it's in a circumstance where we're seeking to impose where the plaintiff is the master of his complaint the plaintiff pleads only personal liability against individuals for actions that they took that were outside the scope of their seeks individual i built the against an official rather than official liability against a sovereign that criterion that criterion is not satisfied and so the official can claim immunity not saying that's wrong i'm just saying i want to understand that that's your position and any time it's what we would individual in their individual capacity or not yes that would be satisfied from their individual assets ok yes are you going to say anything of a person you know personally jurisdiction wasn't addressed by the district court it needs to be addressed in the first instance there we we certainly pleaded the basis for personal jurisdictions the basis is that these defendants targeted americans for the purpose of drawing the united states into the conflict with the d r c they that contradicts you can in what way i forget what paragraph it is that you allege that the only reason that your client mr lewis got stop was because of his association with the opposition not because she was an american not because of any impact on the united states but he was stopped and i write about that and that's my own that's why he was being infiltrated by the united states through mercenaries and that drew a response from the state department so this was intended to draw the united states into conflict which is that it's like it's in paragraph thirty here believe it's thirty five of the complaint  paragraph thirty five tom way asserted the six hundred united states citizens had entered the d r c in the preceding six months and in paragraph thirty seven tom way was trying to create a yesterday and often and you're right that's that's what the that's what the the complaint alleges were guarding why they were detained but the the continued detention and the torture were for the purpose of kind of causing harm in the united states but i don't know about that because i don't know that falls right that's that's the question because i i do understand of the complaint has allegations in it about the american citizenship of the plaintiffs and the the ory behind the claims i understand it is that the point that was sought to be made by the the regime was that these were american mercenaries and american mercenaries brought in to try to destabilize c but that doesn't necessarily mean that it's intends to visit consequences he the united states it's just that these are american mercenaries who are coming in to destabilize things that are going on here well to be clear we sought jurisdiction of this covering the district court that hasn't been ruled on if the allegations were were if in reviewing this that the district court found the allegations wanting we would seek leave to amend and under rule one even lad the test really is whether residents of the forum whether the whether the defendants directed direction beauty's purposefully at residents of the forum and here that now i think that that's you know that we said that but i think that sufficient that the defendant directed your content to the record or actions and a person and knowing that they were resident of the foreign state or even because limit set language and well still in it in this situation where the word americans are singled out for torture for purposes of drawing the united states state department into conflict with  c for purposes of of of causing effects in the united states that's that's that still satisfies that language in fiore did the district court simply not rule on your request for jurisdictional discovery were the district court denied a request it did not rule they didn't address personal jurisdiction at all which is which is why what we're asking the court to do is to reverse on the issue of immunity and remand to the district court which would th that's not sufficient to stop which personal jurors right now i understood price to say that simply because someone was an american wasn't enough but that it didn't because it didn't involve facts where americans were singled out and tortured specifically i want to get you through your is your theory that your client was tortured order to get a confession that he was a mercenary and the effect of getting that confession was to or the purpose of getting a can of pressure on the state department to do what it was to put pressure it was to implicate the united states is trying to overthrow the current thought you were where you were going is to put pressure on the state department to not issue pieces to individuals who might or might not or may act as bodyguards immune under official immunity and the second is that there is no personal jersey jurisdiction since the court last focused on personal jurisdiction let me start there there are no allegations that there are intended effects in the united states there are only allegations that there were americans who who were singled out and those allegations are in information and belief says mr lewis and other americans were singled out because they were married not because the united states did it but because they were americans and it doesn't and then if i the other americans it's not information and belief and there is nothing about what they were supposed to have done so can a has to go to just on in terms of our purview to dispose of a case on this basis given that the district court as i recall specifically said it wasn't alternative grounds of course there's always that authority but you know the situation in which an analogous situation in which an appellate court a find on a personal jurisdiction even though there was a pending motion for that wasn't resolved or were first brought her don't be allegations in the complaint where discovery would be appropriate and that discovery would not be just speculative got discovery would lead to or possibly lead to a determination on morning where there were intended effects in the united states there are terrorist activities that were and that were overseas but they're intended to have an impact in the united states to sow terror in the united states here it's obvious from the complaint that what was going on is an election in the d r c and that they were trying to say that there was a mercenary plot with americans and south to to the least get some jurisdictional discovery there would have to be allegations regarding intended effects in the united states it is a geographic notion not just a citizenship notion that and that's what  that the reason that there was a targeted extradition killing extrajudicial killing of an american is at least in part to do harm americans from coming that would be enough i think that i'm not sure that would be enough because i have to the term merican from coming is not necessarily a an effort to have an effect in the united states it might be but i don't understand how what's stopping short of having an effect in the united states if what you're saying is anybody in the united states me people over there in the united states listen to me i don't want you to come here if that's what the allegation was and it was designed to have an effect in the united states they would have an louis and that was because there was an election and they were on edge to be parting us merchant mercenaries not the u s government district to make the presidential candidate and there's a reference to the state department but i don't understand why it has to be a focus on the u s government because the hypothetical in which there's an effect on u s citizens because the claim is we don't want to americans coming here i don't care for the government program maybe the government doesn't want you to united states government doesn't want you to come either but i don't want people coming here from america who was already you know terms of people really not anxious to go visit the congo i knew the ambassador and he said come visit me  allege so far was in say the way yes i just i'm just trying to tease out the limitations because suppose the allegation was there was a campaign to torture anybody who came here from america that's what the allegation is in order to deter merican from coming to that country and it is it is i'm i'm buying into your notion now in saying that the complaint doesn't spell that out it just says the policy of the d r c was to torture anyone here who is from america i think under the terms of the price decision that would not that would not be enough but it might be enough under the circumstances to justify some discovery ok but with regard to the allegation about the state department response when you look at that response and there's a link to it in the un and in and in fact when mr lewis as the letter from the ambassador here was when mr lewis was released the united states thanked the york city for allowing consular visits and so i don't think there was any demonstrated opposition here and any effort to implicate the united states so i think that doesn't hit any of the thing any of the milestones jurisdiction and then we have the second ground here which is immunity now the plaintiff sued these individuals the attorney general essentially and the director of national intelligence and he sued them reportedly in their personal capacity or personal capacity suit is one where the individual is alleged to be acting beyond the because they are not acting on behalf of the state but for their personal gain no warrant where they're acting on behalf of the state but the allegation is the state didn't have authority to do the things that they did and against say yes so let's just assume for present purposes we're past the official last part and we're on to this part i know there's arguments on the other part too but let's just a super present purpose of this question to her past that as the as the best part of it which is the argument about official acts which is to say that as long as these individuals were engaged in official acts then by nature the ruling would seek a rule of forcible against say i think that's so you're out of it on to the state department and and suggesting of immunity after suggestion or merely says that these kind of actions enforce a rule of law and the problem with the plaintiffs argument is  the problem with your argument or who are potential achilles heel for your argument because restatement section six talks about you know how we define enforcing  extra tort tally extra toward in another country i can say that your in forcing a rule of law but restatement section sixty six as in forcing a rule of law against the state in then illustration number three in the comments in giving in the example when that happens gives an example where there's a suit against someone in the foreign state where they are requesting damages against the individual that will be paid by the state so it's not just that the individual in the foreign state is being sued but that he is going or she is going to have to satisfy the damages necessarily with funds from that state so restatements sixty six as the words against the state those words have to have some meaning they have to do some work in so those suggestions of immunity i don't think help you because they are directed at the restatement section six issues of whether you're just enforcing a rule of law in another state you see what i'm saying yes your honor i think you have to take a practical view and a practical view is that when instead of the government and that would be the end of the immunity it can't mean that and it was so that that would be the case necessarily because any time the state department comes and you know they're being well you if you take the position that the state department coming in is is not determinative yes but actually that doesn't relate to the the degree to which this is this if it doesn't relate to the interpretation of to keep in mind where you're going but the talk about the state department triggers a question that came to me when i was preparing this case and that is that is there a particular procedure for involving the state department in a litigation is or is it simply sufficient if the ambassador to the congo writes a letter is the house and you know what goes on here in terms of the state department's involv could ask for the while as to that's where i was going i mean it that it's common for the supreme court to invite the views of the solicitor general and since the state department's views here could be conclusive why should the court invite the state department  wear i think that's within the courts discretion that's what the court case with the district court did and much harder says dichter here and the second circuit so they could do that but based on based on your experience in this area i take it that the state department knows that it can do that and yes in certain situations the state department when it's elicited to do it by a letter of the kindness at issue here the state department of housing and interest and usually i think we would infer something from the district or this no your honor because we did talk to the state department on that issue in the state department told us that their practice is not to intervene or not to speak and the district court cases in most cases where the other defenses have a shot at at getting rid of the case in other words they thought we were going to win they wouldn't come in and that's they didn't say those words your hon the role that governs and this area in terms of just their criteria on the restatement so it can't be that where we're talking about official asked that it's necessarily case in which there criterion is met such that it involves a rule in force against the state function of state and it's not something where the state would find it necessary or appropriate to step forward and take responsibility and ownership of the act where you have something where you have something that's in the official capacity the person was driving at work or to work or from work or doing errands under those circumstances you could have as you could have  but but isn't it the example doesn't explicitly say that they were driving in had the accident while they're performing their official duties yes but under those circumstances the restatements says it wouldn't be enforcing a rule of law and that's because it's not something that is and the expert here is that this goes to high government officials in court government functions are ratified by the government which would favor your colleagues position another argument is no something about it actually what was going on that was going on is it was just driving and although it was driving in the scope of one's official duties that's not a core official duty because driving is something that everybody does all the time and it's not intimately bound up with the exercise of sovereign progressives and we just don't know which one of those that live in principle write i think it's not clear from the restatement but i think that to say that it doesn't mean that damages against an individual employee don't matter well first of all we have all the cases like triple that say the damages damages are a way of enforcing polic issue is is it enforcing policy when it's against the employee instead of the state and as a practical matter you're going to true in forty days if importing knows that they take a particular act on behalf of the state they face mistake to read the restatement as if it's a code and to draw any kind of inferences out of cases that are so far different than the situation that we have here  maybe in iraq i just don't know that there's much so called common law about immunity of foreign officials that has any bearing on on the particular circumstances of this case it was a come from  says because before there was the office i e the state department was making these determined if they were common law cases whether they bring or said they might have been but they weren't there wasn't a statute at that point so they were just making is that we're supposed to give if there's explicit intent of congress that we can divine from the text of the statute even if it kind of overrides international law warms we give effect to the intent of the statute because congress you know in their wisdom in promulgated a statute that violates international law they want to it's not like you know the constitution where we would strike that statute down if it violates international law and contents what congress wanted to do we give effect to the intent of the statute here congress explicitly said th if the person is acting under authority either actual or apparent and they commit torture there's liability so i don't see how we square congress's intent with your argument that will if we adjudicate here in make some sort of finding that this you know official act was torture when the r say says it wasn't we are somehow doing something wrong here you know of to essentially having some sort of improper effect against the state well that's the effect that congress explicitly one of us to have was to say if it's torture we don't care whether it's authorized we'll care fits your policy we're going to hold you liable for because there's actually significant part to the t v business the recognition isn't the reconciliation with them unity law the that a civic phrase enforcing the rule of law against the state isn't that there the reconciliation honor what the state department and there's a suggestion in addition and some of the are that where the state department doesn't come in and courts should look to the position for the state department is taken and the state department here has been very clear  that this third prong was a difference between the fs i had the common law and that was a reason why the foreign official immunity was still governed by the common law and then later in the opinion the supreme court emphasized that in this case respondents have sued petitioner in his personal capacity and seek damages from his own pockets and that as a result it was properly governed by the common so this is clearly a significant problem in the supreme court view although it didn't apply it directly in the senate what's your response to your colleagues argument that if all the third prong means is that a plaintiff in style has complained as one involving individual capacity and that effectively does away with  well there's all sorts of situations where that won't be true you have to satisfy all satisfy call in one way so you have to have a substantial case you have to be able to handle that that has to be treated for official capacity so that's not drawing the held that an entire category of violations of programs violations were subject to liability and that hasn't opened the floodgates and so it's not as easy as just naming an individual official you have to actually be able  so i guess the question would be in any case they can get past the pleadings if it were an official capacity tace isn't it true that simply by restyling it as an individual capacity case which is to say the plaintiff makes the choice i don't think that there's a i don't think you can say categorically that somebody couldn't articulate why in a particular circumstance a foreign official may if he has to provide personal liability in a particular circumstance why