United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 8, 2013 Decided March 29, 2013

No. 12-5087

KASIPPILLAI MANOHARAN, DR., ET AL.,

APPELLANTS

v.

PERCY MAHENDRA RAJAPAKSA,

APPELLEE

UNITED STATES OF AMERICA,

AMICUS CURIAE

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-00235)

Bruce Fein argued the cause and filed the briefs for

appellants. 

Mitchell R. Berger argued the cause for appellee. With him

on the brief was Benjamin D. Wood.

Adam C. Jed, Attorney, U.S. Department of Justice, argued

the cause for amicus curiae United States of America. With him

on the brief were Stuart F. Delery, Acting Assistant Attorney

General, Ronald C. Machen Jr., U.S. Attorney, Mark B. Stern,

Attorney, and Harold Hongju Koh, Legal Adviser, U.S.
2

Department of State. R. Craig Lawrence, Assistant U.S.

Attorney, entered an appearance.

Before: GARLAND, Chief Judge, and BROWN and

KAVANAUGH, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: The plaintiffs have brought civil claims

against the sitting president of Sri Lanka under the Torture

Victim Protection Act (TVPA), 28 U.S.C. § 1350 note. 

Although the defendant maintains that the plaintiffs failed to

serve him with process, he appeared before the district court for

the limited purpose of requesting the United States’ view as to

whether he was immune from suit. The United States

Department of State filed a Suggestion of Immunity in the

district court. Without expressing any opinion regarding the

merits of the plaintiffs’ claims, the State Department

“determined that President Rajapaksa, as the sitting head of a

foreign state, enjoys head of state immunity from the

jurisdiction of U.S. courts in light of his current status.” 

Suggestion of Immunity at 6 (Jan. 13, 2012) (J.A. 47). The

district court then dismissed the plaintiffs’ suit.

On appeal, the plaintiffs urge us to reverse the judgment of

the district court, contending that the sitting president of Sri

Lanka is not immune from civil suit under the TVPA. We

disagree.

As the Supreme Court has held, “[t]he doctrine of foreign

sovereign immunity developed as a matter of common law.” 

Samantar v. Yousuf, 130 S. Ct. 2278, 2284 (2010). In Samantar,

the Court explained that “a two-step procedure developed for

resolving a foreign state’s claim of sovereign immunity,” and

that “the same two-step procedure was typically followed when
3

a foreign official asserted immunity.” Id. at 2284-85. Under the

first step of that procedure, the only one that is relevant here,

“the diplomatic representative of the sovereign could request a

‘suggestion of immunity’ from the State Department,” and “[i]f

the request was granted, the district court surrendered its

jurisdiction.” Id. at 2284; accord Habyarimana v. Kagame, 696

F.3d 1029, 1032-33 (10th Cir. 2012); Matar v. Dichter, 563 F.3d

9, 13-14 (2d Cir. 2009); Ye v. Zemin, 383 F.3d 620, 625-27 (7th

Cir. 2004); Spacil v. Crowe, 489 F.2d 614, 617 (5th Cir. 1974);

cf. Republic of Mexico v. Hoffman, 324 U.S. 30, 36 (1945) (“[I]t

is an accepted rule of substantive law governing the exercise of

the jurisdiction of the courts that they accept and follow the

executive determination that the vessel shall be treated as

immune.”). Here, the defendant did request a suggestion of

immunity, and the United States granted that request by

submitting a suggestion of immunity to the court. Accordingly,

as the district court recognized, it was without jurisdiction, see

Saltany v. Reagan, 886 F.2d 438, 441 (D.C. Cir. 1989), unless

Congress intended the TVPA to supersede the common law.

“The canon of construction that statutes should be

interpreted consistently with the common law helps us interpret

a statute that,” as here, “clearly covers a field formerly governed

by the common law.” Samantar, 130 S. Ct. at 2289. “In order

to abrogate a common-law principle, the statute must ‘speak

directly’ to the question addressed by the common law.” United

States v. Texas, 507 U.S. 529, 534 (1993) (quoting Mobil Oil

Corp. v. Higginbotham, 436 U.S. 618, 625 (1978)). Whether or

not legislative history would be sufficient to satisfy the

requirement of speaking “directly,” the plaintiffs’ view is that

the legislative history of the TVPA is ambiguous on the subject

of head of state immunity. In fact, if anything the legislative

history appears to indicate that Congress expected the common

law of head of state immunity to apply in TVPA suits. See H.R.

REP. NO. 102-367, at 5 (1991) (“[N]othing in the TVPA
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overrides the doctrines of diplomatic and head of state

immunity.”).

This leaves only the language of the TVPA, which the

plaintiffs contend supersedes the common law because it renders

“an individual” liable for damages in a civil action, and a head

of state is “an individual.” But as even the plaintiffs

acknowledge, the term “an individual” cannot be read to cover

every individual; plaintiffs agree that both diplomats and

visiting heads of state retain immunity when they visit the

United States. Oral Arg. Recording at 33:19-34:04. Indeed,

although the most analogous statute, 42 U.S.C. § 1983, provides

a cause of action against “[e]very person” who deprives another

of his or her Constitutional rights under color of state law, id.

(emphasis added), the Court has held that Congress did not

intend that language to abrogate the preexisting common law of

immunity applicable to executive officials. See Malley v.

Briggs, 475 U.S. 335, 339-40 (1986). We likewise conclude that

the common law of head of state immunity survived enactment

of the TVPA. Accord Matar, 563 F.3d at 15; see Devi v.

Rajapaksa, No. 12-4081 (2d Cir. Jan. 30, 2013) (holding that the

defendant, who is the same defendant as in this case, “clearly is

entitled to head-of-state immunity”).

Because, as a consequence of the State Department’s

suggestion of immunity,*

 the defendant is entitled to head of

state immunity under the common law while he remains in

office, and because the TVPA did not abrogate that common law

*

This case does not require us to decide what deference we should

give to the State Department when the Department indicates that a

defendant, whether a sitting head of state or otherwise, should not

receive immunity. Cf. Yousuf v. Samantar, 699 F.3d 763 (4th Cir.

2012).
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immunity, the judgment of the district court dismissing the

plaintiffs’ complaint is 

affirmed.