Whether conduct-based immunity applies when foreign officials are sued in their personal capacities

QUESTIONS PRESENTED Respondent Darryl Lewis, an American citizen and security contractor, was arrested and detained in the Democratic Republic of the Congo (DRC) on grounds that he was illegally working as a foreign mercenary. Upon his release, he sued two high-ranking DRC officials—the Minister of Justice and the Administrator General of the DRC’s National Intelligence Agency— raising claims under the Torture Victim Protection Act (TVPA). The district court dismissed respondent’s complaint on the basis of conduct-based foreign-official immunity because the conduct alleged in the complaint was undertaken solely in petitioners’ capacities as foreign officials and expressly ratified by the DRC government. The D.C. Circuit reversed, announcing two sweeping holdings in conflict with the law of other circuits and the longstanding position of the Executive Branch. First, the court held that conduct-based immunity does not apply where a plaintiff seeks money damages from foreign officials only in their personal, rather than official, capacities. Second, the court held, in the alternative, that the TVPA impliedly abrogates any conduct-based immunity. The court further explained that its two holdings were independent bases for the court’s jurisdiction over petitioners. The questions presented are: 1. Whether a plaintiff can preclude conduct-based immunity for foreign government officials merely by suing them in their personal capacities. 2. Whether the TVPA abrogates all common-law conduct-based immunity for foreign officials, as the D.C. Circuit held below, or leaves immunity intact, as the Second and Ninth Circuits have held. (I)