 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 6, 2018               Decided March 12, 2019

                         No. 17-7118

                       DARRYL LEWIS,
                        APPELLANT

                              v.

   KALEV MUTOND, IN HIS INDIVIDUAL CAPACITY ONLY,
   ADMINISTRATEUR GENERALE, AGENCE NATIONALE DE
 RENSEIGNEMENTS, DEMOCRATIC REPUBLIC OF THE CONGO
AND ALEXIS TAMBWE MWAMBA, IN HIS INDIVIDUAL CAPACITY
  ONLY, MINISTRE DE LA JUSTICE, GARDE DES SCEAUX ET
 DROITS HUMAINS, DEMOCRATIC REPUBLIC OF THE CONGO,
                      APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:16-cv-01547)


     Merrill C. Godfrey argued the cause and filed the briefs
for appellant.

    Robert N. Weiner argued the cause for appellees. With
him on the brief were Raul R. Herrera, R. Stanton Jones, and
Stephen K. Wirth.

   Before: SRINIVASAN and WILKINS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
                               2
    Opinion for the Court filed by Circuit Judge WILKINS.

    Concurring opinion filed by Circuit Judge SRINIVASAN.

    Opinion concurring in the judgment filed by Senior Circuit
Judge RANDOLPH.

    WILKINS, Circuit Judge: This case involves a lawsuit
brought under the Torture Victim Protection Act of 1991
(“TVPA”), Pub. L. 102–256, 106 Stat. 73 (1992), by an
American citizen who sued two foreign officials from the
Democratic Republic of the Congo (“DRC”) for alleged torture
over a six-week period. Plaintiff seeks compensatory and
punitive damages.

     Defendants moved to dismiss for lack of subject matter
jurisdiction; lack of personal jurisdiction; and insufficient
service of process. The District Court granted the motion to
dismiss, holding the court lacked subject matter jurisdiction
because the defendants are immune under the common law
foreign official immunity doctrine.

     For the reasons set forth below, we conclude that
Defendants are not entitled to foreign official immunity under
the common law. Because such immunity does not apply in
this case, we vacate the ruling of the District Court dismissing
for lack of subject matter jurisdiction and remand for further
proceedings. In the opinion by Senior Judge Randolph, which
is joined in relevant part by Judge Srinivasan, we provide the
alternative holding that the TVPA displaces conduct-based
immunity in this context.

                               I.
                               3
     The following facts are taken from the complaint and
assumed true on review of Defendants’ motion to dismiss.
Scandinavian Satellite Sys., AS v. Prime TV Ltd., 291 F.3d 839,
844 (D.C. Cir. 2002). In April 2016, Plaintiff Darryl Lewis, an
American citizen, was in the DRC working as an “unarmed
security advisor” to Moise Katumbi. J.A. 4. Katumbi, the
former governor of the Katanga Province, was running for
president of the DRC. In his complaint, Plaintiff asserts that,
on April 24, 2016, he was traveling by car with a colleague in
Lubumbashi when he was stopped by a local police officer near
a political rally. Lewis, his colleague, and colleagues in a
separate vehicle were detained by the National Intelligence
Agency, Agence Nationale de Renseignements (“ANR”).
Plaintiff describes being physically assaulted during the arrest
process and being accused of being an American mercenary
soldier, which he denies. Lewis and his colleagues were then
transported to a local jail, where ANR members continued to
assault them during a lengthy interrogation. The following
morning, they were transported by air to Kinshasa, where
Lewis was incarcerated and interrogated daily for six weeks.
Plaintiff alleges that he was interrogated daily by ANR
members for approximately sixteen hours a day and was
intentionally starved and denied sleep and basic hygienic
necessities.

     Plaintiff claims that Defendant Kalev Mutond, General
Administrator of the ANR, was involved in his detention in
Kinshasa, at one point warning him: “Don’t let me find out
you’re a mercenary.” J.A. 7. Plaintiff further claims that
Defendant Alexis Thambwe Mwamba, DRC Minister of
Justice, publicly accused him of being a mercenary sent to
assassinate President Joseph Kabila during a press conference
on May 4, 2016, claiming to have “documented proof.” J.A. 7.
The following day on May 5, 2016, the U.S. Embassy in
Kinshasa allegedly issued a statement condemning the remarks
                                4
concerning Lewis and mercenary activities. Lewis was
released on June 8, 2016, having never been charged with a
crime.

     Plaintiff contends that Defendants are liable under the
TVPA. The TVPA creates an express cause of action against
“[a]n individual who, under actual or apparent authority, or
color of law, of any foreign nation . . . subjects an individual to
torture.’’ 28 U.S.C. § 1350 (note) sec. 2(a). Plaintiff’s
complaint alleges that “Defendants at all times used their
respective positions of authority to act under apparent authority
or color of law of the DRC with respect to the actions alleged
in this complaint.” J.A. 11. Rather than order his release from
custody and protect him from torture, Plaintiff argues,
Defendants enabled the abuses described in the complaint.

     Defendants moved to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil
Procedure, claiming that Plaintiff’s complaint alleges acts
exclusively taken in Defendants’ official capacity. Because
foreign officials enjoy immunity from suits based on official
acts committed in their official capacities, Defendants argued,
the District Court lacked jurisdiction. The District Court
agreed and granted Defendants’ motion to dismiss. Lewis v.
Mutond, 258 F. Supp. 3d 168, 172 (D.D.C. 2017). Plaintiff
timely appealed.

                                II.

This Court reviews de novo the District Court’s dismissal for
lack of subject-matter jurisdiction. Simon v. Republic of
Hungary, 812 F.3d 127, 135 (D.C. Cir. 2016). The defendant
bears the burden of proving foreign official immunity. Cf.
Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40
(D.C. Cir. 2000) (explaining that a foreign state defendant who
                                5
asserts the defense of immunity under the Foreign Sovereign
Immunities Act “bears the burden of proving that the plaintiff's
allegations do not bring its case within a statutory exception to
immunity”).

                                A.

     Because this case involves foreign officials – not foreign
states – the issue of immunity is governed by the common law,
not the Foreign Sovereign Immunities Act (“FSIA”). See
Samantar v. Yousuf, 560 U.S. 305, 325 (2010) (noting that a
case “in which respondents have sued petitioner in his personal
capacity . . . is properly governed by the common law”). The
doctrine of common law foreign immunity distinguishes
between two types of immunity: status-based and conduct-
based immunity. Status-based immunity is reserved for
diplomats and heads of state and attaches “regardless of the
substance of the claim.” Chimène I. Keitner, The Common
Law of Foreign Official Immunity, 14 GREEN BAG 2d 61, 64
(2010); see also Yousuf v. Samantar, 699 F.3d 763, 774 (4th
Cir. 2012). Conduct-based immunity is afforded to “any []
[p]ublic minister, official, or agent of the state with respect to
acts performed in his official capacity if the effect of exercising
jurisdiction would be to enforce a rule of law against the state.”
Restatement (Second) of Foreign Relations Law § 66(f) (1965)
(hereinafter Restatement); see also Matar v. Dichter, 563 F.3d
9, 14 (2d Cir. 2009); Samantar, 699 F.3d at 774.

     As explained by the Supreme Court in Samantar, a two-
step procedure is used to determine whether a foreign official
is entitled to conduct-based foreign sovereign immunity.
Samantar, 560 U.S. at 311-12. At the first step, a foreign
official requests a “suggestion of immunity” from the State
Department and, if granted, the District Court is divested of its
jurisdiction. Id. at 311. If the State Department does not grant
                                 6
a suggestion of immunity, the District Court is authorized to
decide whether all the requisites for foreign-official immunity
exist. Id. at 311-12.

                                B.

     We turn to the two-step procedure outlined in Samantar to
evaluate Defendants’ claim to conduct-based immunity. At
step one, see Samantar, 560 U.S. at 311-12, we conclude that
Defendants are not entitled to immunity. On August 9, 2016,
the DRC Ambassador to the United States sent a letter to the
United States Department of State denying Plaintiff’s
allegations and requesting that the State Department submit a
suggestion of immunity to the court. This request was
reiterated in a December 13, 2016 follow-up letter. However,
the State Department did not accede to the plea of the DRC,
and never issued a request that the District Court surrender its
jurisdiction.

     At step two, we consider whether Defendants satisfy the
requisites for conduct-based immunity. The Supreme Court
has “expressed no view on whether Restatement [2d of Foreign
Relations] § 66 correctly sets out the scope of the common-law
immunity applicable to current or former foreign officials.”
Samantar, 560 U.S. at 321 n.15. Here, however, both parties
assume § 66 accurately sets out the scope of common-law
immunity for current or former officials, see Appellees’ Br. 14
& n.4, and we therefore proceed on that understanding without
deciding the issue. Assuming, as the parties do, that
Restatement § 66 captures the contours of common-law official
immunity, Defendants are not entitled to immunity.

     Under Restatement § 66, the court considers three factors.
First, whether the actor is a public minister, official, or agent of
the foreign state. Restatement § 66(f). Second, whether the
                                7
acts were performed in her official capacity. Id. And third,
whether exercising jurisdiction would serve to enforce a rule of
law against the foreign state. Id. To establish conduct-based
immunity, a defendant must establish all three factors.
Restatement § 66 cmt. b (“Public ministers, officials, or agents
of a state . . . do not have immunity from personal liability even
for acts carried out in their official capacity, unless the effect
of exercising jurisdiction would be to enforce a rule against the
foreign state.” (emphasis added)).

     As a result, to enjoy conduct-based immunity as defined
by the Restatement, Defendants must satisfy the third factor by
proving that exercising jurisdiction in this case is tantamount
to enforcing a rule of law against the DRC itself. See
Restatement § 66(f). Defendants attempt to prove this, in part,
by arguing that “Plaintiff’s suit seeks to hold high-ranking
DRC government officials liable for official conduct carried
out entirely within the DRC.” Appellees’ Br. 30. This position
elides the second and third elements for establishing conduct-
based immunity. The second immunity element focuses on the
nature of Defendant’s acts and whether they were taken within
an “official capacity.” By contrast, the third element considers
whether the remedies sought by Plaintiff serve to enforce a rule
of law against the DRC. That element, as understood through
the lens of the small number of decisions speaking to the
existence and scope of common-law immunity, would allow
for immunity when a judgment against the official would bind
(or be enforceable against) the foreign state. See Beth
Stephens, The Modern Common Law of Foreign Official
Immunity, 79 FORDHAM L. REV. 2669, 2676-78 (2011)
(examining cases).

    This approach is reinforced by the illustrations in the
Restatement commentary. For example, the Restatement
explains:
                                 8

         X, an official of the defense ministry of state A,
         enters into a contract in state B with Y for the
         purchase of supplies for the armed forces of A.
         A disagreement arises under the contract and Y
         brings suit in B against X as an individual,
         seeking to compel him to apply certain funds of
         A in his possession to satisfy obligations of A
         under the contract. X is entitled to the
         immunity of A.

Restatement § 66, cmt. B(2).

     Defendants have not proffered anything to show that
Plaintiff seeks to draw on the DRC’s treasury or force the state
to take specific action, as would be the case if the judgment
were enforceable against the state. Defendants in this case are
being sued in their individual capacities and Plaintiff is not
seeking compensation out of state funds. J.A. 2; see also
Appellant’s Br. 27 (“[T]he monetary liability sought here
against individuals . . . would have no effect on the state
treasury.”). Defendants argue that the effect on the DRC’s
treasury is “irrelevant” because “[e]xercising jurisdiction here
would compel the DRC’s sitting Minister of Justice and
General Director of the National Intelligence Agency to defend
their handling of a high-profile domestic security matter in U.S.
courts.” Appellees’ Br. 32. Taking such foreign officials away
from their official duties in the DRC, Defendants argue, is a
“sufficient sanction to constitute enforcing a rule of law on the
DRC.” Appellees’ Br. 32 (alterations and quotations omitted).
But these collateral effects are too attenuated to be equated with
the direct fiscal impacts on the foreign state that are
contemplated by the Restatement. Cf. Edelman v. Jordan, 415
U.S. 651, 663 (1974) (“[E]ven though a State is not named a
party to the action, . . . [if] the action is in essence one for the
                                9
recovery of money from the state, the state is the real,
substantial party in interest and is entitled to invoke its
sovereign immunity.” (citation omitted)). In cases like this
one, in which the plaintiff pursues an individual-capacity claim
seeking relief against an official in a personal capacity,
exercising jurisdiction does not enforce a rule against the
foreign state. Defendants are thus not entitled to the conduct-
based foreign official immunity. In view of our conclusion that
Defendants have not satisfied the necessary third element of
conduct-based immunity, we need not address Plaintiff’s
arguments relating to the first two elements.

                               III.

     For these reasons, we vacate the District Court’s grant of
Defendant’s motion to dismiss for lack of subject matter
jurisdiction and remand for further proceedings. Defendants
argue that, even if the District Court has subject matter
jurisdiction, this Court should affirm on the basis that the court
lacks personal jurisdiction over them. Defendants claim they
do not have “any connection to the United States, and all of the
conduct at issue is alleged to have occurred entirely within the
DRC.” Appellees’ Br. 33 (citing Mwani v. bin Laden, 417 F.3d
1, 8 (D.C. Cir. 2005)); see also Fed. R. Civ. P. 4(k)(2).
Plaintiff’s memorandum in opposition to Defendants’ motion
to dismiss disagreed but requested jurisdictional discovery if
the court were inclined to agree with Defendants. See Second
Amendment Found. v. U.S. Conference of Mayors, 274 F.3d
521, 525 (D.C. Cir. 2001) (“Certainly, ‘a plaintiff faced with a
motion to dismiss for lack of personal jurisdiction is entitled to
reasonable discovery.’” (quoting El-Fadl v. Cent. Bank of
Jordan, 75 F.3d 668, 676 (D.C. Cir. 1996)) (alterations
omitted)). The District Court neither addressed Defendants’
personal jurisdiction argument nor ruled on Plaintiff’s request
for jurisdictional discovery. Lewis v. Mutond, 258 F. Supp. 3d
                             10
168, 174-75 (D.D.C. 2017). We decline to decide the matter in
the first instance. Accordingly, on remand, the District Court
should consider the question of personal jurisdiction and
whether Plaintiff is entitled to jurisdictional discovery.

                                                  So ordered.
SRINIVASAN, Circuit Judge, concurring:

     I fully join Judge Wilkins’s opinion, which explains that
if, as the parties assume, Restatement (Second) of Foreign
Relations Law § 66(f) sets out the scope of common-law,
conduct-based immunity for foreign officials, the defendants in
this case do not qualify for that immunity. I also agree with the
portion of Judge Randolph’s concurrence in the judgment
explaining that the Torture Victim Protection Act (TVPA)
subjects foreign officials to liability for acts undertaken in an
official capacity and thus displaces any common-law,
conduct-based immunity that might otherwise apply in the
context of claims under that Act. See Concurring Op. 3–4. In
my view, therefore, the defendants in this case do not qualify
for immunity for either of two reasons: (a) as Judge Wilkins
explains, they fall outside the scope of the common-law,
conduct-based immunity contemplated by Restatement § 66(f);
or (b) as Judge Randolph explains, they fall within the scope of
liability contemplated by the TVPA per the allegations in the
complaint.
RANDOLPH, Senior Circuit Judge, concurring in the judgment:

     The court assumes that the immunity of the defendant
foreign officials under the Torture Victims Protection Act turns
on “the common law” and that the Restatement (Second) of
Foreign Relations Law of the United States § 66(f) (1965)1
embodies the governing common law.

     I think both assumptions are dubious. Neither has been
tested in an adversary proceeding.

    Consider first the proposition that, as the court assumes,
Restatement (Second) § 66(f)2 recites the common law. The

     1
      The Restatement (Second) was superseded by the Restatement
(Third) of Foreign Relations Law of the United States (1987). See
Beth Stephens, The Modern Common Law of Foreign Official
Immunity, 79 Fordham L. Rev. 2669, 2678 n.45 (2011). There may
be a plausible but oddly unexplained reason for invoking the older
Restatement version and ignoring the newer. I see no need to get into
this.
     2
       “The immunity of a foreign state under the rule stated in § 65
extends to
     (a) the state itself;
     (b) its head of state and any person designated by him as a
          member of his official party;
     (c) its government or any governmental agency;
     (d) its head of government and any person designated by him as
          a member of his official party;
     (e) its foreign minister and any person designated by him as a
          member of his official party;
     (f) any other public minister, official, or agent of the state with
          respect to acts performed in his official capacity if the effect
          of exercising jurisdiction would be to enforce a rule of law
          against the state;
     (g) a corporation created under its laws and exercising functions
          comparable to those of an agency of the state.”
Restatement (Second) § 66.
                                   2

common law is “the dominant consensus of common-law
jurisdictions.” Field v. Mans, 516 U.S. 59, 70 n.9 (1995).3 This
Restatement is titled “Foreign Relations Law of the United
States,” but it does not pretend to be a statement of “common
law.” Instead it sets forth “rules of international law as
distinguished from the rules of domestic law,” “[e]xcept as
otherwise indicated.” Restatement (Second) § 2(2).4 The
immunity provision of Restatement (Second) § 66(f) contains no
such exception, express or implied.

     Restatement § 66(f) appears to be a distillation of scant case
law in this country, international treaties to which the United
States may or may not be a party, the writings of law professors
here and abroad, negotiated settlements of international disputes,
and other non-judicial sources such as actions of our Department
of State and perhaps comments in meetings of the American
Law Institute. Restatement (Second) § 1, comment c, explains
that the “paucity of adjudicated decisions in the international


     3
       Another definition of the common law, in a highly regarded
posting in the Federal Register, is this: “The common law is a body of
judge-made substantive rules, principles, and prescribed standards of
conduct.”      Federal Trade Commission, Unfair or Deceptive
Advertising and Labeling of Cigarettes in Relation to the Health
Hazards of Smoking, 29 Fed. Reg. 8324, 8365 (July 2, 1964); see also
A. Raymond Randolph, Before Roe v. Wade: Judge Friendly’s Draft
Abortion Opinion, 29 Harv. J.L. & Pub. Pol’y 1035, 1044 (2006)
(“The common law judge analyzes past judicial decisions, considers
the reasons behind the decisions, comes up with a principle to explain
the cases, and then applies that principle to a new case.”).
     4
      “Our duty is to enforce the Constitution, laws, and treaties of the
United States, not to conform the law of the land to norms of
customary international law.” United States v. Yunis, 924 F.2d 1086,
1091 (D.C. Cir. 1991).
                                 3

field has led to greater reliance on non-judicial sources than in
domestic law.” See also Restatement (Second) § 2, cmt. f.

     If Restatement (Second) § 66(f) is not common law, and
does not purport to be, how then does one discover the real
common law? The answer is not obvious. It may well be that
there is not now and never was any common law of immunity
for foreign officials sued in the United States. “The lower courts
will find only minimal guidance from [pre-1976] decisions
involving the common law immunity of foreign officials. Those
cases were ‘few and far between,’ and none addressed claims of
human rights abuses.” Stephens, supra, at 2671 (footnote
omitted) (quoting Samantar v. Yousuf, 560 U.S. 305, 323
(2010)).5

     Even if there were a common law of immunity for foreign
officials and even if the Restatement (Second) § 66(f) stated it,
the question remains: does the Restatement’s version of the
common law control actions such as this arising under the
Torture Victims Protection Act of 1991, 28 U.S.C. § 1350 note?
A foreign official may be immune from suit pursuant to the
Restatement’s § 66(f) only with respect “to acts performed in his
official capacity.” Here the Democratic Republic of the Congo
notified the State Department that the defendants’ alleged torture
actions were “undertaken in their official capacities.”

     That may have satisfied a prerequisite for immunity under
the Restatement, but it also amounted to a confession satisfying


    5
       “The courts will not be able to turn to pre-FSIA common law
decisions and commentary to determine the scope of the modern
common law of official immunity in part because the cases were
sparse, leaving a few guidelines but no substantial body of law.” Id.
at 2702. “Pre-FSIA” means before enactment of the Foreign
Sovereign Immunities Act of 1976.
                                    4

one of the prerequisites for liability under the Torture Act.
Section 2(a) of the Torture Act does away with the Nuremberg
defense, and more. Pursuant to § 2(a) an “individual who, under
actual or apparent authority, or color of law, of any foreign
nation . . . subjects an individual to torture shall, in a civil action,
be liable for damages to that individual.” 28 U.S.C. § 1350 note
§ 2(a)(1). The Torture Act thus imposes liability for actions that
would render the foreign official eligible for immunity under the
Restatement. When there is such a clear conflict between
statutory law and judge-made common law, the common law
must give way. See City of Milwaukee v. Illinois, 451 U.S. 304,
314–15 (1981).6

     I leave to the last a discussion of the Supreme Court’s
decision in Samantar v. Yousuf and our court’s decision in
Manoharan v. Rajapaksa, 711 F.3d 178 (D.C. Cir. 2013) (per
curiam).

       Samantar v. Yousuf interpreted the term “foreign state” in
the following provision of the Foreign Sovereign Immunities
Act (FSIA): “a foreign state shall be immune from the
jurisdiction of the courts of the United States and of the States
. . ..” 28 U.S.C. §1604. The Supreme Court held that “foreign
state” did not include foreign officials. In so holding the Court
did “not resolve the dispute among the parties as to the precise
scope of an official’s immunity at common law.” 560 U.S. at




     6
       “It has often been said that statutes in derogation of the common
law are to be strictly construed. That is a relic of the courts’ historical
hostility to the emergence of statutory law.” Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 318
(2012).
                                5

321.7 Although the plaintiffs sued under the Torture Act, the
Court did not address the conflict between the Torture Act and
Restatement § 66(f).

     As to our decision in Manoharan v. Rajapaksa, the case
involved head-of-state immunity. As the court discusses in this
case, Maj. Op. 5, there are two types of immunity for foreign
officials – status-based, as in Manoharan, and conduct-based, as
in the case before us. Head-of-state immunity and other status-
based immunities are the predominant focus of U.S. case law,
sparse as it is, related to foreign officials. See Yousuf v.
Samantar, 699 F.3d 763, 772 (4th Cir. 2012); Restatement
(Second) § 66, reporter’s note 1. It is well established that when
the executive provided a “suggestion of immunity,” a head of
state would be granted immunity by the courts. See, e.g., Ye v.
Zemin, 383 F.3d 620, 625–27 (7th Cir. 2004). These status-
based immunities also derive from international treaties such as
the Vienna Convention on Diplomatic Relations and United
Nations Convention on Special Missions. Vienna Convention
on Diplomatic Relations, art. 31, Apr. 18, 1961, 23 U.S.T. 3227
(diplomatic immunity); S. Rep. No. 102-249, at 8 (1991) (citing
United Nations Convention on Special Missions, art. 21(1),
adopted Dec. 8, 1969, 1400 U.N.T.S. 231 (entered into force
June 21, 1985)) (head of state immunity). The legislative
history of the Torture Act indicated that these immunities would
survive.      H.R. Rep. No. 102-367, at 5 (1991), 1992
U.S.C.C.A.N. 84, 88 (“[N]othing in the TVPA overrides the
doctrines of diplomatic and head of state immunity.”).

    The conflict between the Torture Act’s basis for liability
and the Restatement’s basis for immunity from liability was


    7
       The Court “express[ed] no view on whether Restatement § 66
correctly sets out the scope of the common-law immunity applicable
to current or former foreign officials.” Id. at 321 n. 15.
                               6

neither briefed nor argued, although it should have been. The
immunity of foreign officials may be a jurisdictional question.
See Belhas v. Ya’alon, 515 F.3d 1279, 1281, 1283 (D.C. Cir.
2008). I agree with the court that if the Restatement did apply,
the defendants were not immune.
