OPINION

GEORGE B. DANIELS, District Judge.

In this vast multi-district litigation, Plaintiffs allege that hundreds of defendants sponsored and aided the terrorist attacks on September 11, 2001 by knowingly and intentionally providing financial and other material support to Osama bin Laden, al Qaeda, and its affiliated terrorist organizations. One of the defendants, Dr. Abdul Rahman Al-Swailem ("Al-Swailem"), is the former President of both the Saudi Joint Relief Committee ("SJRC") and the Saudi Red Crescent Society ("SRC"), two instrumentalities of the Saudi government that are immune from suit under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602 et seq. Plaintiffs allege that Al-Swailem used his authority over the SJRC and the SRC to deliver material support and resources to al Qaeda. Al-Swailem moved to dismiss for lack of subject matter jurisdiction, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3), on the grounds that he is entitled to common law sovereign immunity. (Motion to Dismiss, (ECF No. 2773).) For the reasons set forth below, Al-Swailem's motion to dismiss is GRANTED.

BACKGROUND

Al-Swailem is one of nine1 "Charity Official defendants" who "allegedly controlled and managed purported charitable organizations that provided support and funding to al Qaeda" in the years prior to the September 11, 2001 terrorist attacks. In re Terrorist Attacks on Sept. 11, 2001 (Asat Trust Reg., et al.), 714 F.3d 659, 666 (2d Cir.2013) ("Terrorist Attacks (Asat Trust Reg., et al.)"). In 1998 and 1999, respectively, Al-Swailem was appointed by the King of Saudi Arabia, Fahd bin Abdulaziz, to serve as President of the SRC and the SJRC. Al-Swailem led both organizations until 2005.2 Al-Swailem is among the Charity Official defendants who allegedly:

Id. at 667 (citations and internal quotation marks omitted). Al-Swailem argues that Plaintiffs only allege one act that could be construed as providing material support to al Qaeda: "[A]s head of the SRC, al Swailem was responsible for the decision to appoint [Wa'el] Julaidan as a Director of the SJRC, thus placing a prominent and known al Qaida figure in a position of authority within his charity." (Am. RICO Statement, (ECF No. 2784-1), Ex. 1 at 11.) "[A]ccepting all material facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiff[s'] favor," Liranzo v. United States, 690 F.3d 78, 84 (2d Cir.2012), this Court relies on the allegations against Al-Swailem in the Complaint and as characterized by the Second Circuit in Terrorist Attacks (Asat Trust Reg., et al.). (See Oral Arg. Tr. 56:19-20 (Apr. 24, 2014) (Plaintiffs' counsel stated that "the way that the Second Circuit characterized [the allegations] is, in fact, the law of the case").)

On June 17, 2010, this Court dismissed Al-Swailem, the SJRC, and the SRC from this case — Al-Swailem on personal jurisdiction grounds, and the SJRC and the SRC on sovereign immunity grounds. See In re Terrorist Attacks on September 11, 2001, 718 F.Supp.2d 456, 467 n. 4, 476 (S.D.N.Y.2010) ("In re Terrorist Attacks IV"). The decision dismissing Al-Swailem did not address the merits of Al-Swailem's common law sovereign immunity defense due to his dismissal on personal jurisdiction grounds. See id. at 467.

On April 16, 2013, the Second Circuit vacated this Court's judgment insofar as it dismissed Plaintiffs' claims against the Charity Official defendants, including Al-Swailem, and other defendants, and remanded the case as to those claims only for "prompt commencement of a course of judicially-supervised jurisdictional discovery." Terrorist Attacks (Asat Trust Reg., et al.), 714 F.3d at 666, 682. Personal jurisdiction discovery has since been ongoing under the guidance of Magistrate Judge Frank Maas.

In a separate opinion, also issued April 16, 2013, the Second Circuit upheld the dismissal of the SJRC and the SRC because the defendants qualify as instrumentalities of a foreign sovereign, and Plaintiffs did not meet their burden of showing that an exception to the FSIA applies. In re Terrorist Attacks on September 11, 2001 (Saudi Joint Relief Committee, et al.), 714 F.3d 109, 114, 118 (2d Cir.2013) ("Terrorist Attacks (SJRC)") ("[T]he noncommercial tort exception to the immunity from suit conferred by the Foreign Sovereign Immunities Act does not apply in these circumstances pursuant to the so-called `entire tort' rule, and thus, we lack jurisdiction to consider plaintiffs' claims against the SJRC and the SRC.").

On August 29, 2013, Al-Swailem again moved this Court for dismissal on the grounds that he is entitled to common law sovereign immunity. He argues that he is immune from suit because the Saudi government has asserted immunity on his behalf,3 and Plaintiffs' allegations are based entirely on official acts that he took in his official capacity as head of the SJRC and the SRC — two instrumentalities of Saudi Arabia that are themselves immune from suit.4

Plaintiffs argue that (1) the motion is not properly before this Court because Saudi Arabia has not requested a suggestion of immunity from the State Department; (2) sovereign immunity is not available to the former head of charitable organizations that engage in activities commonly performed by private entities; and (3) the allegations against Al-Swailem relate to illegal conduct that is not protected by the immunity doctrine.5

MOTION TO DISMISS

I. LEGAL STANDARD

Foreign sovereign immunity is a question of subject matter jurisdiction. See, e.g., Rosenberg v. Pasha, 577 Fed. Appx. 22, 23 (2d Cir.2014). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (citing Fed.R.Civ.P. 12(b)(1)). On a motion to dismiss pursuant to Rule 12(b)(1), "[a] plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Rosenberg, 577 Fed. Appx. at 23 (citing Makarova, 201 F.3d at 113).

In Samantar v. Yousuf, the Supreme Court held that the FSIA does not apply to individual officials of a foreign state. 560 U.S. 305, 322-24, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010). However, "[e]ven if a suit is not governed by the Act," as is the case here, "it may still be barred by foreign sovereign immunity under the common law." Id. at 324, 130 S.Ct. 2278.

Under the common law, a "two-step procedure [is] typically followed when a foreign official assert[s] immunity." Id. at 312, 130 S.Ct. 2278. First, "the diplomatic representative of the sovereign c[an] request a `suggestion of immunity' from the State Department." Id. at 311, 130 S.Ct. 2278 (citation omitted). If the State Department grants the request, "the district court surrender[s] its jurisdiction." Id. Second, "`in the absence of recognition of the immunity by the Department of State,' a district court `ha[s] authority to decide for itself whether all the requisites for such immunity exist[].'" Id. (quoting Ex parte Republic of Peru, 318 U.S. 578, 587, 63 S.Ct. 793, 87 L.Ed. 1014 (1943)). "In making that decision, a district court inquire[s] `whether the ground of immunity is one which it is the established policy of the [State Department] to recognize.'"6 Id. at 312, 130 S.Ct. 2278 (alterations in original) (quoting Republic of Mexico v. Hoffman, 324 U.S. 30, 36, 65 S.Ct. 530, 89 L.Ed. 729 (1945)).

The common law distinguishes between two types of immunity: (1) "status-based" immunity that is awarded to sitting heads-of-state and (2) "conduct-based" immunity that is awarded to individuals acting on behalf of a sovereign government. See Moriah v. Bank of China, Ltd., 107 F.Supp.3d 272, 277, No. 12 Civ. 1594(SAS), 2015 WL 631381, at *3 (S.D.N.Y. Feb. 13, 2015); see also Sikhs for Justice v. Singh, 64 F.Supp.3d 190, 193 (D.D.C.2014) (citations and internal quotation marks omitted) ("Status-based immunities enable certain incumbent foreign officials to perform their duties unencumbered by legal proceedings. Conduct-based immunities shield individuals from legal consequences for acts performed on behalf of the state during their tenure in office."); Matar v. Dichter, 563 F.3d 9, 14 (2d Cir.2009) (quoting Restatement (Second) of Foreign Relations Law of the United States § 66(f) (1965)) ("At the time the FSIA was enacted, the common law of foreign sovereign immunity recognized an individual official's entitlement to immunity for `acts performed in his official capacity.'"). Al-Swailem contends that he is entitled to conduct-based immunity.

II. EXECUTIVE BRANCH IMMUNITY DETERMINATION

Plaintiffs argue that Al-Swailem's motion to dismiss is not properly before this Court because Saudi Arabia has not requested a suggestion of immunity from the State Department. Plaintiffs rely on a footnote to the Statement of Interest and Suggestion of Immunity that the State Department submitted in Rosenberg v. Lashkar-e-Taiba, 980 F.Supp.2d 336 (E.D.N.Y. 2013), (the "Rosenberg Statement") to argue that Saudi Arabia must petition the Executive Branch before seeking immunity for Al-Swailem directly from this Court.

Rosenberg, No. 10-cv-5381-DLI-CLP, ECF No. 35, at *9-10 n. 5 (S.D.N.Y. Dec. 17, 2012).

District courts are empowered to determine common law sovereign immunity without input from the Executive Branch.7 See Hoffman, 324 U.S. at 34-35, 65 S.Ct. 530 ("In the absence of recognition of the claimed immunity by the political branch of the government, the courts may decide for themselves whether all the requisites of immunity exist."); Heaney v. Gov't of Spain, 445 F.2d 501, 503 n. 2, 506 n. 5 (2d Cir.1971) (deciding the issue of immunity after the court "invited the State Department to submit its views on the questions presented by th[e] case," and "[t]he Department [did] not even acknowledge [the court's] letter"); Victory Transp. Inc. v. Comisaria Gen. de Abastecimientos y Transportes, 336 F.2d 354, 358 (2d Cir. 1964) (citation omitted) ("[T]he accredited and recognized representative of the foreign sovereign may present the claim of sovereign immunity directly to the court."); Moriah, 107 F.Supp.3d at 278, 2015 WL 631381, at *3 (quoting Samantar, 560 U.S. at 312, 130 S.Ct. 2278) (explaining that because "[t]here is no indication that [the former official] or the State of Israel requested a Suggestion of Immunity from the State Department," the court "must determine `whether the ground of immunity is one which it is the established policy of the State Department to recognize'"); Rishikof v. Mortada, 70 F.Supp.3d 8, 12 (D.D.C.2014) (quoting Samantar, 560 U.S. at 311, 130 S.Ct. 2278) ("Here, there is no indication that [defendant] or the Swiss Confederation requested a suggestion of immunity from the State Department. Accordingly, this Court must determine whether `all the requisites for immunity exist.'").

Neither Al-Swailem nor Saudi Arabia has sought a suggestion of immunity from the State Department, and the Executive Branch has not indicated a desire to weigh in.8 Therefore, this Court "must decide for itself whether it is the established policy of the State Department to recognize claims of immunity of this type." See Victory Transp. Inc., 336 F.2d at 359 (citing Hoffman, 324 U.S. at 36, 65 S.Ct. 530).

III. JUDICIAL BRANCH IMMUNITY DETERMINATION

A. Conduct-Based Immunity

The Second Circuit has determined that the SJRC and the SRC are instrumentalities of Saudi Arabia entitled to immunity under the FSIA. Terrorist Attacks (SJRC), 714 F.3d at 118. Therefore, the immunity enjoyed by the government of Saudi Arabia and its officials extends to the SJRC and the SRC under the FSIA, and to Al-Swailem under the common law for "acts performed in his official capacity." Matar, 563 F.3d at 14 (quoting Restatement (Second) of Foreign Relations Law of the United States § 66(f) (1965)).

Al-Swailem argues that he is covered by conduct-based immunity because the government of Saudi Arabia has declared that all actions he took as President of the SJRC and the SRC were official, and all of Plaintiffs' allegations relate to acts he took in that official capacity. The Saudi Ambassador to the United States, H.E. Adel A. Al-Jubeir, submitted a declaration to this Court, which states that his "Government respectfully requests this Court grant the motion to dismiss." (See Declaration of H.E. Adel A. Al-Jubeir, (ECF No. 2773, Exhibit 4), at ¶ 2.) Al-Jubeir explains the history and purpose of the SJRC and the SRC, (see id. ¶¶ 4-6),9 and declares that "[t]he [SRC] and the SJRC have played and continue to play a crucial role in fulfilling core governmental functions with direct political, social, and foreign-policy implications." (Id. ¶ 7.) He concludes by stating: "I have been advised that the claims against Dr. Al-Swailem in this litigation are based on his roles as head of the [SRC] and the SJRC. In those capacities. Dr. Al-Swailem acted at all relevant times as an official of the Saudi government." (Id. ¶ 8.)

"[T]o determine the scope of a foreign official's immunity, the relevant inquiry focuses on the official's acts, and not the official's status." Moriah, 107 F.Supp.3d at 277, 2015 WL 631381, at *3. Al-Swailem is entitled to immunity because he performed the alleged actions — namely, directing the disbursement of funds and hiring Julaidan — in his official capacity as President of the SRC and the SJRC. Plaintiffs' allegations against Al-Swailem only relate to decisions and actions he took as the director of the two Saudi instrumentalities.10 Plaintiffs allege that Al-Swailem, through the SJRC and the SRC, gave material support to al Qaeda.

Affording Al-Swailem common law sovereign immunity is consistent with State Department policy. The State Department has consistently recommended conduct-based sovereign immunity when (1) the foreign state requests it,11 and (2) the defendant acted in his official capacity on behalf of a recognized foreign government. See Doe v. De Leon, 555 Fed.Appx. 84, 85 (2d Cir.2014);12 Rosenberg, 980 F.Supp.2d at 339 (citing Rosenberg Statement, at *2-11); Matar v. Dichter, 500 F.Supp.2d 284, 287 (S.D.N.Y.2007).13

In Rosenberg, for example, the State Department recommended immunity for two former directors of the Inter-Services Intelligence Directorate of the Islamic Republic of Pakistan ("ISI"), who allegedly "provided critical planning, material support, control and coordination" to the 2008 Mumbai terrorists. See Rosenberg, 980 F.Supp.2d at 339. "Plaintiffs contend[ed] that [the former officials] ... individually engaged in orchestrating the Mumbai attacks and ... [were] independently liable for acts of murder, torture and terrorism, classic violations of jus cogens norms." Id. at 339-40 (internal quotation marks omitted). The State Department recommended immunity because "[t]he complaint contain[ed] largely unspecific and conclusory allegations" and "[o]n their face, acts of defendant foreign officials who are sued for exercising the powers of their office are treated as acts taken in an official capacity, and plaintiffs have provided no reason to question that determination." Rosenberg Statement, at *10-11. On appeal, the Second Circuit upheld the dismissal because the State Department's determination was controlling and "[a] claim premised on the violation of jus cogens does not withstand foreign sovereign immunity." 577 Fed.Appx. at 23 (alteration in original) (quoting Matar, 563 F.3d at 15).

Here, the Saudi government, through its Ambassador, has requested that this Court grant common law sovereign immunity to Al-Swailem, and has declared that all alleged actions were taken by Al-Swailem in his official capacity as head of the SRC and the SJRC. The conclusory allegations in the complaint do not strip Al-Swailem of conduct-based immunity for actions taken in his official capacity. The only non-conclusory allegation, regarding Al-Swailem's hiring decision, is an action taken in his official — not his personal-capacity. Thus, Al-Swailem is entitled to common law, conduct-based sovereign immunity.

B. Unlawful Conduct

Finally, Plaintiffs argue that Al-Swailem's actions as President of the SJRC and the SRC are not subject to immunity because his conduct violated international and U.S. law. Such an assertion is merely an artful way of implicating the jus cogens doctrine, which is not recognized by the Second Circuit as an exception to common law sovereign immunity. See id. A jus cogens argument asserts that a foreign official is not entitled to immunity for acts that violate "`norm[s] accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm or general international law having the same character.'" Rosenberg, 577 Fed.Appx. at 23 (alteration in original) (quoting Belhas v. Ya'alon, 515 F.3d 1279, 1286 (D.C.Cir.2008)). The Second Circuit does not recognize such a limitation to a foreign official's right to immunity from suit in U.S. courts where, as here, that official acted in his official capacity.

CONCLUSION

Dr. Abdul Rahman Al-Swailem is entitled to common law sovereign immunity for his official acts as President of the SJRC and the SRC. Therefore, this Court lacks subject matter jurisdiction over Plaintiffs' claims against him, and Al-Swailem's motion to dismiss is GRANTED pursuant to Federal Rule of Civil Procedure 12(h)(3).

The Clerk of Court is directed to close the motion at ECF No. 2773.

SO ORDERED.