2007 International Law Update, Volume 13, Number 7 (July)
Legal Analyses published by Mike Meier,
Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com.
CHILD ABDUCTION
Tenth Circuit rules that it cannot order child to be
returned to U.S. under Hague Convention on Child Abduction (1) where Respondent
took child from U.K. to U.S. in violation of English custody order, and (2)
where new English custody order limiting Respondent’s custody rights prevents
U.S. courts from granting relief
Bina Shahani (Respondent) and John Navani (Petitioner) were
married in England in 1995. They had one son in 1996 named Jivan. After the
marriage ended in divorce nine years later, an English family court gave
primary custody to Respondent and visitation rights to Petitioner. Pursuant to
Respondent’s written request, Petitioner consented that Respondent take Jivan
to the U.S. for a trip.
Respondent, however, did not return to England. Petitioner
next filed a proceeding under the Hague Convention on the Civil Aspects of
International Child Abduction [Oct. 25, 1980, T.I.A.S. No. 11,670, 1343
U.N.T.S. 49] in federal district court in New Mexico. The Court ordered Jivan
returned to England. Thereafter an English court gave Petitioner primary
custody of Jivan and limited Respondent’s access to the child. Respondent filed
an appeal in the U.S. Court of Appeals for the Tenth Circuit. Petitioner’s
motion to dismiss this appeal as moot is granted and this appeal is dismissed.
“The Hague Convention seeks to deter parents who are
dissatisfied with current custodial arrangements from abducting their children
and seeking a more favorable custodial ruling in another country. [Cite].
Generally, it creates an international legal mechanism requiring contracting
states to promptly return children who have been wrongfully removed to, or
wrongfully retained in, their jurisdiction, without deciding anew the issue of
custody.
[Cite].” [Slip op. 2]
The Circuit Court first turns to the issue of Petitioner’s
motion to dismiss the appeal on mootness grounds. “In the event that we would
conclude that the district court erred in granting Petitioner’s Hague
Convention petition and in ordering Jivan’s return to England, Petitioner
argues that the new custody order nonetheless precludes us from granting
Respondent any effectual relief and therefore moots her appeal ... in two
ways.”
“First, the English family court concluded in the new
custody order that Respondent wrongfully retained Jivan in the U.S. in
violation of Petitioner’s rights of custody. Petitioner contends that the
English family court’s ruling on wrongful retention settles the issue that
Respondent raises in this appeal: whether Petitioner had rights of custody over
Jivan sufficient to trigger the Hague Convention’s mandatory return remedy.”
“Second, Petitioner argues that Jivan cannot be ordered to
return to Respondent’s custody because the English family court has determined
that custody should now be with Petitioner, not Respondent.”
“We agree with Petitioner ... If we conclude that the
district court should not have ordered Jivan’s return to England because
Petitioner failed to make his threshold showing that he possesses rights of
custody over Jivan, the only way to remedy the error would be to order Jivan’s
return to the U.S. to be reunited with Petitioner.”
“Yet the new custody order ... forbids Respondent from
removing Jivan from his father’s care and the jurisdiction of the English
family court.” [Slip op. 7]
“Although the Full Faith and Credit Clause does not require
us to recognize judgments, such as the new custody order, which are rendered in
foreign countries, [cite], the new custody order should be given effect in
American courts for two reasons. First, general principles of comity normally
counsel giving ‘considerable deference’ to a foreign judgment.”
“Second, and more fundamentally, factors unique to the Hague
Convention suggest that the English family court should be given the final
word, through the new custody order, in this matter¼ The Hague Convention
attempts to prevent an international version of forum shopping. ... [Cites].”
[Slip op. 8]
“Neither party disputes that England is Jivan’s country of
habitual residence. [Cites]. As a result, the English family court had, and
continues to have, plenary jurisdiction over Jivan’s custody.” [Slip op. 9]
“¼Granting
Respondent the relief she seeks would create the evil that the Hague Convention
was intended to prevent: dueling custody orders issued by separate national
courts.” [Slip op. 10]
The Court next addresses Respondent’s arguments. “First, she
contends that the issue in her appeal remains whether Respondent breached
Petitioner’s rights of custody under the original custody¼the
fact remains that we cannot grant her any effectual relief, even if we decided
the issue in her favor¼”
“Second, Respondent asserts that the new custody order
violates principles of English family law in determining that Petitioner had
equal rights of custody at the time of the allegedly wrongful retention.” The
Circuit Court, however, holds that “the only way for us to remedy the error
would be to hold that the English family court incorrectly interpreted its own
law in deciding custody. The Hague Convention explicitly forbids us, however,
from determining the merits of custody.” [Slip op. 11]
“Third, Respondent suggests that the new custody order
should have no effect in American courts because it was issued ex parte without
her participation. [Cite]. It is true that principles of comity generally
require us to examine the fairness of the foreign country’s judicial procedures
¼
[a]lthough Respondent wishes to leave us with the impression that the English
family court is a renegade body that routinely issues orders without hearing
from both sides, Respondent’s affidavit makes clear that Respondent’s failure
to participate in the English family court proceedings was her choice, not the
result of the inherent unfairness of the English judicial system.” [Slip op.
12]
“Fourth and finally, Respondent asserts that this appeal is
analogous to [cases] in which the Third and Fourth Circuits concluded that an
appeal of an order granting a Hague Convention petition is not mooted by the
child’s return to his country of habitual residence during the pendency of the
appeal. ... [T]he Fourth Circuit explained that it retained the power to grant
meaningful relief because the district court could order the child’s return to
the U.S. following a reversal and remand.”
“Furthermore, it noted (because the case involved Scottish
law) that the courts of the UK are required by statute to recognize another
contracting state’s Hague Convention orders ‑‑ meaning that if a federal court
of appeals reversed a district court’s granting of a return petition, the
courts of the UK would recognize that reversal and provide for the child’s
return to the U. S.” [Slip op 12‑13]
Citation: Navani v. Shahani, 2007 WL 2171355 (10th
Cir. 2007).
COPYRIGHTS
In litigation over whether representatives of U.K. estate
of deceased American guitarist Jimi Hendrix are entitled to poshumous royalties
from sale of CDs of his live performances in Sweden and U.S. before effective
date of Copyright Designs and Patents Act of 1988, as amended, English Court of
Appeal (Civil Division) rules in favor of Hendrix’s estate
The Copyright Designs and Patents Act of 1988 (CDPA) came
into effect in the UK on August 1, 1989 and has since been amended. Part II
created “Rights in Performances.” No‑one doubts that it did so in respect of
pre‑Act performances in the case of performers still alive when the Act came
into force.
Jimi Hendrix was a U.S. citizen who became a world famous
and innovative rock guitarist in the late 1960s. He died on September 18, 1970,
domiciled in New York State. Experience Hendrix LLC (Plaintiff) is a company
incorporated in the U.S. and the assignee of all property in the U.K. estate of
Mr. Hendrix. Defendant Purple Haze Records Ltd. and its owner (Defendants) had
profited from the sale of CD’s reproducing some of Hendrix’s live performances
in the U. K., U.S. and Sweden. between 1967 and 1970. Plaintiff seeks to
enforce the performer’s rights arising under the CDPA. Subject to the summary
judgment issue (not covered here), it is now undisputed that if performer’s
rights in these performances do exist, Plaintiff does own them. The case
specifically turns on the provisions of the CDPA, as amended. The arguments of
both sides, however, involved a lot more by way of background Treaties and
Directives.
These include the Berne Convention for the Protection of
Literary and Artistic Works of 1886 as amended by the Paris Act of 1971
(Berne). The provisions with which this Court is concerned date back to the
Rome Act of 1928 (Rome 1928). Also cited are the Rome Convention for the Protection
of Performers, Producers of Phonograms and Broadcasting Organizations (1961)
(Rome 1961); the 1994 Agreement on the Trade‑Related Aspects of Intellectual
Property Rights (TRIPS); and the Treaty Establishing the European Union (EU
Treaty).
Finally, two items of EC legislation are pertinent: (1)
Directive 92/100/EEC on rental rights and lending rights and on certain rights
related to copyright in the field of intellectual property (RR); and (2)
Directive 93/98/EEC harmonizing the term of protection of copyright and certain
related rights of 29 October 1993 (HTP). Rome 1961 requires signatory states to
confer copyrights with respect to live performances. The UK acceded to this
Convention in 1964, having passed the Performers Protection Act of 1963 for this
purpose. Of particular significance is that Art.7 of Rome 1961 provided for a
civil remedy for performers and Art. 14 laid down a minimum term of protection
of 20 years from the end of the performance year.
Before the CDPA, various English provisions regulated
performers’ rights. The pre‑1988 legislation consisted of the Dramatic and
Musical Performers’ Protection Act of 1958 as amended by the Performers’
Protection Act of 1963. These, inter alia, made unauthorized recording of a
performance and sale of such recordings a criminal offense. During the 1970s
and 1980s, many plaintiffs tried to enforce the Acts in the civil courts. They
met with varying degrees of success. Before the Bill preceding the CDPA was presented,
the instant Court handed down Rickless v. United Artists [1988] Q. B. 40. The
Court there decided that, by virtue of the Acts, the personal representatives
of Peter Sellers had a civil cause of action against the makers of a film who
used recorded material of his performances in “Pink Panther” films (made with
his consent) to make a further such film to which neither Mr. Sellers nor his
personal representatives had consented.
On the interpretation of the performers’ protection acts,
the Court concluded that, notwithstanding the contrary suggestion in prior
cases, performers did have a civil right of action for breach of the Acts. Most
significantly to this case, such a right devolved on the deceased
performers’ personal representatives.
First, the Court noted that the 1963 Act was expressly
stated to be “to enable effect to be given to” Rome 1961. Moreover, Rome 1961
required a civil remedy because it called for a right to prevent unauthorized
recording (see Art. 7(1)). So if the U.K. provided no civil remedy then it
would be in breach of the Convention. That would be an improbable
interpretation.
Second, the Court rejected an argument that no rights lay in
the personal representatives of deceased performers or that they could not give
any consent. In so doing, it spurned an argument that the legislation was
merely to protect living performers because, once dead, they needed none. So
Rickless clearly established that Mr. Hendrix, prior to then, had a civilly
enforceable right to protect them. Moreover, that right would have passed down
to his personal representatives. If the present Defendants are right, the 1988
Act took away such a right for the future. This reading, although possible,
also seems unlikely.
The lead opinion here explains “I accordingly approach the
unamended Act with a strong supposition that it is unlikely to have been
intended to cut out from protection performances by performers who had died
before the Act came into force.
Defendant submits that, nonetheless, it did have such an
effect. His essential reasoning runs thus: (a) Section 180(1) says ‘this Part
confers rights on ‘a performer;’ (b) A dead person cannot be a performer; (c)
Putting it another way, the subsection does not confer rights on a deceased
performer’s personal representatives.” [¶ 21]
“[Defendants] also raised a convenience argument. How
difficult, ... it would be for the estates of long‑dead performers if this new
right was suddenly conferred, in many cases years after the estate was wound
up. And how difficult it would be to obtain clearances for use of performances
if you have to try and find personal representatives years after the estate is
wound up.”
“I do not regard these arguments as at all convincing. Here
are my reasons: (a) The whole of Part II of the Act is expressed in the present
tense. Even ‘performance’ is defined in the present tense (‘is ... a live
performance’), § 180(2), yet the Act must apply to what was a performance. A
sensible way to read the Part is to recognise that the past is also being
referred to where the context so requires.”
“(b) The draftsman would clearly have been aware of the
possibility of tying a right’s existence or term to the time of death of the
‘creator’. That is the position in respect of ‘ordinary’ copyrights under Part
I (literary, musical and artistic works) and had been in successive Acts since
the very beginning of copyright protection. Yet no such provision was made
here. On the contrary, the term runs from the end of the year of the
performance.”
“(c) Such an important limitation is hardly likely to be
found in that section of Part II which is headed Introductory and in which §
180 falls. ... The whole emphasis of these provisions is the conferring of
protection on performances. To say that performances by pre‑Act deceased
performers are not protected simply by the use of ‘a performer’ is making that
noun do more work than in context it can reasonably do. ...”
“(e) Sections 191‑193 (which deal with ‘duration and
transmission of rights; consent’) are hardly likely to have taken their present
form if [Defendants are] right. Section 191 makes rights ‘continue to subsist
until the end of the period of 50 years from the end of the [year of
performance]’. [Defendants] submit that this only applies where rights are
conferred by this Part.”
“I agree, but one might have at least supposed some sort of
caveat if performances by pre‑Act deceased performers were excluded. So also
for the provisions in § 192 about transmission on death....”
“(f) The very form of § 180(1) is essentially by way of a
chatty introduction. It is telling you what this Part of the Act is about. That
is unarguably so in relation to the bit about the creation of offences. It
would make no difference if it was struck from § 180(1) entirely. ...”
“(g) Section 180(3) is also phrased oddly if [Defendants
are] right. It says the rights conferred apply in relation to performances
taking place before commencement, adding the rider that no pre‑Act conduct or
in conduct pursuance of pre‑Act arrangements shall infringe. Surely this would
have been qualified if it was intended to exclude any case where the performer
had died before the Act came into force? Yet it was not.”
“(h) As to the argument that § 180(1) confers rights on a
performer, not on his personal representatives, I think it specious. If you
confer rights retrospectively on a ‘person’ and that ‘person’ is dead, the
rights simply go to the person’s personal representatives by operation of law.
They go to the ‘person’s’ estate. ...”
“(I) The appeal to convenience also fails. First, because,
before the CDPA, the right to prevent infringements already existed and fell
into a deceased performer’s estate (Rickless). So the supposed problem was a
problem already. Secondly, because in any event such inconveniences are
possible in this area of the law ‑‑ the same must have happened when ordinary
copyright was extended by 20 years following implementation of the Term
Directive, for instance. And, thirdly, if no‑one can be found to be asked for a
clearance, recourse can be had for a permission to be granted by the Copyright
Tribunal. This, for instance, happened in the case of a long dead performer of
the original production of ‘Under Milk Wood,’ see ex parte Sianel Pedwar Cymru
[1993] E. M. L. R. 251.”
“Accordingly I reject the ‘dead performer’ point so far as
the unamended CDPA is concerned. The Act was passed to protect the economic
interests of performers ‑‑ their estates, whether they are alive or dead, form
those interests.”
“Strictly that is an end of this whole point, for
[Defendants] conceded that, if the unamended Act conferred rights in respect of
pre‑Act deceased performers, the later amendments did not take them away. ...”
The Court then discusses the effects of the amended
provisions of the CDPA and how TRIPS might affect this case.. “Both the Term
and R R Directives were passed in the early nineties, followed by TRIPS in
1994. Both sides accepted that the amended legislation must be interpreted so
as to conform to all three of these instruments unless this was quite
impossible on the language used.”
“It is trite that this must be so in the case of Directives.
Why it is so in the case of TRIPS calls for a little more explanation. The World
Trade Organization (WTO), of which TRIPS forms part, is primarily a Treaty
between nations across the globe. But the EU was also a party to it. The WTO
Agreement is to be regarded as a Community Treaty as defined in § 1(2) of the
[UK’s] European Communities Act 1972. This makes it fall within § 3(1) which
says: ‘For the purposes of all legal proceedings, any question as to the
meaning or effect of any of the Treaties, or as to the validity, meaning or
effect of any Community instrument, shall be treated as a question of law (and,
if not referred to the European Court of Justice (ECJ) [under Article 234EC] be
for determination as such in accordance with the principles laid down by, and
any relevant decision of, the [ECJ).’”
“The ECJ’s principles of interpretation require that
European Legislation (including the two Directives in play here) be interpreted
so as to conform to EU Treaty obligations. So the Directives (and hence our
implementing legislation) should be interpreted so as to conform to TRIPS .
That is not to say that TRIPS itself creates rights in Member States or the EU.
It does not.”
“... TRIPS ... builds on Berne, which applies only to
‘ordinary copyright’ (literary, musical and artistic works). For performing
rights, Art. 14 lays down requirements. They follow Rome 1961. Importantly,
Art. 14(6) says that the provisions of Art. 18 of Berne shall apply mutatis
mutandis to performers’ rights.”
“So what does Art. 18 of Berne call for? It says that the
Convention applies to all works which, on its coming into force, have not yet
fallen into the public domain in the country of origin through the expiry of
the term of protection. The only exception is where a work has fallen into the
public domain in the country where protection is claimed. By virtue of Art. 14
of TRIPS this rule also applies to performers’ rights.” [ ¶¶ 23‑30].
“Now it is not suggested [by Defendants] that rights in Jimi
Hendrix’s performances ever fell into the public domain through expiry of a
term of protection. The argument is that they ceased because the 1988 Act did
not confer any rights in respect of dead performers.”
“The upshot of all this is that, if the Directives and our
implementing Acts deny protection to a performance on the grounds of the death
of its performer, they will be in breach of TRIPS Art. 14. That is wholly
improbable.”
Defendants base their main argument on the RR Directive.
“[Their attorney] made two basic submissions, first that the Directive was a
harmonizing directive. The second and main submission was based particularly on
Recitals (7) and (8): ‘(7) Whereas the creative and artistic work of authors
and performers necessitates an adequate income as a basis for further creative
and artistic work, and the investments required particularly for the production
of phonograms and films are especially high and risky; whereas the possibility
for securing that income and recouping that investment can only effectively be
guaranteed through adequate legal protection of the rightholders concerned; ...’”
“The argument is that Recital (7) not only sets out the
purpose of a performing right but thereby limits its extent. The identified
purpose is to secure an ‘adequate income as a basis for further creative work’
and that is all. Once a performer is dead he is no longer capable of further
creative work. Hence no rights need be created pursuant to this Directive in
respect of already dead performers. ...” [¶¶ 32‑36]
The Court, however, rejects the second, and main submission,
on the grounds that [Defendants] read far too much into the recital. “If [they]
were right, not only would the dead be excluded, but also those incapable of
further performance. And what about amateurs and those who have retired? Does
the Directive call for an examination by doctors to see if a performer can
still perform, or a questionnaire to a performer who has retired asking whether
he is thinking of a come‑back? All this shows the non‑viability of the
argument.” [¶ 29]
“Most formidably, recital (10) stands in [Defendants’] way.
It says: ‘(10) Whereas the legislation of the Member States should be
approximated in such a way so as not to conflict with the international
conventions on which many Member States’ copyright and related rights laws are
based.’ So there is to be no conflict with international conventions. One of
these is Rome 1961 ....”
“Now Rome 1961 requires both a civil right for performers
and a minimum term of 20 years. And it had so required for many years (in the
case of the UK from the 1964 accession). If the RR Directive forbade protection
in respect of performances by performers dead at implementation of the
Directive, it would involve a breach of Rome 1961. ...”
Moreover, the Court notes, though the RR Directive does not
refer to TRIPS, [that] could not have happened since TRIPS had not yet been
finalized. “... Art. 13 of the Directive contains language taken from a draft
of TRIPS in circulation at the time. It is inconceivable that the Council of
the EU would have made a Directive incompatible with the requirements of the
shortly to be agreed TRIPS. I refuse to construe it so, yet that it what
[Defendants’] argument would require.” [¶¶ 43‑45]
“Finally, I come to the [CDPA] as amended. It should be
construed in accordance with the RR and Term Directives and TRIPS . Having
already looked at these, it is hardly necessary to look at the amended Act. The
arguments before us, rightly in my view, reflected that. My own analysis of the
Act before amendment covers all the essential ground. Accordingly, ... I reject
the dead performer argument.”
The Court then addresses the “qualifying country” issue
which applies only to performances that Mr. Hendrix had given in Sweden and the
U.S. [Defendants] conceded that, if their position was sound, it would put the
UK in conflict with TRIPS and in breach of the EC treaty. This Court demands
strong, unequivocal language to reach such a conclusion.” [¶¶ 53, 54]
“The heart of the [Defendants’] argument lies in the use of
the present tense ‑‑ ‘is given’ or ‘takes place.’ [Defendants] submit that, to
be protected, a performance must have been in a qualifying country at the time
of the performance or have been given by a person who was a qualifying
individual at that time. So far as the UK performances are concerned, the
condition was satisfied at the time. But not so for Sweden or the U.S.A. Hence
these performances are not protected.”
“I reject the argument for three reasons. It makes no sense
as a matter of construction. It involves ignoring the whole way in which the
international system of copyright recognition works. And it involves a
derogation from TRIPS and a violation of the EC Treaty. All that is supposed to
come about because of the use of the present tense. You need lots more than
that for such profound effects.”
“As a matter of construction, one cannot really read the
tense as meaning the present at all. The whole point is protection for past
performances. ‘Is’ in context must mean ‘was,’ and ‘is given’ must mean ‘was
given.’”
“Moreover, the Act expressly applies to pre‑commencement
performances (§ 180(3)). Yet before the Act, no country was a ‘qualifying
country’ as defined in the Act save for the U K and the then existing members
of the EEC. So if the country had to be qualifying at the date of the
performance, § 180(3) would be denied any effect for all other countries. That
cannot be so.”
“... [B]y virtue of TRIPS Art. 14, the system applies to
rights in performances. Art. 18 of Berne requires that protection is conferred
in respect of past works when a country accedes to Berne.”
See the description by Ricketson and Ginsburg International
Copyright and Neighbouring Rights, 2nd Edn. at § 6.117: ‘ ... The obligation to
protect other Union works also extends to works which the new member had once
protected but which now are in the public domain because the new member’s prior
term of copyright protection was shorter than the Berne minimum term. Equally
importantly, the obligation to provide or restore copyright protection applies
to previous Berne members with respect to works from the newly acceding state.
...”
“So [Defendants’] argument, if right, would involve a breach
of TRIPS. It would involve breach of the EU Treaty too. Consider a 1969
performance. If in the UK or any Member State of the EEC as it was at the time
of the performance (the original six), there would be protection. But there
would be none for performances in subsequently acceding states (e.g. Sweden or
Ireland). This would infringe Art. 12EC which forbids discrimination on the
grounds of nationality. The same argument applies, mutatis mutandis, in
relation to the nationality of a qualifying performer.” [¶¶ 56‑62]
“Accordingly I think the ‘qualifying country’ point fails
too.” [¶ 64] The other two members of the Court agree. Since both the U.S. and
Sweden had become ‘qualifying countries’ for the purpose of the 1988 CDPA by
the time the infringement took place, it was irrelevant whether or not they
were qualifying countries at the time of the live performances. Since the Court
also agrees that Defendants were not entitled to summary judgment in this case,
it dismisses their appeal.
Citation: Experience Hendrix LLC v. Purple Haze
Records Ltd., [2007] E.W.C.A. Civ. 501; 2007 WL 1484095 (CA (Civ. Div.) May
24).
JUDGMENTS
In proceeding to enforce French judgment awarding 3
million Francs as “reserve,” California Appellate Court holds that the award
was final and otherwise fully enforceable under California’s version of Uniform
Foreign Money‑Judgments Recognition Act
Societe Civile Succession Richard Guino, a French Trust;
Alain Renoir; and Jacques Renoir (Plaintiffs) claim that Redstar Corporation,
Jean‑Emmanuel Renoir, and Louise Hernandez (Defendants) made unauthorized
reproductions of certain sculptures by Pierre Auguste Renoir and Michel Guino.
A French court ordered the Defendants to pay three million francs “as a
reserve” and to pay thirty thousand francs in expenses.
The Plaintiffs sued in a California court to enforce the
French judgment under California’s version of the Uniform Foreign Money
Judgments Recognition Act (Act). The trial court, however, limited its
enforcement to the 30,000 franc award. Plaintiffs appealed to the Court of
Appeal of the Second Appellate District. That Court reverses and remands for
the entry of judgment on the full French award.
“Section 1713.3 of the Act provides for the enforceability
of a foreign money judgment. The Act applies ‘to any foreign judgment that is
final and conclusive and enforceable where rendered even though an appeal
therefrom is pending or it is subject to appeal.’ (§ 1713.2.) The Act defines a
foreign judgment as ‘any judgment of a foreign state granting or denying
recovery of a sum of money, other than a judgment for taxes, a fine or other
penalty ...’ (§ 1713.1, subd. (2).) Section 1713.4 provides grounds for ‘non‑recognition’
of a foreign judgment — i.e. when the ‘foreign judgment is not conclusive.’
None of those grounds is applicable in this case.” [Slip op. 4].
“The trial court denied enforcement on the theory that the 3
million‑franc award was not a ‘fixed sum’ and that the amount was subject to
modification — i.e., ‘part of a provisional mechanism’ that required ‘an
equitable accounting’ so as to fix the sum. Although the Act contains no
reference to a requirement of a ‘fixed sum,’ the Act provides that a foreign
judgment is enforceable if it is a foreign state judgment granting recovery of
‘a sum of money.’ (§ 1713.1, subd. (2).) The French judgment here specifically
provides for the payment of 3 million francs — ‘a sum of money.’”
“The trial court suggests that the sum was not ‘fixed’
because it was provisional. The phrase ‘Orders the provisional execution of
this measure’ means that the order for payment of the 3 million francs is
immediately enforceable, notwithstanding the availability of an appeal. It does
not mean that the order is provisional in the sense that it is tentative or
subject to revision within the proceeding. [Cites].” [Slip op. 4‑5]
“In providing for an accounting, the French court did not
suggest that its 3 million ‑ franc monetary order in the matter under
consideration was not for a fixed sum of money. The French court did not retain
jurisdiction or specify any mechanism within the proceeding before it to
enforce the results of an accounting. The French judgment, in effect, required
an advance payment to Plaintiffs of the amount owed to Plaintiffs. ...”
“There was no further act or proceeding to occur in the
French action in which the judgment in question was rendered. Even if the
ordered partial payment amount of 3 million francs is subject to a later
accounting and subsequent action on that accounting to revise the amount of
that 3 million‑franc payment, the payment order ‘grants . . . a recovery of a
sum of money.’ (§ 1713.1, subd. (2).) Although theoretically an accounting
might show an amount of less than 3 million francs owing, that lesser amount
could only be established in a separate and subsequent action.” [Slip op. 5]
“There is no indication that the French judgment was not
‘final.’ Even if not necessary to enforce the foreign judgment under the Act,
the appellate process here had been completed. There is uncontradicted evidence
that the French judgment is treated in France as final and, as stated by one of
the experts, ‘has the force of res judicata.’” [Slip op. 6]
“There is nothing in the enforcement or execution of the
judgment section of the French Code of Civil Procedure that suggests that the
French judgment is not a final and conclusive judgment for a sum of money.
[Cite].” [Slip op. 7]
Citation: Societe Civile Succession Richard Guino v.
Redstar Corp.,153 Cal.App. 4th 697, 63 Cal.Rptr. 3d 224 (Dist. 2 , 2007).
JURISDICTION (PERSONAL)
Third Circuit rules that Barbados Hotel can be subject to
specific personal jurisdiction in a slip‑and‑fall case brought in Pennsylvania
where Plaintiffs resided in Pennsylvania and Defendant had solicited Plaintiffs
patronage at their home
Patrick J. O’Connor slipped and fell, injuring his shoulder,
while receiving a massage treatment at a Barbados hotel, owned by the Sandy
Lane Hotel Company (Defendant), a Barbados corporation. Plaintiff had signed up
for the massage by telephone after the hotel had mailed a sales brochure to
Plaintiff’s home in Pennsylvania.
Mr. O’Connor and his wife Marie (Plaintiffs) filed suit in
the Philadelphia Court of Common Pleas. Defendant then had the case removed to
federal court which dismissed it for lack of personal jurisdiction. Plaintiffs
appealed to the U.S. Court of Appeals for the Third Circuit. It reverses and
remands the case for further proceedings below.
Since the Plaintiffs conceded that Defendant lacked
sufficient Pennsylvania contacts to support general jurisdiction, the court
limited itself to the issue of specific jurisdiction. “The inquiry as to
whether specific jurisdiction exists has three parts. First, the defendant must
have ‘purposefully directed [its] activities’ at the forum. [Cite]. Second, the
litigation must ‘arise out of or relate to’ at least one of those activities.
[Cite]. And third, if the prior two requirements are met, a court may consider
whether the exercise of jurisdiction otherwise ‘comport[s] with fair play and
substantial justice.’[Cite].”
“After the [Plaintiffs’] initial stay, [Defendant] continued
to cultivate the relationship by mailing seasonal newsletters to their
Pennsylvania home. And after the [Plaintiffs] booked their 2003 trip,
[Defendant] mailed them a brochure and traded phone calls with them for the
purpose of forming an agreement to render spa services. Through these acts,
[Defendant] deliberately reached into Pennsylvania to target two of its
citizens.” [Slip op. 4]
The Circuit Court next addresses the predominant approaches
to assessing the “arise out of or relate to” language. After critiquing the
current approaches, the Court settled on a different test. “We thus hold that
specific jurisdiction requires a closer and more direct causal connection than
that provided by the but‑for test. As we stated in [Miller Yacht Sales, Inc. v.
Smith, 384 F.3d 93, 97 (3d Cir. 2004)], there is no ‘specific rule’ susceptible
to mechanical application in every case. See 384 F.3d at 100.”
“But in the course of this necessarily fact‑sensitive
inquiry, the analysis should hew closely to the reciprocity principle upon
which specific jurisdiction rests. See [Burger King Corp. v. Rudzewicz, 471
U.S. 462, 475‑6 (1985)]. With each purposeful contact by an out‑of‑state
resident, the forum state’s laws will extend certain benefits and impose
certain obligations. [Cites].”
“The relatedness requirement’s function is to maintain
balance in this reciprocal exchange. In order to do so, it must keep the
jurisdictional exposure that results from a contact closely tailored to that
contact’s accompanying substantive obligations. The causal connection can be
somewhat
looser than the tort concept of proximate causation, see
Miller Yacht at 99‑100, but it must nonetheless be intimate enough to keep the
quid pro quo proportional and personal jurisdiction reasonably foreseeable.”
[Slip op. 9‑10]
“It is enough that a meaningful link exists between a legal
obligation that arose in the forum and the substance of the Plaintiffs’ claims.
The [Plaintiffs] claim [that Defendant] breached a duty that is identical to a
contractual duty assumed by the hotel in Pennsylvania. So intimate a link
justifies the exercise of specific jurisdiction as a quid pro quo for
[Defendant’s] enjoyment of the right to form binding contracts in Pennsylvania.
We therefore hold that the [Plaintiffs’] claims ‘arise out of or relate to’
[Defendant’s] Pennsylvania contacts.” [Slip op. 11]
As to the issue of “fair play and substantial justice” the
Court points out that: “Several¼factors weigh in favor of litigating this dispute in
Barbados. First, the burden on the Defendant is a ‘primary concern’ in any case¼[Defendant’s]
representatives will have to travel 2,000 miles to litigate in Pennsylvania,
and the company must also familiarize itself with a foreign legal system.
Second, the efficiency factor also tips toward [Defendant] [Cite]. Most of the
witnesses are in Barbados, the evidence is there, and it is not at all clear
that Pennsylvania law will apply to the merits ¼ Third, Barbados has a
considerable ‘substantive interest’ in determining the rights and liabilities
of its own domestic corporations. [Cite]. All told, these factors tend to show
that litigating this dispute in Barbados might well be a reasonable and
efficient outcome.”
“[Defendant], though, has a much higher hill to climb.
Because [Defendant] has minimum contacts with Pennsylvania under the first two
steps of our analysis, it must make a ‘compelling case’ that litigation in
Pennsylvania would be unreasonable and unfair¼we conclude that this is
not one of those ‘rare’ and ‘compelling’ cases where jurisdiction would be
unreasonable despite the presence of minimum contacts. The burdens on
[Defendant] are substantial, but they do not entirely dwarf the interests of
the [Plaintiffs] and the forum state.” [Slip op. 12]
“In sum, the [Plaintiffs] have alleged facts that, if true,
establish personal jurisdiction over [Defendant] in Pennsylvania. [Defendant]
purposefully directed its activities at Pennsylvania, the [Plaintiffs’] claims
arise from, or relate to, those activities, and no other factors render
jurisdiction in Pennsylvania unfair or unreasonable. The District Court
therefore had specific jurisdiction to adjudicate the [Plaintiffs’] claims.”
[Slip op. 13]
Citation: O’Connor v. Sandy Lane Hotel Co., Ltd.,
2007 WL 2135274 (3d Cir. 2007).
PRIVILEGE (STATE SECRETS)
On appeal from dismissal of case brought by German
citizen based on alleged “extraordinary rendition” by CIA agents and civilian
contractors coupled with mistreatment, Fourth Circuit affirms because, despite
general publicity on existence of such renditions, litigation of case would
require evidence of specific matters covered by state secrets privilege timely
invoked by United States
On December 6, 2005, Khaled El‑Masri (Plaintiff), a German
citizen of Lebanese descent, filed a Complaint in this case in Virginia federal
court. Defendants included former Director of Central Intelligence, George
Tenet, three corporate defendants, ten unnamed employees of the Central
Intelligence Agency (CIA), and ten unnamed employees of the Defendant
corporations.
In substance, Plaintiff alleged the following events. In
December 2003, while Plaintiff was traveling in Macedonia, local law
enforcement officials detained him. Twenty‑three days later, the Macedonians
handed him over to CIA operatives, who flew him to a CIA detention facility
near Kabul, Afghanistan. He stayed there until May 2004, when they transported
him to Albania and freed him in a remote area. Local officials then took him to
an airport in Tirana from which he returned to his home in Germany.
The Complaint asserted that his captors not only held Plaintiff
against his will, but had also mistreated him. He claimed that they had beaten,
drugged, bound, and blindfolded him during transport; confined him in a small,
unsanitary cell; interrogated him several times; and consistently prevented him
from getting in touch with anyone outside the prison. Plaintiff further alleged
that his captors carried out his interrogation pursuant to an unlawful practice
devised by Defendant Tenet, then CIA director, known as “extraordinary
rendition.” This involved the
surreptitious detention abroad of persons suspected of
involvement in terrorist activities, and their later interrogation using
methods impermissible under U.S. and international laws.
According to the Complaint, the corporate Defendants
supplied the CIA with an aircraft and crew to take Plaintiff to Afghanistan, in
cahoots with Director Tenet. They either knew, or reasonably should have known,
that his captors would subject Plaintiff to prolonged arbitrary detention,
cruel, inhuman, or degrading treatment in violation of federal and
international laws en route to Afghanistan and while there. Plaintiff also
claims that CIA officials realized early on that they had an innocent person,
and that they so notified Director Tenet in April 2004.
The Complaint alleged three separate causes of action. The
first claim against Director Tenet and the unknown CIA employees, invoked
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971) for violations of Plaintiff’s Fifth Amendment right to due process.
Plaintiff brought his second and third causes of action
under the Alien Tort Claims Act (ATCA). He alleged first that each of the
Defendants had violated the international legal norms against prolonged,
arbitrary detention. The second maintained that each Defendant had violated
international legal bans on cruel, inhuman, or degrading treatment.
On March 8, 2006, the U.S. filed a Statement of Interest
(SOI) in the proceedings pursuant to 28 U.S.C. § 517, and interposed a claim of
the state secrets privilege. Porter Goss, then Director of the CIA, submitted
two affidavits to the district court in support of the privilege claim. The
first affidavit was unclassified, and stated in general terms the reasons for
the U.S.’s privilege claim. A classified affidavit (the Classified Declaration)
then spelled out the kind of information that the U.S. sought to protect, and
showed why further litigation would unreasonably risk the disclosure of
information damaging to the national security.
The U.S. also moved to stay the district court proceedings
pending resolution of its privilege claim; the next day, the court granted the
motion. On March 13, 2006, the U.S. formally asked to intervene as a Defendant
and moved to dismiss the Complaint, contending that its invocation
of the state secrets privilege precluded the litigation of
Plaintiff’s causes of action.
Plaintiff’s affidavits responded that there had been wide
public discussions of rendition operations in the media as well as in statements
by the U.S. Secretary of State, and the White House press secretary. Moreover,
two CIA directors had publicly acknowledged the existence of extraordinary
renditions.
Additionally, the European Parliament, the Council of Europe
and 18 European countries had launched investigations into the possible
collusion of Member States in U.S. renditions. International human rights
organizations also complained about these renditions including Plaintiff’s. As
a result, Plaintiff argued, such matters were far from “secret.” In May 2006,
the district court upheld the government’s claim of privilege and dismissed
Plaintiff’s case. He noted his appeal. The U.S. Court of Appeals for the Fourth
Circuit, however, affirms.
Importantly, Plaintiff does not contend that the state
secrets privilege has no role in these proceedings. To the contrary, he
acknowledges that at least some information important to his claims is likely
to be privileged. Plaintiff, however, does challenge the centrality of the
privilege to this litigation. The Court rejects this objection. “Under the
state secrets doctrine, the United States may prevent the disclosure of
information in a judicial proceeding if ‘there is a reasonable danger’ that
such disclosure ‘will expose military matters which, in the interest of
national security, should not be divulged.’ United States v. Reynolds, 345 U.S.
1, 10 (1953).”
“Although the state secrets privilege was developed at
common law, it performs a function of constitutional significance, because it
allows the Executive Branch to protect information whose secrecy is necessary
to its military and foreign affairs responsibilities. Reynolds itself suggested
that the state secrets doctrine allowed the Court to avoid the constitutional
conflict that might have arisen had the judiciary demanded that the Executive
disclose highly sensitive military secrets. See id. at 6. In United States v.
Nixon, 418 U.S. 683, 710 (1974), the Court further articulated the doctrine’s
constitutional dimension, observing that the state secrets privilege provides
exceptionally strong protection because it concerns ‘areas of Art. II duties
[in which] the courts have traditionally shown the utmost deference to
Presidential responsibilities.’ Id. The Nixon Court went on to recognize that,
to the extent an executive claim of
privilege ‘relates to the effective discharge of a President’s powers,
it is constitutionally based.’ Id. at 711. Significantly, the Executive’s
constitutional authority is at its broadest in the realm of military and
foreign affairs.”
“The Court accordingly has indicated that the judiciary’s
role as a check on presidential action in foreign affairs is limited. See,
e.g., Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 348 (2005)
(recognizing judiciary’s ‘customary policy of deference to the President in
matters of foreign affairs’); Chi. & S. Air Lines, Inc. v. Waterman S. S.
Corp., 333 U.S. 103, 111 (1948) (prescribing limited judicial role in foreign
policy matters, especially those involving ‘information properly held
secret’).” [Slip op. 4]
“The procedural requirements for invoking the state secrets
privilege are set forth in Reynolds ... First, the state secrets privilege must
be asserted by the United States. See id. at 7. It ‘belongs to the Government
and ... can neither be claimed nor waived by a private party.’ Id. Second,
‘[t]here must be a formal claim of privilege, lodged by the head of the
department which has control over the matter.’ .... Third, the department
head’s formal privilege claim may be made only “after actual personal
consideration by that officer.” [...]
“After a court has confirmed that the Reynolds procedural
prerequisites are satisfied, it must determine whether the information that the
United States seeks to shield is a state secret, and thus privileged from
disclosure. This inquiry is a difficult one, for it pits the judiciary’s search
for truth against the Executive’s duty to maintain the nation’s security.”
“The Reynolds Court recognized this tension, observing that
‘[j]udicial control over the evidence in a case cannot be abdicated to the
caprice of executive officers’ – no matter how great the interest in national
security – but that the President’s ability to preserve state secrets likewise
cannot be placed entirely at the mercy of the courts. Id. at 9‑10. Moreover, a
court evaluating a claim of privilege must ‘do so without forcing a disclosure
of the very thing the privilege is designed to protect.’”
“The Reynolds Court balanced those concerns by leaving the
judiciary firmly in control of deciding whether an executive assertion of the
state secrets privilege is valid, but subject to a standard mandating restraint
in the exercise of its authority. A court is obliged to honor the Executive’s
assertion of the privilege if it is satisfied, ‘from all the circumstances of
the case, that there is a reasonable danger that compulsion of the evidence
will expose military matters which, in the interest of national security, should
not be divulged.’ Reynolds, id. at 10.”
“... [A] court is obliged to accord the ‘utmost deference’
to the responsibilities of the executive branch. Nixon, id. at 710. Such
deference is appropriate not only for constitutional reasons, but also
practical ones: the Executive and the intelligence agencies under his control
occupy a position superior to that of the courts in evaluating the consequences
of a release of sensitive information.” [Slip op. 5]
“In some situations, a court may conduct an in camera
examination of the actual information sought to be protected, in order to
ascertain that the criteria set forth in Reynolds are fulfilled. See Sterling,
at 345. The degree to which such a reviewing court should probe depends in part
on the importance of the assertedly privileged information to the position of
the party seeking it. See Reynolds, id. at 11. ‘Where there is a strong showing
of necessity, the claim of privilege should not be lightly accepted....’ Id.”
“On the other hand, ‘even the most compelling necessity
cannot overcome the claim of privilege if the court is ultimately satisfied
that military secrets are at stake.’ Id. Indeed, in certain circumstances a
court may conclude that an explanation by the Executive of why a question cannot
be answered would itself create an unacceptable danger of injurious disclosure.
See id. at 9. In such a situation, a court is obliged to accept the executive
branch’s claim of privilege without further demand. See id.” [Slip op. 5]
“After information has been determined to be privileged
under the state secrets doctrine, it is absolutely protected from disclosure –
even for the purpose of in camera examination by the court. ... Moreover, no
attempt is made to balance the need for secrecy of the privileged information
against a party’s need for the information’s disclosure; a court’s
determination that a piece of evidence is a privileged state secret removes it
from the proceedings entirely. See Reynolds at 11. If a proceeding involving
state secrets can be fairly litigated without resort to the privileged
information, it may continue.”
“And in Reynolds, ... the Court made clear that where state
secrets form the very subject matter of a court proceeding, as in Totten,
dismissal at the pleading stage – ‘without ever reaching the question of
evidence’ – is appropriate. See ibid. In a recent decision unanimously
reaffirming Totten’s validity, the Supreme Court approvingly quoted Reynolds’s
discussion of Totten as a matter in which dismissal on the pleadings was
appropriate because the very subject matter of the action was a state secret.
See Tenet v. Doe, 544 U.S. 1, 9 (2005).” [Slip op. 6]
“The heart of [Plaintiff’s] appeal is his assertion that the
facts essential to his Complaint have largely been made public, either in
statements by U.S. officials or in reports by media outlets and foreign
governmental entities. As a result, [Plaintiff] contends that the district
court should have allowed his case to move forward with discovery, perhaps with
special procedures imposed to protect sensitive information.”
“[Plaintiff’s] contention in that regard, however,
misapprehends the nature of our assessment of a dismissal on state secrets
grounds. The controlling inquiry is not whether the general subject matter of
an action can be described without resort to state secrets. Rather, we must
ascertain whether an action can be litigated without threatening the disclosure
of such state secrets. Thus, for purposes of the state secrets analysis, the
‘central facts’ and ‘very subject matter’ of an action are those facts that are
essential to prosecuting the action or defending against it.”
“If [Plaintiff’s] civil action were to proceed, the facts
central to its resolution would be the roles, if any, that the Defendants
played in the events he alleges. To establish a prima facie case, he would be
obliged to produce admissible evidence not only that he was detained and
interrogated, but that the Defendants were involved in his detention and
interrogation in a manner that renders them personally liable to him. Such a
showing could be made only with evidence that exposes how the CIA organizes,
staffs, and supervises its most sensitive intelligence operations.”
“With regard to Director Tenet, for example, [Plaintiff]
would be obliged to show in detail how the head of the CIA participates in such
operations, and how information concerning their progress is relayed to him.
With respect to the Defendant corporations and their unnamed employees,
[Plaintiff] would have to demonstrate the existence and details of CIA
espionage contracts, an endeavor practically indistinguishable from that
categorically barred by Totten and Tenet v. Doe.” [Slip op. 8]
“Furthermore, if [Plaintiff] were somehow able to make out a
prima facie case despite the unavailability of state secrets, the Defendants
could not properly defend without using privileged evidence.”
“The main avenues of defense available in this matter are to
show that [Plaintiff] was not subject to the treatment that he alleges; that,
if he was subject to such treatment, the Defendants were not involved in it; or
that, if they were involved, the nature of their involvement does not give rise
to liability. Any of those three showings would require disclosure of
information regarding the means and methods by which the CIA gathers intelligence.”
“If, for example, the truth is that [Plaintiff] was detained
by the CIA but his description of his treatment is inaccurate, that fact could
be established only by disclosure of the actual circumstances of his detention,
and its proof would require testimony by the personnel involved. Or, if
[Plaintiff] was in fact detained as he describes, but the operation was
conducted by some governmental entity other than the CIA, or another government
entirely, that information would be privileged.”
“Alternatively, if the CIA detained [Plaintiff] but did so
without Director Tenet’s active involvement, effective proof thereof would
require a detailed explanation of how CIA operations are supervised. Similarly,
although an individual CIA officer might demonstrate his lack of involvement in
a given operation by disclosing that he was actually performing some other
function at the time in question, establishing his alibi would likely require
him to reveal privileged information.” [Slip op. 9]
“Moreover, proof of the involvement — or lack thereof — of
particular CIA officers in a given operation would provide significant
information on how the CIA makes its personnel assignments. Similar concerns
would attach to evidence produced in defense of the corporate defendants and
their unnamed employees.”
“And, like [Plaintiff’s] prima facie case, any of the
possible defenses suggested above would require the production of witnesses
whose identities are confidential and evidence the very existence of which is a
state secret. We do not, of course, mean to suggest that any of these
hypothetical defenses represents the true state of affairs in this matter, but
they illustrate that virtually any conceivable response to [Plaintiff’s]
allegations would disclose privileged information.” [Slip op. 10]
“... [W]e must reject [Plaintiff’s] view that the existence
of public reports concerning his alleged rendition (and the CIA’s rendition
program in general) should have saved his Complaint from dismissal. Even if we
assume, arguendo, that the state secrets privilege does not apply to the
information that media outlets have published concerning those topics,
dismissal of his Complaint would nonetheless be proper because the public
information does not include the facts that are central to litigating his
action.”
“Rather, those central facts – the CIA means and methods
that form the subject matter of [Plaintiff’s] claim‑remain state secrets.
Consequently, pursuant to the standards that [Plaintiff] has acknowledged as
controlling, the district court did not err in dismissing his Complaint at the
pleading stage.” [Slip op. 11]
“Contrary to [Plaintiff’s] assertion, the state secrets
doctrine does not represent a surrender of judicial control over access to the
courts. ... The state secrets privilege cannot be successfully interposed, nor
can it lead to dismissal of an action, based merely on the Executive’s
assertion that the pertinent standard has been met.”
“We also reject [Plaintiff’s] view that we are obliged to
jettison procedural restrictions —including the law of privilege — that might
impede our ability to act as a check on the Executive. Indeed, [Plaintiff’s]
position in that regard fundamentally misunderstands the nature of our
relationship to the executive branch. [Plaintiff] envisions a judiciary that
possesses a roving writ to ferret out and strike down executive excess. Article
III, however, assigns the courts a more modest role: we simply decide cases and
controversies.”
“Thus, when an executive officer’s liability for official
action can be established in a properly conducted judicial proceeding, we will
not hesitate to enter judgment accordingly. But we would be guilty of excess in
our own right if we were to disregard settled legal principles in order to
reach the merits of an executive action that would not otherwise be before us —
especially when the challenged action pertains to military or foreign policy.”
“We decline to follow such a course, and thus reject
[Plaintiff’s] invitation to rule that the state secrets doctrine can be brushed
aside on the ground that the President’s foreign policy has gotten out of
line.” [Slip op. 12]
“As we have observed in the past, the successful
interposition of the state secrets privilege imposes a heavy burden on the
party against whom the privilege is asserted. [Cite]. That party loses access
to evidence that he needs to prosecute his action and, if privileged state
secrets are sufficiently central to the matter, may lose his cause of action
altogether. Moreover, a plaintiff suffers this reversal not through any fault
of his own, but because his personal interest in pursuing his civil claim is
subordinated to the collective interest in national security....” [Slip op. 13]
Citation: El‑Masri v. United States, 479 F.3d 296
(4th Cir. 2007).
SOVEREIGN IMMUNITY
D.C. Circuit rules that discharged Egyptian citizen
formerly working as accountant for embassy of United Arab Emirates’ was engaged
in commercial rather than governmental employment, and therefore could bring
suit under commercial‑activity exception to the FSIA
Mohamed Salem El‑Hadad (Plaintiff) was an Egyptian
accountant who worked as an auditor for the government of the United Arab
Emirates (Defendant). Plaintiff went to work for the [Defendant’s] embassy in
Washington as an auditor and supervising accountant in the cultural attaché’s
office. When Plaintiff found out that the cultural attaché, and his deputy were
embezzling funds, Plaintiff exposed the embezzlement and helped with the
investigation. The Egyptian government not only commended but also promoted
Plaintiff for his work.
About a year and a half later, someone accused Plaintiff of
involvement in the embezzlement. This led authorities to fine and fire Plaintiff.
Plaintiff sued Defendant in District of Columbia federal court. That court
found that Defendant was engaged in “commercial activity” and thus not immune
from federal jurisdiction. When Defendant appealed, the U.S. Court of Appeals
for the District of Columbia Circuit affirms.
“The chief issue before us is the [Defendant’s] claim to
immunity under the Foreign Sovereign Immunities Act. Before passage of the 1976
Act, American courts had generally regarded foreign sovereigns as absolutely
immune from suit¼
But almost from the outset, courts recognized a distinction ‘between the public
and governmental acts of sovereign states on the one hand and their private and
commercial acts on the other.’” [Slip op. 3‑4]
“Since [Plaintiff’s] action is ‘based upon’ breach of his
employment contract and defamation in connection with that breach, this case
involves the commercial activity exception as applied in the employment
context.” [Slip op. 4]
“Like many of our sister circuits, we have held that a
foreign government’s civil servants (and diplomats and soldiers) do not qualify
for the commercial activity exception. [Cites]. We have not and do not affirm
the converse: A foreign government’s employee might not be a civil servant (or
diplomat or soldier) and still be engaged in quintessentially governmental work
— like, for example, a judge.”
“Thus, if [Plaintiff] is a civil servant, our analysis stops
for we have determined that the [Defendant] is immune from his suit. If
[Plaintiff] is not a civil servant, we go on to scrutinize whether his work
involves the exercise of ‘powers that can also be exercised by private
citizens, as distinct from those powers peculiar to sovereigns. [Cite]’”
“There is no definition of ‘civil service’ in the Foreign
Sovereign Immunities Act or its legislative history and associated case law,
and there are dangers in borrowing or analogizing to get one. Our country’s
notion of a civil service has certain characteristic features (like merit
selection, well‑defined personnel procedures, and benefits), but we can’t
rightly expect foreign governments to either ‘mimic civil service protections
now common to the United States’ or ‘sacrific[e] the immunity conferred by
FSIA.’ [Cite].”
The Court then develops a five part test of whether an
employee is a civil servant: “First, how do the [Defendant’s] own laws define
its civil service, and do [Plaintiff’s] job title and duties come within that
definition?” [Slip op. 5]
The Court found that, “the fact that [Plaintiff] lacked
benefits common to other [Defendant’s] governmental employees is sufficient for
[Plaintiff] to prevail, if only slightly and in light of the burden of proof,
on the first factor.” [Slip op. 7]
“Second, what was the nature of [Plaintiff’s] employment
relationship with the [Defendant]? Did he have a true contractual arrangement,
or is his ‘contract’ claim instead based, ..., solely upon the civil service
laws of the [Defendant]?” [Slip op. 5‑6]
The Court decides that, “[Plaintiff] was employed in all
respects pursuant to the [Defendant’s] Local Employees Regulations for the UAE
Missions Abroad 1983 ¼ the regulations define ‘local employees’ as being
generally ‘[a]dministrative employees, translators . . . mailmen, drivers,
security guards, cooks, waiters, farmers, [and] maintenance’ and state that
local employees should almost always be nationals of the country in which the
embassy is located (with exceptions for ‘highly exceptional’ cases, like, apparently,
[Plaintiff’s])¼”
“[T]he references appear to contrast local employees and
civil servants, making ‘civil service’ a status available to local employees,
if at all, only if they are also citizens of the [Defendant]. Now, it must be
said that under the regulations, local employees (like civil servants in this
country) may be terminated only for cause; [Plaintiff] was, under the
regulations as well as according to the district court and his own testimony, a
permanent employee. Nonetheless, we find the second factor tips decisively in
[Plaintiff’s] favor.” [Slip op. 7]
“Third, what was the nature of [Plaintiff’s] employment
relationship when he worked in the [Defendant], and how did his subsequent
employment at the Embassy relate to that prior tenure?” [Slip op. 6]
“The third question is easily answered: While [Plaintiff’s]
duties in Abu Dhabi were similar to his duties in Washington, there can be no
question that he formally and completely terminated his employment in the
[Defendant] before beginning work in the U.S.¼ factor three favors
[Plaintiff].” [Slip op. 7]
“Fourth, what was the nature of [Plaintiff’s] work? As noted
above, Congress indicated that the ‘employment or engagement of laborers,
clerical staff or public relations or marketing agents’ would come within the
definition of commercial activity.” [Slip op. 6]
“To the extent [Plaintiff] lacked authority to determine or
articulate policy and lacked discretion in his duties, he is more like the
employees for whom Congress intended FSIA’s commercial exception, and less like
a civil servant. What gives us pause is [Plaintiff’s] supervisory authority
over at least eight other accountants in the cultural attaché’s office. He was
a ‘part of the . . . government,’ [cite] in a way an administrative assistant,
for example, would not be.”
“On balance, we find his lack of discretion and exclusion
from any policy‑making role outweighs his supervisory role. Thus factor four
resolves in [Plaintiff’s] favor as well — though by a very narrow margin
indeed.” [Slip op. 8]
“Fifth, what is the relevance of [Plaintiff’s] Egyptian
nationality on the facts of this case? Is the [Defendant] a country in which,
as the House Report assumed, non‑nationals are unlikely to be employed as
governmental officers? Or does the [Defendant] often employ non‑nationals in
governmental positions?” [Slip op. 6]
“The relevance of a plaintiff’s nationality for the civil
service inquiry becomes a matter of context. Where a country rarely if ever
hires non‑citizens for its civil service (unlike the [Defendant]), non‑citizenship
strongly indicates that someone is not a civil servant. And in our view,
citizenship makes someone more likely to qualify as a civil servant even if a
country sometimes hires non‑citizens as civil servants¼”
“Thus, were [Plaintiff] a [Defendant]. citizen, the
[Defendant] might press its advantage, and were non‑citizens rarely if ever
[Defendant’s] civil servants, [Plaintiff] might press his. As it is,
[Plaintiff’s] nationality is all but irrelevant.” [Slip op. 8]
The Circuit Court concluded that, “Multifactor tests tend to
be inconclusive, but the evidence here suggests [Plaintiff] is not a civil
servant and. were the inquiry totally inconclusive, that very fact, together
with the [Defendant]’s burden of proof, would decide the matter in
[Plaintiff]’s favor. We therefore hold that [Plaintiff] is not a civil servant
and move on to the ultimate question of whether his work involved the exercise
of ‘powers that can also be exercised by private citizens, as distinct from
those powers peculiar to sovereigns.’ [Cite].” [Slip op. 8‑9]
“One distinctive mark of governmental work is discretionary
involvement with sovereign law or policy. According to the district court ...,
[Plaintiff] had no role in the creation of governmental policy, and to the
extent he carried it out, his duties were ‘ministerial, not discretionary.’
[Cite]. [Plaintiff] did standard accounting work ‑ ‘auditing expenditures,
reviewing accounting methods, reconciling bank statements or employing auditors
to conduct these activities,’ [cite] of a character easily found in commercial
enterprise. We therefore affirm the district court’s conclusion ...” [Slip op.
9]
Citation: El‑Hadad v. United Arab Emirates, 2007 WL
2141943 (D.C. Cir. July 27, 2007).
Serbia’s cooperation with ICTY leads to release of U.S.
funds. Secretary of State Condoleezza Rice has certified that Serbia has
met the criteria of § 563 of the Foreign Operations, Export Financing and
Related Programs Appropriations Act, 2006, as carried forward by the 2007
Continuing Resolution. This decision will release about $6 million in U.S.
assistance suspended on May 31, 2007. Serbia recently took several steps to
comply with § 563, such as by facilitating the arrest of two fugitive indictees
for trial before the International Criminal Tribunal for the Former Yugoslavia
(ICTY) The U.S. expects all leaders in the region to assist in arresting all
indictees still at large (especially Ratko Mladic and Radovan Karadzic) for
transfer to the ICTY. Citation: Press Statement # 2007/545, U.S.
Department of State, Office of Spokesman Sean McCormack, Washington, D. C.,
Monday, July 3, 2007.
