2009
International Law Update, Volume 15, Number 6 (June)
Legal Analyses published by Mike Meier,
Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com.
EXTRADITION
In case involving extradition to France, Ninth Circuit
finds that Government did not violate immunity agreement of Defendant with
federal prosecutor in California by granting immunity for incriminating
admissions for any U.S. prosecution while disclosing them to French officials
to aid Defendant’s prosecution in France
Federal authorities charged Aaron Cain McKnight (Defendant)
and several others with importing the illegal mood‑enhancing drug “Ecstasy” [a
synthetic amphetamine analog or MDMA] from France to the U.S. Defendant agreed
to cooperate with the Government in exchange for “direct use immunity” that is,
that the U.S. Attorney’s Office for the Central District of California would
not use his statements against him. The written proffer statement with the U.S.
Attorney provided that the Government would not use Defendant’s incriminating
statements “in its case‑in‑chief or for the purpose of any sentencing hearing.”
Defendant later pled guilty to several counts and received a sentence of 100
months in prison.
In the meantime, the Tribunal de Grande Instance de Paris,
France, had convicted Defendant of Ecstasy trafficking and had sentenced him in
absentia. The evidence against him in the French court included Defendant’s
proffer statement to the U.S. Attorney. After a federal court had sentenced
Defendant federal authorities took him into custody pursuant to a provisional
extradition request of the French Government based on the Extradition Treaty,
with agreed minute [2179 U.N.T.S. 341; in force Feb. 1, 2002].
Defendant filed a habeas corpus petition under 28 U.S.C. §
2241, claiming that the Government violated the covenant of good faith and fair
dealing implied in his immunity agreement with the U.S. Attorney. Because the
Government had granted him immunity from his incriminating admissions in any
U.S. prosecution, Defendant argued that he “reasonably expected” that the U.S.
Government would not disclose the admissions to any foreign jurisdiction for
use in a foreign prosecution.
The District Court denied the habeas petition because the
immunity agreement in terms applied only to U.S. prosecutions. Defendant duly
noted an appeal. The U.S. Court of Appeals for the Ninth Circuit, however,
affirms.
In cases like this, ordinary contract principles apply. The
language of the agreement with the U.S. Attorney is unambiguous and does not
limit the Government’s freedom to share its contents with interested foreign
authorities. [Defendant claims that a duty of good faith and fair dealing
impliedly arises out of the agreement, and embodies the reasonable expectation
that the U.S. Attorney would not facilitate the use of his proffer in other
jurisdictions. The Court disagrees and, finding that the plain language of the
agreement fails to support his argument, explains its holding.
“Future government witnesses are on notice that, if they
wish to prevent federal prosecutors from sharing incriminating statements with
other sovereigns (including, for example, the State governments), they must
reduce that expectation to writing. Conversely, prosecutors should not be
surprised when such protection is sought by cooperating witnesses, or when, if
such protection is refused, witnesses decline the agreement. Because there was
no written agreement preventing [foreign] disclosure of the statements here,
however, the government did not breach the agreement.” [894]
Citation: McKnight v. Torres, 563 F.3d 890 (9th Cir.
2009).
FORUM NON CONVENIENS
In consolidated appeal of two cases dismissed on forum
non conveniens grounds to be litigated in courts of Argentina, Seventh Circuit
affirms and reviews law underlying that discretionary doctrine
The Seventh Circuit consolidated two appeals because they
present similar issues as to forum non conveniens [FNC]. The Plaintiffs in one
case are Argentine citizens residing in Argentina who filed lawsuits here
against American manufacturers for injuries sustained in Argentina. This case,
Abad v. Bayer Corporation, is a class action on behalf of 600 Argentine
hemophiliacs; they claim that their use of the defendant manufacturers clotting
factor had infected them with the AIDS virus. The other case, Pastor v.
Bridgestone/Firestone North American Tire, LLC, involves a rollover accident of
a Ford Explorer equipped with Bridgestone/Firestone tires. In both cases, the
district courts dismissed on FNC grounds.
The U.S. Court of Appeals for the Seventh Circuit, in a
scholarly and analytical opinion, affirms. “The plaintiffs are right that there
is a presumption in favor of allowing a plaintiff his choice of courts rather
than insisting that he choose the optimal forum, as we explained in U.S. O.
Corp. v. Mizuho Holding Co., 547 F.3d 749, 752‑53 (7th Cir. 2008), though it is
not so powerful a presumption as they think. A case should not be lightly
shifted from one court to another, forcing the plaintiff to start over,
especially when the rules of personal jurisdiction often force a plaintiff to
litigate on the defendant’s home turf. Yet, in the two cases before us, the
plaintiffs could have sued – all concede – in their own nation’s courts, the
courts of Argentina, where the defendants would have been in the uncomfortable
position of being giant American corporations accused of killing and injuring
citizens of Argentina.” [666]
“When application of the [FNC] doctrine would send the
plaintiffs to their home court, the presumption in favor of giving plaintiffs
their choice of court is little more than a tie breaker. And so our focus in
these cases must be on particularized circumstances that lean in favor of U.S.
courts or foreign courts. For guidance, judges often turn to a multifactor test
for applying [FNC] that the Supreme Court laid down more than 60 years ago, in
[Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508‑9, 67 S.Ct. 839, 91 L.Ed. 1055
(1947)]. ”
“American law has long been hospitable to multifactor tests
– maybe too hospitable. ... The factors that the Gulf Oil opinion deemed
relevant to whether to dismiss a suit on the basis of [FNC] form quite a
laundry list: ‘the relative ease of access to sources of proof; availability of
compulsory process for attendance of unwilling, and the cost of obtaining
attendance of willing, witnesses; possibility of view of premises, if view
would be appropriate to the action; and all other practical problems that make
trial of a case easy, expeditious and inexpensive.’” [667‑668]
“The Court prefaced the list with the rather alarming
statement that ‘it has not been attempted to catalogue the circumstances which
will justify or require either grant or denial of remedy. The doctrine leaves
much to the discretion of the court to which plaintiff resorts.’ Gulf Oil,
supra at 508. Thus, long as it is, the list is incomplete. That gives a party
free rein to suggest any reason that occurs to him for why the case should be
litigated in one court rather than another. But because there is a list, and a
list sponsored by the Supreme Court, albeit in a case more than half a century
old, parties find it difficult to resist trying to make their case correspond
to the items in the list, however violent a dislocation of reality results.”
“And so the Plaintiffs in our two cases argue that the
United States has a greater interest in the litigation than Argentina because
the Defendants are American companies, while the Defendants argue that
Argentina has a greater interest than the United States because the Plaintiffs
are Argentines. The reality is that neither country appears to have any
interest in having the litigation tried in its courts rather than in the courts
of the other country; certainly no one in the government of either country has
expressed to us a desire to have these lawsuits litigated in its courts.”
“For this is ordinary private tort litigation that
‘implicates,’ as some judges like to say, no national interest. So, rather than
proceed down the list, we shall simply consider whether the district judge in
either case was unreasonable in deciding that, given the circumstances of each
case, the remaining litigation should be conducted in Argentina rather than in
Illinois or Florida.” [668]
“In most U.S. jurisdictions, even those that use a ‘most significant
relationship’ test to resolve conflict of laws issues in tort suits, there is a
practical presumption that the law of the place where the tort occurred (‘lex
loci delicti’) governs the substantive questions in the suit, see e.g., Carris
v. Marriott International Inc., 466 F.3d 558, 560 (7th Cir. 2006) (Illinois
law) (describing lex loci delicti as the ‘default rule’ of choice of law in
tort cases even in jurisdictions that have embraced ‘most significant
relationship’ or other alternative choice of law rules) ... And the place where
the tort occurred is where the injury occurred, which in the present cases was
Argentina, rather than where the conduct (in this case the manufacture of the
clotting protein) that caused the injury occurred; for ‘there is no tort
without an injury.’ Rozenfeld v. Medical Protective Co., 73 F.3d 154, 156 (7th
Cir. 1996).” [669]
“The superior competence of the Argentine courts to decide
the merits of Abad is especially great because of the dearth of Argentine legal
materials relating to the critical question of what the parties call
‘alternative causation theories’ but is more informatively called the ‘market
share’ approach to tort causation. As in the DES cases in the United States,
e.g., Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607
P.2d 924 (1980), the Plaintiffs do not know which blood‑solids manufacturer or
manufacturers made the blood solids that they took. In such a case an
attractive approximation to the responsibility of each manufacturer who might
have been the supplier of the blood solids to the Plaintiff is the
manufacturer’s share of the relevant market for those blood solids; and the
relevant market is Argentina.”
“We cannot be sure that the Argentine courts would impose
market‑share liability. But causation is generally treated similarly by U.S.
and Argentine courts, .... [...] Argentine courts would either apply such an
approach, or, what would be even better from a plaintiff’s standpoint, impose
joint and several liability on all producers who might have supplied the
defective product to the plaintiff.”
“But whether those courts would recognize either approach
does not bear on whether to keep the litigation in the United States, since, as
we said, an American court would apply the tort law of Argentina, including of
course its causal principles. Rather, the uncertainty of Argentine law is a
compelling reason why this case should be litigated in Argentina rather than in
the United States.”
“When the decision of a case is uncertain because the
orthodox sources of law do not provide adequate guidance (apparently no code
provision or judicial decision in Argentina accepts or rejects marketshare
liability), the court asked to decide must make law, in this case Argentine law;
and an Argentine court is the more competent maker of Argentine law – more
competent in the sense of more legitimate, but also more competent in the sense
of being better able to decide the case correctly because more at home in the
relevant [Argentine] legal tradition than an American court would be.” [670‑671]
“[In Pastor, there] is no issue of ‘alternative causation
theories’ in this rather routine products‑liability case, although some
uncertainty remains about Argentine tort law because, so far as we can
determine, the civil code and judicial decisions in Argentina do not address
many of the issues that can arise in an accident case. The district judge
correctly ruled that the law applicable to the suit is Argentine law, and,
other things being equal, an Argentine court is, as we said, more competent
than an American court to apply Argentine law, and, a fortiori, to create it,
which may be necessary, though this is less likely in Pastor than in Abad.”
[671] In sum, the Court finds that in both cases the forum non conveniens
dismissal was not an abuse of discretion.
Citation: Abad v. Bayer Corp., 563 F.3d 663 (7th Cir.
2009).
SOVEREIGN IMMUNITY
In actions against Iraq by U.S. citizens and their
relatives for allegedly imprisoning and mistreating them during and after First
Gulf War at time when Foreign Sovereign Immunities Act (FSIA) contained
exception to FSIA immunity for state sponsors of terrorism at time when U.S.
had designated Iraq as state sponsor of terrorism, U.S. Supreme Court rules
that changes in statutory language and removal of designation by President Bush
deprived federal courts of jurisdiction over such cases
The Foreign Sovereign Immunities Act of 1976 (FSIA), 28
U.S.C. §§ 1602ff, bars the bringing of law suits against other nations in
American courts, with a number of exceptions. One of them lay in § 1605(a)(7)
(now repealed) which stripped a foreign state of immunity in any suit arising
from certain acts of terrorism that took place when the U.S. was designating
that state as a sponsor of terrorism under § 6(j) of the Export Administration
Act of 1979(EAA) or § 620A of the Foreign Assistance Act of 1961(FAA).
The U.S. had listed Iraq as a sponsor of terrorism in 1990,
but in 2003, after the American‑led invasion of Iraq, Congress enacted the
Emergency Wartime Supplemental Appropriations Act (EWSAA); § 1503 of the Act
contained a proviso clause authorizing the President to make §620A of the FAA
or any other provision of law that applies to countries that have supported
terrorism no longer applicable to Iraq. Although President Bush did exercise
that authority, the D.C. Circuit held in Acree v. Republic of Iraq, 370 F.3d
41, 48 (2004) that the EWSAA did not allow the President to waive § 1605(a)(7),
and thereby to restore Iraq’s sovereign immunity, for claims arising from
actions Iraq carried out while designated as a state sponsor of terrorism.
Congress later repealed § 1605(a)(7) in § 1083(b)(1)(A)(iii)
of the National Defense Authorization Act for Fiscal Year 2008 (NDAA) and
replaced it with a new, roughly similar exception, § 1083(a). The NDAA also
declared that nothing in EWSAA ever authorized, directly or indirectly, the making
inapplicable of any provision of [the FSIA] or the removal of the jurisdiction
of any court § 1083(c)(4). This seemingly approved of the holding in Acree; and
authorized the President to waive any provision of this section with respect to
Iraq under certain conditions, § 1083(d). On the same day that the President
*2185 signed the NDAA into law, he also waived all of the sections formerly
applicable to Iraq in § 1083.
Before the Supreme Court, Respondents in the Simon case are
American nationals (and relatives of those nationals) who allege that the
Hussein regime captured and cruelly mistreated them during the 1991 Gulf War.
The Beaty respondents are the children of two other Americans, Kenneth Beaty
and William Barloon, who claim that the same regime similarly abused them in
the aftermath of that war. Each set of Respondents filed suit in early 2003
against Iraq in the District of Columbia federal court, alleging violations of
local, federal, and international law.
Citing Acree, the lower courts declined to dismiss either
case on jurisdictional grounds. The D.C. Circuit also rejected Iraq’s
alternative argument that, even if FSIA § 1605(a)(7)’s application to it
survived the President’s EWSAA waiver, NDAA § 1083(b)(1)(A)(iii) had repealed
the provision and that the President had waived NDAA § 1083(a)’s new exception
with respect to Iraq under his § 1083(d) authority. The court held instead that
it retained jurisdiction over cases pending against Iraq after the enactment of
the NDAA.
The Supreme Court consolidated the above cases, however, and
granted certiorari. In a unanimous opinion, the Court reverses on the grounds
that Iraq is no longer subject to suit in federal courts.
In the first place, the District Court lost jurisdiction
over both suits in May 2003, when the President effectuated his EWSAA authority
to make § 1605(a)(7) inapplicable with respect to Iraq. “To a layperson, the
notion of the President’s suspending the operation of a valid law might seem
strange. But the practice is well established, at least in the sphere of
foreign affairs. See United States v. Curtiss‑Wright Export Corp., 299 U.S.
304, 322‑324 (1936) (canvassing precedents from as early as the ‘inception of
the national government’). The granting of Presidential waiver authority is
particularly apt with respect to congressional elimination of foreign sovereign
immunity, since the granting or denial of that immunity was historically the
case‑by‑case prerogative of the Executive Branch. See, e.g., Ex parte Peru, 318
U.S. 578, 586‑590 (1943).” [2188]
“It is entirely unremarkable that Congress, having taken
upon itself in the FSIA to ‘free the Government’ from the diplomatic pressures
engendered by the case‑by‑case approach, Verlinden B.V. v. Central Bank of
Nigeria, 461 U.S. 480, 488, 489 (1983), would nonetheless think it prudent to
afford the President some flexibility in unique circumstances such as these. .
. . In brief, § 1605(a)(7) stripped immunity from a foreign state for claims
arising from particular acts, if those acts were taken at a time when the state
was designated as a sponsor of terrorism. . . .”
“Toward that end, Congress enacted [EWSAA] in April 2003.
Section 1503 of that Act authorized the President to ‘make inapplicable with
respect to Iraq section 620A of the [FAA] of 1961 or any other provision of law
that applies to countries that have supported terrorism.’ President George W.
Bush exercised that authority to its fullest extent in May 2003, declaring
‘inapplicable with respect to Iraq section 620A of the [FAA] of 1961 ... and
any other provision of law that applies to countries that have supported
terrorism.’ 68 Fed. Reg. 26459 . . . .”
“There is yet another legislative enactment, and yet another
corresponding executive waiver, that bear on the question presented. The
National Defense Authorization Act for Fiscal Year 2008 (NDAA), 122 Stat. 3,
was passed in January 2008. That Act (1) repealed the FSIA’s terrorism
exception, § 1083(b)(1)(A)(iii); (2) replaced it with a new, roughly similar
exception, § 1083(a); (3) declared that nothing in § 1503 of the EWSAA had
‘ever authorized, directly or indirectly, the making inapplicable of any
provision of chapter 97 of title 28, United States Code, or the removal of the
jurisdiction of any court of the United States’ . . ., § 1083(c)(4), 122 Stat.
343; and (4) authorized the President to waive ‘any provision of this section
with respect to Iraq’ so long as he made certain findings and so notified
Congress within 30 days, § 1083(d), id., at 343‑344.”
“Section 1503 of the EWSAA consists of a principal clause,
followed by eight separate proviso clauses. The dispute in these cases concerns
the second of the provisos. The principal clause and that proviso read: ‘The
President may suspend the application of any provision of the Iraq Sanctions
Act of 1990: ... Provided further, That the President may make inapplicable
with respect to Iraq section 620A of the [FAA] of 1961 or any other provision
of law that applies to countries that have supported terrorism....’ 117 Stat.
579.” [2190]
“Iraq and the United States both read the quoted proviso’s
residual clause as sweeping in the terrorism exception to foreign sovereign
immunity. Certainly that reading is, as even the Acree Court acknowledged,
‘straightforward.’ 370 F.3d, at 52.”
“In the Court of Appeals’ view, the second proviso related
to that subsection of the Iraq Sanctions Act (ISA)(referred to in the principal
provision) which dictated that certain enumerated statutory provisions,
including § 620A of the [FAA] of 1961 and ‘all other provisions of law that
impose sanctions against a country which has repeatedly provided support for
acts of international terrorism,’ shall be fully enforced against Iraq. §
586F(c), 104 Stat. 2051 . . . .”
“This is a highly sophisticated effort to construe the
proviso as a limitation upon the principal clause. Ultimately, however, we
think that effort neither necessary nor successful. It is true that the
‘general office of a proviso is to except something from the enacting clause,
or to qualify and restrain its generality.’ United States v. Morrow, 266 U.S.
531, 534‑535 (1925).”
“But its general (and perhaps appropriate) office is not,
alas, its exclusive use. Use of a proviso ‘to state a general, independent rule,’
Alaska v. United States, 545 U.S. 75, 106 (2005), may be lazy drafting, but is
hardly a novelty. See, e.g., McDonald v. United States, 279 U.S. 12, 21 (1929).
Morrow itself came with the caveat that a proviso is sometimes used ‘to
introduce independent legislation.’ We think that was its office here. The
principal clause granted the President a power; the second proviso purported to
grant him an additional power. It was not, on any fair reading, an exception
to, qualification of, or restraint on the principal power. . . .”
“Even if the best reading of the EWSAA proviso were that it
encompassed only statutes that impose sanctions or prohibit assistance to state
sponsors of terrorism, see Acree, 370 F.3d, at 54, we would disagree with the
Court of Appeals’ conclusion that the FSIA exception is not such a law.
Allowing lawsuits to proceed certainly has the extra benefit of facilitating
the compensation of injured victims, but the fact that § 1605(a)(7) targeted
only foreign states designated as sponsors of terrorism suggests that the law
was intended as a sanction, to punish and deter undesirable conduct.”
“Stripping the immunity that foreign sovereigns ordinarily
enjoy is as much a sanction as eliminating bilateral assistance or prohibiting
export of munitions (both of which are explicitly mandated by § 586F(c) of the
[ISA]. The application of this sanction affects the jurisdiction of the federal
courts, but that fact alone does not deprive it of its character as a
sanction.”
“Having concluded that the President did render 28 U.S.C. §
1605(a)(7) ‘inapplicable with respect to Iraq,’ and that such action was within
his assigned powers, we consider Respondents’ argument that the inapplicability
of the provision does not bar their claims, since they arise from Iraq’s
conduct prior to the President’s waiver. Any other interpretation, they say,
would cause the law to operate in a disfavored retroactive fashion. . . . ”
“As for the judicial presumption against retroactivity, that
does not induce us to read the EWSAA proviso more narrowly. Laws that merely
alter the rules of foreign sovereign immunity, rather than modify substantive
rights, are not operating retroactively when applied to pending cases. Foreign
sovereign immunity ‘reflects current political realities and relationships,’
and its availability (or lack thereof) generally is not something on which
parties can rely ‘in shaping their primary conduct.’ Republic of Austria v.
Altmann, 541 U.S. 677, 696 (2004). . . .”
“We think the better reading of the eighth EWSAA proviso
(the ‘sunset’ clause) is that the powers granted by the section could be
exercised only for a limited time, but that actions taken by the President
pursuant to those powers (e.g., suspension of the [ISA]) would not lapse on the
sunset date. If it were otherwise, then the [ISA] – which has never been
repealed, and which imposes a whole host of restrictions on relations with Iraq
– would have returned to force in September 2005. Nobody believes that is so.”
“When the President exercised his authority to make
inapplicable with respect to Iraq all provisions of law that apply to countries
that have supported terrorism, the exception to foreign sovereign immunity for
state sponsors of terrorism became inoperative as against Iraq. As a result,
the courts below lacked jurisdiction; we therefore need not reach Iraq’s
alternative argument that the NDAA subsequently stripped jurisdiction over the
cases. The judgments of the Court of Appeals [in cases Nos. 07‑1090, and 08‑539],
are reversed.”
Citation: Republic of Iraq v. Beaty, 129 S. Ct. 2183,
77 USLW 4447 (Sup. Ct. 2009).
TERRORISM
Upon remand from United States Supreme Court after
Boumediene decision, District of Columbia Circuit reinstates Rasul opinion
about former Guantanamo detainees, but on more limited basis, resulting in
dismissal of the case
Four British citizens claim that U.S. forces had been
illegally detaining them at the U.S. Naval Base at Guantanamo Bay from 2002
until their release in 2004. Their original complaint in federal court
contained seven counts: Counts 1, 2 and 3 involved the Alien Tort Claims Act,
28 U.S.C. § 1350 [ATCA] and international law. Count 4 involved the Geneva
Conventions [see Geneva Convention Relative to the Treatment of Prisoners of
War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (setting forth rights of
prisoners of war); Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 973 U.N.T.S. 336 (setting
forth rights of civilians during time of war)]. Counts 5 and 6 alleged
violations based directly upon the Fifth and Sixth Amendments of the
Constitution see Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Count 7
involved the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb.
The District of Columbia Circuit eventually confirmed the
district court’s dismissal of Counts 1 to 3 for lack of jurisdiction; Counts 5
and 6 on the merits; and Count 7 because the Plaintiffs were not among the
protected persons for whom RFRA created a private right of action to remedy
government burdens on the exercise of religion.
The U.S. Supreme Court vacated the opinion of the U.S. Court
of Appeals for the District of Columbia Circuit in Rasul v. Myers, 512 F.3d 644
(D.C. Cir. 2008) (Rasul I), and remanded for further consideration in light of
Boumediene v. Bush, 553 U.S. ___, 28 S. Ct. 2229, 78 U.S.L.W. 4391, 4408
(2008).
“The main question in Boumediene was whether a provision in
the Military Commissions Act, Pub.L. No. 109‑366, 120 Stat. 2600 (2006)
(codified in part at 28 U.S.C. § 2241 & note) (MRA), depriving federal
courts of habeas corpus jurisdiction over petitions filed by Guantanamo
detainees, violated the clause of the Constitution governing suspension of the
writ, ART. 1, § 9, cl. 2. [[128 S.Ct. at 2237]]. Holding that the Suspension
Clause extended to Guantanamo, the Court struck down the jurisdiction‑stripping
provision of the MRA as an unconstitutional suspension of the writ. Id. The
Court acknowledged that it had never before determined that the Constitution
protected aliens detained abroad, id. at 2262, and explicitly confined its
constitutional holding ‘only’ to the extraterritorial reach of the Suspension
Clause, id. at 2275.”
“The Court stressed that its decision ‘does not address the
content of the law that governs petitioners’ detention.’ Id. at 2277 ... With
those words, the Court in Boumediene disclaimed any intention to disturb
existing law governing the extraterritorial reach of any constitutional
provisions, other than the Suspension Clause. See, e.g., Johnson v.
Eisentrager, 339 U.S. 763 (1950) (holding that aliens detained on a U.S.
military base outside sovereign U.S. territory have no due process rights) ...
; see also Kiyemba v. Obama, 555 F.3d 1022, 1026 (D.C. Cir. 2009) (holding that
alien detainees at Guantanamo cannot invoke the Due Process Clause).” [529].
The District of Columbia Circuit, in a per curiam opinion,
reinstates its prior opinion, but on a narrower basis. The Court concludes that
there is nothing in Boumediene that would affect its rulings on Counts 1 to 4.
Plaintiffs argue, however, that Boumediene does affect Counts 5 to 7 (Bivens,
and RFRA). Counts 5 and 6 raise questions as to whether aliens outside the
sovereign territory of the U.S. enjoy due process rights. The Court disagrees
with the Plaintiffs’ arguments on this issue.
“Discounting the precedents we have just described,
Plaintiffs say their position follows from the century‑old Insular Cases. A
series of Supreme Court decisions from De Lima v. Bidwell, 182 U.S. 1 (1901),
to Balzac v. Porto Rico, 258 U.S. 298 (1922), extended ‘fundamental personal
rights’ to inhabitants of the ‘unincorporated’ U.S. territories, such as Puerto
Rico, Guam and the Philippines. See generally Dorr v. United States, 195 U.S.
138 (1904).”
“The United States maintained complete sovereignty over
these territories, ... and Congress governed the territories pursuant to its
Art. IV, § 3, power to regulate ‘Territory or other Property belonging to the
United States.’ [United States v. Verdugo‑Urquidez, 494 U.S. 259, 268 (holding
that the Fourth Amendment does not protect nonresident aliens against
unreasonable searches or seizures conducted outside sovereign U.S. territory);
Reid v. Covert, 354 U.S. 1, 13 (1957) (plurality opinion)] ...”
“Neither factor applies to Guantanamo. The Insular Cases
therefore could not have ‘clearly established’ that constitutional rights
extend to aliens held at Guantanamo. In short, there was no authority for – and
ample authority against – Plaintiffs’ asserted rights at the time of the
alleged misconduct. The Defendants are therefore entitled to qualified immunity
against Plaintiffs’ Bivens claims.” [532]
Only Count 7 invoking RFRA remains. “Our vacated opinion
held, as a matter of statutory interpretation, that Plaintiffs were not protected
‘person[s]’ within the meaning of RFRA, 42 U.S.C. § 2000bb‑1(a). Boumediene
could not possibly have altered – retroactively – the meaning of RFRA. We will
summarize our analysis in Rasul I.”
“In enacting RFRA, Congress intended to incorporate the standard
governing free exercise claims that prevailed before the Supreme Court’s 1990
decision in Employment Division v. Smith, 494 U.S. 872 (1990). See City of
Boerne v. Flores, 521 U.S. 507, 515 (1997). The aim was to restore what, in
Congress’s view, is the free exercise right the Constitution guaranteed – in
both substance and scope. We therefore held that the term ‘person’ as used in
RFRA should be read consistently with similar language in constitutional
provisions, as interpreted by the Supreme Court at the time Congress enacted
RFRA. [Rasul v. Myers, 512 F.3d 644, 670‑72 (D.C. Cir. 2008) (Rasul I)].”
“Congress legislated against the background of precedent
establishing that nonresident aliens were not among the ‘person[s]’ protected
by the Fifth Amendment, Eisentrager, supra at 783 and were not among ‘the
people’ protected by the Fourth Amendment, Verdugo‑Urquidez, supra at 269. ...
Reading RFRA in line with these precedents, we held that plaintiffs are not
protected ‘person[s]’ under this statute. Rasul I, supra at 672. We reinstate
that judgment today.” [532‑3]
The Court of Appeals therefore affirms the district court’s
dismissal of plaintiffs’ Counts 1, 2, 3, 4, 5 and 6, and reverses the district
court’s denial of defendants’ motion to dismiss Count 7.
Citation: Rasul v. Myers, 563 F.3d 527 (D.C. Cir.
2009).
TRADEMARKS
Applying Doctrine of Foreign Equivalents, U.S. Court of
Appeals for Federal Circuit remands Trademark Trial and Appeal Board (TTAB)
decision regarding “Moskovskaya vodka” because TTAB had applied incorrect test
for materiality in determining that mark was geographically deceptive
The TTAB affirmed a decision by an examining attorney of the
U.S. Patent and Trademark Office (PTO) that declined to register the mark
MOSKOVSKAYA for vodka. Even though the name might indicate a relationship with
Moscow, the Application admitted that the vodka does not have any relationship
with Moscow except the name. The examining attorney applied the Doctrine of
Foreign Equivalents (DFE) and concluded that the mark translates as “of or from
Moscow.” Because Moscow is a generally known geographic location, the public
would likely – but mistakenly – believe that there was a link between this
vodka and Moscow. The Board found the mark geographically and deceptively
misdescriptive under 15 U.S.C. § 1052(e)(3). The applicant, Spirits
International, appealed.
The U.S. Court of Appeals for the Federal Circuit reverses.
It concludes that the TTAB applied the incorrect test for “materiality” in
determining that the mark was geographically deceptive. The Court remands to
the TTAB to determine whether there is a prima facie case of material deception
under the correct legal standard.
First, the DFE generally requires the PTO to consider the meaning
of a mark in a non‑English language to the speakers of that language. In so
doing, the PTO usually translates foreign words from common languages into
English, but this is not an absolute rule. The DFE applies only where the
ordinary American consumer would stop and translate the mark into English. See
Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396
F.3d 1369 (Fed. Cir. 2005). Furthermore, once the agency has translated the
word or phrase, its impact must be “material” under Section 1052(e)(3). The
Court then turns to the scope of the materiality requirement.
“Under the circumstances, it is clear that section (e)(3) –
like subsection (a), the false advertising provision of the Lanham Act, and the
common law – requires that a significant portion of the relevant consuming
public be deceived. That population is often the entire U.S. population
interested in purchasing the product or service.”
“We note that, in some cases, the use of a non‑English
language mark can be evidence that the product in question is targeted at the
community of those who understand that language. In such cases, the relevant
consuming public will be composed of those who are members of that targeted
community, and, as a result, people who speak the non‑English language could
comprise a substantial portion of the relevant consumers. ... There is no such
contention here.” [1356]
“Here the [TTAB] properly recognized that, in order to be
deceptive, foreign language marks must meet the requirement that ‘an
appreciable number of consumers for the goods or services at issue will be
deceived.’ ... The problem with the Board’s decision is that it elsewhere
rejected a requirement of proportionality, and discussed instead the fact that
Russian is a ‘common, modern language[] of the world [that] will be spoken or
understood by an appreciable number of U.S. consumers for the product or
service at issue,’ such number being in this case 706,000 people, according to
the 2000 [U.S.] Census. ... The Board, however, failed to consider whether
Russian speakers were a ‘substantial portion of the intended audience.’ Because
the Board applied an incorrect test, a remand is required.”
“We express no opinion on the ultimate question of whether a
substantial portion of the intended audience would be materially deceived. We
note that only 0.25% of the U.S. population speaks Russian. ... If only one
quarter of one percent of the relevant consumers was deceived, this would not
be, by any measure, a substantial portion. However, it may be that Russian
speakers are a greater percentage of the vodka‑consuming public; that some
number of non‑Russian speakers would understand the mark to suggest that the
vodka came from Moscow; and that these groups would together be a substantial
portion of the intended audience.” [1357]
Citation: In re Spirits International, N.V., 563 F.3d
1347 (Fed. Cir. 2009).
Council of European Union issues Decision against
proliferation of chemical weapons of mass destruction. The EU Council
issued Decision 2009/569/CFSP on support for the Organization for the
Prohibition of Chemical Weapons (OPCW) activities in the framework of the
implementation of the EU Strategy against Proliferation of Weapons of Mass
Destruction. The EU had begun its Strategy against such Proliferation in
December 2003. ‑ The Decision is intended to advance some elements of the EU
Strategy and support the OPCW (Article 1). The specific OPCW projects to be
supported include: bilateral technical assistance visits; training of customs
officials on the technical aspects of the Convention on the Prohibition of the
Development, Production, Stockpiling and Use of Chemical Weapons and on their
Destruction, with annexes [entered into force April 29, 1997]. (CWC) transfers
regime; CWC and chemical process safety workshops; visits to chemical weapons
destruction facilities; and bilateral technical assistance visits to African
countries. The Annex to the Decision sets forth more detailed activities. Citation:
2009 Official Journal of the European Union (L 197) 96, 29 July 2009.
Council of European Union imposes wide range of anti‑dumping
duties on imports of American biodiesel fuel. The European Union, through
Council Regulation (EC) No 599/2009, has imposed a definitive anti‑dumping duty
on imports of biodiesel from the United States. The dumping margins set by the
EU vary from 88.4% for Green Earth Fuels of Houston, LLC, to de minimis for
Cargill, Inc. The country‑wide dumping margin was set at 39.2%. Citation: 2009 Official Journal of the
European Union (L 179) 26, 10 July 2009.
