Legal Analyses written by Mike Meier,
Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com.
2002
International Law Update, Volume 8, Number 10 (October)
HUMAN
RIGHTS
Although
California court had previously convicted American woman of abusing her second
child, European Court of Human Rights rules that ex parte seizure of her
newborn by British authorities followed by adoption proceedings without counsel
breached her rights of access to courts and unduly interfered with her family
rights under European Human Rights Convention
This
is a proceeding in the European Court of Human Rights (ECHR) in which Pam
(fictional name), along with her husband and child (applicants), complained
that the British government had violated rights assured to her under the
Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4
November 1950; T.S. 71 (1952); Cmd 8969) (the Convention).
A
U.S. citizen originally residing in California, Pam gave birth to a son in
January 1976. Pam next married her first husband and then, in 1985, had another
son, Baker (fictional name). Seven years later, the couple separated and fought
over Baker’s custody. Between 1990 and 1994, Pam had taken Baker to their
physician 47 times for various complaints, such as diarrhea and fever. Finally,
a stool test at a hospital showed the presence of a strong laxative in Baker’s
system, leading a doctor to report Pam for laxative poisoning.
California
authorities soon took Baker into protective custody as a suspected victim of
Munchausen Syndrome by Proxy (MSBP). According to the ECHR, MSBP “is a label
sometimes used to describe a form of psychiatric illness, mainly found in
women, who seek attention by inducing illness in their children or inventing
accounts of illness in their children, and by repeatedly presenting their
children to the medical authorities for investigation and treatment.”[¶ 13]
In
October 1995, a California court convicted Pam of cruelty to Baker and
endangering his health. It sentenced her to three years probation and suspended
a sentence of three months in jail. The court also ordered her to complete a
“psychological and psychiatric treatment program.” Violating her probation order,
Pam went to the U.K. to visit Charles (fictional name), an English social
worker whom she had met in the U.S., where he was doing doctoral research on
MSBP. In September 1997, Pam and Charles got married in the U. K. and Pam soon
found out that she was expecting Sara (fictional name).
A
California district attorney learned of that pregnancy and got in touch with
the local U.K. authority -- the Rochdale Metropolitan Borough Council
(Rochdale). He outlined the circumstances that had led to Pam’s California
conviction. Rochdale decided to place Sara on the child protection register and
to do a full risk evaluation pursuant to Section 47 of the Children Act of
1989.
Seemingly
in complete denial about the California events, Pam and Charles began to
evasively resist the assessment. After its medical expert concluded that Pam
posed a high level of risk to Sara, Rochdale asked the High Court for an
emergency protection order (EPO) effective at Sara’s birth. After an ex parte
hearing, the High Court issued the EPO.
As
soon as Sara entered the world in May 1998, authorities served the EPO on the
parents and placed the newborn in foster care. On the same day, the High Court
let Pam’s attorneys withdraw from the case, based on their complaints that Pam
was demanding that they use unreasonable tactics. Viewing a substantial delay
as inimical to the final resolution of Sara’s future, however, the judge then
denied Pam a continuance to enable her to have her legal aid certificate
reinstated. Finally, the judge opined that Pam clearly understood the extensive
documentation and that she had the intelligence to enable her to put on her own
case clearly and coherently.
The
judge later entered a care order and, after twenty more days of hearings with
many witnesses, an order freeing Sara for adoption. He spurned Pam’s claim that
the lack of legal representation had robbed her of a realistic chance to make
out a persuasive case. Although the judge remarked that there might seem to be
an “element of railroading,” he stressed that Sara’s interests had to be
uppermost.
Unable
to get leave to appeal to the Court of Appeal (Civil Division), Pam, Charles
and Sara (applicants) applied to the ECHR in Strasbourg, urging that the
British government had breached their rights under Convention Articles 6 and 8.
Article
6(1) of the Convention in relevant part provides: “In the determination of his
civil rights and obligations ... everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal
established by law.”
In
addition, Article 8 provides in part: “1. Everyone has the right to respect for
his ... family life; 2. There shall be no interference by a public authority
with the exercise of this right except such as is in accordance with the law
and is necessary in a democratic society ... for the protection of health ...
or for the protection of the rights and freedoms of others.”
The
applicants contended first that, under Article 6, the interests of justice
demanded that she have counsel in complex judicial proceedings which had such
serious consequences for all three applicants. A seven-judge panel of the ECHR
agrees.
“Firstly,
art 6(1) of the Convention embodies the right of access to a court for the
determination of civil rights and obligations. [Cite] Failure to provide an
applicant with the assistance of a lawyer may breach this provision, where such
assistance is indispensable for effective access to court, ... by reason of the
complexity of the procedure or the type of case.”
“...
[T]he right of access to court is not absolute and may be subject to legitimate
restrictions. ... [T]he restriction will not be incompatible with art 6 where
the limitation did not impair the very essence of the right and where it
pursued a legitimate aim, and there was a reasonable relationship of
proportionality between the means employed and the aim sought to be achieved.”
[¶¶ 89-90]
The
Court then applies these general principles to applicants’ case. “Recognising
that the courts in this matter were endeavouring in good faith to strike a
balance between the interests of the parents and the welfare of [Sara], the
court is nevertheless of the opinion that the procedures adopted not only gave
the appearance of unfairness but prevented the applicants from putting forward
their case in a proper and effective manner on the issues which were important
to them.”
“For
example, ... the judge's decision to free [Sara] for adoption gave no
explanation of why direct contact was not to be continued or why an open
adoption with continued direct contact was not possible, matters which the
applicants apparently did not realise could, or should, have been raised at
that stage. The assistance afforded to [Pam] by the counsel for other parties
and the latitude granted by the judge to [Pam] in presenting her case was no
substitute, in a case such as the present, for competent representation by a
lawyer instructed to protect the applicants’ rights.” [¶ 99]
The
ECHR then turns to applicants’ claims under Convention Article 8 with a
preliminary observation. “The mutual enjoyment by parent and child of each
other's company constitutes a fundamental element of family life, and domestic
measures hindering such enjoyment amount to an interference with the right
protected by art 8 of the Convention. [Cite] Any such interference constitutes
a violation of this article unless it is ‘in accordance with the law,’ pursues
an aim or aims that are legitimate under para 2 of art 8 and can be regarded as
‘necessary in a democratic society.’” [¶ 113]
“Furthermore,
the taking of a new‑born baby into public care at the moment of its birth is an
extremely harsh measure. There must be extraordinarily compelling reasons
before a baby can be physically removed from its mother, against her will,
immediately after birth as a consequence of a procedure in which neither she
nor her partner has been involved.” [¶ 116]
The
Court then explains that the “margin of appreciation”(MOA) belonging to the
competent national authorities varies widely depending on the nature of the
issues and the importance of the interests at stake. “In the circumstances, the
court considers that the decision to obtain the emergency protection order
after [Sara’s] birth may be regarded as having been necessary in a democratic
society to safeguard the health and rights of the child. The local authority
had to be able to take appropriate steps to ensure that no harm came to the
baby and, at the very least, to take the legal power to prevent [Charles] or
any other relative [from] removing the baby with a view to foiling the local
authority's actions, and thereby placing the baby at risk.” [¶ 130]
In
the Court’s view, however, the fatal flaw was the harsh manner in which the
authorities carried out the measure. “Though the harm which [MSBP] poses to a
child, particularly if continued over a long period of time, cannot be
underestimated, there was in the present case no suspicion of life‑threatening
conduct. This made the risk to be guarded against more manageable and it has
not been shown that supervision could not have provided adequate protection
against this risk.” [¶ 132]
“The
court concludes that the draconian step of removing [Sara] from her mother
shortly after birth was not supported by relevant and sufficient reasons and
that it cannot be regarded as having been necessary in a democratic society for
the purpose of safeguarding [Sara]. There has therefore been, in that respect,
a breach of the applicant parents’ rights under art 8 of the Convention.” [¶
133]
Citation:
P, C and S v. United Kingdom (App no 56547/00), [2002] 3 F.C.R. 1 (Eur. Ct.
Hum. Rts. July 16, 2002).
JUDICIAL
ASSISTANCE
In
passing on request for deposition testimony filed by parties to French
litigation, Second Circuit decides that “is found” phrase in 28 U.S.C. Section
1782 includes witnesses who are temporarily sojourning in district of federal
court which has issued subpoena
Asher
B. Edelman and five investment funds he controls (collectively, petitioner) are
minority shareholders in a French corporation, Societe du Louvre (SDL), whose
shares are traded on the Paris Stock Exchange. Between 1997 and 1999, petitioner
made three distinct, but unsuccessful, offers to buy SDL. Respondent, Claude
Taittinger, one of several members of SDL’s Board of Directors, wrote the
rejection letters. Respondent also heads Taittinger, S.A., a French company of
champagne fame, which is SDL’s controlling shareholder.
SDL
sued petitioner in the French courts charging that petitioner’s offers were
phoney ways to unlawfully manipulate the market for SDL securities. Petitioner
put in a counterclaim in the French suit. It claimed that respondent’s company
had poorly managed SDL to advantage the Taittinger family to the damage of SDL
and its minority shareholders.
Invoking
28 U.S.C. Section 1782(a), SDL persuaded a New York federal court to order
Edelman and some of his companies to turn over documentary evidence for use in
the French litigation. One of those companies was not a party to either the
French or to the present Section 1782 proceedings.
In
October 2000, petitioner responded by invoking Section 1782 to secure
information from several named individuals and entities. Petitioner alleged
that each of the designated individuals and companies lived or were found in
the Southern District of New York. Petitioner’s application, however, did not
list respondent Taittinger’s name. The court’s order did grant a broad
authorization to take depositions of “additional individuals and entities with
knowledge and information.”
On
the date of the order, Taittinger was not within the Southern District. Three
days later, officials served a subpoena on Taittinger while he was visiting the
Gagosian Art Gallery in New York City. It ordered him to be deposed and to
produce documentary evidence. Petitioner claimed that Taittinger was in the
District on business but he denied it. Both sides agree, however, that he knows
information pertinent to the French litigation.
A
French citizen, Taittinger went back to France. In December 2000, Taittinger
moved to quash the subpoena as beyond the scope of Section 1782(a). Citing
Fed.R.Civ.P. 45, he also urged that the court lacked the power to force him to
travel more than 100 miles from his residence because he was neither a party or
a party’s officer in the French case.
The
district court did not pass on the Rule 45 contention but did quash the
subpoena. The judge’s analysis rested on the theory that it was improper to
compel the discovery of evidence located in France. Petitioner took an appeal.
In a
scholarly opinion, the U.S. Court of Appeals for the Second Circuit vacates and
remands.
Section
1782(a) provides in relevant part that “[t]he district court of the district in
which a person resides or is found may order him to give his testimony or
statement ... for use in a proceeding in a foreign or international tribunal.
... To the extent that the order does not prescribe otherwise, the testimony or
statement shall be taken ... in accordance with the Federal Rules of Civil
Procedure.”
Respondent
argued to the Court that Section 1782(a) empowers the ordering of discovery
only of evidence situated in the U.S. Alternatively, he contended that, at a
minimum, the deponent had to be present in the district on the date the court
issued the order.
In
this case of first impression, the Court initially points out that Section
1782(a) geographically limits only the taking of testimony -- not the
production of documentary evidence. “The statute states that a person may be
subject to a Section 1782(a) order only if he ‘resides or is found’ in the
district in which the issuing court sits.” [177]
“Edelman
does not dispute that Taittinger resides in France, and so what remains for us
to construe is the phrase ‘is found’ in the Southern District. ... Edelman
contends [that] valid personal service alone shows that Taittinger was found in
the Southern District, that is, he was physically present there, even though
temporarily.” [Id.]
The
incorporation of the Federal Rules of Civil Procedure into Section 1782(a), in
the Court’s view, also suggests that courts should take a flexible approach to
the phrase “resides or is found,” particularly under the terms of Rule 45.
“[It] states: ‘a subpoena may be served at any place within the district of the
court by which it is issued.’ Fed.R.Civ.P. 45(b)(2). The same rule further
states that, unless a person is a party to the litigation or an officer of a
party, he cannot be compelled to travel more than 100 miles from where he
resides or works to be deposed. Fed.R.Civ.P. 45(c)(3)(A)(ii). That particular
subdivision of Rule 45 gives nonparty deponents protection from expending time
and money to comply with a subpoena. [Cite]”
“Further,
Rule 26(c) of the Federal Rules authorizes a district court to modify or even
quash a subpoena in order ‘to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.’ Together, Rules
45(c)(3)(A)(ii) and 26(c) provide ample protection from burdensome travel to
those persons from whom discovery is sought under Section 1782(a). Accordingly,
we see no need to interpret the statute's language to provide even more protection
to a nonresident prospective deponent.” [178]
“In
addition, we question the degree of ‘protection’ that would be afforded by the
temporal restriction suggested by Taittinger. Although it would allow him to
avoid a deposition, it does not appear that such a rule would be of practical
significance in the future.”
“To
comply with the restriction, a party seeking discovery would have to wait until
the unsuspecting prospective deponent wanders into the district, and then rush
to the courthouse to have a judge sign an already‑drafted discovery order (or
leave a drafted order with the judge and place a call requesting a signature
once the prospective deponent enters the district). We see no benefit in
requiring those involved in this process to be compelled to jump through such
procedural hoops.” [Id.]
Moreover,
Civil Rule 26(c) clearly gives a district court the discretion to bar or to
modify discovery requests that appear to be abusing Section 1782(a). “The
district court's prudent exercise of discretion also counters the assertion
that we risk setting an example that encourages other countries to nab our citizens
traveling abroad and subject them to extensive discovery procedures as an aid
to ongoing proceedings in U.S. courts.” [179]
In
addition, what it means to be “found” in a locale is a well-settled term in the
area of transient personal jurisdiction. “In Burnham v. Superior Court of
California, 495 U.S. 604 (1990) (plurality opinion), the Supreme Court
authorized the exercise of personal jurisdiction based on nothing more than
physical presence. [Cite]”
“Given
that this so‑called tag jurisdiction is consistent with due process, we do not
think that Section 1782(a), which is simply a discovery mechanism and does not
subject a person to liability, requires more. ... It is consistent construction
to endow the phrase ‘or is found’ in Section 1782 with the same breadth as that
accorded it in Burnham.”[Id.]
The
Court also points to references in the legislative history to temporary
sojourners as “found” in a district. “Consequently, ... we hold that if a
person is served with a subpoena while physically present in the district of
the court that issued the discovery order, then for the purposes of Section
1782(a), he is ‘found’ in that district.”
“As
a matter of law, a person who lives and works in a foreign country is not
necessarily beyond the reach of Section 1782(a) simply because the district
judge signed the discovery order at a time when that prospective deponent was
not physically present in the district. The district court therefore erred when
it quashed the subpoena on the grounds that Taittinger was not ‘found’ in the
United States.” [180]
On
remand, the Court imposes an additional requirement. “On remand, the district
court should consider whether Rule 45(c)(3)(A)(ii) requires the subpoena to be
quashed. Petitioner contends that Taittinger qualifies as an ‘officer’ of a
party in the French litigation [SDL] and therefore can be compelled to travel
more than 100 miles from home and work. If such is found to be the case, the
subpoena may be sustained.”[181]
Finally,
even if the subpoena passes muster under both Section 1782(a) and Rule 45,
basic discretionary issues remain. Judge Cardamone lays down some of the
relevant factors.
“The
statute has the twin aims of 1) providing equitable and efficient means to
assist parties engaged in international litigation and, by so doing, 2)
inviting foreign countries to provide similar assistance to our courts. [Cites]
Further, Section 1782(a) should not be applied in a way that will create
obvious confusion or skew the results in the foreign litigation. [Cites]”
“Accordingly,
the district court should consider the effect of its decision on the
‘procedural parity’ of the parties to the French litigation. [Cites] In this
case, [SDL] has already obtained discovery in the United States. In fact it was
the French company, with which Taittinger is closely associated, that first
filed for a discovery order under Section 1782(a). The district court should
consider these factors if it reaches the point of having to exercise its
discretion.” [Id.]
Citation:
In re Application of Edelman, 295 F.3d 171 (2nd Cir. 2002).
SOVEREIGN
IMMUNITY
Where
default judgment against Iran under 28 U.S.C. 1605(a)(7) of FSIA turned out to
be unenforceable, and claimant had chosen compensation under Victims Protection
Act (VPA), D.C. Circuit holds that claimant had thereby relinquished his claims
to Iranian assets which U.S. is regulating under IEEPA
Stephen
Flatow obtained a $225 million default judgment, including compensatory and
punitive damages, against the Government of Iran and several Iranian officials
under 28 U.S.C. Section 1607(a)(7) of the Foreign Sovereign Immunities Act of
1976 (FSIA). The claims arose from the death of 20-year-old Alisa Flatow in
April 1995 after a suicide bomber of the Islamic Jihad had driven a van with
explosives into her bus in the Gaza Strip. Although Iran allegedly sponsors
this extremist group, Flatow could not collect on his judgment.
On
October 28, 2000, the Victims of Trafficking and Violence Protection Act of
2000, [Pub.L. No. 106-386, 114 Stat. 1464 (2000)] (VPA) became law to provide
compensation for certain victims of terrorist acts. Flatow received more than
$26 million under the VPA.
The
VPA offers claimants two payment options. The first is equivalent to 110
percent of the compensatory damages awarded by a court under 28 U.S.C. Section
1605(a)(7) plus post-judgment interest. The recipient, however, has to give up
all rights and claims to punitive damages.
The
second option is 100 percent of the judicially awarded compensatory damages
under 28 U.S.C. Section 1605(a)(7) plus post-judgment interest. Here, the
claimant must surrender all rights to execute against, or attach, all property
at issue in claims against the U.S. before an international tribunal. In a
later Federal Register notice, the U.S. Treasury (UST) explained that the law
bars those claimants who choose the 100 percent option from attaching almost
all Iranian assets held by the U.S. government (See 65 Fed. Reg. 70382, 70384,
Nov. 22, 2000).
Flatow
elected the second option, and sought post-judgment interest from the UST on
the punitive damages award. The district court denied Flatow’s motion to compel
this latter payment. In June 1998, Flatow served a third-party subpoena on the
UST pursuant to Fed.R.Civ.P. 45, seeking information on regulated Iranian
assets.
The
UST first objected to the broad scope of the subpoena. After Flatow had chosen
option two, the UST additionally asked the court to narrow the subpoena to
reflect that Flatow had given up his rights to attach such assets under the
VPA.
Flatow
also tried to levy upon three parcels of Iranian real estate in Washington,
D.C., held by the U.S. Department of State (DOS) since 1980. The district
court, however, contracted the scope of Flatow’s subpoena to exclude Iranian
property regulated by the U.S.
The
DOS then filed a “Statement of Interest” explaining (1) that the Iranian
properties in question are immune from attachment under the Foreign Missions
Act [22 U.S.C. Section 4301-4316] and the FSIA, (2) that Executive Order 12170
[44 Fed. Reg. 65729, Nov. 15, 1979] has “blocked” them , and (3) that they are
the subject of ongoing proceedings in the Iran-U.S. Claims Tribunal.
Upon
review, the U.S. Court of Appeals for the D.C. Circuit dismisses the claim for
post-judgment interest for lack of jurisdiction. The Court, however, affirms
the district court’s interpretation of what constitutes “regulated” Iranian
property under the International Emergency Economic Powers Act (IEEPA) [50
U.S.C. Sections 1701-1702].
As
for Flatow’s claim for interest on the punitive damages, the Court finds that
it has no jurisdiction to consider this effort to compel the U. S., a
non-party. Moreover, the district court was wrong to hold that Flatow had
waived his right to recover such interest by electing the 100 percent option.
Therefore, the Court vacates the district court’s ruling on the merits of that
claim.
“Flatow
never named the United States or any agency or officer of the federal
government as a defendant in his tort action against Iran under the FSIA. He
does not claim to have served the United States or the [UST] with a summons,
much less to have made a demand on the [UST] for post-judgment interest on his
punitive damages award prior to filing his motion to compel payment. Nor did
Flatow amend his complaint to add the United States as a party, and the
district court docket does not indicate that the United States was added as a
party through joinder or intervention.”
“Furthermore,
even if the filing of the Statement were viewed as an appearance by the United
States, [cite] it clearly was a limited appearance, focusing on the attachments
and not the merits of the underlying tort action. In addition, the United
States presented a jurisdictional objection to Flatow’s motion to compel. ...
Under the circumstances, the United States took no action that subjected it to
the general jurisdiction of the district court.” [Slip op. 8-9]
The
Court then turns to Flatow’s claim that the district court had improperly
limited the subpoena. The scope of Flatow’s rights under 28 U.S.C. Section
1610(f)(1)(A) depends on the meaning of “transactions [that] are prohibited or
regulated” under IEEPA. The Court concludes that the lower court had properly
fenced in the subpoena to exclude Iranian property subject to license by the
U.S. government.
“Acting
pursuant to IEEPA’s national emergency powers, President Carter, in response to
the Iranian hostage crisis, declared a national emergency on November 14, 1979,
and issued a series of Executive Orders that, among other things, blocked the
removal or transfer of all Iranian property subject to U.S. jurisdiction. ...
The President authorized the [UST] to promulgate regulations carrying out the
blocking order.”
“Consequently,
the Department’s Office of Foreign Assets Control Regulations (“FAC”)
administers two regulatory programs involving Iranian property ... Such
property may not be transferred, paid, exported, withdrawn, or otherwise dealt
in except as provided by FAC. ...”
“Pursuant
to the Algiers Accords, the [UST] established a general license that authorized
post-1981 transactions ‘in which Iran or an Iranian entity has an interest.’
... The fact that a transaction is authorized by an FAC. license confirms that
it is ‘regulated’ by IEEPA and by regulations or licenses issued pursuant
thereto.” [Slip op. 15-17]
Citation:
Flatow v. Islamic Republic of Iran, No. 01-7101 (D.C. Cir. October 18, 2002).
REPRODUCTIVE
RIGHTS
Second
Circuit rejects constitutional challenge to “Mexico City Policy” by American
NGOs that restricts disbursement of taxpayer funds to foreign non-governmental
organizations that promote abortions as method of family planning
In
August 1984, President Ronald Reagan had proclaimed the so-called “Mexico City
Policy” which disapproved of abortion as a regular method of family planning.
The Center for Reproductive Law and Policy, along with several individuals
(jointly “plaintiffs”) sued President Bush, along with the Secretary of State
and the Administrator of the U.S. Agency for International Development (USAID),
challenging the Policy on constitutional grounds. The plaintiffs argued that it
violated their First Amendment rights to freedom of speech and association.
The
district court dismissed the case for lack of Article III standing under the
U.S. Constitution, noting that the Policy only applies to foreign NGOs, not to
domestic organizations such as plaintiffs. The U.S. Court of Appeals for the
Second Circuit dismisses the plaintiffs’ due process claim for lack of
prudential standing, and rules against the plaintiffs’ equal protection claim
on the merits.
The
Foreign Assistance Act of 1961 (FAA) authorized the President to “furnish
assistance, on such terms and conditions as he may determine, for voluntary
population planning.” See 22 U.S.C. Section 2151b(b). The President had
delegated the authority to allocate FAA funding to the Secretary of State who,
in turn, passed that power down to the USAID Administrator.
As a
result, USAID began inserting a new clause into its family assistance
agreements and contracts. It provided that, to receive USAID funding, a foreign
NGO must certify that it “will not, while receiving assistance under the grant,
perform or actively promote abortion as a method of family planning in
AID-recipient countries or provide financial support to other foreign
nongovernmental organizations that conduct such activities.” This clause
applies to all pro-choice activities of NGOs receiving these funds.
The
Appellate Court first notes that the key point of the plaintiffs’ First
Amendment claim is that the Policy deters foreign NGOs from working with
domestic NGOs for fear that the USAID might look upon such cooperation as
“promoting” abortion. Plaintiffs opined that international collaboration is
essential to fulfill their role as effective advocates of reproductive rights
in the U.S. and abroad.
The
Court points out that this issue had also come up in Planned Parenthood
Federation of America, Inc. v. Agency for International Development, 915 F.2d
59 (2d Cir. 1990). There, the Court had rejected the claim on the merits
because it found that “no constitutional rights [were] implicated.” Domestic
NGOs remain free to use their own funds to pursue abortion-related activities
in foreign countries, and foreign NGOs can choose not to accept USAID money.
A
novel issue of constitutional standing, however, lurks in this case. Between
the time of the Planned Parenthood ruling and the filing of the present action,
the Supreme Court had criticized the practice whereby a court assumes arguendo
that the plaintiffs have constitutional standing to bring the suit and goes
directly to the merits of the case. After reviewing Supreme Court precedent,
the Second Circuit decides that the highest court would recognize an exception
for challenges to a governmental provision where the Court in question has
already rejected the same challenge. Therefore, the Court holds, it may dispose
of this case on the merits without having to determine the novel question of
standing.
The
Court dismisses the plaintiffs’ First Amendment allegations for failure to
state a claim both under U.S. law and under customary international law.
Finally, the Court dismisses the equal protection claim for lack of merit
because the Policy does not infringe constitutional rights. The Supreme Court
has held that, where public funds are concerned at least, the federal
government can favor anti-abortion policies over pro-choice policies.
Citation:
The Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir.
2002).
TRADEMARKS
New
Zealand Court of Appeal holds that U.S. food company, Conagra, Inc., failed to
show that phrase “healthy choice” is more than merely descriptive and that it
is distinctive enough to entitle it to registration as New Zealand trade mark
In
1989, Conagra Inc., a U.S. company, applied to register the phrase “healthy
choice” as a trade mark under the New Zealand Trade Marks Act of 1953. McCain
Foods (Aust.) Pty. Ltd. raised two objections to the application. First, it
urged that it was already using the marks “healthy choice” and “McCain healthy
choice” with respect to the same or similar goods for which Conagra is
applying. Thus the word combination could not be distinctive of Conagra’s
goods. Secondly, the phrase does not have the quality of distinctiveness needed
to qualify for registration as a trade mark.
The
Assistant Commissioner of Trade Marks ruled that putting the two common words
together did constitute a phrase that was not too descriptive to be registered.
Moreover, both companies have been using the term “healthy choice” as a highly
valuable trade mark in New Zealand and elsewhere. This suggests that, on the
date of Conagra’s application, the phrase did have the inherent capacity to
differentiate the applicant’s products from others. The Commissioner authorized
Conagra’s registration application to proceed.
On
McCain’s appeal to the Wellington High Court, that tribunal agreed with the
Commissioner. McCain then noted its appeal to the Court of Appeal. That Court
allows the appeal and refuses the registration.
After
examining the English cases cited by the parties, the Court observes: “... [W]e
do not concur in the view expressed in some of the English decisions [Cite]
that the test ... is entirely forward‑looking. We consider that the capacity to
distinguish must be shown at the date of the application. It must be inherent
in the mark or it must be proved to exist in fact by reference to use of the
mark or by other circumstances.” [¶ 41]
The
Court also rejects the notion that McCain’s established use of the challenged
mark is probative in applicant’s case. “We do not see how evidence that the
mark is used in the trade subsequently to distinguish the same goods of a
competitor tends to prove that the mark is capable of distinguishing the goods
of the applicant. If that subsequent use is relevant at all it tends to prove
only that the mark does not in fact distinguish the goods of the applicant. We
think such later adverse use may be better treated as irrelevant since, if the
registration is granted, it will constitute infringing use that can be
restrained.” [¶ 42]
Nor
is the Court persuaded by Conagra’s successful use of the phrase elsewhere. “In
this case, the use by Conagra of its mark in the United States may show (if it
is assumed that the markets are similar) that, if promoted on a massive scale,
the mark may come to distinguish Conagra's goods. But if that occurs, the mark
may then be able to be registered on the basis of evidence of that use. ...”
“The
present case requires consideration of the word combination ‘healthy choice’ as
an unused mark by reference to its inherent capacity to distinguish. It is
necessary to have regard ... to all fair use within the scope of the monopoly
sought. It is for this reason that evidence of the manner in which the mark is
perceived by those who have encountered it in trade is of limited assistance.”
[¶¶ 44 - 45]
“In
considering descriptiveness that others might, without improper motive, wish to
use, it is necessary to consider not simply whether others might wish to employ
the word combination on product labels. Modern marketing involves extensive
promotion through oral and visual media and [is] not always confined to strict
grammatical usage.”
“Accordingly,
[it] is no answer to a descriptiveness objection to say that the mark is not a
description of a particular product. If it is a description that might
reasonably be used in relation to products of the kind in question it should
not be monopolised by one trader.”
“On
the approach we have set out, it would be unlikely that the word combination
‘baby dry’ for disposable nappies would qualify for registration in New
Zealand. That mark has recently been held eligible for registration by the
European Court of Justice: Procter & Gamble Company v. Office for
Harmonisation in the Internal Market [2002] Ch 82 [see 2002 Int’l Law Update
10, January 2002]. That decision reflects [a] shift from the previous English
law.” [¶¶ 49-50]
Finally,
the Court stresses the importance of defining the issue here: “[d]o the words
in combination convey a different meaning or allusion from that conveyed
separately, or would other traders in food products of the kind covered by the
application reasonably wish to use the word combination in normal descriptive
contexts in relation to their products?” [¶ 52]
“The
reality of modern marketing and buying of food products with emphasis on the
health value of foods and the dominance of self‑selection shopping ... mean
that combining the words ‘healthy’ and ‘choice’ could not be regarded as
creating any subtle or skillful allusion. Rather it appeals as descriptive of
products of desirable nutritional character.” [¶ 56]
Citation:
McCain Foods (Aust.) Pty. Ltd. v. Conagra, Inc., CA 176/01, [2002] 3 N.Z.L.R.
40 [N. Z. Ct. App. (Well.) June 6, 2002].
TRAVEL
RIGHTS
Ninth
Circuit upholds constitutionality of federal statute that authorizes Secretary
of State to withhold issuance of U.S. passport to parents who are substantially
behind in paying court-ordered child support
After
Eudene Eunique’s divorce, her husband received primary custody of their
children and the court ordered her to pay child support. By 1998, however, she
was more than $20,000 in arrears, preferring to spend her money on international
travel. Under 42 U.S.C. Section 652(k)(1),(2), the Secretary of State may
refuse to issue a passport to an applicant whom the Secretary of Health and
Human Services [HHS] has certified to be more than $5,000 behind in his or her
child support payments.
The
State of California certified to the HHS that plaintiff was more than $5,000
behind in her child support payments. HHS then notified the Secretary of State
who declined to issue her a passport. Eunique brought an action for declaratory
and injunctive relief, claiming that circumscribing her right to international
travel violated the constitution.
The
district court gave summary judgment to the government, however, and plaintiff
appealed. The U.S. Court of Appeals for the Ninth Circuit affirms.
Plaintiff
first contended that her constitutional right to international travel is so
basic that the government can cabin it only for the most important reasons and
only by a narrowly drawn statute. She claimed that there is a feeble, if any,
nexus between her failure to pay child support and the governmental
encroachments on her international travel rights.
The
Court concedes that there is a general constitutional right to international
travel. See Kent v. Dulles, 357 U.S. 116, 125 (1958). The Supreme Court,
however, has also recognized that the right to international travel is an
aspect of the liberty protected by the Due Process Clause of the Fifth
Amendment. Therefore, the Passport statute can pass constitutional muster if a
court finds that it provides a “reasonable fit” between a proper governmental
purpose and the means chosen to advance that purpose.
In
the Court’s view, the statute passes that test. Society looks upon a parent’s
failure to pay child support as a serious breach of good morals and the public
welfare. Furthermore, parental nonsupport forces governments to support many of
these children out of the taxpayer’s pockets.
The
Ninth Circuit concludes that “Eunique has failed to live up to a most basic
civic and even moral responsibility: the provision of support to her own
children. Yet she has brought this action because she feels that her right to
the pleasures and benefits of international travel has been improperly
curtailed.”
“Unfortunately
for her, Congress has decreed that her duties to her children must take
precedence over her international travel plans. It has ordered her priorities
for her. We hold that, without violating Eunique’s Fifth Amendment freedom to
travel internationally, Congress (and the State Department) can refuse to let
her have a passport as long as she remains in substantial arrears on her child
support obligations.” [Slip op. 14]
Citation:
Eunique v. Powell, 302 F.3d 971 (9th Cir. 2002).
WORLD
TRADE ORGANIZATION
WTO
panel finds that U.S.’s Continued Dumping and Subsidy Offset Act of 2000 which
provides for distribution of anti-dumping and countervailing duty payments to
“affected domestic producers” violates international trading rules
In
December 2000, Australia, Brazil, Chile, the EU, India, Indonesia, Japan, Korea
and Thailand asked for consultations with the U.S. about an amendment to the
U.S. Tariff Act of 1930 called the Continued Dumping and Subsidy Offset Act of
2000 (CDSOA). Congress enacted it as part of the Agriculture, Rural
Development, Food and Drug Administration and Related Agencies Appropriations
Act 2001, [Pub.L. No. 106-387, 114 Stat. 1549, sections 1001-1003] (also
referred to as the “Byrd Amendment”). Canada and Mexico later sought consultations
regarding the same matter. On October 25, 2001, the World Trade Organization
(WTO) Dispute Settlement Body (DSB) appointed a dispute settlement panel.
The
CDSOA amends Title VII of the Tariff Act of 1930 by adding a new Section 754
entitled “Continued Dumping and Subsidy Offset.” It provides that “Duties
assessed pursuant to a countervailing duty order, an anti-dumping duty order,
or a finding under the Antidumping Act of 1921 shall be distributed on an
annual basis under this section to the affected domestic producers for
qualifying expenditures. Such distribution shall be known as ‘the continued
dumping and subsidy offset.’” According to an EU press release, the U.S.
distributed almost $207 million of the proceeds collected pursuant to the Act
in January 2002.
The
Act defines “affected domestic producer” as “a manufacturer, producer, farmer,
rancher or worker representative ... that (A) was a petitioner or interested
party in support of the petition with respect to which an anti-dumping duty
order, a finding under the Antidumping Act of 1921, or a countervailing duty
order has been entered ...”
“Qualifying
expenditures” is defined as “expenditure[s] incurred after the issuance of the
anti-dumping finding or order or countervailing duty order in any of the
following categories: (A) Manufacturing facilities. (B) Equipment. (C) Research
and development. (D) Personnel training. ...”
The
complainants argue that these “offsets” constitute measures against dumping and
subsidization which the GATT does not contemplate. Neither does the
Anti-Dumping Agreement (AD Agreement), or the Subsidies and Countervailing
Measures Agreement (SCM Agreement).
In
fact, these “offsets” provide a strong incentive for U.S. parties to file or
support anti-dumping and anti-subsidy measures, thereby distorting the
application of the AD and SCM Agreements. Further, the “affected domestic
producers” will have a vested interest in receiving funds and this will impede
any resolution of such trade disputes.
The
U.S. counters that CDSOA authorizes “government payments” and that the
distributions comport with GATT, Article VI and the AD and SCM Agreements.
Moreover, there is no evidence that the U. S. will administer CDSOA in an
unreasonable or partial manner (see Article X:3(a) of GATT 1994) so as to
affect anti-dumping and countervailing duty investigations.
The
various complainants argued to the contrary. For example, Australia argued that
the Act leaves no discretion as to its implementation. Further, to the extent
that a measure provides for “specific action against dumping” other than
permissible responses under Article 18.1 of the AD Agreement, in conjunction
with GATT Article VI:2 and Article 1 of the AD Agreement, it is at war with
trading rules. The only permissible responses are either a definitive
anti-dumping duty, or a provisional measure or a price undertaking.
Brazil
asserted that the CDSOA would unduly broaden the remedies (a) by providing
monetary damages, and (b) by subsidizing injured industries to allegedly offset
damages from dumped or subsidized imports. If the WTO accepts the CDSOA, other
countries would follow the U.S. lead and implement similar laws. This would
lead to a chaotic burgeoning of anti-dumping and countervailing duty
investigations.
In
its Report of September 16, 2002, the Panel agrees that the CDSOA violates
trading rules. The Panel makes two main findings. The first is that CDSOA is
inconsistent with AD Articles 5.4, 18.1 and 18.4, SCM Articles 11.4, 32.1 and
32.5, Articles VI:2 and VI:3 of GATT 1994, and Article XVI:4 of the WTO
Agreement. On the other hand, the CDSOA does not clash with AD Articles 8.3 and
15, SCM Articles 4.10, 7.9 and 18.3, and Article X:3(a) of GATT 1994.
The
Panel notes that the CDSOA is a new and complex law. If Members consider
subsidization an allowable response to unfair trade practices, they should work
such matters out through negotiation. In this case, the Panel suggests that the
ideal solution would be for the U.S. to repeal the CDSOA.
Citation:
United States - Continued Dumping and Subsidy Offset Act of 2000 (WT/DS217/R)
(16 September 2002). [See Panel Report at “www.wto.org”; European Union in US
news release No. 50/02, September 16, 2002].
EU
publishes amendment concerning EU-U.S. Agreement on Mutual Recognition of
technical requirements. The Council has issued an amendment to Decision
1999/78/EC concerning the Agreement on Mutual Recognition between the European
Community and the U.S. It has the Commission represent the Community in the
Joint Committee provided for in the Agreement, and in the Joint Sectoral
Committees set up by the Sectoral Annexes. - The Commission also put forth
similar amendments to the EU Agreements with Australia, Canada, Japan and New
Zealand. Citation: 2002 O.J. of European Communities (L 278) 22, 16
October 2002.
Former
international fugitive convicted in Philadelphia murder. On October 17,
2002, a Philadelphia jury convicted Ira Einhorn for murdering his girlfriend,
Holly Maddux, 25 years before and the court sentenced him to a life term.
Einhorn had allegedly beaten Ms. Maddux to death on Sept. 11, 1977. Just before
his 1981 murder trial, however, the defendant jumped bail and spent twenty
years on the run in Europe, where he moved about under three different aliases.
He was tried and convicted in absentia. Four years later, police traced Einhorn
to a French country cottage. After litigation that reached the Conseil d’Etat
and the European Court of Human Rights, [2002 Int’l Law Update 107, July]
French authorities agreed to extradite Einhorn. They took into account (1) that
a Pennsylvania statute grants persons convicted in absentia the right to obtain
a new trial and (2) that Einhorn would not face a death sentence. Citation: Reuters
Group, Philadelphia, Thursday, October 17, 2002 (byline of David Morgan).
U.S.
Department of Transportation implements reporting requirements for foreign
safety recalls. The U.S. Department of Transportation, National Highway
Traffic Safety Administration (NHTSA) has amended 49 C.F.R. Part 579 to
implement the foreign safety recall and safety campaign reporting requirements
of the Transportation Recall Enhancement, Accountability, and Documentation
(TREAD) Act. Section 3(a) of the Act requires vehicle and parts manufacturers
to report to NHTSA any safety recall or safety campaign conducted in a foreign
country if the vehicles or the vehicle parts at issue are substantially the
same as domestic ones. Citation: 67 Federal Register 63295 (October 11,
2002).
EU
imposes safeguard measures against influx of steel products. On September
27, 2002, following an investigation of imported steel products, the EU
Commission announced safeguard measures on seven steel products. The tariffs
imposed vary from 17.5% to 26%. To carry out the safeguard measures, the EU
issued Regulation 1694/2002 the following day. It imposes definitive safeguard
measures. In a related matter, the EU issued Regulation 1695/2002 terminating
certain safeguard proceedings and setting up a system of monitoring. The
tariffs will apply regardless of the origin of the steel products. Also, the
measures will not apply to imports from developing countries where such imports
of a particular product do not exceed 3%. The ostensible purpose of these
measures is to protect the EU against an undue influx of steel products
resulting from the protective measures that the U.S. has put into effect (see
2002 International Law Update 42 & 117). Citation: Commission
Regulations 1694/2002 & 1695/2002, 2002 O.J. of European Communities (L
261) 1 & 124 (September 28, 2002); [Press release of EU Commission
“European Commission adapts steel safeguard safety net” (Brussels, 27 September
2002)].
Philippines
and U.S. sign pact to save Tropical Forests. On September 19, 2002, the
United States and the Philippines entered into a Tropical Forest Agreement. The
Agreement requires the U. S. to reschedule part of the Philippines’ debt. The
money thus saved will go into a Tropical Forest Conservation Fund. Over the
next fourteen years, the Agreement is expected to generate over $8.2 million
for forest conservation activities in the Philippines. A board of directors
representing the U.S., the Philippine government and private interests will
jointly administer the Fund to carry out the urgent conservation measures
authorized by the Tropical Forest Conservation Act of 1998 (TFCA). [Pub. Law
67-185, Part V, Sections 801-813, as added by Pub.L. No. 105-214 Section 1,
July 29, 1998, 112 Stat. 885; 22 USCA Sections 2431, 2431a-2431k] These
measures stress the suppression of unlawful logging and the development of
sustainable forest use for Philippine residents. Since the enactment of the
TFCA, the U.S. has also entered into similar conservation compacts with
Bangladesh, Belize, El Salvador, and Peru. Citation: Media Note, Office
of Spokesman, U.S. Department of State, Washington, D.C., Tuesday, October 1,
2002. [See also http://www.state.gov/r/pa/prs/ps/]
European
Union imposes provisional anti-dumping duties on filament yarns of cellulose
acetate from Lithuania and U.S. The EU Commission has issued Regulation
1662/2002 to impose provisional anti-dumping duties on certain filament yarn
made of cellulose acetate originating in Lithuania and the U.S. The affected
U.S. manufacturers, and their respective “dumping margins,” are Celanese
Acetate LLC of North Carolina (84.8%), and Eastman Chemical Company of Tennessee
(104.8%). Citation: 2002 O.J. of European Communities (L 251) 9, 19
September 2002.
Federal
Trade Commission approves Shell’s purchase of Pennzoil-Quaker State. Shell
Oil Company is part of the Anglo‑Dutch oil colossus, Royal Dutch/Shell Group.
Pennzoil and Quaker State have been the first and second ranking U.S. motor oil
producers for many years. The two companies merged in December 1998. On
September 27, 2002, the FTC unanimously cleared Shell Oil’s $1.8 billion cash
buy of Pennzoil-Quaker State Co. Two conditions require Pennzoil (1) to spin
off its interest in its Excel Paralubes joint venture with Conoco, Inc. and (2)
to retain about at current levels its capacity to buy more Group II paraffinic-base
oil supplies from Exxon Mobil Corporation. The FTC had expressed concern that,
without the second condition, the merger would have done away with Group II
competition between Shell and Pennzoil, thus putting consumers at risk of
having to pay more for these high performance lubricants. Citation:
Washington, D.C., Friday, Sept. 27, 2002 (Reuters online).
European
Union further amends sanctions imposed on Usama bin Laden, Al-Qaida and Taliban.
Recently, the EU has issued several amendments to Regulation 881/2002 on
restrictive measures against persons and entities associated with Usama bin
Laden, the Al-Qaida network, and the Taliban. They expand the list of affected
entities and individuals. For example, the amendments added the Akida Bank
Private Limited of the Bahamas, the Nada International Anstalt of
Liechtenstein, and several individuals of Middle Eastern origin who last
resided in Germany. Citation: 2002 O.J. of European Communities (L 237)
3, 5 September 2002 & (L 247) 25, 14 September 2002 & (L 264) 23, 2
October 2002 & (L 276) 26, 12 October 2002.
U.S.
President continues IEEPA emergency as to persons involved in terrorism.
With a notice published November 19, 2002, U.S. President George W. Bush has
announced that, by Executive Order 13224, he is continuing for another year the
national emergency declared on September 23, 2001 pursuant to the International
Emergency Economic Powers Act (IEEPA) (50 U.S.C. Section 1701-1706). The XO
particularly relates to persons who commit, threaten to commit, or support
terrorism. The renewal rests on a presidential finding that there is a
continuing threat to the national security, foreign policy, and economy of the
U.S. Citation: 67 Federal Register 59447 (September 20, 2002).
EU
regulators clear sale of Burger King to U.S. venture capital consortium. Competition
regulators of the European Union have authorized three U.S. venture capital
firms -- Texas Pacific Group, Bain Capital of Boston and Goldman Sachs Capital
Partners -- to buy Florida-based Burger King from Diageo PLC of the U.K. The
group will pay $2.26 billion for the fast-food outfit with its 11,400
restaurants worldwide -- second only to McDonald’s. The tripartite consortium
also owns Domino’s Pizza. Nevertheless, the EC Commission decided that
McDonald’s, Quick, KFC, Pizza Hut and other fast-food companies will be able to
give the new entity a good deal of competition in Europe. Last August, U. S.
competition regulators had also approved the transaction. Citation: Associated
Press, October 11, 2002 (Brussels); [see Legal News on “findlaw.com”].
