Embassy Law Web Log   
Washington, DC, USA      

No Skype or Social Media Graces: Age Discrimination

Her lack of familiarity with Skype and social media showed her age, a colleague noted about the plaintiff in the matter Payne v. British Embassy Washington DC. This remark formed the basis for her claim of age discrimination when she was dismissed from her employment. On May 24, 2019, the United States District Court for the District of Columbia found the allegation insufficient and dismissed this claim which requires age to be the cause of, or related to, the dismissal.

Other allegations survived this stage of the litigation, and the plaintiff may pursue her claim for an improperly entered observation in her personnel file, for instance, that she managed well the otherwise burdensome absences from the office to care for a family member with special health needs.

Among other things, the court's reasoning explains the danger of innocent or superfluous remarks, notes and observations which can cause an employer tremendous expense in defending claims, participating in the exchange of evidence during the discovery process, and possibly damages.

Absolute Immunity Dies in Supreme Court

Under the International Organizations Immunities Act of 1945, such organizations were believed, under 22 USC §288a(b), to enjoy absolute immunity from suit in United States courts. On February 27, 2019, the Supreme Court of the United States declared the absolute standard outdated and modified by the subsequent enactment of the Foreign Sovereign Immunities Act of 1976. That act abolished absolute immunity and enacted a restrictive immunity standard in 28 USC §1602, and its original protections have been greatly weakened since its enactment.

The IOIA provides for the same immunity granted states, embassies and consulates. The issue before the Supreme Court was whether same means the equivalance existing when the IOIA was enacted, or the same as the standard for states, embassies and consulates as it evolved before and after the enactment of the FSIA. In Jam v. IFC, the court decided that it is the latter. Therefore, the absolute immunity standard does not apply, and the test for the immunity of international organizations in U.S. courts will be the same as the standard applied today under the FSIA. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.

Court imposes Sanctions on Foreign Sovereign Nation

In a matter involving arbitration and the confirmation of an award under the New York Convention, the United States Court of Appeals for the District of Columbia Circuit imposed a sanction on the foreign sovereign defendant for procedural misconduct

Venezuela committed a second misdeed, one meriting sanctions. On January 8, 2019, Venezuela filed an emergency motion to hold this case in abeyance. The motion represented that Crystallex had requested Venezuela to seek a stay based on the purported settlement agreement. That representation was misleading. At the time Venezuela filed the emergency motion, Crystallex had declared in the press and in Third Circuit filings that Venezuela had breached the agreement. … Andrew Scurria, Bankers Hired for Citgo Auction Following Scrapped Deal With Venezuela, Wall St. J. (Dec. 12, 2018) … Venezuela's emergency motion was thus misleading and meritless. As a sanction, we believe Venezuela should pay Crystallex's reasonable attorneys' fees and costs incurred in responding to the emergency motion. D.C. Cir. R. 38.
As lies pour out of the current White House, it is good to know that courts do not tolerate them, as explained in the matter on February 14, 2019. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.

Embassy Loses, Then Appears in Court and Wins

A solid lesson to embassies and foreign sovereigns sued in an American court is found in the January 25, 2019 decision in Dahman v. Qatar. An embassy terminated the employment of an accountant after he remained in his embassy position for many more years than his contract provided for. The employee claimed age discrimination under federal and District of Columbia law and obtained a default against the embassy and the foreign state. The defendants had not responded to the court or taken de­fen­sive action.

When the court set a hearing to determine damages, the defendants reacted, re­que­sting that the court vacate the default, and the court has now dismissed the action. The United States District Court for the District of Columbia took note of the foreign sovereign immunity defense, the forum non conveniens defense and the arbitration clause in the employment contract. Ultimately, the validity of the arbitration clause and its forum selection as well as the public-interest factors caused the court to dismiss the action from the forum non conveniens. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.

Disclaimer: The author's firm assists embassies with employment and other matters and represented the defendants on the record in this matter.

Another Scalp on the Dotard's Belt: E.U. Mission

Just before Christmas, all research supported the status of the Delegation of the European Union to the United States in Washington as a diplomatic mission under international and American law. Deutsche Welle first reported on January 8, 2019 that its status has been changed. Voice of America confirms that the change is a downgrade. On its website, VOA states: VOA is part of the U.S. Agency for Global Media (USAGM), the government agency that oversees all non-military, U.S. international broadcasting. It is funded by the U.S. Congress. The tone of VOA's report indicates that the propaganda agency appears startled by the news.

That tone may reflect that perhaps Congress is as surprised as the Delegation and the international diplomatic community. The alleged dotard in the White House has completed another chaotic move.

The legal implications of the change--if it turns out to be permanent--are many. Will the Foreign Sovereign Immunities Act and the Vienna Convention on Diplomatic Relations continue to govern the Delegation's immunity? Or will the International Organizations Act apply? Is the Office of Foreign Mission the proper contact for administrative matters? Will the tax regime governing local hires change? From a legal perspective, the development is fascinating. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.

ICSID Award: Recalcitrant Sovereign Defaults

In Tidewater Investment SRL v. Bolivarian Republic of Venezuela, the United States District Courtfor the District of Columbia analyzed jurisdictional, service of process and other procedural issues in order to grant the plaintiff a default judgment in its effort to collect on an arbitration award.

Its December 17, 2018 decision explains in great detail the enforce­ment mechanism under the International Convention on the Settlement of Investment Disputes of Mar. 18, 1965, 17 U.S.T. 1270, 330 U.N.T.S. 3, 1, and 2 U.S.C. § 1650a(a). Under the statute, the Federal Arbitration Act does not apply to the ICSID framework to which the United States is a signatory. Section 1650 provides exclusive jurisdiction to the federal district courts.

Among other issues, the court examined in detail the plaintiffs' efforts to serve process under the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163, and the failure of the defendant's Central Authority to serve the summons, complaint, and accompanying initiating paper on Venezuela. Before reaching the substantive issues, the court also assured itself of personal and FSIA subject-matter jurisdiction. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.

2018 U.S. District Court Cases with Foreign Nations

The following lists decisions in the United States District Court for the District of Columbia in Washington, DC, where the embassies of foreign sovereigns are located, from the first three quarters of 2018:

Roth v. Syrian Arab Republic Memorandum and Opinion
Wye Oak Technology, Inc. v. Republic of Iraq Memorandum Opinion
Akins v. Islamic Republic of Iran Memorandum Opinion
Estate of Yonadav Hirshfeld v. Islamic Republic of Iran Memorandum Opinion
D&S Consulting, Inc. v. Kingdom of Saudi Arabia Memorandum Opinion
Fritz v. Islamic Republic of Iran Memorandum Opinion
Strange v. Islamic Republic of Iran Memorandum Opinion
Burmaster v. Switzerland Order
Fritz v. Islamic Republic of Iran Memorandum Opinion
Fraenkel v. Islamic Republic of Iran Memorandum Opinion on Reconsideration
Dahman v. Embassy of the State of Qatar Memorandum Opinion
Hamen v. Islamic Republic of Iran Memorandum Opinion and Order
Fraenkel v. Islamic Republic of Iran Memorandum Opinion on Remand
Azadeh v. The Government of the Islamic Republic of Iran Public Memorandum and Opinion
Bathiard v. Islamic Republic of Iran Memorandum Opinion
Burmaster v. Switzerland Report and Recommendation
Boulos v. Islamic Republic Memorandum
Peterson v. Islamic Republic Memorandum
Asemani v. Islamic Republic of Iran Link
Kinyua v. Republic of the Sudan Memorandum Opinion
Ruther v. Canada Memorandum Opinion
Republic of Kazakhstan v. Stati Memorandum Opinion
Salazar v. Islamic Republic of Iran Memorandum Opinion
Maalouf v. Islamic Republic of Iran Memorandum Opinion
Chogo v. Republic of the Sudan Memorandum Opinion
Kinyua v. Republic of the Sudan Memorandum Opinion
Sheikh v. Republic of the Sudan Memorandum Opinion
Pao Tatneft v. Ukraine Memorandum Opinion
Barot v. Embassy of the Republic of Zambia Memorandum Opinion
Rusoro Mining Limited v. Bolivarian Republic of Venezuela Memorandum Opinion
Gaskin v. Embassy of Canada to the United States Memorandum Opinion
Berkowitz v. Republic of Costa Rica Memorandum Opinion

Foreign Police Brutality in U.S. Court

Numerous legal issues affecting the jurisdiction of U.S. courts in matters of alleged foreign victims of police brutality lead to an educational decision in the matter Doe v. Buratai. The United States District Court for the District of Columbia examined exemptions to the claims of immunity for foreign official acts and under the Foreign Sovereign Immunities Act. It explained also the bases of personal jurisdiction, including specific jurisdiction, and its constitutional limitations where there is no nexus to the United States. Without a nexus, the plaintiffs of an allegedly discriminated ethnic and religious group sought to establish jurisdiction under the Torture Victims Protection Act, among other bases, but could not carry their burden of showing that the court has subject-matter jurisdiction. The court in Washington, DC, closed on July 19, 2018 with this conclusion: This case presents appalling allegations, but the Court can only hear cases over which it has jurisdiction. Lacking personal and subject-matter jurisdiction, the Court must grant the defendants' Motions to Dismiss. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.

Complaint Against Russia and Trump Sycophants

The complaint against the Trump family and his sycophants as well as Russia in Democratic Na­ti­o­nal Committee v. Fede­ra­ti­on of Rus­si­a followed closely the revelation of the Comey memoranda on his disturbing meetings and calls with Trump. It was filed with the United States Court for the Sou­thern District of New York on April 19, 2018 and makes for interesting reading in the areas of computer law and sovereign immunity law. The plaintiff argues that Russia should not benefit from sovereign immunity under the Foreign Sovereign Immunities Act. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.

FSIA Dispute Over 142-Year-Old Bonds

In a case whose main events dated as far back as 1875, the Court of Appeals for the Second Circuit dismissed a consultants’ suit against a foreign government for lack of subject-matter jurisdiction. The point-at-issue in MMA Consultants 1 Inc. v. Republic of Peru began when Peru signed and executed fourteen bonds and left them in MMA’s possession without payment. In 2015, 140 years after the fact, MMA sent three demand letters to the Peruvian embassy in Washington D.C. for payment on the Bonds, then sued to collect principal and interest. This was not, however, the first time legal issues related to these bonds had arisen, as one of the pieces of evidence the district court considered was an Arbitration Tribunal award from 1901.

Since Peru is a foreign state, the only method of judging whether or not the case was entitled to subject-matter jurisdiction in a United States district court arises under the Foreign Sovereign Immunities Act. The burden rested on the plaintiff to prove that this particular case should be permitted under an exception of the FSIA. MMA claimed the case fell under the FSIA's commercial activity exception: A foreign country may be entitled to jurisdiction if the action in question is based upon either a commercial activity carried on in the United States by the foreign state or an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere that causes a direct effect in the United States.

Since the act was Peru's failure to redeem the bonds, MMA had to prove that this failure either took place in the United States or caused a direct effect in the United States. According to case law, a foreign government’s decision not to redeem a bond is an act that occurs in the foreign country, not in the United States. Therefore, Peru’s failure to redeem the bonds did not take place in the United States and the first exception does not apply. Furthermore, simply because the plaintiff is an American corporation does not mean that direct effect was caused in the United States, thus the second exception does not apply. Accordingly, the case was correctly dismissed by the district court for lack of subject-matter jurisdiction, the appellate court in New York City determined on December 19, 2017. -- Madeline Henshaw-Greene, Legal Assistant, Berliner Corcoran & Rowe LLP , Washington, DC.