Mission Employee: Status for Immunity Purposes

On December 22, 2010, the United States Court of Appeals for the Second Circuit in New York City affirmed the ruling of the District Court for the Southern District of New York to dismiss the case of Hijazi v. Permanent Mission of Saudi Arabia to the United Nations, docket number 10-0904, due to a lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA).

Plaintiff had been employed as an Advisor to the Permanent Mission of Saudi Arabia to the United Nations, and had filed suit, claiming she had been subjected to sexual harassment, discrimination by reason of her gender and national origin, and unlawful retaliation. Plaintiff asserted that the work she did for the mission was generally clerical, and consequently private or commercial in character. Therefore, plaintiff argued that under the Foreign Sovereign Immunities Act, the Mission of Saudi Arabia should not enjoy immunity according to the commercial activity exception to the FSIA.

The mission contended that the question of immunity was dependent upon its activities and functions rather than an individual employee. The court noted that

It is undisputed that Plaintiff attended and took notes at diplomatic meetings, conducted research, wrote memoranda, and, on one occasion, spoke on behalf of the Mission. Her duties were thus in service of the Mission's governmental function.
As a result, the court determined that the matter did not meet the commercial activity exception to the FSIA, and rejected plaintiff's complaint for lack of subject matter jurisdiction. -- Sara Harr, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Sat, 18:18:16 25 Dec 2010 / Embassy Law Link


Attached Diplomatic Premises Released

At the request of the U.S. government, Iran's diplomatic properties in the United States were released from attachment by the United States Court of Appeals for the District of Columbia Circuit. Section 201 of the Terrorism Risk Insurance Act precluded the attachments, the court determined in December 3, 2010 with a detailed opinion and concurring opinion.

The post-judgment attachment was intended to satisfy an award under terrorism legislation which removes some of the jurisdictional protections afforded by the Foreign Sovereign Immunities Act. In Bennett v. Iran, docket no. 09-5147, the court noted:

The United States has held Iran's diplomatic and consular properties for the past thirty years pursuant to Article 45 of the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95, which requires signatory states to "respect and protect" the premises and property of a mission if diplomatic relations are severed or a mission is recalled, and the Foreign Missions Act, 22 U.S.C. § 4305(c)(1) (2006), which authorizes the Secretary of State to "protect and preserve" the property of a foreign mission that has ceased conducting diplomatic activities in the United States.
The judgment creditor believed that the rental of the properties by their custodian, the United States, should remove them from the protection under the Vienna Convention. The court rejected that notion. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Mon, 21:01:00 6 Dec 2010 / Embassy Law Link


German Embassy Washington Moves

Over the extended Thanksgiving weekend, the German Embassy in Washington, DC moves to its new interim location at 2300 M Street, NW. The move affects also the Legal and Consular Section which handles visas, among other things. Telephone numbers remain unchanged, the embassy reports at its website. All buildings at the existing facility on Reservoir Road and Foxhall Road, except for Ambassador Scharioth's residence, will be refurbished. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Thu, 15:50:20 25 Nov 2010 / Embassy Law Link


Banks Drop Embassies Over Legal Hurdles

Banks have forced embassies out of their customer base for years but the effects of the Partiot Act, enhanced OFAC enforcement and Know Your Customer rules are turning up the heat on embassies. Even the Wall Street Journal goes into detailed reporting on the issue.

The State Department is providing new guidance to embassies, the paper reports in a comprehensive analysis Banks Exit From Embassy Business -- Moves By Largest Lenders Could Strain Relations Between U.S. Government and Other Countries on November 20, 2010. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
Disclosure: The author's firm has assisted affected foreign entities and financial institutions in such matters.

Sat, 22:14:22 20 Nov 2010 / Embassy Law Link


Swiss Accused of Violating U.S. Constitution

The facts in the United States Court of Appeals for the Ninth Circuit's unpublished decision in the matter Hilsenrath v. The Swiss Confederation et al., docket number 07-17127, surprise:

The Hilsenraths alleged that the Swiss Confederation, the Federal Attorney General of Switzerland and an employee of the Swiss Attorney General violated the Hilsenraths' constitutional rights when they froze the Hilsenraths' Swiss bank assets during the course of a criminal investigation into allegedly illicit financial dealings.
The violation of American constitutional rights alleged in a U.S. court against a foreign sovereign nation protected by the Foreign Sovereigns Immunities Act? No wonder the lower court dismissed the complaint, as the Circuit Court explains:
The district court properly dismissed the action for lack of subject matter jurisdiction because the Swiss government and its employees are immune from this action under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 etseq. ("FSIA") and the Hilsenraths did not establish the applicability of any of the FSIA's exceptions to sovereign immunity.
The explanation of the unusual case is found in the first line of the decision filed on November 2, 2010: Hana Hilsenrath and Oliver Hilsenrath appeal pro se … -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.
 

Mon, 21:27:14 8 Nov 2010 / Embassy Law Link


U.S. Embassies Defend Surveillance

Scandinavian allegations of U.S. embassies spying in host countries without coordination with the host ministries are being refuted by the embassies in Oslo and Stockholm. The Stockholm embassy statement of November 6, 2010 notes that the embassy in Sweden welcomes opportunities to respond to questions and regrets inflammatory and inaccurate press reporting which began in Norway. Tim Moore, U.S. Embassy Oslo spokesperson, explained on November 4, 2010 that his embassy works very closely with host country authorities to ensure the safety and security of U.S. Embassies and all our visitors around the world. On November 7, 2010, CNN observed that similar surveillance programs exist in Copenhagen and Berlin. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Sun, 16:28:54 7 Nov 2010 / Embassy Law Link


Difficulty Convicting Embassy Bombers

The difficulties facing courts in convicting embassy bombers is the topics of Pakistan Danish embassy bombing suspects acquitted. The Reuters report of the September 25, 2010 acquittal of attackers on the embassy of Denmark in Islamabad notes the production of 32 witnesses, including eye witnesses of the event, and the government's plans to appeal the ruling.

Sun, 12:37:34 26 Sep 2010 / Embassy Law Link


State Liable for Diplomats' Torts?

Model behavior by diplomats contrasts with a few bad apples. May mistreated domestic personnel of foreign diplomats in the United States sue the foreign sending state in a United States court?

The United States Court of Appeals for the Second Circuit explored the exposure of both the diplomatic employer and the foreign nation, under doctrines ranging from the Foreign Sovereign Immunities Act to the Alien Tort Claims Statute.

With respect to the state, the court held on September 24, 2010, that neither the tortious activity exception nor the commercial activities exception removed the state's FSIA immunity, in the matter Swarna v. Al-Awadi, docket number 09-2525. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Fri, 17:45:40 24 Sep 2010 / Embassy Law Link


Popular Notions of Embassy Soil and Immunity

In the context of an attack on the embassy of Malaysia in Jakarta, Salleh Buang explores on September 6, 2010 various sovereignty and immunity issues under the Vienna Convention on Diplomatic Relations. In Assault on our embassy a heinous act, she also touches upon the popular misconception that embassies stand on foreign soil. Their property forms part of the host nation's territory while that nation's jurisdiction ends at the gates to the embassy. Buang's New Straits Times report finally explains the history of locations such as Guantanamo and Vatican City. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Tue, 18:34:56 7 Sep 2010 / Embassy Law Link


Immunity of International Organizations

On August 16, 2010, the United States Court of Appeals for the Third Circuit confirmed the District Court's decision that the European Space Agency is not entitled to immunity in the case of Oss Nokalva, Inc. v. European Space Agency, docket number 09-3601. While the District Court concluded that ESA waived the absolute immunity that it usually is entitled to, the decision by the U.S. Court of Appeals was made for different reasons.

The District Court based its ruling on the precedent of Atkinson v. Inter-American Development Bank, 156 F.3d 1335, 1340 (D.C. Cir. 1998), which determined that the Inter-American Development Bank, an international organization under the International Organizations Immunities Act, was entitled to virtually absolute immunity. The court found that ESA was entitled to absolute immunity under the IOIA. However, the appellate court did not accept the District Court's finding that ESA was entitled to absolute immunity and did not need to address whether ESA waived its immunity or not.

The reasoning behind its decision relies on the IOIA which states that international organizations shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments 22 USC §288a(b). Such shorthand legislation linked the immunity of international organizations with the immunity of foreign governments.

While the District Court interpreted this statutory reference as the IOIA providing international organizations indefinitely with the same "virtually absolute" immunity as foreign sovereigns regardless of later changes to the law, the appellate court recognizes the changes to foreign sovereign immunity that have occurred since 1945.

With the creation of the Foreign Sovereign Immunities Act of 1976, foreign governments enjoy immunity from the jurisdiction of U.S. courts with a few specific exceptions. The exception relevant to this case states that

"the foreign state has waived its immunity either explicitly or by implication and in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere…" §1605(a)(1)-(2).
The appellate court believes that the IOIA is clearly written and that Congress made its intent clear. Congress intended that the immunity created by the IOIA would adapt with the law of foreign sovereign immunity. For these reasons, the court concluded that ESA is not entitled to immunity as it stood in 1945 for foreign sovereigns and affirmed the District Court's order denying ESA's motion to dismiss. The court noted that
It is undisputed that the Agreements at issue here constituted such commercial activity and, because we construe the IOIA to incorporate the exceptions to immunity set forth in the FSIA, we will affirm the District Court's order denying ESA's motion to dismiss.
-- Melanie Hardcastle, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, D.C.
 

Wed, 12:20:24 18 Aug 2010 / Embassy Law Link


New York Cannot Tax Mission Property

On August 17, 2010, the United States Court of Appeals for the Second Circuit in New York City ruled against New York City and in favor of The Permanent Mission of India to the United Nations and the Principal Resident Representative of the Mongolian People's Republic to the United Nations. It reversed the judgment of the District Court, which permitted the city to tax property owned by the governments of India and Mongolia being used to house mission employees.

In its decision, the Court pointed to a June 2009 Notice from the U.S. State Department, which exempted foreign governments from paying real property taxes on property used to house the staff of permanent missions to the United Nations. The State Department explained that

As the largest foreign-government property owner overseas, the United States benefits financially much more than other countries from an international practice exempting staff residences from real property taxes, and it stands to lose the most if the practice is undermined.

The case is City of New York v. The Permanent Mission of India to the United Nations, docket number 08-1805. -- Sara Harr, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Tue, 18:03:38 17 Aug 2010 / Embassy Law Link


Foreign Defendant Government and Forum non Conveniens

In a 14 page opinion, the United States Court of Appeals for the District of Columbia affirmed the District Court in the matter MBI Group, Inc. v. Credit Foncier Du Cameroun , docket number 09-7079, on August 6, 2010. An American plaintiff sued the government of Cameroon and parties from Cameroon in a contract and bribery matter.

The lower court had found the nexus to Cameroon to be very strong and the public interest nexus to the United States to be outweighed by the public interest of a trial in Cameroon that it had dismissed the matter under the forum non conveniens doctrine.

Instead of pursuing litigation in Cameroon as instructed by the District Court, the plaintiffs undertook minimal efforts abroad and soon petitioned the U.S. court to resume its proceedings because filing suit in Cameroon would be too expensive and a fair trial would be elusive.

On further instruction, the parties returned to the Cameroonian judiciary and defendants managed to arrange for hearings which could potentially reduce the burdensome filing fees for the plaintiffs. The latter refused to pursue such remedies, however, and turned once more to the District Court which again found against plaintiffs.

The Circuit Court upheld the forum non conveniens analysis of the lower court in all respects. There is not absolute right of an American plaintiff company doing business abroad to have its case heard in a United States court, the court explained. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Fri, 19:26:36 6 Aug 2010 / Embassy Law Link


Attachment of Argentinian Assets

On August 3, 2010, the United States Court of Appeals for the Second Circuit in New York City ruled in favor of EM Ltd. and NML Capital Ltd. in confirming ex parte orders dated May 22, 2007. The orders restrain and attach certain assets of the Republic in a trust administered by the U.S. Bank Trust National Association and deny BNA's motion to vacate these orders. The case is EM Ltd. v. The Republic of Argentina, docket number 09-3908. -- Sara Harr, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Tue, 17:30:00 3 Aug 2010 / Embassy Law Link


Questions Surrounding Embassy Property Sales

Post removed at reader's request. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP.

Mon, 21:16:00 2 Aug 2010 / Embassy Law Link


FSIA Governs old Debt Claims Against Germany

On July 27, 2010, the United States Court of Appeals for the Second Circuit in New York City ruled in favor of Germany in confirming the dismissal of claims for old East German debentures by adding as a basis for dismissal the lack of allegations of commercial activities by state actors. The case is Mortimer Off Shore Services Ltd. v. The Federal Republic of Germany, docket number 08-1783. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Mon, 18:58:50 26 Jul 2010 / Embassy Law Link


The Kosovo Advisory Opinion

On July 22, 2010, the International Court of Justice issued its advisory opinion on the unilateral declaration of independence by Kosovo. The 123-page decision is published on the court's website. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Fri, 08:02:40 23 Jul 2010 / Embassy Law Link


Service of Process on Foreign State

Actual notice is insufficient in the service of process on Brazil, the United States District Court for the District of Columbia explained on July 10, 2010. In the matter Ibiza Business Ltd. et al. v. United States of America et al., docket number 10-296, the plaintiff had sought entry of a default judgment against Brazil but the court advised it to serve in strict compliance with 28 USC §1608(a)(3). -- Clemens Kochinke,, partner, Berliner, Corcoran & Rowe, LLP, Washingcton, DC.

Thu, 23:35:00 15 Jul 2010 / Embassy Law Link


Samantar Effect in New York City

The United States Court of Appeals for the Second Circuit in New York City followed the Supreme Court and, on June 28, 2010, affirmed in part, vacated in part and remanded the lower court's decision in Carpenter v. Republic of Chile, docket number 09-3743, with an eight-page opinion which begin as follows:

Plaintiff appeals from a judgment of the United States District Court for the Eastern Districtof New York (Joanna Seybert, Judge) dismissing plaintiff's claims against the Republic of Chile, various government officials of Chile, and British Airways. Because the Supreme Court's recent opinion in Samantar v. Yousuf, --- S. Ct. ---, No. 08-1555, 2010 WL 2160785 (S. Ct. June 1, 2010) abrogated our prior holding that the Foreign Sovereign Immunities Act extends to officials of a foreign government acting in their official capacities, we vacate the judgment of the District Court insofar as it dismissed plaintiff's claims against the government officials of Chile.
The ruling helps in clarifying the limits of immunity under the FSIA for government officials. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Mon, 21:10:16 28 Jun 2010 / Embassy Law Link


Final Judgment Determinations under FSIA

On June 18, 2010, the United States District Court for the District of Columbia entered final judgment in the matter of Elisa Nili Cirilo Peres Ben-Rafael, et al. v. Islamic Republic of Iran, et al., docket number 08-0716. This case is based on the default judgment in favor of the estate of David Ben-Rafael, a victim of a 1992 terrorist bombing at the Israeli Embassy in Buenos Aires, Argentina.

Less than one month before the court entered default judgment in the original case, the National Defense Appropriations Act for Fiscal Year 2008 28 USC §1605A was signed into law by then-President Bush, replacing the Foreign Sovereign Immunities Act's original state-sponsor-of-terrorism exception. The act allows for awards of punitive damages and attempts to make it easier to collect FSIA judgments by entitling plaintiffs to impose liens on property belonging to state sponsors of terrorism.

The change prompted the plaintiffs to petition for the reissuing of the default judgment from Ben-Rafael I as to defendant Iran using the new jurisdictional grant in §1605A and for the court to declare a new defendant, the International Risk Governance Council, subject to the attachment provisions of §§1605A(g) and 1608(g) as an agency or instrumentality or Iran.

This court noted that it has jurisdiction over this case because service was proper and defendants' conduct falls within the state sponsor of terrorism exception in §1605A. Its jurisdiction to hear the case as a related action to Ben-Rafael I is based on the 2008 NDAA grandfathering related actions to timely commenced prior actions under §1605A's jurisdictional grant.

The court noted its ruling that plaintiffs here established their claims by evidence satisfactory to the court and reentered default judgment as to defendant Iran. The plaintiffs did not meet the burden showing that IRGC is an agency or instrumentality of Iran as required by 28 USC §1603(b). The court agrees that under the core commercial function test the IRGC is a government entity, not a separate legal person. Therefore, the court did not need to reach the second or third elements of the agency or instrumentality analysis.

The court decided that there is no reason for delay in directing the entry of final judgment and this conclusion is supported by the fact that in the past the identical judgment was issued and was itself a final judgment. The court entered judgment for plaintiffs in the amounts specified in Ben-Rafael I, 540 F. Supp. 2d 59 (2008) and directs entry of that judgment as final pursuant to Federal Rules of Civil Procedure. -- Melanie Hardcastle, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, D.C.

Wed, 15:30:56 23 Jun 2010 / Embassy Law Link


Commercial Activity and Immunity

On June 18, 2010, in Guevara v. Peru, docket No. 08-17213, a case that one of the Judges claims reads like the latest spy thriller, the United States Court of Appeals for the Eleventh Circuit reversed the district court's judgment and remanded the case with the instruction that the case be dismissed without prejudice.

The claim was brought over Peru's refusal to pay an award to the plaintiff, Jose Guevara, after he successfully led to the capture of Vladmiro Lenin Montesinos Torres. Montesinos was at one time the head of Peru's National Intelligence Agency. During his time as director of the intelligence agency, he allegedly committed a large number of serious crimes including arms trafficking, drug dealing, money laundering, and more than a few murders, id at page 3. After being exposed through a series of videotapes that were leaked to the media, Montesinos fled the country. Peru publically posted an emergency decree which established a financial reward of $5 million dollars for any information leading to his capture.

Montesinos fled to Caracas and was hidden by Jose Guevara who nursed him back to health after he had facial reconstructive surgery meant to hide his identity. Guevara was also handling Montesinos' communications with Pacific Industrial Bank in Miami, Florida. Montesinos requested, through Guevara, that the bank transfer his funds to another bank and, when the bank refused, Montesinos emailed Luis Alfredo Percovich, the officer assigned to the account, and threatened Percovich's life. Guevara then left for Miami to handle the money on Montesinos' behalf. When Percovich discovered that Guevara was on his way to Miami, he called the FBI who intercepted and arrested Guevara upon his arrival in the United States. The FBI offered to drop all charges against Guevara if he provided them with information on Montesinos' whereabouts. With Guevara's help, Montesinos was finally detained by Venezuelan authorities and expedited to Peru.

Peru refused to pay Guevara the reward that it promised in its emergency decree. Guevara sued Peru in the Southern District of Florida. The Court of Appeals was tasked with determining whether or not Peru had sovereign immunity under 28 U.S.C. § 1605(a)(2), the commercial activity exception to the FSIA, because in reaching its decision, the district court bypassed the question of whether, assuming that the offer of a reward constituted commercial activity, Peru established that it had immunity under subsection (a)(2).

While the Court admitted that the act of offering a reward was indeed commercial activity, it did not agree that that the court had subject matter jurisdiction. The opinion carefully takes apart subsection (a)(2) and shows that there is no definite link between the reward and commercial activity within or affecting the United States. Although a country may be sued over legitimate commercial activity, it does not mean that the U.S. courts have the jurisdiction to enforce a judgment against the sovereign. In this case, the country maintained its immunity despite being sued over commercial activities because those activities were not sufficiently linked to the United States. -- Laura P. Valle, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, D.C.

Wed, 12:11:38 23 Jun 2010 / Embassy Law Link


Service of Complaint by Publication

Service of process is a core requirement for the jurisdiction of American courts, which in federal courts is governed by the Federal Rules of Civil Procedure. The United States District Court for the District of Columbia explore the options for service offered by the plaintiff in the matter Chaim Kaplan v. Hezbollah et al., docket number 09-646.

The plaintiff had attempted service by delivery through an international courier service at an address in Lebanon. In its June 7, 2010 ruling, the court held that attempt insufficient but allowed for service by publication under Rule 4(f)(3) which can even permit service by email.

The publication must appear in three Lebanese newspapers, the court ruled. Publication is not incompatible with the treaty obligations of the United States, it found. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Wed, 10:24:30 16 Jun 2010 / Embassy Law Link


Factory Bombing in Sudan: No Legal Recourse

On June 8, 2010, the United States Court of Appeals for the District of Columbia Circuit ruled again against the owners of a pharmaceutical company that the United States destroyed after the Osama bin Laden bombing of two American embassies.

After an en-banc reconsideration, the court issued a detailed and wide-ranging decision in the matter El-Shifa Pharmaceutical Industries Co. et al. v. United States, 07-5174. The 27-page opinion confirms the dismissal of the complaint which originally sought compensation and later only an acknowledgment that the factory was not an Obama bin Laden-sponsored facility.

Ultimately, the dismissal is based on the political question doctrine but the entire opinion is worth reading. The same is true for Circuit Judge Kavanaugh's 15-page concurrence and the 3-page concurrence from Circuit Judge Ginsburg. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Tue, 17:33:08 8 Jun 2010 / Embassy Law Link


Guard for Diplomats Cannot Sue PA

Based on an exception for international terrorism in 18 USC §2333, the estate of a security guard to diplomats traveling in Gaza killed by a bomb, sued the Palestinian Authority. On May 29, 2010, the United States District Court explains in great detail the requirements of the exception and the links connecting its elements. In the matter Estate of Mark Parsons, et al. v. The Palestinian Authority, et al., docket number 07-1847, the plaintiffs were unable to meet that burden under the Foreign Sovereign Immunities Act. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Fri, 15:47:54 4 Jun 2010 / Embassy Law Link


Nation in Contempt of U.S. Court

On May 28th 2010, the United States Court of Appeals for the Second Circuit issued a summary order in Aurelius Capital Partners, LP et al., v. The Republic of Argentina, docket no. 09-2501-cv, which vacated an earlier order holding the Republic in civil contempt.

A previous order to provide discovery in regards to the location and movement of certain assets was unfulfilled due to the Republic of Argentina's alleged lack of control over the Administración Nacional de Seguridad Social who possessed this information. The district court then held the Republic in contempt.

However, since the underlying restraining order preventing the movements of assets had been vacated, the Court found, the validity of the contempt determination is now moot, id. at 4. -- Stephanie Petrew, legal assistant, Berliner, Corcoran amp; Rowe, LLP, Washington, DC.

Tue, 14:52:44 1 Jun 2010 / Embassy Law Link


Domestic Treaty Dispute Lacks Standing

On May 19, 2010 in Leu and Leu v. The International Boundary Commission et al., docket number 07-35949, the United States Court of Appeals for the Ninth Circuit vacated the District Court for the Western District of Washington's decision to deny the motions to strike all of the filings pertaining to defendant, Mr. Dennis Schornack on or after July 10, 2007.

The issue arose after Shirley-Ann and Herbert Leu brought a takings claim against the International Boundary Commission. The IBC is an international organization tasked with marking and maintaining the boundary between the United States and Canada. One of the defendants named in the case was Schornack who was one of two commissioners of the IBC at the time that the dispute occurred.

The filings in question are several documents that claim that Shornack was actually fired from the position of commissioner by the United States President. In 2002 the President had sent Shornack a letter dismissing him from the position and appointing David Berhardt, but Shornack vehemently disagreed that this action was within the President's power. Shornack claimed that 1) the treaties governing the establishment of the IBC did not give the President the power to fire him and 2) the department of justice has no business representing the IBC because it is an international organization.

The court cited a lack of jurisdiction under Article III of the United States constitution. The court also stated that because neither the President nor any high-ranking member of the executive branch is party to this suit the defendant's claim was not appropriate. The court went on to say that Schornack had elected to contest the lawfulness of the President's attempt to remove him by filing motion in a suit in which no executive-branch official is a party.

The court did not discuss Shornack's claim regarding the Department of Justice. The Department of Justice still represents the IBC in the district court. -- Laura P. Valle, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, D.C.

Thu, 15:23:54 20 May 2010 / Embassy Law Link


Contrast in Direct Effects Under FSIA: Two Cases, Two Courts

On May 4, 2010, Tom Taylor contrasted the issue of direct effects in the United States under the Foreign Sovereign Immunities Act in Turkish Bank's Role in Scam Did Not Cause Direct Effects in U.S., Second Circuit Holds, 78 US Law Weekly 41.

He examines the commercial activities exception to the FSIA in the context of a tort claim and a contract claim, one decided by the Second Circuit in Guierlando v. T.C. Ziraat Bankasi A.S., docket number 09-0478, and the other decided by the District of Columbia Circuit in Cruise Connections Charter Management, et al. v. The Attorney General of Canada, et al., docket number 09-7060.

Taylor notes the assistance of the colleagues of the Embassy Law publisher at Berliner, Corcoran & Rowe, LLP, partner Thomas G. Corcoran, Jr. and counsel Laina C. Lopez. -- Laura P. Valle, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, D.C.

Thu, 14:28:32 6 May 2010 / Embassy Law Link


Foreign Sovereign Not Immune from Discovery

In an April 13, 2010 ruling by the United States Court of Appeals for the Tenth Circuit, the Court affirmed the lower court's order that a discovery be conducted on the issue of whether defendant PT. Bank Negara Idonesia, BNI, was subject to litigation due to the commercial activity exception of the Foreign Sovereign Immunities Act, FSIA.

In the case Theodore Hansen et al. v. PT. Bank Negara Indonesia (Persero) et al., docket no. 09-4052, the plaintiffs filed suit when the defendant refused to honor certain financial instruments they had issued on the premise that those instruments were fraudulent.

According to the court, the plaintiffs had compelling evidence that suggested these instruments were at the very least authenticated and the subsequently rejected by employees of the defendant-appellant. Thus, the lower court allowed for a limited jurisdictional discovery on whether [BNI], or its officials conducted commercial activity that satisfies the commercial activity exception under the [FSIA].

In this case the Court of Appeals affirmed the decision to allow for limited jurisdictional discovery relying on Maxey ex rel. Maxey v. Fulton, 890 F.2d 279, 282-83 (10th Cir. 1989). The precedent states that in the qualified immunity context, discoveries that are narrowly tailored to uncover only those facts needed to rule on the immunity claim are not immediately appealable. Thus, the Court of Appeals would only have jurisdiction to rule in favor of BNI if the district court did not adequately limit permissible discovery to the question of BNI's immunity. -- Laura Valle, legal assistant,Berliner, Corcoran & Rowe, LLP, Washington, D.C.

Tue, 23:35:00 13 Apr 2010 / Embassy Law Link


Diplomatic Immunity Claim in DC-Denver Flight Incident

The ABA Journal lists as news the claim for diplomatic immunity by Mohammed al-Madadi, said to be a midlevel diplomat from Qatar, who reportedly will not face criminal charges for an alleged joke about lighting his shoes and a claim that he may have wanted to smoke in the rest room of an airplance on April 7, 2010 on a flight from Washington to Denver.

The embassy of Qatar released a statement from ambassador Ali Bin Fahad Al-Hajri on its website. He explains that the travel was for official embassy business and suggests mitakes rather than security issues. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Wed, 23:30:00 7 Apr 2010 / Embassy Law Link


Foreign State not Immune if Actions Affect U.S.

A United States court may exercize subject-matter jurisdiction over a foreign state under the Foreign Sovereign Immunities Act if the foreign government, or its agents and instrumentalities, cause a direct effect in the United States, 28 USC §1602(a)(2).

The United States Court of Appeals for the District of Columbia applied this rule to a situation involving the Royal Canadian Mounted Police which had entered into, and later allegedly broken, a contract with a U.S. corporation.

The effects allegedly felt by the corporation occurred in the United States and qualified under the FSIA, the court held on April 6, 2010 in the matter Cruise Connections Charter Management 1, LP et al. v. Attorney General of Canada et al., docket number 09-7060. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Wed, 21:35:00 7 Apr 2010 / Embassy Law Link


Court of Appeals Confirms Dismissal in Anglo Iberia v. Lodderhose

On March 29, 2010, the United States Court of Appeals for the Second Circuit affirmed the District Court for the Southern District of New York's dismissal of Anglo-Iberia Underwriting Management Company's appeal that P.T. Jamsostek (Persero) negligently supervised its employee, Prio Adhi Sartono, along with other Jamsostek employees acting together in an international commercial reinsurance fraud scheme that allegedly damaged Anglo-Iberia, in Anglo-Iberia et al. v. Lodderhose et al, docket number 08-2666-cv. P.T. Jamsostek is an instrumentality of the Republic of Indonesia.

The appeal did not contest whether Jamsostek and Indonesia are indeed foreign sovereigns entitled to sovereign immunity under the Foreign Sovereign Immunities Act (FSIA), rather, it concerned whether the commercial activity exception under FSIA applied to the facts.

The Court of Appeals concluded that Anglo-Iberia.s negligent supervision claim against Jamsostek and Indonesia was not, in fact, grounded upon an action connected to commercial activity. The Court of Appeals held that the district court was correct in its decision that

the nature of Jamsostek's hiring, supervision, and employment of Sartono and other employees is directly concerned with "employment in the provision of a governmental program of health benefits through collection of employer contributions and payroll deductions" and that such employment is by nature non-commercial.
Further, the Court of Appeals noted that even if it was assumed arguendo that they were indeed engaged in commercial activity, such alleged negligent supervision was not in association with commercial activity.

The Court of Appeals confirmed, therefore, the dismissal of the negligent supervision claim for lack of subject matter jurisdiction.-- Cassandra Sheehan, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, D.C.

Tue, 19:51:16 6 Apr 2010 / Embassy Law Link


Extraordinary Circumstances Results in Relief for the PLO

On March 25, 2010 in Erfrat Ungar et al. v. The Palestine Liberation Organization el al., docket number No. 09-1778, the United States Court of Appeals for the First Circuit vacated the District Court of Rhode Island's decision to deny relief to the PLO from a default judgment under Rule 60(b)(6). Originally, the court noted, the PLO had decided not to participate in discovery nor answer the initial complaint and, instead, instituted a strategy of stonewalling that led to failure and a default judgment against it on July 12, 2004.

However in 2007, a radical shift in the organization and leadership of the PLO occurred. Its new counsel implemented the PLO's revised policy on dealing with foreign litigation to one of cooperation where they would litigate this matter fully and responsibly, id. 4. The PLO petitioned the District Court of Rhode Island to vacate the 2004 judgment under Rule 60(b)(6) due to exceptional circumstances, namely, the political transformation and the sensitive U.S. foreign policy in the Middle East, especially that surrounding the Israeli-Palestinian peace process.

The District Court applied a categorial bar of relief under the view that the defendants engaged knowingly in their stonewalling strategy despite warnings of the consequences.

The U.S. Court of Appeals for the First Circuit remanded the District Court's decision to bar relief based on a categorial rule which in its view did not incorporate a full analysis of the totality of the circumstances, thus rewarding the PLO's change of heart. -- Stephanie Petrew, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Sun, 19:45:16 4 Apr 2010 / Embassy Law Link


Samantar v. Yousuf Before U.S. Supreme Court

May a court in the United States judge acts of torture committed abroad by a foreign government official? The Foreign Sovereign Immunities Act affords foreign governments and their officials immunity. Does the Torture Victim Protection Act strip it and grant the courts subject-matter jurisdiction?

The issue is now before the Supreme Court of the United States in Washington, DC. It heard arguments on March 3, 2010 in the matter Samantar v. Yousuf, docket number 08-1555. The ABA posted the briefs. The Washington Post published a report on the hearing and an editorial of March 6, 2010. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Sat, 13:17:58 6 Mar 2010 / Embassy Law Link


The United Nations Maintains Absolute Immunity

The United Nations' absolute immunity under United States law was reaffirmed in an opinion decided on March 2, 2010. The United States Court of Appeals for the Second Circuit affirmed the lower court's ruling to dismiss the case Brzak et al. v. United Nations et al., docket no. 08-2799.

The original complaint cited an incident in 2003 wherein Cynthia Brzak claimed she was improperly touched by the United Nations High Commissioner for Refugees during the course of a staff meeting in Geneva. Brzak, acting upon the advice of her co-plaintiff Nasr Ishak, filed a complaint with the United Nations' Office of Internal Oversight Services, OIOS. The offending High Commissioner was eventually exonerated by the Secretary-General of the United Nations. Thereafter, both Brzak and Ishak claim that their superiors retaliated against them.

Brzak and Ishak sued the UN and the individuals involved in the incident in the United States District Court for the Southern District of New York. The case was dismissed on the grounds that the UN has absolute immunity under United States law.

The court of appeals agreed with the district court that the United Nations had absolute immunity. The plaintiffs-appellants had argued that the Convention on Privileges and Immunities of the United Nations, CPIUN, the treaty that gives the UN absolute immunity, was not self-executing; therefore, since there had not been legislation pertaining to the treaty after its ratification, the US did not need to recognize UN immunity in domestic litigation. Furthermore, they argued that even if the CPIUN had been self-executing because the Foreign Sovereign Immunities Act, FSIA, was passed after its ratification. FSIA, they argued, strips foreign sovereigns of their immunity in certain circumstances.

First, the court of appeals stated that whatever immunities are possessed by other international organizations, the CPIUN unequivocally grants the United Nations absolute immunity without exception. Second, they noted that the appellants had made no claims that the UN had violated any exceptions to the immunity under FSIA.

The court of appeals finished by stating: legislatively and judicially crafted immunities of one sort or another have existed since well before the framing of the Constitution, have been extended and modified over time, and are firmly embedded in American law. -- Laura P. Valle, Legal Assistant Berliner, Corcoran & Rowe, LLP, Washington, D.C.

Thu, 11:16:36 4 Mar 2010 / Embassy Law Link


Britain-Texas Consular Notification

The Death Penalty blog recites case facts from The Times in a death penalty notification matter that has been filed with a British government brief with the United States Supreme Court in Washington, DC.

Again, Texas is said to have disregarded its consular notification obligations. The February 27, 2010 article, Death-row inmate Linda Carty launches last-chance appeal to US Supreme Court, leaves unclear whether the facts have been researched by the author or have been taken from the Times.

The Texas death row inmate is stated to be Linda Carty. The notification principle had been confirmed by treaty, the Vienna Convention on Consular Relations of 1963, almost 50 years ago and by the International Court of Justice. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Sun, 10:59:38 28 Feb 2010 / Embassy Law Link


Crimes Against Diplomats, Collecting from Protected Witness

On the periphery of the never-ending saga of the Ambassador Letelier assassination in 1976, the United States Court of Appeals for the District of Columbia Circuit affirmed the district court's order denying the appointment of a guardian for the defendant in the case Gonzalez-Vera, et. al. v. Townley, et. al., docket no. 09-5134.

The appellee in this case, Michael Vernon Townley pled guilty to conspiracy to murder a foreign official in connection with the 1976 assassination of former Chilean ambassador and foreign minister Orlando Letelier. After spending five years in prison, he entered into the Witness Security Program, WSP. In the years following his incarceration and during his subsequent time in the WSP, Townley was linked to the July 1976 brutal murder of Carmelo Soria Espinoza, a United Nations diplomat.

Soria's widow, Laura Gonzalez-Vera sued Townley for damages. Townley defaulted on the suit and the district court entered a $7 million judgment against him. Gonzalez-Vera asked the Attorney General to help collect the judgment. The WSP director to whom the Attorney General had delegated the task concluded that it was "not unreasonable for [Townley] to pay $75 per week" toward the judgment. Gonzalez-Vera rejected this offer and sued Townley in the District Court for the District of Columbia. The district court then dismissed the case, stating that Gonzalez-Vera lack[ed] statutory authorization to bring this suit. The district court recited 18 U.S.C. §§ 3523(a), 3523(b)(1), and 3523(b)(3) as follows:


3523(a): If judgment is entered against an individual in WSP and that individual has not made reasonable efforts to comply with the judgment, their location may be disclosed to the plaintiff.
3523(b)(1): Upon a decision by the Attorney General to deny disclosure of the defendant's identity and location, a petitioner can bring an action into district court to collect on the judgment.
3523(b)(3): If the petitioner a) holds a judgment entered by a Federal or State court and b) if the Attorney General has declined to disclose the current identity and location to the petitioner, a guardian may be appointed.
Gonzalez-Vera argued in the district court that sections 3523(a) and 3523(b) are two independent mechanisms to assist with enforcement of an outstanding judgment. The court disagreed and Gonzalez-Vera appealed to the United States Court of Appeals for the District of Columbia Circuit on the basis that the district court had misinterpreted the statutes.

On February 23, 2010, the Circuit Court agreed with the district court, stating that the language in the statute's segments meant for one to follow the other. They added that if the court agreed with Gonzalez-Vera's interpretation, every case in which the protected person's identity are not disclosed would allow for a guardian, including cases where the protected person has made reasonable efforts to satisfy the judgment. They stated that, given the statute's language and structure, and the risks of disclosing a protected person's identity and location even to a court-appointed guardian, we think it clear that Congress intended to make guardianship available only where the Attorney General find that the protected person is failing to make reasonable efforts to satisfy the judgment. -- Laura Valle, Legal Assistant, Berliner, Corcoran, & Rowe, LLP, Washington, DC.

Wed, 15:00:14 24 Feb 2010 / Embassy Law Link


Ambassador not to be Deposed

An ambassador party to a lawsuit initiated by his nation and his embassy may not be deposed without a waiver of sovereign immunity, the United States District Court for the District of Columbia decided in Great Socialist People's Libyan Ara Jamahiriy et al. v. Ahmad Miski, docket number 06-2046, on January 25, 2010.

The defendant had responded to the complaint with a counterclaim and sought the ambassador's deposition. The court also ruled that Libya cannot rely on its sovereign immunity to defeat the counterclaim.

The memorandum and opinion is instructive and detailed. The case involves trademark and domain name law under the Lanham Act, 15 USC §1125(a)(1)(A) and (B) (2006), and the AntiCybersquatting Consumer Protection Act, 15 USC §1125(d) (2006), as well as counterclaimed compensation under tort law. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Thu, 17:18:56 28 Jan 2010 / Embassy Law Link


California Statute Steps into Federal Territory

On January 14, 2010 the United States Court of Appeals for the Ninth Circuit refused to rehear an appeal en banc involving a women's claims to two paintings alleged looted during the Holocaust in Marei Von Saher v. Norton Simon Museum of Art, docket no. 07-56691.

The primary issue of the case revolves the validity of §354.3 of the California Code of Civil Procedure in regard to possible infringement of the federal government's exclusive power designated under the Foreign Affairs doctrine to redress war injuries. §354.3 extends the statue of limitations until 2010 for actions for the recovery of Holocaust-era art, id. 1018. The Court also examines an alleged contradiction of a well-established policy of external restitution enacted under the Truman administration post WWII.

As far as the code infringing on the national government's exclusive power in foreign affairs the court held that it does. The intention, according to the analysis of the Court, was to help Holocaust victims rather than regulate the State's museums and galleries. Although the Court deems this as a noble goal, the humanity underlying the State statute could not give the State the benefit of any doubt in resolving the conflict with national policies, id. 1032. California is in essence creating a distinct juristic personality one that overlaps into the realm of the foreign affairs doctrine, a power designated for the national rather than state government.

The United States government post WWII began external restitution efforts to return looted art under the Plunder and Restitution at SR-143 to its original country of origin--not to individual owners. The State Department recommended this plan of action to allow newly liberated governments to handle the specifics of claims of individuals. Over three million pieces were returned under this policy that ended in 1948, including the paintings in question. Had §354.3 been enacted during the 1940's it would have directly contradicted this external restitution policy since it offers a competing method of resolving restitution claims id 1029. However since the policy is no longer in effect, §354.3 cannot conflict with it.

The Court of Appeals affirms the position of the District court claiming that §354.3 intrudes on the power to make and resolve war, id. 1034. Petitions for rehearing have been denied, and the case has been remanded to the District Court for further proceedings. -- Stephanie Petrew, legal assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Mon, 22:06:18 18 Jan 2010 / Embassy Law Link


Attach Diplomatic Buildings Based on Use?

In DOJ: Iranian Property Protected from Civil Judgment Enforcement, Mike Scarcella summarizes points made in a hearing in the United States Court of Appeals for the District of Columbia Circuit regarding the attachment of diplomatic properties to satisfy a judgment against a foreign nation.

His January 15, 2010 report addresses the use of properties owned by Iran but administered under the Vienna Convention on Diplomatic Relations of April 18, 1961 by the United States Department of State; see also Beam, What happens to an embassy's staff when the building closes?.

Some such real estate is tenant-used and, therefore, should not be considered diplomat-used, the plaintiff argues. That view is shared by neither the United States nor Iran, Scarcella reports. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Fri, 21:39:54 15 Jan 2010 / Embassy Law Link


China Not Liable for Damages from Terrorism

On January 14, 2010, the United States District Court for the District of Columbia dismissed the complaint in the matter of Zhenxing v. The Government of the People's Republic of China, docket no. 08-2228 because the plaintiff failed to meet the minimum requirements of Rule 8 of the Federal Rules of Civil Procedure, FRCP.

In addition to the premature filing of the original complaint, the court stated that the pro se plaintiff had filed a complaint so unclear that it utterly fail[ed] to give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests, quoting Conley v. Gibson, 355 U.S. 41, 47-48 (1957). While the court noted that the standards to which pro se litigants are held are often more lenient than those for attorneys, it ruled that in this case, even those standards had not been met.

Aside from the ambiguity of the complaint itself, the court stated that the plaintiff's attempt to sue China under the U.S. Code which designates civil remedies for American victims of international terrorism, 18 U.S.C. §2333(a), did not apply to foreign states as was clearly stated in 18 U.S.C. § 2337(2), see also Lawton v. Republic of Iraq, 581 F. Supp. 2d 43, 46 (D.D.C. 2008).

Under federal law in the United States, the jurisdictional basis for a victim of international terrorism against a foreign state is the State Sponsored Terrorism Exception to the FSIA. Had the plaintiff in this case met the minimum requirement of Rule 8 of the FRCP, the case may still have been dismissed since the People's Republic of China is not currently designated as a state sponsor of terrorism. -- Laura P. Valle, Legal Assistant, Berliner, Corcoran & Rowe, LLP.

Thu, 14:00:00 14 Jan 2010 / Embassy Law Link


Slate: What Happens when an Embassy Closes?

In Closed for Jihad--What happens to an embassy's staff when the building closes? Christopher Beam explains the consequences for staffers, visa services and the two nations affected. He provides valuable historical balance. As a bonus, he puts it, he adds information on the ownership of the land where embassies are built. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC, whom the Slate author consulted.

Mon, 22:17:00 11 Jan 2010 / Embassy Law Link


IRS Announcement re Local Hires

A continuing and global problem relates to the taxation of local hires at embassies, consulates and similar missions. The number of nationalities and tax regimes governing them seems unlimited. Confusion abounds, and good faith actions may insufficiently protect against penalties.

The Inernal Revenue Bulletin 2010-2 of January 11, 2001 seeks to clarify the situation at German missions in the United States and correspondingly at U.S. missions in Germany by way of a competent authority agreement.

By taking into consideration the potentially conflicting provisions of the Convention Between the United States of America and the Federal Republic of Germany for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital and to Certain Other Taxes, signed at Bonn on August 29, 1989, as amended by the Protocol, signed at Berlin on June 1, 2006, as well as Article XIX of the Treaty of Friendship, Commerce and Consular Rights between the United States and Germany, signed at Washington on December 8, 1923 and the Vienna Convention on Consular Relations, the agreement provides for the application of certain exemptions in one nation which correspond to tax liability in the other. Thus, taxation is assured while double taxation is avoided. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Mon, 19:32:00 11 Jan 2010 / Embassy Law Link


Lloyds v. Libya: Settlement Controls

The settlement treaty between the United States and Libya governs the immunity of Libya from suit in United States courts, and it does not authorize the U.S. court to hold a matter in abeyance until the plaintiff finds a suitable alternative forum, the United States District Court for the District of Columbia held on January 7, 2010 in Certain Underwriters at Lloyds London et al. v. Great Socialist People's Libyan Arab Jamahiriya et al., docket number 06-731. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe, LLP, Washington, DC.

Thu, 18:16:00 7 Jan 2010 / Embassy Law Link