Justia Government & Administrative Law Opinion Summaries

Zivotofsky was born to U.S. citizens living in Jerusalem. Under the Foreign Relations Authorization Act, 2003, 116 Stat. 1350, his mother asked Embassy officials to list his place of birth as “Israel” on his passport. Section 214(d) of the Act states for “purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request … record the place of birth as Israel.” Embassy officials refused to list Zivotofsky’s place of birth as “Israel,” citing the Executive Branch’s position that the U.S. does not recognize any country as having sovereignty over Jerusalem. The D. C. Circuit held the statute unconstitutional. The Supreme Court affirmed. The President has the exclusive power to grant formal recognition to a foreign sovereign. The Court cited the Reception Clause, which directs that the President “shall receive Ambassadors and other public Ministers,” and the President’s additional Article II powers, to negotiate treaties and to nominate the Nation’s ambassadors and dispatch other diplomatic agents. The Constitution assigns the President, not Congress, means to effect recognition on his own initiative. The Nation must “speak . . . with one voice” regarding which governments are legitimate in the eyes of the United States and which are not, and only the Executive has the characteristic of unity at all times. If Congress may not pass a law, speaking in its own voice, effecting formal recognition, then it may not force the President, through section 214(d), to contradict his prior recognition determination in an official document issued by the Secretary of State. View "Zivotofsky v. Kerry" on Justia Law

Enacted after the attacks of September 11, 2001, the Terrorism Risk Insurance Act (TRIA), authorizes execution, in satisfaction of judgments against terrorists, on blocked assets that are seized or frozen by the United States. The plaintiffs, victims of terror, hold a judgment against al Qaeda for their $2.5 billion subrogation claims. The Seventh Circuit vacated summary judgment in favor of plaintiffs. Although plaintiffs have constitutional and statutory standing and TRIA is a remedial statute, under the statute the only assets subject to execution are blocked assets. Assets that are subject to a United States government license for final payment, transfer, or disposition, among other requirements, do not qualify as blocked assets. By the time plaintiffs filed their initial claims, the Office of Foreign Assets Control had already issued its license and the funds had already been arrested to preserve them for forfeiture; the funds were no longer blocked. View "United States v. Art Ins.Co." on Justia Law

Plaintiffs, family members of union leaders killed in Colombia by members of the Colombian National Army's 18th Brigade, filed suit against Occidental, alleging several causes of action, including three under the Alien Tort Statute (ATS), 28 U.S.C. 1350, contending that Occidental should be liable for the 18th Brigade's war crimes, crimes against humanity, and assorted torts arising out of the murder of the union leaders. The district court dismissed the complaint under Rule 12(b)(1) because it raised nonjusticiable political questions. The court affirmed, concluding that the facts of this case cannot be framed in such a way that severs the tie between the United States' and Occidental's funding of the CNA and the 18th Brigade. Plaintiffs' allegations are manifestly irreconcilable with the State Department's human rights certifications to Congress and the court remains bound by the Supreme Court's holding in Oetjen v. Cent. Leather Co. and Corrie v. Caterpillar, Inc.View "Saldana v. Occidental Petroleum" on Justia Law

Plaintiff filed suit against Kenya in district court for breach of contract based on Kenya's underpayment of rewards owed to him. The court affirmed the district court's conclusion that the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1604, barred plaintiff's suit. In this case, Kenya did not waive its immunity in U.S. courts and Kenya's alleged breach of contract lacks the connection to the United States required by the commercial activity exception to the FSIA. View "Odhiambo v. Republic of Kenya, et al." on Justia Law

Defendant-appellee William Sloan, a citizen of the United States, and plaintiff-appellant Elaine Murphy, a citizen of Ireland, were married in California in 2000. They lived together in Mill Valley, California, and had a daughter, E.S., in 2005. In October 2009, the couple separated, with Sloan moving to a different bedroom in their house. In 2010, Murphy and Sloan enrolled E.S. in a private California preschool for the next fall. But plans changed in the spring after Murphy proposed moving to Ireland so that she (Murphy) could go back to school. Murphy and Sloan discussed the move to Ireland as a "trial period," and Sloan wrote to both the private preschool and the public school district to inform them of E.S.'s move and the temporary nature of the plan. Visitation between the parents worked for several years until Murphy took E.S. with her on a trip to visit Murphy's boyfriend in Asia. Sloan lost contact with Murphy during that time. On a regularly scheduled visit to E.S. in Ireland, Sloan grew concerned about E.S.'s absences from school when Murphy announced she would again be going to Asia with Murphy's boyfriend. Sloan took E.S. with him to the United States when he left Ireland. Murphy and Sloan agreed that Sloan told Murphy that he did not intend to return E.S. to Ireland, to which Murphy responded that if E.S. was going to live in the United States, Murphy would return to Mill Valley. Murphy took no action to compel E.S.'s return to Ireland for nearly three months, until September 2013, when she filed the action that led to this appeal. E.S. began third grade in Mill Valley in August 2013. In October 2013, the Superior Court entered a judgment dissolving the marriage, but left pending the state court action for purposes of issuing further orders regarding child custody, child support and spousal support. Murphy brought suit under the Hague Convention to compel E.S.'s return to Ireland, contending that Ireland was E.S.'s "habitual residence." The district court denied Murphy's petition after considering Murphy and Sloan's sworn declarations, testimony and documents presented at an evidentiary hearing and depositions of Murphy's boyfriend and an expert witness. It determined that the spring of 2010 was the last time that Sloan and Murphy had a shared, settled intent, which was that E.S. reside in California. The court concluded that "E.S. was, at the time of the alleged wrongful retention, and now remains, a habitual resident of the United States." The issue this case presented for the Ninth Circuit's review explored the significance of a "trial period" of residence on a child's "habitual residence" under the Hague Convention on the Civil Aspects of International Child Abduction. Murphy sought the return of E.S. to Ireland. After review, the Ninth Circuit affirmed the judgment of the district court that E.S. was a habitual resident of the United States; "E.S.'s attachments to Ireland 'did not shift the locus of [E.S.'s] development[,] and . . . any acclimatization did not overcome the absence of a shared settled intention by the parents to abandon the United States as a habitual residence.'" View "Murphy v. Sloan" on Justia Law

This petition involves Bermuda's efforts to secure rights from the International Telecommunication Union (ITU) to operate a satellite at the 96.2 degree W.L. orbital location. Bermuda partnered with EchoStar to deploy and maintain its satellite at this orbital location. Meanwhile, the Netherlands also sought rights from the ITU to operate a satellite at a nearby orbital location. Petitioner, Spectrum Five, a developer and operator of satellites working in partnership with the Netherlands, filed an objection to the FCC to EchoStar's request to move its satellite from 76.8 degrees W.L. to 96.2 degrees W.L. The FCC granted EchoStar's request and determined that Bermuda secured rights to the 96.2 degree W.L. orbital location. Spectrum Five petitioned for review of the Commission's order, claiming principally that the Commission acted arbitrarily and capriciously. The court dismissed the petition for lack of Article III standing because Spectrum Five failed to demonstrate a significant likelihood that a decision of this court would redress its alleged injury. View "Spectrum Five LLC v. FCC" on Justia Law

After the end of World War II, holders of public and private bonds issued in Germany demanded repayment. Germany had suspended payment on many bonds during the 1930s, but some were not due until the 1950s or 1960s. A Debt Agreement involving 21 creditor nations specified that Germany would pay valid debts outstanding in 1945. Germany enacted a Validation Law requiring holders to submit foreign debt instruments for determination of whether the claims were genuine. In 1953 the U.S. and West Germany agreed by treaty (applicable to Germany as reconstituted in 1990) that the debts would be paid only if found to be legitimate. Holders had five years to submit documents for validation by a New York panel. Later claims went to an Examining Agency in Germany. Decisions were subject to review in Germany. Plaintiffs sued in 2008 under international diversity jurisdiction, 28 U.S.C. 1332(a)(2), to recover on bearer bonds issued or guaranteed by Germany before the war. One holder never submitted to validation. The other submitted bonds to a panel in Germany, which found them ineligible, and did not seek review. The district court dismissed, holding that the Treaty is binding and that the suit was barred by a 10-year (Illinois) statute of limitations. The Seventh Circuit affirmed, rejecting an argument that the Treaty amounted to a taking without just compensation. The Tucker Act, 28 U.S.C. 1491(a)(1), authorizes whatever compensation the Constitution requires and the Supreme Court has stated that there is no constitutional obstacle to an international property settlement. The Treaty is not self-executing; the Alien Tort Statute, 28 U.S.C. 1350, cannot be used to contest the acts of foreign nations within their own borders. How Germany administers the validation process is for German courts to consider. The case was also barred by the limitations period. View "Korber v. Bundesrepublik Deutscheland" on Justia Law

Plaintiffs appealed from the district court's order denying their Rule 60(b) motion to reopen the district court's judgment dismissing sovereign defendants under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1330 1602 et seq. Plaintiffs moved for relief from judgment in order to appeal the district court's alternative ground for finding sovereign immunity - a ground that the court declined to reach in its prior opinion. The district court denied the motion under the impression that the court would be able to consider that unreviewed issue on appeal from the denial. But the court could not. Accordingly, the court concluded that this was an error of law and that "extraordinary circumstances" existed warranting relief under Rule 60(b). The court reversed and remanded for further proceedings. View "In Re: Terrorist Attacks on September 11, 2001" on Justia Law

Plaintiffs, the crew of an Ecuadorian fishing boat, filed suit against the United States, alleging that the United States harmed plaintiffs and their property when the Coast Guard boarded the boat in search of drugs. The court held that, on the evidence submitted by the parties, reciprocity with Ecuador existed; the discretionary function exception applied generally to plaintiffs' claims because most of the actions by the Coast Guard were discretionary; the government could have violated its non-discretionary policy of paying damages to the owner of the boat; and to the extent that plaintiffs could establish that the United States violated that mandatory obligation, sovereign immunity did not bar this action. Accordingly, the court affirmed in part, vacated in part, and remanded for further proceedings. View "Tobar v. United States" on Justia Law

The government appealed the district court's order which altered the terms of a bond the Coast Guard had fixed for the release of a detained ship that was under investigation and restricted the types of penalties the government could seek for the ship's potential violations of certain ocean pollution prevention statutes. The ship at issue, the Pappadakis, an ocean-going bulk cargo carrier carrying a shipment of coal to Brazil, was detained by the Coast Guard because the vessel had likely been discharging bilge water overboard. The court reversed and remanded for dismissal under Federal Rule of Civil Procedure 12(b)(1) where the matter was not subject to review in the district court because the Coast Guard's actions were committed to agency discretion by law. Consequently, the district court lacked jurisdiction to consider the petition. View "Angelex Ltd. v. United States" on Justia Law