Justia Government & Administrative Law Opinion Summaries

Articles Posted in International Law
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In these three consolidated appeals, the court must decide issues about the enforceability of German bonds issued during the period between World War I and World War II. The court concluded that the district court had jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. 1330, 1302-1311, over the complaint against Germany filed by Sovereign Bonds regarding its Agra bonds issued in the territory that later became East Germany; all the bonds were subject to the 1953 Validation Treaty and must be validated before they could be enforced in American courts; the complaint filed by World Holdings to enforce its validated bonds was untimely; and the district court did not abuse its discretion when it denied discovery to Sovereign Bonds on the issue of validation. View "World Holdings, LLC v. Federal Republic of Germany" on Justia Law

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Plaintiffs, natives of Somalia and members of the Isaaq clan, alleged that they or members of their families were subject to torture, arbitrary detention, and extrajudicial killings by government agents under the command and control of defendant, a former high-ranking government official in Somalia. At issue was whether defendant was immune from suit under the Torture Victim Protection Act of 1991 (TVPA), 28 U.S.C. 1350, and the Alien Tort Statute (ATS), 28 U.S.C. 1350. The court gave deference to the State Department's position on status-based immunity doctrines such as head-of-state immunity but, in contrast, the State Department's determination regarding conduct-based immunity was not controlling but carried substantial weight in the court's analysis. Because this case involved acts that violated jus cogens norms, the court concluded that defendant was not entitled to conduct-based official immunity under the common law. Accordingly, the court affirmed the district court's denial of both head-of-state and foreign official immunity to defendant. View "Yousuf v. Samantar" on Justia Law

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In 1994, two surface-to-air missiles brought down an aircraft carrying then Rwandan and Burundi Presidents Juvenal Habyarimana and Cyprien Ntaryamira, both of Hutu ethnicity. The killings fueled the Rwandan genocide, which spread violence across East Central Africa and killed millions of innocent victims. Some believe the then Tutsi-led Rwandan Patriotic Front headed by current Rwandan President Paul Kagame was behind the killings. The widows of the two former heads-of-state, Madame Habyarimana and Madame Ntaryamira, blamed President Kagame for their husbands' deaths. They filed suit in Oklahoma federal court seeking to hold him liable under the Alien Tort Claims Act, the Torture Act, the Racketeeer Influenced and Corrupt Organization Act, and multiple state and international laws. During the pendency of this case in the district court, the United States, at the request of the Rwandan Government, submitted a "Suggestion of Immunity" on behalf of President Kagame. The Tenth Circuit upheld the district court in dismissing this case due to President Kagame's immunity: "[quoting case law precedent] 'the precedents are overwhelming. For more than 160 years American courts have consistently applied the doctrine of sovereign immunity when requested to do so by the executive branch. Moreover, they have done so with no further review of the executive's determination.' Simply stated, '[i]t is . . . not for the courts to deny an immunity which our government has seen fit to allow.'" View "Habyarimana v. Kagame" on Justia Law

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In a consolidated appeal, Instituto Costarricense de Electricidad appealed the District Court's denial of its asserted right to victim status under the Crime Victims' Rights Act (CVRA) and sought restitution. In December 2010, the United States filed a criminal information against Alcatel-Lucent, charging it with violating provisions of the Foreign Corrupt Practices Act (FCPA). The government simultaneously filed criminal informations against three subsidiaries of Alcatel-Lucent (Alcatel-Lucent France, Alcatel Lucent Trade International, and Alcatel Centroamerica) charging them with conspiracy to violate the FCPA's accounting and anti-bribery provisions. In 2011, Alcatel-Lucent entered into a deferred prosecution agreement and factual proffer with the United States. The agreement deferred prosecution for three years, subject to Alcatel-Lucent's compliance with specific reforms in its accounting and oversight controls, and required Alcatel-Lucent to pay a penalty of $92 million. The facts proffered in Alcatel-Lucent's deferred prosecution agreement identified Appellant Instituto Costarricense de Electricidad (ICE). Alcatel-Lucent admitted that it hired and paid unusually large fees to "consultants," who in turn curried favor with ICE officials and board members to secure telecommunications contracts by offering direct bribes or kickbacks from any contracts awarded by ICE to Alcatel-Lucent or its subsidiaries. After thorough review of the record, and with the benefit of oral argument, the Eleventh Circuit concluded that it lacked jurisdiction to hear the appeal.

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The Mission brought this interlocutory appeal from the district court's denial of immunity under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1602-1611. At issue was whether the Mission could be sued for the damage to an adjoining property caused by its alleged failure to comply with the New York City Building Code, N.Y. City Admin. Code tit. 28, ch.1. The court rejected the Mission's argument that the immunity accorded to its decision to base its operations in a townhouse and to renovate the building for such use extended to the tort allegedly committed during its implementation of that decision. Although the Mission was not under an obligation to construct the chancery at any particular location, once it decided to do so it could not disregard the nondelegable duty of care imposed upon it by the city's Building Code. Accordingly, the court held that the obligation to protect the party wall was not discretionary and that the Mission could not avail itself of the protection of the FSIA's discretionary function exception.

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In combined cases, the Supreme Court examined the Indian Child Welfare Act (ICWA) to decide whether several issues relating to the Act's notice provision mandate notice be sent to the appropriate tribe or to the Secretary of the Interior. Because the question of whether notice violations occurred in these cases began with determining whether the tribal-notice requirement was triggered, the Court first considered what indicia of Indian heritage sufficed to trigger the notice requirement. Further, the Court then considered whether a parent could waive the rights granted by ICWA to an Indian child's tribe and determine the appropriate recordkeeping requirements necessary to document the trial court's efforts to comply with ICWA's notice provision. "While it is impossible to articulate a precise rule that will encompass every possible factual situation, in light of the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, we think the standard for triggering the notice requirement of 25 USC 1912(a) must be a cautionary one." Upon review, the Supreme Court held that: (1) sufficiently reliable information of virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement; (2) a parent of an Indian child cannot waive the separate and independent ICWA rights of an Indian child's tribe and that the trial court must maintain a documentary record; and (3) the proper remedy for an ICWA-notice violation is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue.

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Plaintiffs, nine children in the custody of PMC, filed suit under 42 U.S.C. 1983 against three Texas officials, in their official capacities, seeking to represent a class of all children who were now, and all those who will be, in the State's long-term foster care. The gravaman of plaintiffs' complaint is that various system-wide problems in Texas's administration of its PMC subjected all of the children in PMC to a variety of harms. Applying the standards announced in the Supreme Court's recent opinion, Wal-mart Stores, Inc. v. Dukes, the court held that the district court failed to conduct the "rigorous" analysis required by Rule 23 in deciding to certify the proposed class. The court also held that the district court abused its discretion by certifying a class that lacked cohesiveness under Rule 23(b)(2). Accordingly, the court vacated the district court's class certification order and remanded for further proceedings.

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Respondent Alena Berridge relocated to Denver, Colorado from the Czech Republic with her two children. Subsequently, Petitioner Max Joseph Lesler, Respondent’s ex-husband and father of the children, filed a petition seeking return of the children to the Czech Republic pursuant to the Hague Convention and ICARA. In this appeal, the issue before the Tenth Circuit was whether the Court could grant any meaningful relief when the district court granted a petition for the return of children based not on a finding of wrongful removal, but instead on the parents' stipulation that the children would return to the country of habitual residence for a custody hearing. Upon review, the Tenth Circuit held this action was moot, resting on the fact that the district court made no finding of wrongful removal, and not on the basis of the children's then-current location. Accordingly, the appeal was dismissed and the district court's opinion was vacated. The case was remanded for dismissal due to lack of subject matter jurisdiction.

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Israeli citizens Arturas Bakanovas, Edita Bakanovas, and their daughter, Karolina Bakanovas, sought review of an order of the Board of Immigration Appeals (BIA) that denied their motion to reopen. In 1990 Arturas and Edita Bakanovas emigrated from Lithuania to Israel and became Israeli citizens. In 1991 they entered the United States on visitor visas and, after they overstayed their visas and the Immigration and Nationalization Service issued orders to show cause why they should not be deported, Arturas applied for asylum. The asylum application stated that Arturas had suffered persecution in Israel because of his Catholic faith and Lithuanian origin, that Edita had suffered persecution in Lithuania because of her Jewish faith, and that they both suffered persecution in Israel because of their interfaith marriage. In 1994 an immigration judge denied the Bakanovases asylum and withholding of deportation but granted their request for voluntary departure, with an alternate order of deportation to Israel or Lithuania if they remained in the United States after the voluntary-departure deadline. In October 2000 the BIA affirmed the order, and the Tenth Circuit affirmed that decision. The Bakanovases did not leave the United States, and in January 2007 they were arrested on immigration charges and released on bond. They then met with their current attorney, who informed them in April 2007 of the availability of relief under the Convention Against Torture. In March 2010, almost three years later, they filed a motion to reopen with the BIA, which the BIA denied. They petitioned the Tenth Circuit to review that decision. Because the denial of a motion to reopen is "a final, separately appealable order," the Tenth Circuit lacked jurisdiction to review the case. The Court dismissed Petitioners' appeal.

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Plaintiffs, citizens and residents of Bolivia, brought suit under the Alien Tort Statute (ATS), 28 U.S.C. 1350, against the former President and Defense Minister of Bolivia (defendants) for decisions these leaders allegedly made while in high office. Plaintiffs asserted that defendants violated international law by committing extrajudicial killings; by perpetrating crimes against humanity; and by violating rights to life, liberty, security of person, freedom of assembly, and freedom of association. The court held that because the pertinent international law was not already clear, definite, or universal enough to reach the alleged conduct (especially after the pleadings were stripped of conclusory statements), the court declined to expand the kinds of circumstances that could be actionable under the ATS to cover the facts alleged in this case. Accordingly, the court held that the denial of the motion to dismiss these claims was reversed.