DC Circuit: USA v. Nizar Trabelsi

 Pretrial orders denying a double jeopardy claim arising from the circumstances of extradition are sufficiently final for the purposes of appeal.

By the terms of the treaty and the act of state doctrine, the courts should primarily defer to the actions of the foreign executive rather than the actions of the foreign judiciary.

Foreign court's determination of the limits of the foreign executive's power under the order did not interpret the executive's decision or say that he was compelled to follow the instructions of the order.

Foreign executive's transmission of letter outlining terms of the extradition was not an act of state where the transmission of the letter was mandated by the foreign judiciary, and the letter notes that it is not necessarily the position of the foreign state.

CONCURRENCE:

A private right arising from a treaty can be forfeited when not timely raised.

CONCURRENCE:

Although the plain text of the treaty imposes no double jeopardy obligations on the extraditing state, an earlier holding in the case established that it imposed reciprocal obligations as to its principles; making this determination should have been the first consideration, as it implicates US separation of powers, with the courts constrained from reading general principles of international law into the terms of a treaty.

USA v. Nizar Trabelsi

Ninth Circuit: Perez v. USA

 

Alleged violation of a jus cogens norm doesn't waive federal soveriegn immunity for purposes of a claim under the Alien Tort Statute under a theory of extra-constitutional wrongdoing.

Equitable tolling not available for second cause of action, which under the law at time of filing would bar recovery under any other cause of action, since this judgment bar would prohibit subsequent recoveries, but did not address claims filed in the same suit, either one of which might have prevailed.

Extension of Bivvens unavailable, as an action against the agency head would be an inappropriate attempt to change government policy, and the claim against the agent who actually shot the Mexican citizen on the border fence has national security implications.

CONCURRENCE IN THE JUDGMENT AND PARTIAL CONCURRENCE

No need to reach sovereign immunity, as the elements of the ATS claim aren't met.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/17-56610.pdf

Fourth Circuit: US v. Ancient Coin Collectors Guild

Domestic law implementing treaty that barred, upon request, the sale of ancient coins belonging to other nations properly divided the purposes of the treaty; it was therefore not necessary to prove at trial that the coin had been discovered in the country of the requesting state party, as the implementing law had allowed for administrative designation of classes of coins.

Court did not abuse its authority by requiring that the deft's expert testimony be about the particular coins at issue, rather than old coins generally.

Court did not abuse authority in excluding testimony that the coins had been passed legally from a third state into the US immediately prior to sale.

Where the administrative regulations implementing the domestic law, apparently due to a drafting error, changed the scope of enforcement, a fair notice defense doesn't bar enforcement where all parties seemed to be aware of which items were prohibited under the law.

Discovery properly limited.  Court did not abuse its discretion in striking part of the amended answer that seemed outside of the remand from the court of appeals.

http://www.ca4.uscourts.gov/opinions/171625.P.pdf

Fifth Circuit: Stemcor USA Incorporated v. Cia Siderurgica do Par

District court had subject matter jurisdiction under international convention to enforce the provisional arbitration award.

Although strict compliance with a state preemptive attachment statute would allow attachments of assets allocated by arbitration award on the understanding that they were subsequently to be converted to judgment, such a showing was not made here.

http://www.ca5.uscourts.gov/opinions/pub/16/16-30984-CV1.pdf

Second Circuit: Petersen Energía Inversora, S.A.U., et al. v. Argentine Republic, et al.

Foreign corporation's bylaws requiring a tender offer for remaining shares after expropriation by the state were an incidental mechanism to the expropriation, and not the mechanism of the statutory expropriation.  Jurisdiction over claim arising from lack of subsequent tender offer is therefore proper under the direct effects exception to FISA.

Continuing government control of the corporation does not divest the court of subject matter jurisdiction, as the question of the enforcement provision of the tender offer requirement is commercial in nature, and has direct effects domestically.

http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/4/doc/16-3303_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/4/hilite/

Second Circuit: Kiobel v. Cravath, Swain & Moore, LLP.

District court had jurisdiction over subpoena for communications to US firm from foreign client, as jurisdiction arises from the present location of the documents, viz, midtown.

Court abused its discretion in issuing subpoena in furtherance of a foreign court proceeding for communications with a foreign client previously released under confidentiality order, as the documents would not be available in the foreign forum, and the party requesting them is a party to the foreign litigation.  Disclosure would undermine confidence in the confidentiality of attorney-client communications, and there is no guarantee that the foreign forum will protect the confidentiality at the level of the existing agreement.

http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/6/doc/17-424_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/6/hilite/

DC Circuit: Republic of Argentina v. AWG Group Ltd

Arbitratrator on board of investment bank was not made evidentially partial to a party by the bank's substantial investments in it, as passive investing is distinct from an active business relationship, and the loans were an insignificant part of the bank's total portfolio.

Arbitrator's decisions on the merits were within the scope of the arbitration; finding not precluded by international conventions.

https://www.cadc.uscourts.gov/internet/opinions.nsf/7B9299B6A47D2BBE852582BF005095A5/$file/16-7134-1738928.pdf

Federal Circuit: Sifab Solar, Inc. v. US

Where there is no probability of success on the merits, a preliminary injunction is not reviewed under a sliding scale as to the merits.

Congruency between presidential order on tarriffs and the commission's recommendations is a matter for Congress; commission findings did not preclude the tarriff under the NAFTA enablement act.

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1718.Opinion.6-15-2018.pdf

Eleventh Circuit: Carmina R. Comparelli, et al v. Republica Bolivariana De Venezuela, et al

Claim captioned as an ATS claim but arising under FISA is properly construed as a FISA claim.

As FISA expropriation suits require factual correctness to state a claim, courts can pierce the pleadings.

Where a state distinguishes between nationals and foreigners among its permanent residents, the seizure does not implicate the domestic takings exception to FISA expropriation claims; in the case of dual nationals, the inquiry into residence is fact-specific.

An effects-based nexus under the commercial exception to FISA counters the presumption against extraterritoriality.

http://media.ca11.uscourts.gov/opinions/pub/files/201616748.pdf

DC Circuit: Rachel Fraenkel v. Islamic Republic of Iran

District court's reduction of damages in a FISA suit seeking solatium (consolation) damages against killers of family member because the victims were targeted on the basis of foreign citizenship was an abuse of discretion.  The appropriate amount, though, is still a matter of judicial discretion.

Similarly, error to reduce damages for assumption of risk, given that the purpose of the statute is to reduce terrorism, and the victims' conduct was reasonable.

https://www.cadc.uscourts.gov/internet/opinions.nsf/C60AD39892C8E38A852582A600521EC3/$file/17-7100-1735019.pdf

Second Circuit: Kirschenbaum, et al. v. 650 Fifth Avenue and Related Properties

International, FSIA


Error for court below to use the Executive Order implementing sanctions to define the scope of foreign state entities under the FSIA.  Definition comes from established constructions.

US corporate entities cannot equitably be read as alter egos of foreign citizens in order to qualify for the protections of a statute requiring foreign nationality.  An equitable alter ego construction can, however, be used to establish the merits of a claim against the entity on behalf of the state.

Insufficient day-to-day control and disregard of the corporate form to establish entity's liability on behalf of the foreign state.

Although second statute is codified proximate to the FSIA, an agency or instrumentality might qualify under one but not the other, since the reference in one statute is to foreign states, and the other refers to terrorist organizations.

Alter ego implies a more profound degree of control than does agency/instrumentality.

Government had a possessory interest in the seized assets because the assets met the terms of the executive order, not because the court trustee had actual possession.



Kirschenbaum, et al. v. 650 Fifth Avenue and Related Properties

Sixth Circuit: Avelino Cruz Martinez v. USA

En Banc, International, Extradition


Issuance of arrest warrant stops the clock for purposes of statutes of limitations referenced in extradition treaties.

Treaty reference to lapse of time does not incorporate the speedy trial guarantee.

Concur in J -- Speedy Trial analysis doesn't follow textually, but is correct given the purposes of treaty.

Dissent 1 - Treaty incorporates the guarantee -- plain meaning.

Dissent 2 - Translation inaccurate.

Avelino Cruz Martinez v. USA

Eigth Circuit: United States v. The-Nimrod Sterling

Statutory Interpretation

Federal statute prohibiting impersonation of a diplomat is violated by an assertion to be a diplomatic representative of a fictional country.

United States  v.  The-Nimrod Sterling

Second Circuit: United States v. Garavito-Garcia

International Law, Crim, Conspiracy, Double Jeopardy

Treaty language requiring release within thirty days if not extradited did not create a private right for the deft - the right belongs to the state party.  Comity requires that US courts recognize the decision by the state party declining to uphold the claim.

Sufficient evidence, given taped conversations.

Court's supplemental "mere presence" instruction was a correct statement of the law of conspiracy.

Indictment not duplicitous, as one count requires providing assistance to a group that commits a terrorist act, and another requires providing assistance to a group listed as a terrorist organization.


United States v. Garavito-Garcia

Seventh Circuit: Jaded Martinez v. Peter Cahue

Hague Act

Where a parent potentially has rights under state law, but the former spouse's removal of the child to a foreign country was lawful, the emigrating parent may invoke the foreign statute's mandate that the child be returned there after temporarily returning to the state.

Jaded Martinez v.   Peter Cahue

Second Circuit: Ashim Khattri Chettri, et al. v. Nepal Rastra Bank, et al.

FISA

When a foreign bank that is an instrument of the foreign sovereign freezes an account acting while acting in its governmental/regulatory capacity, the commercial exception to FISA isn't a basis for jurisdiction.

Freezing of account didn't happen in US, didn't have sufficient direct effects in US.

Routine law-enforcement freezing of funds doesn't rise to the level of a taking without compensation in violation of international law.

Ashim Khattri Chettri, et al. v. Nepal Rastra Bank, et al.

Second Circuit: Atlantica Holdings, Inc. v. Sovereign Wealth Fund Samruk-Kazyna JSC

FISA, Securities

FISA provides a cause of action under commercial exception for extraterritorial misrepresentations where the losses were directly and (usually to some degree foreseeably) sustained within the USA.

Direct effects on nonparties would qualify.

Locus delicti is where the harm is sustained.

Court declines to exercise pendent jurisdiction over interlocutory appeal on personal jurisdiction.

http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/doc/14-917_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/hilite/

Fourth Circuit: Farhan Warfaa v. Yusuf Ali

International

ATS claim barred under the presumption against extraterritorial application, as it does not extensively and directly touch and concern the USA.

Foreign officials cannot claim sovereign immunity in TVPA actions alleging jus cogens violations.

Concur/Dissent: Deft is non-adventitiously a lawful permanent resident who earlier did military training in the USA, so ATS allows the claim.

http://www.ca4.uscourts.gov/Opinions/Published/141810.P.pdf

DC Circuit: Rosalie Simon v. Republic of Hungary

International law

(Srinivasan)

WWII treaty not a categorical bar to claims against Hungarian government, railroad under FSIA, as the treaty does not claim to be an exlusive remedy -- the Allied nations could not waive the rights of non-nationals.

Takings of property incident to the deportations are themselves genocide, and state a claim within the expropriation exception to the FSIA.

Plausible inference of commercial activity, as the funds were later commingled, but insufficient proof in pleadings of US nexus for Hungarian government activities.

Genocidal takings have no internal exhaustion requirements, as insufficient compensation is not the underlying harm.

Comity an open question.

Justiciable Article III claims. (Citing Zivitofsky)

Concurrence: Hungary's implementation of treaty insufficient to bar FSIA claim.

https://www.cadc.uscourts.gov/internet/opinions.nsf/0CE6088155B448E285257F490054E55A/$file/14-7082-1596075.pdf

Fifth Circuit: USA v. Roberth Rojas, et al

Crim

Drug statute constitutional, extraterritorial application valid, extraterritorial application did not violate due process.

Venue was proper in the first judicial district that the defts entered.  (Not Cuba.)

Insufficient connection between defts and US at time of foreign wiretap to invoke Fourth Amendment.

Many other challenges, including conspiracy exit instruction, variance from indictment.

http://www.ca5.uscourts.gov/opinions/pub/13/13-40998-CR0.pdf