International Law

ALCALA v. HERNANDEZ, No. 15-2507

Decided: June 15, 2016

The Fourth Circuit determined that although the district court found that Defendant’s removal of her children from their home in Mexico to the United States was wrongful under the Hague Convention, its decision to decline to order the children returned was proper under the law.  Therefore the Court affirmed

On July 2, 2013, Defendant—Claudia Garcia Hernandez (“Mother”)—and her minor children entered the United States without authorization.  She had fled Mexico without telling Plaintiff (“Father”), the father of her children.  Mother and her children eventually arrived in Florence, South Carolina, where they initially moved in with family.  Mother enrolled her older son in third grade, and the younger child was not old enough to attend school.  She also maintained a job.  In January 2014, Mother and her children moved to Darlington County, South Carolina.  Because of the move, Mother had to withdraw her older son from his initial school and enroll him into his designated county school.  He was able to complete the 2013-2014 at that school, where he made decent grades and was enrolled in the English for Speakers of Other Languages (“ESOL”) program.  In November 2014, Mother, her boyfriend, and the children moved for a third time, but this move did not require her son to have to transfer schools.  On October 27, 2014, Father filed a petition in district court seeking the return of his children to Mexico under the Hague Convention.  Although Father argued that because the children were under 16 and had been wrongfully removed from their country of habitual residence—which  under the Convention would require the children to be returned—Mother asserted that there were certain exception to the general rule of return.  Specifically, Mother asserted, among other things, that her son was settled in the new environment.  The district court agreed, declining to order the children retuned to Mexico.  Father appealed, arguing that the district court erroneously concluded that the totality of the circumstances established that the son was “settled.”

While the Hague Convention does not define wat it means for a child to be “settled,” the Fourth Circuit found the Second Circuit’s analysis to be persuasive and therefore agreed that that for a child to be “settled” within the meaning of the Convention, the child must have significant connections demonstrating a secure, stable, and permanent life in his or her environment.  Despite Father’s attempt to show that the son’s living arrangements—moving three times—and his son immigration status were indicators that her was not “settled,” the Court was not persuaded.  The Court instead looked to the son’s good school record, family ties, and Mother’s ability to care for the son and determined that the son was “settled” within the meaning of the Convention.

Therefore the Court affirmed the decision of the district court.

Full Opinion

Aleia M. Hornsby

SMEDLEY v. SMEDLEY, NO. 14-1414

Decided: November 5, 2014

The Fourth Circuit held that the district court properly afforded comity to a German court’s ruling in a custody dispute between a German mother, living in Germany with the couple’s two children, and an American father, who refused to return the children to Germany after their visit to North Carolina.

The Smedleys, Mark and Daniela, met and married in Germany, where Mark was stationed in the Army. Daniela was a German citizen. The couple had two children, both born in Germany. In 2010, the family moved to North Carolina after Mark was transferred. Shortly thereafter, Daniela returned to Germany with the two children in contemplation of divorce. Ultimately, Daniela decided to remain in Germany with the children. Mark obtained a temporary custody order from a North Carolina court, and sought to have the order enforced in Germany under the Hague Convention. The German court refused to enforce the temporary order, finding that Mark had consented to the children’s move to Germany, and thus the removal provision under the Hague Convention was inapplicable. Two years later, the children visited their father in North Carolina for the summer. In contravention of his signed agreement to return the children at the end of the summer, he refused, and enrolled the children in school in North Carolina. Daniela filed a Hague petition in U.S. District Court, seeking to enforce the custody decision of the German court. The district court afforded comity to the German court’s decision, determined that Daniela’s removal of the children when she initially moved back to Germany was not wrongful, and awarded her physical custody.

Mark averred that the district court erred when it afforded comity to the German court’s decision because the German court misinterpreted the Hague Convention and did not meet the minimum reasonableness standard. Under the Hague Convention, when a parent wrongfully removes a child from his or her habitual residence, the parent must return the child unless the parent can prove that a defense applies. See Hague Convention arts. 12, 13. Removal is wrongful if it breaches a parent’s custody rights under the law of the child’s habitual residence. Id. art. 3. Article 13 provides defenses for wrongful removal, including a parent’s consent or ratification of the child’s removal; a grave risk that return of the child would cause physical or psychological harm; or the child does not want to return and is mature enough to make such a decision. Id. art. 13. Proof of one of these defenses makes return of the child discretionary. Id. The German court determined that Daniela did not wrongfully remove the children because there was sufficient evidence that Mark consented to her move to Germany with the children. Notably, the German court did not begin by determining whether the children’s habitual residence was Germany or North Carolina.

The Court reasoned that comity was proper for the German court’s decision. First, in response to Mark’s averment that the German court misinterpreted the Hague Convention by considering defenses to removal without first establishing the children’s habitual residence, the Court stated that the Hague Convention does not create such a requirement. Moreover, the Court reasoned that whether the habitual residence was determined to be Germany or North Carolina, the outcome would likely have been the same. Second, the Court concluded that the German court’s finding that Mark consented was at least minimally reasonable, despite the contradictory evidence, because the German court found Daniela’s testimony more credible. As comity was properly granted, the Court affirmed the district court’s ruling.

Full Opinion

Amanda K. Reasoner

CHEVRON CORP. v. PAGE, NO. 13-1382

Decided: September 24, 2014

The Fourth Circuit held that decisions on applications for discovery filed under 28 U.S.C. § 1782 are immediately appealable, and affirmed the district court’s order requiring that Appellants produce the requested documents.

This appeal stemmed from a multi-billion-dollar judgment rendered in Ecuador against Chevron Corporation (“Chevron”) for claims that Chevron’s operations caused substantial environmental damage in Ecuador. Chevron alleged that Ecuadorian plaintiffs and their lawyers, Steven Donziger (“Donziger”) and Aaron and Daria Page (“Page”), fraudulently obtained the multi-billion-dollar judgment. To obtain evidence of the fraudulent behavior, Chevron sought discovery of documents in several American courts. Chevron made the discovery requests under 28 U.S.C. § 1782, which provides that federal district courts may order persons to give testimony or produce documents for use in a foreign or international proceeding. Specifically, Chevron sought to compel attorneys Donziger and Page to produce certain documents. The Second Circuit concluded that Donziger made an unsubstantiated privilege claim. Specifically, that court concluded that Donzinger had waived any privileges he may have had, and ordered him to produce the documents. Similarly, Page refused to turn over adequate responses, and Chevron asked the District Court of Maryland to compel production, arguing that Page had inappropriately asserted privilege over some of the responsive documents. The District Court of Maryland granted Chevron’s motion to compel.

After determining that the § 1782 order constituted a final order, the Fourth Circuit concluded that it had subject matter jurisdiction to hear an immediate appeal from the District Court’s order. The Court ultimately concluded that Page’s claims failed on the merits. First, the Court rejected Page’s argument that the Donzinger Waiver should not have defeated his privilege claims. The Court noted that the doctrine of comity compelled the Court to affirm the application of the waiver in the Maryland proceeding to the documents in Page’s possession because a contrary ruling would cause the courts to “step on each other’s toes.” Furthermore, the Court emphasized that the District Court had two other independent bases to permit discovery of the documents that Page had asserted privilege from disclosure: (1) Page’s involvement in the alleged fraudulent judgment invoked the crime-fraud exception to the asserted privilege; and, (2) various voluntary disclosures defeated the privileges asserted and effectively created a subject-matter waiver. Accordingly, the Court affirmed the District Court’s order.

Full Opinion

Abigail Forrister

SHIMARI v. CACI PREMIER TECHNOLOGY, INC., NO. 13-1937

Decided: June 30, 2014

The Fourth Circuit held that the appellants’ claims of torture and mistreatment against a national defense contractor sufficiently “touch and concern” the territory of the United States (U.S.) so as to “displace the presumption against extraterritorial application of the Alien Tort Statute.”  However, the record contained insufficient facts to determine whether the claims presented nonjusticiable political questions.

The four appellants were all foreign nationals who had been detained at Abu Ghraib after the U.S. invaded Iraq and took control of the prison in 2003.  The U.S. hired civilian contractors from CACI, a U.S. corporation headquartered in Virginia, to interrogate the detainees.  A Department of Defense (DoD) report found widespread abuse and mistreatment of detainees at Abu Ghraib between October and December 2003.  Further investigations by the DoD found that CACI interrogators “directed or participated in some of the abuses, along with a number of military personnel.”  The appellants’ claims against CACI alleged that its employees “instigated, directed, participated in, encouraged, and aided and abetted conduct towards detainees that clearly violated” international and domestic law.

CACI was under contract with the Department of the Interior to provide interrogation management, support, and supervision at the prison.  Appellants alleged that in performing the contract, CACI failed to adequately supervise its employees; ignored reports of abuse; denied any wrongdoing by its employees; and attempted to cover up the abuses.  The appellants filed claims under the Alien Tort Statute (“ATS”), and asserted numerous common law claims, including assault and battery, and negligent hiring and supervision.  The district court dismissed all ATS claims, holding that the court lacked jurisdiction because the conduct giving rise to the claims occurred entirely outside the U.S.  The court also dismissed the common law claims, finding that Iraqi law precluded imposing liability on the appellees for those claims.

CACI challenged the Court’s jurisdiction under the ATS and under the political question doctrine.  The ATS is a jurisdictional statute that gives district courts jurisdiction over civil actions filed by aliens for torts committed in violation of international law.  The U.S. Supreme Court recently addressed whether an ATS claim can reach extraterritorial conduct in Kiobel v. Royal Dutch Petroleum Co, 133 S. Ct. 1659 (2013).  In Kiobel,  several Nigerian nationals were granted asylum in the U.S., and brought claims under the ATS against British, Dutch, and Nigerian corporations.  The plaintiffs alleged that the corporations violated international law by supplying Nigerian forces with food and supplies, thus aiding and abetting the atrocities they committed, including murder and rape.  All alleged tortious conduct occurred in Nigeria, and the only connection to the United States was that the defendant corporations were listed on the New York Stock Exchange.  The U.S. Supreme Court held that the ATS claims were barred, relying primarily on “principles underlying an established canon of statutory interpretation, which raises a presumption against extraterritorial application of acts of Congress.”  Because the statute gave no indication that Congress intended it to have extraterritorial reach, the U.S. Supreme Court found the plaintiffs’ claims concerning conduct occurring outside the United States were barred.

As the Fourth Circuit noted, the U.S. Supreme Court based its holding largely on the fact that all the alleged tortious conduct occurred outside the U.S.  The U.S. Supreme Court in Kiobel explained that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” Id. at 1669. In the present case, the Fourth Circuit emphasized how broad the “touch and concern” standard is, noting that the majority in Kiobel explicitly rejected narrower standards proposed by the concurrence.  The Fourth Circuit stated that the broader standard contemplates that all facts underlying an ATS claim should be examined when determining whether the claim sufficiently “touches and concerns” the U.S., not just the alleged tortious conduct.

In the present case, the appellants’ “claims reflect extensive ‘relevant conduct’ in United States territory, in contrast to the ‘mere presence’ of foreign corporations that was deemed insufficient in Kiobel.”  Here, the allegations involved conduct by U.S. citizens employed by an American corporation that was under contract with the U.S. Government to provide services abroad.  Furthermore, the alleged tortious conduct occurred while performing the contract at a military facility operated by the U.S. Government.  Finally, the appellants’ claims do not solely involve conduct abroad, but also alleged CACI executives in the U.S. ignored reports of abuse and attempted to cover up the misconduct. Thus, the ATS claims sufficiently touch and concern the U.S. and the district court erred in finding that it lacked subject matter jurisdiction. The judgment dismissing the plaintiffs’ ATS claims based on lack of jurisdiction was vacated.

Next, the Court addressed whether the ATS and common law claims were barred by the political question doctrine.  The district court, at an earlier stage in the litigation, found that the appellants’ claims did not present nonjusticiable political questions.  In this appeal, CACI renewed its political question challenge.  In Taylor v. Kellogg Brown & Root Services, Inc., the Fourth Circuit established a test for determining the justiciability of claims brought against government contractors performing services for the military.  658 F.3d 402 (4th Cir. 2011). Under this test, the Court addressed two critical factors: “(1) whether the government contractor was under the ‘plenary’ or ‘direct’ control of the military; and (2) whether national defense interests were ‘closely intertwined’ with military decisions governing the contractor’s conduct, such that a decision on the merits of the claim ‘would require the judiciary to question actual, sensitive judgments made by the military.’”  In the present case, the Court found the factual record was insufficiently developed to answer the questions posed by the Taylor test and remanded the case for the district court to reexamine the issue of justiciability.

Full Opinion

Jennifer Jokerst

Pan v. Holder, No. 12-1887

Decided: December 17, 2013

The Fourth Circuit Court of Appeals affirmed the district court’s denial of defendant’s application for asylum and withholding of removal based on his claim that government officials would sterilize him if he returned to China. The Fourth Circuit also affirmed the denial of his claim under the Convention Against Torture (“CAT”).

In November 2008, defendant Hui Pan (“Pan”) left his home in China for Baltimore, Maryland. He arrived in the United States without valid entry documents, and the Department of Homeland Security (“DHS”) detained him and conducted a credible fear interview. Pan claimed that, if he returned to China, family planning officials would forcibly sterilize him for violating China’s one-child policy. Pan and his wife already had one child when his wife became pregnant in November 2008 and was, according to Pan, forced to have an abortion. Pan stated that, following the abortion, officials found his wife was “not suitable” for sterilization and that Pan would have to be sterilized instead.

The Fourth Circuit reviewed the lower courts’ adverse credibility determination, regarding Pan’s testimony and corroborating documents, using the “substantial evidence” standard.

The Immigration and Nationality Act (the “INA”) authorizes the Secretary of Homeland Security or the Attorney general to confer asylum on any alien who establishes refugee status. An applicant for asylum may prove refugee status by showing either that they were subjected to past persecution or that they have a well-founded fear of future persecution on account of one of the enumerated grounds. Pan attempted to demonstrate a well-founded fear of future persecution—that family-planning officials would sterilize him if he were removed to China. The “well-founded fear of persecution” standard has both a subjective and objective component. The subjective part requires credible testimony demonstrating a genuine fear of persecution. The objective part requires specific, concrete facts that would lead a reasonable person in like circumstances to fear persecution. A determination that the applicant’s testimony is not credible will generally defeat the subjective component. The Fourth Circuit concluded that the lower courts’ adverse credibility finding was supported by substantial evidence.

First, Pan’s testimony regarding why his wife could not be sterilized – resulting in the government’s decision to sterilize him – was vague and unclear. To corroborate his story, Pan offered a photocopy of a “Fujian Women and Children Health Center Disease Explanation Form,” which had an illegible signature and did not elaborate on his wife’s “skin disease” or explain the “operation” referenced. Next, Pan offered vague and inconsistent testimony regarding the circumstances of his flight from China to the United States. Pan’s testimony during his interview conflicted with statements on his asylum application. Even though Pan suggested these inconsistencies were due to a language barrier, the Fourth Circuit found Pan’s testimony not credible. Finally, the Fourth Circuit affirmed the lower courts’ conclusion that Pan’s corroborating documentation was unreliable and failed to rehabilitate Pan’s testimony. Pan failed to authenticate the documents by not making any attempt to establish how he acquired them or that they were genuine. Pan did not call his uncle as a witness to verify that he received the documents from China. In addition, the Fourth Circuit affirmed the lower courts’ conclusion that some of the documents were inherently unreliable. For example, the sterilization notice was a photocopy of an unsigned document allegedly issued by local officials. In addition, the disease explanation form did not legibly identify the doctor who purportedly created the form and set forth a confusing and vague description of the skin condition that rendered Pan’s wife unsuitable for sterilization. Finally, the Fuzhou Surgery Certificate, which purportedly established that an abortion was performed, conflicted with Pan’s testimony regarding how many months his wife was into her pregnancy when she had the abortion.

Full Opinion

– Sarah Bishop

United States v. Shibin, No. 12-4652

Decided: July 12, 2013

Finding that the district court did not err in finding Mohammad Saaili Shibin (“Shibin”) guilty of all 15 charges relating to his involvement in the piracy and ransom of two ships on the high seas, the Fourth Circuit affirmed.

On May 8, 2010, the Marida Maruerite (“Marida”), a German Merchant ship was seized by Somali pirates on the high seas and transported to Somalia. While docked in Somalia, Shibin boarded the vessel and, over the course of seven months, participated in ransom negotiations and torture of the crew. In December 2010, Shibin completed a five million dollar ransom deal for the Marida’s crew. Several months later, the Quest, an American sailing vessel was also hijacked by a group of Somali pirates and four Americans were taken hostage. While en route to Somalia, the US Navy learned of the hijacked ship and established radio communications with the pirates. Through the course of the communications, the pirates represented that Shibin was the individual with the authority to negotiate and provided the Navy with his cell phone number. On February 22, 2011, as the Quest was nearing Somalia waters, the Navy advised the pirates to stop. When they did not comply, the Navy attempted to cut the Quest off, prompting the pirates to initiate hostilities. As Navy vessels began to close in, but before they reached the Quest, the pirates killed all four American hostages on board. Thereafter, on April 4, 2011, acting in cooperation with local authorities, the FBI arrested Shibin in Somalia. While in custody in Somalia, with the assistance of an interpreter, FBI agents questioned Shibin several times over three days. It was confirmed that his cell phone number matched the number provided to the Navy during communications with the Quest hijackers. Shibin admitted involvement in the Marida ransom negotiations, but denied any involvement in the Quest hijacking despite admitting to conducting various searches on his cell phone related to the Quest hijacking and its crew. Searches of Shibin’s bank records and phone records uncovered a sizable amount of damning evidence indicating his involvement in the Quest hijacking. In April 2011, after obtaining custody of Shibin, the FBI transported him to the Oceana Naval Air Station in Virginia Beach, Virginia, where he was “found” for jurisdictional purposes. Shibin was indicted on 15 counts relating to his involvement in the two piracies. Counts 1 through 6 (the “Marida Charges”), were based on his involvement in the Marida piracy, and counts 7 through 15, were based on his involvement in the Quest piracy and killing of the American hostages. Following a ten-day trial, Shibin was convicted on all counts. This appeal followed.

On appeal, Shibin contended that the district court erred by refusing (1) to dismiss the piracy charges on the ground that Shibin himself did not act on the high seas and therefore the court lacked subject-matter jurisdiction; (2) to dismiss all counts for lack of personal jurisdiction because he was forcibly seized in Somalia and involuntarily removed to the U.S.; (3) to dismiss certain alleged “non-piracy charges” contained within the Marida Charges—charges 2 through 6—because “universal jurisdiction” did not extend to justify the U.S. government’s prosecution of those crimes; and (4) to exclude FBI Agent Kevin Coughlin’s testimony about prior statements made by a Somali-speaking witness through an interpreter because the interpreter was not present in court.

Rejecting Shibin’s first contention, the Fourth Circuit affirmed Shibin’s piracy convictions because the court found he intentionally facilitated two piracies on the high seas, even though his conduct took place in Somalia and its territorial waters. Next, the court rejected Shibin’s second contention, and found that, although Shibin was brought into the U.S. involuntarily, the personal jurisdiction requirement, as contained in 18 U.S.C. §§ 1651, 1203, and 2280, was satisfied. In so concluding, the court noted that generally, under the Ker-Frisbie doctrine, the manner in which the defendant is captured and brought to court is generally irrelevant to the court’s personal jurisdiction over him. The court next rejected Shibin’s third argument, finding that counts 2 through 6 were based on a statute that Congress validly applied to extraterritorial conduct rather than “universal jurisdiction.” Lastly, the court addressed Shibin’s contention that the district court abused its discretion in allowing Agent Coughlin to testify regarding statements made by a Somali interpreter during the interrogations of a Shibin witness, Salad Ali, because the interpreter was an out of court declarant. Finding that (1) Agent Coughlin’s statements were admissible testimony of prior inconsistent statements made by Salad Ali and (2) that the absence of the interpreter did not render the statements inadmissible as hearsay because the interpreter was not the declarant, but only a language conduit, the Fourth Circuit held that the district court did not commit plain error in its evidentiary ruling.

Full Opinion

-W. Ryan Nichols

Clodfelter v. Republic of Sudan, No. 11-2118

Decided: June 20, 2013

The Fourth Circuit, holding that the doctrine of res judicata did not bar the Plaintiffs from pursing their claims under the Foreign Sovereign Immunities Act (the “FSIA”), reversed and remanded the decision of District Court for the Eastern District of Virginia.

In 2004, following the October 12, 2000 bombing of the U.S.S. Cole, carried out by Al Qaeda operatives, the families of the victims (the “Plaintiffs”) filed suit against the Republic of Sudan (“Sudan”) under the Death on the High Seas Act (“DOHSA”). In Rux v. Republic of Sudan, the district court found Sudan liable and ordered it to pay damages. Thereafter, Congress passed the National Defense Authorization Act for Fiscal Year 2008 (the “NDAA”). Most relevant to this appeal was NDAA § 1083. Section 1083(a) enacted a private cause of action under 28 U.S.C. § 1605A for certain torts committed by foreign states. Additionally, with respect to pending or decided cases, Section 1083(c) details the circumstances where retroactive application of the newly enacted private cause of action is appropriate. In 2010, the Plaintiffs, joined by four others not party to the 2004 Rux complaint, commenced a new action against Sudan invoking Section 1605A’s private cause of action. Concluding that the doctrine of res judicata precluded the Plaintiffs’ claims, the district court found that there was “no question” that this case arose out of the same transaction as that at issue in Rux and therefore denied the Plaintiffs’ motion for default judgment. Plaintiffs appealed.

On appeal, the Fourth Circuit first addressed the Plaintiffs’ contention that the district court mistakenly applied the limitations period under NDAA § 1083(c). Noting that the various provisions of Section 1083(c) govern how to apply Section 1605A retroactively to pending and previous actions, the court agreed with the Plaintiffs, holding that Section 1083(c) was inapplicable because the Plaintiffs filed this new action directly under Section 1605A. Next, the court turned to consider the res judicata doctrine. First, considering whether the district court erred in considering res judicata sua sponte, the court found that the case presented a “special circumstance,” consistent with Supreme Court precedent; therefore, the district court did not abuse its discretion by considering res judicata sua sponte. Finally, the court considered the district court’s application of the res judicata doctrine. Recognizing that the application of res judicata turns on the existence of three factors, one of which is an identity of the cause of action in both the earlier and the later suit, the Fourth Circuit held that the Plaintiffs’ claims under Section 1605A were not barred. In so holding, the court cited three independent reasons for its conclusion that the earlier and later suits did not share the same identity: (1) the change in statutory law along with substantial public policy concerns at issue in terrorism cases brought under Section 1605A justify an exception; (2) one of the “core values” of the res judicata doctrine—freeing people from the uncertain prospect of litigation—would be ill served in this case by barring the Plaintiffs’ claims, particularly where Sudan failed to appear in the terrorism action filed against it; and (3) applying the res judicata doctrine to claims brought under Section 1605A would effectively shield state sponsors of terrorism and would undermine the congressional purpose for enacting Section 1605A in the first place. Accordingly, the court reversed and remanded to the district court for further proceedings.

Full Opinion

-W. Ryan Nichols

Wilson v. Wilson, No. 12-1835

Decided: May 24, 2013

The Fourth Circuit affirmed the United States District Court for the Eastern district of Virginia.

In May 2009, Malcom White (“Mr. White”) and Soudabeh White (“Ms. White”) were married in Switzerland. Soon thereafter, they had a son. Unfortunately, in June 2010 they were separated and legal proceedings regarding custody rights were initiated. In October 2010, the Swiss Court of First Instance of Geneva (“Swiss Court”) granted full custody of the child to Ms. White (“2010 Order”). Mr. White was granted visitation rights. This action stemmed from Ms. White’s subsequent decision to leave Switzerland for the United States with the minor child in April 2011. Mr. White was not notified prior to the day of departure, instead Ms. White notified him via voicemail three days later. The voicemail indicated that Ms. White had taken their son on a “holiday” in the United States, although Ms. White subsequently claimed that she came to the United States to visit her sister and to seek medical care for her son. At the time of the departure, court-appointed psychologists in Switzerland were conducting an analysis of the parties and the child to assess custody arrangements. In a preliminary report issued in July 2011—three months after the departure—it was suggested that Ms. White suffered from psychological problems, which affected her ability to properly care for her son, and that the court should transfer custody of their son to Mr. White if her condition did not improve within six months. Subsequently, in September 2011 the Swiss Court issued an emergency ruling prohibiting Ms. White from leaving Switzerland with the child; however, in December 2011, the same court found that it did not have jurisdiction because Switzerland was no longer Ms. White’s usual place of residence. In February 2012, the Swiss tutelary court in Geneva also found that it lacked jurisdiction but noted that Ms. White had sole custody at the time of departure and could therefore remove the child from Switzerland without authorization. On April 6, 2012, Mr. White filed this petition for return under the Hague Convention on the Civil Aspects of International Child Abduction (“Convention”) and the International Child Abduction Remedies Act. The district court denied the petition for return and Mr. White appealed. Following oral argument, Mr. White filed an order of the Swiss Court dated March 15, 2013 (“2013 Order”). In that order, the Swiss Court related that an appellate court had found that Geneva courts did in fact have jurisdiction to rule on protective measures for the child and, although Ms. White remained in the United States, adjusted its earlier custody arrangements to grant Mr. White custody of and parental authority over the child.

In conformance with the Convention, because Switzerland was the child’s habitual residence before his removal, Swiss law governed the determination of the legal issues presented. In his amended appellate brief, Mr. White offered three reasons why the district court erred in refusing to find that Ms. White wrongfully removed the child in violation of the Convention. Addressing Mr. White’s first contention, the Fourth Circuit found that his parental authority rights alone did not provide a basis for a wrongful removal action under the Convention as the Swiss Supreme court has held that a parent who holds exclusive custody is entitled to move abroad with the children without having to obtain authorization of the other parent. Next the court addressed Mr. White’s second contention that the removal was intended to compromise his relationship with the child and threatened the child’s well being, constituting an abuse of rights under Swiss law. The court found that, because the record indicated that Ms. White had legitimate reasons for leaving Switzerland, including seeking medical treatment for the child in the United States, the removal did not constitute an abuse of her rights under Swiss law. Lastly the court found that Mr. White’s reliance on the 2013 Order was misguided as the 2010 Order controlled the case because it was in effect at the time of removal controlled. Therefore, because Ms. White had sole custody over the child pursuant to the 2010 Order, she was free remove the child unilaterally under Swiss law.

Full Opinion

-W. Ryan Nichols

DiFederico v. Marriott Int’l, Inc., No. 12-1635

Decided: May 1, 2013

Reversing and remanding the decision of the United States District Court for the District of Maryland, the Fourth Circuit Court of Appeals held that the district court erred in failing to apply the heightened deference owed to a citizen plaintiff seeking suit in her home forum, as is necessary in a proper forum non conveniens inquiry.  The Fourth Circuit also ruled that when conducting the private and public factor analysis relevant to forum non conveniens, the fear and emotional trauma of the plaintiff may be considered in certain situations.

On the evening of September 20th, 2008, Albert DiFederico was serving as a civilian contractor for the State Department in Pakistan.  A large dump truck containing explosives tried unsuccessfully to ram through the gate barrier of the Marriott Islamabad Hotel. Though initially ineffective, the truck’s driver proceeded to detonate an explosion inside the cab of the vehicle that eventually ignited the explosives in the back of the truck.  A large blast ensued and a fire engulfed the Marriott, killing 56 and wounding over 250, including DiFrederico.  His widow and their three sons brought a wrongful death action and survivorship claim alleging that Marriott International (“Marriott”) was liable for its failure to adequately secure its franchise hotel. The DiFedericos brought their suit in the forum of Marriott’s principal place of business, the District of Maryland. The district court granted Marriott’s motion to dismiss on the basis of forum non conveniens, finding that Pakistan was an available, adequate, and far more convenient forum to hear the case.

At the time of the suit, Pakistan’s one year statute of limitations on the claim had run.  An expired statute of limitations is usually dispositive in a forum non conveniens analysis; however, an exception exists where it can be shown the plaintiff made a deliberate and tactical decision to run the statute of limitations for the purpose of avoiding dismissal in her preferred forum. (Compania Naviera, 569 F.3d at 202-03). Because the district court failed to point to any evidence substantiating its determination that the DiFedericos made a deliberate and tactical decision to let the statute of limitations run in Pakistan to avoid dismissal, the Fourth Circuit held it was error to conclude the Pakistani forum was available.  The Fourth Circuit then reviewed the district court’s analysis of the public and private factors relevant to a forum non conveniens analysis, noting that a citizen plaintiff’s choice of forum is entitled to even greater deference when the plaintiff chooses her “home forum.”  The court found that the district court’s failure to consider this heightened standard when conducting its analysis was an abuse of discretion.  The appellants’ main argument for convenience and justice was the avoidance of fear and emotional trauma associated with pursuing their case in Pakistan. The Fourth Circuit adopted the Second Circuit’s reasoning in Guidi, finding that the fear and emotional trauma involved in travel for a trial concerning such a politically charged event would give rise to myriad logistical complexities and expenses.  The court noted that fear and emotional trauma should be given less consideration if a plaintiff’s fear has no relationship to the events giving rise to the claim, if the level of security threat present is low, and if an alternate, third forum is available.  The Fourth Circuit additionally found that the district court mistakenly analyzed several other public and private factors, including the location of the sources of proof, the availability of compulsory process for attendance of unwilling witnesses, and the difficulty in applying foreign law.

Full Opinion

-Kara S. Grevey

Yousuf v. Samantar, Case No: 11-1479

Decided: November 2, 2012

The Fourth Circuit Court of Appeals held that Mohamed Ali Samantar is not entitled to head-of-state or foreign official immunity under the common law.  Samantar is a former high-ranking government official in Somalia during the military regime of General Mohamed Barre.  Plaintiffs are natives of Somalia, and claim that they, or members of their families, were subjected to torture, extrajudicial killing, and arbitrary detention.  They brought suit against Samantar, who is now a permanent legal resident in Virginia, under the Torture Victim Protection Act (“TVPA”) and the Alien Tort Statute (“ATS”).  This case was previously appealed to the Fourth Circuit and the Supreme Court on the issue of whether Samantar could claim immunity under the Foreign Sovereign Immunities Act (“FSIA”).  The Supreme Court affirmed the Fourth Circuit’s holding that Samantar was not eligible for immunity under the FSIA because the statute was intended to apply to states and not individuals.

The case was remanded to the district court for consideration on whether Samantar would be eligible for a common law head-of-state immunity because at least some of the wrongdoing occurred while he was prime minister, or under foreign official immunity because the wrongdoing was in the course or scope of his official duties.  The district court renewed its request to the State Department for a response to Samantar’s immunity claims.  For the first time in this litigation, the State Department took a position expressly opposing immunity for Samantar.  The district court held that Samantar was not entitled to either common law immunity.

The Fourth Circuit examined what is the appropriate level of deference a court should take regarding the Executive Branch’s position on sovereign immunity for individuals.  The court concluded that it depends on whether status-based immunity, like head-of-state immunity, or conduct-based immunity is claimed.  For status-based immunity, the court held that the Executive Branch’s view is entitled to absolute deference.  For conduct-based immunity, the Executive’s position carries substantial weight, but is not controlling.  Turning to the instant case, the court examined domestic and international law, as well as the opinion of the State Department, and affirmed the district court’s ruling that Samantar is not entitled to any common law immunity.  Finally, the court held that officials from other countries are not entitled to immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.

Full Opinion

-Jennifer B. Routh

Lebron v. Rumsfeld, No. 11-6480

Decided: January 23, 2012

Plaintiffs Jose Padilla, incarcerated due to a conviction for federal crimes of terrorism, and his mother, Estela Lebron, sued for legal and equitable relief based on Padilla’s prior military detention as an “enemy combatant.” Padilla claimed that as a U.S. citizen captured in the United States, he was unconstitutionally designated as an enemy combatant. Padilla alleged a range of constitutional violations stemming from his military detention, including denial of his right to counsel under the First, Fifth, and Sixth Amendments; denial of access to courts protected by Article III, the First and Fifth Amendments, and the Habeas Corpus Suspension Clause; unconstitutionally cruel conditions of confinement in violation of the Fifth and Eighth Amendments; coercive interrogations in violation of the Fifth and Eighth Amendments; denial of his freedom of religion under the First Amendment and the Religious Freedom Restoration Act; denial of access to information protected by the First Amendment; denial of freedom of association under the First Amendment; and general denial of due process protected by the Fifth Amendment. Padilla sought a declaration that defendants’ policies were unconstitutional, an order enjoining his future designation as an enemy combatant, and nominal damages. The district court dismissed, and Padilla appealed. The Fourth Circuit affirmed, finding generally that Padilla’s claims were without merit.

Full Opinion

-Sara I. Salehi

Wye Oak Technology, Inc. v. Republic of Iraq, No. 10-1874

Decided Dec. 29, 2011

Wye Oak entered into a contract with Iraq’s Ministry of Defense (IMOD) for refurbishing, selling, or disposing of used military equipment. After a period of alleged nonpayment, Wye Oak sued the nation of Iraq for breach of contract, claiming roughly $24 million in damages. Iraq moved to dismiss for, inter alia, lack of jurisdiction first under the Foreign Sovereign Immunities Act and later for insufficient pleading—arguing that IMOD was actually a separate legal entity than the Republic of Iraq and that Iraq had no contract with Wye Oak. The district court denied the motion to dismiss and transferred the case to the D.C. Circuit; nonetheless, Iraq filed an interlocutory appeal to the Fourth Circuit that stayed proceedings in that court.

The Fourth Circuit affirmed the denial of dismissal. First, it noted that though Iraqi law treats the Republic and IMOD as separate legal persons, it is the FSIA, not the foreign law that determines whether the Act will apply in U.S. courts. The court then found that IMOD was a political subdivision and not merely an agent or instrumentality of Iraq. Thus, they are “legally one and the same” for purposes of the FSIA. Second, the court held that IMOD, and therefore Iraq, were not protected by the FSIA because of the “commercial activities exception.” Specifically: “A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which the action is based . . . upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere.” 28 U.S.C. § 1605(a).

Judge Shedd filed a dissenting opinion arguing that the Fourth Circuit should not have jurisdiction to hear the appeal once the case was transferred to another circuit. Indeed, the general rule is that once a case is transferred, the circuit court loses jurisdiction to hear appeals from the court below absent the exception found in TechnoSteel, LLC v. Beers Const. Co., 271 F.3d 151 (4th Cir. 2001). Here, Judge Shedd argued that TechnoSteel was inapplicable because since each court has a duty to assess its own subject matter jurisdiction of any pending action before it, it was not necessary for the Fourth Circuit to decide the interlocutory appeal determination of jurisdiction before allowing the D.C. court to take up the matter.

Full Opinion

-C. Alexander Cable

Al-Quraishi v. L-3 Services, Inc., No. 10-1981

Decided: Sept. 21, 2011

Seventy-two Iraqis imprisoned in various locations throughout Iraq brought suit against L-3 Services claiming the tactics used during interrogations amounted to torture. L-3 moved to dismiss under law of war immunity, federal preemption, derivative immunity, and political question doctrine. When the motion was denied by the district court, L-3 filed an interlocutory appeal to the Fourth Circuit who reversed and remanded with orders to dismiss for the same reasoning applied in the companion case Al Shimari. The primary issue in this opinion was whether the court had jurisdiction to hear the appeal.

The court held that the district court’s order denying dismissal was immediately appealable under the collateral order doctrine. While appeals generally may only come from final decisions, the court may hear appeals when a decision below “(1) conclusively determines a disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) would be effectively unreviewable on appeal from a final judgment.” The court held that the decision below satisfied all three elements. First, the district court did effectively decide the issue of whether arguments relating to preemption, derivative immunity, law of war immunity, and political questions applied in the case. Second, all those questions are collateral to the action and do not address the merits of L-3’s liability. Finally, bringing these matters into court and addressing military functions and procedures that would otherwise be unquestioned by civilian courts could not be remedied after a final resolution of the case. Federal preemption of these causes of action, the majority notes, is similar to a granting of immunity from having to defend the suit and that privilege would be irreparably lost absent an interlocutory appeal. With all the elements met, the court found jurisdiction to hear the appeal and remanded with instructions to dismiss.

Judge King dissented because the dismissal of the case was based on preemption, a substantive defense, rather than a claim of immunity. The third element of collateral order interlocutory appeals, the inability to remedy the decision on appeal, applies primarily to cases of immunity, i.e. the freedom from having to stand trial. Judge King would follow decisions from the Ninth and Fifth Circuits, finding preemption is not a grant of immunity. A finding that liability is proper or improper based on federal preemption of the tort claim is easily addressable by appellate review after a final disposition. Also, trying this case against L-3, a private contractor, would not necessarily require civilian courts to comment on the wisdom or correctness of military procedures—only whether they were followed by the defendant. Indeed, even if there were fear of stepping into military decision-making, the district court has the ability to stifle such concerns; it may limit discovery, quash subpoenas, or perform any acts necessary to protect military interests while still litigating the tort claims against L-3. Finally, Judge King would be willing to entertain an interlocutory appeal from a denial of L-3’s immunity claims, but the district court reserved on deciding the issue until the contract between L-3 and the government had been produced. Thus, without a final decision on the issue, there could be no appeal and the court was bereft of jurisdiction.

Full Opinion

-C. Alexander Cable

Al Shimari v. CACI International Inc., No. 09-1335

Decided: Sept. 21, 2011

Suhail Najim Abdullha Al Shimari was one of many Iraqis detained in the infamous Abu Gahrib prison outside Baghdad. He and three other prisoners brought suit against CACI International, a private contractor tasked by the U.S. military with assisting in translation and interrogation of prisoners, under the Federal Tort Claims Act and the Alien Tort Statute alleging that CACI’s employees subjected the four to various acts of torture while they were imprisoned. The complaint alleged that the contractor acted in concert with the government to torture the prisoners and that the contractor exceeded the Department of Defense interrogation policies and procedures. CACI moved to dismiss alleging, inter alia, federal preemption of the tort claims, political question doctrine, and derivative sovereign immunity. The district court denied this motion and CACI filed an interlocutory appeal.

The Fourth Circuit reversed and remanded with instructions to dismiss. Judge Niemeyer wrote for the majority and following Boyle v. United Technologies Corp., 487 U.S. 5002 (1988) and Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), cert. denied, __ U.S. __, No. 09–1313 (June 27, 2011) found that the state tort claims were preempted by the “uniquely federal interests” they infringed. Boyle used the “discretionary functions” exception to the FTCA but Saleh, a case with strikingly similar facts to the present one, used the “combat activities exception.” 28 U.S.C. § 2680(j). Accordingly, the court found the prisoner’s claims were prempted, holding that CACI was under broad military control and state tort claims were incompatible with the primary functions of war and the decisions made during war.

Judge Niemeyer then wrote separately, stating that had the issues not been mooted by a dismissal under federal preemption he would have also dismissed the matter under the political question doctrine and derivative absolute immunity. First, Niemeyer used Justice Powell’s three considerations of political questions from Goldwater v. Carter, 444 U.S. 996, 998 (1979) (Powell, J., concurring in the judgment) (“(i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of government? (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) Do prudential considerations counsel against judicial intervention?”) (based upon Baker v. Carr, 369 U.S. 186 (1962)) to find that the case was a nonjusticiable political question. Also, Niemeyer would also dismiss the case under derivative absolute immunity, stating that sovereign immunity is designed to protect a government function rather than a government actor necessarily and that the benefits of extending immunity to CACI in this case outweighed potential costs,.

Judge King dissented. First, he noted that the court should not have jurisdiction hear the appeal—citing the reasoning in his dissent from the companion case Al-Quraishi v. L-3 Services, Inc., No. 10-1981 (4th Cir., Sept. 21, 2011). Second, Judge King said that were he to reach the merits of the appeal, he would find the case was not preempted because there was no conflict between the state claims and federal interests. CACI, though working with the government, is a private company in control of its own employees and contracted only for “general services.” Moreover, even if CACI was under the direction of the military for interrogation procedures, CACI allegedly exceeded its authority and utilized torturous techniques against prisoners in violation of military and DOD procedures; only by denying dismissal and allowing discovery to proceed could the court identify whether CACI was acting within the scope of its derivative military authority. Finally, Judge King notes that the FTCA exceptions are designed to eliminate tort liability for government battlefield actions carried out by federal agencies, but that “the term ‘Federal agency’ … does not include any contractor with the United States.” 28 U.S.C. § 2671.

Full Opinion

-C.Alexander Cable

Aziz v. Alcolac, Inc., No. 10-1908

Decided: Sept. 19, 2011

Alcolac, a corporation in the business of manufacturing and selling thiodyglicol (TDG), sold the chemical to various companies, including known “shell corporations,” that eventually sold the TDG to Saddam Hussein and the Iraqi government. At the time, Iraq was at war with Iran and used the TDG to create deadly mustard gas for use against the Iranian people and the Kurdish ethnic group in the northern region of Iraq. A class action suit was brought by the Kurdish victims of the attacks against both Aloclac and the Republic of Iraq; Class A, citizens and permanent residents of the United States, sued under the Torture Victim Protection Act (TVPA) while Class B, foreign nationals, sued under the Alien Tort Statute (ATS). The district court dismissed the claims against Alcolac for failure to state a claim upon which relief can be granted and the plaintiffs appealed.

The TVPA provides for liability against “any individual who . . . subjects an individual to torture . . . [or] subjects and individual to extrajudicial killing.” 28 U.S.C. § 1350. The district court held that the term “individual” did not apply to corporations and made them immune to suit under the statute. Recognizing that the Circuits have split on the issue—the Second Circuit rejecting liability for corporations and the Eleventh Circuit allowing it—the court analyzed the statute and held that “individual” means a natural person absent contrary evidence of Congressional intent. Unlike the broader term “person” that Congress has explicitly defined to include corporations, “individual” does not. Therefore, the court affirmed the dismissal of Class A’s TVPA action against Alcolac.

The district court found that the Class B plaintiffs likely had a valid ATS claim against Iraq but dismissed the aiding and abetting claims against Alcolac for failure to plead the requisite mens rea against the company. The district court applied a specific intent mens rea rather than the more lenient knowledge standard, following Second Circuit precedent. The Second Circuit looked to the Rome Statute—responsible for the creation of the International Criminal Court—for its rule that aiding and abetting claims must show “the purpose of facilitating the commission of [a] crime.” The D.C. Circuit, however, rejected the Rome Statute because, like all international agreements, it only binds the states that have ratified it, and the United States has not. That court found that customary international law should govern the mens rea standard for ATS claims and that decision of several international tribunals showed a propensity for using the knowledge standard.

The Fourth Circuit elected to follow the Second and adopt the heightened specific intent mens rea. It held that statutes and treaties were preferable to customary law because they gave definite standards to follow, while customary law, “a general and consistent practice of states followed by them from a sense of legal obligation,” was too indeterminate to inspire confidence in any particular standard. Because the plaintiffs’ complaint only alleged legal conclusions about Alcolac’s intent to supply Iraq with mustard gas without any corroborating facts, it failed the pleading requirements of Twombly and Iqbal and was not “entitled to the assumption of truth.” Therefore, the plaintiffs’ insufficient complaint was subject to dismissal and the district court’s decision was affirmed.

Full Opinion

-C. Alexander Cable

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