ANTHONY W. ISHII, Senior District Judge.
Plaintiff Kulvir Singh Barapind is a citizen of the Republic of India. Defendants are the Government of the Republic of India ("GOI"), the State Government of Punjab, and the Punjab Police. In the 1980s, Plaintiff lived in Punjab and was active with organizations that sought the independence of that Indian state. Plaintiff was charged with several crimes in connection with the activities of the independence movement, including murder. In 1993, Plaintiff traveled to the United States and sought asylum. GOI sought to have Plaintiff extradited; the United States and the GOI signed an extradition treaty on June 25, 1997. Plaintiff fought the extradition in United States courts for many years. On November 9, 2005, the Eastern District of California denied Plaintiff's habeas corpus petition and issued a Certification and Order of Extraditability with respect to three murder charges. This was a final ruling and ended the U.S. courts' involvement in Plaintiff's extradition.
The United States has signed and ratified the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment ("Convention"). Among other requirements, the Convention prohibits extradition in situations where a person would be subject to torture. The Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA") implements the Convention. In key part, the Secretary of the U.S. Department of State ("Department") may not extradite a person if he/she is "more likely than not" to be tortured after extradition. See 22 C.F.R. § 95.2. On November 23, 2005, Plaintiff submitted an application to the Department asking for
In May 2008, Plaintiff was acquitted of the three criminal charges in Indian courts and was released. Plaintiff resumed his activity with organizations seeking the independence of Punjab. On September 20, 2012, Plaintiff was arrested on new criminal charges. Plaintiff alleges that he was subjected to torture September 21-25, 2012, carried out by the local police forces. Plaintiff sought relief in the Indian courts, which issued an order on September 28, 2012 that Plaintiff was to be presented to medical authorities for examination. That order was not complied with.
On May 7, 2013, Plaintiff filed the present suit, in the Eastern District of California, against Defendants and a number of government officials who work for Defendants. Doc. 1. Plaintiff voluntarily dismissed the individual government officials. Doc. 30. Against the three remaining Defendants, Plaintiff's complaint alleges they "are liable for having violated the term & condition of Mr. Barapind's surrender and their resulting legal duty not to subject him to torture as defined by the Convention... Consequently the Government of India and the other defendants are liable to Mr. Barapind for damages resulting from the torture he has and is experiencing." Doc. 1, Complaint, 26:4-26.
Defendants filed a motion to dismiss on a number of grounds; most notably, Defendants argue a lack of subject matter jurisdiction as Defendants are entitled to sovereign immunity. Doc. 40-1. Plaintiff opposes the motion. Doc. 41. After Defendants filed a reply, Plaintiff requested leave to make additional filings to present evidence. Doc. 51. The request was granted, which allowed for a complete factual briefing on the issue of sovereign immunity. Doc. 57.
Fed. Rule Civ. Proc.12(b)(1) allows a motion to dismiss for lack of subject matter jurisdiction. It is a fundamental precept that federal courts are courts of limited jurisdiction. Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir.2010). This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert subject matter jurisdiction over the action. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Fed.R.Civ.P. 8(a)(1). A Rule 12(b)(1) jurisdictional attack may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
This case deals with a factual challenge, which permits the court to look beyond the complaint. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). "[I]n a
The Foreign Sovereign Immunities Act ("FSIA") states that "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607." 28 U.S.C. § 1604. In relevant part, sovereign immunity does not apply when "the foreign state has waived its immunity either explicitly or by implication." 28 U.S.C. § 1605(a)(1). A "foreign state" includes "a political subdivision of a foreign state or an agency or instrumentality of a foreign state." 28 U.S.C. § 1603(a). FSIA is "the sole basis for obtaining jurisdiction over a foreign state in our courts." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). In this case, it is not contested that FSIA applies to all three Defendants. See Doc. 41, Plaintiff Opposition, 9:8-9.
Plaintiff argues the GOI implicitly waived sovereign immunity as part of the Agreement. Plaintiff does not claim that the extradition itself constitutes waiver, but rather the promise not to torture:
Doc. 41, Plaintiff Opposition, 18:17-25. There are three classic situations where waiver applies: "we generally find an implied waiver in only three circumstances: (1) a foreign state has agreed to arbitration in another country; (2) a foreign state has agreed that a contract is governed by the law of a particular country; and (3) a foreign state has filed a responsive pleading in a case without raising the defense of sovereign immunity." Presidential Comm'n on Good Gov't v. United States Dist. Court for the Dist. of Haw., 309 F.3d 1143, 1151 (9th Cir.2002), citing Joseph v.
With reference to that precedent, Plaintiff argues "In this case we have an assiduously negotiated agreement that was consummated in order to protect Mr. Barapind's liberty interest under United States domestic law, namely [Convention and FARRA] and, disputes under the agreement could only conceivably be heard in the United States court, because, as the parties agree, the Convention has no place in India's judicial system. Under the precedent of the Ninth Circuit, and that of its sister courts, these are the only ingredients necessary to establish an implicit waiver of sovereign immunity under § 1605(a)(1)." Doc. 41, Plaintiff Opposition, 16:4-13, citations omitted. In essence, Plaintiff argues the Agreement was centered around United States domestic law and implicitly specified United States courts for enforcement. Plaintiff is wrong on both of these two points: the Agreement was based upon the Convention as applied in Indian law and implicitly suggests that Indian courts are the appropriate venue for relief.
Again, the Agreement is not one set written contract but rather a series of diplomatic notes in 2005 and 2006 that described Plaintiff's forthcoming treatment in Indian custody. The parties have provided the text of some of these notes. Of note, the representations of the GOI were reproduced in internal Department memos between Washington, D.C. and the American Embassy in New Delhi:
Doc. 63-1, Feb. 9, 2006 Memo, 80-81. A short while later, the GOI reiterated its position:
Doc. 63-1, March 30, 2006 Memo, 222-23. There is absolutely no hint that either the GOI or the Department conceived of the prohibition against torture being enforced through the United States court system; if anything, the suggestion is that enforcement would be carried out through the operation of Indian law in the Indian court system. The text limits further Department involvement to the provisions of the Indo-US Extradition Treaty. Again, Plaintiff disclaims any assertion that the operation of that extradition treaty constitutes waiver of sovereign immunity.
This understanding of the Agreement is consistent with the operation of prior agreements between the Department and
Doc. 63-1, Dec. 9, 2005 Memo, 202, emphasis added. The Department's view was that individuals had to seek recourse under Indian law.
Some indication that the Agreement intended for disputes to be resolved in United States courts is indispensable for finding implied waiver. "Waiver by contract is premised on an agreement by the parties that the United States courts may become involved in disputes arising pursuant to the contract. Where an agreement contemplates adjudication of a dispute by the United States courts, the waiver exception should be applied, regardless of whether the governing law is explicitly identified." Joseph v. Office of the Consulate General of Nigeria, 830 F.2d 1018 (9th Cir.1987), citations omitted. While United States law need not be directly referenced, there must be evidence showing the parties' intent to resort to United States courts. "[C]ourts rarely find that a nation has waived its sovereign immunity without strong evidence that this is what the foreign state intended." Corporacion Mexicana de Servicios Maritimos, S.A. de C.V. v. M/T RESPECT, 1996 U.S.App. LEXIS 22068, *15 (9th Cir. Aug. 28, 1996), amended opinion of 89 F.3d 650, quoting Rodriguez v. Transnave Inc., 8 F.3d 284, 287 (5th Cir.1993).
Generalized statements concerning relief do not waive sovereign immunity in the absence of some tie to the courts of the United States. In one case, the country of Libya provided a letter which stated "Despite the fact that discussion of the question of compensation is premature, since it would only follow from a civil judgement based on a criminal judgement, Libya guarantees the payment of any compensation that might be incurred by the responsibility of the two suspects who are its nationals in the event that they were unable to pay." Smith v. Socialist People's Libyan Arab Jamahiriya, 101 F.3d 239, 245 (2nd Cir.1996). The Second Circuit determined this language did not constitute an implied waiver as it "contains no express or indirect reference to a waiver of sovereign immunity.... If a foreign state undertook to guarantee payment of a judgment entered against its nationals in a United States court, the argument for an implied waiver would be much stronger. A generalized undertaking to pay the debt of a national, however, does not imply that the guaranteeing state agrees to be sued on such an undertaking in a United States court." Smith v. Socialist People's Libyan Arab Jamahiriya, 101 F.3d 239, 245-46 (2nd Cir.1996). In the case at hand, the GOI similarly provided a general guarantee of Plaintiff's humane treatment; there is no implication that the guarantee is to be enforced in United States courts. Agreeing to abide by the Convention, an international treaty, does not automatically
Plaintiff's position is that the Agreement implicated United States law through FARRA:
Doc. 63, Plaintiff Sur-Reply, 12:7-13:2. Here, Plaintiff conflates two separate discussions: his communications with the Department in 2005 concerning FARRA standards and the diplomatic notes between the GOI and the Department concerning the Convention. While much of the material submitted by Plaintiff addressed the legal requirements of FARRA (Doc. 63-1), that material does not govern the duties set out in the Agreement between the GOI and the Department. The Agreement was not negotiated between Plaintiff and the GOI. Again, none of the evidence surrounding the Agreement suggests that the GOI bound itself to comply with FARRA.
Plaintiff is a third party beneficiary of the Agreement. The Seventh Circuit has stated "courts rarely find that a nation has waived its sovereign immunity, particularly with respect to suits brought by third parties, without strong evidence that this is what the foreign state intended." Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 377 (7th Cir.1985). In his 2005 communications with Department, Plaintiff himself implicitly recognized that he would not be able to enforce the diplomatic assurances in United States courts; his attorney argued that FARRA prohibited his extradition as "Mr. Barapind would have no legal standing to challenge any violations of diplomatic assurances between the United States Government and the Government of India because he is not a party to the agreement. Further, assurances are not legally binding and so, even the United States would not be able to enforce the provisions. Because assurances cannot be enforced, they are meaningless, as Daya Singh Sandhu's and Kamaljit Kaur Sandhu's experiences demonstrate, to protect Mr. Barapind from torture by Indian
Defendants' motion to dismiss for lack of subject matter jurisdiction due to the assertion of sovereign immunity is GRANTED. The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
