JOSHUA SONDHEIMER (SBN 152000)

MATTHEW J. EISENBRANDT (SBN 217335)

The Center for Justice & Accountability

870 Market Street, Suite 684

San Francisco, CA 94102

Tel: (415) 544-0444

Fax: (415) 544-0456

Email: jsond@cja.org

PAUL HOFFMAN (SBN 71244)

Schonbrun DeSimone Seplow

Harris & Hoffman LLP

723 Ocean Front Walk

Venice, CA 90291

Tel: (310) 396-0731

Fax: (310) 396-7040

Hoffpaul@ix.netcom.com

Counsel for All Plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Jane Doe I, Jane Doe II, Helene Petit,

Martin Larsson, Leeshai Lemish, and

Roland Odar

Plaintiffs,

v.

LIU QI, and DOES 1-5, inclusive

Defendants.

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Civil Action No. C 02 0672 CW EMC

SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT

Date: September 4, 2002

Time: 10:30 a.m.

Place: Courtroom C, 15th Floor

TABLE OF CONTENTS

I. THIS CASE IS NOT BARRED BY THE FOREIGN SOVEREIGN IMMUNITIES ACT. 1

A. FSIA Does Not Apply to Officials Who Violate Customary Norms of International Law.. 2

B. To Demonstrate Non-Applicability of FSIA, Plaintiffs Need Only Demonstrate the Existence of a Customary Norm of International Law and Allege a Violation of That Norm. 3

C. Defendant’s Alleged Conduct Was Beyond the Scope of His Official Authority. 5

1. Facts Alleged By Plaintiffs Must Be Taken As True. 5

2. Defendant’s Alleged Conduct Was Outside the Scope of His Authority Because It Would Violate Customary International Law.. 5

3. Even if Reference to Chinese Law Was Appropriate, Defendant’s Alleged Conduct Was Not Authorized by Chinese Law.. 6

D. The Exception from Immunity Under 28 U.S.C. § 1605(a)(7) Does Not Apply In This Case 7

II. THE ACT OF STATE DOCTRINE DOES NOT RENDER THIS CASE NON‑JUSTICIABLE 8

A. The Act of State Doctrine. 9

B. Defendant’s Actions Do Not Constitute “Official” Acts. 10

C. Even if Defendant’s Acts Are Deemed “Official,” Abstention is Unwarranted Under the Sabbatino Factors. 12

1. Defendant’s Actions Have Been Universally Condemned As Violations of International Law.. 12

2. Adjudication is Consistent with U.S. Foreign Policy. 12

3. Although the Same Government Remains in Existence, Foreign Relations Will Not Be Upset 15

4. Defendant’s Actions Were Not in the Public Interest 16

D. Federal Courts Have Rejected the Act of State Doctrine For Claims Against a Sitting Official of a Recognized Foreign Government 16

III. congress did not exceed CONSTITUTIONal limits on its power to GRANT FEDERAL COURTS JURISDICTION in allowing courts TO HEAR CASES between aliens for acts committed outside the united states under the atca and tvpa.. 18