JOSHUA SONDHEIMER, Esq. (SBN 152000)
MATTHEW EISENBRANDT, Esq. (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
Counsel for All Plaintiffs
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
TABLE OF CONTENTS
I............ DEFENDANT LIU QI IS NOT ENTITLED TO SOVEREIGN
IMMUNITY..
1
2............ Congress Did Not Limit
the TVPA and ATCA to Former Officials.
4
II............ THE ACT OF STATE
DOCTRINE DOES NOT RENDER THIS CASE NON-JUSTICIABLE.
7
A............ Chinese Government
Justifications for Banning Falun Gong Are Irrelevant
13
B............ Sovereign Immunity Does Not Apply.
13
TABLE OF
AUTHORITIES
Federal
Cases
Argentine Republic v. Amerada Hess, 488 U.S. 428 (1989)........... 3
Baker v. Carr, 369 U.S. 186 (1962)............ 7
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)........... 7, 8
Burnham v. Superior Court of California, 495 U.S. 604 (1990)............ 10
Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189 (S.D.N.Y. 1996)........... 6
Chuidian v. Philippine National Bank, 912 F.2d 1095 (9th Cir. 1990)........... 1, 3, 6, 12, 14
Doe v. Lumintang, Civ. Action No. 00-674 (D.D.C. 2001)........... 6
Doe v. Unocal, 2002 WL 31063976 (9th Cir. 2002)............ 8
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)........... 4, 10, 11, 12
Forti v. Suarez-Mason, 672 F.2d 1531 (N.D. Cal. 1987)............ 11, 12
Hilao v. Marcos (In re Estate of Ferdinand Marcos, Human Rights Litigation) 25 F.3d 1467 (9th Cir. 1994)........... 1, 3, 11, 14
In re Yamashita, 327 U.S. 1 (1946)........... 11
Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221 (1986)............ 9, 13
Lafontant v. Aristide, 844 F.Supp. 128 (E.D.N.Y. 1994)........... 5, 6
Liu v. Republic of China, 892 F.2d 1419 (9th Cir. 1989), cert. dismissed, 497 U.S. 1058 (1990)........... 8
Saltany v. Reagan, 702 F.Supp. 319 (D.D.C. 1988)........... 5
Saudi Arabia v. Nelson, 507 U.S. 349 (1993)........... 3
Siderman de Blake v. Argentina, 965 F.2d 699 (9th Cir. 1992)........... 3, 4
Tachiona v. Mugabe, 169 F.Supp.2d 259 (S.D.N.Y. 2001)........... 5, 6
Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir. 1984)............ 12
Todd v. Panjaitan, No. 92-12255WD (D.Mass. 1994)............ 6
U.S. v. State of Michigan, 940 F.2d 143 (6th Cir. 1991)........... 13
U.S. v. Taylor, 802 F.2d 1108 (9th Cir. 1986)........... 9
W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp., Int'l, 493 U.S. 400 (1990)............ 9, 12
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)........... 6
International Cases
Al-Adsani v. The United Kingdom (No. 35763/97, Nov. 21, 2001)........... 3
Yerodia (Case Concerning the Arrest Warrant of 11 April 2000 – Democratic Republic of the Congo v. Belgium, International Court of Justice, 2001)........... 5
Federal
Statutes
28 U.S.C. § 1350........... 2
28 U.S.C. § 1605........... 1
Pub. L. No. 102-256, 106 Stat. 73 (1992)........... 2, 10
Legislative
Materials
H.R.Rep. No. 94-1487, 94th Cong., 2d Sess. (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6606............ 6
H.R. Rep. No. 102-367(I) at 6 (1991)............ 5
S. Rep. No. 102-249 at *3 (1991)........... 4
Treaties
Convention Against Torture and Other Cruel, Inuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85............ 5
INTRODUCTION
Plaintiffs respectfully submit this response to the letter presented to this court by William H. Taft, IV, Legal Advisor of the State Department (hereinafter “Statement of Interest”), and to the statement submitted by the government of the People’s Republic of China. The State Department and Chinese Government have suggested that this court either dismiss the case on the basis of sovereign immunity or find the case non-justiciable under the act of state doctrine. The State Department and the Government of China misunderstand the allegations set forth in the complaint. Their statements focus on the Chinese government’s policy toward the Falun Gong, and their arguments suggest that the present case is an attack on China’s ban on Falun Gong practice. To the contrary, the complaint sets forth claims for damages for unauthorized human rights abuses committed by Defendant’s subordinates in violation of the Chinese government policy. Acts of arbitrary detention, torture and cruel, inhuman, or degrading treatment violate Chinese laws and official policy, as well as international law. The propriety of China’s ban on Falun Gong is not at issue.
A sitting government official has no claim to sovereign
immunity when he acts outside the scope of his legal authority. The State Department suggests that
Defendant Liu is entitled to immunity under the Foreign Sovereign Immunities Act
(“FSIA”), 28
U.S.C. § 1605, because he merely
implemented government policy and because he is a current official. These conclusions are both factually and
legally inaccurate..
The FSIA “will not shield an official who acts beyond the scope of his authority.” Chuidian v. Philippine National Bank, 912 F.2d 1095, 1106 (9th Cir. 1990). The Ninth Circuit has refused to grant immunity to defendants alleged to have committed human rights abuses when such abuses fell outside the scope of the official’s authority. See Hilao v. Marcos (In re Estate of Ferdinand Marcos, Human Rights Litigation), 25 F.3d 1467, 1471 (9th Cir. 1994) (“Hilao”).
The actions of Defendant and his subordinates were not
carried out in accordance with the policies and laws implemented as part of the
Chinese government’s ban on Falun Gong.
The
heart of Plaintiffs’ claims against
Defendant doesdo not even
implicate China’s movement to regulate Falun Gong practice. Rather, Plaintiffs assert that Defendant
exceeded violated Chinese government policy, constitutional and statutory
law, and customary international law when he ordered and permitted
his subordinates to commit acts of torture, arbitrary detention and other abuses
alleged in the complaint. RRegardless of official
widespread abuses committed by
Chinese policy authorities against toward Falun Gong practitioners, neither Chinese government policy nor law authorizes such
abuses. As
Plaintiffs allege, Defendant therefore exceeded the bounds of his authority
when he authorized and permitted his subordinates to arbitrarily detain and
physically mistreat Plaintiffs. See generally Affidavit of
Robert C. Berring (“Berring Affidavit”), attached to Plaintiffs’ Supplemental
Memorandum of Points and Authorities in Support of Motion for Default Judgment
(“Supplemental Memorandum”).
The State Department’s assertion that “this suit is
directed at PRC government policies rather than past conduct of a specific
official” is misleading and incorrect. Statement of Interest at 4, n. 3. The suit is
specifically directed against Defendant’s authorization of and
failure to curb serious abuses by security forces under his
authority, about which he was or should
have been aware. Each of the
Plaintiffs suffered specific harms and violations of their human rights at the
hands of Beijing police officers acting under Defendant’s authority. Each of the acts alleged in the
complaint were specifically directed at one of the Plaintiffs and constitute
violations of international law because they exceeded permissible bounds of
government action.
Regardless of whether Chinese laws permit a ban on Falun
Gong, they do not (and could not, consistent with China’s customary
international law obligations) sanction torture, arbitrary detention and cruel,
inhuman or other degrading treatment.
See Berring Affidavit at ¶¶
3-13, 22‑24.
Government officers may be held liable under the Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350, and the Torture Victim Protection Act (“TVPA”), Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 Note), regardless of whether they are current or former officials. The State Department attempts to limit TVPA actions to former officials through two lines of reasoning. First, the State Department asserts that suits against current officials “may well” constitute “the ‘practical equivalent’ of suits against the sovereign.” Statement of Interest at 4. Next, the State Department asserts that the TVPA contemplates only suits against former officials and does not override already-existing immunities for current or sitting officials. In reaching these conclusions, the State Department has misinterpreted existing authority on the issue.
As discussed above, the Ninth Circuit has been clear that sovereign immunity protects individuals only when they act within the scope of their official authority. In quoting the “practical equivalent” language of the Chuidian decision, the State Department fails to acknowledge the Ninth Circuit’s subsequent decision in Hilao. There, the court gave context its holding in Chuidian, stating:
Immunity is extended to an individual only when acting on behalf of the state because actions against those individuals are “the practical equivalent of a suit against the sovereign directly.” A lawsuit against a foreign official acting outside the scope of his authority does not implicate any of the foreign diplomatic concerns involved in bringing suit against another government in United States courts.
Cases cited by the State Department – Siderman de Blake v. Argentina, 965 F.2d 699 (9th Cir. 1992); Argentine Republic v. Amerada Hess, 488 U.S. 428 (1989); and Saudi Arabia v. Nelson, 507 U.S. 349 (1993)