Blaxland v. Com. Director of Public Prosecutions
| Decision Date | 27 March 2003 |
| Docket Number | No. 00-56330.,No. 00-56376.,00-56330.,00-56376. |
| Citation | 323 F.3d 1198 |
| Parties | Christopher P. BLAXLAND; Marcella Blaxland, Plaintiffs-Appellees, v. COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS; Australian Securities and Investments Commission, Defendants-Appellants, and Paul R. Shaw; Dennis T. Barry, Defendants. Christopher P. Blaxland; Marcella Blaxland, Plaintiffs-Appellants, v. Commonwealth Director of Public Prosecutions; Australian Securities and Investments Commission; Paul R. Shaw; Dennis T. Barry, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Andrea Sheridan Ordin, Steven J. Glouberman, Morgan, Lewis & Bockius LLP, Los Angeles, CA, Mark N. Bravin, Morgan, Lewis & Bockius LLP, Washington, D.C., for the defendants-appellants-cross-appellees.
Christopher P. Blaxland, Manhattan Beach, CA, for the plaintiffs-appellees-cross-appellants.
Douglas Hallward-Driemeier, United States Department of Justice, Civil Appellate Staff, Washington, DC, for Amicus Curiae.
Appeal from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. No. CV-00-01430-R.
Before PREGERSON, TASHIMA and BERZON, Circuit Judges.
Christopher Blaxland1 brought a tort action in the Superior Court of California against, inter alia, two separate instrumentalities and two individual employees of the Australian government. Australia removed the case to federal district court and moved to dismiss on the ground of sovereign immunity, under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602 et seq. The district court denied Australia's motion and Australia appeals. Blaxland cross-appeals the district court's grant of sovereign immunity to the individual defendants. We conclude, contrary to the district court, that Australia is entitled to immunity under the FSIA for the alleged torts. We also affirm the district court's grant of sovereign immunity to individual defendants Shaw and Barry.
On reviewing a motion to dismiss, we accept the allegations of the complaint as true. Manistee Town Ctr. v. City of Glendale, 227 F.3d 1090, 1091 (9th Cir.2000). The facts that follow are therefore solely those alleged in the complaint, which we assume to be true for purposes of this opinion.
Plaintiff-Appellee Christopher Blaxland is a legal resident of the United States, domiciled in California. From 1986 to 1989, Blaxland was a director of ATS Resources Limited (ATSR), an Australian publicly-listed company. Blaxland was also a director of several affiliated corporations. Blaxland resigned as a director of ATSR and the affiliated corporations in 1989.
Blaxland was later charged with two offenses allegedly committed while he was a director of ATSR and the other corporations: (1) acting as a director with intent to defraud; and (2) making "improper use" of his officer position within a corporation. These charges were filed against him for an ulterior purpose by the Director of Public Prosecutions (DPP) and the Australian Securities and Investments Commission (ASIC), and their employees, Paul Shaw and Dennis Barry. The motive was the DPP's and the ASIC's desire to "claim a political victory for the purpose of attracting favorable publicity while simultaneously causing Mr. Blaxland to suffer prejudicial publicity as a result of his arrest and extradition." The political victory was important to the DPP and the ASIC, because "every criminal case involving the affairs of ATSR which had gone to trial had resulted in an acquittal;" the investigations into ATSR and the corresponding prosecutions had cost millions of dollars; and the DPP and the ASIC were therefore "under great pressure to show results." The charges lacked any factual foundation.
After learning of the charges against him, Blaxland traveled to Sydney, Australia to appear before the local court. Delays in the Australian court system caused Blaxland's case to be continued for three and a half years. During this time, Blaxland appeared in person or through counsel at all hearings for the case.
The trial was set to start in September 1995. Blaxland was unable to travel to Australia at that time because his seven-year-old son required surgery for a life-threatening condition. Blaxland sent affidavit evidence to the Australian court, alerting the court to his son's condition and requesting a continuance to allow him to attend to his son's medical needs. In response to Shaw's insistence that Blaxland's request be denied, the court refused Blaxland's request and issued a bench warrant for his arrest.
Shaw and Barry each swore to affidavits that contained false and misleading evidence; each knew that the affidavits were perjured. The affidavits were included in Australia's extradition request filed with the United States Department of State.
After the request for Blaxland's extradition was received, the United States Attorney's Office issued a complaint for Blaxland's arrest pursuant to the extradition treaty between the United States and Australia. On Sunday, July 20, 1997, armed United States marshals arrested Blaxland at his home in Los Angeles.
Blaxland was then brought before a magistrate judge in district court in Los Angeles. Shaw swore to a further affidavit, introduced before the magistrate judge, that contained additional perjured statements designed to ensure that Blaxland was not granted bail. Blaxland was nonetheless released on bail, but, pursuant to the DPP's and Shaw's request, the United States Attorney appealed the decision and bail was revoked on July 25th.
After the bail revocation, Blaxland made numerous offers to the DPP to go to Australia voluntarily and waive his right to an extradition hearing. In return, Blaxland asked that he be allowed to take with him material that he needed for his defense. These offers were rejected. Shaw informed Blaxland's counsel that he wanted Blaxland formally extradited and kept in jail until trial.
Before Blaxland's extradition hearing, Barry swore out another affidavit containing further perjured testimony. Blaxland's extradition hearing was held on August 29, 1997, after which the district court ordered extradition. Blaxland spent two additional months incarcerated in Los Angeles before he was extradited on October 31.
After spending two weeks in a Sydney jail, Blaxland was granted bail subject to onerous conditions requested by Shaw and the DPP. For example, Blaxland was required to report to the local police station twice every day. On April 30, 1998, Blaxland sought to have his bail conditions relaxed so that he could return to Los Angeles to be with his family. His wife, Marcella, needed surgery, and his son, Brandon, had been "diagnosed with toxoplasmosis (a virulent parasitic disease which attacks the victim's vision and which had resulted in blindness in Brandon's right eye)." Blaxland also hoped to earn some money by working in Los Angeles. Shaw and the DPP opposed the change in bail conditions, and the court refused Blaxland's application.
One week before the trial date, the DPP dropped the fraud charge against Blaxland. The trial for the charge of making improper use of his position as an officer of a corporation lasted roughly two and a half weeks. The jury took less than one hour to acquit Blaxland. By that point, Blaxland had been separated from his family for one year and two months. He had spent four months in jail.
After returning to California, Blaxland filed suit in the Los Angeles Superior Court against the DPP, the ASIC, Shaw, and Barry. The complaint alleges that the DPP, the ASIC, Shaw, and Barry made false or misleading statements in affidavits submitted by the U.S. Attorney to secure Blaxland's arrest and extradition; that the DPP, the ASIC, Shaw, and Barry wrongfully opposed Blaxland's bail applications; that these actions were taken pursuant to a scheme to coerce Blaxland into accepting a plea agreement; and that the Australian defendants sought a plea agreement because they knew that they did not have enough evidence to convict Blaxland. A plea bargain would have allowed them to claim the political victory they desired.
Blaxland's complaint asserted four causes of action on behalf of Mr. Blaxland: (1) malicious prosecution; (2) abuse of process; (3) intentional infliction of emotional distress; and (4) false imprisonment. The complaint also alleged two causes of action on behalf of Mrs. Blaxland: (1) loss of consortium; and (2) intentional infliction of emotional distress.
The case was removed to the Central District of California. The DPP, the ASIC, Shaw, and Barry filed a motion to dismiss for lack of subject matter jurisdiction. They claimed sovereign immunity pursuant to the FSIA. The district court granted the motion to dismiss for lack of jurisdiction as to Shaw and Barry but denied it as to the DPP and the ASIC. Australia appeals the denial of the motion to dismiss as to the DPP and the ASIC. Blaxland cross-appeals the district court's dismissal of Shaw and Barry.
The denial of a motion to dismiss for foreign sovereign immunity is an immediately appealable collateral order. Compania Mexicana De Aviacion, S.A. v. U.S. Dist. Court for the Cent. Dist. of Cal., 859 F.2d 1354, 1356 (9th Cir.1988). The existence of subject matter jurisdiction under the FSIA is a question of law reviewed de novo. Corzo v. Banco Cent. de Reserva del Peru, 243 F.3d 519, 522 (9th Cir.2001).
Australia, like other nations, is generally immune from suit in the United States in both federal and state courts. 28 U.S.C. § 1604. It is undisputed that the DPP and the ASIC are instrumentalities of the Australian Government and are thereby entitled to the same sovereign immunity as Australia. There are certain exceptions to Australia's sovereign immunity under the FSIA. Blaxland contends that his case falls under two...
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