Ye v. Zemin

• Decision Date: 08 September 2004
• Docket Number: No. 03-3989.,03-3989.
• Citation: 383 F.3d 620
• Parties: Wei YE, Hao Wang, Does, A, B, C, D, E, F, and others similarly situated, Plaintiffs-Appellants, v. Jiang ZEMIN and Falun Gong Control Office, a/k/a Office 610, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

383 F.3d 620

Wei YE, Hao Wang, Does, A, B, C, D, E, F, and others similarly situated, Plaintiffs-Appellants, v. Jiang ZEMIN and Falun Gong Control Office, a/k/a Office 610, Defendants-Appellees.

No. 03-3989.

United States Court of Appeals, Seventh Circuit.

Argued May 27, 2004.

Decided September 8, 2004.

Appeal from the United States District Court for the Northern District of Illinois, Matthew F. Kennelly, J Terri E. Marsh (argued), Washington, DC, for Plaintiffs-Appellants.

Douglas Letter (argued), Department of Justice, Civil Division, Appellate Section, Washington, DC, for Amicus Curiae.

Before BAUER, MANION and KANNE, Circuit Judges.

MANION, Circuit Judge.

The appellants are practitioners of Falun Gong, a spiritual movement of Chinese origin. Most of the appellants are current or past residents of the People's Republic of China. In addition, two of the appellants are United States citizens and a third is an alien resident of Illinois. The appellants appeal from a decision of the United States District Court for the Northern District of Illinois dismissing their lawsuit against the former President of China, Jiang Zemin, and an office of the Chinese Communist Party (the "Party") allegedly established by Jiang for the purpose of suppressing Falun Gong. We affirm.

I.

Jiang Zemin served as President of China for approximately ten years, from March 1993 to March 15, 2003. During part of his tenure as President, he also served as the Secretary General of the Central Committee of the Chinese Communist Party (the head of the Party). President Jiang stepped down as head of the Party on November 15, 2002.

Beginning in 1999, the Chinese government and the Party took steps to crack down on Falun Gong.¹ Falun Gong, formed in 1992 by a former Chinese soldier, Li Hongzhi, "combin[es] traditional Buddhist teachings and predictions about the end of the world with meditation and martial arts discipline as a prescription for physical and spiritual well-being. Falun Gong teaches that illness stems from evil and that by following the principles of `truth, compassion and forbearance,' one can attain clairvoyance and other preternatural faculties."<sup>2</sup> The Chinese government and the Party see things differently. They have denounced the movement as a cult and have accused it of seeking to subvert or overthrow the government and the Party's grip on power.<sup>3</sup> According to at least one news report, President Jiang himself declared that suppressing Falun Gong was one of the "`three major political struggles' of 1999."⁴

To that end, on June 10, 1999, President Jiang established, as part of the Party's apparatus, the Falun Gong Control Office. The Office is known as "Office 6/10" after the date of its creation. In July 1999, President Jiang issued an edict outlawing Falun Gong. This edict was followed by mass arrests, allegedly farcical trials, torture, forced labor, "re-education," and the killing of members.

The appellants filed this lawsuit against President Jiang and Office 6/10 on October 18, 2002. The appellants' complaint, recites, inter alia, claims of torture, genocide, arbitrary arrest and imprisonment, as well as other claims related to the appellants' freedom of conscience, movement, and religion. The appellants argued that the district court had jurisdiction to hear their case pursuant to the Alien Tort Claim Act, 28 U.S.C. § 1350, as well as, in part, 28 U.S.C. §§ 1343(4) and 1331.

Because President Jiang was scheduled to be in Chicago on October 22 and 23 on his way to visit with United States President George W. Bush in Washington, D.C., the appellants moved ex parte for leave from the district court to effect service on President Jiang (and by extension Office 6/10) while he was in Chicago. The district court granted this motion and entered an order permitting service by delivery of a copy of the summons and complaint "to any of the security agents or hotel staff helping to guard" President Jiang.⁵ The appellants contend that service was complete when they delivered a copy of these documents to a Chicago police officer and agents of the United States Secret Service detail stationed at the hotel at which President Jiang was staying in Chicago.

Neither President Jiang nor a representative of the Chinese government or Office 6/10 responded to the complaint, and the appellants moved for an entry of default. The United States, however, intervened pursuant to 28 U.S.C. § 517 and moved to vacate the service order or, in the alternative, to assert head-of-state immunity for President Jiang.⁶ The United States further argued that President Jiang was personally inviolable and, therefore, incapable of being served in any capacity. Specifically, the government argued that President Jiang could not be served as an agent of Office 6/10.

The district court accepted the United States' assertion of head-of-state immunity on behalf of President Jiang and dismissed the appellants' claims against him. The district court rejected, however, the government's argument of personal inviolability. Instead, the district court found that service of process on Office 6/10 could not be achieved through President Jiang because the appellants had not shown that President Jiang was either an agent or an officer of Office 6/10. Further, the district court held that, even assuming service of process on Office 6/10 could be effectuated through President Jiang, it lacked personal jurisdiction to hear claims against it. The district court, therefore, dismissed the appellants' complaint in its entirety. This appeal followed.

II.

The appellants raise three issues on appeal. First, they argue that the district court erred when it accepted, as controlling, the United States' assertion of head-of-state immunity on behalf of President Jiang. Second, the appellants argue that the district court erred when it determined that President Jiang could not be served as an agent of Office 6/10. Finally, the appellants argue that the district court erred when it held that it lacked personal jurisdiction over Office 6/10.

A. Head-Of-State Immunity — Some Background

The appellants' first argument relates to the assertion by the United States, which the district court took as dispositive, that President Jiang was immune from the appellants' suit. The appellants argue that the actions President Jiang is accused of amount to violations of "jus cogens" norms of international law and that immunity may not be conferred upon a person accused of violating these norms.

The Supreme Court recognized the immunity of foreign sovereigns from suits brought in United States courts nearly 200 years ago. In Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 3 L.Ed. 287 (1812), Chief Justice Marshall reasoned that although "the jurisdiction of the United States over persons and property within its territory `is susceptible to no limitation not imposed by itself,' ... as a matter of comity, members of the international community had implicitly agreed to waive the exercise of jurisdiction over other sovereigns in certain classes of cases, such as those involving foreign ministers or the person of the sovereign." Republic of Austria v. Altmann, 541 U.S. ___, 124 S.Ct. 2240, 2247, 159 L.Ed.2d 1 (2004) (quoting McFaddon, 11 U.S. at 136). Following McFaddon, courts have been expected to "defer[ ] to the decisions of the political branches — in particular, those of the Executive Branch — on whether to take jurisdiction over actions against foreign sovereigns and their instrumentalities." Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983).

For most of the next 165 years, the Executive Branch determined whether a foreign nation was entitled to immunity. The practice during this period was that the State Department would provide a court with a "suggestion of immunity." On reception of this "suggestion," courts would dismiss a suit, or any claims brought in a suit, against a foreign nation.

In 1952, the State Department adopted the "restrictive" theory of sovereign immunity. See Verlinden, 461 U.S. at 486-87, 103 S.Ct. 1962. "Under this theory, immunity is confined to suits involving the foreign sovereign's public acts, and does not extend to cases arising out of a foreign state's strictly commercial acts." Id. at 487, 103 S.Ct. 1962. The restrictive theory was often honored in the breach: "On occasion, political considerations led to suggestions of immunity where immunity would not have been available under the restrictive theory." Id.

In 1976, Congress enacted the Foreign Sovereign Immunities Act of 1976 (the "FSIA"), 28 U.S.C. §§ 1602 et seq. As an initial matter, the FSIA provides a foreign state with immunity from suit in courts of the United States or of any state. 28 U.S.C. § 1604; Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) ("Under the [FSIA], a foreign state is presumptively immune from the jurisdiction of United States courts...."). Such immunity is subject, however, to international agreements to which the United States was a party in 1976, as well as certain exceptions set forth in the FSIA. Id. These exceptions codify the restrictive theory of immunity. The responsibility for determining whether an exception applies is left to the courts. See United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir.1997) ("[The FSIA] codified the State Department's general criteria for making suggestions of immunity, and transferred the responsibility for case-by-case application of these principles from the Executive Branch to the Judicial Branch."). Insofar as a foreign state is concerned, therefore, the pre-1976 practice of courts reflexively deferring to the Executive Branch's immunity determinations has been eliminated.

The FSIA does not, however, address the immunity of foreign heads of states. The FSIA refers to foreign states, not their leaders.⁷ The FSIA defines a foreign state to include...