Foxgord v. Hischemoeller, 85-5976

• Decision Date: 23 June 1987
• Docket Number: No. 85-5976,85-5976
• Citation: 820 F.2d 1030
• Parties: Raymond FOXGORD, Individually and as Trustee of the Foxgord Trust, Cecilia Foxgord, Plaintiffs-Appellees, v. Baron Herbert HISCHEMOELLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1030

820 F.2d 1030

Raymond FOXGORD, Individually and as Trustee of the Foxgord

Trust, Cecilia Foxgord, Plaintiffs-Appellees, v. Baron Herbert HISCHEMOELLER, Defendant-Appellant.

No. 85-5976.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 1987.

Decided June 23, 1987.

Robert E. Aitken, Long Beach, Cal., for defendant-apellant.

Gerald Goldfarb, Los Angeles, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, ALARCON and THOMPSON, ^* Circuit Judges.

ALARCON, Circuit Judge:

In this fraud and breach of guaranty action, defendant-appellant Baron Herbert Hischemoeller (hereinafter Hischemoeller) appeals from the district court's judgment against him for damages in favor of plaintiffs-appellees Raymond Foxgord, an individual and as trustee of the Foxgord Trust, and his wife, Cecilia Foxgord (hereinafter the Foxgords) following a bench trial. This case presents a novel issue. Does a district court have exclusive subject matter jurisdiction in an action against the honorary consul general of another country under 28 U.S.C. Sec. 1351(1) (1982), which gives federal courts exclusive jurisdiction over actions against "consuls or vice consuls," where the honorary consul general is a citizen of the United States and is sued for his private actions? We hold that a district court does not have exclusive subject matter jurisdiction over a proceeding involving private actions against an American citizen who is an honorary consul general for another country under 28 U.S.C. Sec. 1351(1).

PERTINENT FACTS

On September 16, 1980, the Foxgords agreed to loan $500,000 to codefendants Henry Perdon and his corporation, Transamerica Minerals, Inc. (hereinafter TM), to purchase gypsum claims in Arizona and Utah. In return, TM gave the Foxgords a promissory note for $675,000, payable in one year with monthly interest payments of $11,250, and a $250,000 "consulting agreement" payable at $10,000 per month for twenty-five months. Hischemoeller and his corporation HISMOCO, Inc., Perdon and codefendant Arthur Webb agreed to guaranty TM's promissory note to the Foxgords. Perdon and TM thereafter defaulted on the promissory note and consulting agreement.

The Foxgords instituted this action in federal court against Perdon, Webb, Hischemoeller,

HISMOCO, and TM, claiming fraud and breach of guaranty. After a bench trial, the district court concluded (1) that the defendants were guilty of fraud, and (2) Hischemoeller and HISMOCO were guilty of breach of warranty, and awarded $1,549,642 in damages. Only Hischemoeller appealed.

ANALYSIS

SUBJECT MATTER JURISDICTION

Hischemoeller contends the district court did not have subject matter jurisdiction over this case. Jurisdiction was predicated on 28 U.S.C. Sec. 1351(1), which provides in pertinent part: "The district court shall have original jurisdiction, exclusive of the courts of the States, of all civil actions and proceedings against--[p](1) consuls or vice consuls of foreign states...." Hischemoeller, an American citizen, is an honorary consul general of the Ivory Coast. Hischemoeller argues that American citizens who serve as honorary consuls, such as himself, do not fall within the meaning of "consuls or vice consuls" under section 1351(1).

Our objective when interpreting a federal statute "is to ascertain the intent of Congress and to give effect to legislative will." United States v. Taylor, 802 F.2d 1108, 1113 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1309, 94 L.Ed.2d 164 (1987). We begin with the statute's language, Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984); United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981), and "[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); see also INS v. Cardoza-Fonseca, --- U.S. ----, 107 S.Ct. 1207, 1212-14, 1222, 94 L.Ed.2d 434 (1987).

The existence of subject matter jurisdiction presents a question of law reviewed de novo by the court of appeals. Peter Starr Production Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir.1986).

A. Plain Meaning of 28 U.S.C. Sec. 1351(1)

Our initial inquiry in interpreting 28 U.S.C. Sec. 1351(1) is whether an honorary consul comes within the terms "consuls or vice consuls." "The most persuasive evidence of ... [congressional] intent is the words selected by Congress." Director, Office of Workers' Compensation Programs v. Forsyth Energy, Inc., 666 F.2d 1104, 1107 (7th Cir.1981).

It is a maxim of statutory construction that unless otherwise defined, words should be given their ordinary, common meaning. Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979). Since Title 28 does not define "consuls or vice consuls," we must look to the dictionary for the ordinary, common meaning of the word "consul." Webster's Dictionary defines "consul" as "an official appointed by or with the authority of a government to reside in a foreign country to represent the interests of citizens of the appointing country". Webster's Third New International Dictionary 489 (1976) (emphasis added). In Black's Law Dictionary, "consul" is defined as "[a] public officer residing in a foreign country responsible for developing and protecting the economic interests of his government and looking after the welfare of his government's citizens who may be traveling or residing within his jurisdiction." Black's Law Dictionary 286 (5th ed. 1979) (emphasis added). Under the common, ordinary meaning of the term, "consul" refers to a citizen of the country which appointed him. Thus, an honorary consul who is not a citizen of the appointing country does not come within the ordinary, common meaning of the word "consul."

Similarly, the words "consul" and "honorary consul" are not synonymous in the international community. The international community distinguishes among a career consul, an honorary consul who is not a citizen of the appointing country, and an honorary consul who is a citizen of the appointing country. A career consul (also Honorary consuls (also called consules electi, consuls marchands, non-career consuls, unsalaried consuls, and trading or merchant consuls) on the other hand, are permitted to engage in gainful employment in addition to their consular duties. Consular Law, supra, at 14; Harvard Law School, Legal Position and Function of Consuls, in Research in International Law art. 26, at 354, comment (1932). Honorary consuls are selected locally from residents of the receiving state, whether they are nationals or permanent residents of the receiving, appointing, or a third state. Consular Law, supra, at 14.

                called consules missi, consuls de carriere, salaried consuls, and professional consuls) is a national of the appointing country and does not engage in private business of any kind.  L. Lee, Consular Law and Practice 14 (1961) (hereinafter Consular Law).  Under Chapter II of the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 78, T.I.A.S. No. 6820 (hereinafter Consular Convention), to which the United States is a party, a career consul is afforded many more privileges and immunities than an honorary consul.  See, e.g., arts. 32-33, 41, 48-50, 52.  For example, a consul's premises are inviolable, and a consul is not amenable to the jurisdiction of judicial or administrative authorities of the receiving state in respect to acts performed in the exercise of consular functions. 1   Arts. 31(1), 43(1).  A career consul who carries on private gainful employment is not accorded the privileges and immunities of Chapter II.  Art. 57(2)(a)
                

On the whole, the functional privileges and immunities of honorary consuls are more restrictive than those of career consuls. Within the rank of honorary consul, those who are citizens or permanent residents of the receiving state are entitled to even fewer privileges and immunities than an honorary consul who is a citizen of the appointing country. L. Lee, Vienna Convention on Consular Relations 163 (1966) (hereinafter Lee). For example, the principle of inviolability of consular premises is substituted by mere protection thereof "against any intrusion or damage" for honorary consuls who are not citizens or permanent residents of the receiving state. Consular Convention, supra, Art. 59.

Honorary consuls who are nationals or permanent residents of the receiving state, such as Hischemoeller, possess very few privileges and immunities. See Consular Convention, supra, art. 71(1); Lee, supra, at 163. For example, they enjoy only "immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their functions...." Consular Convention, supra, art. 71(1).

The difference in treatment of honorary consuls who are citizens of the receiving state and other consuls under the Consular Convention is consistent with our conclusion that the ordinary, common meaning of the term "consul" as used in 28 U.S.C. Sec. 1351(1) does not include citizens of the receiving state. Although the Consular Convention does not govern the jurisdiction of federal courts, the distinctions made by the international community between a "consul" and "honorary consul" demonstrates that these terms are not functionally synonymous.

During oral argument, the Foxgords claimed for the first time that the Supreme Court's decision in In re Baiz, 135 U.S. 403, 10 S.Ct. 854, 34 L.Ed. 222 (1890) is controlling. In Baiz, the issue before the Supreme Court was whether the petitioner, a consul general from Guatemala, was also a public minister or charge d'affaires ad interim of Guatemala while the minister of Guatemala was out of the United States, thereby vesting ...