Heaney v. Government of Spain

• Decision Date: 02 July 1971
• Docket Number: No. 826,Docket 35654.,826
• Citation: 445 F.2d 501
• Parties: James C. HEANEY, Plaintiff-Appellant, v. The GOVERNMENT OF SPAIN and Adolpho Gomero, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

445 F.2d 501 (1971)

James C. HEANEY, Plaintiff-Appellant, v. The GOVERNMENT OF SPAIN and Adolpho Gomero, Defendants-Appellees.

No. 826, Docket 35654.

United States Court of Appeals, Second Circuit.

Argued June 8, 1971.

Decided July 2, 1971.

James C. Heaney, Buffalo, N. Y., appellant pro se (Daniel J. Maurin, Buffalo, N. Y., of counsel).

Charles S. Desmond, Buffalo, N. Y. (Robert D. Hayton and Clifton H. Stannage, New York City, of counsel), for appellees.

Before FRIENDLY, Chief Judge, and HAYS and OAKES, Circuit Judges.

FRIENDLY, Chief Judge:

James C. Heaney, a lawyer, brought this action in the District Court for the Western District of New York against the Government of Spain and its consular representative Adolpho Gomero. The complaint alleged that in 1968, having learned that Mr. Heaney had initiated civil rights litigation on behalf of residents of Northern Ireland against the British Government before the Human Rights Commission of the Council of Europe, the defendants contacted him through their agents while Heaney was visiting Northern Ireland. After Heaney returned to New York, he was allegedly advised by the defendants that the British Government had violated Spain's sovereign rights in Gibraltar and that the defendants "wished to assist him in his various efforts to publicize, on a world wide basis, in the United Nations, in the Council of Europe, in the American Congress and in other governmental agencies, the British suppression of civil rights in Northern Ireland and the lack of free elections in that area" since this "would be of benefit to the defendants and would help them to bring about the expulsion of the British government in Gibraltar."

The complaint goes on to allege that after numerous conferences an agreement was reached, presumably, although the complaint does not specifically say so, with the above-noted purposes in mind, that plaintiff performed his obligations under the agreement, but that the defendants have refused to pay plaintiff $50,000 as provided therein, and that as a result plaintiff suffered $100,000 in damages. A second cause of action, which was based on the same underlying facts as the first, sought an additional $100,000 on the basis of the defendants' alleged tortious conduct in inducing plaintiff to enter into an agreement under which the defendants at no time intended fully to perform their obligations.

The complaint also charged that the actions of the Spanish Government described above were "outside the scope and authority of diplomatic activities in the United States" and that the actions of Gomero were "outside the scope of any lawful diplomatic functions and were beyond the scope and authority of any ministerial or consular office which he held with the Spanish government," even though Gomero was alleged to be an "employee and agent" of the Spanish Government at all relevant times.

The defendants moved for dismissal of the complaint on the grounds, insofar as here relevant, that the court lacked jurisdiction by virtue of the sovereign immunity of the Spanish Government and the consular immunity of Gomero.¹ In a brief order, the district court granted defendants' motion. With respect to the Spanish Government, the order was predicated on sovereign immunity; with respect to Gomero, it rested on alternative grounds — sovereign immunity (inasmuch as Gomero was acting as Spain's representative) and consular immunity (inasmuch as Gomero was a consular official). From this order Heaney has appealed.

Appellant launches two principal attacks on the district court's ruling that the defendants enjoyed immunity from suit. First, he contends that the making of a contract, whatever its purpose, is a commercial transaction, and commercial activities fall outside the zone of limited protection which the doctrine of sovereign immunity affords a foreign government and its representatives. Second, he asserts that the actions of the defendants, designed to "cause trouble for another government friendly to the United States, namely Great Britain * * * ignored well established diplomatic limits," and hence were outside the scope of whatever immunity the Spanish Government might enjoy in the pursuit of its appropriate objectives in the United States.

In light of Victory Transport, Inc. v. Comisaria General, 336 F.2d 354 (2 Cir. 1964), cert. denied, 381 U.S. 934, 85 S.Ct. 1763, 14 L.Ed.2d 698 (1965), appellant's attacks are misguided. We there considered, in detail unnecessary to recount here, doctrinal developments regarding a foreign sovereign's immunity and the efforts — notable for their lack of success — to delineate the precise contours of the doctrine. 336 F.2d at 357-360. For present purposes, a summary of the general principles emerging from Victory Transport will suffice; the contemporary rationale for sovereign immunity is the avoidance of possible embarrassment to those responsible for the conduct of the nation's foreign relations; in determining the scope of the immunity which a foreign sovereign enjoys, courts have therefore deferred to the policy pronouncements of the State Department, see, e. g., National City Bank of New York v. Republic of China, 348 U.S. 356, 360-361, 75 S.Ct. 423, 99 L.Ed. 389 (1955); the State Department has explicitly indicated that its policy is generally predicated on a "restrictive" theory of sovereign immunity — "recognizing immunity for a foreign state's public or sovereign acts (jure imperii) but denying immunity to a foreign state's private or commercial acts (jure gestionis)." 336 F.2d at 358. See 26 Dept. State Bull. 984 (1952); "the purpose of the restrictive theory of sovereign immunity is to try to accommodate the interest of individuals doing business with foreign governments in having their legal rights determined by the courts, with the interest of foreign governments in being free to perform certain political acts without undergoing the embarrassment or hindrance of defending the propriety of such acts before foreign courts," 336 F.2d at 360; and the State Department's failure or refusal to suggest immunity is a significant factor to be taken into consideration in determining if the case is one justifying derogation from the normal exercise of the court's jurisdiction.² This court thus concluded:

We are disposed to deny a claim of sovereign immunity that has not been "recognized and allowed" by the State Department unless it is plain that the activity in question falls within one of the categories of strictly political or public acts about which sovereigns have traditionally been quite sensitive. Such acts are generally limited to the following categories:

(1) internal administrative acts, such as expulsion of an alien.

(2) legislative acts, such as nationalization.

(3) acts concerning the armed forces.

(4) acts concerning diplomatic activity.

(5) public loans.

336 F.2d at 360.

The act here in question — a contract by one government with an individual who agrees to generate adverse publicity against another in the contracting nation's hope that this will aid its initiatives to oust the second government from an area in which the contracting nation has a putative national interest — rather clearly falls within the fourth category of "strictly political or public acts" noted in Victory Transport ("acts concerning diplomatic activity").³ The view that all contracts, regardless of their purpose, should be deemed "private" or "commercial" acts would lead to the conclusion that a contract by a foreign government for the purchase of bullets for its army or for the erection of fortifications do not constitute sovereign acts — a result we viewed as "rather astonishing" in Victory Transport, 336 F.2d at 359. Hence, unless and until we are instructed otherwise, see 336 F.2d at 360, our inquiry will continue to be governed by the criteria noted above, and under these criteria appellant's contention that his contract constitutes a "commercial transaction" must be rejected.

We are likewise unable to accept appellant's alternative contention that even if the acts in question may be characterized as political, they are political acts of a sort which are incompatible with the appropriate exercise of diplomatic functions by a foreign sovereign in this country and therefore unprotected by whatever immunity Spain might otherwise enjoy. Since appellant has referred us to no law, treaty, State Department directive, or other expression of official views proscribing actions such as those allegedly undertaken by the Spanish Government, and we have found none, there would appear to be no basis for appellant's major premise. But even assuming there were some basis for it, we are not persuaded that the suggested conclusion would follow. At least insofar as the political acts which appellant seeks to subject to the court's scrutiny are those of the sovereign itself, it would be curious indeed if the application of a doctrine designed to avoid embarrassment for those responsible for the conduct of our foreign relations were made to depend on a judicial determination of the propriety of such acts in light of the court's understanding of...