Slater v. Biehl

• Decision Date: 21 March 2002
• Docket Number: No. 98-CV-1389.,98-CV-1389.
• Parties: James SLATER, Appellant, v. Gloria BIEHL, Appellee.
• Court: D.C. Court of Appeals

793 A.2d 1268

James SLATER, Appellant, v. Gloria BIEHL, Appellee.

No. 98-CV-1389.

District of Columbia Court of Appeals.

Argued May 5, 2000.

Decided March 21, 2002.

Allan B. Rabineau, Baltimore, MD, for appellant.

David C. Numrych, Washington, DC, with whom Robert G. McGinley, Atlanta, GA, was on the brief, for appellee.

Before TERRY, RUIZ, and WASHINGTON, Associate Judges.

RUIZ, Associate Judge:

James Slater sued Gloria Biehl, the wife of the Ambassador from Chile to the United States, in the Superior Court of the District of Columbia for damages arising from an automobile collision alleged to have been caused by the negligence of Biehl. Biehl answered the complaint denying negligence, and later moved to dismiss for lack of jurisdiction. The trial court dismissed the case pursuant to 28 U.S.C. § 1351(2) (1994 & Supp. IV 1998), which provides that federal "district courts shall have original jurisdiction, exclusive of the courts of the states, of all civil actions and proceedings against ... members of a mission or members of their families." We hold that 28 U.S.C. § 1351 divests the Superior Court of subject matter jurisdiction, a fundamental defect which may not be waived by a litigant who files a general appearance in the Superior Court without first asserting the defense of lack of jurisdiction. Because the plain language of the statute, buttressed by long historical precedent, clearly directs that civil cases against ambassadors or their families must be brought exclusively in the federal district courts, we further hold that, upon the filing of a proper motion, an award of costs and attorneys' fees to appellee is appropriate under District of Columbia Appellate Rule 38 as "just compensation" for having to defend a frivolous appeal.

FACTS

Slater and Biehl were involved in an automobile accident on February 21, 1995, in the District of Columbia. The automobile Biehl was driving bore diplomatic tags. On February 20, 1998, Slater filed the present civil suit in the Superior Court alleging negligence by Biehl. On March 20, 1998, Biehl filed an answer to Slater's complaint which denied each allegation in the complaint, but did not challenge the court's jurisdiction. On June 4, 1998, the Assistant Chief of Protocol of the United States Department of State issued a Certificate of Diplomatic Status regarding Biehl. Thereafter, on June 18, 1998, Biehl filed a motion to dismiss the case for lack of jurisdiction based on her diplomatic status, referring to the certificate from the State Department. After a hearing on the issue, the trial court dismissed the case for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1351. In a letter dated December 21, 1998, after the case had been dismissed by the Superior Court and Slater had noted his appeal to this court, Biehl's counsel notified Slater's counsel that Biehl would seek sanctions pursuant to District of Columbia Appellate Rule 38 if Slater continued to pursue what Biehl believed to be a frivolous appeal.

ANALYSIS

1. 28 U.S.C. § 1351

The central question in this case is whether 28 U.S.C. § 1351 refers to the subject matter jurisdiction of a state court¹ or merely to such court's personal jurisdiction over a diplomat. Slater argues that the statute concerns only personal jurisdiction and that Biehl waived the defense of lack of personal jurisdiction by failing to timely raise it in her first pleading. Because "[t]he issue of subject matter jurisdiction is a question of law," Bible Way Church of Our Lord Jesus Christ of the Apostolic Faith of Washington, D.C. v. Beards, 680 A.2d 419, 427 (D.C.1996), our standard of review is de novo.

It is axiomatic that in order to act a court must have jurisdiction over both the person and the subject matter. Personal jurisdiction is not "fundamentally preliminary in the sense that subject-matter jurisdiction is, for [personal jurisdiction is a] personal privilege[] of the defendant, rather than [an] absolute stricture[] on the court." Leroy v. Great Western United Corp., 443 U.S. 173, 180, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979). "Challenges to a court's subject matter jurisdiction cannot be waived," Arrington v. United States, 585 A.2d 1342, 1344 n. 2 (D.C.1991); Super. Ct. Civ. R. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the Court lacks jurisdiction of the subject matter, the Court shall dismiss the action."), whereas a failure to plead lack of personal jurisdiction by motion or responsive pleading results in waiver of the defense, see Super. Ct. Civ. R. 12(h)(l) ("A defense of lack of jurisdiction over the person . . . is waived . . . (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course."). As a court of general jurisdiction, "`the Superior Court has jurisdiction of any civil action or other matter (at law or in equity) brought in the District of Columbia' unless jurisdiction is vested exclusively in a federal court." Begum v. Auvongazeb, 695 A.2d 112, 113 (D.C.1997) (quoting D.C.Code § 11-921(a) (2001)).

The statute at issue, 28 U.S.C. § 1351, provides that

The district courts shall have original jurisdiction, exclusive of the courts of the States, of all civil actions and proceedings against—

(1) consuls or vice consuls of foreign states; or

(2) members of a mission or members of their families (as such terms are defined in section 2 of the Diplomatic Relations Act [22 U.S.C. § 254a]).

(Emphasis added).² "When the language of a statute is plain and unambiguous, we look to its plain meaning in order to interpret it." Needle v. Hoyte, 644 A.2d 1369, 1372 (D.C.1994). The plain language of § 1351 confers jurisdiction to the federal courts, "exclusive of the courts of the States," over certain civil cases,³i.e. civil cases brought against certain persons, among them the family members of members of a diplomatic mission. See 28 U.S.C. § 1351(2). "The exclusion is expressed in strong and unqualified terms" and does not countenance a qualified interpretation. Ketland v. The Cassius, 2 U.S. 365, 368, 2 Dall. 365, 1 L.Ed. 418 (1796) (interpreting similar language of Judiciary Act of 1789); see Tafflin v. Levitt, 493 U.S. 455, 471, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990) (Scalia, J., concurring) (noting that the term "exclusive of the courts of the states" signals exclusive federal jurisdiction over a matter and referencing 28 U.S.C. § 1351). The supremacy of federal law dictates that the Superior Court is without subject matter jurisdiction over civil claims covered by 28 U.S.C. § 1351. See U.S. CONST. art. VI ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land"); D.C.Code § 11-921 (2001) (b) ("The Superior Court does not have jurisdiction over any civil action or other matter (1) over which exclusive jurisdiction is vested in a Federal court"); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L.Ed. 23 (1824) (Marshall, C.J.) (explaining that the Supremacy Clause invalidates state laws that "interfere with, or are contrary to" federal law); Begum, 695 A.2d at 113 (noting jurisdiction under § 11-921 of any civil action matter brought in the District of Columbia unless jurisdiction is vested exclusively in a federal court).

It is also clear that Biehl is a "member of the[] family" of a member of a diplomatic mission for purposes of § 1351. The United States Department of State issued a Certificate of Diplomatic Status establishing Biehl's status as a family member of a diplomat. Courts generally accept as conclusive the views of the State Department as to the fact of diplomatic status. See Carrera v. Carrera, 84 U.S.App. D.C. 333, 174 F.2d 496, 497 (1949). Under 22 U.S.C. § 254 a(2), which is specifically referenced in § 1351, the term "family" means "the members of the family of a member of a mission ... who form part of his or her household if they are not nationals of the United States ... within the meaning of Article 37 of the Vienna Convention." Article 37 of the Vienna Convention on Diplomatic Relations provides that "[t]he members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving state, enjoy the privileges and immunities specified. . . ." Vienna Convention on Diplomatic Relations, April 18, 1961, art. 37(1), 23 U.S.T. 3227, 3244, 500 U.N.T.S. 96, 116 ("Vienna Convention") (entered into force with respect to the United States on December 13, 1972). "A `diplomatic agent' is the head of the mission or a member of the diplomatic staff of the mission." Id., art. 1(e), 23 U.S.T. at 3231, 500 U.N.T.S. at 98. Heads of mission are divided into three classes, and include ambassadors. Id., art. 14(1)(a), 23 U.S.T. at 3235, 500 U.N.T.S. at 104. Thus, 28 U.S.C. § 1351 is clearly applicable to a civil action against Biehl, the wife of the Chilean Ambassador. Her failure to plead lack of jurisdiction in the first instance cannot invest the Superior Court with subject matter jurisdiction which, under federal statute, is exclusive to the federal district courts.⁴See U.S. CONST. art. VI.; Bors v. Preston, 111 U.S. 252, 255-256, 4 S.Ct. 407, 28 L.Ed. 419 (1884) (failure to raise court's jurisdiction in the first instance cannot "invest those courts with a jurisdiction expressly denied them").

In addition to the plain language of 28 U.S.C. § 1351, there is a long history of exclusive federal jurisdiction over cases against consuls. See generally Foxgord v. Hischemoeller, 820 F.2d 1030, 1034-36 (9th Cir.1987) (outlining history of 28 U.S.C. § 1351). For over two hundred years, from almost the beginning of the Republic, the legislative grant of exclusive jurisdiction to federal district courts over consuls (and now also over family...