Tachiona v. U.S.

• Decision Date: 06 October 2004
• Docket Number: No. 03-6033(L), 03-6043(XAP).,03-6033(L), 03-6043(XAP).
• Citation: 386 F.3d 205
• Parties: Adella Chiminya TACHIONA, on her own behalf on behalf of her late husband Tapfuma Chiminya Tachiona, and on behalf of all others similarly situated, Efridah Pfebve, on her own behalf and on behalf of her late brother Metthew Pfebve, Elliot Pfebve, on his own behalf and on behalf of his brother Metthew Pfebve, Evelyn Masaiti, on her own behalf, Maria Del Carmen Stevens, on her own behalf, on behalf of her late husband David Yendall Stevens, and on behalf of all others similarly situated, Plaintiffs-Appellees-Cross-Appellants, Robert Gabriel Mugabe, in his individual and personal capacity, Zimbabwe African National Union-Patriotic Front, Stan Mudenge, Jonathan Moyo, Certain Other Unknown Named Senior Officers of Zanu-PF, Defendants, v. UNITED STATES of America, Intervenor-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

386 F.3d 205

Adella Chiminya TACHIONA, on her own behalf on behalf of her late husband Tapfuma Chiminya Tachiona, and on behalf of all others similarly situated, Efridah Pfebve, on her own behalf and on behalf of her late brother Metthew Pfebve, Elliot Pfebve, on his own behalf and on behalf of his brother Metthew Pfebve, Evelyn Masaiti, on her own behalf, Maria Del Carmen Stevens, on her own behalf, on behalf of her late husband David Yendall Stevens, and on behalf of all others similarly situated, Plaintiffs-Appellees-Cross-Appellants Robert Gabriel Mugabe, in his individual and personal capacity, Zimbabwe African National Union-Patriotic Front, Stan Mudenge, Jonathan Moyo, Certain Other Unknown Named Senior Officers of Zanu-PF, Defendants, v. UNITED STATES of America, Intervenor-Appellant-Cross-Appellee.

No. 03-6033(L), 03-6043(XAP).

United States Court of Appeals, Second Circuit.

Argued March 5, 2004.

Decided October 6, 2004.

Appeal from the United States District Court for the Eastern District of New York, 169 F.Supp.2d 259, Victor Marrero, J.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David S. Jones, Assistant United States Attorney, New York, NY (James B. Comey, United States Attorney for the Southern District of New York, and Meredith E. Kotler, Assistant United States Attorney, New York, NY; William H. Taft IV, Legal Advisor, David P. Stewart, Assistant Legal Advisor, and Wynne M. Teel, Attorney-Advisor, U.S. Department of State, Washington, D.C.; Douglas N. Letter and Lewis S. Yelin, Attorneys, Civil Division, U.S. Department of Justice, Washington, D.C., on the brief), for Intervenor-Appellant-Cross-Appellee.

Paul B. Sweeney, Hogan & Hartson L.L.P., New York, NY (Arianna R. Berg, Hogan & Hartson L.L.P., New York, NY; William J. Bowman, Mary Ellen Callahan, Keith J. Benes, and Nichelle Y. Johnson, Hogan & Hartson L.L.P., Washington, D.C.; Hamish P.M. Hume, Cooper & Kirk, P.L.L.C., Washington, D.C., on the brief), for Plaintiffs-Appellees-Cross-Appellants.

Steven M. Schneebaum, Patton Boggs LLP, Washington, D.C.; Joshua Sondheimer and Meetali Jain, Center for Justice and Accountability, San Francisco, CA, for Amici Curiae the Center for Justice & Accountability and International Law and Human Rights Law Scholars.

Philip Sapsford, Goldsmith Chambers, London, England, and Alexander Yanos, Freshfields Bruckhaus Deringer LLP, New York, NY, for Amicus Curiae the Bar Human Rights Committee for England and Wales.

Rebecca Davies, Dr. Benjamin Kremer, and Simon Rice, Sydney, Australia, for Amicus Curiae Australian Lawyers for Human Rights Inc.

Iain Byrne, Commonwealth Law Officer, Interights, London, England, for Amicus Curiae Interights the International Centre for the Legal Protection of Human Rights.

Before: WALKER, Chief Judge, CARDAMONE, Circuit Judge, and GLEESON, District Judge.^*

JOHN M. WALKER, JR., Chief Judge.

The United States appeals from a default judgment entered by the United States District Court for the Southern District of New York (Victor Marrero, Judge) against defendant the Zimbabwe African National Union-Patriotic Front ("ZANU-PF") for violations of the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350 (2001), the Torture Victim Protection Act of 1991 ("TVPA"), Pub.L. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note), and international human rights norms. Plaintiffs cross-appeal from the district court's dismissal, for lack of subject-matter jurisdiction, of a host of similar claims brought against individual defendants Robert Mugabe and Stan Mudenge. The appeal and cross-appeal both turn on questions of immunity. The district court held that Mugabe and Mudenge were entitled to diplomatic and head-of-state immunity, but that their immunity did not protect them from service of process as agents for ZANU-PF — a non-immune, private entity. Accordingly, in the district court's view, ZANU-PF was properly served with process and thus subject to a default judgment upon failure to appear in this litigation. For the reasons that follow, we affirm the district court's dismissal of the claims against Mugabe and Mudenge but reverse its judgment against ZANU-PF and remand for entry of a judgment dismissing plaintiffs' claims against ZANU-PF.

BACKGROUND

ZANU-PF is a private political party whose members have ruled Zimbabwe since 1980. At all relevant times, Robert Mugabe was the President of Zimbabwe and the President and First Secretary of ZANU-PF, and Stan Mudenge was the Zimbabwean Foreign Minister and a ZANU-PF official. In September 2000, Mugabe and Mudenge visited New York City as delegates to the United Nations ("U.N.") Millennium Summit. During their visit, they attended (and Mugabe spoke at) a private political rally and fund-raiser at a church in Harlem — an event that was sponsored by a non-governmental organization called "Friends of ZANU-PF." Just before he entered the church, Mugabe was served with two copies of the complaint in this action, one in his personal capacity and the other on behalf of ZANU-PF. The next day, Mudenge was served with a copy of the same complaint on the street outside the Zimbabwe Mission building.

The complaint sought redress against Mugabe, Mudenge, ZANU-PF, and others for alleged violations of the ATCA, the TVPA, and international human rights norms. Plaintiffs (all of whom are Zimbabwean nationals) allege that they and/or their family members were subjected to torture, assault, execution, and other acts of violence at the hands of ZANU-PF members and upon the orders of ZANU-PF officials, including Mugabe and Mudenge. Mugabe and Mudenge were sued in their individual, not official, capacities. None of the defendants appeared before the district court at any stage of the ensuing litigation.

Several months after Mugabe and Mudenge were served with process, the United States filed a "suggestion of immunity" pursuant to 28 U.S.C. § 517,¹ in which it asserted that the claims against the two men should be dismissed on grounds of diplomatic and head-of-state immunity. The Government further argued that the claims against ZANU-PF should be dismissed because "under both the head of state and diplomatic immunity doctrines, [Mugabe and Mudenge] had `personal inviolability' and could not be served with legal process in any capacity, including on behalf of ZANU-PF." J.A. at 326-35 (Suggestion of Immunity Submitted by the United States of America, dated February 23, 2001).

In response to the Government's suggestion, plaintiffs argued that: (1) the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602 to 1611 — not the Government's suggestion of immunity — governs immunity determinations concerning heads of state; (2) the FSIA does not afford Mugabe and Mudenge immunity in this case because the two are alleged to have committed human rights violations in their non-official capacities; and (3) Mugabe and Mudenge were not entitled to diplomatic immunity during the course of their U.N.-sponsored trip to New York City and, thus, could be both sued individually and served with process as agents for ZANU-PF.

On October 30, 2001, the district court issued an order and decision dismissing the claims against Mugabe and Mudenge on immunity grounds but entering a default judgment against ZANU-PF. See Tachiona v. Mugabe, 169 F.Supp.2d 259 (S.D.N.Y.2001) ("Tachiona I"). The court concluded that the executive branch's suggestion of immunity, not the FSIA, governed immunity for heads of state, and that the suggestion mandated dismissal of the claims against Mugabe and Mudenge. See id. at 296-97. It also held, in the alternative, that diplomatic immunity precluded plaintiffs' suit against Mugabe and Mudenge. See id. at 297, 302. But the district court found that neither head-of-state immunity nor diplomatic immunity shielded foreign officials from service of process as agents for a private entity and, therefore, that Mugabe and Mudenge could be served as agents for ZANU-PF. See id. at 309. Thus, in the district court's view, ZANU-PF had been properly served and, having failed to appear in the action, was subject to a default judgment.

The Government moved for reconsideration and to intervene for purposes of appeal. On February 14, 2002, the district court denied the Government's motion for reconsideration, but granted its motion to intervene. See Tachiona v. Mugabe, 186 F.Supp.2d 383, 397 (S.D.N.Y.2002) ("Tachiona II"). In a final judgment dated December 19, 2002, following a damages inquest, the court held ZANU-PF liable for $20,250,453 in compensatory damages and $51,000,000 in punitive damages.

DISCUSSION

In its appeal, the Government argues that the district court erred in determining that neither head-of-state immunity nor diplomatic immunity protected Mugabe and Mudenge from service of process as agents for ZANU-PF. Plaintiffs respond in the alternative, asserting that: (1) the Government lacks standing to appeal the district court's judgment against ZANU-PF in the absence of ZANU-PF's own demand for review of the judgment; and (2) on the merits, the default judgment against ZANU-PF should be upheld. They also cross-appeal the district court's dismissal of the claims against Mugabe and Mudenge. Our authority to review the merits depends on whether the Government has standing to appeal; we therefore address that issue first.

I. Standing

Because Article III of the Constitution permits the adjudication of "Cases" or "Controversies" only, litigants appearing before federal courts must demonstrate that they have standing to invoke the court's jurisdiction. See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). To claim standing, a litigant must have suffered "`an invasion of a legally protected interest' that is `concrete and particularized' and `actual or imminent.'" Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct 2130, 119 L.Ed.2d 351 (1992)) (...