Zhou v. Peng

• Decision Date: 30 September 2003
• Docket Number: No. 00 CIV.6446(WHP).,00 CIV.6446(WHP).
• Citation: 286 F.Supp.2d 255
• Parties: Feng Suo ZHOU, Gang Liu, Yan Xiong, Dan Wang, and John Doe, on his own behalf, and on behalf of the estate of his deceased sister Jane Doe, Plaintiffs, v. Li PENG, Defendant.
• Court: U.S. District Court — Southern District of New York

286 F.Supp.2d 255

Feng Suo ZHOU, Gang Liu, Yan Xiong, Dan Wang, and John Doe, on his own behalf, and on behalf of the estate of his deceased sister Jane Doe, Plaintiffs, v. Li PENG, Defendant.

No. 00 CIV.6446(WHP).

United States District Court, S.D. New York.

September 30, 2003.

COPYRIGHT MATERIAL OMITTED

Beth Stephens, Jennifer M. Green, Shayana Kadidal, Center for Constitutional Rights, New York City, for Plaintiffs.

David S. Jones, United States Attorney's Office, New York City, for defendant.

MEMORANDUM AND ORDER

PAULEY, District Judge.

This action stems from the 1989 Tiananmen Square protests in Beijing, the People's Republic of China. Plaintiffs were student participants in that demonstration, who now allege claims under the Alien Tort Claims Act, 28 U.S.C. § 1350, the Torture Victim Protection Act of 1991, Pub.L. No. 102-256, 106 Stat. 73 (1992), codified at 28 U.S.C. § 1350 note (2003), and various other laws, international treaties, agreements and conventions. On August 8, 2002, this Court issued a Memorandum and Order upholding plaintiffs' service of process on defendant Li Peng, who at the time of the protests was the Premier of the People's Republic of China, and most recently served as President of the National People's Congress. See Feng Suo Zhou v. Li Peng, No. 00 Civ. 6446(WHP), 2002 WL 1835608 (S.D.N.Y. Aug.8, 2002). That service was predicated on an order signed by District Judge Richard Conway Casey sitting as the Part I Judge for this Court on August 30, 2000, which permitted substituted service on Li Peng through the United States Department of State Security Detail protecting him. The issue now before this Court is whether the Part I Order should be vacated because it (1) violated the United States Government's sovereign immunity, and (2) was impermissible under the separation of powers doctrine.¹ For the reasons stated below, this Court finds that the Part I Order violated the Government's sovereign immunity and thus must be vacated.²

Background

The circumstances surrounding the filing and prosecution of this action are described in detail in this Court's prior Memorandum and Order. Nevertheless, to understand the present motion, some repetition is warranted. For a full description of the facts, with citations, see Feng Suo Zhou, 2002 WL 1835608, at *1-7.

I. The Part I Order

Plaintiffs commenced this action on August 28, 2000, by filing the summons and complaint under seal. At that time, Li Peng had arrived in New York to attend the Millennium Conference of Presiding Officers of National Parliaments, at the United Nations from August 28 until September 1. On August 28, Marie Schembri, a licensed private investigator for plaintiffs, went to the Waldorf Towers in midtown Manhattan, where Li Peng was staying, to investigate the possibility of serving the summons and complaint on him. Schembri ascertained that Li Peng was protected by an array of security that included the New York City Police Department ("NYPD") and a special security detail provided by the United States Government. Schembri was advised by the NYPD that Li Peng's security in New York was similar to that provided to the President of the United States.

Based on Schembri's assessment of the security surrounding Li Peng, plaintiffs moved, ex parte, on August 28, 2000, for leave to effect service by alternate means since the statutory means were impracticable. Plaintiffs submitted a proposed order with their application based on an order successfully utilized in Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir.1995). The proposed order provided:

[T]hat service shall be accomplished by delivering a copy of the summons and complaint to any employee of the United States government or its agencies who is guarding defendant Li Peng during his stay in New York. Said employee is to forthwith provide said defendant with the said copy of the summons and complaint during defendant's stay in New York.

On August 30, 2000, Judge Casey granted plaintiffs' ex parte application and signed their proposed Order ("Part I Order"). Like the other documents in this action, the Part I Order was filed under seal. The next day, however, Judge Casey signed another ex parte order unsealing the file in this action.

II. Service on Li Peng's Department of State Security Detail

On August 31, 2000, at approximately 6:00 a.m., plaintiffs' process server, Luis Ayala, accompanied by Schembri, Xiao Qiang, Executive Director of Human Rights in China, Ed Wong, a New York Times reporter, and Spencer Platt, a New York Times photographer, went to the garage entryway of the Waldorf Towers lobby to locate "an employee of the United States or its agencies who [was] guarding Li Peng during his stay in New York." After canvassing the area, Ayala, Schembri, and Wong approached several NYPD detectives and identified themselves. Ayala and Schembri informed the detectives that they had a court order authorizing service of process on Li Peng, and requested to speak to a member of the United States Security Detail. Three gentlemen, one of whom was Special Agent Robert Eckert of the United States Department of State's Security Detail for Li Peng, approached Schembri, Ayala, and Wong. As they spoke, they were joined by Qiang and Platt.

While the participants' accounts concerning what occurred next diverge somewhat, it is undisputed that a copy of the summons and complaint was handed to Special Agent Eckert, who in turn brought those documents to the Security Detail's command post in the Waldorf Towers. Schembri and her contingent claim to have informed Special Agent Eckert of the existence of the Part I Order, explained it, and displayed it for his perusal. For his part, Special Agent Eckert did not recall seeing the Part I Order or hearing about its existence during the exchange. Nevertheless, Special Agent Eckert acknowledged that he understood that the summons and complaint concerned an action against Li Peng and were meant to be given to the defendant. Moreover, in a September 13, 2000 incident report, Special Agent in Charge Thomas Barnard ("SAC Barnard") noted that he was advised that "individuals were waiting in the Hotel lobby to serve a `court order' to the `U.S. State Department agents assigned to the Chinese Detail.'"

On the morning of August 31, 2000, SAC Barnard gave a self-described "heads-up" to "a Chinese diplomat assigned to the United Nations mission here in New York" that "there were some legal papers." That diplomat was a "senior ranking member" and "liaison between the protection detail and the Chinese delegation." SAC Barnard also forwarded the summons and complaint to his superiors.

That afternoon, Darlene Kirk, an employee of the Department of State's Press and Public Affairs Office for Diplomatic Security, left a telephone message for Schembri, indicating her intent to mail a letter to Schembri, but providing no details. That same day, officials of the Department of State's Office of the Legal Adviser informed Assistant United States Attorney Wendy H. Schwartz ("AUSA Schwartz") that a Department of State protective detail for Li Peng received unspecified court papers.

On Friday, September 1, 2000, the New York Times reported that an order authorizing service of process on the Diplomatic Security Detail had been issued by Judge Casey. More specifically, the New York Times described the allegations of the complaint, the details of the Part I Order, and the circumstances surrounding service on the Security Detail. Edward Wong, Chinese Leader Sued in New York Over Deaths Stemming from Tiananmen Crackdown, N.Y. Times, Sep. 1, 2000, at A6. The New York Times report quoted a Department of State spokesperson as saying, "[w]e are not in a position to accept such a document on behalf of a foreign official." Wong, supra. Juxtaposed with the spokesperson's comment, the New York Times noted, "[h]owever, earlier this week, Judge Richard Casey ruled that a federal employee guarding Mr. Li could accept the summons, given the difficulty of reaching Mr. Li." Wong, supra.

After learning of the New York Times report, AUSA Schwartz called Judge Casey's chambers around midday on September 1 to inquire about any order regarding the United States Government and/or service of process in this action, but was unable to obtain any information. Nevertheless, AUSA Schwartz did obtain a copy of the summons and complaint from the Department of State's Office of the Legal Adviser. For the remainder of that afternoon before the Labor Day holiday weekend, AUSA Schwartz sought updates from the Department of State concerning Li Peng's schedule, and eventually learned that he was scheduled to leave New York sometime after 11:00 p.m. on September 1. It was not until 6:10 p.m., and again at approximately 7:30 p.m., on Friday evening, that AUSA Schwartz attempted to contact plaintiffs' counsel. On both occasions, she left voicemail messages for them requesting a return call as soon as possible to indicate whether an order requiring any action by United States officials was extant. In one of her voicemails, AUSA Schwartz informed plaintiffs' counsel that the Government had neither received nor confirmed the existence of any court order relating to service of Li Peng, and as such would be returning the summons and complaint to counsel.

Li Peng departed New York's John F. Kennedy International Airport for Beijing at 11:40 p.m. on September 1, 2000. On Tuesday, September 5, 2000, the first business day after the Labor Day weekend, AUSA Schwartz returned to her office to find that plaintiffs' counsel faxed two copies of the Part I Order—the earliest of which bore a facsimile legend indicating it was transmitted at 11:12 p.m. on September 1, 2000.

After an affidavit of service was filed, the Government raised certain issues concerning whether service was effected on Li Peng. Plaintiff submitted a brief supporting its position that Li Peng was properly served, and the Government...