Case of the Day: McEachern v. Inter-Country Adoption Board of the Philippines

The case of the day is McEachern v. Inter-Country Adoption Board of the Philippines (D. Mass. 2014). In 2012, Geraldine McEachern traveled to the Philippines to adopt two half-sisters, one ten years old and the other sixteen. The older girl was reluctant to travel to the US to be adopted, but the younger was eager. Nevertheless, McEachern brought both back to the US with her. Six months later, the older girl began having behavioral problems and, according to McEachern, was abusive toward her half-sister. McEachern informed Pearl S. Buck International, the agency that facilitated the placement, that she was uncomfortable going forward with the adoption of the older girl. So the older girl was placed in foster care. According to McEachern, the younger girl then began to do very well, and also according to McEachern, experts determined that removing the younger girl from her home would not be in the girl’s best interest. Nevertheless, the Inter-Country Adoption Board of the Philippines determined that it was in the girls’ best interest to be adopted by the same family, and the ICAB denied McEachern permission to adopt only the younger girl and told her that it had found another placement for the two girls with a family in New York. McEachern sued in the Suffolk County Probate and Family Court, seeking an injunction forbidding the ICAB to remove the younger girl from her home.

McEachern first attempted to serve the ICAB by delivering the summons and complaint to the Philippine Consulate General in New York. Service was refused. McEachern then served the documents on the Consulate General via Fedex, and someone in the consulate signed for the papers. The court issued a temporary restraining order. Ultimately McEachern sought a default judgment against the ICAB, at which point the ICAB removed the case to the District Court. McEachern moved to remand the case to the Probate and Family Court.

The judge began by considering whether the service of process was effective. It was agreed that the ICAB was an instrumentality of the Philippines, which meant that service was governed by 28 U.S.C. § 1608(b). The point the judge decided was that service by Fedex substantially complied with § 1608(b)(3)(B) even though it was sent by McEachern’s lawyers rather than by the clerk, as § 1608(b)—unlike § 1608(a)—can be satisfied by substantial compliance even if the plaintiff did not strictly comply with the statute. This seems defensible as far as it goes. But I don’t really understand how the judge decided that was the key point. To me, it seems that the analysis should have been as follows: § 1608(b)(3) is available as a means of service only (to quote the statute) “if service cannot be made under paragraphs (1) or (2).” Section 1608(b)(1) was inapplicable, as there was no special arrangement for service between the parties. Section 1608(b)(2) was inapplicable in part, because the Philippines is not a party to the Hague Service Convention. But what about the provision of § 1608(b)(2) that provided for service “by delivery of a copy of the summons and complaint either to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in the United States?” Was the attempt to serve the papers on the consulate general sufficient to comply with this statute? In any case, if service couldn’t be made under § 1608(b)(2), why was it proper to serve the documents by mail at the Consulate General rather than by mail addressed to the ICAB at its offices in the Philippines? I am inclined to say that the service was improper for these reasons.

Because the judge held that the service was proper, he held without further ado that the ICAB’s removal of the case was untimely. This seems correct as far as it goes. And so the judge remanded the case.

The parties also disputed whether the Probate and Family Court would have subject matter jurisdiction upon remand. It’s not clear to me that that point was central to the judge’s decision, but in any event, the judge held without much discussion that both he and the family court judge had subject matter jurisdiction notwithstanding the FSIA because the case came within the commercial activities exception to the rule of sovereign immunity.

Really? The judge reasoned as followed:

While the Court acknowledges that the matter of a foreign adoption may not be a profit-making endeavor for the government of the Philippines and that an act of adoption is not primarily a commercial activity, the process of adoption, which entails numerous contracts and often an exchange of money, undoubtedly affects commerce. The Court therefore concludes that both the Probate Court and this Court have subject matter jurisdiction over the instant case.

This seems to mix up the kind of analysis courts do when facing a Commerce Clause question with the FSIA. The Commerce Cause is exceedingly broad, and courts find that nearly any effect on interstate commerce is sufficient to give Congress the power to legislate. But that’s not the same as the FSIA analysis. Here is the First Circuit’s test, from Fagot Rodriguez v. Republic of Costa Rica, 297 F.3d 1, 5-6 (1st Cir. 2002):

Under § 1605(a)(2), a foreign state is subject to jurisdiction in any case “in which the action is based upon a commercial activity carried on in the United States by the foreign state.” The term “commercial activity” encompasses both “a regular course of commercial conduct” and “a particular commercial transaction or act.” Id. § 1603(d). In assessing whether a certain transaction or course of conduct is commercial in character, courts must look to the “nature” of the activity rather than its “purpose.” Id. Thus, the question is not whether the foreign government [was] acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the particular actions that the foreign state perform[ed] (whatever the motive behind them) [were] the type of actions by which a private party engages in “trade and traffic or commerce.”

(Citation and internal quotation omitted). Is regulation of inter-country adoption a type of action by which a private party engages in trade or commerce? I haven’t checked for precedents, but at first blush the answer would seem to be no.

So I think the judge got this wrong in two ways. Unfortunately, there is no appeal from a decision to remand a case to the state court, so the First Circuit will not get a crack at this. On the other hand, the Probate and Family Court will, I think, have the obligation to judge for itself whether it can permissibly exercise jurisdiction under the FSIA.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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