Case of the Day: Freedom Watch v. OPEC
Posted on May 27, 2016
Today’s case of the day, Freedom Watch v. OPEC (D.C. Cir. 2016), is, most likely, the last installment in this long-running service of process dispute. I have covered the case several times before. Here once again is my description of the facts:
Freedom Watch, a right-wing organization that accuses the “Obama-Clinton regime” of “using the economic crisis as an excuse to turn our nation into a socialist Euro-style welfare state,” sued OPEC on antitrust theories. I am going to go out on a limb here and guess that its claims lacked merit. OPEC moved to dismiss for insufficient service of process. According to OPEC’s motion to dismiss, “Plaintiff’s counsel, Mr. Larry Klayman, personally handed an envelope containing a summons, the complaint and other documents, all in English, to an Austrian police officer (not an employee of OPEC) who was present at the reception desk in the lobby of OPEC’s headquarters in Vienna.” On the other hand, according to the return of service, filed after the motion to dismiss, Courtney Butcher of Beverly Hills, California served the summons at OPEC headquarters on Frederich Luger, “intake officer of OPEC,” who supposedly was designated by law to accept service of process on OPEC.
In one of my previous posts I called Freedom Watch’s lawyer, Larry Klayman, a “carnival barker.” I hesitate to call him that again, as one of the other carnival barkers is now the presumptive nominee of one of our two political parties for the presidency!
Although the DC Circuit held that service was improper, it remanded for for consideration whether Freedom Watch should be granted leave to serve process via alternate means under FRCP 4(f)(3). On remand, the judge denied the motion for leave, holding that service could not be made on OPEC’s lawyers in the United States because Rule 4(f) applies only to service outside of a judicial district of the United States, and that service could not be made at OPEC headquarters because such service would be contrary to the OPEC headquarters agreement—to which the United States is not a party. I opined that the second reason, at least, was erroneous, because the point of FRCP 4(f)(3) is to ensure that courts do not authorize litigants to put the United States in violation of its international treaty obligations by authorizing methods of service that a treaty forbids. Such concerns do not arise when the treaty in question is a treaty to which the United States is not a party. But in any event, in light of his decision, the judge dismissed the case with prejudice, and Freedom Watch appealed.
In a short decision per curiam, the court affirmed. The court rejected Freedom Watch’s argument that on remand the district court was required to authorize service on OPEC’s US counsel. Apparently the district court had concluded that Freedom Watch had conceded that service at OPEC headquarters was impossible because of the headquarters agreement. The DC Circuit held that the district court had not abused its discretion in concluding that Freedom House had made that concession. This was a clever way to avoid deciding the issue. As my last post suggested, I think if the court had reached the question it would have had to say that the district court got it wrong.