Tag Archives: FSIA

Case of the Day: Barapind v. India

Martin Luther King
Letters Blogatory wishes its readers a happy Martin Luther King Day!

The case of the day is Barapind v. Government of the Republic of India (9th Cir. 2016). Kulvir Singh Barapind, an Indian national, was a member of a Sikh nationalist party that supported the secession of Punjab from India. He applied for asylum in the United States in 1993, claiming that “Indian security forces” had arrested and tortured him because of his political activity. In 1994, while the asylum request was pending, the Indian government sought extradition pursuant to the extradition treaty between the two countries. The charge was murder. The District Court certified his extraditabilty, but he sought relief under the UN Convention Against Torture. The US received assurances from India, via an exchange of diplomatic notes, that Barapind would not be tortured, and he was then extradited. But at his trial in India in 2008, Barapind was acquitted. He resumed his political activities and, he alleges, he was arrested and tortured in 2012.

In 2013, Barapind sued the Indian government in the Eastern District of California, asserting claims under the Convention and the Trafficking Victims Protection Act. The defense was, of course, foreign sovereign immunity, but Barapind claimed India had waived its immunity in the exchange of diplomatic notes that had led to his extradition. The court dismissed for lack of jurisdiction, and Barapind appealed.
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Case of the Day: Gilmore v. Palestinian Authority

The case of the day is Gilmore v. Palestinian Interim Self-Government Authority (D.C. Cir. 2016). Esh Kodesh Gilmore, a US citizen, was killed in a terrorist attack in Jerusalem in 2000. His estate and survivors sued the Palestinian Authority and the PLO, asserting claims under the Anti-Terrorism Act and on common law theories. At first, the PA and the PLO defaulted, but they later moved to vacate the default and moved to dismiss, arguing that the suit “was a politically-motivated attack on the PA and therefore non-justiciable,” and that Palestine was a state and therefore entitled to foreign sovereign immunity. The court vacated the default and denied the motion to dismiss. But the PA then failed to answer, and again was defaulted. After a hearing to assess damages, the PA again moved to vacate the default, this time filing an answer and promising to participate fully in the litigation, including in discovery. The court vacated the default.

In discovery, the PA asserted the state secrets and law enforcement privileges as to material created by the General Intelligence Services, the PA’s intelligence agency. The court ordered an in camera review of the documents withheld, along with an ex parte submission by the PA explaining the documents. At the close of discovery, the PA sought summary judgment, arguing that there was no admissible evidence “linking Gilmore’s murder to any particular person.” The evidence consisted of statements published online by the Israeli Ministry of Foreign Affairs, a passage from the book, The Seventh War, which recounted a prison interview that implicated Muhanad Abu Halawa, a former PA soldier, in the murder, a statement by an associate of Halawa written and signed while in Israeli police custody, the testimony of the associate during the trial of Halawa’s supervisor, and an expert report by a former IDF intelligence officer. The court agreed that the evidence was inadmissible and granted summary judgment. Gilmore’s estate and survivors appealed.
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Case of the Day: Alimanestianu v. United States

The case of the day is Alimanestianu v. United States (Fed. Cl. 2016). This is the summary judgment decision following the decision on a motion to dismiss that I covered in December 2015. Here was my statement of the facts from the earlier post:

The plaintiffs are relatives of Mihai Alimanestianu, an American citizen who was killed aboard an airplane that exploded over Niger in 1989. The explosion was due to a terrorist act sponsored by the Libyan government.

In 1996, Congress amended the FSIA to eliminate foreign sovereign immunity in cases of personal injury cause by acts of state-sponsored terrorism. In 2002, the plaintiffs sued Libya and several officials. The district court granted a summary judgment in their favor in 2008 for approximately $1.3 billion in damages. Libya and its officials appealed.

On the date Libya appealed, the United States and Libya entered into a claim settlement agreement. Under the agreement, Libya was no longer within the state-sponsored terrorism exception to the FSIA. The agreement also terminated all pending suits, including suits that had gone to judgment but were still on appeal, and precluded future suits alleging Libyan state-sponsored terrorism. The agreement also established a “humanitarian settlement fund,” into which Libya deposited $1.5 billion to compensate US claimants, and the US deposited $300 million to compensate Libyan claimants. The US and Libya agreed, for themselves and their nationals, that the fund would be a full and final settlement of all claims. Congress then enacted the Libyan Claims Resolution Act, which implemented the agreement. The United States then moved to intervene in the Alimanesianu case and moved to vacate the judgment. The Court of Apppeals granted the motion and ordered the district court to dismiss the case with prejudice. The relatives received just over $10 million from the US government from the $1.5 billion contributed by Libya.

The relatives sued the government, claiming that it had effected a taking of their property when it entered into the claim settlement agreement.

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