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March 9, 1990

GUY VON DARDEL, et al., Plaintiffs,

Aubrey E. Robinson, Jr., Chief United States District Judge.

The opinion of the court was delivered by: ROBINSON, JR.


 In 1984, the half-brother and the legal guardian of Raoul Wallenberg brought suit against the Soviet Union to force that country to produce Mr. Wallenberg, or account for his whereabouts. The Soviet Union declined to enter any appearance in the action, and in 1985 plaintiffs obtained a default judgment. Relying upon five separate grounds, this Court, Barrington D. Parker, District Judge, found that the it had jurisdiction and venue over the Soviet Union under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1330 et seq., and the Alien Tort Claims Act, 28 U.S.C. § 1350.

 Primarily in light of Amerada Hess, but also on the basis of other subsequent case law, this Court now holds that it lacks subject matter jurisdiction in this case, vacates the default judgment, and dismisses the complaint.


 The Court's 1985 opinion explains the factual background to this case. See Von Dardel v. Union of Soviet Socialist Republics, 623 F. Supp. 246, 248-50 (D.D.C. 1985). Suffice to say that plaintiffs seek declaratory, injunctive and compensatory relief on behalf of Wallenberg, arising out of his unlawful seizure by Soviet authorities in Hungary in 1945, his subsequent detention, and his possible death.

 Plaintiffs served their complaint upon the Soviet Union as required by the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1608(a)(4). The provision calls for service upon a foreign state through the United States Department of State. A packet containing plaintiff documents was served upon the Soviet Ministry of Foreign Affairs in Moscow, evidenced by a May 1, 1984 certificate filed by the Department of State with the Court. Initially, the Soviet Union neither answered the complaint, nor moved to dismiss on any ground. They made no appearance whatsoever. Instead, on April 19, 1984, the Soviet Ministry returned all documents to the United States Embassy in Moscow with a note asserting absolute sovereign immunity.

 On October 15, 1985, acting upon plaintiffs' motion for a judgment of default, the Court examined the issue of sovereign immunity in great detail. Section 1604 of the FSIA provides that a foreign state is generally immune from suit in the United States under the doctrine of foreign sovereign immunity. Nevertheless, the Court determined that it possessed subject matter jurisdiction, granted plaintiffs' motion and entered a default judgment against the Soviet Union. The Court grounded its finding of jurisdiction on five separate bases.

 First, it held that under the FSIA, sovereign immunity is an affirmative defense which must be specially pleaded. The Court concluded that the Soviet Union's assertion of immunity via diplomatic note did not suffice. Because the Soviet Union failed to appear, plead and prove immunity, the Court decided that the defense had been waived. Von Dardel, 623 F. Supp. at 252-53.

 Second, the Court determined that in enacting the FSIA, Congress had not intended to preclude jurisdiction in the case of "clear violations of universally recognized principles of international law." Id. at 253-54. The Court concluded that the violation of Wallenberg's diplomatic status was such a violation, long recognized by the laws of the United States.

 Third, the Court relied upon section 1604 of FSIA itself, which provides that application of the FSIA is "subject to existing international agreements to which the United States is a party at the time of enactment. . . ." Citing the Vienna Convention on Diplomatic Relations and the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, the Court reasoned that immunity under the FSIA "conflicts with" and "thwarts" these treaties. According to the Court in 1985, "under § 1604, the immunity granted by the FSIA must be limited so as to avoid such a result." Id. at 254-55.

 Fourth, the Court held that the Soviet Union had implicitly waived sovereign immunity by signing and ratifying treaties providing for human rights and diplomatic immunity. Id. at 255-56. Section 1605(a)(1) of the FSIA denies sovereign immunity to a state which has waived it "either explicitly or implicitly."

 On April 28, 1986, plaintiffs moved for order holding the Soviet Union in civil contempt. The Court requested that the United States provide it with a Statement of Interest, and on December 8, 1986, the Government complied with a memorandum arguing that the Court lacked jurisdiction and would have great difficulty enforcing any contempt order. The Court took plaintiffs' Motion under advisement.

 Meanwhile, in 1989 two events occurred. First, the Supreme Court handed down its decision in Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 109 S. Ct. 683, 102 L. Ed. 2d 818 (1989), which dealt in detail with many of plaintiffs jurisdictional arguments. Plaintiffs have submitted a statement addressing the effect of Amerada Hess upon this action. Second, after several years of discussion with U.S. officials, on June 8, 1989, the Soviet Union obtained counsel in this matter and entered an appearance for the purposes of contesting jurisdiction. The Soviet Union now moves under Federal Rule 60(b)(4) *fn3" for relief from the Judgment and for a dismissal for lack of subject matter jurisdiction.


 In Argentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428, 109 S. Ct. 683, 102 L. Ed. 2d 818 (1989), the Supreme Court considered whether a U.S. court could exercise jurisdiction over a claim by Liberian shipping companies that the Argentine military had attacked its vessel in violation of international law. Rejecting the Alien Tort Claims Act as an independent grant of subject matter jurisdiction, the Court held that the FSIA is "the sole basis for obtaining jurisdiction over a foreign state in our courts." Id. 109 S. Ct. at 688. The Court also held that the limited list of exceptions to immunity provided in the FSIA compelled the conclusion that "immunity is granted in those cases involving alleged violations of international law that do not come within one of" these exceptions. Id.

 As plaintiffs here now concede, in light of Amerada Hess this Court's reliance in 1985 on the ATCA, and upon an implied "clear violation of international law" exception to the FSIA, was incorrect. Plaintiffs insist however that the remaining three grounds for denying sovereign immunity to the Soviet Union remain valid. In addition, they assert that the Court may also assume jurisdiction ...

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