AUBREY E. ROBINSON, JR., CHIEF UNITED STATES DISTRICT JUDGE.
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.
In June of last year, the Soviet Union entered a special appearance solely to contest jurisdiction, and immediately moved for relief from judgment by default and for a dismissal. The United States has filed a statement of interest in support of the Soviet Union's motion. Plaintiffs vigorously contest it. The Soviet Union and the United States rely principally upon the Supreme Court decision in Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 109 S. Ct. 683, 102 L. Ed. 2d 818 (1989), handed down subsequent to this Court's jurisdictional ruling.
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."
Fifth, and finally, the Court relied upon the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350, as an independent statutory grant of subject matter jurisdiction over violations of international law.
Von Dardel, 623 F. Supp. at 256-59. The Court proceeded to enter Judgment in plaintiffs' favor.
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)
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 under section 1605(a)(5) of the FSIA.
The Court will address each of these arguments in turn.
A. Waiver of Sovereign Immunity from Failure to Appear
The Court in 1985 held, and plaintiffs continue to argue, that the Soviet Union waived sovereign immunity by failing to raise it as an affirmative defense as required under the FSIA and the Federal Rules. This position comes primarily from a passage in the legislative history to the FSIA stating that immunity would remain an "affirmative defense which must be specially pleaded, the burden [remaining] on the foreign state to produce evidence in support of its claim." See H.R. Rep. No. 1487, 94th Cong., 2d Sess. 17, reprinted in 1976 Cong. Code & Admin. News 6604, 6616. The Supreme Court's decision in Amerada Hess did not address this issue.
The Court now holds that a waiver of sovereign immunity cannot be implied from a foreign state's failure to appear. First, such a waiver is inconsistent with the requirement that a court satisfy itself that jurisdiction exists prior to entering a default judgment. FSIA section 1608(e) provides that no default should be entered "unless the claimant establishes his claim or right to relief by evidence satisfactory to the court." 28 U.S.C. § 1608(e). In Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 76 L. Ed. 2d 81, 103 S. Ct. 1962 (1983), the Supreme Court noted the FSIA's legislative history, but nonetheless stated that under the Act,
subject matter jurisdiction turns on the existence of an exception to foreign sovereign immunity, 28 U.S.C. § 1330(a). Accordingly, even if the foreign state does not enter an appearance to assert an immunity defense, a district court still must determine that immunity is unavailable under the Act.
Id. 461 U.S. at 493-94 n. 20. If a failure to appear automatically waived sovereign immunity, there would be no reason for the district court to satisfy itself of anything. It could proceed based upon the waiver. In addition, although the House Report calls for immunity to be pleaded as an affirmative defense, the Report does not state when it must be pleaded.
Second, in 1987 our Circuit Court unequivocally stated in Practical Concepts, Inc. v. Republic of Bolivia, 258 U.S. App. D.C. 354, 811 F.2d 1543 (D.C. Cir. 1987), that a failure to appear does not constitute a waiver:
A defendant who knows of an action but believes the court lacks jurisdiction over his person or over the subject matter generally has an election. He may appear, raise the jurisdictional objection, and ultimately pursue it on direct appeal.