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In January 2017, President Trump signed executive order EO-1, "Protecting the Nation From Foreign Terrorist Entry," suspending, for 90 days, entry of foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, and suspending the United States Refugee Admissions Program (USRAP) for 120 days. The Ninth Circuit upheld a nationwide temporary restraining order. The government revoked EO-1. EO-2 issued on March 6, describing conditions in six countries that “demonstrate ... heightened risks to [U.S.] security.” EO–2 section 2(a) directs Homeland Security to determine whether foreign governments provide adequate information about nationals applying for U.S visas and to report those findings to the President within 20 days; nations identified as deficient will have 50 days to alter their practices (2(b)). EO–2 2(c) directs that entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, be suspended for 90 days; section 3(c) provides for case-by-case waivers. Section 6(a) suspends decisions on applications for refugee status and travel of refugees under the USRAP for 120 days; 6(b) suspends refugee entries in excess of 50,000 for this year. The order’s stated effective date is March 16, 2017. The Ninth Circuit again declined to stay a temporary injunction. The Supreme Court stayed the order in part, with respect to sections 2(c), 6(a), and 6(b). An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country can legitimately claim concrete hardship if that person is excluded, even if the 50,000-person cap has been reached. As to these individuals and entities, the Court did not disturb the injunction; as to those lacking any such connection, the balance tips in favor of the government’s compelling interest in security. The Court noted a June 12 Ninth Circuit decision vacating the injunction as to 2(a) and stated that the Executive should conclude its work and provide adequate notice to foreign governments within the 90-day life of 2(c). View "Trump. v. International Refugee Assistance Project" on Justia Law

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In 2010, a U.S. Border Patrol agent standing on U.S. soil shot and killed Hernandez, an unarmed 15-year-old Mexican national, standing on Mexican soil. Hernandez had been playing a game that involved running up the embankment on the U.S. side of the border. After the Justice Department closed an investigation, declining to file charges, Hernandez’s parents filed suit, including a “Bivens” claims for damages against the agent. The Fifth Circuit affirmed dismissal. The Supreme Court vacated and remanded. A “Bivens” implied right of action for damages against federal officers alleged to have violated a citizen’s constitutional rights is not available where there are special factors counselling hesitation in the absence of affirmative action by Congress. In light of recent Supreme Court precedent (Abbasi), the Fifth Circuit must consider “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” The Court noted that the Fourth Amendment question is sensitive and may have far-reaching consequences. Qualified immunity shields officials from civil liability if their conduct does not violate clearly established constitutional rights of which a reasonable person would have known. The lower court concluded that the prohibition on excessive force did not apply to Hernandez, as a foreign national on foreign soil, but the Court noted that Hernández’s nationality and the extent of his ties to the U.S. were unknown to the agent at the time of the shooting. View "Hernandez v. Mesa" on Justia Law

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A group of Indian nationals filed suit against the IFC, alleging that a power plant financed by the IFC caused damage to surrounding communities in Gujarat, India. The DC Circuit affirmed the district court's dismissal of the complaint, holding that the IFC was immune to this suit under the International Organizations Immunities Act, 22 U.S.C. 288, and did not waive immunity for this suit in its Articles of Agreement. View "Jam v. International Finance Corp." on Justia Law

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The Convention on Supplementary Compensation for Nuclear Damage's (CSC) text, structure, and ratification history dictate that Article XIII’s jurisdiction-stripping provision applies only to claims arising out of nuclear incidents occurring after the CSC’s entry into force. Plaintiffs, members of the United States Navy, filed a putative class action against TEPCO, alleging that they were exposed to radiation when deployed near the Fukushima Daiichi Nuclear Power Plant (FNPP) as part of Operation Tomodachi. The Ninth Circuit affirmed the denial of TEPCO's motion to dismiss and held that the CSC did not strip it of jurisdiction over plaintiffs' claims; the district court did not err by dismissing plaintiffs' claims on comity grounds and did not abuse its discretion in deciding to maintain jurisdiction; the district court did not abuse its discretion in declining to dismiss this case on forum non conveniens grounds; the panel was unable to undertake the "discriminating inquiry" necessary to determine if this case presented a political question; and the panel provided no opinion as to whether the firefighter's rule applies to military servicemembers and, if so, whether it barred plaintiffs' claims. View "Cooper v. Tokyo Electric Power Co." on Justia Law

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This case stems from the Herzog family's effort to recover a valuable art collection seized during the Holocaust. On remand, the district court concluded that the family's claims against the Republic of Hungary, its museums, and a state university satisfied the expropriation exception to the Foreign Sovereign Immunities Act, 28 U.S.C. 1604, and that no other provision of the Act barred their claims. The DC Circuit affirmed the district court's ruling that the Herzog family's claims to art never returned to them satisfied the Act's expropriation exception; remanded for the district court, with respect to art that was returned to the Herzog family, to determine whether the claim to recover each piece may proceed under the expropriation exception; instructed the district court to dismiss the Republic of Hungary as a defendant and to grant the Herzog family leave to amend their complaint in light of the Holocaust Expropriated Art Recovery Act, Pub. L. 114–308, 130 Stat. 1524; and dismissed for lack of appellate jurisdiction Hungary's appeal from the denial of its motion to dismiss on exhaustion grounds. View "De Csepel v. Republic of Hungary" on Justia Law

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Plaintiff and her husband filed suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b)(1), 2671-2680, against the government after she suffered severe injuries in her diplomatic housing when stationed overseas in Haiti. The DC Circuit affirmed the district court's dismissal of the suit because plaintiffs' action fell within an exception to the FTCA's waiver of sovereign immunity for injuries arising in a foreign country. Even assuming without deciding that all overseas diplomatic housing should receive the same treatment under the FTCA as a United States embassy, plaintiffs' claim was foreclosed by circuit precedent. In Macharia v. United States, 334 F.3d 61, 69, the court concluded that the FTCA's foreign country exception applied to injuries occurring at a United States embassy. View "Galvin v. United States" on Justia Law

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Father, a citizen of Israel, petitioned for return of the child under the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act (ICARA), 22 U.S.C. 9001-9011. The Eighth Circuit held that the district court did not err in finding that the child's habitual residence was the United States, and thus the retention of the child was not wrongful within the meaning of the Convention. Accordingly, the court affirmed the judgment of the district court. View "Cohen v. Cohen" on Justia Law

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The 1995 Dayton Peace Agreement established Bosnia and Herzegovina as an independent, democratic and multiethnic state with two separate political subdivisions—the Republika Srpska and the Federation of Bosnia and Herzegovina. After plaintiff was removed from his post in the Republika Srpska government, he filed suit against the Office of the High Representative (OHR), a body charged with overseeing parts of the Agreement's implementation on behalf of the international community. Plaintiff also filed suit against the then-High Representative Jeremy Ashdown and the current High Representative, Valentin Inzko. The district court determined that all defendants were statutorily immune to suit under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq. Plaintiff then sought reconsideration arguing, among other things, that Ashdown and Inzko had not complied with section 8(a) of the IOIA and so were not entitled to immunity. The DC Circuit held that the district court lacked subject matter jurisdiction regardless of the date Ashdown and Inzko's immunity vested. View "Zuza v. Office of the High Representative" on Justia Law

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Lexmark holds patents on the components of toner cartridges that it manufactures and sells. Lexmark allows consumers to buy a cartridge at full price, with no restrictions, or to buy a cartridge at a discount through Lexmark’s “Return Program,” by signing a contract agreeing to use the cartridge only once and to refrain from transferring the cartridge to anyone but Lexmark. Remanufacturers acquire empty Lexmark cartridges—including Return Program cartridges—from purchasers in the U.S. and overseas, refill them, and resell them in the U.S. Lexmark sued remanufacturers with respect to Return Program cartridges that Lexmark had sold within the U.S. and cartridges that Lexmark had sold abroad and that remanufacturers imported into the country. The Federal Circuit ruled for Lexmark with respect to both. The Supreme Court reversed. Lexmark exhausted its patent rights (35 U.S.C. 271(a)) in all of the cartridges. A patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose. If a patentee negotiates a contract restricting the purchaser’s right to use or resell an item, it may be able to enforce that restriction as a matter of contract law, but may not do so through a patent infringement lawsuit. The exhaustion doctrine is not a presumption about the authority that comes along with a sale; it is a limit on the scope of the patentee’s rights. The Patent Act just ensures that the patentee receives one reward—of whatever it considers satisfactory compensation—for every item that passes outside the scope of its patent monopoly. View "Impression Products, Inc. v. Lexmark International, Inc." on Justia Law

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The “Old Mill” in Belgrade, Serbia, was confiscated, allegedly from plaintiffs' ancestors, in 1945, without compensation, and later sold to private developers. Prigan now holds title and, with Carlson, renovated the Old Mill. The property is now a four‐star Radisson Blu Hotel complex. Carlson is the licensor of the Radisson Blu brand and participates in the hotel’s management. Ten years before the hotel's construction, plaintiffs began trying to recover their rights over the Old Mill. In 2009 a Serbian court annulled the declaration that plaintiffs’ family were enemies of the state. They sued Carlson, alleging trespass, conversion, conspiracy, unjust enrichment, constructive trust, and violation of the Minnesota Deceptive Trade Practices Act. Carlson agreed to submit to the jurisdiction of the Serbian Restitution Agency, which was empowered by Serbia's 2011 “Law on Property Restitution and Compensation” to determine rights in the property, including improvements. The judge dismissed the suit on the ground of forum non conveniens. The Seventh Circuit affirmed, noting that the plaintiffs produced no documentary evidence that they have inherited the land and that the dispute is appropriate for the Serbian Agency . Although one plaintiff is an American citizen and a resident of Illinois, the other is a citizen of Canada but a resident of Paris; no aspect of the dispute has any relation to Illinois. View "Veljkovic v. Carlson Hotels, Inc." on Justia Law