Justia International Law Opinion SummariesArticles Posted in US Court of Appeals for the Ninth Circuit
Villalobos-Sura v. Garland
Sura served in the Salvadoran Army and helped local police arrest gang members, including members of MS-13. In February 2016, MS-13 members told him that they had an order for him to disappear. He did not report it to the police because he was concerned that some police officers were also MS-13 members. Sura continued his military service until it was completed, later testifying that he did not want to be AWOL. In May 2016, four men were murdered five kilometers from where Sura was stationed. According to an Interpol Red Notice, an arrest warrant was issued for Sura and others asserting that they murdered four MS-13 gang members.Sura entered the U.S. months later and was removed after stating that he had no fear of returning to El Salvador. Eight days later, he re-entered and was placed in withholding-only proceedings after expressing a fear of returning to El Salvador. Sura applied for withholding of removal and relief under the Convention Against Torture. Sura denied any prior knowledge of either arrest warrant and any role in the murders. Sura testified that he feared returning to El Salvador and being placed in custody based on false charges, where he would be vulnerable to MS-13 and his former colleagues who framed him.The IJ ordered Villalobos Sura removed, finding him statutorily ineligible for withholding of removal under the serious nonpolitical crime bar. The IJ found Sura’s testimony insufficiently credible and that the isolated threat did not amount to past persecution. The BIA affirmed. The Ninth Circuit denied a petition for review. The Interpol Red Notice, among other evidence, created a serious reason to believe Sura committed a serious nonpolitical crime before entering the U.S., rendering him ineligible for withholding of removal. View "Villalobos-Sura v. Garland" on Justia Law
Quintero-Perez v. United States
Yañez was shot and killed by a U.S. Border Patrol agent while on the border fence, which is in the United States. After being shot, Yañez fell and landed across the international border. Yañez’s family filed civil claims against the government and individual federal agents.The Ninth Circuit affirmed the rejection of claims under the Alien Tort Statute (ATS) and the Federal Tort Claims Act (FTCA), and a “Bivens” claim. The court rejected an argument that the shooting and Border Patrol’s Rocking Policy, authorizing deadly force in response to rock-throwing, violated an international jus cogens norm against extrajudicial killing and was actionable under the ATS; the ATS does not waive sovereign immunity, even for jus cogens violations. Claims under the FTCA were time-barred. Plaintiff initially did not pursue an FTCA claim because she believed that, under Ninth Circuit precedent, judgment on an FTCA claim would have foreclosed her Bivens claims. Plaintiff amended the complaint to assert FTCA claims after the Supreme Court abrogated that precedent in 2016. The FTCA’s judgment bar did not foreclose a contemporaneously filed Bivens claim when the government had prevailed on the FTCA claim, so the Supreme Court’s decision was irrelevant to this situation. That mistake of law was not outside of plaintiff's control and did not qualify as an extraordinary circumstance supporting equitable tolling. Special factor counseled against extending a Bivens remedy; doing so would challenge a high-level executive policy and implicated national security. View "Quintero-Perez v. United States" on Justia Law
Al-Qarqani v. Chevron Corp.
In 1949, the government of Saudi Arabia transferred certain land in that country to an official named Khalid Abu Al-Waleed Al-Hood Al-Qarqani, who leased it to an affiliate of what later became Chevron. Five of Al-Qarqani's heirs now claim that Chevron owes them billions of dollars in rent. Plaintiffs contend that an arbitration clause contained in a separate 1933 agreement between Saudi Arabia and Chevron's predecessor, SOCAL, applies to their dispute. An Egyptian arbitral panel agreed and awarded plaintiffs $18 billion. Plaintiffs then petitioned for enforcement of the arbitral award, but the district court found that the parties had never agreed to arbitrate and therefore held that it lacked jurisdiction over the petition.The Ninth Circuit agreed with the Second Circuit, disagreeing with the Eleventh Circuit, that the absence of an agreement to arbitrate was a reason to deny enforcement on the merits, rather than to dismiss for lack of subject-matter jurisdiction. The panel held that so long as a party makes a non-frivolous claim that an arbitral award is covered by the New York Convention, the district court must assume subject-matter jurisdiction. In this case, the panel affirmed the district court's dismissal for lack of subject-matter jurisdiction as to Chevron USA because it was not named in the arbitral award and plaintiffs advanced no non-frivolous theory of enforcement. The court affirmed the district court's denial of the enforcement petition on the merits as to Chevron Corporation where there was no binding agreement to arbitrate between the parties. View "Al-Qarqani v. Chevron Corp." on Justia Law
CLMS Management Services Limited Partnership v, Amwins Brokerage of Georgia
Plaintiffs, domestic entities, entered into an insurance contract providing coverage for a Texas townhome complex that they own and operate. The Policy was underwritten by Lloyd’s, members of a foreign organization, and contains a mandatory arbitration provision, providing that the seat of the Arbitration shall be in New York and the Arbitration Tribunal shall apply the law of New York. In 2017, Hurricane Harvey caused an estimated $5,660,000 in damages to the townhome complex. A third-party claims administrator for Lloyd’s concluded that the Policy’s deductible was $3,600,000.Plaintiffs filed a complaint in the Western District of Washington asserting breach of contract, failure to communicate policy changes, and unfair claims handling practices in violation of Washington law, asserting that the deductible should be $600,000. Lloyd’s moved to compel arbitration and stay proceedings, arguing that the Policy’s arbitration provision falls within the scope of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Plaintiffs did not contest that the arbitration provision falls within the Convention’s scope but argued the provision is unenforceable because Washington law specifically prohibits the enforcement of arbitration clauses in insurance contracts. Plaintiffs cited the McCarran-Ferguson Act, 15 U.S.C. 1011–15, which provides that state insurance law preempts conflicting federal law. On interlocutory review, the Ninth Circuit upheld an order granting Lloyd’s motion. Article II, Section 3 of the Convention is self-executing, and therefore is not an “Act of Congress” subject to reverse-preemption under the McCarran-Ferguson Act. View "CLMS Management Services Limited Partnership v, Amwins Brokerage of Georgia" on Justia Law
Setty v.. Shrinivas Sugandhallayah, LLP
In a prior opinion, the Ninth CIrcuit held that SS Mumbai could not equitably estop SS Bangalore from avoiding arbitration. Mumbai, a non-signatory to a partnership deed that contained an arbitration provision, argued that, based on the arbitration provision, Indian law applied to the question of whether it could compel Bangalore to arbitrate.The Supreme Court vacated and remanded based on its holding that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not conflict with the enforcement of arbitration agreements by non-signatories under domestic law equitable estoppel doctrines.On remand, the Ninth Circuit affirmed the district court’s order denying Mumbai’s motion to compel arbitration. While a nonsignatory can compel arbitration in a Convention case, the allegations, in this case, do not implicate the arbitration clause—a prerequisite for compelling arbitration under the equitable estoppel framework. The court declined to apply Indian law because whether Mumbai could enforce the partnership deed as a non-signatory was a threshold issue for which it did not look to the agreement itself. The deed’s arbitration provision applied to disputes “arising between the partners” and not also to third parties such as Mumbai. View "Setty v.. Shrinivas Sugandhallayah, LLP" on Justia Law
Broidy Capital Management v. State of Qatar
Plaintiffs Elliot Broidy and his investment firm filed suit against the State of Qatar and various other defendants after Qatari agents allegedly hacked into plaintiffs' computer servers, stole their confidential information, and leaked it to the media in a retaliatory effort to embarrass plaintiff and thereby to neutralize his ability to continue to effectively criticize the Qatari regime and its alleged support of terrorism.The Ninth Circuit affirmed the district court's dismissal based on lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA). The panel concluded that neither the FSIA's exception to immunity for tortious activity nor its exception for commercial activity applied in this case and thus Qatar was immune from jurisdiction. The panel explained that all of plaintiffs' tort claims were barred under the discretionary function exclusion from the tortious activity exception because the challenged conduct was discretionary in nature or involved an element of judgment or choice, and the judgment was of the kind that the exception was designed to shield. Furthermore, plaintiffs' claims were based on the alleged surreptitious intrusion into their servers and email accounts in order to obtain information and the dissemination of such information to others, including persons in the media. The panel explained that such conduct did not qualify as commercial activity under the FSIA. View "Broidy Capital Management v. State of Qatar" on Justia Law
Global Commodities Trading Group, Inc. v. Beneficio De Arroz Choloma, S.A.
Global filed suit against Bachosa in district court after Bachosa fell behind on its payments on two contracts. The district court dismissed Global's claims for lack of personal jurisdiction and denied as moot Bachosa's motion to dismiss for forum non conveniens.The Ninth Circuit held that the district court had personal jurisdiction over both the corporate and individual defendants and that litigation in the Eastern District of California would not result in disproportionate inconvenience. In this case, Bachosa maintained numerous contacts with California during the course of its years-long business relationship with Global. Furthermore, those contacts gave rise to this dispute, and it was reasonable for Bachosa to expect that it would be haled into court in California to fulfill its obligations and to account for harm it foreseeably caused there. In regard to the individual defendants, the district court had specific personal jurisdiction over them based on Global's claims in its initial complaint. Finally, the panel exercised its discretion to reach the issue of dismissal based on forum non conveniens, and held that the balance of private and public interest factors did not favor dismissal. Moreover, California law will likely govern key issues and any burdens on the foreign defendant are insufficient to overcome the presumption in favor of Global's choice of its home forum. Therefore, the panel reversed in part, vacated in part, and remanded with instructions to deny the forum non conveniens motion on the merits. View "Global Commodities Trading Group, Inc. v. Beneficio De Arroz Choloma, S.A." on Justia Law
Mitchell v. United States
The Ninth Circuit denied a certificate of appealability (COA) allowing petitioner to appeal the district court's denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. 2255. Petitioner's motion asserted that a report issued on August 12, 2020, by the Inter-American Commission on Human Rights (IACHR), which concluded that petitioner's trial and sentence violated his rights under the American Declaration, requires that his death sentence be vacated, that he must be released or given a new trial, and that he cannot be sentenced to death after a new trial.The panel held that reasonable jurists would not find debatable the district court's conclusion that the IACHR's decision is not binding in federal court. In this case, the district court concluded that IACHR rulings do not have binding power within the United States by virtue of the Organization of American States (OAS) Charter because the OAS Charter is not self-executing, and Congress has passed no statute to implement it. Furthermore, the district court rejected petitioner's argument that IACHR decisions are binding because they are derived, through the OAS Charter, from the American Declaration on the ground that the American Declaration is not a treaty and creates no binding set of obligations. View "Mitchell v. United States" on Justia Law
Flores Castro v. Hernandez Renteria
The Ninth Circuit affirmed the district court's denial of a petition for the return of a child to Mexico pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. Petitioner is the child's paternal half-sister and respondent is the child's maternal grandmother, who has been raising the child in Las Vegas, Nevada since 2017.In this case, the district court clearly erred in its factual finding regarding the date of removal, which was August 25, 2017. Furthermore, respondent's removal of the child was wrongful because it breached the Mexican court's rights of custody. Because the petition was filed more than one year after the date of wrongful removal, the district court had discretion to decline to order the return of the child. Because petitioner does not appeal the district court's findings that the child is now settled in Las Vegas, nor does petitioner argue that the district court abused its discretion in declining to order return, the panel affirmed the district court's discretionary decision not to order the return of the child pending custody proceedings. View "Flores Castro v. Hernandez Renteria" on Justia Law
Cooper v. Tokyo Electric Power Co.
The Ninth Circuit affirmed the district court's dismissal of claims brought by U.S. servicemembers and their families against TEPCO and GE, alleging that they were exposed to radiation from the Fukushima Daiichi Nuclear Power Plant. The Japanese Act on Compensation for Nuclear Damage provides that the operator of a nuclear power plant is strictly liable for any damage caused by the operation of the power plant but no other person shall be liable.The panel held that Japan's Compensation Act was a liability-limiting statute with outcome-determinative implications and was substantive for Erie purposes. In this case, the district court did not err in proceeding with the full choice-of-law analysis at the motion-to-dismiss stage of the litigation. The panel applied California's three step "governmental interest" test in deciding the choice-of-law questions and ultimately concluded that the district court did not err when it decided that the laws of Japan, not California, govern plaintiffs' claims against GE. The panel likewise held that the district court did not err in proceeding with the choice-of-law analysis and finding that Japanese law also applies to plaintiffs' claims against TEPCO. Finally, having decided that Japanese law applies to the case and considering Japan's strong interests in the case being litigated in Japan, the panel held that the district court did not abuse its discretion when it dismissed the claims against TEPCO on international-comity grounds. View "Cooper v. Tokyo Electric Power Co." on Justia Law