Kulvir Barapind v. Government of the Republic of, et al

Filing

FILED OPINION (CARLOS T. BEA, SANDRA S. IKUTA and JANE A. RESTANI) AFFIRMED. Judge: JAR Authoring. FILED AND ENTERED JUDGMENT. [10241203]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KULVIR SINGH BARAPIND,
Plaintiff-Appellant,

No. 14-16983
D.C. No.
1:13-cv-00667-AWI-GSA

v.
GOVERNMENT OF THE
REPUBLIC OF INDIA; STATE
GOVERNMENT OF PUNJAB;
THE PUNJAB POLICE,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted October 20, 2016
San Francisco, California
Filed December 21, 2016
Before: Carlos T. Bea and Sandra S. Ikuta, Circuit Judges,
and Jane A. Restani, Judge.*
Opinion by Judge Restani

*

The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.

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BARAPIND V. GOV’T OF THE REPUBLIC OF INDIA
SUMMARY**

Foreign Sovereign Immunity
Affirming the dismissal for lack of subject matter
jurisdiction of an action brought against the Government of
the Republic of India, the State Government of Punjab, and
the Punjab Police, the panel held that the defendants did not
waive their sovereign immunity through their diplomatic
communications with the United States.
The plaintiff alleged that by subjecting him to postextradition torture, the Indian government violated an
understanding with the United States Department of State.
The panel held that this understanding was not an implicit
waiver of sovereign immunity by the Indian government.
The panel concluded that none of the three circumstances that
ordinarily give rise to an implied waiver was present. The
understanding was not an agreement to arbitration in the
United States; it was not a responsive pleading that failed to
raise the defense of sovereign immunity; and there was no
choice-of-law agreement. In addition, the plaintiff did not
meet his burden of proving that the Indian government
contemplated the involvement of the courts of the United
States.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Emily M. Alban (argued) and Clifton S. Elgarten, Crowell &
Moring, Washington, D.C.; Jaspreet K. Singh, International
Center for Advocates Against Discrimination, Portland,
Oregon; for Plaintiff-Appellant.
Juan C. Basombrio (argued) and Katherine J. Santon, Dorsey
& Whitney LLP, Costa Mesa, California, for DefendantsAppellees.

OPINION
RESTANI, Judge:
Plaintiff-Appellant Kulvir Singh Barapind (“Barapind”)
appeals the district court’s order dismissing his complaint for
lack of subject matter jurisdiction. We hold that the district
court did not have jurisdiction over Barapind’s claim because
the Defendants-Appellees, the Government of the Republic
of India, the State Government of Punjab, and the Punjab
Police (collectively, “Indian government”), did not waive
their sovereign immunity through their diplomatic
communications with the United States. Accordingly, we
affirm.
BACKGROUND
Barapind, an Indian citizen and a Sikh, entered the United
States on April 25, 1993, and soon thereafter applied for
asylum and withholding of deportation. Barapind alleges
that, in India, he had joined a Sikh-nationalist, political
organization that supported the secession of the State of

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Punjab from India. He maintains that, due to his involvement
with that organization, the “Indian security forces” arrested
him multiple times and subjected him to torture.
On November 29, 1994, while litigation relating to
Barapind’s immigration claims was pending, the Indian
government submitted a request for Barapind’s extradition
pursuant to an extradition treaty. See Extradition Treaty
between the U.S. & Gr. Brit. & Exch. of Notes Extending the
Applicability of the Treaty to Palestine & Trans-Jordan., Gr.
Brit.-U.S., art. 9, Dec. 22, 1931, 47 Stat. 2122.1 On
September 18, 1997, “[t]he United States filed a complaint on
India’s behalf” in the United States District Court for the
Eastern District of California and “requested a warrant to
bring Barapind before an extradition court for a hearing to
determine extraditability.” Barapind v. Enomoto, 400 F.3d
744, 747 (9th Cir. 2005). Ultimately, on November 9, 2005,
the district court certified Barapind’s extraditability for three
of the murder charges brought against him in India. In re
Extradition of Singh, Nos. 01-6215 OWW, 98-5489 OWW,
2005 WL 3030819, at *1 (E.D.C.A. Nov. 9, 2005).
Barapind sought relief from extradition pursuant to the
United Nations Convention Against Torture and Other Forms
of Cruel, Inhuman or Degrading Treatment or Punishment
(“the Convention”) by submitting an application to the United
States Department of State (“the Department”). Barapind
argued before the Department that under the Convention, as
implemented by the Foreign Affairs Reform and

1

In assessing the extradition request, the district court considered this
treaty, one between the United States and Great Britain, as it was the
applicable treaty at the time of India’s request. In re Extradition of Singh,
170 F. Supp. 2d 982, 986 (E.D.C.A. 2001).

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Restructuring Act of 1998 (“FARRA”), the United States
would violate 22 C.F.R. §95.2(b) if it extradited Barapind to
India because he would “more likely than not” be tortured
there, that diplomatic assurances would be insufficient to
guarantee that he would not be tortured, and that he would be
denied a fair trial in India. Thereafter, the Department and
the Indian government exchanged a series of diplomatic notes
and, in those notes (“the Understanding”), the Indian
government stated that Barapind would not be tortured.
The substance of the Understanding is found in internal
Department memoranda. In response to a January 13, 2006,
request by the United States for India to “assess the merit of
Barapind’s [torture] claim” due to the United States’s
obligations under the Convention and 22 C.F.R. § 95.2, the
Indian government, through its Ministry of External Affairs,
provided the following response on February 7, 2006:
India has signed [the Convention]. As a
signatory, India has good-faith obligation not
to act against the objectives and purposes of
the Convention. The Indian constitution
provides for the protection of life and personal
liberty. . . . India has legislation for the
protection of human rights. . . . Indian
criminal law prohibits the use of force or
causing hurt to extort confession. Persons
violating these provisions are subject to
prosecution and imprisonment. . . .
Thus [Barapind] on extradition to India will
be dealt in accordance with the law. He will
be entitled to all rights of defence, protection,

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and remedies available and shall not be
subject to any kind of torture.

ER 242–43. Similarly, in response to a March 7, 2006,
follow-up request from the United States, the Indian
government provided the following response on March 28,
2006:
[Barapind] on extradition to India, will be
dealt with in accordance with the law. He will
be entitled to all the rights of defence,
protection and remedies available and shall
not be subjected to torture, as defined in [the
Convention].
. . . India as a signatory to the Torture
Convention has a good faith obligation not to
act against the objectives and purposes of the
convention. Indian criminal law prohibits the
use of force or causing hurt to extort
confession. The judicial-decisions have
interpreted the law to cover not only the
physical hurt b u t t h e m ental
derangement/sufferings also.
Persons
violating these provisions are subject to
prosecution and imprisonment.
ER 384.
Following these assurances, in June 2006 the Department
surrendered Barapind to the Indian government. After
standing trial on the three criminal charges, in May 2008,
Barapind was acquitted on all three charges. Barapind alleges
that eventually he resumed his religious and political

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activities in India. On September 20, 2012, Indian police
forces arrested Barapind and allegedly subjected him to acts
of torture from September 21–25, 2012.
On May 7, 2013, Barapind filed the instant complaint,
arguing that the Indian government violated the
Understanding when it subjected Barapind to post-extradition
torture. The Indian government moved to dismiss on several
grounds, including a factual challenge to subject matter
jurisdiction. On September 26, 2014, the district court
dismissed Barapind’s complaint pursuant to Federal Rule of
Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction, holding that the Indian government had not
waived its sovereign immunity. Barapind appeals.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo questions of law, including determinations of
immunity under the Foreign Sovereign Immunities Act of
1976 (“FSIA”). Embassy of the Arab Republic of Egypt v.
Lasheen, 603 F.3d 1166, 1170 (9th Cir. 2010); Exp. Grp. v.
Reef Indus., Inc., 54 F.3d 1466, 1469 (9th Cir. 1995).
When, as here, a defendant asserts foreign sovereign
immunity through a factual challenge and offers evidence to
dispute a plaintiff’s jurisdictional allegations, “no
presumptive truthfulness attaches to plaintiff’s allegations”
and the plaintiff “has the burden of going forward with
evidence by offering proof that one of the FSIA exemptions
applies.” Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131
(9th Cir. 2012) (quoting Doe v. Holy See, 557 F.3d 1066,
1073 (9th Cir. 2009)); Siderman de Blake v. Republic of Arg.,
965 F.2d 699, 708 n.9 (9th Cir. 1992)). If the plaintiff meets

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its burden, then the defendant “bears the burden of proving by
a preponderance of the evidence that the exception to
sovereign immunity does not apply.” Terenkian, 694 F.3d at
1131. Even if there are material facts in dispute, we “may
still evaluate the merits of the jurisdictional claims.” See id.
Additionally, we review for clear error a district court’s
factual findings on jurisdictional issues. Adler v. Fed.
Republic of Nigeria, 107 F.3d 720, 723 (9th Cir. 1997).
DISCUSSION
Barapind argues that the district court had subject matter
jurisdiction over his claim because the Indian government,
through its reference in the Understanding to the Convention
and its diplomatic assurances not to torture Barapind,
implicitly waived its sovereign immunity. Barapind contends
that this interpretation is appropriate because India has only
signed, but not ratified, the Convention and, therefore, the
reference to the Convention is a reference to law of the
United States. We disagree.
The FSIA is the “sole basis” upon which jurisdiction may
be obtained over a foreign state. Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989).
Thus, if a foreign state is immune from suit, jurisdiction is
lacking. See id. Foreign states, including their political
subdivisions, agencies, and instrumentalities, are typically
immune from suit in federal and state courts in the United
States. 28 U.S.C. §§ 1603(a), 1604. The FSIA, however,
does provide for waivers of such immunity by the foreign
state “either explicitly or by implication[.]”
Id. at
§ 1605(a)(1). “The waiver exception is narrowly construed.”
Joseph v. Office of the Consulate Gen. of Nigeria, 830 F.2d
1018, 1022 (9th Cir. 1987); see also Corporacion Mexicana

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de Servicios Maritimos, S.A. de C.V. v. M/T Respect, 89 F.3d
650, 655 (9th Cir. 1996) (“[C]ourts rarely find that a nation
has waived its sovereign immunity without strong evidence
that this is what the foreign state intended.” (quoting
Rodriguez v. Transnave Inc., 8 F.3d 284, 287 (5th Cir.
1993))).
We have explained that an implied waiver may be found
ordinarily in only the following three circumstances: “(1) a
foreign state has agreed to arbitration in another country;
(2) a foreign state has agreed that a contract is governed by
the law of a particular country; and (3) a foreign state has
filed a responsive pleading in a case without raising the
defense of sovereign immunity.” In re Republic of
Philippines, 309 F.3d 1143, 1151 (9th Cir. 2002) (quoting
Joseph, 830 F.2d at 1022). However, these circumstances are
not “an exclusive list of the circumstances giving rise to
implied waivers,” and we have also recognized an implied
waiver “where a written agreement entered into by a foreign
sovereign ‘contemplates adjudication of a dispute by the
United States courts.’” Siderman de Blake, 965 F.2d at 721
(quoting Joseph, 830 F.2d at 1023).
The Understanding is not an implicit waiver of sovereign
immunity by the Indian government.2 Not only does the

2

Barapind does not argue that the Indian government explicitly
waived its sovereign immunity nor does the evidence support such an
explicit waiver. See Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc.,
179 F.3d 1279, 1292 (11th Cir. 1999) (“An express waiver . . . must give
a ‘clear, complete, unambiguous, and unmistakable manifestation’ of the
sovereign’s intent to waive its immunity.”); see also H.R. Rep. No. 1487,
94th Cong., 2d Sess. 18 (1976), reprinted in 1976 U.S.C.C.A.N. 6604,
6617 (“With respect to explicit waivers, a foreign state may renounce its
immunity by treaty, . . . [or] in a contract with a private party.”).

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Understanding not match any of the three circumstances that
ordinarily give rise to an implied waiver, but it also does not
demonstrate that India intended the Understanding to be
enforceable in United States courts.
First, Barapind has not met his burden of demonstrating
that any of the three circumstances that ordinarily give rise to
an implied waiver are implicated here. The Understanding is
plainly neither an agreement to arbitrate nor a responsive
pleading. Moreover, we need not address whether the notes
formed a “contract” between the Department and the Indian
government, because even if they did, they do not specify that
the law of a particular country should govern that contract,
nor do they otherwise “contemplate[] adjudication of a
dispute by the United States courts.” Joseph, 830 F.2d at
1023.
Nor does the Understanding demonstrate an agreement
regarding which country’s law would govern. We have
explained in this context that a choice-of-law provision
should clearly identify which country’s law governs, a
requirement that flows from our rule that we construe waivers
narrowly. Specifically, in Siderman de Blake, we explained
that our finding of waiver in Joseph did not fall into one of
the categories that ordinarily give rise to an implied waiver
because the contract did not “provide specifically for the
adjudication of disputes in the United States [or] state that
United States law would govern such actions.” Siderman de
Blake, 965 F.2d at 721; see also Eckert Int’l, Inc. v. Gov’t of
the Sovereign Democratic Republic of Fiji, 32 F.3d 77, 78,
80–82 (4th Cir. 1994) (holding that a sovereign had waived
its immunity where it was party to a consulting contract with
a choice-of-law provision that explicitly stated “[i]n the event
of any controversy, this Agreement shall be construed and

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interpreted according to the laws of the state of Virginia in
the United States”).
The Understanding does not contain a choice-of-law
provision. Rather than specifying with reasonable certainty
which country’s law should govern or the forum in which suit
may be brought, the Understanding discusses both a United
Nations document—the Convention—and Indian laws, such
as the Indian constitution and the Indian Penal Code.
Moreover, the Understanding contemplates that the conduct
at issue—the potential torture of Barapind—would occur in
India. At best, the Understanding is ambiguous regarding
choice of law. Thus, Barapind has not demonstrated that the
Indian government, by and through the Understanding, has
agreed that the law of a particular country should govern a
contract. See In re Republic of Philippines, 309 F.3d at 1151
(quoting Joseph, 830 F.2d at 1022).
Second, Barapind has not met his burden of proving that
the Indian government contemplated the involvement of the
courts of the United States. See Siderman de Blake, 965 F.2d
at 721–22. For example, India’s assurances never explicitly
discuss an intent to be bound by United States law, such as
FARRA. Whereas the United States’s communications to
India cited 22 C.F.R § 95.2 and mentioned the United States’s
obligations under FARRA to not extradite persons if it is
“more likely than not” they will be tortured, India’s
communications discuss only India’s obligations not to
torture Barapind under the Convention, an international
document, as well as Indian laws. It is clear that the
Understanding’s reference to the Convention is not itself a
reference to United States law because the Convention is not
self-executing and by itself does not have the status of law

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within the United States.3 And, the present case is unlike our
decision in Joseph, where we considered a lease agreement
between Nigeria and a landlord in California that provided for
“adjudication of landlord-tenant disputes in court.” 830 F.2d
at 1023. We noted that “[i]n light of the wholly local nature
of the transaction, it is virtually inconceivable that the
Consulate contemplated that adjudication of disputes would
occur in a court outside of the United States[,]” but
nevertheless declined to rely solely on this implied waiver of
Nigeria’s sovereign immunity. Id. at 1023 & n.6. Here, we
do not believe it reasonable to assume India intended to be
bound by a law of the United States or contemplated that
adjudication of disputes would occur in a court of the United
States because the entirety of the conduct at issue—the
potential torture of Barapind—was reasonably contemplated
to occur only in India.
The Understanding, moreover, does not show an intent by
the Indian government to avail itself of the privileges or
protections of the courts of the United States. For instance,
in Siderman de Blake, we held that Argentina impliedly
waived its immunity when it engaged United States courts by
filing a letter rogatory in a court of the United States, thereby
creating a “direct connection between the sovereign’s
activities in our courts and the plaintiff’s claims for relief.”
965 F.2d at 721; see also Smith v. Socialist People’s Libyan
3

After oral argument, Barapind filed a letter pursuant to Federal Rule
of Appellate Procedure 28(j), in which he argued that Article 14 of the
Convention provides a right to monetary damages. Appellant’s Citation
to Suppl. Authorities 1, ECF No. 35. Barapind, however, has not pointed
to a source of United States law that expressly implements Article 14.
Whether prior laws may provide the same relief in the United States and
thereby fulfill international commitments does not aid Barapind’s reliance
on the Convention as the source of United States law.

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Arab Jamahiriya, 101 F.3d 239, 246 (2d Cir. 1996) (requiring
for implied waiver a “close relationship” between a written
agreement and United States litigation). Unlike in Siderman
de Blake, the Indian government did not directly file
documents in a court of the United States for the purposes of
effecting Barapind’s extradition.
Instead, the Indian
government used diplomatic channels to request Barapind’s
extradition from the United States, and the United States
government “filed a complaint on India’s behalf” in district
court, seeking a certificate of extraditability. See Barapind,
400 F.3d at 747. This use of diplomatic channels does not, on
its own, create the necessary relationship between the Indian
government and our courts. See Blaxland v. Commonwealth
Dir. of Pub. Prosecutions, 323 F.3d 1198, 1206 (9th Cir.
2003) (holding that Australia had not impliedly waived its
immunity when it used diplomatic channels to effect
extradition).
Because the Understanding does not expressly or
implicitly indicate that India contemplated adjudication of
disputes by the United States courts, Barapind’s argument
that claims under the Convention and the Torture Victim
Protection Act (“TVPA”) could be adjudicated in United
States courts is inapposite. See Amerada Hess Shipping
Corp., 488 U.S. at 442–43 (concluding that Argentina had not
waived its immunity, explicitly or implicitly, “by signing an
international agreement that contains no mention of a waiver
of immunity to suit in United States courts or even the
availability of a cause of action in the United States”).
Regardless of whether parties can adjudicate Convention and
TVPA claims in federal court, the Understanding does not
indicate that India intended to adjudicate such disputes in this
country, and therefore India did not implicitly waive its
sovereign immunity on this ground.

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But even if we consider Barapind’s arguments that his
alleged Convention and TVPA claims are cognizable in
federal court, we would conclude that he is mistaken. Article
14 of the Convention does not create a private right of action
in the United States for damages by victims of torture
occurring outside of the United States. The Senate
conditioned ratification on its understanding that Article 14
“requires a State Party to provide a private right of action for
damages only for acts of torture committed in territory under
the jurisdiction of that State Party.” 136 Cong. Rec. S1748601, S17492 (daily ed. Oct. 27, 1990) (emphasis added).
Barapind alleges that the torture occurred in India. Therefore,
even if a cause of action for damages existed under the
Convention, Barapind has been unable to identify a source of
United States law that creates a similar action for torture
alleged to have been committed in a foreign country.
Barapind’s argument that the TVPA creates a cause of
action also fails. The Supreme Court has interpreted the word
“individual” in the TVPA as “authoriz[ing] liability solely
against natural persons.” Mohamad v. Palestinian Auth.,
132 S. Ct. 1702, 1708 (2012). The Indian government is not
a “natural person” and is, therefore, not subject to suit under
the TVPA.
CONCLUSION
For all of these reasons, Barapind has not supplied
sufficient evidence on which we would find it appropriate to
reverse the district court’s dismissal for lack of jurisdiction
based on India’s sovereign immunity. The district court’s
order dismissing for lack of subject matter jurisdiction is
AFFIRMED.