Barapind v Government of the Republic of India, et al

Filing 67

ORDER GRANTING 40 , 48 Motion to Dismiss signed by District Judge Anthony W. Ishii on 9/26/2014. CASE CLOSED. (Jessen, A)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7
8

KULVIR SINGH BARAPIND,

9
10
11
12

CASE NO. 1:13-CV-0667 AWI GSA

Plaintiff

ORDER RE: MOTION TO DISMISS

v.
GOVERNMENT OF THE REPUBLIC
OF INDIA, et al.,

(Docs. 40 and 48)

Defendants

13
14

I. Background

15

Plaintiff Kulvir Singh Barapind is a citizen of the Republic of India. Defendants are the

16

Government of the Republic of India (“GOI”), the State Government of Punjab, and the Punjab

17

Police. In the 1980s, Plaintiff lived in Punjab and was active with organizations that sought the

18

independence of that Indian state. Plaintiff was charged with several crimes in connection with

19

the activities of the independence movement, including murder. In 1993, Plaintiff traveled to the

20

United States and sought asylum. GOI sought to have Plaintiff extradited; the United States and

21

the GOI signed an extradition treaty on June 25, 1997. Plaintiff fought the extradition in United

22

States courts for many years. On November 9, 2005, the Eastern District of California denied

23

Plaintiff’s habeas corpus petition and issued a Certification and Order of Extraditability with

24

respect to three murder charges. This was a final ruling and ended the U.S. courts’ involvement in

25

Plaintiff’s extradition.

26

The United States has signed and ratified the United Nations Convention Against Torture

27

and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (“Convention”).

28

Among other requirements, the Convention prohibits extradition in situations where a person

1

would be subject to torture. The Foreign Affairs Reform and Restructuring Act of 1998

2

(“FARRA”) implements the Convention. In key part, the Secretary of the U.S. Department of

3

State (“Department”) may not extradite a person if he/she is “more likely than not” to be tortured

4

after extradition. See 22 C.F.R. § 95.2. On November 23, 2005, Plaintiff submitted an application

5

to the Department asking for his extradition to be halted on the basis that he would be subject to

6

torture in India. Doc. 63-1, 9. The Department communicated with the GOI concerning Plaintiff’s

7

potential treatment in police custody in India. Through diplomatic notes in 2005 and 2006, the

8

GOI assured the Department that Plaintiff would not be tortured (“Agreement”). The Agreement

9

is not a contract that the GOI and the Department signed; instead, it is a series of communications

10

that went back and forth describing what Plaintiff’s treatment in Indian custody would be. The

11

terms can only be gleaned indirectly from the diplomatic notes. The assurances satisfied the

12

Department and Plaintiff was extradited in June 2006.

13

In May 2008, Plaintiff was acquitted of the three criminal charges in Indian courts and was

14

released. Plaintiff resumed his activity with organizations seeking the independence of Punjab.

15

On September 20, 2012, Plaintiff was arrested on new criminal charges. Plaintiff alleges that he

16

was subjected to torture September 21-25, 2012, carried out by the local police forces. Plaintiff

17

sought relief in the Indian courts, which issued an order on September 28, 2012 that Plaintiff was

18

to be presented to medical authorities for examination. That order was not complied with.

19

On May 7, 2013, Plaintiff filed the present suit, in the Eastern District of California,

20

against Defendants and a number of government officials who work for Defendants. Doc. 1.

21

Plaintiff voluntarily dismissed the individual government officials. Doc. 30. Against the three

22

remaining Defendants, Plaintiff’s complaint alleges they “are liable for having violated the term &

23

condition of Mr. Barapind’s surrender and their resulting legal duty not to subject him to torture as

24

defined by the Convention...Consequently the Government of India and the other defendants are

25

liable to Mr. Barapind for damages resulting from the torture he has and is experiencing.” Doc. 1,

26

Complaint, 26:4-26.

27
28

Defendants filed a motion to dismiss on a number of grounds; most notably, Defendants
argue a lack of subject matter jurisdiction as Defendants are entitled to sovereign immunity. Doc.
2

1

40-1. Plaintiff opposes the motion. Doc. 41. After Defendants filed a reply, Plaintiff requested

2

leave to make additional filings to present evidence. Doc. 51. The request was granted, which

3

allowed for a complete factual briefing on the issue of sovereign immunity. Doc. 57.

4
5
6

II. Legal Standard
Fed. Rule Civ. Proc.12(b)(1) allows a motion to dismiss for lack of subject matter

7

jurisdiction. It is a fundamental precept that federal courts are courts of limited jurisdiction.

8

Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equipment & Erection

9

Co. v. Kroger, 437 U.S. 365, 374 (1978). The plaintiff has the burden to establish that subject

10

matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994);

11

Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). This burden, at

12

the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the

13

court to assert subject matter jurisdiction over the action. McNutt v. General Motors Acceptance

14

Corp., 298 U.S. 178, 189 (1936); Fed. R. Civ. P. 8(a)(1). A Rule 12(b)(1) jurisdictional attack

15

may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

16

This case deals with a factual challenge, which permits the court to look beyond the

17

complaint. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “[I]n a factual attack, the

18

challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal

19

jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Once the

20

moving party has converted the motion to dismiss into a factual motion by presenting affidavits or

21

other evidence properly brought before the court, the party opposing the motion must furnish

22

affidavits or other evidence necessary to satisfy its burden of establishing subject matter

23

jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); Savage v.

24

Glendale Union High School, Dist. No. 205, Maricopa County, 343 F.3d 1036, 1040 n.2 (9th Cir.

25

2003). In resolving a factual attack on jurisdiction, the district court may review evidence beyond

26

the complaint without converting the motion to dismiss into a motion for summary judgment. Safe

27

Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “No presumptive truthfulness

28

attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the
3

1

trial court from evaluating for itself the merits of jurisdictional claims.” Thornhill Publishing Co.

2

v. General Telephone Electronics, 594 F.2d 730, 733 (9th Cir. 1979).

3
4

III. Discussion

5

The Foreign Sovereign Immunities Act (“FSIA”) states that “a foreign state shall be

6

immune from the jurisdiction of the courts of the United States and of the States except as

7

provided in sections 1605 to 1607.” 28 U.S.C. § 1604. In relevant part, sovereign immunity does

8

not apply when “the foreign state has waived its immunity either explicitly or by implication.” 28

9

U.S.C. § 1605(a)(1). A “foreign state” includes “a political subdivision of a foreign state or an

10

agency or instrumentality of a foreign state.” 28 U.S.C. § 1603(a). FSIA is “the sole basis for

11

obtaining jurisdiction over a foreign state in our courts.” Argentine Republic v. Amerada Hess

12

Shipping Corp., 488 U.S. 428, 434 (1989). In this case, it is not contested that FSIA applies to all

13

three Defendants. See Doc. 41, Plaintiff Opposition, 9:8-9.

14

Plaintiff argues the GOI implicitly waived sovereign immunity as part of the Agreement.

15

Plaintiff does not claim that the extradition itself constitutes waiver, but rather the promise not to

16

torture:

17
18
19
20
21
22

Mr. Barapind’s jurisdictional showing does not rest on the defendants’ exercising
their rights under the extradition treaty, but rather rests on the defendants’
agreement that they would not subject him to treatment defined as torture under the
Convention. Contrary to defendants’ assertion, Mr. Barapind does not rest this
court’s jurisdiction on defendants’ invoking their rights under the extradition treaty
between the United States and India. Instead, Mr. Barapind rests this Court’s
jurisdiction on his invocation of his rights under FARRA, the Convention, and its
implementing regulations that resulted in defendants voluntarily entering and
agreeing to the terms of his surrender that they would not subject him to torture as
defined by the Convention.

23

Doc. 41, Plaintiff Opposition, 18:17-25. There are three classic situations where waiver applies:

24

“we generally find an implied waiver in only three circumstances: (1) a foreign state has agreed to

25

arbitration in another country; (2) a foreign state has agreed that a contract is governed by the law

26

of a particular country; and (3) a foreign state has filed a responsive pleading in a case without

27

raising the defense of sovereign immunity.” Presidential Comm’n on Good Gov’t v. United States

28

Dist. Court for the Dist. of Haw., 309 F.3d 1143, 1151 (9th Cir. 2002), citing Joseph v. Office of
4

1

the Consulate General of Nigeria, 830 F.2d 1018, 1022 (9th Cir. 1987). The case at hand does not

2

fall into any of those three paradigms. However, the Ninth Circuit has said that for implied

3

waivers more generally, “the essential inquiry in written agreement cases is whether a sovereign

4

contemplated the involvement of United States courts in the affair in issue.” Siderman de Blake v.

5

Republic of Argentina, 965 F.2d 699, 721 (9th Cir. 1992). Thus, the determinative issue is how

6

the GOI and the Department envisioned the Agreement would be enforced.

7

With reference to that precedent, Plaintiff argues “In this case we have an assiduously

8

negotiated agreement that was consummated in order to protect Mr. Barapind’s liberty interest

9

under United States domestic law, namely [Convention and FARRA] and, disputes under the

10

agreement could only conceivably be heard in the United States court, because, as the parties

11

agree, the Convention has no place in India’s judicial system. Under the precedent of the Ninth

12

Circuit, and that of its sister courts, these are the only ingredients necessary to establish an implicit

13

waiver of sovereign immunity under § 1605(a)(1).” Doc. 41, Plaintiff Opposition, 16:4-13,

14

citations omitted. In essence, Plaintiff argues the Agreement was centered around United States

15

domestic law and implicitly specified United States courts for enforcement. Plaintiff is wrong on

16

both of these two points: the Agreement was based upon the Convention as applied in Indian law

17

and implicitly suggests that Indian courts are the appropriate venue for relief.

18

Again, the Agreement is not one set written contract but rather a series of diplomatic notes

19

in 2005 and 2006 that described Plaintiff’s forthcoming treatment in Indian custody. The parties

20

have provided the text of some of these notes. Of note, the representations of the GOI were

21

reproduced in internal Department memos between Washington, D.C. and the American Embassy

22

in New Delhi:

23
24
25
26
27
28

With reference to the requested extradition of Kulbir Singh Barapind (referred to in
the Indian note as Kulbir Singh Kulbeera aka Barapind) and USC obligation under
the Convention Against Torture, the MEA has provided the following diplomatic
note:
Begin text of MEA Diplomatic Note T-413/11/2004, dated 6 February 2006:
The Ministry of External Affairs presents its compliments to the Embassy
of the United States of America in New Delhi and with reference to their
Note Verbale No. 06/054/Pol dated 18th January, 2006 has the honour to
state that in the context of the extradition of Kulbir Singh Kulbeera @
5

Barapind, India has signed the Convention against Torture and other Cruel,
Inhuman or Degrading treatment or Punishment, 1984. As a signatory,
India has good-faith obligation not to act against the objectives and
purposes of the Convention.

1
2
3

The Indian Constitution provides for the protection of life and personal
liberty. It guarantees accused persons the right to be defended by a legal
practitioner of his or her choice. India has legislation for the protection of
human rights. The National and States Human Rights Commissions can
visit prisons and can enquire on their own initiative or on a petition into any
complaint of human rights violation. Indian criminal law prohibits the use
of force or causing hurt to extort confession. Persons violating these
provisions are subject to prosecution and imprisonment. Extracts from the
Indian Penal Code of relevant sections are enclosed.

4
5
6
7
8

Further, family members, attorneys of a person extradited to India as well as
the Human Rights Commissions have access to them. Officials of the
country extraditing a fugitive may also have access on a reciprocal basis.

9
10

Thus Kulbir Singh Kulbeera aka Barapind on extradition to India will be
dealt in accordance with the law. He will be entitled to all rights of defense,
protection, and remedies available and shall not be subjected to any kind of
torture.

11
12
13

Doc. 63-1, Feb. 9, 2006 Memo, 80-81. A short while later, the GOI reiterated its position:

14

Subject: FOLLOW-UP ON BARAPIND EXTRADITION ASSURANCES

15

....

16

Begin text of MEA [GOI] Diplomatic Note T-413/11/2004, dated 28 March 2006:

17
18
19
20
21
22
23
24
25
26
27
28

The Ministry of External Affairs presents its compliments to the Embassy
of the United States of America in New Delhi and with reference to their
Note Verbale No. 06/254/Pol dated 7th March 2006 regarding Mr. Kulbir
Singh Kulbeera aka Barapind, has the honour to reiterate, as conveyed in
this Ministry’s note dated 6th February 2006, that Mr. Kulbir Singh
Kulbeera aka 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 against Torture and other Cruel, Inhuman or
Degrading treatment or Punishment, 1984.
As we conveyed in the Note Verbale dated 6th February 2006, 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 but the
mental derangement/sufferings also. Persons violating these provisions are
subject to prosecution and imprisonment.
Once Mr. Barapind is extradited to India, the US Government will be
informed about the status of the criminal trial against him for the alleged
offenses in accordance with the provisions of the Indo-US Extradition
Treaty. Article 21 of the Treaty provides for consultation in connection
6

with the processing of individual cases and improving procedures to the
implementation of the Treaty.

1
2

....

3

We note that the GOI response does not explicitly mention coordination with
Punjab authorities to ensure Barapind’s humane treatment, except to reiterate in the
first two paragraphs that Indian law provides for his humane treatment and that
persons violating this law are subject to prosecution and imprisonment.

4
5
6

Doc. 63-1, March 30, 2006 Memo, 222-23. There is absolutely no hint that either the GOI or the

7

Department conceived of the prohibition against torture being enforced through the United States

8

court system; if anything, the suggestion is that enforcement would be carried out through the

9

operation of Indian law in the Indian court system. The text limits further Department

10

involvement to the provisions of the Indo-US Extradition Treaty. Again, Plaintiff disclaims any

11

assertion that the operation of that extradition treaty constitutes waiver of sovereign immunity.

12

This understanding of the Agreement is consistent with the operation of prior agreements

13

between the Department and the GOI to ensure that extradited persons were not subject to torture.

14

In an internal Department memorandum, a prior agreement regarding other persons subject to

15

extradition was discussed:

16
17
18
19
20

In making this argument, it states that on at least two prior occasions, India failed to
honor diplomatic assurances that it would not torture Sikhs extradited to India by
United States. In particular, the submission cites the cases of Daha Singh Sandhu
and Kamaljit Kaur Sandhu, both of whom were extradited to India in 1997 after the
USG had procured assurances from the GOI that they would be afforded
protections under the Indian Constitution and laws prohibiting torture and
protecting persons against torture and degrading and inhuman treatment; the right
to counsel; and the right to have counsel, family and representatives of the Indian
Human Rights Commission visit them while in custody.

21

Doc. 63-1, Dec. 9, 2005 Memo, 202, emphasis added. The Department’s view was that

22

individuals had to seek recourse under Indian law.

23

Some indication that the Agreement intended for disputes to be resolved in United States

24

courts is indispensable for finding implied waiver. “Waiver by contract is premised on an

25

agreement by the parties that the United States courts may become involved in disputes arising

26

pursuant to the contract. Where an agreement contemplates adjudication of a dispute by the

27

United States courts, the waiver exception should be applied, regardless of whether the governing

28

law is explicitly identified.” Joseph v. Office of the Consulate General of Nigeria, 830 F.2d 1018,
7

1

1023 (9th Cir. 1987), citations omitted. While United States law need not be directly referenced,

2

there must be evidence showing the parties’ intent to resort to United States courts. “[C]ourts

3

rarely find that a nation has waived its sovereign immunity without strong evidence that this is

4

what the foreign state intended.” Corporacion Mexicana de Servicios Maritimos, S.A. de C.V. v.

5

M/T Respect, 1996 U.S. App. LEXIS 22068, *15 (9th Cir. Aug. 28, 1996), amended opinion of 89

6

F.3d 650, quoting Rodriguez v. Transnave Inc., 8 F.3d 284, 287 (5th Cir. 1993).

7

Generalized statements concerning relief do not waive sovereign immunity in the absence

8

of some tie to the courts of the United States. In one case, the country of Libya provided a letter

9

which stated “Despite the fact that discussion of the question of compensation is premature, since

10

it would only follow from a civil judgement based on a criminal judgement, Libya guarantees the

11

payment of any compensation that might be incurred by the responsibility of the two suspects who

12

are its nationals in the event that they were unable to pay.” Smith v. Socialist People’s Libyan

13

Arab Jamahiriya, 101 F.3d 239, 245 (2nd Cir. 1996). The Second Circuit determined this

14

language did not constitute an implied waiver as it “contains no express or indirect reference to a

15

waiver of sovereign immunity.... If a foreign state undertook to guarantee payment of a judgment

16

entered against its nationals in a United States court, the argument for an implied waiver would be

17

much stronger. A generalized undertaking to pay the debt of a national, however, does not imply

18

that the guaranteeing state agrees to be sued on such an undertaking in a United States court.”

19

Smith v. Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239, 245-46 (2nd Cir. 1996). In the

20

case at hand, the GOI similarly provided a general guarantee of Plaintiff’s humane treatment; there

21

is no implication that the guarantee is to be enforced in United States courts. Agreeing to abide by

22

the Convention, an international treaty, does not automatically mean agreeing to have United

23

States courts adjudicate compliance with the Convention. Plaintiff has presented nothing that

24

suggests the involvement of United States courts was contemplated by the GOI or the Department.

25

Plaintiff’s position is that the Agreement implicated United States law through FARRA:

26

Mr. Barapind exercised his right under the Convention and FARRA implementing
regulations. He submitted evidence in support of his effort to seek protection under
the Convention and actively participated in the proceedings prescribed under
FARRA’s implementing regulations. And in turn, defendants voluntarily agreed to
safeguard Mr. Barapind’s right under FARRA by agreeing not to subject him to

27
28

8

1

torture as a term and condition of his surrender.

4

Defendants thus voluntarily undertook a legally cognizable duty to Mr. Barapind
based on his exercise of his rights under the law of the United States. Specifically,
under FARRA’s implementing regulations, 22 C.F.R. § 95.3(b), the defendants
voluntarily agreed to the condition imposed by the Secretary of State on Mr.
Barapind’s surrender that defendants would not subject him to treatment that
constitutes torture as defined by the Convention. 22 C.F.R. § 95.3(b)

5

....

6

The fact that defendants voluntarily assented to the terms and conditions of Mr.
Barapind’s surrender pursuant to United States domestic law, as opposed to a
commercial contract, does not diminish the force of the agreement. To the contrary,
the fact that the agreement was entered pursuant to United States domestic law
enhances it. In other words, defendants’ voluntary assent under 22 C.F.R. § 95(b)
to protect Mr. Barapind’s rights under the Convention and FARRA constitutes a
more compelling basis for finding an implicit waiver than finding such a waiver
under a commercial contract.

2
3

7
8
9
10
11

Doc. 63, Plaintiff Sur-Reply, 12:7-13:2. Here, Plaintiff conflates two separate discussions: his

12

communications with the Department in 2005 concerning FARRA standards and the diplomatic

13

notes between the GOI and the Department concerning the Convention. While much of the

14

material submitted by Plaintiff addressed the legal requirements of FARRA (Doc. 63-1), that

15

material does not govern the duties set out in the Agreement between the GOI and the Department.

16

The Agreement was not negotiated between Plaintiff and the GOI. Again, none of the evidence

17

surrounding the Agreement suggests that the GOI bound itself to comply with FARRA.

18

Plaintiff is a third party beneficiary of the Agreement. The Seventh Circuit has stated

19

“courts rarely find that a nation has waived its sovereign immunity, particularly with respect to

20

suits brought by third parties, without strong evidence that this is what the foreign state intended.”

21

Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 377 (7th Cir. 1985). In his 2005

22

communications with Department, Plaintiff himself implicitly recognized that he would not be

23

able to enforce the diplomatic assurances in United States courts; his attorney argued that FARRA

24

prohibited his extradition as “Mr. Barapind would have no legal standing to challenge any

25

violations of diplomatic assurances between the United States Government and the Government of

26

India because he is not a party to the agreement. Further, assurances are not legally binding and

27

so, even the United States would not be able to enforce the provisions. Because assurances cannot

28

be enforced, they are meaningless, as Daya Singh Sandhu’s and Kamaljit Kaur Sandhu’s
9

1

experiences demonstrate, to protect Mr. Barapind from torture by Indian officials. Diplomatic

2

assurances, thus, cannot protect Mr. Barapind from torture.” Doc. 63-1, Application of Kulvir

3

Singh Barapind for Relief Under the Convention Against Torture to Deny His Extradition to the

4

Indian Government, 44. Plaintiff’s status as a third party is another factor that weighs against a

5

finding of implied waiver.

6
7
8
9

IV. Order
Defendants’ motion to dismiss for lack of subject matter jurisdiction due to the assertion of
sovereign immunity is GRANTED. The Clerk of the Court is directed to close this case.

10
11
12

IT IS SO ORDERED.
Dated: September 26, 2014
SENIOR DISTRICT JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10