Xiaoning et al v. Yahoo! Inc, et al

Filing 65

MOTION to Dismiss Plaintiffs' Second Amended Complaint filed by Yahoo! Inc.. Motion Hearing set for 11/1/2007 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Attachments: # 1 Appendix A# 2 Exhibit A# 3 Exhibit B-E# 4 Exhibit F-H# 5 Appendix B# 6 Exhibit 1# 7 Exhibit 2-3# 8 Exhibit 4-12)(Petrocelli, Daniel) (Filed on 8/27/2007)

Xiaoning et al v. Yahoo! Inc, et al

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EXHIBIT F

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TME

LEGAL ADVISER

DCPA,~TMENT OF" STATE

July 24:2006 Hon.Peter D. Keisler Assistant Attorney General Civil Division United States Department Justice of Washington, D.C. 20530 Re: Li g/eixttm, et aL v. I3o )filaii No.! :04CV00649 (DDC) DearMr.Keisler: Byletter dated February24, 2006, U.8. District Court Judge RichardJ. Leon solicited the Department State's viewsin connectionwith the above-referenced of suit, whichwasbroughtunder tlle Alien "l'or~ Stava*.e (ATS) the Torture VictimProtection and Act (TVPA). Specifically, Judge Leonasked for the Department State position on: (1) of whateffect, if zany,adjudicationof tiffs case will haveon the foreign policy of the United States; (2 the applicability of the act of state doctrine;and(3) if the court finds that case is j asticiable, the application of the ForeignSovereign Irranunities Act (FSIA). JudgeLeonasked that werespondeither directly or by statement of interest pursuant to 28 U.S.C. §517. A copy of his letter is enclosed (Enclosure A). Wehere provide our viewson the foreign policy consequences this litigation and request that this letter be of submittedto the court as an attachmentto a Suggestionof Irmmunity_ Statementof and Interest addressingthe legal issues.

Theplaintiffs allege that Clxincs=Minister of Commerce Xilai planned and Bo carried out serious human rights abuses agaEnstpractitioners oldie Falun Gong spiritual movement (FLG)in Liaoning Province. All plaintiff:s appear to be Chinesenationals who reside in r.he People'sRepublicof Chinaor in countries other than the UnitedStates. The~.assert that MinisterBo, acr.ing "undercolor of law" in his formerposition as Governor Liaoning,is responsible for these violations. All of the acts alleged inthe of complaintare said to have occurred within China. at the dire~ion of the Chinese goverranent, against Chinese nationals. Weare unawareof any connection betweenthe underlyingsuit and the UnitedStates.

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As Minister of Commerce, Xilai is nowresponsible for Ckina's commerce Bo and international trade, including international wadepolicy and ncgotiatiun. Theattempt to serve process on Minister Bo was madeat a time whenhe was Minister of Commerce (no longer Governor LiaoningProvince) and while he wason official diplomatic travel to of the United States as an active member the delegation of ChineseVice Premier WuYi of to the U.S.-Ckina Joint Commission Commerce Trade (JCCT)- a bilateral, on and governmentaconsultative forumthat addresses significant bilateral trade concernsand l promotescommercialopportunities between the United States and China. We understand front file Government China that the su.rnxnonsand complaintwere of physically thrust uponMinister Bo while he wasattending a U.S. - ChinaBusiness Councilreception in honor of Vice Premier WuYi and her delegation (see EnclosureB). Withoureference to the specific allegations in this suit, the Deparlxnent State t of has informedCNna, both publicly and privately, olios strong opposition to violations of the basic human rights of FLG practitioners in China. We have repeatedly called on Chinato respect the rights of all its citizens, including FLO adherents. TheDepartment of State's critical viewsof China'streatmentof the t:LOpractitioners are a matterof public record. See, e.g., Department State AnnualHuman of Rights Report for 2005. w-ww.state.eov/~drl/rls/hrrpt/2005/61065.htm (especially pages 22-23).

Althoughwe opposethe Chinese government'santi-FLOpolicies, webelieve that rids suit shouldbe dismissed.For U.S. courts to exercise jurisdiction over MinisterBoin the circumstancesof this case wouldbe inconsistemwittl international law and expectationsrelating to the immunities sta~es and their official representativesand of would seriously interfere v, ith the UnitedStates' ability to conductforeign relations. Moreover,it will undercut the U.S. government's efforts to engageChinaon human ri~hts issues, incIudingits treatment of the FLG. couldalso adverselyaffect U.S. It engagemenwith Chinaon a broad range of other issues, including counter-terrorism, law t enforcement, economicsand trade, traf~c~g in persons, adoption, narcotics suppression, and nuclear nonproliferation. Indeed, the instant lawsuit has akeadyhad a chilling effect on U.S.-China relations; I enclosea series of diplomaticnotes and letters that Chinahas sent the UnitedStates expressing its deep concernabout it 0~nclosaresB -

D).
1. TheDepartment State regards the April 2004visit of Minister Boto have of beena special diplomatic mission and considers Minister Bo to have beenan official diplomatic envoywhile present in the UnitedSrate~ on that special mission. Consistent with the rules of custornaryinternational law recognizedand applied in the UnitedStates and in furtheranceof the President's authority underArticle II of the Constitution, it is appropriate to recognizethe immunity a high-level ofiicial on a special diplomatic of missionfromthe jurisdiction of UnitedStates federal and state courts in a case such as rahis. In light of these considerations, the Department recognizesand allows the immunity of MinisterBoXilai fromthe jurisdiction of the UnitedStates District Court, including fromservice of process, duringthe period of his visit to the UnitedStates.

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Thepractical wisdom underlying this immuniw apparent. Diplomaticrelations is often turn on the ability of officials fromdifferent states to communicate meetwith and each other without harassmentor distraction. Indeed, the need for unhampered communication betweengovernmentsis often most critical whenthe disagreements beaveenthemare the greatest. If suits of this kind can be commenced U.S. courts in against a senior foreign government official present in the UnitedStates for government: to-governmenbusiness, the President will be deprivedof an essential foreign policy tool t and our ability to pursueour foreign policy objectives effectively will be slgnificantly underminedTheUnited States must be able to host foreign officials without the . prospectthat they may served with process in a civil suit. be Permittingsuits like this woulaalso be inconsistent with U.S. viewson the assertion of jurisdiction over U.S. government officials by foreign govemmems and courts. TheUnitedStates has madeclear m foreign governments it objects to service that of processon senior U.S. officials traveling overseas; wehaveinsisted, for example, that requests for documents informationabout official acts of U.S. representatives for and use in criminal investigations should be madegovernment-to-government through diplomatic or law enforcement channels, not by attempting to serve or obtain jurisdiction over the officials themselves,particularly whenthey are on temporaryvisits. Permitting this suit against Minister Bowouldbe inconsistent with our representations to other governmentsand could exposeU.S. officials visiting other countries to suits arising , from their performance official U.S. government of functions. 2. Theattemptedassertion of jurisdiction over Minister Bowhile he wasin the UnitedStates on official, bilateral busit~essat the invitation of the UnitedStates has had immediate adverse foreign policy consequences has directly interfered with the and President's authority, to conductforeign relations, includinghis authority to receive "Ambassadors other public ministers" (U.S. Const. Ar~. II, Section 3). The and Executiveoriginally invited Vice PremierWa to head a delegation to the United Yi States for bilateral consultardons an effort to further U.S. - China in trade relations. The attempt to serve Minister Bowhile he washere on that delegation undercutthat effort and elicited strong objections from China~whichcharacterized the purportedservice as an assault and questionedthe goodfaith of the UnitedStates in hosting the visit. Indeed, China'sLegal Adviserhas made cleat m methat, becauseof this litigation, he has recommended MiNsterBonot travel to the United States unless his immunitiesfrom that jurisdiction will be respected. 3. Theforeign policy problems created by this case are exacerbatedby the fact that it is, in effect, a suit against Chinaaboutacts taken in Chinaagainst Chinese nationals..any lawsuit that challengesthe policies and actions of foreign authorities in their own territory concerning their own citizens has an inherent potential to cause friction in foreign relations. Areviewof the complaint.inthis case makes clear its ambitionto challengenot only acts attributed to MinisterBo, but also the Chinese Government's anti-FLO policy, in general. S(_~.~, for exampIe,Compl. 1, alleging that ~ MinisterBo'sactions weretaken "in concert with other officials at the highest levels of the national government the People's Republicof China(PRC)and its ruling Central of

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Committeeof the Chinese Communist Party.") The fact that the lawsuit is effectively directed against the Chinese GoverrLrnen~ its official policies is confirmedwhenit is mad seen in the conte×t of the large numberof suits the FLGhave iNtiated against high-level Chinese officials in the United States and other countries. The FLGwebsite (flNustice.org) lists over sixty actions agains~ Chinese entities and officials. Lawsuits have been flied in South America, Africa, Asia and Europe (in over ten different Europeancountries), in addition to Canada,w'l~ere multiple suits havc been filed, and the UN~ed States, where Ne websi~e reports fifteen suits. In view of the Department of State's recognition of Minister Bo's immunityfrom the Court's jurisdiction and the significant adverse foreign policy implications of the further conduct oftkis suit, t~e Del~artmentof State asks that you submit to the Court an appropriate Suggestion of Immunityand Statement of Interest to obtain the prompt dismissal of the proceedings against Minister Bo. Sincerely,

EncIosures:

A. Letter from Hon. Richard J. Leon, U.S. District Court for the Disn-ic~ of Columbia, to Hon. John B. Bellinger, III, dated February 28, 2006. B. Diplomatic Note from the Embassyof the People's Republic of China to the U.S. Departmentof State, dated April 26, 2004. C. Letter from Liu Zhenmin, Director General of the Department of Treaty and l~.aw to Hon. William Taft, dated August 23, 2004. D. Letter from Li Zhaoxing, Minister of Foreign A_flairs, to Hon. CondoleezzaRice, dated March 30, 2006.

4

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Enclosure A

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February24, 2006

Honorable Jolm B. BeiIinger I17 Legal Adviser, Office of the Legal Adviser United States Departmentof State 2201 C Street, N.W. Washington, DC 20520 Li Weixum,eral. v. Bo Xi/ai, Civil Action No. 04-0649 (RJL) ~istfict Columbia) Dear Mr. Bellinger: OnApril 22, 2004, Li Weixum 3 other individual plaintiffs, each of whom a Falun and is Gongpractitioner, brought suit against Bo Xilai, current Minister of Commerce the of Peoplo's Republic of Chiiia ("PRC"), ander the ,Mien Tort Clain~s Act ("ATCA") and Torture Victims Protection Act ("T~v~A"). A copy of the complaint is enclose& The plaintiffs each have resided in or are currently residlng in the Liao Ni~gProvince of the People's Republic of China ("PRC") and claim that they have been subjected to various £brrns of persecution and abuse because of their support for Falun Gongpractitioners. Accordingto the plaintiffs, t~e alleged beatings and torture took place while the p[aintiffs were being held in detention centers located in Lia.o Ning Province. The defendant, Bo Xilai, previously served as governor oft_he Liao NJa~gProvince, and plaintiffs claim that Xilai supervised the detention centers and prison campslocated in the province where plaintiffs were aliegedly abused and "plmmed carried out a sustained and deliberate and set of policies and actions that resulted in ~e arbitrary and unlawf~l arrest, dctemion, . persecution: and in somecases execution, of the [p]laindffs." Xilai is currently the Minister of Commerce. Plaintiffs have brought the following causes o faction under ACTA "I-v-PA: (i) and Torture; (2) Genocide; (3) Depdvati0n 0fthe Right to Live; 4) Right to Liberty

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Honorable JohnB, Bellingerl~ February24,2006 Page 2 Security of Person and to be Free of Arbitrary Arrest and Imprisonment, (5) Freedom Thought, Conscience and Religion, and the Freedomto Hold Opinions Without Interference and to Associate Freely; and (6) Violations of the above-cited rights and protections as embodiedki customary international law. Wllile Xilai was served on April 22, 2004, in front of the Fairmont Hotel, 24-0! MStreet, N.W., Washington, DC, he has not responded in any capaciWto the complaint in this actiol~. Havingfailed to respond to the complaint: the Court emtered a default on July 28, 2004. Plaintiffs movedfor Default Judgment and Declaratory Judgment on 2February 4, 2005. This Court denied the motions on September 27, 2005 by minute order. The motion for Default Judgment ~d Declaratory Judgrnent is enclosed. Having reviewed the complainEplaintiff's motion and the relevmat iaw, the Court has determined that it would be appropriate to solicit ~e Departmentof State's opi~on on a numberof issues relevant to ~e resolutio~ of the action. In particular, r~e Court would: appreciate the Departmentof State's views on the followialg issues: Whateffect, if any, will adjudication of this suit have in the foreig~ policy of the Ullited States, specifically with the PRC? Wlaat is the Department State's position on thc applicability of the Act of of State Doctrine in this action? If the Court finds that the case is justiciable~ what is the Department of State's position on the application of the Foreign Sovereign Immunities Act ("FSIA")in this action? If the Departtaent of State believes a response to someor all of the above questions from the People's Republic of Ckina is appropriate, it mayinvite the appropriate representative thereof to submit its written views to the Court as well. The Court wouldgreatly appreciate the Deparmlentof State's consideration of th.is matter and a communicationfrom the Deparmaexltof State outla?4ng the Departmentof State's views and/or positio~as regarding these issues. TheCourt leaves to ?,our discretion wlaether your response is best submitted in ~e form of a ierter or a Statement of Interest filed pursuant to 28 U.S.C. § 517. A copy of any such response should be sent to : plaintiff's counsel as well. This letter in no wayinvites the Department State to litigate of this case on behalf of X_ilai. The Court wouldappreciate a response by April 23, 2006.

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Honorable John B. Bellinger I~[ February 24, 2006 Page 3 Thank you foryourconsideration thismatter yourcooperation. of and Very truly yours,

United States District

Judge

Enclosures co: MortonSklar, Esq., wlo enc.

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Enclosure B

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THE EMBASSY OF THE PEOPLE'S REPUBLIC OF CHINA
2380 C;~eoticUt Avenue, N.W, Washington; D.C. 20008

C~057/04The Embassy of ~e People's Republic of Chinapresents its oomplimentsto the Departmentof State of the "United States of Americaand has the honor to makea statement onthe following matter. At about 6:30 on the e~e~g of April 22, when Chinese Minister of Commerce Xilai and other membersof the ~ntoumge of Vice Premier Be WuYi were walking into the lobby of the Fairmont Hotel in Washington, D.C. on their way to the dtmner hosted by the U.S,-China Business Council, the National Carom[tree on U.S.-China Relations and the American Chamber of Commerce honor of the %rice Premier who came to the United States in for the 15~ Session of the China-U.S. Joint Commissionon Commerce and Trade (JCCT), an unidentified man suddenly rushed toward Minister Be and other members theCheese entourage, aud attempted to throw an object at of them. Ivfintster Be and other membersof the Chinese entourage swifdy dodged this physieMattack. Th~s man's act constituted a crimtnal assault, a grave threat to the personaI safety of Minister Be and other members the of Chinese entourage. Thereafter, the manattempted to escape fi'om the site, but was intercepted by U.S. police officer, Sergearti Regina A. Randolph. After taking his deposition, the manwanallowed to leave. It was following the consents reached by Premier Wen Jiabao and President George W. Bush mudat the express invitation of the U.S. G~vemmenthat Minister Be and other membersof the Chinese delegation t came to the United States with Vice Premier WuYi to attend the lfl ~ Session of the JCCT. The U.S. ~overament'had the full responsibility to ensure security and safety of M~ster Be and other delegation members during theLr stay in the United States. The Chinese s~de had repeatedly requested the U.S. side to ~ake necessary measures, including providing security details and safe and unobstructed passage for Minister Be, However, the U.S. side had ass~rted that Mtrdster Be had no see~rity risks in the United States and refused to do so, which has resulted in t~s crkutinal assauk and the ex-~emely unpleasant ~ituat~on_ The Chinese Governmenthereby expresses its strong dissatisfaction with the U.S. Government, and h~ maxte solemn representations with it.

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This year's JCCTm~eting is the first session since the level of efti~ials attendhag it having been raised, and it is of important significance for promoting China-U,S, econoric r~lafio~ trade as well as overall and bilateral ~elation~. The fact that t~e Chinese delegation was headed by Vice Premier Wux/t ~nd w~ composedof officials from over 10 departments of the Chinese Government, including 12 ~enior of~clals at ministerial and ~ice-mintsterial le'~els, fully demonstrates the high importance the Chinese Governmemhss attached to this JCCTsong[on, k should be stressed that t Mtnist~ Be, as the head of the Ministry of Commerce which is the Chinese organizer of the JCCTsession~ has pIayed an L~portant and active role in making the meeting ~ success, Regrettably howeve% due m ~e reasons of the U.8. side, the assault incident ~ieh should not have kappened took pla~e anyway. This tins not only done harm to the personal safety and dignity of Minister Be, but has also east a shadowover the exchanges and cooperation bet~'een China and the I/nlrted States and between the relevant governmental organizaflous of the two countries~ The Chinese Government strongly urges the U.S. Goverxmlen~ recogt~tze the gravity of this assault to incident, charge the !oolite with the responsibility to ilavestigate this matteg punish the attacker in aecordaraeewith the law, and ensure that sim_ilar e,xents will not reoccur in the future. The Embassy the People's Republle of China avails itself of this of oppommtty to renew to the Department of State of the United S~ates of Americathe assurances clots highest eonslderaflon.

Washin Department of State United States of America Washington, D.C.

,2004

The National Security Council The Departmentof Justice The Department o£ Commerce The Office of the Unlted States T;MeRepresentative

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Mr. William Taf~ Legal Advisor to US State Department Washington D.C. 20520-63 l0

Beijing, 23 August

Dear Mr. Taft,

I am writing to you on the attempted ~[awsuit" by the "Falun Gong" against Chinese Commerce Minister Bo Xilai a~ the US District the District Court for

of Columbia. Ag Direotor General of the Department of

Treaty. and Lawo~ China's Ministry of Foreign Affairs, I would like to inform you, officially, that the Cb.inese Government has decided, to

presen[ i~s position ~o the USside on this matter, presenting the truzh of the April
22 ~a incident

and explaining

i~s position

on the issue ol

sovereign immunity. [ would be much appreciative

if you could help

convey the position ~ttzched herewith to th~ above-mentioned cour:. ;n

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good ~ime. With best wishes.

Your Sincerely,

/.t.J . Liu Zhenmin Director General, Depam~aem Treaty and Law of Ministry of Foreign Affairs

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(Translation)

Position of the Chinese Governmenton the Assault and Attempted Frame-up by "galun Gong"Against NIinister Bo Xilai

The Governmentof China wishes to state its position on the assault and attempted frame-up by "Falun Gong" againstChinese Commerce

Minister Bo Xilai:

I. The April 22"~ incident Gong" element, court summons and ~linister

was an assault perpetrated by "Falun Bo Xilai was not "served" any US

In April 2004, acting on the agreement reached by Chinese Premier WenJiabao and US Yresid~-mt George W. Bush and at tb_e invitation the US Government, Chinese Commerce Minister Bo Xilai of

accompanied Vice Premier WuY~ to attend China-US Joint

the 154 Session of the

Commission on Commerce and Trade (JCCT). and his Chinese

about 6:30pm on April 22 he, Minismr Bo Xilai

entourage walked into the lobby ofthe Fairrnont Hotel in \Vashington D.C. on their wayto the dinner held by the US-Cnmar the National Committee on US-China Relations ' " Business' Council, and the American

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Chamber of Commerce. An unidentil~ed

adult

male: with an object

in

his hand, rnade a sudden and v[oten~ charge toward M~ni~ter ~o and Chinese entourage, sa[~t~. posin~ ~ serous ~reat to zhe M~nister's ~s a crimin~ persona(

The m~n's act could o~ly be described

A~ h~ tr~cd to fl~e th~ sc~ne, a US police o~cr by th~ namc
A. Randolph stogped and ~gprehend~d him. Neither ~in~ster Bo nor

any one of th~ Chines~ entourage

touched the object

the assaultan~

once held in his h~nd or ~ew anyrh~n~ about ~ and how i[ was tater disposed o£

Owing to the fail:ore

of the US Governmen~ to live

up to the

responsib{]ity security safety Ministcr during stayin for and of Bo his US, which resulted in th= above-mentioned assault, the

Govamme.nt has made solemn representations

to it accordingJy.

II. US courts have no jurisdiction "FMun Gong"

over the so-called

"lawsuit"

by

].

The principle equality,

of sovereign which forms

immunity is derived the cornerstone

from one of of modern

sovereign international international

law and is enshrined in ctear-cu~ terms in many important legal documents including the LrN Cb.a~er. Based on the

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principle

or par in parem no~ haSe~ juridiction~m

(between equal~

there is no jurisdiction), the cour~ of one State shall not accept a laws~lit in whicha foreign State is the defendant without the explicit consen,: of its government to give up jurisdictional immunity, Only when a

foreign State institutes

a proceeding b~fore a court of another State. or arising out of the same legal foreign State cannot

only when there is a counter-claim relationship

or facts as ~e principal claim,.tlae

invoke jurisdictional

irnmuni~. Even if a foreign Sta~e has lost the

case in the court of another State, it is not subject to measures of constraint. immunky. Such are the basic contents of the principle of sovereign

2. The principle

of sovereign immunity was universally

accepted

by countries in their judicial practices as early as in the 19~ century. The US was among the f?rs~ countries to follow such principle. The

Case of Schooner Exchange heard by the US Supreme Court in I982 and many other cases before US courts ~hereaf~er princl'ple. In international immunity,all upheld this

relations of the modem times, the principle as a universally '' re cogmzeo norm of

of sovereign international

Ia,~; is widely suppo','~ed by legislative

and judicial

practices of countries as well as by internmional legislation.

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3. h ~s Ch~n~'s ~ct of sm~e when ~he Chinese Oove~ment, ~c~n~ in co~=pliance with ~he Constitution "'Fa[un Gon~" cult, and laws of th~ [and, outlawed the

and when its go~e~ent offm~al_ perfo~ their to them by Chin~'s

duty in ~ccordance with ~he power: entrusted Con~itution =rid law~. Under the principle China's ~ct of state is entitled

of sovereign immunity, ~mmunityin the US to hear the

to jurisdictional

courts. And the US coup%therefore,

h~v~ no jurisdiction

so-called "lawsuit" by "Faiun Gong, mgainst Minister Bo XilaL

[1I. The negative impact of"Falun "~ n~," "lawsuit" on China-US ~o ~,
?

relations

Since the establishment of their diplomatic relations in 1979, China and the US have enjoyed increasingly cooperation in the political, broad and close exchanges and

economic, trade, scienoe and technology, and other fields, which

culture, narcotics control, counter..te~rorism

greatly promoted the well-being of the two people~ and effectively contributed to peace and stability
world at large.

in the Asia-Pacific region and the

China and the US are both major countries of global influences. They have had extensive and important commoninterests though not

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without some differences. t,~,.o-way

China-US relationship

has always been can

and mutually benet]cial

one. Such relationship

ahead along a sound arid steady course only when the tx~'o countries obse~'e such basic norms governing international respect for sovereignWand ~erritorial in the internal o['ficial affairs, relations as mutual

integrity, mutual non-interference As an important

equality m~dmutuMbenefit.

of the Chinese Government, Minister Be Xilai has made a huge ~o the development of China-US relations. The frame-up

contribution

"qa~usuit" by the "Falun Gong" cult against Minister Bo Xilai, who was a~tending a JCCT session a~ a guest of the US GovemmenL ,~as aimed not only at altacking i:he Chinese Governmentbut also obstructing the normal contact and the friendly cooperation between China and the US. The political sinister. motive behind the "Falun Gong" scheme cannot be more

Should the UScourt, adjudicate this knamped-up"lawsuit", it would send out a deadly wrong signal immeasurabte disruption to the "Falun Gong" cult. cause

to t~e normal bilateral

exchanges and

cooperation in the various fields, interests calls of the two countries.

and severely undermine the common Therefore, ~.he Chinese Government. of the "Faiun Gong" "lawsuit"

for the immediate dismissal

against Minister Bo Xilai.

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Enclosure D

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(Translation) Be~jing, 3o March2006 TheHonorabl~ Condoleezza " PJce Seo~etary ofState ¯ TheUS D~artment State of Wa~iu~ton. DC

Dear Dr, Rice, I amwriting to you concerning the unwarrantedIawsuit ned by Falun Gongagainst Chinese Commerce Minister Be Xilai at the Dis~ct Court for the District of Columbia, and I wish to draw your attention to the following 1, On22 Apr~2004, Minister Be Xilai, whowas visiting the United States as guest of the USGovernment,was assaulted by au individual sent by Falua Gong, wkich put the Minister's personal safety in great jeopardy. Neither Minister Be himse/fnor his a/ds touched the object the Falun Gongpersonnel held. They have not receipted ~uy documentfrom the US court, 2. Both the banning of the ~alun Gong odt by the Chinese Goverrtmontkt accordauc~with Ckina's Constitution and other laws and the discharging of thei~ duties by. Chinesb government o~t~cials in accordance with taw are acts of ~ exercising its sovereign rights. According to ia~'nafional law and tmiversatly recognized basic norms governing international relatioua, these acts are not subject to the jurisdiction of UScourts. The same conclusion oau be drawn from the ForeignSovereignImmun~tles of 1976oft.he Uuit~dStates. Act 3. Falun Gongis a cult madan ant~-Ckina political organization. In filing this frame-up case, FaIuu C~ongattempts to disrupt the grow~of Ch/na-US re~ons ~d normalpersonnel exch~ge between the two cov.u~es. China aud the United States are work-Lug to. develo~ a cons~tmt~veand cooperat£ve relationsttip in all fields. If Talu~ Gong shouldsucceedi~ .its frame-up lawsuit, China-US relation, especial/F, our economicand trade t~es as well as cooperat~o=between the relev',tut gover~maezt departments and persormel exchange, wi/1 be adversely

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affected. Theinterest of th~ UnitedStates will also be undermined, This is somethiug neither qfus want~to see.

Withb~.st regards,

.(Signed) "

Li Zhaox~g

~ter of Foreign Affairs People~'sRepubIi~of China

C Jul-Z4-OE ase 4:07-cv-02151-CW OS:Zlprn F,'orn-Oepartmant Document 65-5 of Stats L/DL L/T &

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FILED
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
AUG 20 2007
CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS

ALEXIS HOLYWEEK SAREI; PAUL E. NERAU; THOMAS TAMAUSI; PHILLIP MIRIORI; GREGORY KOPA; METHODIUS NESIKO; ALOYSIUS MOSES; RAPHEAL NINIKU; GABRIEL TAREASI; LINUS TAKINU, LEO WUIS; MICHAEL AKOPE; BENEDICT PISI; THOMAS KOBUKO; JOHN TAMUASI; NORMAN MOUVO; JOHN OSANI; BEN KORUS; NAMIRA KAWONA; JOANNE BOSCO; JOHN PIGOLO; MAGDALENE PIGOLO, individually and on behalf of themselves and all others similarly situated, Plaintiffs - Appellants, V. RIO TINTO, PLC; RIO TINTED LIMITED, Defendants - Appellees.

No. 02-56256 D.C. No. CV-00-11695-MMM

ALEXIS HOLYWEEK SAREI; PAUL E. NERAU; THOMAS TAMAUSI; PHILLIP MIRIORI; GREGORY KOPA; METHODIUS NESIKO; ALOYSIUS MOSES; RAPHEAL NINIKU; GABRIEL TAREASI; LINUS TAKINU, LEO WUIS;

No. 02-56390 D.C. No. CV-00-11695-MMM

ORDER

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MICHAEL AKOPE; BENEDICT PISI; THOMAS KOBUKO; JOHN TAMUASI; NORMAN MOUVO; JOHN OSANI; BEN KORUS; NAMIRA KAWONA; JOANNE BOSCO; JOHN PIGOLO; MAGDALENE PIGOLO, individually and on behalf of themselves and all others similarly situated, Plaintiffs - Appellees, V. RIO TINTO, PLC; RIO TINTED LIMITED, Defendants - Appellants.

Before: SCHROEDER, Chief Judge. Upon the vote of a majority of nonrecused regular active judges of this court,* it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.

*

Judges Hawkins and Wardlaw are recused.
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