The opinion of the court was delivered by: DIMOCK
This is a libel action. Plaintiff is a Venezuelan citizen residing in New York. Defendant now moves for summary judgment dismissing the complaint, on the ground of immunity of defendant by virtue of his status as Consul General of Venezuela in New York and his status as permanent representative of Venezuela to the United Nations with the rank of Envoy Extraordinary and Minister Plenipotentiary, and on the further ground that the court lacks jurisdiction of the subject matter because of defendant's status as such permanent representative. Defendant also moves 'to dismiss the action because the complaint fails to state a claim against defendant upon which relief can be granted, as more fully appears from all the documents attached' to the notice of motion.
An accredited resident representative to the United Nations, with the rank of Envoy Extraordinary and Minister Plenipotentiary is entitled in the territory of the United States to all privileges and immunities accorded to diplomatic envoys accredited to the United States. The Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations, Section 15, P.L. 357, 80th Congress, First Session, Joint Res. Aug. 4, 1947, c. 482, 61 Stat. 756, 762, provides:
'(1) Every person designated by a Member as * * * a resident representative with the rank of ambassador or minister plenipotentiary,
'(4) * * * shall, whether residing inside or outside the headquarters district, be entitled in the territory of the United States to the same privileges and immunities, subject to corresponding conditions and obligations, as it accords to diplomatic envoys accredited to it.'
Putting aside for the present the motion to dismiss for failure to state a claim, defendant raises questions of two kinds: the question of jurisdiction of the court over suits against diplomatic representatives and the question of the immunity of diplomatic representatives even though the court may have jurisdiction.
On the question of jurisdiction, the power of the District Court to entertain an action against a consul seems to be conceded, as indeed it must be perforce section 1351 of title 28 of the United States Code. The power to entertain actions against 'ambassadors or other public ministers of foreign states * * * not inconsistent with the law of nations' is, however, vested exclusively in the Supreme Court by section 1251.
On the question of immunity, a consul is not immune from suit except when the action is based upon acts which he has committed within the scope of his duties. The Anne, 3 Wheat. 435, 445, 4 L. Ed. 428; The Sao Vicente, 260 U.S. 151, 155, 43 S. Ct. 15, 67 L. Ed. 179; Lyders v. Lund, D.C.N.D.Cal., S.D., 32 F.2d 308; Carl Byoir & Associates v. Tsune-Chi Yu, 2 Cir., 112 F.2d 885, 886; Carrera v. Carrera, 84 U.S.App.D.C. 333, 174 F.2d 496, 498.
An ambassador or minister is, however, absolutely immune from suit even though it be based upon personal transactions. Magdalena Steam Navigation Company v. Martin, 2 El. & El. 94.
The court must, of course, determine its own jurisdiction without reference to the views of the Department of State. The questions of the diplomatic status enjoyed by a given defendant and the immunity to be accorded him are, however, questions where a determination of the Department of State is binding upon the court. United States of Mexico v. Schmuck, 293 N.Y. 264, 56 N.E.2d 577.
Having stated these principles, I return to the record in the particular case. The complaint alleges that, while plaintiff was exiled from Venezuela for political reasons, defendant publicized certain Venezuelan newspaper articles therein quoted which reflect unfavorably on the political, professional, social and moral standing of plaintiff. This is alleged to have been accomplished by posting in the consulate, by circularization to its mailing list and by personal distribution to visitors to the consulate and others.
When the action was commenced on March 16, 1956, defendant's only office under the Government of Venezuela was consul general. Nevertheless he communicated with the Venezuelan Ambassador in Washington and, as a result, the Venezuelan Ambassador wrote the Secretary of State a letter, dated April 10, 1956, requesting that the Department of State suggest to this court that the suit should be dismissed upon a plea of immunity on behalf of the Government of Venezuela. By a letter dated three days later, the Minister of Foreign Relations of Venezuela advised defendant, that, by order of the President and by order of that Ministry, defendant had been appointed Alternate Representative of the Delegation of the Republic of Venezuela before the United Nations with a rank of Envoy Extraordinary and Minister Plenipotentiary.
Upon the argument of the instant motion on May 17, 1956, the United States Attorney presented a copy of the letter of April 10, 1956, from the Venezuelan Ambassador to the Secretary of State, above referred to. That letter, it will be remembered, requested a suggestion to this court that the suit should be dismissed upon a plea of immunity on behalf of the Government of Venezuela. The paper was, however, presented to the court with the statement by the United States Attorney that it was transmitted by the Department of State without comment. The letter, having been written before the appointment of defendant as alternate representative of Venezuela at the United Nations, based its plea solely on the position of defendant as consul general. While not covered by the letter, the claim of immunity based on status as a United Nations representative was strongly urged on the argument. At the hearing and thereafter plaintiff submitted affidavits, argument and authorities, including In re Cloete, 65 L.T. 102, in support of his position that the appointment should be disregarded as merely colorable and made for the sole purpose of conferring immunity on defendant. Defendant submitted answering material.
On July 6, 1956, I wrote the Secretary of State calling attention to the new contention that was being made and the fact that the Department had expressly withheld comment when immunity was claimed only on a basis of consular status. I inquired whether the Department desired to make any comment to the court in the premises. Both parties to the action thereafter communicated with the Department of State in support of their contentions. On September 17, 1956, Hon. Herman Phleger, the Legal Adviser to the State Department, replied to me by letter which, after referring to the previous correspondence, stated:
'On July 10, 1956, a note, No. 1500, was addressed to the Secretary of State by the Venezuelan Ambassador in Washington. The Ambassador requested the Department of State to suggest to your ...