The opinion of the court was delivered by: TENNEY
Plaintiff Alexander S. Yessenin-Volpin, "a persistent defender of the civil and human liberties of the Russian people," Complaint para. 5, commenced this action in New York State Supreme Court seeking damages for libel against defendants TASS Agency ("TASS"), Novosti Press Agency ("Novosti") and The Daily World, a newspaper of the Communist Party of the United States. By petition filed February 9, 1977, TASS removed the action to this Court. Defendants TASS and Novosti now move for the dismissal of this action on the grounds: (1) that they are immune from the jurisdiction of this Court with respect to the acts alleged in the complaint under the Foreign Sovereign Immunities Act of 1976 ("Immunities Act"), 28 U.S.C. §§ 1602-11; (2) that the Court lacks personal jurisdiction over the defendants; and (3) that the complaint fails to state a cause of action against these defendants. For the reasons set forth below, the Court concludes that TASS and Novosti are entitled to claim sovereign immunity with respect to the claims against them in this action and that the case against them must therefore be dismissed for want of jurisdiction.
The Immunities Act
establishes a comprehensive procedure whereby a plaintiff may bring a foreign state or one of its political subdivisions, agencies or instrumentalities before an American court, either federal or state, obtain a ruling on the sovereign immunity of that entity, and, if immunity is found not to exist, secure an adjudication and satisfaction of its claims. The Act's central feature is its specification of categories of actions for which foreign states are not entitled to claim the sovereign immunity from American court jurisdiction otherwise granted to such states. These exceptions are contained not in the sections of the Act which describe the grounds on which jurisdiction may be obtained, however, but are phrased as substantive acts for which foreign states may be found liable by American courts. This effects an identity between substance and procedure in the Act which means that a court faced with a claim of immunity from jurisdiction must engage ultimately in a close examination of the underlying cause of action in order to decide whether the plaintiff may obtain jurisdiction over the defendant.
The Court's attention must first focus, however, on whether the entity sued may be classified as a "foreign state" within the meaning of 28 U.S.C. § 1603 and thus invoke in any set of circumstances the protection of the Immunities Act. In this case both TASS and Novosti have claimed such protection.
Status as a "Foreign State"
There seems to be little doubt concerning TASS's status. Anatoliy F. Dobrynin, the Ambassador of the U.S.S.R. to the United States, has certified to the Court that TASS, whose full name is the "Telegraph Agency of the Soviet Union of the USSR Council of Ministers," is "the organ of the Soviet State, that is of the Union of Soviet Socialist Republics." Certificate dated February 4, 1977. The plaintiff admits that TASS comes within the definition of "foreign state" in section 1603. Memorandum 4. Thus, there is no dispute: TASS is entitled to claim the protection of the Immunities Act.
The plaintiff is unwilling, however, to concede the same status to Novosti. Novosti argues that it must be classified as an "agency or instrumentality of a foreign state" (and thus within the more general definition of "foreign state"), since it meets the three criteria set forth in section 1603(b). The plaintiff agrees on two of the three criteria: Novosti is "a separate legal person" within the meaning of section 1603(b)(1), since its "Statute" or charter clearly establishes its existence as a separate "jurisdical person" which opens bank accounts, acquires and alienates property and concludes contracts in its own name. Novosti Press Agency Statute ("Novosti Statute") § III(8), appended as Exhibit I to Affidavit of Martin Popper, sworn to March 14, 1977 ("Popper Affidavit"). The plaintiff also agrees that Novosti is not a citizen of any state of this country, as set forth in section 1603(b)(3). Thus, the dispute over the classification of Novosti must focus on the last of the three provisions, which requires that an "agency or instrumentality of a foreign state" be an entity
which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof . . . .
Unfortunately, this definition, which seems designed to establish the degree of the foreign state's identification with the entity under consideration, is ill-suited to concepts which exist in socialist states such as the Soviet Union.
Novosti, as the Novosti Statute sets forth, is "an information agency of Soviet public organizations . . . operating under Articles 125 and 126 of the Constitution of the U.S.S.R." Novosti Statute § I(1). These constitutional articles guarantee freedom of the press to the citizens of the U.S.S.R. through their control of communications facilities (Art. 125) and also guarantee to the citizens "the right to unite in mass organizations" such as Novosti. (Art. 126). Novosti's organizational structure consists of three bodies of ascending size and descending responsibility which govern the organization. These bodies are made up of delegates elected from Novosti's "Sponsors": the Union of Journalists of the U.S.S.R., the Union of Writers of the U.S.S.R., the Union of Soviet Societies of Friendship and Cultural Relations with Foreign Countries and the U.S.S.R. Znanie Society. Novosti Statute § II(4). The stated purposes of Novosti include, inter alia, entering into contracts with ...