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Chen v. China Central Television

August 9, 2007

GANG CHEN, DOES 1-3, WENBO ZOU, HUIMIN WANG, XIN LI, CHNGZHEN SUN, AND OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
CHINA CENTRAL TELEVISION AND DOES 1-5, DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge

OPINION & ORDER

Plaintiffs Gang Chen, Does 1-3, Zou Wenbo, Huimin Wang, Xin Li, and Changzhen Sun ("Plaintiffs") move for entry of a default judgment in their action against China Central Television ("CCTV"),*fn1 an instrumentality of the government of the People's Republic of China ("PRC"). Plaintiffs, who are residents of the PRC, refugees from the PRC, or aliens who visit the PRC, allege they were subjected various violations of internationally recognized human rights, including, inter alia, genocide, torture, arbitrary arrest and imprisonment, and religious persecution. The identities of the actual individual perpetrators of these acts are not provided, but Plaintiffs claim that television programs produced and aired by CCTV aided, abetted, and contributed to the alleged human rights abuses. Plaintiffs assert subject matter jurisdiction based on the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, and the Torture Victims Protection Act of 1991 ("TVPA"), Pub. L. No. 102-256, 106 Stat. 73 (1992), codified at 28 U.S.C. § 1350 note (Supp. V 1993).

An organization which styles itself as "The All China Lawyers Association" ("ACLA") submits "suggestions" to the Court, allegedly pursuant to Fed. R. Civ. P. 12(h)(3), that the Court lacks subject matter jurisdiction over this action. Plaintiffs oppose the ACLA's involvement, and, with the Court's permission, submitted additional briefing on the jurisdictional issue. The Court does not rely on the ACLA's submissions, and so does not determine whether its attempted involvement is proper. The Court does, however, find that it lacks subject matter jurisdiction, and must therefore dismiss the Complaint sua sponte.

RELEVANT FACTS*fn2

Plaintiffs are practitioners of Falun Gong, a spiritual meditation practice banned by the PRC. Each of the Plaintiffs generally alleges the wrongs and abuses suffered because of their Falun Gong practices: "unlawfully imprisoned" (Compl. ¶ 13); "brainwashing and torture nearly to death" (Id. at ¶ 14); "severe degradation" (Id. at ¶ 15); and "severely persecuted, tortured and left handicapped" (Id. at ¶ 17). These allegations are elaborated on at some length in the Complaint. Id. at ¶¶ 19-27. All the aforementioned activities are said to be a part of a PRC policy of "disintegrating and eradicating the Falun Gong movement." Id. at ¶ 28.

As part of this "national policy" originated and orchestrated at the highest levels of the PRC, its state-owned television station, CCTV, produced, broadcasted and disseminated material designed to "organize and support" the anti-Falun Gong abuses, and to "mobilize the public to become actively involved in the persecution" of Falun Gong practitioners. Id. at ¶ 31. CCTV's programs were also intended to instigate and incite security officials against Falun Gong practitioners. The CCTV material included programs "stress[ing] the need to use violence and torture to 'transform' Falun Gong practitioners," id. at ¶ 2, and systematically portraying the Falun Gong as "violent and dangerous criminals and murderers who must be eradicated." Id. at ¶ 10. In engaging in this "campaign of propaganda," id. at ¶ 20, CCTV was "acting in concert with the Central Committee of [the ruling Chinese Communist Party ("CCP")], the Ministry of Propaganda," and "Office 610, the office established by the Chinese Communist Party and its former chair, Jiang Zemin, to carry out the campaign of persecution.." Id. at ¶¶ 1, 31. In fact, CCTV is "the mouthpiece of the Chinese Communist Party and has followed its plans and mandates as well as those of the Central Propaganda Department." Id. at ¶ 32.

CCTV programs were also used as a "key and integral element of the torture and brainwashing" practiced upon Falun Gong practitioners. Id. at 11. In particular, practitioners were forced to sing the "Same Song," a theme song from the CCTV show of the same name. Similarly, when an individual signed a "guarantee statement" promising not to practice Falun Gong, the Same Song was sung in unison to celebrate his "transformation." Id. at ¶ 27. The Same Song program was transferred to the stage and performed in New York at Radio City Music Hall on January 23, 2006 under the direction of a CCTV employee.*fn3

DISCUSSION

Before turning to the lack of subject matter jurisdiction that bars the Court from adjudicating Plaintiffs' claims, the Court will briefly address certain other important issues which suggest the Court should in any event be reluctant to proceed with this case.

First, even if the Court possessed subject matter jurisdiction over the matter, it is questionable whether it would possess personal jurisdiction over CCTV. In cases involving foreign states or their instrumentalities, personal jurisdiction exists under 28 U.S.C. § 1330(b) whenever the Court has subject matter jurisdiction and service has been made under 28 U.S.C. § 1608. Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 308 (2d Cir. 1981) ("subject-matter jurisdiction plus service of process equals personal jurisdiction."). Here, service was effectuated by personal service to Liu, the CCTV employee apparently directing the "Same Song" production at Radio City Music Hall, service by Federal Express to cable and satellite companies carrying CCTV broadcasts in the United States, and international service under the Hague Convention which the PRC Ministry of Justice declined to deliver. It is far from clear that the road manager of the "Same Song" performance and arms-length re-broadcasters of CCTV programs constitute its "managing agents" for purpose of service, even assuming they were all properly served themselves. As to the service on the Ministry of Justice, while Plaintiffs assert that the Ministry must have informed CCTV of the Complaint, knowledge of a lawsuit is not a substitute for service of process.

Second, a number of Plaintiffs' claims rest on foundations rejected by the Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). Plaintiffs' claimed violations of "freedom of thought, conscience, and religion, and the freedom to hold opinions without interference, and to associate freely," Compl. ¶ 50, for example, are explicitly based on the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which the Supreme Court held did not create a cause of action under the ATS. Sosa, 542 U.S. at 734-35. Moreover, the breadth of this asserted cause of action is totally at odds with the Court's call for "restraint in judicially applying internationally generated norms." Id. at 725.

These jurisdictional and substantive deficiencies of the Complaint are not before the Court, however, as CCTV has not made even a limited appearance in this matter to raise them. Such questions are, in any case, irrelevant unless the Court first determines that it possesses subject matter jurisdiction over this action. The Court now turns to that question.

I. The Court's Obligation to Establish Subject Matter Jurisdiction

"From the Nation's founding., foreign states were 'generally granted ... complete immunity from suit' in United States courts, and the Judicial Branch deferred to the decisions of the Executive Branch on such questions." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 n. 1 (1989) (quoting Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983). The FSIA codified and clarified the "restrictive" theory of foreign sovereign immunity, which recognizes several exceptions to immunity from suit, that was adhered to by the State Department after 1952, while removing the necessity for judicial consultation with the Department. The ...


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