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Carpenter v. Republic of Chile

June 28, 2010

ROBERT CARPENTER, PLAINTIFF-APPELLANT,
v.
REPUBLIC OF CHILE, MINISTER OF JUSTICE, JUDGE BLANCA DEL CARMEN ROJAS ARANCIBIA (CRIMINAL COURT NO. 32, SANTIAGO, CHILE), COURT CLERK CARLOS BUSTOS VASQUEZ, MINISTERIO VISTADOR SR. LUIS BATES, MINISTERIO VISITADOR SR. ALFREDO PFEIFFER, BRITISH AIRWAYS PLC, DEFENDANTS-APPELLEES.



SYLLABUS BY THE COURT

Plaintiff appeals from a judgment of the United States District Court for the Eastern District of New York (Joanna Seybert, Judge) dismissing plaintiff's claims against the Republic of Chile, various government officials of Chile, and British Airways. Because the Supreme Court's recent opinion in Samantar v. Yousuf, --- S. Ct. ---, No. 08-1555, 2010 WL 2160785 (S. Ct. June 1, 2010) abrogated our prior holding that the Foreign Sovereign Immunities Act extends to officials of a foreign government acting in their official capacities, we vacate the judgment of the District Court insofar as it dismissed plaintiff's claims against the government officials of Chile.

Affirmed in part, vacated in part, and remanded.

Per curiam.

Submitted: June 21, 2010

Before: WINTER, CABRANES, and WESLEY, Circuit Judges.

Plaintiff Robert Carpenter appeals from an August 4, 2009 judgment of the United States District Court for the Eastern District of New York (Joanna Seybert, Judge) granting the motions to dismiss of defendants Republic of Chile; Minister of Justice; Judge Blanca del Carmen Rojas Arancibia; Court Clerk Carlos Bustos Vasquez; Ministerio Visitador Sr. Luis Bates; and Ministerio Visitador Sr. Alfredo Pfeiffer (jointly, "government officials of Chile"), and British Airways PLC ("British Airways").

In his complaint, Carpenter alleges that he was subject to abuse by the courts of Chile in a criminal case that was initiated in Santiago, Chile over ten years ago. He was prosecuted for fraud, but declared not guilty by the Chilean courts. He sued the Republic of Chile, various government officials of Chile, and British Airways in the Eastern District of New York to remedy these alleged wrongs. The District Court dismissed Carpenter's complaint against the Republic of Chile and the government officials of Chile because it concluded that the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et seq., barred the District Court from exercising jurisdiction over those defendants. The District Court also dismissed Carpenter's claims on behalf of, and against, British Airways for lack of standing and lack of jurisdiction. Carpenter now appeals.

A.

We first consider whether the District Court erred in dismissing Carpenter's complaint against the Republic of Chile for want of subject matter jurisdiction. We review the District Court's legal conclusions under FSIA de novo. See Robinson v. Gov't of Malaysia, 269 F.3d 133, 138 (2d Cir. 2001). Carpenter makes five arguments as to why the District Court erred.

First, he argues that the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350 note (a)(1),*fn1 effectively overrides the jurisdictional bar set forth in FSIA. We disagree. See Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. 2009) (holding that claims under the TVPA are still subject to the FSIA).

Second, Carpenter argues that the Republic of Chile lost its sovereign immunity under FSIA's exception for state-sponsored terrorist acts set forth in 28 U.S.C. § 1605A.*fn2 We have concluded, however, that a state must be designated a state sponsor of terrorism by the United States to fall under this particular exception. See In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 89 (2d Cir. 2008), abrogated on other grounds by Samantar v. Yousuf, --- S.Ct. ---, No. 08-1555, 2010 WL 2160785 (S.Ct. June 1, 2010). The Republic of Chile has not been designated a state sponsor of terrorism, so this exception does not apply.

Third, Carpenter argues that the Republic of Chile waived its sovereign immunity by joining various treaties. Any such waiver, however, must be clear and unambiguous, see Capital Ventures Int'l v. Republic of Arg., 552 F.3d 289, 293 (2d Cir. 2009), and Carpenter has not shown a clear and unambiguous waiver of immunity by Chile.

Fourth, Carpenter argues that his claim falls under the commercial activity exception to FSIA set forth in 28 U.S.C. § 1605(a)(2).*fn3 The only commercial activity in which he alleges the Republic of Chile engaged was that of requiring a five-dollar fee to enter the consulate of the Republic of Chile in New York; we conclude that this argument is frivolous.

Fifth and finally, Carpenter argues that the international law doctrine of jus cogens provides a further exception to FSIA. We have held that "there is no general jus cogens exception to FSIA immunity." Matar, 563 F.3d at 14.*fn4 Accordingly, we conclude that the District Court did ...


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