Helen LIU, in her individual capacity, as heir and special
administrator of the estate of Henry Liu, and as
guardian ad litem for George Liu,
Plaintiff-Appellant,
v.
The REPUBLIC OF CHINA, Defendant-Appellee.
No. 87-2976.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Dec. 14, 1988.
Decided Dec. 29, 1989.
Gеrard E. Harper and Arthur L. Liman, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Jerome Garchik, San Francisco, Cal., for plaintiff-appellant.
Daniel K. Mayers and David Westin, Wilmer, Cutler & Pickering, Thomas G. Corcoran, Jr., Corcoran, Youngman & Rowe, Washington, D.C., John S. Martel, Farella, Braun & Martel, San Francisco, Cal., for defendant-appellee.
Appeal from the United States District Court for the Northern District of California.
Before HUG, TANG and BOOCHEVER, Circuit Judges.
BOOCHEVER, Circuit Judge:
OVERVIEW
Two gunmen acting on orders of Admiral Wong Hsi-ling (Wong), Director of the Defense Intelligence Bureau (DIB) of the Republic of China (ROC), shot and killed Henry Liu in Daly City, California. Helen Liu (Liu), his widow, appeals the district court's dismissal of her complaint for damages against the ROC. Liu asserted claims against the ROC and various individuals for wrongful death under California law, violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1964, and under 42 U.S.C. §§ 1985(3) and 1986 of the Civil Rights Acts. Because of the district court's concern with the act of state doctrine, it ordered Liu to file a motion for partial summary judgment relying solely on the findings of the ROC tribunals in criminal cases arising out of the murder. The district court held that the ROC could not be held vicariously liable under California law because Wong's act of ordering Henry Liu's assassination was outside the scope of his employment, and that the act of state doctrine precluded Liu from piercing the findings of the ROC tribunals.
We reverse and remand.
PROCEEDINGS IN THE DISTRICT COURT
In her complaint Liu asserts that the ROC was involved in the conspiracy to kill Henry Liu. The ROC filed a motion based on the act of state doctrine to dismiss it as a party defendant. The district court denied this motion initially to give Liu a chance to establish that, based on the findings of the ROC courts, the ROC was liable under the doctrine of respondeat superior. Liu v. Republic of China,
The district court denied Liu's motion for partial summary judgment and granted the ROC's motion to dismiss it as a party defendant on act of state grounds. The district court held that Wong's act was not incidental to his duties as Director of the DIB, or reasonably foreseeable to the ROC.
The district court also held that the act of state doctrine precluded an American court from piercing the findings of the ROC tribunals. The court found that the ROC decisions were "acts of state" because the judgments represented "an exеrcise of the ROC's jurisdiction to give effect to its public interests in assessing responsibility for the murder." Additionally, the district court held that the doctrine applied because the intrusive discovery necessary in this case would involve the judiciary in the most sensitive areas of a foreign nation's national security and intelligence affairs.
Pursuant to Fed.R.Civ.P. 54(b), the district court entered a final judgment dismissing the ROC as a party defendant after finding that there was no just reason for delay. Liu filed a timely notice of appeal.
FACTS
Liu was ordered by the district court to submit a motion for partial summary judgment limiting the facts to the findings of the ROC courts. Based on those findings it appears that the two gunmen, Wu Tun (Wu), and Tung Kuei-sen, (Tung), were members of the Chinese Bamboo Union Gang of criminals. Chen Chi-li, an alleged leader of the Bamboo Union Gang, recruited these two men to kill Henry Liu.1 At this time, Chen Chi-li was working for the DIB, under its Director, Wong.
In May of 1984, Wong met Shuai Yueh-feng (Shuai), a member of the Bamboo Union Gang. Shuai told Wong that the gang had useful connections in the United Stаtes and Hong Kong, and could assist the DIB in extending its operations on the Chinese mainland. Shuai, however, recommended that Wong contact Chen Chi-li, the leader of the gang. Wong met Chen Chi-li at a party in July of 1984. Wong later invited Chen Chi-li and Shuai to a DIB guest house in August of 1984. At this meeting Chen Chi-li and Shuai agreed to work for the DIB.
At the same meeting, Chen Chi-li and Wong discussed Henry Liu. Wong complained about the Chinese people overseas who criticized the ROC after they had received favorable treatment in Taiwan. Wong used Henry Liu as an example of this type of "ungrateful" Chinese person. Chen Chi-li stated that such people should be "taught a lesson," and that he could be trusted with such an assignment. Wong agreed that Henry Liu should be "given a lesson" once the opportunity presented itself.
At the August meeting, Chen Chi-li and Shuai also requested intelligence training at the DIB's training center. Wong agreed and sent both men to the DIB's school for a four-day training session. Wong visited Chen Chi-li at the training center, and Chen Chi-li again brought up the subject of teaching Henry Liu a lesson. Chen Chi-li asked for background information on Liu, and Wong promised to send this information to him later.
In September of 1984, Wong ordered a subordinate, Hu Yi-men, to obtain the information file on Henry Liu from a department of the DIB. Wong directed Chen Hu-men, another subordinate, to deliver the file to Chen Chi-li, and appointed Chen Hu-men to be Chen Chi-li's and Shuai's DIB contact. Chen Chi-li and Shuai then went to the United States to assassinate Henry Liu. In September, Chen Chi-li and Shuai decided that any attempt on Liu while he was at work would be too dangerous due to police monitoring of a strike in the nearby area. Chen Chi-li reported this development to Chen Hu-men, and stated that Henry Liu would be taken care of later.
At the end of September Chen Chi-li recruited Wu and Tung to murder Liu. These plans were also relayed to Chen Hu-men and Wong by Shuai. On October 15, 1984, Chen Chi-li telephoned Chen Hu-men and informed him of Liu's murder by using these code words: "The deal is concluded; the effect will become clear tomorrow." Chen Chi-li, Wu, and Tung were ordered to return to Taiwan as soon as possible. The three men were met by Chen Hu-men at the airport in Taiwan on October 21, 1984. Three days later Chen Chi-li and Shuai attended another dinner at the DIB guest house. Chen Chi-li reported the murder to Wong, and Wong offered him $20,000, which Chen Chi-li refused.
Wong, Chen Hu-men, and another DIB employee were convicted by ROC military courts of conspiracy for their part in the Henry Liu murder. The trial court issued an opinion, and on appeal, the Superior Appellate Review Court of the Ministry of National Defense affirmed the convictions in a published opinion. Chen Chi-li and Wu were convicted of homicide in separate proceedings before the civilian courts of the ROC. The trial court, the Taiwan High Court (the intermediate appellate court), and the Supreme Court of Taiwan all issued opinions in Chen Chi-li's and Wu's convictions.
These courts never explicitly stated that no other ROC officials were involved. That finding is implicit, hоwever, in the courts' decisions. One ROC court stated: "[w]hen the murder of Henry Liu proceeded to become a major story in both the Chinese and English-language press in the United States, Wong finally began to perceive the seriousness of the consequences; but he never had the courage to report the situation to his superiors." The courts stated that ROC officials discovered Wong's role in the murder only after Chen Chi-li, during an interrogation about an unrelated matter, implicated him and his subordinates.
Henry Liu was an historian and journalist who had published several articles critical of Taiwan's one-family rule. Some of these articles were consolidated into a book entitled The Biography of C.K. Chiang, which was banned in the ROC but otherwise published and distributed worldwide. The military trial court stated:
During the extended conversation [between Wong and Chen Chi-li], the topic shifted to overseas Chinese and their various activities in the United States, and Wong mentioned then that some people, onсe educated here and favorably treated in this country, frequently engaged in spoken and written attacks on the country; he [Wong] indicated that this was much to be regretted.
Wong Hsi-ling had learned [via a letter] from a friend, Hsia Hsiao-hue [Hsia], in June, that Henry Liu was not happy with him and would initiate some action detrimental to Wong. Because Wong was concerned with trying to prevent such action by Liu, he cited Liu as an illustration, specifically pointing out that Liu was such a man, educated here and favorably treated by the people of this country, but so ungrateful he frequently turned out writings that denigrated this government and smeared this country's image.
Thus apprised of Wong's dissatisfaction with Liu, Chen Chi-li now immediately echoed Wong's sentiment, declaring that, "This kind of person should be taught a lesson. I can be trusted with the assignment." Wong responded, "when the opportunity arises, he should be given a lesson."
Hsia's letter was destroyed, and the ROC courts never stated explicitly whether Liu's alleged grievance with Wong was bаsed on his official performance or some other personal matter between the men.
Later in its opinion, however, the trial court stated: "[d]efendant Wong Hsi-ling, from the base of his personal impression of, and individual grudge against Henry Liu ... grossly misuse[d] his office to employ without seeking official authorization, the criminal organization leader Chen Chi-li...." This finding was reiterated by the Superior Appellate Review Court of the Ministry of National Defense. "It [the trial court opinion] stipulates that Wong, in order to stop Henry Liu from initiating actions to Wong's disadvantage on the basis of a personal grudge between them, accepted Chen Chi-li's offer to teach Henry Liu a 'lesson.' "
The district court found that Wong had a mixed motive in ordering the murder of Henry Liu. The district court stated:
The [ROC] courts found that Wong believed Liu was damaging the ROC by both words and deeds. The courts also found that Wong knew Liu was not satisfied with his performance as the Director of the DIB, that Liu had some materials that were not advantageous to him, and that Liu was going to initiate some action that would be detrimental to him.
DISCUSSION
I. STANDARD OF REVIEW
Initially we must decide whether there was subject matter jurisdiction over the ROC under the Foreign Sovereign Immunities Act of 1976 (FSIA), codified in part at 28 U.S.C. §§ 1602-1611 (1982). "Whether subject matter jurisdiction exists is a question of law reviewable de novo." Gerritsen v. de la Madrid Hurtado,
The district court granted summary judgment to the ROC on the issue of respondeat superior based on its interpretation of the ROC courts' factual findings and its interpretation of California law. We review a district court's grant of summary judgment de novo. T.W. Elec. Serv. v. Pacific Elec. Contractor's Ass'n,
The district court dismissed the ROC as a party defendant based on its application of the act of state doctrine. Surprisingly, there is no Ninth Circuit case, or any other case that we could find, specifying the standard of review for a district court's decision to apply the act of state doctrine in a given case. Implicitly, however, it appears that appellatе courts have reviewed de novo the applicability of this doctrine in a given case. See generally Banco Nacional de Cuba v. Sabbatino,
II. JURISDICTION UNDER THE FOREIGN SOVEREIGN IMMUNITY ACT
The FSIA is "the sole basis for obtaining [subject matter] jurisdiction over a foreign state in our courts." Argentine Republic v. Amerada Hess Shipping Corp.,
Section 1605(a) provides that:
[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case--
* * *(5) not otherwise encompassed in paragraph (2) above [commercial activities], in which money damages are sought against a foreign state for personal injury or death, ..., occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment....
28 U.S.C.A. § 1605(a)(5) (West Supp.1989) (emphasis added). This exception does not apply, however, to claims based upon the exercise of or failure to exercise a discretionary function. 28 U.S.C.A. § 1605(a)(5)(A) (West Supp.1989).
A. Tortious Activity
Liu's allegations were sufficient to bring this suit within the tortious activity exception of 28 U.S.C.A. § 1605(a)(5). Liu sued for damages for the wrongful death of her husband which occurred within the United States. Section 1605(a)(5) removes immunity for torts committed either by a foreign state or its agents acting within the scope of their employment. Liu alleged both grounds: 1) that the ROC was involved in the conspiracy to kill Henry Liu; and 2) that Wong acted within the scope of his employment in ordering the assassination.
The district court eventually ruled that the act of state doctrine precluded inquiry into the alleged ROC involvement in the conspiracy and that Wong's act was not committed within the scope of his employment under California law. Consequently the court held that the ROC was not liable under the doctrine of respondeat superior for Liu's damages. This determination constituted a decision that the district court lacked subject matter jurisdiction because section 1605(a)(5) requires that acts of agents of a foreign state be within the scope of their employment.
"The 'scope of employment' provision of the tortious activity exception [of the FSIA] essentially requires a finding that the doctrine of respondeat superior applies to the tortious acts of individuals." Joseph v. Office of Consulate General of Nigeria,
Whether the ROC is liable under respondeat superior is crucial not only to the issue of the court's jurisdiction, but also to the merits of the appeal from the denial of Liu's motion for partial summary judgment on the wrongful death claim. Section 1606 of the FSIA provides:
As to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances; but a foreign state except for an agency or instrumentality thereof shall not be liable for punitive damages....
28 U.S.C. § 1606 (1982). The FSIA does not create a federal rule of liability to be applied in an action involving a foreign state.
There are two choice of law questions that must be resolved prior to determining whether the ROC is liable under respondeat superior. First, we must decide the choice of law rule applicable to the respondeat superior issue determinative of jurisdiction under the FSIA. Second, assuming that we have jurisdiction under that Act, we must ascertain the law to be applied in determining whether the ROC is liable on the merits.
We have held that federal common law provides the choice of law rule applicable to deciding the merits of an action involving a foreign state. See Harris v. Polskie Linie Lotnicze,
In Joseph, a landlord sued in California district court for damages to a house, located in California, that was rented to a Nigerian consular officer. On interlocutory appeal, Nigeria claimed that the court lacked jurisdiction under the FSIA. We held that California's law of respondeat superior, not federal common law, applied to determine whether the tortious acts of Nigeria's employees were within the scope of employment for purposes of the tortious activity exception in the FSIA. Joseph,
Our decision in Joseph can be reconciled with Harris, because Joseph did not explicitly reject federal common law's applicability in determining the appropriate choice of law rule for cases arising under the FSIA. Consequently, we apply the federal choice of law rule to determine the applicable law of respondeat superior on the merits. If a different choice of law rule applied to determine the applicable respondeat superior law for jurisdictional purposes under the FSIA, it would be cumbersome, present grave practical difficulties, and could result in different substantive laws being applied in the same suit. We do not believe that Congress intended different choice of law rules to apply. We therefore hold that the federal choice of law rule controls the applicable law of resрondeat superior both for jurisdiction under the FSIA and on the merits.
California is the place where the injury occurred, and under the federal choice of law rule, its law will apply to the merits of the action unless the ROC has a more significant relationship to the tort and the parties. Although the ROC has some connection with the tort and the parties, we cannot say that it has the more significant relationship. California and the ROC have offsetting interests in the parties to this suit: Henry Liu was domiciled in California when he was killed, and the ROC and other ROC nationals are parties to the suit. California, however, has a significant interest in ensuring that its residents are compensated for torts committed against them, and in discouraging the commission of such torts within its borders. We conclude that California's relationship to the tort is at least as significant as the ROC's. See Harris,
B. Respondeat Superior
An employer is vicariously liable for the torts of employees committed within the scope of their employment. See, e.g., Alma W. v. Oakland Unified School Dist.,
California follows the "enterprise theory" of liability:
California has adopted the rationale that the employer's liability should extend beyond his actual or possible control over the employees to include risks inherent in or created by the enterprise because he, rather than the innocent injured party, is best able to spread the risks through prices, rates or liability insurance.
Rodgers v. Kemper Constr. Co.,
California has established a two-prong test to determine whether an employee is acting within the scope of employment. Generally, an employer will be liable for an employee's wrongful act if 1) the act was required or incident to the employee's duties or 2) the act was reasonably foreseeable to the employer. See Alma W.,
"In assessing whether an employee's wrongful act was required by or incidental to his duties, the law defines occupational duties broadly." Alma W.,
The ROC contends that it is not liable for Wong's action because the ROC courts expressly found that Wong was motivated by a personal grudge to kill Henry Liu. The district court stated that:
The [ROC] courts found that Wong believed Liu was damaging the ROC by both words and deeds. The courts also found that Wong knew Liu was not satisfied with his performance as the Director of the DIB, that Liu had some materials that were not advantageous to him, and that Liu was going to initiate some action that would be detrimental to him.
The ROC contends that the courts actually found that Wong used this "ostensible nationalism" story only to persuade Chen Chi-li to murder Henry Liu, but did not actually believe this himself. The ROC courts, however, never stated that the "nationalism" story was merely a guise to lure Chen Chi-li into murdering Henry Liu. We agree with the district court's interpretation of thеse findings. Henry Liu was an historian and journalist who had criticized ROC leaders in the past. It is logical to assume that the action Henry Liu was going to take against Wong was another article criticizing another ROC leader, in this case Wong. Wong's response might be considered motivated by a personal grudge under the internal law of the ROC; however, under California law it is sufficiently job related to impose vicarious liability on the ROC. See Carr,
In Carr, the California Supreme Court held that an employer was liable for its employee's act of throwing a hammer at the plaintiff, a subcontractor's employee, after the plaintiff had criticized the other's work. The supreme court stated:
Not only did the altercation leading to the injury arise solely over the performance of Enloe's duties, but his entire association with plaintiff arose out of his employment on the building under construction. He had never seen plaintiff before the day preceding the accident, and had never cоnversed with him before the dispute over the plate. He testified in addition ... that he had no personal grudge against [the plaintiff].
Id. at 657,
In this case, the dispute between Liu and Wong arose out of Liu's dissatisfaction with Wong's performance as Director of the DIB. There is no evidence of any personal altercation unrelated to Wong's official duties. We see no principled distinction between this case, where Wong acted in part to prevent Liu's criticism of his performance as Director of the DIB, and the employee in Carr who intentionally threw a hammer after another person criticized his work.
Even if we assume, despite the absence of evidence, that Wong acted partly out of a personal grudge "not engendered" by his employment as a high official in the ROC government, California courts have made clear that a "mixed motive" is sufficient to impose vicarious liability on the employer. See John R.,
The ROC courts' findings indicate that Wong acted in part to benefit the ROC. The courts stated that Wong believed that Henry Liu was damaging the ROC by his criticism of its government. Wong apparеntly believed that it would benefit the ROC to silence a known critic. We realize that the ROC incurred no benefit but rather suffered substantial detriment and embarrassment from Wong's act. Nevertheless, if Wong's complicity in the assassination had not been revealed, the ROC would have benefited from the silencing of a critic. If actual benefit, from the standpoint of hindsight, were required respondeat superior would practically be eliminated because damages usually offset any benefit.
California no longer requires that an act benefit the employer before vicarious liability will attach. See Perez,
Another factor present in this case is that Wong used the ROC fаcilities entrusted to him to help Chen Chi-li and Shuai prepare for the assassination. Wong sent both men to the DIB training school for four days, and provided them with a dossier on Liu prepared by the DIB. As the ROC correctly states, the mere use of facilities entrusted to the employee is insufficient to impose liability on the employer. See Alma W.,
In White v. County of Orange,
A police officer is entrusted with a great deal of authority. This authority distinguishes the situation here from the facts of Alma W. Unlike a school custodian, the police officer carries the authority of the law with him into the community.... The officer's method of dealing with this authority is certainly incidental to his duties; indeed, it is an integral part of them.
White,
The district court refused to follow White "because it is poorly reasoned and lacks any meaningful analysis." The district court also stated that White had not been followed by any other cases. The district court was also concerned that White would, in effect, make a government liable whenever employees misused their office to commit torts. The ROC cites numerous cases for the proposition that White is not good law in California. We find those cases distinguishable on the facts.
All of the cases cited by the ROC involved sexual assaults committed by employees. See John R.,
In all those cases, the courts were concerned with purely personal acts by an employee. In John R., the supreme court stated that "[a] more personal escapade less related to an employer's interests is difficult to imagine." John R.,
In John R., the California Supreme Court specifically declined to decide whether White was properly decided "or whether the job-created authority theory has any validity in evaluating vicarious liability for the torts of police officers." John R.,
The supreme court was concerned that imposition of vicarious liability for a teacher's sexual misconduct with a student would harm the educational enterprise by deterring school districts from encouraging or authorizing teacher-student contacts, and by making insurance harder to obtain and thereby diverting "needed funds from the classroom." John R.,
In this case, we do not find that "the consequences of imposing liability are unacceptable." See id. Imposition of vicarious liability would not undermine the overall effectiveness of a foreign government or its intelligence apparatus. Although a sexual assault by a teacher may be too attenuated to justify spreading the risk of loss to the beneficiaries of the enterprise, an employee's misuse of authority, done in part with the intent to benefit the employer, is within the risks broadly allocable to the enterprise. When an employee, such as Wong, uses governmental authority in a mistaken attempt to benefit his employer by silencing an outspoken critic of the government, there is nothing inequitable about spreading the loss among all the beneficiaries of the government.
Last, the ROC contends that it should not be liable for Wong's act because Wong violated ROC internal law prohibiting murder, and none of its other officials knew of or sanctioned his act. First, the mere fact that an employee violated an employer's express rules is not dispositive. See Perez,
We can accept the ROC courts' findings that no other official was aware of or sanctioned Wong's wrongful act and still find that Liu has established as a matter of law that Wong's act was committed within the scope of his employment as Director of the DIB. Consequently, we reverse the district court's denial of Liu's motion for partial summary judgment and its decision that the ROC could not be vicariously liable for Henry Liu's death.
Because we conclude that the ROC is liable under respondeat superior, we also hold that there is subject matter jurisdiction under the FSIA, unless Wong's conduct falls within the discretionary function exception to that act. 28 U.S.C. § 1330(a).
C. Discretionary Function
The existence of a discretionary function under the FSIA is analyzed under the general principles established under the same exception in the Federal Tort Claims Act, 28 U.S.C. § 2680(a) (1982). See Joseph,
In Berkovitz v. United States,
This exception is inapplicable in this case because Wong had no discretion, according to the ROC courts, to violate the ROC law that prohibits murder. Article 21, paragraph 2 of the Criminal Code of Taiwan provides that: "[a]n act performed by a public official in the course of carrying out his duties and pursuant to the order of his superior is not punishable unless such public official knew that such order was contrary to the law " (emphasis added). In Berkovitz, the Supreme Court stated that "the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive." Id.,
III. THE ACT OF STATE DOCTRINE
The act of state doctrine is not a jurisdictional limit on courts, but rather is "a prudential doctrine designed to avoid judicial action in sensitive areas". International Ass'n of Machinists & Aerospace Workers v. OPEC,
"The traditional formulation of the act of state doctrine is that ...:
Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory."
Alfred Dunhill of London, Inc. v. Republic of Cuba,
The burden of proving acts of state rests on the party asserting the applicability of the doctrine. See Dunhill,
First, we address whether Liu's suit against the ROC for damages for the assassination of her husband is barred by the doctrine. Although the ROC did not raise this argument, we are concerned with the potential for embarrassing the Executive Branch, and raise the issue sua sponte.
In Letelier,
To hold otherwise would totally emasculate the purpose and effectiveness of the Foreign Sovereign Immunities Act by permitting a foreign state to reimpose the so recently supplanted framework of sovereign immunity as defined prior to the Act " 'through the back door, under the guise of the act of state doctrine.' "
Id. at 674 (quoting H.R.Rep. No. 94-1487, 94th Cong., 2d Sess. 20 n. 1, reprinted in 1976 U.S.Code Cong. & Admin.News, 6604, 6619 n. 1).
In OPEC, this court held that the OPEC nations' price fixing activities, although not entitled to sovereign immunity under the FSIA, were acts of state. We held that the FSIA did not supersede the act of state doctrine because the doctrine addressed different concerns than the doctrine of sovereign immunity. OPEC,
One factor we must consider is whether the foreign state was acting in the public interest. "When the state qua state acts in the public interest, its sovereignty is asserted. The courts must proceed cautiously to avoid an affront to that sovereignty." Id. Thus, any injunctive relief "instructing a foreign sovereign to alter its chosen means of allocating and profiting from its own valuable natural resources" would affront the sovereignty of a state. Id. at 1361. Ordinarily, this type of concern will be generated only when courts are asked to judge the legality or propriety of public acts committed within a foreign state's own borders. See Sabbatino,
Another factor to be considered is the degree of international consensus regarding an activity. In Sabbatino, the Supreme Court stated:
It should be apparent that the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of facts rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice.
Sabbatino,
Last, this is not the sort of case that is likely to hinder the Executive Branch in its formulation of foreign policy, or result in differing pronouncements on the same subject. See OPEC,
The ROC argues, however, that the judicial proceedings in Taiwan are acts of stаte. Both parties agree that judgments of a court can be acts of state.
A judgment of a court may be an act of state. Usually it is not, because it involves the interests of private litigants or because court adjudication is not the usual way in which the state exercises its jurisdiction to give effect to its public interests.
See Restatement (Second) of Foreign Relations Law of the United States § 41 comment d (1965)2; see also Timberlane,
To the credit of the ROC, rather than attempting to hidе the sordid circumstances involved in Liu's assassination, it made an investigation and publicly brought to trial individuals involved, even including one in such a high position as Wong. Our decision merely applies California law to the facts as ascertained by the ROC courts. While the result may involve the financial responsibility of the ROC, it does not affront its sovereignty and can cause no more embarrassment than the exposures already made by the ROC courts. Because of our respondeat superior decision we need not decide whether or to what extent further inquiries might be made of ROC officials. Under these circumstances the act of state doctrine is not a bar to Liu's suit.
CONCLUSION
We hold that the act of state doctrine does not automatically bar a suit against a foreign nation when it is alleged that the nation ordered the assassination of an American citizen within the United States. We reverse the district court's decision dismissing the ROC as a party defendant. We hold that the ROC can be liable for Henry Liu's death under California's law of respondeat superior and the case is remanded for such further proceedings as may be necessary.
REVERSED and REMANDED.
Notes
The district court, in its order granting the ROC's motion to dismiss, stated that Henry Liu was killed by Chen Chi-li and Wu. Chen Chi-li, however, did not actually shoot Henry Liu, rather he recruited Wu and Tung. The ROC tribunals found that Chen Chi-li waited at a nearby gas station and did not participate in the actual shooting
The Restatement gives the following example of a judicial decree that would qualify as an act of state:
State A obtains by eminent domain proceedings title to an electric utility system in its territory. The vesting of title is an act of state within the meaning of the rule stated in this Section
See Restatement (Second) of Foreign Relations Law of the United States § 41 at 128.
A recent law review note discusses this issue. See Note, When Nations Kill: The Liu Case and the Act of State Doctrine in Wrongful Death Suits, 12 Hastings Int'l & Comp.L.Rev. 465, 483-84 (1989). Because the parties have not had the opportunity to address the arguments presented in the Note, we do not rely upon it