Raymond FOXGORD, Individually and as Trustee of the Foxgord Trust, Cecilia Foxgord, Plaintiffs-Appellees, v. Baron Herbert HISCHEMOELLER, Defendant-Appellant.
No. 85-5976
United States Court of Appeals, Ninth Circuit.
June 23, 1987
820 F.2d 1030
Argued and Submitted March 6, 1987.
Once the agents decided to detain Marines, they acted reasonably. Although Agent Colson threatened to tie her hands if she tried to leave, he did not thereby transform her detention into an arrest. While his language and tone were intemperate, under the circumstances they would not have led a reasonable person in Marines’ position to believe that she was under arrest.
The agents placed those they arrested in a van bound for Boise. Marines was treated differently. The agents detained her inside, and let her know that she would be released as soon as Martinez returned with her papers. Had she been in compliance with the “green card” statute,4 she would have avoided the inconvenience.
D. Rayo
When Rayo told Colson her papers wеre at home, he placed her with other detained workers in the plant. After about fifteen minutes, she was taken to the van bound for Boise. Five minutes later she was released, when her husband arrived with her papers. We hold that Rayo was arrested, but that her arrest was reasonable. First, the agents had probable cause to believe Rayo had violated the “green card” statute, as she did not have her papers on her person. An individual‘s admission that she is an alien, coupled with her failure to produce her green cаrd, provides probable cause for an arrest. See Benitez-Mendez v. INS, 760 F.2d 907, 909 n. 2 (9th Cir.1985).5 The agents held her only until her husband brought her card. Reasonable detention was not made unreasonable by the failure of defendants at trial to remember the specific reasons for her detention. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1049 (1984), 104 S.Ct. 3479, 3488 (as INS agents arrest over one million deportable aliens a year and the arrests often occur in crowded and confused circumstances, they cannot be expected to recall the precise basis for every detention).
In sum, we affirm the judgment of the trial court denying equitable relief. We affirm the judgment denying damages to Nunez, Marines and Rayo. We reverse the judgment in favor of defendants on Martinez’ claims and remand her claims for further proceedings.
Affirmed in part, reversed in part and remanded. Martinez to recover costs on appeal.
Gerald Goldfarb, Los Angeles, Cal., for plaintiffs-appellees.
Before WALLACE, ALARCON and THOMPSON,* Circuit Judges.
ALARCON, Circuit Judge:
In this fraud and breach of guaranty action, defendant-appellant Baron Herbert Hischemoeller (hereinafter Hischemoeller) appeals from the district court‘s judgment against him for damages in favor of plaintiffs-appellees Raymond Foxgord, an individual and as trustee of the Foxgord Trust, and his wife, Cecilia Foxgord (hereinafter the Foxgords) following a bench trial. This case presents a novel issue. Does a district court have exclusive subject matter jurisdiction in an action against the honorary consul general of another country under
PERTINENT FACTS
On September 16, 1980, the Foxgords agreed to loan $500,000 to codefendants Henry Perdon and his corporation, Transamerica Minerals, Inc. (hereinafter TM), to purchase gypsum claims in Arizona аnd Utah. In return, TM gave the Foxgords a promissory note for $675,000, payable in one year with monthly interest payments of $11,250, and a $250,000 “consulting agreement” payable at $10,000 per month for twenty-five months. Hischemoeller and his corporation HISMOCO, Inc., Perdon and codefendant Arthur Webb agreed to guaranty TM‘s promissory note to the Foxgords. Perdon and TM thereafter defaulted on the promissory note and consulting agreement.
The Foxgords instituted this action in federal court against Perdon, Webb, His-
ANALYSIS
SUBJECT MATTER JURISDICTION
Hischemoeller contends the district court did not have subject matter jurisdiction over this case. Jurisdiction was predicated on
Our objective when interpreting a federal statute “is to ascertain the intent of Congress and to give effect to legislative will.” United States v. Taylor, 802 F.2d 1108, 1113 (9th Cir.1986), cert. denied, 479 U.S. 1094, 107 S.Ct. 1309, 94 L.Ed.2d 164 (1987). We begin with the statute‘s language, Blum v. Stenson, 465 U.S. 886, 896 (1984); United States v. Turkette, 452 U.S. 576, 580 (1981), and “[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 1212-14, 1222, 94 L.Ed.2d 434 (1987).
The existence of subject matter jurisdiction presents a question of law reviewed de novo by the court of appeals. Peter Starr Production Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir.1986).
A. Plain Meaning of 28 U.S.C. § 1351(1)
Our initial inquiry in interpreting
It is a maxim of statutory construction that unless otherwise defined, words should be given their ordinary, common meaning. Perrin v. United States, 444 U.S. 37, 42 (1979). Since Title 28 does not define “consuls or vice consuls,” we must look to the dictionary for the ordinary, common meaning of the word “consul.” Webster‘s Dictionary defines “consul” as “an official appointed by or with the authority of a government to reside in a foreign country to represent the interests of citizens of the appointing country“. Webster‘s Third New International Dictionary 489 (1976) (emphasis added). In Black‘s Law Dictionary, “consul” is defined as “[a] public officer residing in a foreign country responsible for developing and protecting the economic interests of his government and looking after the welfare of his government‘s citizens who may be traveling or residing within his jurisdiction.” Black‘s Law Dictionary 286 (5th ed. 1979) (emphasis added). Under the common, ordinary meaning of the term, “consul” refers to a citizen of the country which appointed him. Thus, an honorary consul who is not a citizen of the appointing country does not come within the ordinary, common meaning of the word “consul.”
Similarly, the words “consul” and “honorary consul” are not synonymous in the international community. The international community distinguishes among a career consul, an honorary consul who is not a citizen of the appointing country, and an honorary consul who is a citizen of the appointing country. A career consul (also
Honorary consuls (also called consules electi, consuls marchands, non-career consuls, unsalaried consuls, and trading or merchant consuls) on the other hand, are permitted to engage in gainful employment in addition to thеir consular duties. Consular Law, supra, at 14; Harvard Law School, Legal Position and Function of Consuls, in Research in International Law art. 26, at 354, comment (1932). Honorary consuls are selected locally from residents of the receiving state, whether they are nationals or permanent residents of the receiving, appointing, or a third state. Consular Law, supra, at 14.
On the whole, the functional privileges and immunities of honorary consuls are more restrictive than those of career consuls. Within the rank of honorary consul, those who are citizens or permanent residents of the receiving state are entitled to even fewer privileges and immunities than an honorary consul who is a citizen of the appointing country. L. Lee, Vienna Convention on Consular Relations 163 (1966) (hereinafter Lee). For example, the principle of inviolability of consular premises is substituted by mere protection thereof “against any intrusion or damage” for honorary consuls who are not citizens or permanent residents of the receiving state. Consular Convention, supra, Art. 59.
Honorary consuls who are natiоnals or permanent residents of the receiving state, such as Hischemoeller, possess very few privileges and immunities. See Consular Convention, supra, art. 71(1); Lee, supra, at 163. For example, they enjoy only “immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their functions....” Consular Convention, supra, art. 71(1).
The difference in treatment of honorary consuls who are citizens of the receiving state and other consuls under the Consular Convention is consistent with our conclusion that the ordinary, common meaning of the term “consul” as used in
During oral argument, the Foxgords claimed for the first time that the Supreme Court‘s decision in In re Baiz, 135 U.S. 403 (1890) is controlling. In Baiz, the issue before the Supreme Court was whether the petitioner, a consul general from Guatemala, was also a public minister or charge d‘affaires ad interim of Guatemala while the minister of Guatemala was out of the United States, thereby vesting the Supreme Court with exclusive jurisdiction, and not the district court, in the libel action against him. Id. at 418, 425. In dictum, the Supreme Court stated without analysis that unless petitioner “belonged to the class of official personages subject to suits
B. Legislative History of 28 U.S.C. § 1351(1)
We next determine if the legislative history of
We are mindful of the principle that where a statute is clear on its face, it is not necessary to look to its legislative history to discern its meaning and scope. Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 n. 29 (1978).
The Supreme Court has instructed that “[u]nless exceptional circumstances dictate otherwise, ‘[w]hen we find the terms of a statute unambiguous, judicial inquiry is complete.’ Rubin v. United States, 449 U.S. 424, 430 (1981).” Burlington Northern R.R. Co. v. Oklahoma Tax Comm‘r, 481 U.S. 454, 107 S.Ct. 1855, 1860, 95 L.Ed.2d 404 (1987). We have concluded that
1. The Statute
The first Congress codified the constitutional grant of federal jurisdiction over consuls in section 9 of the Judiciary Act of 1789, which states in pertinent part: “[T]he district courts ... shall also have jurisdiction exclusively of the courts of the several States, of all suits against consuls or vice-consuls....” Act of September 24, 1789, ch. 20, § 9, 1 Stat. 73, 76-77. The sparse legislative history of section 9, the precursor to
Section 9 of the Judiciary Act on this subject was carried into the Revised Statutes (enacted June 22, 1874) as section 711(8) without any substantial change. Section 711(8) provided that “all suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, or against consuls or vice consuls” shall be exclusive of the state courts.
By the Act of February 18, 1875, 18 Stat. 316, 318, section 711(8) was repealed, so that by the existing law, there was “no statutory provision which, in terms, makes the jurisdiction of the courts of the United States exclusive of the Statе courts in suits against consuls or vice-consuls.” Bors v. Preston, 111 U.S. 252, 261 (1884). The intent of Congress in the repeal of this statute is not apparent from the legislative history. See In re Iasigi, 79 F. 751, 753 (S.D.N.Y.1897)
In Iasigi, the district court offered a possible explanation why Congress repealed the statute which gave federal courts exclusive jurisdiction of civil cases against consuls:
There is a manifest propriety, amounting sometimes to a practical necessity in order to avoid international complications, that the prosecution, punishment or pardon of consuls which would necessarily materially affect their personal attention to their consular duties, should be within the control of the federal courts and of the federal government to which the consuls are accredited and which alone is responsible to foreign powers for the treatment of their representatives. While imprisonment for dеbt continued, the same considerations, though in a less degree, applied to civil suits. But since imprisonment for debt has been abolished, the grounds for exclusive federal jurisdiction in civil suits against consuls exist in but small degree, if at all; while in all criminal cases, all the original considerations of policy and propriety remain unchanged.
79 F. at 754 (emphasis added). This rationale for eliminating exclusive federal jurisdiction in civil cases against consuls proved to be incorrect. In 1911, Congress reinstated exclusive federal jurisdiction in cases against consuls, Act of March 3, 1911, 36 Stat. 1087, 1093, 1160, to “correct[] a mistake of omission on the part of Congress on the occasion of the former [1875] revision.” 46 Cong.Rec. 1,538 (1911) (statement of Sen. Heyburn).
In 1978, Congress amended
There is nothing in the legislative history of
2. The Constitution
Since many of the Framers of the Constitution were members of the first Congress which enacted section 9 of the Judiciary Act of 1789, Ames v. Kansas, 111 U.S. 449, 463, 464 (1884), we may look to the constitutional basis for the enactment of
Reports of the Constitutional Convention of 1787 disclose that the content of this constitutional provision remained unchanged from its introduction on May 29, 1787 until the members of the Convention signed the charter on September 17, 1787. G. Schulz, Creation of the Federal Judiciary: A Review of thе Debates in the Federal and State Constitutional Conventions; and Other Papers, S. Doc. No. 91, 75th Cong., 1st Sess. 2, 25, 34-35 (1937). In the debates in the state conventions on the ratification of the Constitution, it was noted that “very little objection will be offered to this clause; on the contrary, it will be allowed proper and unexceptionable.” 2 The Debates in the Several State
During the debates in the state conventions, the reason often mentioned for permitting federal courts to exercise exclusive jurisdiction in cases involving ambassadors, other public ministers and consuls was to “perpetuate harmony between us and foreign powers.” 3 Debates, supra, at 570, 571 (statement of Gov. Randolph, Va.). “This can only be done by giving the federal judiciary exclusive jurisdiction. Controversies affecting the interest of the United States ought to be determined by their own judiciary, and not be left to partial, local tribunals.” Id. at 532 (statement of James Madison, Va.). During the debate in Virginia, James Madison explainеd that it is necessary for federal courts to possess exclusive jurisdiction over these cases—and cases involving treaties, maritime, and admiralty—to secure uniformity of decision and because “our intercourse with foreign nations will be affected by decisions of this kind....” Id.
In explaining and defending the Constitution and in particular
Significantly, Hamilton explains in The Federalist Papers that under
The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART. The union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As thе denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned.
Id. at 535-36 (capitalization in original, emphasis added). Hamilton also states that federal courts should possess jurisdiction over foreign citizens, even if the controversy involves only local, and not international, law:
A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations, and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the states. But it is at least problematical whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations in a treaty or the general laws of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complection and those of the other. So great a proportion of the cases in which foreigners are parties involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals.
Id. at 536 (emphasis added).
We conclude from our review of the historical materials discussed abоve that sev-
First, Hamilton suggests in The Federalist No. 80 that jurisdiction over consuls exclusive of the states was intended to cover only foreign citizens.
Second, the basis for exercising exclusive federal jurisdiction over consuls, i.e., out of respect for the sovereign the consul represents, is far lеss compelling when the honorary consul is an American citizen, and the suit involves private actions.2 Under these circumstances, it is reasonable to assume that a foreign sovereign recognizes, in its appointment of an American citizen as an honorary consul who may also engage in nonconsular employment, that this individual could become involved in private activities which may subject him to litigation. Thus, an action against an American citizen who serves as an honorary consul for another country should have minimal adverse effect on the appointing sovereign.
Finally, the reasons for selecting federal courts over local courts—uniformity of treatment and decision and avoidance of local bias—are not present in private actions against honorary consuls. The necessity of uniformity of treatment and decision is only relevant when the honorary consul‘s consular actions are challenged in a judicial proceeding. Similarly, because the honorary consul is an American citizen, the problem of local bias is greatly reduced, if not eliminated.
CONCLUSION
We conclude the use of the terms “consul or vice consul” in
WALLACE, Circuit Judge, concurring:
I concur in all but part B of the majority‘s persuasive and exhaustively researched opinion. My sole concern regarding part B is that, once we have determined from the statute‘s plain meaning that the statute does not refer to honorary consuls, examination of the statute‘s legislative history should be unnecessary. “[W]hen we find the terms of a statute unambiguous,