*1 media related in fees for 2. Disallow $550 impose ten therefore F.2d at 455. activity. final fee on Gardner’s reduction percent Meese, F.2d In re award. $10,141.96 fees for “defen- 3. Disallow for inade- percent reduction a ten (imposing monitoring.” sive billings); In re Sealed quately documented the In- responding to fees 4. Reduce Gadd, (same); Case, at 455-56 cf. half, Report Final dependent Counsel’s thirty percent reduc- (imposing a at 257 $11,563.77. “inade- both billings included tion where the dual additional justified fees and quately made, specific all deductions After 5. time”). unjustifiable possibility percent remaining fees ten reduce attorneys’ services that billings for disallow CONCLUSION III. documented. inadequately were analysis, the above with In accordance above, it is ordered reasons set forth For following: reflect award shall $53,120.74 rea- be awarded petitioner $3,108 attorneys’ fees in- 1.Disallow expénses. The attorneys’ fees and sonable attempts to secure in connection curred Appendix. set forth in computation is Per- the House appointment with Gardner’s accordingly. Judgment Intelligence. Committee manent Select APPENDIX $84,386.77 Including Expenses Request
Total Fee Opinion: Specific Deductions 3,108.00 Appointment HPSCI 1. 550.00 activity 2. Media related 10,141.96 Monitoring” 3. “Defensive 11,563.77 Final Responding 4. $25,363.73 DEDUCTIONS OF SPECIFIC SUBTOTAL $59,023.04 REQUEST OF SUBTOTAL 5,902.30 insufficient documentation. percent deduction for 5. Ten $53,120.74 AWARD TOTAL TRANSAERO, INC., Appellee, BOLIVIANA, AEREA
LA FUERZA Appellant.
No. 92-7222. Appeals, Court of
United States Circuit. of Columbia 24, 1994.
Argued Feb. July
Decided *2 Shannon, Jr.,
James W. Washington, DC, argued the appellant. cause for With him the briefs was Gregory Craig, B. Washing- ton, DC. Cobert,
Ronald N. Washington, DC, ar- gued the appellee. cause for With him on the brief was Danas, Andrew M. Washington, Joseph DC. Roberts, M. Washington, DC, entered appearance.
On the brief for amicus were Frank W. Hunger, Gen., Atty. Asst. Holder, Eric H. Jr., Atty., Letter, U.S. Douglas Dept, U.S. Justice, Jacobson, and Linda Dept, State, Washington, DC. MIKVA, Before Chief Judge, and SENTELLE, WILLIAMS and Circuit Judges. Opinion for the by Court filed Circuit
Judge SENTELLE. Dissenting opinion filed Chief Judge MIKVA.
SENTELLE,
Judge:
Circuit
Transaero, Inc., a New
corporation,
York
judgment
obtained
default
against La
(“the
Fuerza Aerea Boliviana
Bolivian Air
Force”) in the Eastern District of New York
registered
judgment
in the district
court for the District of Columbia. The Bo-
livian Air Force moved for summary judg-
ment, claiming that the district court in New
personal
York
jurisdiction
lacked
because the
had been obtained without
process
service of
required by the For-
eign Sovereign
Act,
Immunities
(1988) (“the
Act”).
Air
Bolivian
Force contended that because it
is a “foreign
political
state or
subdivision
aof
foreign state”
meaning
within the
of section
Act,
1608 of the
Transaero had
served
improperly. The district court held instead
that the Bolivian Air Force is an “agency or
instrumentality” of Bolivia
of section
so that Transae-
ro’s method of
gave
the New York
court jurisdiction. Bolivian
has taken an interlocutory appeal from the
conducted
activities”
Foremost-McKesson,
from “commercial
v. Is
Inc.
order.
states.
Iran, 905 F.2d
Republic
lamic
(denial
a claim
(D.C.Cir.1990)
the default
registered
Transaero
col
*3
immediately appealable
an
immunity
District
for the
court
in the district
judgment
order).
lateral
(Supp.
§ 1963
under
Columbia
of
is a
Force
Air
Bolivian
the
interrogatories
that
1992)
We hold
of
a set
served
and
IV
within
subdivision”
political
“foreign state
Procedure
of Civil
Federal Rule
under
that Tran-
1608 and
section
meaning of
the
appear-
entered
Force
Air
Bolivian
The
We
was defective.
service
of
method
saero’s
interrogatories
quash the
to
moved
and
ance
directions
with
remand
and
reverse
therefore
that
arguing
proceedings,
the
dismiss
and
dismiss.
to
of
District
Eastern
for the
Court
District
the
the
jurisdiction because
lacked
York
New
in
served
had not been
Force
Air
Bolivian
I.
the Act.
of
section
compliance with
the Boliv-
parts to
aviation
sold
Transaero
1992,
25,
the
September
dated
an order
In
early
the
1980s.
throughout
Force
Air
ian
of Columbia
the District
Court for
District
the
in
complaint
1988,
filed
Transaero
that
found
court
The
motion.
the
denied
alleged
that
York
of New
District
Eastern
Bolivian
the
served
originally
had
Transaero
$983,696.60in
sought
contract
of
breach
1608(b);
the
that
under section
Force
Air
1988,
15,
the Clerk
September
On
damages.
notice
actual
received
Air Force
Bolivian
of the sum-
translations
dispatched
Court
lawsuit;
the Bolivian
that
Transaero’s
Force
Air
Bolivian
to the
complaint
mons
hearing
mail of
by
Force was notified
Air
mail
registered
Paz, Bolivia
La
in
judgment.
default
motion for
Transaero’s
on
Air
Bolivian
The
requested.
receipt
return
law,
that,
as a matter
then ruled
court
The
complaint
the summons
Force received
in-
Force is an
Air
Bolivian
on
Clerk
receipt to the
a return
and sent
service
and that
strumentality”
Bolivia
Force
Air
23,1988.
Bolivian
The
September
1608(b)
proper.
was
section
under
Judge Mishler
appearance,
no
made
motion
hearing
Transaero’s
scheduled
motion for
Force’s
Bolivian Air
After
30, 1989.
for March
judgment
denied, Transaero
judgment was
summary
hearing to-
notice of
sent
Transaero
the Bolivian
compelling
an order
requested
Min-
Force,
First
the Bolivian
Air
Bolivian
The
interrogatories.
its
answer
Force to
Air
Bolivia,
to the Bolivian
Paz,
La
ister
away and
passed
the case
charge of
judge in
Washing-
General
and Consul
Ambassador
re
been
has never
apparently
motion
that
Force failed
Air
Bolivian
When
ton.
Air
1993,
12,
the Bolivian
May
On
solved.
grant-
Judge
hearing,
Mishler
appear at
Newof
District
requested
Eastern
Force
judgment.
for default
motion
ed the
the default
aside
set
York
properly
had been
service
found that
court
through
procured
it
been
that
had
ground
1608(b),
made
under section
effected
fact.
representations
fraudulent
adequacy
findings on the
Air
motion, the Bolivian
denied
it had
1608(a).
held
The court also
the Second
the denial
appealed
Force
the contract
over
jurisdiction
subject matter
affirmed.
Circuit
Circuit,
Second
and the
Act,
1605(a)(2) of the
section
claim under
Aerea Bo
Transaero,
Fuerza
v. La
Inc.
See
exception
creates
Cir.1994).1
(2d
liviana, 24
457
F.3d
arising
immunity for claims
rule of
for the
District Court
sion in
Circuit noted
Second
1. The
to raise
Columbia,
generally refused
have
and we
of Columbia
the District
York
New
courts in
v. United
served,
sponte. See Nixon
question sua
the
States,
properly
was
Force
the Air
had held
1269,
(D.C.Cir.1992);
n. 16
1274
F.2d
978
appeal that we decide
pending
noted the
but also
Regan,
676
Representation
Taxation
715,
do not consider
at n. 1.
today.
id.
(D.C.Cir.1982),
on other
rev’d
1
717 n.
might
ruling
bar
District’s
the Eastern
461 U.S.
grounds,
jurisdiction,
personal
attack on
Force's
the Air
(1983).
preclu-
L.Ed.2d
any
form
not assert
for Transaero did
upon
II.
whether the
Air
Bolivian
is a
Force
“separate legal person, corporate or other
A.
1603(b)(1).2
wise”
The words
opaque.
themselves are
Some district
Act, “subject
juris
matter
Under
sought
courts
to illuminate them
process equals
plus
person
diction
balancing
three “characteristics” of
Trading
jurisdiction.”
Milling
al
&
Texas
whether,
legal status:
under the law of the
Republic
Nigeria,
Federal
created,
foreign state
where was
(2d
Cir.1981),
denied,
cert.
name,
can sue and be
own
sued
con
C. affairs of the state con- cerned, then, question, The forces of a for core functions of armed (4) by ... sending copies two of the sum- eign governmental or sovereign are commer complaint suit, mons and and a notice of that armed are as a cial. hold forces rule together with a each translation of into the up closely with the of the so bound structure language foreign state, official they state that must all cases be consid any form mail requiring signed re- itself, “foreign rather ered as the than ceipt, dispatched be addressed and instrumentality” separate “agency or the clerk Secretary of the “powers wage state. declare Washington.... State among “necessary
war” are
concomi
1608(a)(3)-(a)(4).
sovereignty.
tants” of
United States Cur
304, 318,
Corp.,
tiss-Wright Export
299 U.S.
Both
courts
to hear the case found
(1936).
216, 220,
L.Ed.2d complaint); to include translation failure differentiating for majority’s standard La Nicaraguense De Empresa Alberti v. “foreign that are those entities between Cir.1983) (hold (7th Carne, 705 F.2d in- “agencies or those that states” not satis did on Ambassador ing that service under the foreign states strumentalities” 1608(a) “head of service on requirement fy (“FSIA”), Sovereign Immunities Act Foreign affairs”). see But ministry of 1330, 1602-11, is attractive Marlowe, (using “substan F.Supp. at 708 But I fear that administrability grounds. 1608(a)). compliance” test under tial my col- interpretation formulating their Leniency case would disorder in this efficiency concerns —and placed leagues have statutory The Committee scheme. policy prefer- international perhaps “sets forth that section states meaning of apparent ences —above on a procedures for exclusive to us requires this ease Because statute. admonition state,” no such contains but enactment, and not Congress’s interpret H.R.Rep. 1608(b). at No. 1487 section rules, majori- I think common-law devise reprinted in 1976 U.S.C.C.A.N. insufficiently deferential ty’s approach is 1608(b)(3) delivery “if simple allows Section reluctantly— legislature. I therefore — notice,” give actual reasonably calculated dissent. there concerned Congress was showing that form; than rather with substance itself, it bears discussing the FSIA Before 1608(a) says analogous subsection court —the United mentioning that another The distinction nothing actual notice. about Dis for the Southern Court States District neatly differences tailored J.)- (Mishler, already York of New trict —-has or instrumen- “agencies “foreign states” *7 28,1989, April hand. On the issue at decided latter, typically international The talities.” judgment rendered Mishler Judge a so possess enterprises, often Force, Air Bolivian against the in case knowledge of the United States phisticated Fuerza”). (“La Boliviana Fuerza Aerea La foreign organs of legal system that other ap an subsequently survived That Con may Practical governments lack. Cf. alleged fraudu upon plaintiffs grounded peal Bolivia, Republic cepts, Inc. Tran misrepresentations to court. lent (in (D.C.Cir.1987) against for 1543, 1546 suit Boliviana, 24 saero, Aerea v. La Fuerza Inc. state, objections person rule that eign Cir.1994). (2d necessary ele As a appearance by an jurisdiction waived al are Judge judgment, original default of the ment of for sparingly applied because should be Fuerza, instru “an La found that Mishler process). Thus unfamiliarity legal eign Bolivia,” re Republic of mentality of the 1608(a) Min mandates under FSIA process proper service ceived Affairs, department most istry Foreign agency 1608(b), only to “an applies § procedure. likely American to understand instrumentality foreign state.” of a to the terms We hold strict adherence 1608(b). Although not decide it did § U.S.C. Transaero required. As failed acknowledged issue, the Second Circuit not so, proper was do Bolivian finding appeal. on Mishler’s Judge ly served. n. 1. 197941 at Westlaw IV. my colleagues that Although agree I prop- was ruling that service Mishler’s Judge York lacked of New Eastern finding to us from preclude judg- not er does jurisdiction, the default personal contrary, maj. op. see at 150 n. speculation such a agency or an instrumentality finding would prevailing clash with the commercial, Sec- must be a opposed as public, to a ond Circuit law on the facts of this case. enterprise. Maj. op. at 151. distinction This Admittedly, analysis Judge the absence of is nowhere to found in be the statute or Mishler’s and opinions the Second Circuit’s legislative history. Indeed, the distinction precedential limits their effect this issue. inapt, seems because the FSIA explicitly cre- Nonetheless, a reversal here creates a dis- an exception ates agreement in the result. parties tell immunity states agencies and their compels result; that the statute one federal and instrumentalities for “commercial activi- jurisdiction courts in another tell the same ty,” 1605(a)(2), § 28 U.S.C. but the statute parties that the same statute compels the way that a indicates similar test deter- us, opposite result. Between we have thor- “agency” mines status. The FSIA waives oughly muddled the law. This is the func- immunity depending nature equivalent tional split a circuit activity on based, which the lawsuit is not the Second; our Circuit and the such tension government nature of the entity against possible. should be avoided if which the suit brought. contrast, for (service secondary process, venue, matters This tension would cause me far less con- property, attachment of punitive dam- cern were I majority’s convinced in- ages) the distinguish FSIA does based on the terpretation of the I FSIA. am not. De- identity of the distinguishes defendant —it spite majority’s argument, able the FSIA between a state and its agencies and legislative and its history suggest no conclu- instrumentalities. presumption sive that a military entity is “a 1606,1608,1610. These separate distinc- agency not “an or instru- tions, with consequences. different Yet the mentality” Instead, thereof. the statute lists majority categories assumes the “two three factors that define or instru- correspond actors ... ... catego- two 1603(b). mentality.” § only U.S.C. Maj. ries of op. acts.” at 151. Absent some disputed factor in this case is that the concrete statutory intent, evidence I think must be “a legal person.” Id. dangerous this is a assumption. 1603(b)(1). § The House amplifies meaning phrase: of this agency evidence, As statutory majority instrumentality may department be “a or points to one of the venue of 28 ministry which acts and is suable its own 1391(f), U.S.C. permitting suits H.R.Rep. name.” 94-1487, No. Cong., 94th agency any judicial “in (1976); 2d Sess. maj. op. see district which the or instrumentali- a lengthier quote. suggests This to me that ty is licensed do doing business isor any presumption alone the conclusive —let business,” 1391(f)(3), permit- U.S.C. *8 presumption majority adopts disfa- —is ting suits state in the Unit- Instead, vored. every foreign entity starts ed States Court District for the District of out on footing, the same court must 1391(f)(4). § Columbia. 28 U.S.C. What the decide particular entity whether the sep- is a majority neglects to mention is that legal person is, arate it “acts —that 1391(f)(3) § is not exclusive. If the and is suable in its suspect own I name.” business,” “doing is not majority right that most mili- may any judicial be sued “in district which tary entities legally separate are not from part a substantial of the events or omissions states, but I think it is con- giving occurred, rise to claim or a sub- trary to the statute to cast suspicion property subject stantial that is the terms of a rule. action situated.” Nothing language 1391(f)(1). in the the statute or provision simply The venue in the legislative history remainder of its recognizes many agencies and instru- upon casts doubt Report’s the House defini- mentalities are enterprises commercial “separate tion of legal person.” may But conveniently they defend suits where do majority sweeps aside this definition with way its It in business. establishes that an majority cuit, from the respectfully dissent I always instrumentality” be a must
“agency or opinion. enterprise. commercial majori- applies to the response
The same Report “is at that the House
ty’s assertion its itself,” maj. because op. at with
odds and instrumentalities agencies
examples while at enterprises, commercial to be
tend adopt a broader time it seems same “agency or instrumen- definition most, agen- many, even tality.” Again, BOEHNER, Appellant, John primarily may be instrumentalities cies that all prove not does in nature commercial commercial- meant for Congress If be. must ANDERSON, Clerk K. Donnald characteristic, it could defining ity to be Secretary Pope, House; Martha S. “sepa- Instead, said Congress said so. Clinton, Senate; President J. William 1603(b)(1). person.” 28 legal U.S.C. rate States, Appellees. the United to focus on a sum, good reason I see no In No. 93-5009. and non-com- distinction juridi- touchstone as the activities mercial Appeals, States Court United separateness. cal Circuit. Columbia legally sepa- to be it mean what does Then 9,May 1994. Argued sketchy us a Report gives The House rate? July Decided and is suable that “acts definition: several keeping in its own name.” court below precedents, Fuerza, by La executed
looked at contracts name, previous own
apparently was mentioned La Fuerza
lawsuits ambiguous indica- (admittedly, an
by name
tor), is a find that La Fuerza Transportes Bowers
legal person. Cf. Ecuadorianos, F.Supp.
Navieros (S.D.N.Y.1989); Corp. v. Aero Unidyne F.Supp. Argentinas, 590
lineas
(E.D.Va.1984). prefer Although I would factfinding regard to La
more extensive ownership, e.g., property
Fuerza’s activities — history think the dis contracting
previous —I right track. trict court was legislative policy, language,
I think the *9 suggest
history of the FSIA touchstone for
activity the ultimate is not sense to en- analysis. It makes more
FSIA inquiry into the ac- factual
gage in a wider determine whether
tions of the I think the separate legal person. Because correct, basically and be-
district court was incongruity prefer
cause I avoid would Second Cir- the law this case