MATIMAK TRADING CO. v. ALBERT KHALILY

, d/b/a Unitex Mills, Inc., and D.A.Y. KIDS SPORTSWEAR INC.
United States Couirt of Appeals for the Second Circuit
118 F.3d 76
Decided June 27, 1997

See also MATIMAK TRADING CO. v. ALBERT KHALILY 2

McLAUGHLIN, Circuit Judge:
Plaintiff appeals from an order entered August 19, 1996 in the United States District Court for the Southern District of New York (Wood, J.) dismissing plaintiff’s claims for lack of Subject Matter Jurisdiction . We review de novo the grant of the dismissal motion. See Painewebber Inc. v. Bybyk, 81 F.3d 1193, 1197 (2d Cir. 1996).

The principal issue is whether a Hong Kong corporation is either a “citizen or subject”of a “foreign state”for purposes of alienage jurisdiction. See U.S. Const. art. III, § 2, cl. 1; 28 U.S.C. § 1332(a)(2). More precisely the issue is whether Hong Kong may be regarded as a “foreign state.”We hold that it may not and, accordingly, affirm the district court.

BACKGROUND
Plaintiff Matimak Trading Co. Ltd. is a corporation organized under the laws of Hong Kong, with its principal place of business in Hong Kong. It seeks to sue Albert Khalily and D.A.Y. Kids Sportswear Inc., two New York corporations, in the Southern District of New York (Wood, J.) for breach of contract. Matimak invoked the court’s diversity jurisdiction under 28 U.S.C. § 1332(a)(2), which provides jurisdiction over any civil action arising between “citizens of a State and citizens or subjects of a foreign state.”

In June 1996, the district court sua sponte raised the issue of the court’s Subject Matter Jurisdiction . In August 1996, after allowing the parties to brief the issue, the district court dismissed the Complaint for lack of subject matter jurisdiction. The court concluded that Hong Kong is not a “foreign state”under the diversity statute, and, consequently, Matimak is not a “citizen or subject”of a “foreign state.”

DISCUSSION
This is not the first time we have had to navigate what we have earlier described as a “shoalstrewn area of the law.”National Petrochemical Co. of Iran v. M/T Stolt Sheaf, 860 F.2d 551, 552 (2d Cir. 1988).

Article III of the Constitution extends the federal judicial power to “all Cases . . . between a State, or citizens thereof, and foreign States, Citizens or Subjects.”U.S. Const. art. III, § 2, cl. 1. The United States Judicial Code tracks the constitutional language by providing diversity jurisdiction over any civil action arising between “citizens of a State and citizens or subjects of a foreign state.”28 U.S.C. § 1332(a)(2). This judicial power is referred to as “alienage jurisdiction.”Iran Handicraft and Carpet Export Ctr. v. Marjan Int’l Corp., 655 F. Supp. 1275, 1277 (S.D.N.Y. 1987), aff’d, 868 F.2d 1267 (2d Cir. 1988).

British sovereignty over Hong Kong ceases on July 1, 1997, when Hong Kong becomes a special administrative region of the People’s Republic of China. See 22 U.S.C. § 5701(1)(B) (West Supp. 1996). Diversity of citizenship, however, is determined as of the commencement of an action. See Louisville, N.A. & C. Ry. Co. v. Louisville Trust Co., 174 U.S. 552, 566 (1899); Smith v. Sperling, 354 U.S. 91, 93 n.1 (1957); Maryland Cas. Co. v. W.R. Grace and Co., 23 F.3d 617, 622 (2d Cir. 1993).

Given these building blocks, we must address three principal questions: (1) whether Hong Kong is a “foreign state,”such that Matimak is a “citizen or subject”of a “foreign state”; (2) whether Matimak is a “citizen or subject”of the United Kingdom, by virtue of Hong Kong’s relationship with the United Kingdom when it brought suit; and (3) whether any and all non-citizens of the United States may ipso facto invoke alienage jurisdiction against a United States citizen. Although not addressed by the parties, this last question is the focus of the dissent, and thus merits serious consideration.

I. Is Hong Kong a “Foreign State”?
A. Well-Established Principles in this Court
Neither the Constitution nor § 1332(a)(2) defines “foreign state.”However, “[i]t has generally been held that a foreign state is one formally recognized by the executive branch of the United States government.”13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3604 (1984).

For purposes of diversity jurisdiction, a corporation is a “citizen”or “subject”of the entity under whose sovereignty it is created. See National Steamship Co. v. Tugman, 106 U.S. 118, 121 (1882); Restatement (Second) of the Foreign Relations Law of the United States § 26 (1965).

The Supreme Court has never addressed the issue before us. This Court, however, has applied these general rules in addressing alienage jurisdiction on several occasions.

In Iran Handicraft and Carpet Export Center v. Marjan International Corp., 655 F. Supp. 1275 (S.D.N.Y.), aff’d, 868 F.2d 1267 (2d Cir. 1988), an Iranian corporation sued a New York corporation in the Southern District of New York for breach of contract. When the complaint was filed, Iran was undergoing a revolutionary change of government. The issue was whether the court was required to find that the United States formally recognized the new government of Iran to permit the plaintiff to invoke alienage jurisdiction. See id. at 1275-76.

The court noted the general rule that a “foreign state”in § 1332(a)(2) is one “formally recognized by the executive branch.”Id. at 1277 (citing Wright, Miller & Cooper, supra, § 3604). The court explained:

Because the Constitution empowers only the President to “receive Ambassadors and other public Ministers,”the courts have deferred to the executive branch when determining what entities shall be considered foreign states. The recognition of foreign states and of foreign governments, therefore, is wholly a prerogative of the executive branch. Thus, it is outside the competence of the judiciary to pass judgment upon executive branch decisions regarding recognition.

Id. (citations omitted).

The court surveyed the case law, concluding that “[i]n cases involving parties claiming to be citizens of a foreign state, . . . courts have focused on whether the foreign state was recognized by the United States as `a free and independent sovereign.’”Id. at 1278 (quoting Windert Watch Co. v. Remex Elecs. Ltd., 468 F. Supp. 1242, 1244 (S.D.N.Y. 1979)). This description is consistent with the accepted definition of a “state”in international law, which requires that the entity have a “`defined territory’”and be “`under the control of its own government.’”National Petrochemical Co. of Iran v. M/T Stolt Sheaf, 860 F.2d 551, 553 (2d Cir. 1988) (quoting Restatement (Third) of the Foreign Relations Law of the United States § 201 (1987)). Relying on the State Department’s clarification of Iran’s diplomatic status, the Iran Handicraft court concluded that “it is beyond doubt that the United States continues to recognize Iran as an independent sovereign nation.”655 F. Supp. at 1280 & n.4.

The parties here agree that the United States has not formally recognized Hong Kong as a foreign state. Invoking the jurisprudence of this Court and others, however, Matimak contends that Hong Kong has received “de facto”recognition as a foreign state by the United States, and thus its citizens may invoke alienage jurisdiction. Matimak points to the United States’ diplomatic and economic ties with Hong Kong as evidence of this recognition.

This Court established the doctrine of de facto recognition in Murarka v. Bachrack Brothers, Inc., 215 F.2d 547 (2d Cir. 1954). In that case a partnership doing business in New Delhi, India sued a New York corporation. The court ruled that it had alienage jurisdiction despite the fact that the complaint was filed thirty days before the United States formally recognized India as a foreign state. The court explained:

True, as of July 14, 1947 our Government had not yet given India de jure recognition, but its exchange of ambassadors in February and April 1947 certainly amounted at least to de facto recognition, if not more. To all intents and purposes, these acts constituted a full recognition of the Interim Government of India at a time when India’s ties with Great Britain were in the process of withering away, which was followed a month later, when partition took place between India and Pakistan, by the final severance of India’s status as a part of the British Empire. . . . Unless form rather than substance is to govern, we think that in every substantial sense by the time this complaint was filed India had become an independent international entity and was so recognized by the United States.

Id. at 552 (citation omitted).

This analysis might reasonably be regarded as nothing more than an acknowledgment of the United States’ imminent formal recognition of a sovereign state. The analogy of Hong Kong to India is inapt. India, which had been a colony of Great Britain, was about to become an independent sovereign nation. Not so for Hong Kong, which is about to be absorbed into China. Hong Kong is merely changing fealty.

Matimak, of course, argues for a more flexible interpretation of the de facto test. At the very least, however, as Iran Handicraft noted, the de facto test depends heavily on whether the Executive Branch regards the entity as an “independent sovereign nation.”655 F. Supp. at 1278. It is beyond cavil that “[w]ho is the sovereign, de jure or de facto, of a territory, is not a judicial, but a political, question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government.”Jones v. United States, 137 U.S. 202, 212 (1890); see Vermilya-Brown Co. v. Connell, 335 U.S. 377, 380 (1948); United States ex rel. D’esquiva v. Uhl, 137 F.2d 903, 906 (2d Cir. 1943).

The deference to the Executive Branch exhibited in Iran Handicraft and Murarka was similarly crucial in Calderone v. Naviera Vacuba S/A, 325 F.2d 76 (2d Cir. 1963), modified on other grounds, 328 F.2d 578 (2d Cir. 1964) (per curiam), where we sustained alienage jurisdiction in a suit between a Cuban corporation and an American company. The court explained:

Considerations of both international relations and judicial administration lead us to conclude that the onus is on the Department of State, or some other department of the Executive Branch, to bring to the attention of the courts its decision that permitting nationalized Cuban corporations to sue is contrary to the national interest. Since silence on the question may be highly desirable, it would not be wise for the court unnecessarily to force the Government’s hand. However, in this case we need not merely rely on the maintenance of the status quo, because the Executive Branch has made its wishes known. . . . [T]he Department of Justice has urged that nationalized Cuban corporations have access to our courts with the protection of the act of state doctrine.

Id. at 77.

Courts have consistently required such deference for purposes of alienage jurisdiction. See, e.g., Abu-Zeineh v. Federal Labs., Inc., No. 91-2148, at 3-5 (W.D. Pa. Dec. 7, 1994) (holding that Palestine is not a foreign state for purposes of alienage jurisdiction, as Palestine had not been recognized by the United States as an independent, sovereign nation); Bank of Hawaii v. Balos, 701 F. Supp. 744, 746-47 (D. Haw. 1988) (holding that the Republic of the Marshall Islands (“RMI”) is a foreign state for purpose of alienage jurisdiction, relying on the fact that “[b]oth the Congress and the President have indicated that the RMI is henceforth to be treated as an independent sovereign”); St. Germain v. West Bay Leasing, Ltd., No. 81-CV-3945, at 4-5 (E.D.N.Y. Sept. 30, 1982) (holding that a Cayman Islands corporation may not invoke alienage jurisdiction, finding that the United States does not recognize the Cayman Islands as an independent sovereign); Chang v. Northwestern Mem’l Hosp., 506 F. Supp. 975, 978 (N.D. Ill. 1980) (holding that Taiwan is a foreign state for purposes of alienage jurisdiction, relying on a letter from a representative from the State Department confirming that Taiwanese citizens could sue in federal court); Klausner v. Levy, 83 F. Supp. 599, 600 (E.D. Va. 1949) (holding that Palestine is not a foreign state for purposes of alienage jurisdiction, as Palestine had not been recognized by the United States as an independent, sovereign nation); Betancourt v. Mutual Reserve Fund Life Ass’n, 101 F. 305, 306 (C.C.S.D.N.Y. 1900) (holding that Cuba is a foreign state for purposes of alienage jurisdiction, noting that the United States had recognized Cuba as “free and independent”).

When Matimak brought this suit in August 1995, Hong Kong was a “British Dependent Territory,”British Nationality Act 1981, Sched. 6, and was ruled by a governor appointed by the United Kingdom. As such, it maintained some independence in its international economic and diplomatic relationships, but in matters of defense and foreign affairs remained dependent on the United Kingdom.

Hong Kong is the United States’ twelfth-largest trading partner, with direct United States financial investment of almost twelve billion dollars. See Letter from Jim Hergen, Assistant Legal Advisor for East Asian and Pacific Affairs, United States Department of State, to Marshall T. Potashner, Attorney for Matimak, of 6/21/96, at 3. Hong Kong’s relationship with the United States was most recently manifested in the United States-Hong Kong Policy Act of 1992, 22 U.S.C. §§ 5701-32 (West Supp. 1996), which makes clear that Congress desires United States-Hong Kong relations to continue after July 1, 1997, when Hong Kong becomes a special administrative region of China. The Act states that “Hong Kong plays an important role in today’s regional and world economy. This role is reflected in strong economic, cultural, and other ties with the United States that give the United States a strong interest in the continued vitality, prosperity, and stability of Hong Kong.”Id. § 5701(4).

The Policy Act makes equally clear, however, that the United States does not regard Hong Kong as an independent, sovereign political entity. The Act provides that Hong Kong “will continue to enjoy a high degree of autonomy on all matters other than defense and foreign affairs,”id. § 5701(1)(B), and emphasizes that only “with respect to economic and trade matters”shall the United States “continue to treat Hong Kong as a territory which is fully autonomous from the United Kingdom,”id. § 5713(3). The Act points to the need to safeguard human rights during the “transition in the exercise of sovereignty over Hong Kong.”Id. § 5701(6).

The United States has embraced the same position on this appeal. Having originally stated that “Hong Kong should . . . be treated in the courts of the United States as a de facto `foreign state’”for purposes of alienage jurisdiction, Letter from Hergen to Potashner, supra, at 2, the United States reversed course. In its amicus brief, the Justice Department notes that “[t]he State Department no longer urges treatment of Hong Kong as a de facto foreign state and withdraws any reliance on this contention.”

Although we need not resolve this issue here, we note that the State Department’s unexplained change in stance following the district court’s opinion might under different circumstances require further inquiry into its ulterior motives. Cf. National Petrochemical, 860 F.2d at 555-56 (court might boggle at “ad hoc, pro hac vice”directive of the government). No reason is apparent, and none is suggested, for refusing to defer to the State Department in this case.

The State Department’s stance on appeal confirms what is already clear from the United States’ dealings with Hong Kong, as evidenced in the Policy Act: it does not regard Hong Kong as an independent sovereign entity. Cf. id. (considering evidence “in the aggregate”and concluding that there is “no indication”that the government’s statement of interest was “an arbitrary or ad hoc directive.”).

For these reasons, it is clear that the United States does not recognize Hong Kong as a sovereign and independent international entity. Cf. id. (considering “in the aggregate”the evidence of whether the United States intended to allow the Iranian government to bring suit in diversity). Accordingly, consistent with this Court’s precedent, Matimak cannot invoke alienage jurisdiction as a “citizen or subject”of Hong Kong.

Nevertheless, Matimak and the dissent question these precedents. We must address their concerns.

B. Deference to the Executive Branch: Sound Precedent
There are at least two compelling reasons for this Court to continue to defer to the Executive Branch in defining a “foreign state”for purposes of alienage jurisdiction: such deference is consistent with (1) the purposes of alienage jurisdiction and (2) the well-established analysis for defining a “foreign state”in related jurisdictional statutes and constitutional provisions.

1. Rationales Underlying Alienage Jurisdiction
The raison d’être of alienage jurisdiction is to avoid “entanglements with other sovereigns that might ensue from failure to treat the legal controversies of aliens on a national level.”Iran Handicraft, 655 F. Supp. at 1277 (citations omitted); see Sadat v. Mertes, 615 F.2d 1176, 1186 (7th Cir. 1980) (noting that the “paramount purpose”of the alienage jurisdiction provision to is avoid offense to foreign nations because of the possible appearance of injustice to their citizens); Van Der Schelling v. U.S. News & World Report, 213 F. Supp. 756, 758-61 (E.D. Pa.) (noting the drafters’ emphasis on preserving peace with foreign nations, the inability of a prince or sovereign of a country to redress prejudice against one of his citizens or subjects in our courts, and their conviction that such prejudice amounts to aggression upon the sovereign), aff’d, 324 F.2d 956 (3d Cir. 1963); Blair Holdings Corp. v. Rubinstein, 133 F. Supp. 496, 500 (S.D.N.Y. 1955) (noting the “[a]pprehension of entanglements with other sovereigns that might ensue from failure to treat the legal controversies of aliens on a national level”); Kevin R. Johnson, “Why Alienage Jurisdiction? Historical Foundations and Modern Justifications for Federal Jurisdiction over Disputes Involving Noncitizens,”21 Yale J. Int’l L. 1, 10-16 (1996). These “entanglements”range from war to negative commercial impacts. See Johnson, supra, at 11-14, 20.

A secondary rationale is historical. “Several states had failed to give foreigners proper protection under the Treaties concluded with England at the end of the Revolution.”Henry J. Friendly, “The Historic Basis of Diversity Jurisdiction,”41 Harv. L. Rev. 483, 484 n.6 (1927-28); see also Sadat, 615 F.2d at 1182; Blair Holdings, 133 F. Supp. at 500. “Local animosity was so great that only national tribunals could compel the enforcement of a national treaty.”Friendly, 41 Harv. L. Rev. at 484 n.6. The drafters’ concern with the failure of individual states to protect foreigners under Treaties is intertwined with their intent “to provide the federal courts with a form of protective jurisdiction over matters implicating international relations where the national interest was paramount.”Sadat, 615 F.2d at 1182.

These rationales command deference to the Executive Branch’s recognition of a foreign entity. Where the Executive Branch determines that a foreign entity is not a “sovereign,”there is no threat of entanglement with a sovereign stemming from the refusal of a federal court to treat that entity’s citizen in a national forum. To be sure, if an unrecognized foreign entity perceives that its citizens have been subject to bias in a state court, there may be foreign-relations repercussions. Indeed, the dissent seems particularly concerned with potential economic–and even legal–repercussions in the instant case. It is clearly the bailiwick of the Executive Branch, however, to evaluate the autonomy and resources of a foreign entity in evaluating whether the entity constitutes a sovereign and independent state; it is for the Executive Branch, not the courts, to anticipate where potential “entanglements”with such entities are appreciable enough to recognize sovereign status.

2. Definition of “Foreign State”in Related Jurisdictional Statutes
Deference to the Executive Branch for purposes of alienage jurisdiction is further warranted in light of the well-established jurisprudence surrounding the notion of “foreign state”in other jurisdictional statutes. See 28 U.S.C. §§ 1330(a), 1332(a)(2), 1332(a)(4), and 1441(d).

The same terms used in the same statute should get the same meaning. See BankAmerica Corp. v. United States, 462 U.S. 122, 129 (1983); Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980).

Section 1332(a)(4) and the current § 1332(a)(2), of course, were not originally drafted together. In 1976, having revised § 1332(a)(2), Congress added § 1332(a)(4) to provide for diversity jurisdiction in suits brought by foreign states against a United States citizen. Congress chose to define the term “foreign state”in the new § 1332(a)(4) by reference to 28 U.S.C. § 1603(a). Wright, Miller & Cooper, supra, § 3604. Section 1603 uses the term “foreign state”repeatedly, but never defines it. See Morgan Guar. Trust Co. of N.Y. v. Republic of Palau, 924 F.2d 1237, 1243 (2d Cir. 1991) (Section 1603 “is more descriptive than definitional”). That Congress did not at the same time define “foreign state”in § 1332(a)(2) by a similar reference to § 1603(a) suggests only that “foreign state”in § 1332(a)(2) does not include § 1603(a)’s inclusion of certain instrumentalities, political subdivisions and other state entities as a “foreign state.”See Windert, 468 F. Supp. at 1246; Ruggiero v. Compania Peruana de Vapores “Inca Capac Yupanqui”, 639 F.2d 872, 875 n.6 (2d Cir. 1981). It does not suggest that “foreign state,”as undefined in § 1603 or § 1332(a)(2), should get different meanings.

This Court has ruled that, for purposes of § 1332(a)(4), a foreign state and the government that represents it must be one “`recognized’”by the United States. National Petrochemical, 860 F.2d at 553 (citing Pfizer Inc. v. India, 434 U.S. 308, 319-20 (1978)). This holding reflects the well-established jurisprudence of the Supreme Court. See Pfizer, 434 U.S. at 319-20; Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410-12 (1964); National City Bank of N.Y. v. Republic of China, 348 U.S. 356, 358 (1955); Guaranty Trust Co. of N.Y. v. United States, 304 U.S. 126, 137 (1938); Jones v. United States, 137 U.S. 202, 212 (1890); see also Land Oberoesterreich v. Gude, 109 F.2d 635, 637 (2d Cir. 1940).

The similar rationales underlying § 1332(a)(2) and § 1332(a)(4) should compel a similar definition of “foreign state.”The courts must respect the role of the Executive Branch in foreign affairs, both by acknowledging its evaluation of a foreign entity’s sovereignty, and thus international standing, and by respecting its determination as to whether a foreign entity or its government should be permitted to sue in our courts. See generally Banco Nacional, 376 U.S. at 410.

According the same core meaning to “foreign state”in both sections of the statute in which it occurs, we defer to the Executive Branch for purposes of § 1332(a)(2).

Author: international

Mentioned in these Entries

Attorney, MATIMAK TRADING CO. v. ALBERT KHALILY 2, Subject Matter Jurisdiction, Treaties, country.