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No. 05-879

In the Supreme Court of the United States

ADELLA CHIMINYA TACHIONA, ON HER OWN BEHALF AND ON BEHALF OF HER LATE HUSBAND TAPFUMA CHIMINYA TACHIONA, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
DOUGLAS N. LETTER
LEWIS S. YELIN
DAVID S. JONES
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the United States had standing to appeal from the district court's judgment in this case.

2. Whether the court of appeals correctly held that the president and foreign minister of Zimbabwe were not subject to service of process during a period when they were present in the United States to attend a conference at the United Nations.

In the Supreme Court of the United States

No. 05-879

ADELLA CHIMINYA TACHIONA, ON HER OWN BEHALF AND ON BEHALF OF HER LATE HUSBAND TAPFUMA CHIMINYA TACHIONA, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-28a) is reported at 386 F.3d 205. The opinions of the district court (Pet. App. 29a-96a, 97a-120a, 121a-216a) are re ported at 234 F. Supp. 2d 401, 186 F. Supp. 2d 383, and 169 F. Supp. 2d 259, respectively.

JURISDICTION

The judgment of the court of appeals was entered on October 6, 2004. A petition for rehearing was denied on August 30, 2005 (Pet. App. 217a-218a). On November 18, 2005, Justice Ginsburg extended the time within which to file a petition for a writ of certiorari to and in cluding January 12, 2006, and the petition was filed on that date. The jurisdiction of this Court is invoked un der 28 U.S.C. 1254(1).

STATEMENT

1. Article II, Section 2 of the Constitution states that the President "shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." Article II, Section 3 assigns to the President the power to "receive Ambassadors and other public Ministers." Although the immunity of foreign states from suit in United States courts has been governed since 1976 by the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1330, 1602 et seq., the FSIA does not address the immunity of foreign heads of state. Since the passage of the FSIA, the federal courts have consistently recog nized the binding nature of Executive Branch assertions that a foreign head of state is immune from the jurisdic tion of United States courts.1

2. Two treaties govern the immunities of foreign dignitaries when they are visiting the United States to attend conferences convened by the United Nations (U.N.). First, the Convention on Privileges and Immu nities of the United Nations (U.N. Convention), which was adopted by the U.N. General Assembly on February 13, 1946, and ratified by the United States on April 15, 1970, enumerates various privileges and immunities that temporary envoys to United Nations conferences shall enjoy "while exercising their functions and during their journey to and from the place of the meeting." U.N. Convention art. IV, § 11, 21 U.S.T. 1418, 1426, 1 U.N.T.S. 15, 20. Inter alia, the U.N. Convention vests such envoys with "immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, im munity from legal process of every kind." Art. IV, § 11(a), 21 U.S.T. at 1426, 1 U.N.T.S. at 20. The U.N. Convention further provides that temporary representa tives to United Nations conferences shall enjoy "such other privileges, immunities and facilities not inconsis tent with [those previously enumerated in Section 11] as diplomatic envoys enjoy." Art. IV, § 11(g), 21 U.S.T. at 1428, 1 U.N.T.S. at 22.

The Vienna Convention on Diplomatic Relations (Vi enna Convention), which was opened for signature on April 18, 1961, and ratified by the United States on No vember 8, 1972, 23 U.S.T. 3227, 500 U.N.T.S. 95, speci fies the privileges and immunities of diplomatic envoys generally. The Vienna Convention provides diplomatic envoys with broad immunity from the civil jurisdiction of United States courts, subject to three limited excep tions that are not relevant to this case. Vienna Conven tion art. 31(1), 23 U.S.T. at 3240, 500 U.N.T.S. at 112. In addition, the Vienna Convention makes the "person of a diplomatic agent * * * inviolable" and requires the "receiving State [to] treat him with due respect and [to] take all appropriate steps to prevent any attack on his person, freedom or dignity." Art. 29, 23 U.S.T. at 3240, 500 U.N.T.S. at 110.

3. Petitioners are five citizens of Zimbabwe and the estates of three deceased Zimbabweans. Petitioners filed suit in the Southern District of New York, naming as defendants Robert Mugabe, the President of Zimba bwe; Stan Mudenge, the country's Foreign Minister; and the Zimbabwe African National Union-Patriotic Front (ZANU-PF), a political party of which Mugabe and Mudenge are senior officers. Pet. App. 2a-3a. Petition ers based their claims on 28 U.S.C. 1350; the Torture Victim Protection Act of 1991 (TVPA), 28 U.S.C. 1350 note; and "international human rights norms." Pet. App. 2a. Petitioners alleged that the defendants had engaged in egregious human rights violations against them be cause of petitioners' political activity in Zimbabwe. Id. at 3a; see Pet. 4.2

In September 2000, Mugabe and Mudenge visited New York City as part of an official Zimbabwean delega tion attending the Millennium Summit at the United Nations. Pet. App. 3a. Petitioners delivered the sum mons and complaint to Mugabe just before he entered a building where he was to speak at a private political rally and fundraiser. Ibid. Mudenge was given the sum mons and complaint the following day during the same official visit to New York City. Ibid. Those actions were the sole means by which petitioners attempted to serve process on the defendants, including ZANU-PF. None of the defendants responded to petitioners' complaint or appeared before the district court. Ibid. Based on the defendants' failure to appear in the suit, petitioners sought a default judgment. Id. at 128a.

After receiving a diplomatic request from Zimbabwe, the United States filed a suggestion of immunity pursu ant to 28 U.S.C. 517. Pet. App. 3a & n.1. The govern ment's filing informed the district court that petitioners' suit should be dismissed because Mugabe and Mudenge were entitled to head-of-state immunity, as well as to diplomatic immunity under the U.N. and Vienna Con ventions. Id. at 3a; see C.A. App. 327, 336. The govern ment further asserted that both types of immunity con ferred "personal inviolability" on Mugabe and Mudenge as foreign dignitaries visiting the United States, and that any attempted service of process on them-whether in their personal capacities or as agents of ZANU-PF- should be treated as a nullity. See Pet. App. 3a-4a.

4. The district court held that Mugabe and Mudenge enjoyed both head-of-state and diplomatic immunity at the time they were served, and that petitioners' claims against those defendants therefore could not proceed. See Pet. App. 179a, 188a. The court nevertheless re jected the government's contention that the attempted service of process upon Mugabe and Mudenge must be treated as a legal nullity in determining ZANU-PF's susceptibility to suit. See id. at 188a-200a. The district court noted that ZANU-PF itself did not possess any immunity from suit, see id. at 190a, and it rejected the government's contention that courts must give conclu sive effect to the State Department's views regarding the scope of head-of-state immunity in contexts such as this, see id. at 193a.

The government sought reconsideration of the dis trict court's ruling that petitioners had properly effected service of process on ZANU-PF through Mugabe and Mudenge. See Pet. App. 98a. Pursuant to Federal Rule of Civil Procedure 24, the government also moved to intervene for the purpose of taking a later appeal. Pet. App. 114a. The district court denied the motion for re consideration but granted the motion to intervene. Id. at 120a. The court subsequently entered a default judg ment against ZANU-PF and awarded petitioners more than $71 million in compensatory and punitive damages. Id. at 5a, 94a-96a.

5. The United States appealed the default judgment entered against ZANU-PF, and petitioners cross-ap pealed the district court's dismissal of their claims against Mugabe and Mudenge. The court of appeals affirmed in part and reversed in part, holding that peti tioners' complaint should have been dismissed in its en tirety. Pet. App. 1a-28a.

a. The court of appeals first held that the United States had standing to appeal the district court's judg ment. Pet. App. 5a-11a. The court explained that, to have standing to appeal, a litigant must demonstrate an injury caused by the lower court's judgment. Id. at 5a. The court concluded that the United States was injured by the default judgment against ZANU-PF because that judgment impaired the ability of the United States (i) to ensure its compliance with its treaty obligations and (ii) to establish the terms upon which foreign diplomats are received. Id. at 11a.

b. The court of appeals affirmed the district court's dismissal of petitioners' claims against Mugabe and Mudenge. Pet. App. 12a-22a. The court recognized that Section 11(a) of the U.N. Convention is inapplicable to this suit because immunity under Section 11(a) is limited to "acts done by [temporary representatives] in their capacity as representatives," and petitioners' claims do not arise out of such acts. Id. at 13a (quoting U.N. Con vention art. IV, § 11(a), 21 U.S.T. at 1426, 1 U.N.T.S. at 20). The court observed, however, that Section 11(g) of the U.N. Convention extends to temporary representa tives any additional privileges and immunities that are afforded to diplomatic envoys so long as those privileges and immunities are "not inconsistent with" Section 11(a)-(f). Ibid. (quoting U.N. Convention art. IV, § 11(g), 21 U.S.T. at 1428, 1 U.N.T.S. at 22). The court explained that the Vienna Convention grants diplomatic envoys "a much more robust form of immunity from le gal process than that afforded by section 11(a) of the U.N. Convention on Privileges and Immunities," since Article 31 of the Vienna Convention "broadly immunizes diplomatic representatives from the civil jurisdiction of the United States courts." Ibid.

Petitioners contended that "extend[ing] to Mugabe and Mudenge the full measure of immunity set forth in Article 31 of the Vienna Convention would be 'inconsis tent with' section 11(a) of the U.N. Convention on Privi leges and Immunities because section 11(a) expressly limits the scope of immunity from legal process that temporary U.N. representatives can enjoy." Pet. App. 14a. The court of appeals rejected that argument. While viewing the phrase "inconsistent with" as ambigu ous standing alone (id. at 15a), the court concluded that "the understandings of the treaty signatories and the views of the executive branch * * * overwhelmingly support an interpretation of section 11(g) that would accord the full protection of Article 31 of the Vienna Convention to temporary U.N. representatives." Id. at 16a. The court of appeals further held that petitioners' suit does not implicate any of Article 31's limited excep tions to the immunity of diplomatic envoys from civil jurisdiction, see id. at 20a-22a, and it therefore affirmed the district court's dismissal of petitioners' claims against Mugabe and Mudenge, see id. at 22a.

c. The court of appeals next held that the personal "inviolability" that Mugabe and Mudenge enjoyed under Article 29 of the Vienna Convention (as applied to them through Section 11(g) of the U.N. Convention) precluded petitioners from using them as involuntary agents for service of process on ZANU-PF. Pet. App. 23a-28a. The court observed that personal inviolability is one of the oldest and most universally recognized of diplomatic privileges and immunities, and that it serves both to protect the diplomat's dignity and to ensure that he can perform his responsibilities without hindrance. Id. at 27a. The court further explained that the adverse "practical consequences of allowing service of process upon diplomatic agents * * * are equally likely to fol low whether the diplomat (or the U.N. representative enjoying diplomatic immunity) is served as an agent for a private entity or as an agent for a foreign govern ment." Id. at 28a. The court of appeals therefore con cluded that Article 29 "protected Mugabe and Mudenge from service of process as agents for ZANU-PF," and it directed the district court to dismiss petitioners' claims against ZANU-PF for lack of proper service. Pet. App. 28a.3

ARGUMENT

The decision of the court of appeals is correct and does not conflict with any decision of this Court or of any other court of appeals. Further review is not warranted.

1. Petitioners contend (Pet. 11-19) that the United States lacked standing to appeal the default judgment entered against ZANU-PF. The court of appeals cor rectly rejected that argument. See Pet. App. 5a-11a.

a. More than 80 years ago, this Court recognized that the United States has standing to sue to prevent a violation of the government's treaty obligations, even in the absence of statutory authorization for the suit. San itary Dist. v. United States, 266 U.S. 405, 425-426 (1925). The lower federal courts have continued to apply that principle. See, e.g., Roeder v. Islamic Republic of Iran, 333 F.3d 228, 233-234 (D.C. Cir. 2003) (United States had standing to intervene as defendant to seek dismissal of suit that violated the Algiers Accords), cert. denied, 542 U.S. 915 (2004); United States v. City of Glen Cove, 322 F. Supp. 149, 152 (E.D.N.Y.) (United States had standing to sue to prevent state action that would violate treaty obligation), aff'd, 450 F.2d 884 (2d Cir. 1971) (per curiam); cf. United States v. County of Arlington, 669 F.2d 925, 928-929 (4th Cir.) (United States could sue to ensure compliance with treaty obli gations), cert. denied, 459 U.S. 801 (1982). Petitioners offer no plausible reason to doubt that the government's interest in ensuring compliance with the United States' treaty obligations is likewise sufficient to confer stand ing to appeal.

Contrary to petitioners' contention (Pet. 13), the court of appeals did not abdicate its responsibility to rule on the question of treaty interpretation presented by this case. In resolving the threshold question of ap pellate jurisdiction, the court of appeals determined that, because the United States had adequately alleged an impairment of its ability to ensure compliance with its treaty obligations, the United States had standing to appeal. See Pet. App. 7a-8a. But in deciding the mer its of the government's appeal, the court-giving appro priate weight to the views of the Executive Branch- construed the relevant treaty provisions and held that Mugabe and Mudenge were entitled to the personal invi olability and diplomatic immunity conferred upon diplo matic envoys by Articles 29 and 31 of the Vienna Con vention. See Pet. App. 13a-20a, 23a-28a. That mode of analysis was entirely appropriate. In any event, the court of appeals' ultimate resolution of the case clearly would have been the same if the court had treated an actual treaty violation as a prerequisite to the govern ment's appellate standing.

b. Article II, Section 3 of the Constitution assigns to the President the power to "receive Ambassadors and other public Ministers." That power encompasses the authority "to dictate the terms upon which foreign diplo mats are received in this country." Pet. App. 9a. As the court of appeals correctly held, the United States has a judicially cognizable interest, sufficient to confer stand ing on appeal, in "guarding its authority to set the terms upon which foreign ambassadors are received." Id. at 11a; see Vienna Convention art. 29, 23 U.S.T. at 3240, 500 U.N.T.S. at 110 ("The person of a diplomatic agent shall be inviolable. * * * The receiving state * * * shall take all appropriate steps to prevent any attack on [the diplomatic agent's] person, freedom or dignity.").

Petitioners' reliance (Pet. 14-16) on Raines v. Byrd, 521 U.S. 811 (1997), is misplaced. In Raines, this Court held that six individual members of Congress lacked standing to challenge the constitutionality of the Line Item Veto Act, 2 U.S.C. 691 et seq., because the plain tiffs "alleged no injury to themselves as individuals [and] the institutional injury they allege[d] [wa]s wholly abstract and widely dispersed." 521 U.S. at 829. As the court of appeals correctly held, Raines "is distinguish able in crucial respects from the instant case." Pet. App. 10a.

Most significantly, Raines involved a purely intra- governmental dispute in which all parties to the case were members of either the Legislative or Executive Branch. This Court emphasized that Article III courts have historically declined to intercede in disputes be tween the political Branches. See Raines, 521 U.S. at 826-829. Here, by contrast, a live controversy exists between the United States and petitioners themselves, who are private parties rather than federal officials.

In Raines, moreover, the plaintiffs alleged only that the Line Item Veto Act would cause an "abstract dilu tion of institutional legislative power" (521 U.S. at 826) with respect to hypothetical future enactments. See id. at 825-826. In the instant case, the United States al leged and demonstrated a concrete impairment of the President's ability to ensure compliance with specific treaty obligations and to define the terms on which par ticular foreign envoys will be received. Finally, the Court in Raines "attach[ed] some importance to the fact that [the plaintiffs] ha[d] not been authorized to repre sent their respective Houses of Congress in this action, and indeed both Houses actively oppose[d] their suit." Id. at 829. The briefs filed on behalf of the United States in this case, by contrast, represent the position of the Executive Branch as a whole.4

2. On the merits, the court of appeals held that, un der Section 11(g) of the U.N. Convention, Mugabe and Mudenge were entitled to the protections afforded to diplomatic envoys under Articles 29 and 31 of the Vienna Convention. See Pet. App. 12a-22a, 23a-28a. Petitioners contend (Pet. 19-24) that the court of appeals' holding is inconsistent with the text of Section 11 of the U.N. Con vention. That argument lacks merit.

a. Petitioners' argument is based on the fact that the "immunity from legal process of every kind" pro vided by Section 11(a) of the U.N. Convention applies "in respect of words spoken or written and all acts done by [temporary representatives to the United Nations] in their capacity as representatives." U.N. Convention art. IV, § 11(a), 21 U.S.T. at 1426, 1 U.N.T.S. at 20. That immunity is inapplicable here because the wrongs al leged in petitioners' complaint do not involve acts per formed by Mugabe and Mudenge "in their capacity as representatives." As the court of appeals recognized (Pet. App. 13a), however, Section 11(a) of the U.N. Con vention is not the exclusive source of immunity for tem porary representatives to the United Nations. In addi tion, Section 11(g) of the same Convention vests tempo rary representatives with "such other privileges, immu nities and facilities not inconsistent with [Section 11(a)- (f)] as diplomatic envoys enjoy." U.N. Convention art. IV, § 11(g), 21 U.S.T. at 1428, 1 U.N.T.S. at 22.

Among the privileges and immunities that "diplo matic envoys enjoy" are the personal inviolability and immunity from legal process that are guaranteed by Articles 29 and 31 of the Vienna Convention. The court of appeals correctly held that those protections are "not inconsistent with" Section 11(a)-(f) of the U.N. Conven tion and are therefore available to United Nations en voys pursuant to Section 11(g). Pet. App. 13a-19a. Peti tioners cite no decision that has construed the relevant treaty provisions in a different manner.

b. Petitioners contend (Pet. 22) that the court of ap peals' decision "nullifies the limitations set forth in Sec tion 11(a) [of the U.N. Convention], rendering that sub section completely superfluous and meaningless." Peti tioners' argument ignores the fact that the scope of im munity afforded to diplomatic envoys, either pursuant to treaty or as a matter of customary international law and practice, is potentially subject to change over time. Sec tion 11(a) of the U.N. Convention ensures that tempo rary representatives to the United Nations will always receive at least a specified minimum level of protection, without regard to the extent of the immunities that are available to diplomatic envoys at a particular point in time. Section 11(a) therefore is not superfluous, even assuming that the immunities it confers are currently embraced within the broader protections afforded by the Vienna Convention.

c. In construing "difficult or ambiguous" treaty lan guage, a court "may look beyond the written words to the history of the treaty, the negotiations, and the prac tical construction adopted by the parties." Volkswagen werk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700 (1988) (quoting Air France v. Saks, 470 U.S. 392, 396 (1985)). Because the Executive Branch is charged by the Constitution with negotiating and implementing in ternational agreements, its interpretation of disputed treaty provisions is "given great weight." Kolovrat v. Oregon, 366 U.S. 187, 194 (1961). And because no treaty becomes effective until approved by the Senate, evi dence as to the Senate's understanding of treaty lan guage is also relevant to a court's interpretation. United States v. Stuart, 489 U.S. 353, 367-368 & n.7 (1989).

During the Senate's consideration of the U.N. Con vention, the State Department Legal Adviser expressed the Executive Branch's understanding that, under the Convention, "nonresident representatives [to the United Nations] would * * * receive full diplomatic privileges and immunities." Pet. App. 17a (quoting S. Exec. Rep. No. 17, 91st Cong., 2d Sess. 12 (1970)). The report pre pared by the Senate Committee on Foreign Relations stated the same view. See S. Exec. Rep. No. 17, supra, at 3 ("Under the [U.N. Convention], these nonresident representatives will also be entitled to full diplomatic immunities."). In addition, a 1976 opinion of the United Nations Secretary General confirmed that "Section 11 of the Convention in fact confers * * * diplomatic privi leges and immunities on" temporary representatives. 1976 U.N. Jurid. Y.B. 227, U.N. Doc. ST/LEG/SER.C/14 (quoted at Pet. App. 18a-19a). Those materials amply support the court of appeals' conclusion that "[S]ection 11(g) extends to temporary U.N. representatives like Mugabe and Mudenge the full range of immunity from legal process afforded by Article 31 of the Vienna Con vention," Pet. App. 19a, as well as the personal inviola bility protected by Article 29, see id. at 23a-24a.5

3. Petitioners contend (Pet. 26-29) that, even if Mugabe and Mudenge were entitled to the protections accorded diplomatic envoys under the Vienna Conven tion, they could still be treated as involuntary agents for service of process on ZANU-PF. That argument lacks merit.

a. As this Court recognized nearly 200 years ago, "a consent to receive [a foreign minister], implies a consent that he shall possess those privileges which his principal intended he should retain-privileges which are essen tial to the dignity of his sovereign, and to the duties he is bound to perform." The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch.) 116, 139 (1812). In addi tion to impugning the dignity of both the foreign envoy and the government he represents, treatment of an en voy as an involuntary agent for service of process on an organization with which he is affiliated may impair the envoy's performance of his assigned functions. Service of process on Mugabe and Mudenge effectively required those officials to determine the significance of the docu ments and to inform others at ZANU-PF of the pen dency of the suit, thus diverting Mugabe and Mudenge from their official duties. In addition, the ultimate effect of the district court's ruling on service of process was that an organization of which Mugabe and Mudenge are senior officers was subjected to a large default judgment that could not have been entered if the two officials had remained outside this country or had eluded process servers.6

In a variety of ways, deeming foreign envoys to be proper involuntary agents for service of process on pri vate organizations could hinder diplomatic relations be tween the United States and other nations. Foreign envoys might be deterred from visiting this country. Foreign diplomats who enter the United States could feel pressured to sever their organizational ties or to limit their activities within this country while they are present.7 And independent of any such concrete effect on an envoy's behavior, a United States court's condona tion of an affront to the envoy's dignity may act as an irritant in our relations with the diplomat and the gov ernment he represents.

Use of foreign envoys as involuntary agents for ser vice of process could also disrupt the conduct of this Na tion's foreign policy by subjecting United States diplo mats to like treatment abroad. As the court of appeals observed, "permitting service of process on foreign dip lomats could be construed as a hostile act and, thus, could invite retaliatory practices in otherwise friendly countries." Pet. App. 27a-28a (citing Hellenic Lines, Ltd. v. Moore, 345 F.2d 978, 981 n.5 (D.C. Cir. 1965)); cf. Wei Ye v. Jiang Zemin, 383 F.3d 620, 629 (7th Cir. 2004) (holding that head-of-state immunity precluded use of a foreign head of state as an involuntary agent for service on a third party; court relied in part on the representa tion of the Executive Branch that "it would be a 'great offense if foreign states and their courts were to encour age process servers to hound our President when he is abroad to conduct important negotiations with his for eign counterparts'"), cert. denied, 544 U.S. 975 (2005). The court of appeals correctly declined to permit such risks.

b. In Hellenic Lines, the District of Columbia Cir cuit invoked the practical concerns described above in holding (before the enactment of the FSIA) that a Tuni sian diplomat could not be used as an involuntary agent for service of process upon a foreign state. See 345 F.2d at 980-981 & n.5. Petitioners seek to distinguish Hel lenic Lines, noting that the issue in that case "was whether a diplomat could be served as an agent of a for eign government, not as an agent of a private, non-im mune entity like ZANU-PF." Pet. 28. As the court of appeals explained in the instant case, however, "[n]oth ing in the D.C. Circuit's reasoning turned on the identity of the defendant." Pet. App. 28a. Rather, the crucial holding of Hellenic Lines is that service of process upon a foreign diplomat as agent of another entity may prove disruptive even though the diplomat himself is not being haled into court.

Because "the practical consequences of allowing ser vice of process upon diplomatic agents * * * are equally likely to follow whether the diplomat (or the U.N. repre sentative enjoying diplomatic immunity) is served as an agent for a private entity or as an agent for a foreign government," Pet. App. 28a; see pp. 16-17 & note 7, su pra, the rationale of Hellenic Lines is fully applicable here. The court of appeals' application of Hellenic Lines to the present context is especially appropriate in light of the Executive Branch's judgment that use of a foreign envoy as an involuntary agent for service on a private organization would fully implicate the concerns de scribed in that case. Cf. Wei Ye, 383 F.3d at 630 (defer ring to Executive Branch determination that service of process on a foreign head of state "in order to reach an intended co-defendant in the same suit could frustrate this Nation's diplomatic objectives"). In any event, peti tioners identify no decision that has drawn the distinc tion they advocate or that has approved the use of for eign diplomats as involuntary agents for service of pro cess on private organizations. Absent a conflict in au thority, the question presented does not warrant this Court's review.8

4. Even if review by this Court were otherwise war ranted to clarify the scope of protections accorded to temporary representatives under Section 11(g) of the U.N. Convention, this case would not be an appropriate vehicle for construing that treaty. Independent of the protections to which they were entitled as temporary representatives to the United Nations, Mugabe and Mudenge were immune from all forms of legal process by virtue of the Executive Branch's assertion of head-of- state immunity.9

As required by separation-of-powers principles, courts have consistently accepted Executive Branch assertions of head-of-state immunity. See note 1, supra. An assertion of immunity made by the Executive Branch on behalf of a foreign head of state is a political decision not subject to review by the courts. "[I]n the constitu tional framework, the judicial branch is not the most appropriate one to define the scope of immunity for heads-of-state. * * * [F]lexibility to react quickly to the sensitive problems created by conflict between individ ual private rights and interests of international comity are better resolved by the executive rather than by judi cial decision." In re Doe, 860 F.2d 40, 45 (2d Cir. 1988); accord, e.g., Wei Ye, 383 F.3d at 628-630 (court deferred to the Executive Branch's assertion of head-of-state im munity on behalf of China's President, and to its deter mination that the immunity encompassed protection from service of process as agent for another entity); Spacil v. Crowe, 489 F.2d 614, 619 (5th Cir. 1974) ("[T]he degree to which granting or denying a claim of immunity may be important to foreign policy is a question on which the judiciary is particularly ill-equipped to sec ond-guess the executive.").

Here, the Executive Branch asserted head-of-state immunity on behalf of Mugabe and Mudenge and in formed the district court that the immunity extended to all forms of legal process. C.A. App. 327, 336. That as sertion was binding on the court. Thus, even if Mugabe and Mudenge did not enjoy diplomatic immunity and personal inviolability under the U.N. Convention, the district court was required to dismiss the claims against them on the ground of head-of-state immunity, and to dismiss the claims against ZANU-PF for lack of proper service. Accordingly, this case does not present an ap propriate vehicle for considering the scope of immunity afforded to temporary representatives under the U.N. Convention.

1. CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
DOUGLAS N. LETTER
LEWIS S. YELIN
DAVID S. JONES
Attorneys

APRIL 2006

1 See, e.g., Wei Ye v. Jiang Zemin, 383 F.3d 620, 625-626 (7th Cir. 2004), cert. denied, 544 U.S. 975 (2005); Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah, 184 F. Supp. 2d 277, 280 (S.D.N.Y. 2001); First Am. Corp. v. Al-Nahyan, 948 F. Supp. 1107, 1119 (D.D.C. 1996); Lafontant v. Aristide, 844 F. Supp. 128, 137 (E.D.N.Y. 1994); Saltany v. Reagan, 702 F. Supp. 319, 320 (D.D.C. 1988), aff'd in part and rev'd in part, 886 F.2d 438 (D.C. Cir. 1989) (per curiam), cert. denied, 495 U.S. 932 (1990); cf. United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir. 1997) (accepting Executive Branch's denial of head-of- state immunity), cert. denied, 523 U.S. 1060 (1998).

2 The United States has previously expressed its opposition to the repressive actions of the Zimbabwean government. See, e.g., Exec. Order No. 13,288, 3 C.F.R. 186 (2004) (blocking property of persons undermining democratic processes or institutions in Zimbabwe); Pro clamation No. 7524, § 1(a), 3 C.F.R. 10 (2003) (suspending entry into the United States of "[s]enior members of the government of Robert Mugabe and other Zimbabwe nationals who formulate, implement, or benefit from the policies that undermine or injure Zimbabwe's demo cratic institutions").

3 Because the court of appeals held that the diplomatic immunity and personal inviolability of Mugabe and Mudenge provided a sufficient basis both for affirming the district court's dismissal of petitioners' claims against those individuals, and for reversing the district court's default judgment against ZANU-PF, the court did not decide whether head-of-state immunity would provide an additional ground for dismissal of petitioners' suit. See Pet. App. 22a-23a.

4 The court of appeals' determination that the United States had standing to appeal was premised solely upon "the Government's inte rests in (1) ensuring that the United States does not violate its treaty obligations, and (2) guarding its authority to set the terms upon which foreign ambassadors are received." Pet. App. 11a. Contrary to peti tioner's suggestion (see Pet. 15), the court did not purport to define the circumstances under which the Executive or Legislative Branch could intervene in a pending lawsuit to appeal a lower court's construction of a federal statute, and its decision has no necessary implications for such hypothetical proceedings.

5 Relying on Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176 (1982), petitioners contend that courts may resort to evidence of the parties' shared understanding of a treaty "only if that shared interpre tation flows from plain language in the treaty itself." Pet. 24. As the Court in Sumitomo recognized, the correct interpretation of a treaty provision will be particularly clear when extrinsic evidence of the signatories' understanding confirms the plain meaning of a treaty's text. See 457 U.S. at 185. The Court in Sumitomo did not suggest, however, that extrinsic materials may be consulted only for that purpose. To the contrary, this Court has consistently recognized that extrinsic evidence may properly be considered when a court construes an ambiguous treaty provision. See, e.g., Schlunk, 486 U.S. at 700; see also Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, art. 32, 1155 U.N.T.S. 331, 340 (explaining that "the preparatory work of [a] treaty and the circumstances of its conclusion" may be considered when application of other interpretive principles "[l]eaves the meaning ambiguous or obscure").

6 Petitioners' reliance (Pet. 27) on Henderson v. United States, 517 U.S. 654 (1996), is misplaced. Although one important purpose of service of process is to give the defendant notice of a pending lawsuit, petitioners do not and cannot dispute that the district court's award of a default judgment against ZANU-PF depended upon the court's holding that Mugabe and Mudenge were properly treated as involun tary agents for service upon the organization.

7 Mugabe and Mudenge were potential agents for service of process upon ZANU-PF only because of their status as officers of that political party. See Fed. R. Civ. P. 4(h)(1) (service upon a corporation or unin corporated association may be made "by delivering a copy of the sum mons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process"); Pet. App. 189a (petitioners argued in the district court that ZANU-PF "was properly served with process through the personal service effectuated on Mugabe and Mudenge in their capaci ties as senior officers of the party"). Neither Mugabe and Mudenge, nor any other foreign diplomat having an affiliation with a private organization sufficient to render him a potential agent for service of process, could realistically be expected to be indifferent to the prospect of a default judgment against the organization.

8 Petitioners suggest (Pet. 28) that the resolution of the service-of- process issue may be affected by the fact that the underlying claims arise under 28 U.S.C. 1350 and the TVPA. Petitioners identify no provision of either statute, however, that bears on the question presented here. And while the TVPA's legislative history contains expressions of Executive Branch concern that the statute might exacerbate international tensions (see Pet. 28 n.16), there is no basis for inferring that Congress intended to supersede all existing mechanisms for safeguarding international comity. To the contrary, the relevant House Report specifically states that "nothing in the TVPA overrides the doctrines of diplomatic and head of state immunity." H.R. Rep. No. 367, 102d Cong., 1st Sess. Pt. 1, at 5 (1992).

9 The assertion of head-of-state immunity on behalf of Foreign Minister Mudenge is consistent with international practice. See Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002 I.C.J. 3, 20-21 (drawing parallel in terms of immunity and inviolability between "certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs"); id. at 22 ("[T]he functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal juris diction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties."). That is particularly evident in light of the fact that Mudenge was part of Mugabe's entourage at the relevant time. See 1 Charles Cheney Hyde, International Law, Chiefly as Interpreted and Applied by the United States 817 (2d rev. ed. 1945) ("As a matter of practice, the head of a foreign State, who enters the territory of any other, enjoys, together with his personal suite, exemption from local jurisdiction.").