The Big Picture and the Closeup

by Jack L. B. Gohn

Maryland Daily Record, May 3, 2010

            Stop me if you’ve heard this one before.  How is the Pope like a Peruvian steamship?  Give up?  You’ll love this: the State Department stopped both of them from getting sued!  What’s that you say? It’s not funny?  Come to think of it, you’re right; it’s not funny at all.

           The Peruvian steamship was the Ucayali.  In early 1942,  Galban Lobo Co., a Cuban concern, filed an admiralty action against Ucayali in the Eastern District of Louisiana, claiming that Ucayali had failed to live up to an agreement to transport sugar to New York.  (Probably prompted by a sudden fear of U-boats after Germany and the U.S. went unexpectedly to war.)  Ucayali was no ordinary steamship however; she was owned by the Peruvian government.  In short order, therefore, the U.S. Department of State filed a suggestion of sovereign immunity on behalf of the ship.  The judge disagreed,[1] saying that any immunity had been waived by the extensive participation of Ucayali’s owners in early stages of the litigation – a commonplace route to inadvertent waiver of immunity. 

            The Supreme Court (In re Republic of Peru (1943)), did not even wait for appeals or cert petitions.  Instead, it leapt in with its little-used mandamus powers, and held that once the Department of State had spoken on the subject of sovereign immunity, that was the end of the discussion.  It acknowledged that whether Ucayali had sovereign immunity was a legal question, and that the District Court had jurisdiction to adjudicate this legal question, but it held that the Department of State also had jurisdiction to determine the question.  And the courts were supposed to defer once DOS had ruled, even if the question had been presented to the courts first. 

            This result seems peculiar.  Generally, courts review agency action; agencies don’t correct courts.  And in the end, this goes right back to Marbury v. Madison.  “It is emphatically the province and duty” of the courts, as Justice Marshall wrote there, in words each first-year law student learns, “to say what the law is.”  Yet here we have an agency saying what the law is, and the courts are unable to contradict. 

            Of course, the central vice of this ruling was not the injustice to Cuban sugar interests.  (The Court hinted that the Cubans were being taken care of in diplomatic negotiations.)   It was the characterization of State’s claim of Ucayali’s immunity as a matter of law.  Peru should stand for the proposition that the Executive, in fulfilment of its control of foreign affairs, can keep courts from interfering, not that State can overrule the courts on a matter of law.  There was no need for the Supreme Court to make of the State Department a mini-Supreme Court.  Yet that is what it did.  

            And as a matter of law, State probably got it wrong.  It seems likely that, on the strength of Ucayali’s owners’ participation in the litigation, any claim of sovereign immunity had indeed been waived.  Whatever the State Department honchos may have been thinking in deciding to assert sovereign immunity for Ucayali, we can be sure they weren’t bothering their little heads about whether there had been an inadvertent procedural waiver. 

            The mischief of Peru surfaced in 2005, in Doe v. Roman Catholic Diocese of Galveston-Houston, [2] in the Southern District of Texas.  This was one of the priest-abuse lawsuits, with the then-unusual feature that among the defendants was Cardinal Joseph Ratzinger, who became Pope Benedict XVI almost immediately after the suit was filed.[3]  The complaint alleged, as has now apparently been well-documented, that then-Cardinal Ratzinger was involved in various ways over the years with the Church’s former practice of attempting to determine the guilt of abusers in secret, to rehabilitate them secretly, and to return them to service as priests secretly, without a public accounting.  It should be noted that defenders of Benedict would say that after these actions, Benedict changed his own and the Church’s course.  The dispute between these narratives is not for this column to resolve;[4] the point is that a colorable allegation of tortious conspiracy was made, relating to actions Benedict took before the outset of his papacy or his ascension to the role of head of state. 

            The State Department duly filed a suggestion, in part relying on Peru, that Benedict was immune from suit as the head of state of the Vatican.[5]  And Judge Lee Rosenthal, in part relying on Peru as well, acceded, dismissing the Pope. 

            The fact that this lawsuit related to actions taken before Benedict’s papacy and head-of-state status made the case a lot like Clinton v. Jones (1997) a circumstance the plaintiffs’ counsel noted.  There, President Clinton was compelled to participate in a private lawsuit against him, even though he was the sitting president, because the case related to actions he allegedly took while governor of Arkansas.  Judge Rosenthal turned this argument aside with the observation that there is a big difference between suing a foreign head of state over the objection of the State Department, thereby trenching on State’s power to conduct foreign affairs, and suing the head of our own government. 

            Well, yes in theory.  Still, it is peculiar that a foreign head of state enjoys greater practical immunity than our own president.  Or that the inconvenience to the country when its president must defend against a private lawsuit matters less than the embarrassment to the Executive if the courts are allowed to do justice when it displeases Foggy Bottom. 

            There is also something inconsistent about vaunted claims that our courts dispense justice to all if the Department of State can come in and make the arbitrary decision to shut them down for the benefit of some.  There are no standards after Peru that the courts are allowed to apply to DOS’s decision-making.  Peru expressly forbids a court to inquire, for instance, whether DOS correctly applied its own procedures and criteria in making the decision to suggest immunity. 

            And what of the comparison to former Panamanian president Manuel Noriega, who, though just extradited to France, spent years in U.S. prisons at the behest of U.S. courts?  Not only was he tried criminally, but the courts processed a civil class action against various alleged participants in the fraud that was the Bank of Credit & Commerce International , including Noriega, though the suit was dismissed for other reasons.  After the coup the U.S. staged against Noriega, he, unlike the Pope, had no friends at Foggy Bottom to make suggestions for him. 

            So it depends on what State wants to do.  But how can make-it-up-as-they-go decisions by the State Department in effect control an Article III court’s jurisdiction? 

            Moreover, what becomes of the pursuit of justice when laws granting damages for child abuse and conspiracy to cover up child abuse cannot be implemented, and when the aggrieved cannot find a place to lodge their claims because a faceless State Department bureaucrat objects?  Are we still a nation of laws?

[2]          Doe (SD Tex 2005).

[3]          See the docket here: Doe Docket.

[4]          That is, it was not for this column as published in the Daily Record; see my blog entries on the subject: Benedict: Unfit to Serve, The Church in Darkness, and Benedict: The Counter-Narrative Forms.

[5]          See an excerpt from the Suggestion here: Suggestion.

Copyright (c) Jack L. B. Gohn