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Opening Brief of Appellant Yusuf Abdi

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Opening Brief of Appellant Yusuf Abdi Appeal: 14-1810 Doc: 19 Filed: 12/12/2014 Pg: 1 of 41 RECORD NO. 14-1810(L) CROSS APPEAL NO. 14-1934 IN THE United States Court of Appeals FOR THE FOURTH CIRCUIT FARHAN MOHAMOUD TANI WARFAA, Plaintiff-Appellant/Cross-Appellee, v. YUSUF ABDI ALI, Defendant-Appellee/Cross-Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION Honorable Leonie M. Brinkema, U.S.D.J. OPENING BRIEF OF APPELLANT FARHAN MOHAMOUD TANI WARFAA Joseph Peter Drennan ATTORNEY-AT-LAW Third Floor 218 North Lee Street Alexandria, VA 22314 (703) 519-3773 [email protected] Counsel for Appellant/Cross-Appellee LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia 23219 (804) 644-0477 A Division of Lantagne Duplicating Services Appeal: 14-1810 Doc: 819 Filed: Filed: 08/27/2014 12/12/2014 Pg: Pg: 1 2of of 2 41 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici cmiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to UP.date this i~nation. _ j1 j '-'-~;o;o . fXa.h-li"'/11oAA1'1oud l"l"'i fAMrq,q.L! v.'fusotAbJ,,fl(l No. 1 L _0. Caption: ______________________ (name of party/alllkus} I. Is party/amicus a publicly held corporation or other publicly held entity? 0YES(25jNO 2. Does party/amicus have any parent corporations? 0 YES C8JNO If yes, identify all parent corporations, including grandparent and great-grandparent corporations: 3. Is I 0% or more of the stock of a party/amicus owned by a publicly held co,!E9ration or other publicly held entity? U YES~NO If yes, identify all such owners: I0/28/2013 sec - I - Appeal: 14-1810 Doc: 819 Filed: Filed: 08/27/2014 12/12/2014 Pg: Pg: 2 3of of 2 41 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.l(b))? 0YES!XJNO If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) 0 YESIXJNO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member: 6. Does this case arise out of a bankruptcy proceeding? 0 YES.lKJNO If yes, identify any trustee and the members of any creditors' committee: Couns CERTIFICATE OF SERVICE I certify that ond, fifvflh ~£iPtl:;;:;::o~~;*;:c:::~;;v:s served on all parties or their counsel of record througlthe CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: dd~~!'f (date) - 2- Appeal: 14-1810 Doc: 19 Filed: 12/12/2014 Pg: 4 of 41 TABLE OF CONTENTS Pages TABLE OF AUTHORITIES ................................................................................... iii JURISDICTIONAL STATEMENT .......................................................................... 1 QUESTION PRESENTED ....................................................................................... 1 STATEMENT OF THE CASE .................................................................................. 2 STATEMENT OF FACTS ........................................................................................ 8 SUMMARY OF ARGUMENT ................................................................................. 9 ARGUMENT ........................................................................................................... 10 THE FOURTH CIRCUIT’S DECISION IN SAMANTAR CREATES A CIRCUIT SPLIT OVER THE IMPORTANT QUESTION OF WHETHER ALLEGED JUS COGENS VIOLATIONS DEFEAT FOREIGN OFFICIAL IMMUNITY ............................................................................................................. 10 The Fourth Circuit’s Decision Conflicts With The Decisions Of Other Circuits ..................................................................................................... 10 This Important Question Warrants This Court’s Careful Review ........................... 14 This Appeal Presents A Good Vehicle To Consider The Questions Presented ........ 18 THE FOURTH CIRCUIT’S DECISION IS WRONG ........................................... 21 The Fourth Circuit’s Decision Is Contrary To Domestic Law, Including Decisions Of The Supreme Court ............................................................ 26 CONCLUSION ....................................................................................................... 28 REQUEST FOR ORAL ARGUMENT .................................................................... 28 i Appeal: 14-1810 Doc: 19 Filed: 12/12/2014 Pg: 5 of 41 CERTIFICATE OF COMPLIANCE........................................................................ 29 FILING CERTIFICATE AND CERTIFICATE OF SERVICE................................ 30 ii Appeal: 14-1810 Doc: 19 Filed: 12/12/2014 Pg: 6 of 41 TABLE OF AUTHORITIES Pages Cases: Al-Adsani v. United Kingdom, App. No. 35763/97, 34 Eur. H.R. Rep. H. (2001) ............................................. 15, 22 Belhas v. Ya’alon, 515 F.3d 1279 (D.C. Cir. 2008) ........................................................ 11, 13, 14, 15, 16 Boos v. Barry, 485 U.S. 312 (1988) ............................................................................................. 22 Bouzari v. Islamic Republic of Iran, [2004] 71 O.R.3d 675 (C.A.) ................................................................... 22, 24, 25 Boyle v. United Techs. Corp., 487 U.S. 500 (1988) ............................................................................................. 27 Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 (9th Cir. 1990) .............................................................................. 17 Doe I v. State of Israel, 400 F. Supp. 2d 86 (D.D.C. 2005) ....................................................................... 16 Doe v. Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004) .............................................................. 16 Enahoro v. Abubakar, 408 F.3d 877 (7th Cir. 2005) ................................................................................ 16 Fang v. Jiang, [2006] NZAR 420 (H.C.) .................................................................. 22, 23, 24, 25 First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983) ............................................................................................. 27 Giraldo v. Drummond Co., 808 F. Supp. 2d 247 (D.D.C. 2011), aff’d, No. 11-7118, 2012 WL 5882566 (D.C. Cir. Oct. 23, 2012) .......................................................................... 13, 14, 16 iii Appeal: 14-1810 Doc: 19 Filed: 12/12/2014 Pg: 7 of 41 Heaney v. Gov’t of Spain, 445 F.2d 501 (2d Cir. 1971) ........................................................................... 12, 16 Jones v. Saudi Arabia, [2007] 1 A.C. 270 (H.L. 2006) ...................................................................... 23, 25 Jurisdictional Immunities of the State (Ger. v. Italy), Judgment (Feb. 3, 2012), available at http://www.icj-cij.org/docket/files/143/16883.pdf ............. 22, 23, 24 Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013) ........................................................................................ 3, 6 Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009) ............................................................................. passim Mwani v. bin Laden, 417 F.3d 1 (D.C. Cir. 2005) ................................................................................. 16 Ortiz v. Jones, 131 S. Ct. 884 (2011) ........................................................................................... 19 Paul v. Avril, 812 F. Supp. 207 (S.D. Fla. 1993) ....................................................................... 16 Permanent Mission of India to the United Nations v. City of New York, 551 U.S. 193 (2007) ............................................................................................. 27 Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994) .............................................................................. 17 Republic of Austria v. Altmann, 541 U.S. 677 (2004) ............................................................................................. 15 Regina v. Bartle, ex parte Pinochet, 38 I.L.M. 581 (H.L. 1999) ................................................................................... 24 Rosenberg v. Lashkar-e-Taiba, No. 10-CV-5381, 2013 WL 5502851 (E.D.N.Y. Sept. 30, 2013) ........................ 13 iv Appeal: 14-1810 Doc: 19 Filed: 12/12/2014 Pg: 8 of 41 Samantar v. Yousuf, 560 U.S. 305 (2010) ................................................................................. 13, 18, 19 Sampson v. Federal Republic of Germany,
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