# Appendix — Republic of Paraguay v. Gilmore > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0165%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1998 - **Citation:** 523 U.S. 1067 ## Text ORIGINAL PAGLNATION IS NOT CONTINUOUS. VIRGINIA: IN THE CIRCUIT COURT OF ARLINGTON COUNTY COMMONWEALTH OF VIRGINIA, ’. Docket Nos. CR92-1467, 1664-1668 ORDER Pursuant to Section 53.1-232.1 of the Code of Virginia, baving determined thar the United States Court of Appeals for the Fourth Circuit bas denied habeas corpus relief to the defendart, this Court hereby ORDERS that the death sentence of Angel Breard be carned cua on the 14th day of April. 1998. at such « time of day as the Direcoor of the Depertoes of Corrections shall fix. It is further ORDERED that at least tem (10) days before April 14, 1998, the Director shall cause a copy of this Order to be delivered to the defendant and, if the defendart is unabic 1 read it, cause it to be Even if Breard’s “Vienna Convention” claim were not procedurally defaulted, a federal habeas court could not grant relief upon such a claim without violating the “new rule” doctrine. See generally Caspari v. Bohlen, 510 U.S. 383, 390 (1994). \o court ever has held that an alleged violation of the Vienna Convention may serve as a basis for overturning a State prisoner's conviction or sentence. If such a rule ever is created, it must be announced on direct appeal, not federal collateral review. 3 JAR. -25° 98(WED) 17:44 ‘ea TEL:0 P. 005 second or successive habeas petitions by simply filing a § 1983 claim”), cert. denied, 117 S.Ct. 451 (1996). Regardless of whether such a § 1983 suit is filed by the prisoner himself or by a third party, if the object of the suit is to obtain for the prisoner relief from his conviction or sentence to which he would not be entitled in a federal habeas proceeding, Gomez dictates that the attempted circumvention must fail. 7. On numerous occasions during just the last year, the Supreme Court has denied stays of execution premised upon ongoing § 1983 litigation designed to evade the rules governing federal habeas review under § 2254. See, ¢g., Buchanan v. Gilmore, 118S.C1.___, 1998 U.S. LEXIS 1782 (Mar. 18, 1998); Tucker v. Texas, 118 S.Ct. 906 (1998); In re Mu’Min. 118 S.Ct. 438 (1997) (in addition to denying stay, Court also denied “petition for writ to preserve [§ 1983) jurisdiction”); Perry v. Norris, 118 S.Ct. 15 (1997); O"Del] v. Allen, 118 S.Ct. 2 (1997) (denial of injunction); Ip re O'DelJ, 118 S.Ct. 2 (1997) (denial of stay); McQueen v. Sapp, 117 S.Ct. 2536 (1997); Woratzeck v. Arizona Board of Clemency, 117 S.Ct. 2500 (1997). See also Griffin v. Missouri, 515 U.S. 1153 (1995); Poyner v. Murray, 507 U.S. 981 (1993).* 8. Even if Paraguay could speak for Breard - and it cannot - it clearly would not be entitled to a stay of Breard’s execution under the stringent rules governing federal habeas proceedings. Gomez and its progeny require that this Court deny Paraguay's attempt to circumvent those rules by requesting a stay of Breard’s execution, an extraordinary form of federal collateral relief to which neither Breard nor Paraguay is entitled. Indeed, just last week a panel of this Court vacated a stay of execution improvidently granted by a district court on the * In Poyner, the Supreme Court denied a stay of execution and the prisoner was executed as scheduled on March 18, 1993. Significantly, the Court did not dispose of the certiorari petition in the § 1983 proceeding upon which the stay request had been premised until two months later. See Povner vy. Murray, $08 U.S. 931 (1993). 4 MAR -25 9BTWED) 17:45 Lz TEL:0 P. 006 basis of a § 1983 suit filed by a death row prisoner. See Buchanan v. Gilmore, _ F.3d si, 1998 U.S. App. LEXIS 5058 (4th Cir., Mar. 18, 1998) (Judges Ervin, Hall and Butzner). The Supreme Court subsequently denied the prisoner's stay request and he was executed as scheduled. See Buchanan, 1998 U.S. LEXIS 1782. Obviously, if a State prisoner himself cannot obtain a stay of execution on the basis of a § 1983 suit he has filed, a third-party § 1983 suit such as Paraguay's cannot support such a stay. 9. Moreover, even if Paraguay could overcome all of the foregoing obstacles to the granting of a stay, this Court still should deny Paraguay’s request to stay Breard’s execution. Under Barefoot v_ Estelle, 463 U.S. 880, 895 (1983), this Court may not stay a State prisoner's execution unless there is a reasonable probability that four Justices would vote to grant certoran in his case, and there is a significant possibility the Court would reverse the decision of the court of appeals. See Netherland v. Tuggle, 116 S.Ct. 4, 5 (1995). Paraguay cannot possibly meet this stringent standard. 10. _‘ First of all, Paraguay filed its certiorari petition in the Supreme Court more than a month ago. Thus, even if the impropriety of a third-party request to stay Breard’s execution were dropped from the equation, it is self-evident that the Supreme Cour is far better situated than this Court to determine whether it needs more time to consider a certiorari petition that was filed weeks ago. 11. | Moreover, as demonstrated in the Warden's opposition to Breard’s stay request (Attachment ,, there is mo likelihood the Supreme Court will grant Breard’s certiorari petition or reverse this Court's decision denying him federal habeas relief. But, even if the granting of a stay of Breard’s execution could be made to turn on the likelihood the Court will grant Paraguay’s certiorari petition, the result would be the same. The specific issue raised in Paraguay's certiorari petition is whether the federal courts have jurisdiction to entertain a civil suit brought by 2 foreign country and its officials against the officials of a State, where the sole object of the suit is the invalidation of a state prisoner's criminal conviction and sentence. On that issue, the only two federal appeals courts that have considered the matter have concurred that the question must be answered in the negative. See Paraguay, 134 F.3d at 627-629; United Mexican States v_ Woods, 126 F.3d 1220, 1222-1224 (9th Cir. 1997). The Supreme Court, of course, grants certiorari “only for compelling reasons." U.S.Sup.Ct. Rule 10. Primary among such “compelling reasons” is the existence of a “conflict” between the decision of a court of appeals in the case where review is being sought and “the decision of another...court of appeals on the same important matter.” Rule 10(a). Given the lac« of conflict among the courts of appeals, there is no reasonable probability that the Supreme Court will grant certiorari in Paraguay's case. Paraguay’s pending certiorari petition, therefore, could not furnish the basis for a stay of Breard’s execution even if Paraguay could overcome its clear lack of standing to request such relief. 12. There also is no significant possibility that the Supreme Court would reverse this Court's decision. The Eleventh Amendment clearly does not permit a foreign nation to sue a State in federal court. See Principality of Monaco v. Mississippi, 292 U.S. 318 (1934). A suit, the primary purpose of which is the setting aside of a State prisoner’s criminal conviction or sentence is, in reality, a suit against the State, see Idaho v. Coeur d’ Alene Tribe, 117 S.Ct. 2028, 2034 (1997) (Eleventh Amendinent bars suit against state officials when State is the real, substantial party in interest), and the State's interests are at their apex when the validity of its criminal judgments are challenged collaterally in federal court. See generally McCleskey v. Zant, 499 U.S. 467, 491-492 (1991). Moreover, the statutory habeas corpus remedy embodied in § 2254 proceedings is “well established” as the sole relevant exception to the State’s Eleventh Amendment immunity. See eee eee a MAR. -25° 98(WED) 17:45 TEL:0 P. 00° 4R.-25 98(WED) 17:46 tt att batt fall hilt tf i a Era UL i i He Heed] belgie! RUA He i; HF Hola icy Aer UES peal ft! HTH Ue ih base ee Hh iii tre ui! it Ba. alt alt stighe Bag i t MAR -25 98(WED) 17:43 TEL: 0 P. 001 ® COMMONWEALTH of VIRGINIA Richard Cullen Office of the Anorney General $00 East Mein Sires Anermey Genera! Richmond 23219 ee aa CRIMINAL LITIGATION SECTION ™ CAPITAL LITIGATION UNIT TELEPHONE: (804) 786-4624 FAX: (804) 786-0142 FACSIMILE COVERSHEET DATE: Mae. 25, 1998 TO: Donacp DONOVAN / DeSevoise $ PUMPTON FROM: Donald R. Curry, Senior Assistant Attorney General NUMBER OF PAGES FOLLOWING COVER: |7 COMMENTS: Fitep THIS AFTERROON IN CAY ; HARD COPY BY MAIL — N h * NN — ——————— In THE UNITED STATES COURT OF APPEALS For THE FourtH Circuit No. 96-2770 THE REPUBLIC OF PARAGUAY; JoRGE J. PRIETO, Ambassador of the Republic of Paraguay to the United States, and José ANTONIO Dos SANTOS, Consul General of the Republic of Paraguay to the United States, Plaintiffs-Appellants, GEORGE F. ALLEN, Governor of the Commonwealth of Virginia, (additional parties listed inside cover) Defendants-Appellees. ON APPEAL FROM THE UNITED STATES DisTRICT Court FOR THE EASTERN DISTRICT OF VIRGINIA —— nel PLAINTIFFS-APPELLANTS' BRIEF ——— Donald Francis Donovan Loren Kieve Barton Legum DeBevoise & PLIMPTON Michael M. Ostrove $55 13th Street, N.W. Alexander A. Yanos Washington, D.C. 20004 DeBevoise & PLIMPTON (202) 383-8070 875 Third Avenue Attorneys for Plaintiffs-. New York, New York 10022 Appelianis (212) 909-6000 (additional counsel listed Dated: March 4, 1997 inside cover) ee Additional Parties: JAMES S. Gi_more II), Attorney General for the Commonwealth of Virginia; RONALD J. ANGELONE, Director of Corrections for the Commonwealth of Virginia; DAVID A. GARRAGHTY, Warden, Greensville Correctional Facility, Jarratt, Virginia; J.D. NETHERLAND, Warden, Mecklenburg Correctional Facility, Boydton, Virginia; PAUL F. SHERIDAN, Judge for the Circuit Court of Arlington County, Virginia; BENJAMIN N.A. KENDRICK, Judge for the Circuit Court of Arlington County; WILLIAM NEWMAN, Jr., Judge for the Circuit Court of Arlington County; WILLIAM L. WINSTON, Judge for the Circuit Court of Arlington County; RICHARD E. TRopDEN, Commonwealth's Attorney for the County of Arlington; and Ropert A. DREISCHER, Acting Chief of Police for the County of Arlington, Defendants-Appellees. Additional Counsel: Professor Rodney A. Smolia Professor Linda A. Malone College of William and Mary Marshall-Wythe School of Law South Henry Street P.O. Box 8795 Williamsburg, Virginia 23187 (804) 221-3800 Associate Professor Leslie M. Kelleher T.C. Williams School of Law University of Richmond Richmond, Virginia 23173 (804) 289-8359 Attorneys for Plaintiffs-Appellants DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER ENTITIES WITH A DIRECT FINANCIAL INTEREST IN LITIGATION Pursuant to Federal Rule of Appellate Procedure 26.1 and Fourth Circuit Local Rule 26.1, plaintiffs-appeliants the Republic of Paraguay, Ambassador Jorge J. Prieto and Consul General José Antonio Dos Santos make the following disclosure: 1. Is the party a publicly held corporation or other publicly held entity? No. 2. Is the party a parent, subsidiary, or affiliate of, or a trade association representing, a publicly held corporation, or other publicly held entity (see Local Rule 26. 1(b))? No. 3. Is there any other publicly held corporation, or other publicly held entity, that has a direct financial interest in the outcome of the litigation (see Local Rule 26. 1(b))? No. TABLE OF CONTENTS TABLE OF AUTEOORITIES . ww ccc cece STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION .......... The Treaty Obligations ................... Defendants’ Continuing Violation Of Paraguay’s Rights .............. The District Court's Decision ............... SUMMARY OF ARGUMENT ................. GUUEEEED DORK es wdte veserercecvessenn s 1. Because IT SEEKS ONLY TO PROSPECTIVELY COMPEL DEFENDANTS TO END THE CONTINUING HARM RESULTING FROM THEIR VIOLATION OF FEDERAL LAW, PARAGUAY'S SurT Is NoT BARRED BY SOVEREIGN IMMUNITY......... il. ADDENDUM A. Paraguay Seeks Injunctive Relief Against Consequences Of Past Deprivations Of Federal Rights That Is Authorized By Ex FE GD Sed erectswbsceeuses B. Paraguay Seeks An Injunction Against An Ongoing Violation Of Its Rights Under . 2 Srrrrererrer ys THe District Court HAD JURISDICTION OVER PARAGUAY'S ACTION TO VINDICATE ITS TREATY RIGHTS BECAUSE PARAGUAY WAS NOT A PARTY TO THE STATE COURT ACTION AND HAD No APPEAL TO THE SUPREME COURT. ........ A. The District Court Has Jurisdiction Over Paraguay's Action To Enforce Treaty Rights Violated By State Officials... ... B. The Rooker/Feldman Doctrine Does Not Bar Paraguay's Claims............. COTATI wc cc cwescesccecesvcucees REPRODUCING FEDERAL ou) oy Aes ee WEATEED cw ccc ect ecenecccssesssese 1. Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 Sas ee Faw vcceveitnoseve 16 STATUTES Treaty of Friendship, Commerce, and Navigation, Feb. 4, 1859, U.S.-Para., 12 RE sa ke ea eo ie ce ek A-3 Consular Convention, June 6, 1951, U.S.- Pe oe oe A-3 Consular Convention, June 1, 1964, U.S. - U.S.S.R., 19 U.S.T. 59018 ........ A-4 Agreement on Consular Relations, Jan. 31, 1979, U.S.-China, 30 U.S.T.17..... A-6 Peet tend Shue bnew ek ees bic A-6 TABLE OF AUTHORITIES CASES ASARCO, Inc. v. Kadish, Q9O U.S. GRE CITT nc cc cece cc cccevsccunn 23 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) ww ee es 22 Barnes v. Bosley, 828 F.2d 1253 (8th Cir. 1987) . 2... 0.02. eae 15 Clark v. Cohen, 794 F.2d 79 (3d Cir.), cert. denied, 479 U.S. 962 (1986) 6 ww ee ee ee 16 Coakley v. Welch, 877 F.2d 304 (4th Cir.), cert. denied, 493 U.S. 976 (1989)... owe ee cee 11, 12, 14 Cross v. Alabama, 49 F.3d 1490 (llth Cir. 1995) 2.2.0... ee eee 15 Dickey v. Greene, 729 F.2d 957 (4th Cir. 1984) 2.0. eee 10 District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) 6. we ee eee 2, 8, 21, 23 E.B. Elliott Adv. Co. v. Metropolitan Dade County, 425 F.2d 1141 (Sth Cir.), cert. dismissed, 400 U.S. BES CIGTED onc cccccccreeresescecsesesse 24 Eastern Airlines v. Floyd, GPO. GED ik cdtdeatésentoctccee 18 Edelman v. Jordan, Gap Wis Ge. Kacdbacctcacteckh cu. 11 Elliott v. Hinds, 766 F.2d 298 (Tth Cir. 1906) 0.2... eee, 15 FOCUS v. Allegheny County Court of Common Pleas, 7S P.2B GRO GEOG. GERD nc ccc cusccncccce 24 Thomas S. v. Flaherty, 902 F.2d 250 (4th Cir.), cert. denied, Ge Uk SEU cow ened bsenene een 15, 16 French v. Hay, 89 U.S. (22 Wall.) 250 (1874) .. 2.2... 0.66.8, 22 Hall v. Medical College of Ohio, 742 F.2d 299 (6th Cir. 1984), cert. denied, 469 U.S. SOUP GEREN 6 hvstensessévebucseebunceuc 15 Harter v. Vernon, et) 10 Johnson v. De Grandy, POG. Gi Be. we nes cdedeedaube ts 23, 24 Jones v. Meehan, SUS Wie: SUED 6.60 bac baa senbee hekoseun 22 Leaf v. Supreme Court of Wisconsin, 979 F.2d 589 (7th Cir. 1992), cert. denied, DP Geiactbandscedacacowe é 24 Leonard v. Suthard, 927 F.2d 168 (4th Cir. 1991) 2... eee 23 McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987), cert. denied, 486 U.S. De .usedanseedebrateneestous 13, 14 McCurry v. Tesch, 738 F.2d 271 (8th Cir. 1984), cert. denied, 469 U.S. Py ceccane d pes ¥ecksééeceset bneas 24 Melo v. Hafer, 912 F.2d 628 (3d Cir. 1990), aff'd on other grounds, DL Pn acucineboateeecevateene 15 Milliken v. Bradley, SPE saceseacdséceceeeen 11, 12 Munoz v. County of imperial, 667 F.2d 811 (9th Cir.), cert. denied, 459 U.S. PEP EEEEED coc cv beeEdeeenricecionveces 22 Papasan v. Allain, GOGGLE, DEP GD ccc ccccccoccccccss 11, 13 Parents for Quality Educ. with Integration, Inc. v. Indiana, 977 F.2d 1207 (7th Cir. 1992) ....... 13 vi Pfizer, Inc. v. India, ee Porter v. Warner Holding Co., DE” «veces ceaneSuebee tn ewbe Preiser v. Rodriguez, PEED. a¢4Wenecctcoaseree 25, Ramirez v. Oklahoma Dep't of Mental Health, GE Poe Se GG, FIR nc ccc ccccccsess Rehabilitation Ass'n of Va., Inc. v. Kozlowski, 42 F.3d 1444 (4th Cir. 1994), cert. denied, SN an da ke Richmond, F.&P. R.R. v. United States, 945 F.2d 765 (4th Cir. 1991), cert. denied, SEP CUUEEED Soccer scccsscdsccccese Roe v. Alabama, 43 F.3d 574, 580 (i ith Cir.), certifying questions to 676 So. 2d 1206 (Ala.), on receipt of answers to certified questions, 52 F.3d 300 (1 ith Cir.), cert. denied, EE ce nutwdaVs cc tvesouass Rooker v. Fidelity Trust Co., Be es SEGUE ewe cece ecesoscces 21, 23 Russell v. Dunston, 896 F.2d 664 (2d Cir.), cert. denied, Ce ee ee vil Santovincenzo v. Egan, SPOON cebcéscceceerscancesdenss 18 Schneider v. Colegio de Abogados, 917 F.2d 620 (ist Cir. 1990), cert. denied, 502 U.S. PEE Seb bncdebeke Cobesentetecoas 24 Stanley v. Darlington County Sch. Dist., SPO e Cr GD GUEED wove esecnccesovae 13 Tabion v. Mufti, Fo OBO Saw CGR. FEUD oc cccccccccccccees 17 United States v. Owens, 54 F.3d 271 (6th Cir.), cert. dismissed, PEPE «ne déeeées tacédeves 22, 24 United States v. Stuart, CPs SPEED cocosesecoceseoesseve 17 White v. United States, SPO HED ceccovecécecsoueses 10 Ex parte Young, Pa CE «66 eseeeseaeccess 1, 10, 11 CONSTITUTION, STATUTES AND TREATIES Gee GO EL cn cbcetosenecesvecesacs 1 wu CU, GH. VES wcctcccccscces 4, 11, 21 Se URED. code ewetdbdecccescusive I | MPR TUT TET LCT ree 23 SPE | wn dbeevenues skee sekGs sees l SPEED “es vasccovsbsubdecoasne 1, 21 Pe SOUND cc icscccsdccteceees 1, 22 SS EE ab acecocbdcerednéwnseses 25 Se PEED scobdcecwonsvaces 1, 3, 6, 7, 25 Fed. R. Civ. P. 12(b)(1), 1206) 2... ee. 3, 10 Treaty of Friendship, Commerce and Navigation, Feb. 4, 1859, U.S.-Para., 12 Stat. 1091 ........... passim Vienna Convention on Consular Relations, 21 U.S.T. 77, $96 U.N.T.S. 261 .......... passim Consular Convention, June |, 1964, U.S.-U.S.S.R., EPs OED « vecsccuccesouseseseene 4,18 MISCELLANEOUS Arthur W. Rovine, U.S. Dep't of State, Digest of United States Practice in International Law 1973 (1973) .... 19 Charles A. Wright, Law of Federal Courts GEE. wweene te bedas cee eeee see ex 16 Commentary on Draft Articles on Consular Relations Adopted by the International Law Commission at lis 13th Session, U.N. GAOR, Conf. on Consular Relations, annex, art. 36, UN Doc. A/CONF, 25/6 (1963) .. 2.6.6.6. 00 ae 19 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice GRE FUREREMIO CTTUED co ccc ccc ccccccevecess 23 U.N. GAOR, Conf. on Consular Relations, 12th plen. mig., agenda item 10, 4 2-9, UN Doc. A/ConpP. 25/SR. 12, 17 April 1963... .......... 20 STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION This is an action for injunctive and declaratory relief to remedy violations of two treaties of the United States and of 42 U.S.C. § 1983. The District Court therefore had original jurisdiction under 28 U.S.C. § 1331. In addition, this is an action in which a foreign state is the plaintiff and citizens of a state are defendants. The District Court therefore also had jurisdiction under 28 U.S.C. § 1332(a)(4). While the United States Supreme Court also had original jurisdiction of this action, see U.S. Const. art. Ill, § 2, that Court's jurisdiction over this case is not exclusive. 28 U.S.C. § 1251(b)(1). On November 27, 1996, the District Court entered a final order of dismissal that disposed of all claims of all parties in the action. Plaintiffs-appellants filed their notice of appeal on December 5, 1996. This Court therefore has appellate jurisdiction under 28 U.S.C. § 1291. 1. Whether the District Court erroneously held that, notwithstanding the doctrine of Ex parte Young, 209 U.S. 123 (1908), the Eleventh Amendment bars an action seeking prospective injunctive relief against state officials to end the continuing harm the plaintiffs suffer as a result of defendants’ failure to afford them their rights under two treaties of the United States, on the ground that the injunction would merely remedy past unlawful conduct, not end a continuing violation of federal law? 2. Whether the District Court erroneously held that, under District of Columbia Court of Appeals v. Feldman, 40) U.S. 462 (1983), it lacked subject matter jurisdiction over an action seeking vacatur of a foreign national's criminal conviction and sentence brought by the national's sovereign, its ambassador and its consul even though the plaintiffs here had not been parties to the state criminal proceedings and sought to vindicate only their own rights under two treaties of the United States? STATEMENT OF THE CASE This is an action by plaintiffs-appellants the Republic of Paraguay, its Ambassador Jorge J. Prieto and its Consul General José Antonio Dos Santos (collectively, “Paraguay") to enforce the rights granted Paraguay and its consular officers under two treaties of the United States, the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (the “Vienna Convention”), and the Treaty of Friendship, Commerce and Navigation, Feb. 4, 1859, U.S.- Para., 12 Stat. 1091 (the “Friendship Treaty”) (together, the “Treaties"). The Treaties provide Paraguay's consular officers with the rights (/) to receive prompt notification of the detention of Angel Francisco Breard, a Paraguayan national, and (2) to provide consular assistance to Breard during the course of the criminal proceedings against him. No notification was provided, and Paraguay's consular officers were allowed access to Breard only after he was tried, convicted and sentenced to death and had exhausted all appeals and state habeas proceedings. Defendants are Virginia state officials who continue to deny Paraguay its right to provide consular assistance to Breard at a time and in a context where it can be meaningful and effective. 2 On September 12, 1996, Paraguay filed its complaint in the United States District Court for the Eastern District of Virginia, alleging violations of the two Treaties and, with respect to plaintiff-appellant Dos Santos, violations of 42 U.S.C. § 1983. The complaint sought, among other relief, an injunction barring the defendants from aking any future actions based on Breard's illegally obtained conviction, vacating the conviction and ordezing the defendants to afford Paraguay its rights under the Treaties in any further proceedings against Breard. On October |, 1996, defendants moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. Feb. R. Civ. P. 12(b)(1), 12(b)(6). On November 27, 1996, the District Court (Hon. Richard L. Williams) entered a final order dismissing the action for lack of subject matter jurisdiction. The plaintiffs filed their notice of appeal on December 5, 1996. STATEMENT OF FACTS The T Obligati In 1970, the United States and the Republic of Paraguay entered into the Vienna Convention. In doing so, both nations recognized that each sovereign was bound by the terms of the Convention and that each had the right to have any violation of those terms by the other remedied. A12-13.' 1. Citations in the form “A__* are to the accompanying Joint (continued...) Under the United States Constitution, the Vienna Convention became part of the “supreme Law of the Land” and binding on each of the United States. Al2; U.S. Const. an. VI. A key consular function protected by the Vienna Convention is assisting nationals of one nation who are arrested by the law enforcement authorities of the other. Al3-14. Law enforcement officials in the United States arresting a Paraguayan national must “without delay” inform the Paraguayan that he has the right to communicate with a Paraguayan consular officer. If the Paraguayan so requests, the law enforcement officials must “without delay” inform the Paraguayan consular officers of the arrest and permit them to communicate with the Paraguayan to render assisiance to him in the criminal proceedings. /d. The Vienna Convention makes it clear that consular officers must be provided a meaningful opportunity to exercise their right of consular communication. Vienna Convention, art, 36(2) (right of consular communication “shall be exercised in conformity” with local laws and regulations, provided that such “laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended”). Over 130 years ago, in 1860, the United States and the Republic of Paraguay entered into the Friendship Treaty. Al4- 15. Article XII requires that consular officers of Paraguay be accorded “whatever privileges, exemptions, and immunities are or may be” granted by the United States to consular officers 1.(...continued) Appendix. Except as otherwise noted, the statement of facts is based on the allegations of the complaint (A6-26). 4 owe ees eee ee ee ee “of any other nation whatever.” The United States subsequently granted to consular officers of other nations, including the United Kingdom and the Russian Federation, the privilege of receiving immediate and mandatory notification of the arrest or detention of one of their nationals by law enforcement authorities in the United States. Al5S. Under the Friendship Treaty, law enforcement authorities in the United States are therefore required to extend Paraguayan consular officers the same privilege and immediately notify them when a Paraguayan citizen is arrested. /d. Defendants’ Continuing Violation Of P - On September |, 1992, a Paraguayan citizen, Angel Francisco Breard, was arrested by the Arlington County police department on suspicion of murder. Al7. Although they were aware that Breard was a Paraguayan national, defendanis never informed Breard of his right under the Vienna Convention to consular assistance from Paraguay. Nor did they inform Paraguay that Breard was in their custody. /d. Had defendanis done so, Breard would have invoked his right to the assistance of his country's consul, and Paraguay would have provided him help in his criminal proceeding that could have changed its outcom., including (a) evaluating the desirability of Virginia's plea offer of life imprisonment, (b) assessing the advice of Breard’s counsel that he not testify at trial and (c) presenting material evidence in support of a life sentence at the mitigation phase of Breard’s trial. Al7-20. On June 24, 1993, Breard was convicted of murder. A20. On August 22, 1993, the state court imposed a sentence of death. /d. Breard's direct appeals of the conviction and 5 sentence were denied, as was his state petition for habeas corpus. /d. It is undisputed that defendants did not begin to permit Paraguay to render consular assistance to Breard until after his direct appeals and state habeas proceedings were exhausted. E.g., Al7, A87. Defendants’ failure to advise Breard of his rights, to advise Paraguay of Breard's detention and to afford Paraguay a meaningful opportunity to provide consular assistance to Breard violated both the Vienna Convention and the Friendship Treaty. A7-8, A21-23. These violations caused injury both to the Republic of Paraguay'’s sovereign interest in protecting the life and liberty of its citizens abroad through its consular officers and io the interests of plaintiffs Prieto and Dos Santos in effectively performing their consular functions. A9, Al3, A21-24. Defendants’ ongoing failure to provide Paraguay with a meaningful opportunity to exercise its consular communication rights continues to violate the Treaties. A7-8. The District Court's Decisi In its memorandum opinion, the District Court held that, as a party to the Treaties, Paraguay had standing to sue for redress under the Treaties and that the court had the power to interpret treaties and fashion an equitabie remedy for their violation. A119 (opinion to be published ai 949 F. Supp. 1269). The court determined that Consul General Dos Santos is a person within the jurisdiction of the United States and therefore a proper plaintiff under section 1983. A121. The court also concluded that, absent any jurisdictional limitations, the case was suitable for declaratory relief. Id. For purposes of deciding the motion, the District Court assumed that the defendants had violated federal law and Breard's death sentence resulted from these violations. A117. The court expressed its “disenchant{ment|” with defendants’ violation of the Treaties and pointed to evidence that “the Commonwealth (of Virginia] has disregarded the Vienna Convention on at least one other occasion.” A1l17-18, A121 nt. The District Court nevertheless dismissed Paraguay's suit, holding that Paraguay had failed to allege the “ongoing violation” of federal law required to remove the bar of the Eleventh Amendment and to bring the case within the doctrine of Ex parte Young. According to the District Court, "[njow that defendants have given Paraguayan officials access to Mr. Breard, they are no longer in violation of the treaties.” All7. The District Court reasoned: Plaintiffs urge that but for Virginia's alleged violations of the treaties, Mr. Breard would not be on death row today. Assuming the validity of this assertion, it is a tragic consequence of Virginia's failure to abide by the law. Nonetheless, it is still a consequence of the violation and not a continuing wrong. Id. (emphasis in original). In other words, the District Court ruled that, even though the defendants are preparing to put Breard to death without ever providing Paraguay a meaningful opportunity to afford him the assistance it has a federally guaranteed right to provide, the court was powerless to grant relief. The District Court also ruled that it lacked subject matter jurisdiction under the Rooker/Feldman doctrine, which holds that the district courts have no jurisdiction to review state court judgments on federal questions that are subject to ultimate review in the Supreme Court. A118 (citing District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983)). The District Court acknowledged that it was the first forum in which Paraguay had sought relief, that Paraguay sought to vindicate its own rights rather than those of Breard, that the case before it was not an appeal and that Paraguay did not ask it to review trial defects. Id. The court nonetheless held that it “hajd] no authority to disturb a state court ruling regardless of the procedural posture of the litigants,” because “that power rests solely with the Supreme Court of the United States.” Id. SUMMARY OF ARGUMENT The District Court wrongly construed the Eleventh Amendment to bar Paraguay's claims. Even if the District Court were correct that defendants’ violation of Paraguay's rights has ceased, established precedent holds Ex parte Young to authorize suits against state officials for injunctive relief remedying the continuing effects of past violations of federal law, so long as the suit does not seek retroactive damages. Paraguay seeks no money damages. It asks for an injunction directing defendants to eliminate the effects of their abiding refusal to afford Paraguay its substantive rights under the Treaties. Paraguay's suit comes squarely within the tenets of Ex parte Young. In any event, the District Court's conclusion that the defendants had cured their treaty violations is in error. Rather than fulfilling their obligation to provide prompt notice and enable meaningful consular assistance, defendants allowed Paraguay access to Breard only when it was guaranteed to be futile—long after he had been tried, convicted and sentenced to death and had exhausted all appeals and™ state habeas proceedings. The Treaties secure Paraguay's right to a meaningful opportunity to assist its detained nationals during criminal proceedings. The defendants have never provided Paraguay that opportunity. The District Court also wrongly decided that the Rooker/Feldman doctrine barred Paraguay's suit because the complaint impermissibly sought review of the merits of a final state judgment. The district courts have jurisdiction of actions on treaties of the United States, including actions by foreign States as plaintiffs, and may enjoin enforcement of a state court judgment rendered in violation of federal law. Paraguay was not a party to the state proceedings against Breard, had no possibility of appeal from the state court decisions and had no opportunity to litigate its claims prior to instituting this action. Rooker/Feldman therefore does not bar its claims. ARGUMENT Standard of Review "A district court order dismissing a case on the grounds that the undisputed facts establish a lack of subject matter jurisdiction is a legal determination subject to de novo appellate review.” Richmond, F.&P. R.R. v. United States, 945 F.2d 765, 768-69 (4th Cir. 1991) (citation omitted), cert. denied, 503 U.S. 984 (1992); accord White v. United States, 53 F.3d 43, 45 (4th Cir. 1995); see also Harter v. Vernon, 101 F.3d 334, 336-37 (4th Cir. 1996) (questions of applicability of Eleventh Amendment reviewed de novo). Where, as here, no evidence was offered on a Rule 12(b)(1) motion to controvert the complaint's allegations, the Court must assume the truth of the allegations and consider the complaint in the light most favorable to the plaintiff. White, 53 F.3d at 44; see also Dickey v. Greene, 729 F.2d 957, 958- 59 (4th Cir. 1984) (en banc). Because It SEEKS ONLY TO PROSPECTIVELY COMPEL DEFENDANTS TO END THE CONTINUING HARM RESULTING FROM THEIR VIOLATION OF FEDERAL LAW, ParRaGuay's Surr Is Nor BARRED BY SOVEREIGN IMMUNITY. A. Paraguay Seeks Injunctive Relief Against Consequences Of Past Deprivations Of Federal Rights That ls Authorized By Ex Parte Young. In Ex parte Young, the Supreme Court held the Eleventh Amendment's sovereign immunity not to apply to Suits against state officials acting in their official capacity, provided that the plaintiff sought only a prospective injunction to force the state officials to comply with federal law. 209 U.S. 123, 159-160 (1908). As the Court explained, where a state official acts in a manner inconsistent with federal law, "(the State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.” Id.; accord U.S. Const. art. VI, cl. 2. To come within the Ex parte Young doctrine, the plaintiff may seek only prospective injunctive relief, Edelman v. Jordan, 415 U.S. 651, 667-68 (1974), against an “ongoing” violation of federal law from which the plaintiff is currently suffering, Papasan v. Allain, 478 U.S. 265, 282 (1986); see Coakley v. Welch, 877 F.2d 304, 307 & n.2 (4th Cir.), cert. denied, 493 U.S. 976 (1989). This requirement ensures that a plaintiff cannot use Ex parte Young to perpetrate “a raid on the state treasury for an accrued monetary liability.” Milliken v. Bradley, 433 U.S. 267, 290 n.22 (1977); see also Rehabilitation Ass'n of Va., Inc. v. Kozlowski, 42 F.3d 1444, 1449 (4th Cir. 1994) (actions for “prospective injunctive relief only, rather than any form of retroactive compensatory damages” may be brought, consistent with Ex parte Young), cert. denied, 116 S. Ct. 60 (1995). At the same time, the availability of injunctive relief under Ex parte Young is “necessary to vindicate the federal interest in assuring the supremacy of [federal] law." Papasan, 478 U.S. at 278 (internal quotation omitted). Thus, as this Court explained in Coakley v. Weich: few, if any, suits are barred for failure to allege an “ongoing violation” under Papasan. Quite logically, the courts treat the issue of whether a violation is “ongoing” as related to the issues of whether prospective relief is appropriate, or whether the requested relief would operate instead as an illegitimate award of retroactive damages. 877 F.2d at 307 n.2 (citations omitted). iiere, Paraguay seeks no money damages. The relief it requests is that defendants take no further actions based on Breard’s illegally obtained conviction, that the conviction be vacated and that Paraguay be given the opportunity to participate meaningfully in any further proceedings against him. A25. The relief sought would put a direct end to the continuing harm Paraguay is suffering. This relief accords with both the express terms and the underlying policy of the Ex parte Young doctrine. Notwithstanding these principles, the District Court held that Virginia's planned execution of Breard, although “a tragic consequence of Virginia's failure to abide by the law,” may not be enjoined because it would be a mere “consequence of the violation and not a continuing wrong.” A117-18 (emphasis in original). The District Court's application of the “ongoing violation” requirement is flatly contradicted by a wealth of controlling authority. In Milliken v. Bradley, the Supreme Court held that the Eleventh Amendment did not preclude a school desegregation order that directed Michigan state officials to prospectively eradicate the effects of segregation by paying half the funds necessary to implement a remedial education plan for the Detroit school system. 433 U.S. at 288-90. The Court concluded that the remedial education program was “plainly designed to wipe out continuing conditions of inequality produced by the inherently unequal dual school system long maintained by Detroit.” Jd. at 290. That the education pian would be implemented after de jure segregation had been eliminated did not alter the Court's conclusion. /d.; see also 12 Stanley v. Darlington County Sch. Dist., 84 F.3d 707, 713 (4th Cir. 1996) (sovereign immunity does not bar federal courts from compelling a state to provide funds to eliminate all vestiges of a previously segregated school system), Parents for Quality Educ. with Integration, Inc. v. Indiana, 977 ¥ 2d 1207, 1210-11 (7th Cir. 1992) (state's failure to take “affirmative steps to discharge its duty to dismantle the dual school system that its laws helped to create and maintain . . . constitutes a continuing violation of the Fourteenth Amendment"). Similarly, in Papasan, the Supreme Court upheld an equal protection suit brought by students in a Mississippi school district that, the students claimed, was underfunded relative to the rest of the state because, 100 years earlier, the state had sold lands held in trust for the district's public schools. Although the Court expressly acknowledged that the dispute arose from the same past actions that gave rise to a claim for money damages barred by the Eleventh Amendment, it held the plaintiffs nonetheless to be entitled to relief from the current consequences of those past events. The Court held that, given its focus on the present consequences, the plaintiffs’ equal protection claim alleged “precisely the type of continuing violation for which a remedy may permissibly be fashioned under Young.” Papasan, 478 U.S. at 282; see also McConnell vy. Adams, $29 F.2d 1319, 1329-30 (4th Cir. 1987) (reversing money damage award against state officials for unconstitutional refusal to rehire plaintiffs as barred by Eleventh Amendment, but affirming injunction reinstating plaintiffs as authorized under Young), cert. denied, 486 U.S. 1006 (1988). This Court applied the same analysis in Coakley. Mr. Coakley worked for the South Carolina Port Authority 13 ("SPA") and was fired in violation of the Due Process Clause of the Fourteenth Amendment. He sought prospective injunctive relief in the form of reinstatement. ‘This Court rejected the SPA's argument that reinstatement would violate its sovereign immunity because Coakley had failed to allege an “ongoing violation” of his federal rights: We recognize that from one point of view, all Coakley has alleged is that for a period in the past the SPA put him through a process that deprived him of due process rights, but that the process, and any relationship between him and SPA, has ended. This would suggest that his suit against Welch is barred for want of an “ongoing” violation. The view we find more consistent with Papasan and McConnell is that by his allegations and his prayer for an injunction, Coakley has alleged SPA conduct that, while no longer giving him daily attention, cominues to harm him by preventing him from obtaining the benefits of SPA employment. Coakley, 877 F.2d at 307 0.2; accord McConnell, 829 F.2d at 1329-30.? 2. Every circuit court that has addressed this question in the reinstatement context has reached the same conclusion. Russell v. Dunston, 896 F.2d 664, 668 (2d Cir.) (“We do not agree . . . that the existence of a past harm renders an otherwise forward-looking injunction retroactive. If it did, the rule allowing prospective relief would be substantially (continued...) 14 Finally, in Thomas S. v. Flaherty, 92 F.2d 250 (4th Cir.), cert. denied, 498 U.S. 951 (1990), this Court upheld an order directing state officials to provide a class of mentally retarded adults with treatment to eliminate the continuing effects of prior mistreaument the class had suffered while in the state's care. The Court was unwilling to accept the officials’ argument that class members who were no longer in state custody failed to allege an ongoing violation of federal law: instead, it held that, consistent with the Eleventh Amendment, relief had properly been awarded for class members who were “presently suffering from unconstitutional conditions imposed while in the hospital.” Jd. at 255. The treatment awarded was designed only to address the continuing effects of pasi unconstitutional conditions and therefore was prospective relief 2.(...cominued) undermined because the need for prospective relief often arises out of a past injury”), cert. denied, 498 U.S. 813 (1990); Melo v. Hafer, 912 F.2d 628, 635-36 Gd Cir. 1990), aff'd on other grounds, 502 U.S. 21 (1991); Hall v. Medical College of Ohio, 742 F.2d 299, 310 (6th Cir. 1984), cert. denied, 469 U.S. 1113 (1985); Ellion v. Hinds, 786 F.2d 298, 302 (7th Cir. 1986) (“Elliott's alleged wrongful discharge is a continuing violation, as long as the state official keeps him out of his allegedly tenured position the official acts in what is claimed to be of Elliott's constitutional rights”); Barnes v. Bosley, 828 F.2d 1253, 1257-58 (8th Cir, 1987); Ramirez v. Oklahoma Dep't of Mental Health, 4\ F.3d 584, 589 (10th Cir, 1994); Cross v. Alabama, 49 F.3d 1490, 1503 (itth Cir, 1995). 15 that “fully comportjed| with the remedy approved in Milliken v. Bradley.” Id.; see also Clark v. Cohen, 794 F.2d 79, 84 (3d Cir.) (a “federal court may order state officials to fund from the state treasury remedial measures found necessary to undo the harmful effects of past constitutional violations"), cen. denied, 479 U.S. 962 (1986). Like the plaintiffs in the desegregation, reinstatement and mental health cases, Paraguay currently suffers from the “tragic consequence|s] of (state officials'| abiding failure to abide by the law.” A117. Where, as here, the relief requested cannot be construed as a demand for money damages, the doctrine of Ex parte Young authorizes federal courts to grant relief. The District Court's ruling would eviscerate a doctrine that has proved “indispensable to the establishment of constitutional government and the rule of law." CHARLES A, WRIGHT, Law OF FepeRaL Courts 312 (Sth ed. 1994). Its decision should be reversed. B. Paraguay Seeks An _ injunction Against An Ongoing Violation Of Its Rights Under Two Treaties. A second ground for reversal of the District Court's Eleventh Amendment holding is its error in construing the rights accorded and obligations imposed by the Treaties so narrowly as to find no ongoing violation. The District Court's Eleventh Amendment analysis was based on the erroneous premise that defendants’ obligations under the Treaties were fully satisfied by permitting Paraguay to provide consular assisiance to Breard at a time when it was useless and meaningless: afier Breard had been arrested, arraigned, tried 16 and sentenced to death, had exhausted all appeals and state habeas proceedings and was scheduled for execution. See A117 ("Now that defendants have given Paraguayan officials access to Mr. Breard, they are no longer in violation of the treaties"). Contrary to the District Court's restrictive reading, the Treaties guarantee the right to provide meaningful consular assistance to a state's detained nationals. Because the defendants continue to deny Paraguay the opportunity to provide assistance to Breard at a time and in a context where their assistance could meaningfully affect the outcome or conduct of the case against him, their violation of Paraguay's rights is an ongoing and continuing one—even giving “ongoing violation” the restrictive meaning the District Court accorded it. "{A] treaty should generally be ‘consiruejd] . . . liberally to give effect to the purpose which animates it.'* United States v. Stuart, 489 U.S. 353, 368 (1988) (quoting Bacardi Corp. of Am. v. Domenech, 311 U.S. 150, 163 (1940)); Tabion v. Mufti, 73 F.3d 535, 537 (4th Cir. -1996), "{E]ven where a provision of a treaty fairly admits of two constructions, one restricting, the other enlarging, rights which may be claimed under it, the more liberal interpretation is to be preferred.” Stuart, 489 U.S. at 368 (internal quotation omitted). This general rule of liberal construction is supplemented by the Vienna Convention's specific directive that domestic law be applied so as to “enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” Vienna Convention, art. 36(2). The signatories to the Treaties at issue here required prompt notification of a national’s detention to ensure that their respective consular officers could provide meaningful 17 assistance to the national’s defense, at trial and before. The Vienna Convention requires the authorities of the arresting state “without delay” to inform the detained national of his right to consular assistance, and also requires them, upon the national's request, "without delay [to] inform the consular post . if. . . a national of that state is arrested . . . or detained in any other manner.” Vienna Convention, art. 36(1)(b). By virtue of its most-favored-nation clause, the Friendship Treaty likewise requires that a consular officer shall “immediately” be notified of a national’s arrest and provided access to the national no more than four days after the arrest. E.g., Consular Convention, June 1, 1964, U.S.-U.S.S.R., art. 12(2)-(3) & §§ 1-2 of protocol, 19 U.S.T. 5018, 5027, 5039 (providing privileges of immediate notification and access to Soviet consuls); see Friendship Treaty, art. XU (Paraguayan consuls entitled to privileges of most favored nation); see also Santovincenzo v. Egan, 284 U.S. 30, 35-36 (1931) (under most -favored-nation clause such as that in Friendship Treaty, rights and privileges provided other consuls under other treaties inure to benefit of consul invoking clause). Reference to nation-state practice is unnecessary given the clear language of the Treaties here. See Eastern Airlines v. Floyd, 499 U.S. 530, 535 (1991) (where there are “difficult or ambiguous passages” in a treaty, courts “may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties") (internal quotation omitted). Nonetheless, state practice underscores that the District Court's crabbed reading of the rights accorded by the Treaties was in error. As United States Department of State has stressed: Article 36 of the Vienna Convention contains obligations of the highest order and should not be dealt with lightly. . . . Serious problems in this regard (concerning provision of consular notification “without delay"| have been experienced by American consular officers in countries of Eastern Europe, where . . . detention of an individual for prolonged “interrogation” prior to the filing of formal charges is officially sanctioned. During this period of days, weeks, or even months, authorities of the receiving state may decline to observe that State's obligation to make notification to consular officials of the sending State. Clearly this type of procedure is not in keeping with either the letter or the spirit of the Vienna Convention. ArTHuR W. Roving, U.S. Dep't or Stare, Diogst of UNITED STATES PRACTICE IN INTERNATIONAL LAW 1973, 161 (1973) (emphasis supplied); see Commentary on Draft Articles on Consular Relations Adopted by the International Law Commission at lis 13th Session, U.N. GAOR, Conf. on Consular Relations, annex, art. 36, UN Doc. A/Conr. 25/6, reprinted in 2 UNITED NATIONS CONFERENCE ON CONSULAR RELATIONS, OFFICIAL RECORDS 24 (1963) (article 36 intended, among other things, to enable consular assistance “where a national of the sending State has been placed in custody pending trial, and criminal proceedings have been instituted against him; cases where the national has been sentenced, but the judgment is still open to appeal or cassation; and also cases 19 where the judgment convicting the national has become final.”) (hereinafter Orr. Rec.).? The clear intent of the Treaties’ provisions for prompt notification and access is to provide consular officers the opportunity to assist the national at a time and in a context where such assistance can be most useful to the national and most effective in the exercise of consular functions. By holding that the provision of consular access three years after Breard's trial and conviction satisfied the Treaties’ requirement of prompt notification and access, the District Court departed from the unambiguous text and intent of the Treaties. In the most fundamental sense, so long as defendants continue to detain Breard and to take steps to carry out a death sentence rendered without permitting the notification and access to which Paraguay is entitled, defendanis continue to violate Paraguay's rights under the Treaties. 3. Article 36(2)'s requirement that local law give “full effect" to the article's purposes was adopted over an amendment proposed by the Soviet Union which would have permitted domestic law to impair the rights accorded in Article 36 so long as they did not render them completely inoperative. U.N. GAOR, Conf. on Consular Relations, 12th plen. mig., agenda item 10, 44 2-9, UN Doc. A/Conr. 25/SR. 12, 17 April 1963, p. 1, reprinted in | Orr. Rec. 40; see id. (statement by Mr. Khiestov, USSR) (stating that article 36(2) could “force States to alter their criminal laws and regulations and allow consuls to interfere with normal legal procedures in order to protect alien offenders”). 20 THE District Court HAD JURISDICTION OVER PARAGUAY'S ACTION TO VINDICATE ITS TREATY RIGHTS BECAUSE PARAGUAY WAS NOT A PARTY TO THE STATE CouRT ACTION AND Hab No APPEAL TO THE SUPREME COURT. The District Court also erred in holding that Paraguay's action effectively sought review of a state court judgment which could be reviewed only by habeas corpus petition or by the Supreme Court. A118 (citing District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)); see also Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). Paraguay was not a party to the state court proceedings, its claims were not presented to that court, no appeal by Paraguay from the state proceedings could be had, Paraguay has no habeas remedy and it seeks no review in this action of any ruling by the state court. Under established principles of federal law, the District Court has original jurisdiction over this action and the Rooker/Feldman doctrine does not operate as a bar. A. The District Court Has Jurisdiction Over Paraguay's Action To Enforce Treaty Rights Violated By State Officials. The federal district courts have jurisdiction of actions arising under treaties of the United States. 28 U.S.C. § 1331 ("district courts shall have original jurisdiction of all civil actions arising under the . . . treaties of the United States"). As part of the “supreme Law of the Land,” U.S. Const. art. VI, cl. 2, the interpretation of treaties has long been held to be 21 “the peculiar province of the judiciary.” Jones v. Meehan, 175 U.S. 1, 32 (1899). “[A] foreign nation is generally entitled to prosecute any civil claim in the couris of the United States upon the same basis as a domestic corporation or individual might do.” Pfizer, Inc. v. India, 434 U.S. 308, 318-19 (1978); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 408-12 (1964) (unless foreign state is at war with or not recognized by United States, courts of this country are open to it); see also 28 U.S.C. § 1332(a)(4) (providing jurisdiction over actions brought by a foreign state “as plaintiff" in the district courts). And “[ujniess otherwise provided by statute, all the inherent equitable powers of the District Court are available for the proper and complete exercise of [its equitable] jurisdiction.” Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946). In appropriate circumstances, such as those here, a district court may enjoin any further action to enforce a state court judgment rendered in violation of federal law. See, ¢.g., French v. Hay, 89 U.S. (22 Wall.) 250, 252-53 (1874); United States v. Owens, 54 F.3d 271, 276-77 (6th Cir.), cert. dismissed, 116 S. Ct. 492 (1995); Munoz v. County of Imperial, 667 F.2d 811, 814, 817 (9th Cir.), cert. denied, 459 U.S. 825 (1982). B. The Rooker/Feldman Doctrine Does Not Bar Paraguay's Claims. In holding that the Rooker/Feldman doctrine applied “regardless of the procedural posture of the litigants,” A118, the District Court failed to apply the dispositive decisions of 22 the Supreme Court and every circuit to consider the question. Under the Rooker/Feldman doctrine, "a party losing in state court is barred from seeking what in substance would be appellate review of the state judgment in a United States District Court." Johnson v. De Grandy, 114 S. Ct. 2647, 2654 (1994) (emphasis supplied). The basis for the doctrine is that Congress intended the Supreme Court to have exclusive appellate jurisdiction over state court decisions on federal law pursuant to 28 U.S.C. § 1257. Feldman, 460 U.S. at 476; Rooker, 263 U.S. at 416 (citing predecessor statute); see also Leonard v. Suthard, 927 F.2d 168, 169 (4th Cir. 1991). Rooker/Feldman expresses a jurisdictional constraint that imposes order on the flow of federal question cases in the federal courts system: if a party litigates a federal question in the state courts and loses, that party may seek review of that federal question only in the Supreme Court and may not attempt to evade the requirements of section 1257 by invoking the district courts’ original jurisdiction over that same question under section 1331. Feldman, 460 U.S. at 476; Rooker, 263 U.S. at 416; see also ASARCO, Inc. v. Kadish, 490 U.S. 605, 622-23 (1989); 18 CHARLES ALAN WarionT, ArgtHur R. Mitter & Epwarp H. Cooper, FEDERAL PRACTICE AND PROCEDURE § 4469 (1981) (doctrine mandates, in essence, "that federal courts must honor the res judicata effects of state court judgments"). Contrary to the District Court's ruling, just three years ago the Supreme Court affirmed that, where the federal plaintiff was not a party in state court and had no opportunity to appeal the state court judgment to the Supreme Court, the plaintiff's claims are not barred by Rooker/Feldman. Johnson 23 v. De Grandy, 114 S. Ct. at 2654.4 In De Grandy, the Florida Supreme Court had upheld the constitutionality of an electoral redistricting enacted by the Florida legislature. 114 S. Ct. at 2652. The United States thereafter brought suit in federal district court under section 2 of the Voting Rights Act, alleging that the redistricting diluted minority voting strength. id. The Supreme Court rejected Florida's argument that Rooker/Feldman was a bar because the United States was effectively seeking review of the Florida Supreme Court's decision in district court: “unlike Rooker or Feldman, the United States was not a party in the state court.” Jd. at 2654. Because the United States “was in no position to ask thie Supreme} Court to review the state court's judgment” and was 4. Every circuit to consider the question has likewise held, consistent with De Grandy, that Rooker/Feldman is no bar to a federal plaintiff who was not a party to the state court proceedings and therefore had no right of appeal to the Supreme Court. Schneider v. Colegio de Abogados, 917 F.2d 620, 629 (ist Cir. 1990), cert. denied, 502 U.S. 1029 (1992); FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840-41 & n.4 (3d Cir. 1996); EB. Elliot Adv. Co. v. Metropolitan Dade County, 425 F.2d 1141, 1148-49 (Sth Cir.), cert. dismissed, 400 U.S. 805 (1970), United States v. Owens, 54 F.3d at 274; Leaf v. Supreme Court of Wisconsin, 979 F.2d 589, 597-98 (7th Cir. 1992), cert. denied, 508 U.S. 941 (1993); McCurry v. Tesch, 738 F.2d 271, 274 & n.3 (8th Cir. 1984), cert. denied, 469 U.S. 1211 (1985); Roe v. Alabama, 43 F.3d 574, 580 (llth Cir.), certifying questions to 676 So. 2d 1206 (Ala.), on receipt of answers to certified questions, 52 F.3d 300 (1 ith Cir.), cert. denied, 116 §. Ct. 276 (1995). 24 “merely seek{ing] to litigate its § 2 case for the first time,” Rooker/Feidman did not bar it from proceeding in the federal courts. /d. Like the United States in De Grandy, Paraguay was not a party to the state court proceedings. i seeks for the first time an injunction in federal court against Virginia's continuing interference with its federally-protected consular functions. The Rooker/Feldman doctrine does noi bar its claims.° 5. The District Court also cited in its Rooker/Feldman discussion the decision in Preiser v. Rodriguez, 411 U.S. 475 (1973), which defendants had urged as an independent ground for dismissal. It is unclear whether the District Court viewed Preiser as additional support fer its ruling that Rooker/Feldman bars Paraguay's claims, as « appeared to cite Preiser only for the undisputed proposition that Rooker/Feldman does not bar federal habeas review of state court decisions. See A118. in any event, Preiser provides no such support. The issue in Preiser was whether, where both 42 U.S.C. § 1983 and 28 U.S.C. § 2254 provided a remedy, a state prisoner could elect to proceed under the more general provisions of section 1983. 411 U.S. at 482-90. While acknowledging that section 1983's broad language literally encompassed the prisoners’ claims, the Court held that “the specific federal habeas corpus statute, explicitly and historically designed to provide the means for a state prisoner to attack the validity of his confinement, must be understood to be the exclusive remedy available in a (continued...) 25 Under no rationale can the state court judgment preclude Paraguay's claim here. The essence of Paraguay's claim ts that it was deprived of its federally protected right to assisi us Citizen because i was never informed of the existence of the proceedings against him. By suggesting that the very proceeding from which Paraguay was unlawfully excluded could preclude Paraguay from asserting its right to assist in such proceedings, the District Court engaged in circular reasoning that finds no support in the authority on which it relied. The state court judgment is the event which gives rise to Paraguay's claim. It cannot at the same time pose a bar to that claim. CONCLUSION The District Court's order should be reversed and this action should be remanded for further proceedings. Dated: March 4, 1997 DeBEVOISE & PLIMPTON By: Donald \ Francs Donovan Donald Francis Donovan Barton Legum Michael M. Ostrove Alexander A. Yanos 875 Third Avenue New York, New York 10022 (212) 909-6000 Loren Kieve Depevoise & PLIMPTON 555 13th Sweet, N.W. Washington, D.C. 20004 (202) 383-8000 Associate Professor Leslie M. Kelleher T.C. Williams School of Law University of Richmond Richmond, Virginia 23173 (804) 289-8359 27 Professor Rodney A. Smolia Professor Linda A. Malone Marshall-Wythe School of Law College of William and Mary “South Henry Street P.O. Box 8795 Williamsburg, Virginia 23187 (804) 221-3800 ADDENDUM REPRODUCING FEDERAL AUTHORITY TREATIES 1. Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 *“** Article 36 Communication and contact with nationals of the sending State 1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that state is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular A-1 post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shaii refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. 2. The rights referred to in paragraph | of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended. 2. Treaty of Friendship, Commerce, and Navigation, Feb. 4, 1859, U.S.-Para., 12 Stat. 1091 Article Xi The diplomatic agents and consuls of the United States of America in the territories of the Republic of Paraguay shall enjoy whatever privileges, exemptions, and immunities are or may be there granted to the diplomatic agents and consuls of any other nation whatever; and, in like manner, the diplomatic agents and consuls of the Republic of Paraguay in the United States of America shall enjoy whatever privileges, exemptions, and immunities are or may be there granted to agents of any other nation whatever. 3. Consular Convention, June 6, 1951, U.S.-U.K., 3 U.S.T. 3426 *“* Anicle 16 (1) A consular officer shall be informed immediately by the appropriate authorities of the territory when A-3 any national of the sending state is confined in prison awaiting trial or is otherwise detained in custody within his district. A consular officer shall be permitied to visit without delay, to converse privately with and to arrange legal representation for, any national of the sending state who is so confined or detained. Any communication from such a national to the consular officer shall be forwarded without delay by the authorities of the territory. 4. Consular Convention, June 1, 1964, U.S.-U.S.S.R., 19 U.S.T. 5018 eee Article 12 eee 2. The appropriate authorities of the receiving state shall immediately inform a consular officer of the sending state about the arrest or detention in other form of a national of the sending state. 3. A consular officer of the sending state shall have the right without delay to visit and communicate with a national of the sending state who is under arrest or otherwise detained in custody or is serving a sentence of imprisonment. The rights referred to in this paragraph shall be exercised in conformity with the laws and regulations of the receiving state, A-4 ———_——_— + subject to the proviso, however, that the said laws and regulations must not nullify these rights. PROTOCOL To the Consular Convention Between the — Government of the United States of America and the Government of the Union of Soviet Socialist Republics 1. It is agreed between the Contracting Parties that the notification of a consular officer of the arrest or detention in other form of a national of the sending state specified in paragraph 2 of Article 12 of the Consular Convention between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics of June 1, 1964, shall take place within one to three days from the time of arrest or detention depending on conditions of communication. 2. It is agreed between the Contracting Parties that the rights specified in paragraph 3 of Article 12 of the Consular Convention of a consular officer to visit and communicate with a national of the sending state who is under arrest or otherwise detained in custody shall be accorded within two to four days of the arrest or deténtion of such national depending upon his location. A-5 5. Agreement on Consular Relations, Jan. 31, 1979, U.S.- China, 30 U.S.T. 17 **. * 5. If a citizen of the sending country is arrested or detained in any manner, the authorities of the receiving country shall, without delay, notify the consular post or embassy accordingly of the arrest or detention of the person and permit access by a consular officer of the sending state to the citizen who is under arrest or detained in custody. STATUTES 42 U.S.C. § 1983 § 1983. Civil action for deprivation of rights Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was A-6 violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 42 U.S.C.A. § 1983 (West 1988), as amended by Federal Courts Improvement Act of 1996, Pub. L. No. 104-317, 110 Stat. 3847 (WESTLAW through all 1996 legislation). A-7 CERTIFICATE OF SERVICE 1, Daniel C. Malone, a law clerk with Debevoise & Plimpton, attorneys for plaintiffs-appellants the Republic of Paraguay, Ambassador Jorge J. Prieto and Consul General José Antonio Dos Santos, hereby certify under penalty of perjury that | have, this 4th day of March, 1997, caused eight copies of the foregoing Plaintiffs'-Appellants’ Brief, together with six copies of the Joint Appendix, to be filed by first class mail with the Clerk of Court and caused two copies of said brief and one copy of said appendix to be served by first class mail on each of the following: Donald R. Curry, Esq. Senior Assistam Attorney General Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 Ara L. Tramblian, Esq. Deputy County Attorney Office of the County Attorney #1 Courthouse Plaza, Suite 403 2100 Claredon Boulevard Arlington, Virginia 22201 Dated: March 4, 1997 Glen Daniel C. Malone IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 96-2770 REPUBLIC OF PARAGUAY, et al., Appellants v. GEORGE ALLEN, GOVERNOR OF VIRGINIA, et al., Appellees On Appeal from the United States District Court for the Eastern District of Virginia Richmond Division APPELLEES’ BRIEF Arlington, Virginia 22201 (703) 358-3100 TABLE OF CONTENTS Page DD. gcc cnc eesesvecee bees edewetecoeuserersegs l STATHOGINT OF THB CAGE .. ww ccc cc creer scree eseseeeeee 2 STATEMENT OF FACTS . 2... ccc ccc tee eee cera eerercnens 3 SUMMARY OF THE ARGUMENT ...... 26-5 eee cee eee eee ees 8 OE. og cack cndee US 0 eee bb UD OTR ESSE SEEN CSOHH SCHR SEES 9 THE DISTRICT COURT CORRECTLY CONCLUDED THAT IT DID NOT HAVE JURISDICTION TO GRANT THE RELIEF REQUESTED BY THE PLAINTIFFS ... 0... ccc ccc eee eee wenn ncenes 9 A The Eleventh Amendment ..... . .- eee eee renee ees 9 l Ex Pare Young ....---- ee eee eee ee eres 10 2 No "Continuing Violation” .....--.----5+esee85 12 B The "Feldman" Doctrine... . - . se eee eee eens 14 Cc Habeas Corpus as Sole Remedy .....- +--+ se seer ervees 17 D ce 19 E Non-Justiciable “Political Question” .......---+-+++eee> 21 ee ube bb ebb ebeenisések sane dieesegurs 26 CERTIFICATE OF SERVICE .... 1... - cece cere eee eee eens 27 nn aa 16 . grain A ats re eet 2 94 F.2d 597 (2d Cir. 1938) rere FP Wuyi pega nm beet: (aes, AN ee Cle 2 8c ag 9 i ES Ne 1990) elcda «nace ta dun ehdedawccdenerel bisce 19 RS oot gs ee 10 SR Ene nes ee UA SR pI NOI aerate erga 21