Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 84 C 5144 -- Susan Getzendanner, Judge.
Before CUMMINGS, Chief Judge, POSNER and FLAUM, Circuit Judges.
CUMMINGS, Chief Judge. This is an appeal by plaintiffs Catherine and Ryan Flynn from the district court's grant of summary judgment in favor of the defendant Secretary of State George Shultz. Plaintiffs seek relief in the nature of mandamus or injunction to compel the Secretary to authorize the testimony of a State Department consular official and to undertake certain other actions allegedly mandated by 22 U.S.C. § 1732. For the reasons set forth below, we affirm the summary judgment.
The vents giving rise to this action began on February 11, 1982, when accountant and consultant Richard Flynn of Bob Schwerner and Associates, Inc. (BSA), an Illinois Corporation, travelled to Mexico City. Flynn met with Robert Schwermer, corporate president and sole shareholder of BSA, in Mexico City and was given authority to settle a contract dispute between BSA and Talleres Draficos de la Nacion, a recently nationalized Mexican graphic arts company (PP10 and 11 of R. Item 1). Plaintiffs admit that BSA had breached its contract with Talleres Graficos which involved the purchase and delivery of over $1.5 million of paper products, although it was alleged below that the breach may have been caused in part by Talleres Graficos (P11 of R. Item 1; Br. 1).
On March 1, 2 and 5, Phillip Battaglia, a consular officer at the American Embassy in Mexico City, in his capacity as arrest and detention officer, attended meetings held between Flynn and Mexican corporate and government officials in order to negotiate a settlement (Exhibit 206 of R. Item 7). The Complaint filed by Flynn's wife Catherine and minor son Ryan states that private negotiations had proceeded from February 11 to 22, but on February 22 Flynn suffered a heart attack. He was hospitalized but resumed negotiations on March 1. Subsequent to Robert Schwermer's return to Chicago armed guards were assigned by Talleres Graficos to watch Flynn. On March 12, 1982, after signing an apparently acceptable agreement with Talleres Graficos, he was arrested and incarcerated by Mexican authorities and criminally charged with fraud in relation to his participation in the corporate contract dispute (Exhibit 2-G of R. Item 7). After a bench trial, the Federal District Court of Mexico convicted Flynn of criminal fraud on January 25, 1984, sentenced him to six years in prison and ordered him to pay reparations of $1,536,739.71 (p. 70, Exhibit G of R. Item 11). Plaintiffs view the conviction as baseless and completely unjust (P21 of Complaint). But, e.g., see Weisberg, The Untold Story of Richard Flynn, in the September 1984 issue of Chicago Lawyer presenting a contrasting view. An appeal of the trial court decision was made to an intermediate appellate court on March 12, 1984, and the conviction was subsequently affirmed (P5 of Rubio Affidavit, Exhibit A of R. 1 Item 1). Flynn's Mexican lawyer has now pending a petition for amparo, requesting review by the Mexican Supreme Court (Exhibit B of R. Item 11). We have no knowledge that the Mexican court has acted on the petition.
The record indicates that Flynn has received substantial and continuous assistance from the American Embassy in Mexico City regarding his medical, legal, business and personal problems throughout his ordeal (pp. 10-12 of R. Item 7; Exhibit 2-F of R. Item 7). Nevertheless, he remains in jail in Mexico and has suffered two heart attacks subsequent to his conviction.
The primary objective of plaintiffs in this case is to obtain the testimony of Mr. Battaglia regarding the invalidity of the charges against Flynn, based on Battaglia's attendance at some of the aforesaid meetings. Apparently the testimony would then be proffered to the Mexican Supreme Court (p. 10 of plaintiffs' reply brief). Requests from Flynn and his attorneys for Battaglia's testimony have been refused by State Department officials.*fn1
The State Department bases its refusal to authorize Battaglia's testimony on the Department's practices and procedures which require a formal written request from the host State's (here Mexican) judicial authorities as a prerequisite to obtaining authorization for testimony of a consular official concerning official acts (PP15-17, Exhibit 2 and Exhibit 2-I, 1-9, of R. Item 7). Article 44(3) of the Vienna Convention on Consular Relations, 21 U.S.T. 105, T.I.A.S. No. 6820, provides that "Members of consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions * * *", and under Article 45 of the Convention, only the sending state (here the United States) may waive this immunity and then only by express written waiver. Further, Article II(4) of the United States/Mexican Consular Convention, 57 Stat. 800, T.S. No. 985, states that "A consular officer shall not be required to testify in criminal cases * * * regarding acts performed by him in his official capacity."*fn2
The United States will waive the immunity only under carefully controlled circumstances, in order to prevent erosion of the immunity principle (Hergen Declaration, P14 of Exhibit 2, R. Item 7). According to the State Department, the policy of requiring (i) a formal written request for the testimony from the host state and (ii) a formal written reply from the sending state in response thereto containing a limited waiver (P15, Exhibt 2 of R. Item 7) not only forwards the protection of the immunity, but also helps to secure diplomatic intercourse (PP14, 18B, Exhibit 2 of R. Item 7) and promote notions of comity among nations by enforcing respect for the internal procedures of foreign courts (P18B, Exhibt 2 of R. Item 7 and Oral Argument). Insofar as the record discloses, the procedure has been applied uniformly with respect to all nations (Exhibit 2-I, 1-9 of R. Item 7). Further, it appears that requests from courts in compliance with the State Department's procedures are normally granted (P16, Exhibit 2 and Exhibit 2-I, 1-9 of R. Item 7).
It is not disputed that no State Department official has received a request for Battaglia's testimony from the Mexican courts or any Mexican government authorities. It is unclear, however, whether, to what extent and at what level Flynn and his attorneys have petitioned the Mexican courts to request formally a waiver of consular immunity from the United States (p. 8 n.6 of R. Item 11, Flynn Affidavit, R. Item 9, Rubio Affidavit, R. Item 1). Although Flynn was informed in October 1982 that the matter "can only be settled through legal channels in Mexico" (Exhibit A of R. Item 11), the earliest evidence of his being informed of the specific requires procedures is the September 9, 1983, telegram from the State Department to the American Embassy refusing to authorize Battaglia to reply to Flynn's June 1983 interrogatories (Exhibits 2 (at p. 2) and 2-B of R. Item 7). The State Department simultaneously indicated that it would not refuse a formal Mexican judicial request of waiver of consular immunity (defendant's br. 32), but that until there was such a request no further relief was possible for Flynn (p. 8 of R. Item 7).
Plaintiffs in this action principally seek an order in the nature of mandamus or injunction to "compel the defendant to authorize consular official Phillip Battaglia to present testimony to the Supreme Court of Mexico on behalf of Richard Flynn." (Br. 7). Further, plaintiffs request that the defendant undertake certain actions allegedly mandated by The Hostage Act (22 U.S.C. § 1732 which states that:
Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress.
The statute and the Sixth Amendment of the U.S. Constitution, it is claimed, place a clear duty on the defendant to authorize Battaglia's testimony. The conclusion below that the district court possessed jurisdiction over the action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1361*fn3 is correct because plaintiffs assert claims arising under the laws and Constitution of the United States and request relief in the nature of mandamus from an officer of the United States.
The district court held that neither the Hostage Act nor the Sixth Amendment provided a basis for ordering the defendant to authorize Battaglia's testimony. The court also noted that 22 U.S.C. § 1732 itself did not entitle plaintiffs to any specific relief because, to the extent that the defendant's actions were reviewable at all, they satisfied any requirements under the Hostage Act and did not amount to an abuse of discretion.
Although this case is properly before us in a jurisdictional sense, a decision on the merits also requires presentation of a justiciable controversy. The nature of this action and the relief requested by plaintiffs squarely raise concerns embodied in the political question doctrine. Although it is just one aspect of the broader justiciability issue, that doctrine has been applied in cases involving extremely diverse issues. C. WRIGHT, THE LAW OF FEDERAL COURTS § 14 (4th ed. 1983). It rests primarily on the principle of separation of powers and the policy of judicial self-restraint. Id. The Supreme Court's most comprehensive articulation of the attributes of the political question doctrine was set forth in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 :
It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of ...