Review of Forum Non Conveniens and Immunity from Civil Suit
11 Preview of Supreme Court Cases 323 (March 1988)
4 Pages Posted: 24 Feb 2013
Date Written: March 7, 1988
This article previews the issues and arguments in Van Cauwenberghe v. Biard, on the Supreme Court’s 1987-88 appellate docket. The issues in this case concern whether a trial judge's denial of two pre-trial motions are immediately appealable as exceptions to the final judgment rule, pursuant to the "collateral order" doctrine. The first ruling denied a motion to dismiss the case because it was brought in an inconvenient court. The second ruling rejected the claim that absolute immunity protected a foreign resident from a civil lawsuit because he was extradited to the United States to appear in a criminal prosecution.
Leaving aside the fascinating question of why the federal court system allowed this lawsuit to proceed, this case presents two issues concerning the immediate appeal of a judge's rulings on pre-trial motions. This case implicates the doctrine of interlocutory appeal, a frequently-tilled corner of civil procedure. Hardly a term goes by that the Supreme Court does not rule on the immediate appealability of some particular trial ruling; indeed, this is the second case this term in which the Supreme Court will consider yet another nuance of interlocutory review. (See, Gulfstream Aerospace Corp. v. Mayacamas Corp.).
Although the Supreme Court has not, to date, spoken on the appealability of a forum non conveniens denial, it has determined that a claim of immunity is immediately appealable under the collateral order doctrine (Mitchell v. Forsyth, 472 U.S. 511 (1985)). Moreover, in Mitchell, the Supreme Court extended this principle to a claim of qualified immunity as well. The Court has endorsed interlocutory appeal of a claim of immunity because it satisfies the three-prong collateral order test. First, a denial of immunity conclusively determines this disputed question because once a court has rejected the claim of a right to stand trial, no other steps can be taken to avoid the trial that the defendant maintained was barred. Second, a claim of immunity is "conceptually distinct" from the merits of the lawsuit; a claim of immunity is chiefly a question of law typically not coextensive with the facts implicated in the underlying dispute. Third, a denial of immunity is effectively lost and unreviewable if the case is erroneously permitted to proceed. The immunity claimed is an immunity to suit altogether, not merely a defense to liability.
Unless he is hoping for an abandonment of this analysis, Biard has a tough position on the immunity issue. He has hobbled together a highly technical argument asserting that Van Cauwenberghe has mischaracterized the immunity issue, and that under international law principles any claimed immunity runs to governments rather than to individuals. Moreover, the right asserted is not an "important" one in the collateral order sense, because it is peculiar to Van Cauwenberghe's unusual situation and unlikely to recur. Finally, an immunity defense is reviewable after trial and "creative linguistics can twist virtually any defense into a right not to stand trial."
Keywords: Forum non conveniens, soveriegn immunity, collateral order doctrine, interlocutory appeal, immediate appeal, extradition criminal offense, Van Cauwenberghe v. Biard
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