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526 U.S. 111

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OCTOBER TERM, 1998

Per Curiam

FEDERAL REPUBLIC OF GERMANY ET AL. v. UNITED STATES ET AL.

ON APPLICATION FOR TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION AND ON MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT

No. 127, Orig. (A-736). Decided March 3, 1999

Plaintiffs moved for leave to file a bill of complaint and for a preliminary injunction against the United States and the Governor of Arizona, both raised under this Court's original jurisdiction, seeking, inter alia, enforcement of an ex parte order by the International Court of Justice, which directed the United States to prevent Arizona's execution of a German citizen. The action was filed within two hours of an execution ordered in January, based upon a sentence imposed in 1984, about which Germany learned in 1992.

Held: Given the tardiness of the pleas and the threshold barriers they implicate, this Court declines to exercise its original jurisdiction. It appears that the United States has not waived its sovereign immunity, and it is doubtful that Art. III, § 2, cl. 2, provides an anchor for an action to prevent execution of a German citizen who is not an ambassador or consul. Also, a foreign government's ability here to assert a claim against a State is without evident support in the Vienna Convention and in probable contravention of Eleventh Amendment principles. See Breard v. Greene, 523 U. S. 371, 377.

Motions denied.

PER CURIAM.

The motion of the Federal Republic of Germany et al. (plaintiffs) for leave to file a bill of complaint and the motion for preliminary injunction against the United States of America and Jane Dee Hull, Governor of the State of Arizona, both raised under this Court's original jurisdiction, are denied. Plaintiffs' motion to dispense with printing requirements is granted. Plaintiffs seek, among other relief, enforcement of an order issued this afternoon by the International Court of Justice, on its own motion and with no opportunity for the United States to respond, directing thecralaw


112

112 FEDERAL REPUBLIC OF GERMANY v. UNITED STATES

BREYER, J., dissenting

United States to prevent Arizona's scheduled execution of Walter LaGrand. Plaintiffs assert that LaGrand holds German citizenship. With regard to the action against the United States, which relies on the ex parte order of the International Court of Justice, there are imposing threshold barriers. First, it appears that the United States has not waived its sovereign immunity. Second, it is doubtful that Art. III, § 2, cl. 2, provides an anchor for an action to prevent execution of a German citizen who is not an ambassador or consul. With respect to the action against the State of Arizona, as in Breard v. Greene, 523 U. S. 371, 377 (1998) (per curiam), a foreign government's ability here to assert a claim against a State is without evident support in the Vienna Convention and in probable contravention of Eleventh Amendment principles. This action was filed within only two hours of a scheduled execution that was ordered on January 15, 1999, based upon a sentence imposed by Arizona in 1984, about which the Federal Republic of Germany learned in 1992. Given the tardiness of the pleas and the jurisdictional barriers they implicate, we decline to exercise our original jurisdiction.

JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, concurring.

I join in the foregoing order, subject to the qualification that I do not rest my decision to deny leave to file the bill of complaint on any Eleventh Amendment principle. In exercising my discretion, I have taken into consideration the position of the Solicitor General on behalf of the United States.

JUSTICE BREYER, with whom JUSTICE STEVENS joins, dissenting.

The Federal Republic of Germany et al. (Germany) has filed a motion for leave to file a complaint, seeking as relief an injunction prohibiting the execution of Walter LaGrand pending final resolution of Germany's case against the Unitedcralaw


113
Full Text of Opinion





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