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THE SUPREME COURT OF THE UNITED STATES
SPRING TERM 2010
DOCKET NO. 01-01234
MEPHISTO VALENTIN Petitioner, v. JANE MARGARETE and JOHN WERTHER Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS FOR THE TWELFTH CIRCUIT
Brief for Petitioners Advocate #31 Issue #2 Ira Steinberg – (310)-507-5718
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Table of Contents
Table of Contents..............................................i
Table of Authorities.........................................iii
Question Presented.............................................1
Opinion Below..................................................1
Constitutional Provisions & Rules..............................1
Introduction...................................................1
Statement of the Case..........................................4
Argument.......................................................4
I. Foreign Sovereign immunity is a crucial, broad, and long-lived doctrine in international law.......................5
A. The policy motivations for foreign sovereign immunity
have traditionally given it broad application...........5
B. The FSIA is the sole basis for jurisdiction over a foreign sovereign.......................................6
II. The FSIA applies to former officials such as Mr. Valentin.7
A. The language, history, and policy scheme of the FSIA show that the act covers natural persons.....................7
B. The FSIA protects former officials from suit for actions taken in an official capacity..........................10
C. Even if the FSIA did not protect former officials they
like retain their common law immunity..................11
III. Valentin’s actions were within the scope of his authority and thus he may assert immunity as a former official.....12
A. Applying the functional approach to determining official
capacity, Mr. Valentin’s actions were within his official capacity even if against Tamland law...................12
B. There is no exception from immunity for jus cogens violations.............................................15
ii
Conclusion....................................................17
iii
Table of Authorities
U.S. SUPREME COURT CASES
Argentine Republic v. Amerada Hess Shipping Co.
488 U.S. 428 (1989)....................................6, 7
Dole Food Co. v. Patrickson
538 U.S. 468 (2003)..................................10, 11
Republic of Austria v. Altmann
541 U.S. 677 (2004).......................................5
Underhill v. Fernandez
168 U.S. 250 (1897).................2, 3, 9, 12, 13, 16, 17
Verlinden B.V. v. Central Bank of Nigeria
461 U.S. 480 (1983)............................6, 9, 11, 12
FEDERAL APPELLATE COURT CASES
Belhas v. Ya’Alon
515 F.3d 1279 (D.C. Cir. 2008).........3, 7, 10, 11, 14, 15
Chuidian v. Phillipine National Bank
912 F.2d 1095 (9th Cir. 1990)...................6, 8, 12, 13
Heaney v. Spain
445 F.2d 501 (2nd Cir. 1971)........................5, 9, 10
In re Terrorist Attacks of September 11, 2001
538 F.3d 71 (2nd Cir. 2008).........................2, 8, 17
Matar v. Dichter
563 F.3d 9 (2nd Cir. 2009)................................11
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Valentin v. Margarete
888 F.9th 888 (12 Cir. 2010)......2, 4, 7, 9, 10, 13, 14, 17
STATUTES
28 U.S.C. §1330.............................................5, 6
28 U.S.C. §1350........................................7, 14, 16
28 U.S.C. §1602.............................................5, 6
28 U.S.C. §1603.......................................2, 5, 6, 8
28 U.S.C. §1604...............................1, 2, 5, 6, 14, 15
28 U.S.C. §1605.....................................5, 6, 14, 16
28 U.S.C. §1605A....................................5, 6, 14, 16
28 U.S.C. §1608.............................................5, 6
EXECUTIVE MATERIALS
1 U.S. Op. Att’y Gen. 81 (1797)......................1, 5, 9, 16
INTERNATIONAL MATERIALS
Jones v. Saudi Arabia
[2006] UKHL 26.....................3, 9, 12, 13, 15, 16, 17
Tamland Const. art 24..................................3, 13, 14
1
QUESTION PRESENTED
Whether a foreign state’s immunity from suit under the
Foreign Sovereign Immunities Act, 28 U.S.C. §1604, extends to an
individual for acts taken in the individual’s former capacity as
an acting official on behalf of a foreign state.
OPINIONS BELOW
888 F.9th 888 (12th Cir. 2010)
CONSTITUTIONAL PROVISIONS & RULES
28 U.S.C. §1330
28 U.S.C. §1350
28 U.S.C. §1602
28 U.S.C. §1603
28 U.S.C. §1604
28 U.S.C. §1605
28 U.S.C. §1605A
28 U.S.C. 1608
Tamland Const. art. 24
INTRODUCTION
Petitioner, Mr. Valentin, is entitled to immunity under the
Foreign Sovereign Immunities Act for actions taken while Defense
Minister of Tamland.
Since our nation’s inception it has adhered to the
principle of foreign sovereign immunity, immunizing sovereigns
from suit for official actions. 1 U.S. Op. Att’y Gen. 81
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(1797). The doctrine, now codified as the Foreign Sovereign
Immunities Act (FSIA), serves to aid diplomacy and respect for
sovereignty by preventing courts from being used to politicize
international litigation and judge other nations’ policy
choices. 28 U.S.C. §1604; Underhill v. Hernandez, 168 U.S. 250,
252 (1897); In re Terrorist Attacks of September 11, 2001, 538
F.3d 71, 82 (2nd Cir. 2008). The doctrine is an important
foundation for effective diplomacy and international relations.
Petitioner, Mr. Valentin, served as Defense Minister in the
government of Tamland, a cold war ally of the United States.
Valentin v. Margarete, 888 F.9th 888, 16 (12th Cir. 2010). As
Defense Minister, Mr. Valentin was engaged on behalf of the
government in a campaign to combat an armed resistance by an
ethnic minority that involved possible human rights abuses. Id.
The respondents claim they were detained and tortured by Tamland
defense forces and are now suing Mr. Valentin. Id.
Mr. Valentin is protected by the FSIA because the act
applies to natural persons and former officials. 28 U.S.C.
§1603. Though the FSIA is ambiguous in its application to
natural persons, immunizing people is necessary since a nation
can only act through its human officials. Id. Immunity has
historically been provided to individuals and is consistent with
the policy purposes of the doctrine. Underhill, 168 U.S. at
252. Similarly, not applying the FSIA to former officials would
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defeat the purposes of the FSIA by allowing courts to judge the
policy actions of foreign officials. Id. In both cases it
would allow plaintiffs to commence politicized and
diplomatically disruptive litigation by simply suing current or
former officials instead of the government.
Only Mr. Valentin’s official actions are protected, and
what is official should be determined under the functional
approach, whereby actions taken under color of law or apparent
authority are also considered official. See e.g., Jones v.
Saudi Arabia, [2006] UKHL 26 at §74. The functional approach
reflects how governments work and assures that courts aren’t
forced into foreign statutory and constitutional interpretation.
See Id. That Mr. Valentin’s actions violated the literal terms
of Tamland law does not alter the official nature of his acts
under the functional approach. Tamland Const. art. 24.
Furthermore, substantive international norms banning torture do
not confer jurisdiction or make torture by an official a per se
unofficial act. Jones, [2006] UKHL 26 at §§46-49. There is no
FSIA exception for violations of domestic law or international
norms, and to create one would be inconsistent with the purpose
and international understanding of the doctrine. Belhas v.
Ya’Alon, 515 F.3d 1279, 1286 (D.C. Cir. 2008).
4
STATEMENT OF THE CASE
In the early 1980s the Supreme Revolutionary Council came
to power in Tamland. Valentin, 888 F.9th at 16. The regime was
a cold war ally of the United States and received international
support and military aid from the United States. Id.
Suppression of ethnic minorities in Tamland led to an armed
resistance by the respondents ethnic group, which was met with
harsh tactics by the Tamland government. Id. During this time
Mr. Valentin was serving the government as Defense Minister.
Id. In that capacity he carried out the government’s policy of
combating the armed resistance with U.S. military aid. Id.
While the government’s policy was being carried out respondents
claim they were abducted, held, and tortured without trial. Id.
Respondents brought suit as a result of their detention and
treatment. Id.
Mr. Valentin, the petitioner, argues that he is entitled to
immunity under the Foreign Sovereign Immunities Act (FSIA) and
the complaint should be dismissed. Id. at 15. The District
Court accordingly dismissed the claim under the FSIA because Mr.
Valentin was immune. Id. However, the Circuit Court reversed
on the mistaken belief that the FSIA does not apply to former
foreign officials. Id. at 17. Mr. Valentin now appeals,
requesting this court to reverse the Circuit Court and find that
Mr. Valentin is entitled to immunity for his actions.
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ARGUMENT
I. Foreign Sovereign immunity is a crucial, broad, and long-lived doctrine in international law.
A. The policy motivations for foreign sovereign immunity
have traditionally given it broad application.
Foreign sovereign immunity is the long-standing doctrine
that the courts of one nation should not be used to judge the
official actions of other nations. Underhill, 168 U.S. at 252.
The United States has adhered closely to this doctrine, most
recently through the adoption of the Foreign Sovereign
Immunities Act. 28 U.S.C. §§1330, 1602-1611; 1 U.S. Op. Att’y
Gen. 82 (1797). The United States and other nations adhere to
the doctrine of sovereign immunity for several reasons. The
first is comity and mutual respect among nations. Underhill,
168 U.S. at 252. Foreign sovereign immunity is one method by
which nations respect the sovereignty of other nations by
refraining from passing judgment on their official actions in
court. Id. The second justification is the facilitation of
diplomacy by ensuring that the judicial process is not used as a
political weapon for embarrassing other nations. Heaney v.
Government of Spain, 445 F.2d 501, 503 (2nd Cir. 1971). Under
both justifications reciprocity is a crucial because the
doctrine is premised on nations according each other equal
respect for their sovereignty. Republic of Austria v. Altmann,
541 U.S. 677, 688 (2004).
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To provide more consistent, apolitical application of the
doctrine, Congress passed the Foreign Sovereign Immunities Act
in 1976 (FSIA) to codify the common law of foreign sovereign
immunity. 28 U.S.C. §1604. As the codification of the common
law the FSIA embodied the principles of foreign sovereign
immunity and became the sole basis for obtaining jurisdiction
over a foreign sovereign. Argentine Republic v. Amarenda Hess
Shipping Corp., 488 U.S. 428, 434 (1989). The FSIA provided for
broad immunity with very specific exceptions that further the
principles behind foreign sovereign immunity. 28 U.S.C. §§1330,
1602-11; Chuidian v. Phillipine National Bank, 912 F.2d 1095,
1100 (9th Cir. 1990).
B. The FSIA is the sole basis for jurisdiction over a foreign sovereign.
Given the broad application and policy basis of foreign
sovereign immunity it comes as no surprise that the Supreme
Court stated in Verlinden that the FSIA must be applied in
“every action against a foreign sovereign.” Verlinden B.V. v.
Central Bank of Nigeria, 461 U.S. 480, 483 (1983). This
tradition of broad application led the court to state
unequivocally in Hess Shipping that the FSIA was the “sole
basis” for obtaining jurisdiction over a foreign sovereign in
U.S. courts. 488 U.S. at 434.
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Specifically, in Hess Shipping the court held that the FSIA
acted as a jurisdictional hurdle to claims brought under the
Alien Tort Claims Act (ATCA) in light of the fact that the FSIA
was enacted as a comprehensive scheme to govern immunity. 488
U.S. at 489. As an addition to the ATCA, the same reasoning
applies to the Torture Victim Protection Act (TVPA). Belhas,
515 F.3d at 1289. Since both the House and Senate explicitly
stated that the TVPA was not intended to override the FSIA, the
D.C. Circuit held that the FSIA applies to TVPA actions under
Hess Shipping. Id.; 28 U.S.C. §1350(2); 488 U.S. at 489. In
short, the route to any potential recovery for respondents goes
through the FSIA.
II. The FSIA applies to former officials such as Mr. Valentin
A. The language, history, and policy scheme of the FSIA show that the act covers natural persons.
Given that the FSIA applies to the claims by the plaintiffs
under the ATCA and TVPA, the respondents must either (1) fit
into a FSIA exception, or (2) show that the FSIA does not apply
to Mr. Valentin. The respondents do not claim any exception
applies to them. Therefore, the applicability of the FSIA to
Mr. Valentin turns on whether the statute covers natural persons
and former officials. Valentin, 888 F.9th 888. In both cases
the FSIA is applicable.
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To determine whether the FSIA applies to natural persons
one can begin with the text of the statue. The text of the
§1603 is ambiguous, neither excluding the possibility of
including natural persons or explicitly including natural
persons in its reach. Chuidian, 912 F.2d at 1101. Definitions
of agency or instrumentality such as “legal person” and “organ
of a foreign state” are not explicit descriptions of natural
persons, but do not prohibit such a definition either. Id.
However, the majority of Circuit Courts examining the issue have
resolved the ambiguity in favor of including natural persons.
September 11, 538 F.3d at 81.
The ambiguity in the text should be resolved in favor of
covering natural persons under the statute for several reasons.
First, a state can only act through the human officials who
implement the policies of the state. Chuidian, 912 F.2d at
1102. Not providing natural persons with immunity would
frustrate the purpose of the FSIA by allowing plaintiffs to
circumvent FSIA immunity simply by suing an official instead of
a state agency. Id.
Second, and relatedly, according natural persons immunity
is most consistent with the history and purpose of foreign
sovereign immunity. See, Supra Part I.A. The FSIA was intended
to codify the common law of sovereign immunity, which executive
and judicial precedent shows was historically extended to
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natural persons. Underhill, 168 U.S. at 252-253; Verlinden, 461
U.S. at 488; 1 U.S. Op. Att’y Gen. 82 (1797). Aside from
decisions of American courts at the Circuit level, U.N.
conventions and decisions of European courts remain in general
agreement that foreign sovereign immunity protects natural
persons acting in an official capacity. Valentin, 888 F.9th at
18 n. 5; Jones, [2006] UKHL 26 at §10.
Not covering natural persons under FSIA would jeopardize
important policy justifications for foreign sovereign immunity.
The ability to circumvent immunity by suing officials would
undermine the policy of not allowing our courts to be used to
judge, embarrass, and undermine other nations. See Heaney, 445
F.2d at 503 (immunity intended to avoid conflict and
embarrassment). Additionally, since the U.N. and other nations
immunize natural persons, not providing them immunity in the
U.S. could seriously breach reciprocity, as other nations would
immunize American officials, but the U.S. would not accord their
officials equal immunity. Id.; Valentin, 888 F.9th at 18 n. 5;
Jones, [2006] UKHL at §10.
Finally, as a textual matter the 28 U.S.C. §1605A(a)(1)
FSIA exception for state sponsors of terror explicitly includes
officials and employees. This provision would be relegated to
surplusage if officials had no FSIA immunity for §1605A to
except them from. Id. At minimum this shows Congress assumed
10
that the FSIA applied to natural persons acting in an official
capacity. The language, history, and purpose of foreign
sovereign immunity all point towards including natural persons.
B. The FSIA protects former officials from suit for actions taken in an official capacity.
The issue of immunity for former officials raises many of
the same issues as with natural persons. The common law of
immunity has long granted immunity to former officials, and as a
codification of the common law the FSIA should carry on the
rule. Belhas, 515 F.3d at 1285. Not according former officials
immunity would be a drastic change from the common law rule and
would allow plaintiffs to circumvent immunity by simply waiting
for foreign officials to leave office to sue them. Id. Such
lawsuits would raise the same mutual comity and sovereignty
issues as with natural persons because lawsuits against them
could potentially turn courts into arbiters of essentially
foreign political issues. See Heaney, 445 F.2d at 503.
Dole Food Co. v. Patrickson held that corporations must be
majority owned by a government at the time of suit to enjoy
immunity. 538 U.S. 468 (2003). Petitioners accept Dole but
disagree with the Circuit Court’s extension of Dole to former
officials. Id.; Valentin, 888 F.9th at 17. Natural persons and
corporate entities are fundamentally different in that a
government does not suffer if a company it used to own is sued.
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See Belhas, 515 F.3d at 1286. However, a government does suffer
when officials in its service or considering service fear a
lawsuit when leaving office. See Id. This difference make Dole
inapplicable to former officials. See Id.; Dole, 538 U.S. 468.
When Dole is properly limited to the corporate context, the
history of purpose of foreign sovereign immunity shows the FSIA
should apply to former officials. Dole, 538 U.S. 468; Belhas,
515 F.3d at 1286.
C. Even if the FSIA did not protect former officials they likely retain their common law immunity.
The history of common law immunity for natural persons and
former officials is both evidence that FSIA provides them
immunity as well as evidence that any protection FSIA does not
provide is supplied by the common law. Matar v. Dichter, 563
F.3d 9, 13-14 (2nd Cir. 2009). Given that the purpose of the
FSIA was to codify the common law, it is unlikely that in
passing the FSIA Congress intended to radically reverse
longstanding common law rules of immunity that applied to former
officials. Id.; Verlinden, 461 U.S. 488. This is particularly
true given the traditional presumption favoring retention of
traditional common law rules and the importance of the immunity
of former officials to the purpose of the doctrine. Matar, 563
F.3d at 13-14. Therefore, the aspects of the common law
12
granting immunity for former officials remain intact even if the
FSIA does not reach to such former officials.
III. Valentin’s actions were within the scope of his authority and thus he may assert immunity as a former official.
A. Applying the functional approach to determining official
capacity, Mr. Valentin’s actions were within his official capacity even if against Tamland law.
Even in jurisdictions where the FSIA is applied to natural
persons, there is consensus that immunity only protects acts
taken in the person’s official capacity. See Chuidian, 912 F.2d
at 1101-1102. This approach is consistent with the restrictive
theory, in which the private or commercial acts of sovereigns
are not protected. Verlinden, 461 U.S. at 487. However, it
must still be determined how to discern acts in an official
capacity. Examining the purpose and language of the statute,
the “functional approach” to official capacity is the most
appropriate standard. Jones, [2006] UKHL 26 at §74. The
“functional approach” standard looks at whether an official
acted under the actual or apparent authority or color of law and
thus takes a flexible and functional view of what is an official
action, as opposed to a more rigid formalistic view. Id.
Since the FSIA is intended, in part, to respect and not
interfere with the policy decisions of other nations, the
functional approach is most appropriate. See Underhill, 168
U.S. at 252 (non-interference & respect important purposes of
13
immunity). The functional approach is most appropriate because
it accounts for how governments actually work and is consistent
with the rule of law, as even in the U.S. there are few
absolutes in constitutional or statutory law. Id. (same).
Strict adherence to statutory or constitutional authority would
require courts to wade into issues of foreign constitutional and
statutory interpretation which the FSIA seeks to avoid.
Underhill, 168 U.S. at 252; Chuidian, 912 F.2d at 1106 (if
action exceeding authority not immune, courts must ascertain
authority).
Furthermore, much of the international community has
adopted the functional approach. Jones, [2006] UKHL 26 at §75-
76. Not adopting the functional approach thus undermines the
larger purpose of immunity and risks the comity and reciprocity
we enjoy with the other nations that currently afford Americans
immunity under the functional approach. See Underhill, 168 U.S.
at 252; Jones, [2006] UKHL 26 at §76-77.
The respondents’ allegations, taken as true, show that Mr.
Valentin may have violated the Tamland constitution. Tamland
Const. art 24; Valentin, 888 F.9th at 16. However, Mr.
Valentin’s role in what happened was as an official, acting as
defense minister to quell the armed resistance. Id. Not only
was he acting under color of law by carrying out the policy of
the government, his government was explicitly recognized as a
14
partner by the United States, and the conflict implicitly
supported by the United States through the supply of weapons.
Id. One might condemn Tamland’s tactics and reasonable minds
can differ on the propriety of the United States’ support, but
Mr. Valentin satisfied the functional authority standard when he
implemented his government’s policy which was legitimized and
supported by other members of the international community. Id.
The official nature of Mr. Valentin’s acts therefore bring him
under the FSIA irrespective of the literal language in the
Tamland constitution. Id.; Tamland Const. art 24.
Besides being consistent with the purposes of the FSIA and
practices of other nations, the functional approach is also
consistent with the text of the FSIA and other statutes. 28
U.S.C. §§1350, 1604-1605, 1605A. The TVPA, for example, adopts
the functional approach by its own terms, defining authority as
“actual or apparent authority, or color of law.” 28 U.S.C.
§1350(2)(a) Relying on the text of the FSIA, the D.C. Circuit
in Belhas, another case where a government official was charged
with violating domestic and international laws, held that there
was no exception from immunity for exceeding authority since it
was not among the specific exceptions listed in the FSIA. 515
F.3d at 1289. The textual evidence thus complements the
international authority and policy argument that a broad
functional approach to authority is most appropriate.
15
B. There is no exception from immunity for jus cogens violations.
Over time the international community has coalesced around
norms regarding international law. These norms are known as jus
cogens, and torture is almost universally regarded as a
violation of jus cogens. Belhas, 515 F.3d at 1286. This has
led some to argue that there is no immunity for a violation of
jus cogen norms because one can never be authorized to undertake
such an act. Id. However, both American and international
authority undermine any such potential exception.
The primary mistake respondents make in this area is to
confuse jurisdiction with merits. As the Jones case made clear
in its review of international law, jus cogens confer
substantive rights on individuals such as the respondents, but
do not automatically confer on all courts jurisdiction to hear
claims for violation of jus cogens. Jones, [2006] UKHL 26 at
§§46-49. Petitioners do not dispute that the plaintiffs have a
right to be free of torture, and may have a claim on the merits,
but they must still overcome the jurisdictional hurdle of the
FSIA. Id.; 28 U.S.C. §1604.
Allowing violations of jus cogens to serve as an exception
to FSIA immunity would be inconsistent with American law and the
law of our international partners. Id. Regarding American law,
the argument against a jus cogens exception to immunity is
16
twofold. First, if torture is inherently an unofficial act the
application of the TVPA would be severely limited. 28 U.S.C.
§1350(2). The TVPA applies to “individuals who, under actual or
apparent authority, or color of law...” engage in torture. 28
U.S.C. §1350(2)(a). If torture cannot be official, at best
parts of the TVPA are mere surplusage as one could never torture
with actual authority, and at worst the very purpose of the TVPA
is frustrated. Id. Second, the FSIA lists several explicit
exceptions to immunity and jus cogens violations are not
included among them. 28 U.S.C. §1605, 1605A. Given the history
of according broad immunity for non-commercial acts, exceptions
to the FSIA should not be judicially grafted lightly. See 1
U.S. Op. Att’y Gen. 82 (1797).
Regarding other nations, the Jones case points out that
neither the U.N. conventions on torture or immunity provide for
jurisdiction based on a violation of jus cogens. Jones, [2006]
UKHL 26 at §§46-49. Disregarding immunity in this case
therefore risks a breach of reciprocity that could make
diplomacy more challenging and frustrate the purpose of the
FSIA. Id., See Underhill, 168 U.S. at 252 (purposes of foreign
sovereign immunity). A breach of reciprocity in this area is
particularly risky given the constantly evolving law of human
rights and thus the increased potential of using jus cogens
immunity exceptions as tools of politics in the face of unclear
17
legal standards. September 11, 538 F.3d at 82 (aim of FSIA is
to depoliticize international litigation); Jones, [2006] UKHL 26
at §26.
What happened in Tamland was an ugly tragedy, and the
actions of the government reprehensible, but even still, this
court must take the long view. The FSIA provides a basis for
effective diplomacy and peacemaking through international
respect, comity, and reciprocity. See Underhill, 168 U.S. at
252; September 11, 538 F.3d at 82. Under the FSIA, Mr.
Valentin, an official acting under his authority as defense
minister, is entitled to immunity for his actions. See
Valentin, 888 F.9th at 16. Weakening the FSIA in this case will
frustrate peacemaking and diplomacy that might prevent such
situations in the future.
CONCLUSION
For the foregoing reasons the Petitioner requests that the
Court reverse the decision of the Twelfth Circuit.
Respectfully Submitted,
_______________________
Ira Steinberg
Attorney for Petitioner