Representation

On May 22, 1975, Edward H. Levi, Attorney General of the United States, issued revised regulations concerning representation of persons in proceedings before the Immigration and Naturalization Service (INS) and the Board of Immigration Appeals. Part 1, "Definitions," and Part 292, "Representation and Appearance," of Title 8 of the Code of Federal Regulations were amended in the following major respects;

(1) Law students and law graduates not yet admitted to the bar may serve as representatives, under certain specified conditions, with the permission of the presiding official (8 CFR 292.1(a)(2));

(2) Specific criteria are provided for authorizing "reputable individuals" to serve as representatives (8 CFR 292.1(a)(3));

(3) A provision requiring a licensed foreign attorney to obtain permission from the presiding official to serve as a representative is deleted, so that foreign attorneys will be on an equal footing with attorneys in this country (8 CFR 292.1(a)(6)); and

(4) Standards are established for according recognition to organizations and for accrediting representatives (8 CFR 292.2). Revised § 292.1(a) provides that a person entitled to representation may be represented by:

(2) Law students and law graduates not yet admitted to the bar. A law student who is enrolled in the final year of an accredited law school or a law school graduate who is not yet admitted to the bar, provided that:

(i) He is appearing on an individual case basis, at the request of the person entitled to representation;

(ii) In the case of a law student, he has filed a statement that he is participating, under the direct supervision of a faculty member or an attorney, in a legal aid program or clinic conducted by the law school, and that he is appearing without direct or indirect remuneration; and

(iii) His appearance is permitted by the official before whom he wishes to appear (namely a special inquiry officer, district director, officer-in-charge, regional commissioner, the Commissioner, or the Board), which official, if in his opinion special circumstances warrant it, may require that a law student be accompanied by the supervising faculty member or attorney.

Fed. Reg., Vol. 40, No. 104, May 29, 1975, pp. 23271-23272.

Employment

Student Aliens

On January 30, 1975, the Immigration and Naturalization Service of the Department of Justice announced the discontinuance of the Service policy under which school officials in the past had been authorized to permit nonimmigrant students to engage in summer employment. The INS had announced in the Federal Register of November 15, 1974 (39 Fed. Reg. 40311), its intention to terminate its policy of annually making a determination whether to author

ize school officials to permit nonimmigrant students, as defined in Section 101(a)(15)(F) of the Immigration and Nationality Act (66 Stat. 166; 8 U.S.C. 1101(a)(15)(F)) to engage in employment during the summer vacation period. Interested persons were afforded until December 14, 1974, to submit representation.

The matter was reconsidered by the Service in light of the representations received; however, it was decided to proceed with the proposed change. While the great majority of the representations were in opposition to the proposal, none responded directly to nor presented overriding arguments against the basic premise set forth in the notice of November 15, 1974, namely, that the authority of the Attorney General under Section 214(a) of the Immigration and Nationality Act (66 Stat. 189; 8 U.S.C. 1184(a)) to regulate the conditions of admission of nonimmigrants, should not properly be redelegated outside.

The INS emphasized in its announcement of January 30, 1975, that current regulations, 8 CFR 214.2(f), which prescribe the conditions for admission and employment of nonimmigrant students, provide that a nonimmigrant student may apply to the Service for and may be granted permission to engage in part-time off-campus employment necessitated by unforeseen circumstances arising subsequent to entry into the United States, and may apply for and may be granted permission to engage in employment for practical training in a field related to the student's course of study. The policy change did not affect in any way the existing rights of a nonimmigrant student to apply for or be granted permission to engage in employment in accordance with the current regulations.

Fed. Reg., Vol. 40, No. 25, Feb. 5, 1975, p. 5380. Concerning the INS announcement of Nov. 15, 1974, see the 1974 Digest, Ch. 3., § 3., pp. 97-98.

Surety Bonds

Effective October 17, 1975, Title 8 of the Code of Federal Regulations, Section 103.6(d)(2), relative to the posting of surety bonds for the importation of alien laborers, was amended. The amendment increased from $500 to $1,000 the minimum amount of bond posted by an employer as a condition to the importation of alien laborers into the United States from the West Indies, the British Virgin Islands, or Canada. It also raised from $75 to $200 the amount of liability as liquidated damages for each alien involved when an employer fails to prevent an alien from absconding.

See Fed. Reg., Vol. 40, No. 181, Sept. 17, 1975, p. 42852.

Access to Courts

On March 18, 1975, the United States District Court for the Eastern District of Pennsylvania, in Hagl v. Jacob Stern & Sons, Inc., 396 F. Supp. 779 (1975), denied the defendant corporation's motion for a new trial following a jury verdict for the alien plaintiff in a personal injuries action against his employer. The defendant corporation claimed, inter alia, lack of jurisdiction in the Court, failure of the Court to permit the defendant to show that plaintiff's standing to sue was clouded because he was in the country illegally and thus subject to deportation, and error in permitting the plaintiff to testify that he had been a freedom fighter against the Communists in Hungary.

The Court held that the plaintiff was entitled to bring a diversity action against a citizen of the same State in which the alien was domiciled. The Court noted that "Article III, Section 2 of the Constitution in defining the diversity jurisdiction of Federal courts includes cases and controversies between United States citizens 'and foreign states, citizens or subjects.' This is codified in 28 U.S.C. 1332(a)(2), which allows an alien the right to sue any United States citizen, whether both are domiciled in the same State or not. Thus an alien enjoys a greater right to bring suit in Federal court than that given United States citizens."

In rejecting the defendant's argument that it should have had the opportunity to show that plaintiff's standing to sue was clouded because he was in the United States illegally and thus subject to deportation, the Court stated, " ... every alien, whether in this country legally or not, has a right to sue those who physically injure him. Each person is entitled to the equal protection of the law. . . . The idea of equal protection for all has been codified in 42 U.S.C. 1981." The Court declared that insofar as liability was concerned, Hagl's status as an alien was irrelevant, that no proceedings to deport him had been started at the time of the trial, and apparently none were contemplated.

Finally, the Court ruled that allowing the plaintiff to testify that he left Hungary because he had been a freedom fighter against the Communists during the 1956 uprising was not improper where defendant had first introduced the subject of plaintiff's forfeited Hungarian citizenship in an attempt to create prejudice against him.

The Eighth Circuit Court of Appeals, on August 27, 1975, in a judgment on defendants' interlocutory appeals in Pfizer, Inc. v. Lord, 522 F.2d 612 (1975), reversed the decision of the District Court of Minnesota that would have permitted the plaintiff governments to sue as parens patriae for their citizens. The Court of

Appeals also determined that the issue of whether foreign governments could sue on their own behalf as "persons" within the meaning of Section 4 of the Clayton Act (15 U.S.C. 15) was not properly before the Court and should have been left for consideration on appeal.

Several foreign governments had filed antitrust suits alleging that the defendants, six major U.S. pharmaceutical firms, conspired to fix prices on certain broad-spectrum antibiotics purchased by the plaintiff governments and their citizens. The cases were consolidated in the District of Minnesota for pretrial proceedings and for trial with numerous other suits known collectively as the Antibiotic Antitrust Cases. The history of the litigation was summarized in Pfizer, Inc. v. Lord, 456 F.2d 532 (8th Cir.), cert. denied, 406 F.2d 976 (1972).

The foreign governments asserted three theories of recovery. First, they asked treble damages based on their own purchases of defendants' antibiotics. Second, they sued as parens patriae as "official representatives" of their individual and corporate citizens who had purchased defendants' products. Third, they asserted their right to serve as representatives of the class of all their citizens who had treble damage claims against the defendants.

The defendants moved to dismiss the first claim on the ground that a foreign government is not a "person" entitled to bring a treble damage action under Section 4 of the Clayton Act. They asked dismissal of the second or official representative theory on the ground that, absent formal assignment of the claims, the governments could not sue on them outside the class action rules of Fed. R. Civ. P. 23. The defendants thereupon sought reversal of the rulings (1) that foreign governments are "persons" entitled to sue under Section 4 of the Clayton Act, and (2) that foreign governments may sue to collect treble damage claims of their citizens without complying with the requirements of Fed. R. Civ. P. 23 for class actions.

The Eighth Circuit Court held that it could not reach the merits of the question whether foreign governments are "persons" within the meaning of Section 4 of the Clayton Act, since the District Court had not certified it for interlocutory appeal, and a writ of mandamus would therefore not lie absent a clear abuse of discretion or usurpation of judicial power.

On the parens patriae question, the Court observed:

A parens patriae action cannot be brought to collect the damage claim of one legally entitled to sue in his own right. The mere fact that the claimant or creditor is a foreign national does not afford him or his government access to judicial procedures barred to domestic creditors. Finally, we are unable to dismiss so

easily as did the District Court the due process implications of the procedure plaintiffs ask us to approve. In our view, plaintiffs may represent their citizens' damage claims only if they can do so within a Rule 23 class action. (at p. 616.)

The Court of Appeals went on to distinguish the present case from those where parens patriae prerogatives had been expanded to include the right of a State to sue for the general welfare of its citizens at large to prevent or repair harm to its quasi-sovereign interests, that is, interests apart from those of particular individuals who might be affected. The Court pointed out that in several recent instances domestic State governments had attempted to prosecute actions on behalf of persons entitled to sue in their own behalf but as a practical matter generally unable to do so, and that so far none of the States had been permitted to recover on that theory, the Supreme Court expressing a strong preference for class actions instead. Philadelphia Housing Authority v. American Radiator and Standard Sanitary Corp., 309 F. Supp. 1057 (1969); California v. Frito-Lay, Inc., 474 F.2d 774 (1973). Said the Court:

We are not persuaded that these decisions are inapplicable merely because the plaintiffs are foreign governments suing on behalf of their nationals. Principles of comity, international law and existing United States treaties do not afford foreign sovereigns the right to press their citizens' claims in a manner barred to domestic States vis-a-vis their citizens. Reliance on authorities which sanction a sovereign's right to represent its citizens when their claim is against another sovereign who has not consented to suit in its own courts is misplaced. Foreign creditors are to be afforded legal access to our courts on the same basis as United States residents; practical difficulties notwithstanding, their status as foreigners does not entitle them to a more favorable remedy and procedures. . . . (at p. 618.)

Further, the Court expressed the view that the District Court may have erred in holding that the due process clause of the Fifth Amendment would not entitle the foreign nationals to an opportunity to participate in or exclude themselves from the litigation. Without deciding that question, it noted that it is settled that when foreign governments invoke the benefits of United States courts to deal with property in this country, their actions and desires with respect to that property will be upheld "only if consonant with the policy and law of the United States." The Supreme Court's emphasis in Hawaii v. Standard Oil Co., 405 U.S. 251 (1972) on the preference for class actions and its delineation in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) of the exacting requirements of notice under Rule 23 convinced the Court that it