Doe v. The Federal Republic of Germany

Background

John Doe, proceeding without a lawyer and using a pseudonym, alleges that Germany and the Bundeskriminalamt of Germany failed to pay amounts due under a contract concerning Doe’s alleged provision of access to the Panama Papers for use in identifying tax fraud and other financial offenses. Doe has argued that revealing his identity could place him and other people in danger. He asked to serve the defendants through alternative methods and to proceed under a pseudonym.

In earlier orders, the court ruled that both defendants were a foreign state or political subdivision for purposes of the Foreign Sovereign Immunities Act. As a result, service had to follow 28 U.S.C. § 1608(a), and the court concluded that it lacked authority to authorize alternative service. The court also ruled that Doe had not shown a special arrangement for service and that he had to disclose his identity to the court, even if the court later allowed him to proceed publicly under a pseudonym. The court had previously allowed him to pursue service without first stating whether he would comply with the identity-disclosure requirement.

Doe’s December 12, 2023 letter asked the court to reconsider those rulings. He argued that he and the Bundeskriminalamt had agreed that a particular attorney would handle legal issues, making delivery of the summons and complaint to that attorney valid service under § 1608(a)(1). He also argued that the Bundeskriminalamt was an agency or instrumentality of Germany that could be served under § 1608(b), rather than under § 1608(a). Finally, he asked to be excused from providing his identity to the court.

Legal standards

The court treated Doe’s filing as a letter motion for reconsideration. Under Local Civil Rule 6.3, such a motion generally must be served within 14 days after the challenged order and must identify matters or controlling decisions that the court overlooked. Reconsideration is an exceptional remedy and is not available merely to relitigate an issue already decided.

Analysis

The court first held that Doe’s motion was untimely. He filed it 50 days after the October 13, 2023 order, well beyond the 14-day period. The court stated that the untimeliness alone was sufficient reason to deny the motion. It nevertheless addressed Doe’s arguments on their merits.

On service under § 1608(a)(1), the court held that Doe had not shown a “special arrangement,” meaning an agreement about how legal papers would be served. According to Doe, at the beginning of negotiations in Germany in February 2017, two Bundeskriminalamt agents introduced him to an attorney and said that potential legal issues should be handled through that attorney. The court held that this alleged conversation did not establish an agreement that the attorney could receive service of process in a future lawsuit. The court emphasized that the alleged conversation occurred before the parties reached their later agreement and that Doe did not identify a contract provision specifying a method of service. The court also stated that there was no indication that the two agents had authority to bind the Bundeskriminalamt. Delivery of the summons and complaint to the attorney, or the defendants’ actual receipt of those documents, therefore did not satisfy the statute.

The court also adhered to its conclusion that the Bundeskriminalamt must be served under § 1608(a). Under the Second Circuit’s “core functions” test, an entity is treated as an agency or instrumentality of a foreign state when its core functions are predominantly commercial; an entity whose core functions are predominantly governmental is treated as part of the foreign state or a political subdivision. The court characterized the Bundeskriminalamt as a national law-enforcement agency whose core functions are predominantly governmental. Its ability to enter contracts or purchase leaked tax data did not change that classification because, according to the court, those activities were connected to its law-enforcement duties rather than showing that it operated as a commercial entity. The court also held that the Bundeskriminalamt’s location, its relationship to Germany’s Ministry of the Interior and Community, and its description as an “organ” did not alter the result.

On identity disclosure, the court held that Doe must provide his identity to the court if he wished to seek relief in federal court. Relying on Second Circuit precedent, the court stated that court filings must disclose the identity of the filer. It recognized Doe’s safety concerns and noted that a court could potentially protect his confidentiality through sealed filings, including a hard-copy filing outside the electronic filing system. But it rejected Doe’s request for an exemption from providing his identity, explaining that the identity-disclosure requirement was not a case-specific balancing test.

Disposition

The court denied Doe’s motion in its entirety and directed the clerk to terminate the pending motion. Judge Gary Stein directed Doe to submit a letter by February 8, 2024, stating whether he was willing to provide his name and residential address under seal. The opinion states that, if Doe did not submit the letter, Judge Stein would recommend to Judge Vernon Broderick that the case be dismissed. The opinion itself did not dismiss the case.