U.S. Court of Appeals for the Second Circuit.
U.S. Court of Appeals for the Second Circuit (Credit: ALM)

A group of workers contracted by the Chinese government to work in the United States were unable to have a grand jury subpoena quashed by the U.S. Court of Appeals for the Second Circuit Sept. 8.

The panel of Circuit Judges John Walker Jr. and Debra Ann Livingston and U.S. District Judge Vincent Briccetti of the Southern District of New York, sitting by designation, held that the seven employees of a Chinese construction firm hired to do work on Chinese government properties in the United States did not qualify for immunity status in In re Grand Jury Subpoenas Returnable December 16, 2015,16‐266‐cv. The panel affirmed a lower court ruling of former U.S. District Judge John Gleeson of the Eastern District of New York.

The workers appealed Gleeson’s 2016 ruling, arguing that, despite not registering with the U.S. State Department, the workers were protected under diplomatic treaties, as well as by simply registering with the State Department under work visas.

The United States and China have a bilateral agreement to allow contracted construction workers from the home country to enter the other nation to do work on diplomatic and consular facilities. While they had entered on appropriate visas, the workers did not formally register with the State Department.

The appellants, represented by Fleming.Ruvoldt name attorney Harold Ruvoldt, argued that the workers weren’t required to do so to receive immunity, as the bilateral agreement did not impose a requirement as a precondition for immunity, and that the act of applying for the visas alone would have satisfied any such requirement, the panel noted in its discussion of the case.

The panel placed the bilateral agreement in the context of an overriding international diplomatic agreement, the Vienna Convention on Diplomatic Relations, as well as a diplomatic note circulated by the State Department in 2003. The note reinforced the State Department’s long-standing policy that diplomatic officials need to register with the State Department.

The panel said Gleeson was right to hold that the State Department’s policy wasn’t followed by the workers, therefore denying them immunity, as the note from 2003 “strongly suggest that foreign personnel receive immunity only after they have been officially attached to a mission and the receiving state has been duly informed,” the panel found.

Likewise, the appellants’ argument that construction workers were exempt from the registration requirement thanks to the bilateral agreement didn’t hold up, as the purpose of the bilateral agreement was to bring those construction workers under the broader diplomatic agreement, the panel found.

Finally, the panel found that the State Department’s argument that the workers didn’t register by simply gaining visas was reasonable.

“Because these visas can be issued to individuals who are not entitled to diplomatic immunity, they do not necessarily fulfill the purpose that underlies registration—to inform the State Department as to the identities of foreign personnel who should be entitled to diplomatic immunity in the United States,” the panel said.

During oral arguments, Ruvoldt noted that the Chinese government has argued the workers should be granted the immunity.

In a phone call Sept. 8, Ruvoldt said he respectfully disagreed with the panel’s interpretation.

“We think the court is in error; that the bilateral agreement is clear on its face, and the bilateral agreement should be enforced as it’s written,” he said. He added that he will discuss with his clients whether to pursue a writ of certiorari.

The case was placed under seal to protect the grand jury process, according to the panel, which did not discuss the reasons for the subpoenas or the identities of the workers. A spokesman for the U.S. Attorney’s Office for the Eastern District of New York declined to comment. Assistant U.S. Attorney Alexander Solomon represented the government on appeal.