Block on Trump's Asylum Ban Upheld by Supreme Court
It's amazing how Judge Posner can take a simple issue, and use it as an excuse to go on, and on. In this case, the issue before the Seventh Circuit was "whether the defendant was served with process" -- but Judge Posner characterized it as one that "could be the basis for a novel of international intrigue."
No matter what you say, this is no case for 007, we just see it as a case of stereotyping, and over-simplification.
Parkash Singh Badal is the Chief Minister of Punjab, a state in northwestern India. As a Sikh, he has "Singh" in his name, does not cut his hair or shave, and wears a turban. At the age of 85, he has a white beard, and has held his position, on and off, from 1970 to 2007.
A group of Sikh-Americans and members of a U.S.-based human rights group, Sikhs for Justice ("SFJ"), accuse Badal of torture and killings in violation of the Torture Victim Protection Act of 1991, with subject matter jurisdiction based on the Alien Tort Statute. Judge Posner noted that under the Supreme Court's holding in Kiobel v. Royal Dutch Petroleum Co., it was doubtful whether the district court had subject matter jurisdiction to adjudicate the alleged torts of foreign officials, which occurred on foreign soil. But it did not even get there, as the first obstacle, personal jurisdiction, had not been met.
How so? In a case of mistaken identity, the wrong person was served. The process server was given a description of Singh Badal, but served another elderly Sikh man wearing a turban, with a long, white beard, at a Sikh community event. The process server made a mad dash before the other man could confirm/deny identity, and so it began. After evidentiary hearings, the district judge found that there was sufficient credible evidence showing that Singh Badal had not been served, and dismissed the case.
Judge Posner went over every argument (and every possible argument) the plaintiffs made, but there was nothing to support their need, or rather, there was no reversible error when the district judge denied the plaintiffs an extra 30 days for additional discovery. He stated: "Another 30 days for discovery ... would not have tilted the balance of the evidence in the plaintiffs' favor."
The Take Away?
Make sure your process server knows who to serve. Judge Posner spent quite a bit of time discussing studies that show support for the proposition that "people of one race sometimes have difficulty perceiving facial differences in people of a different race." Rather than instructing process servers to look beyond superficial characteristics, Judge Posner instead seems to reinforce this view. One need only spend more than a second looking at photos of the two men to see different facial features.
As for the SFJ, they've already announced that they will take this to the Supreme Court, though we don't think cert will be granted.