Kreston Thomas BUS 116 Kashin v. Kent, 04-56703 Kashin v.

Kent consisted of a case against the US Consul General, Douglas Kent, who was stationed in Russia at the time of an accident that seriously injured the Platiff Kashin. The Plaintiff was paralyed from the neck down after Kent was driving home from the gym after work. Kent first filed under the Federal Tort Claims Act which would eliminate him as a defendant and allow the United States to be subsititued in the case . The US would fall under foreign soverign immunity, replace Kent as defendant, only upon completed certificate granted by the US. The Westfall Act amended this, stating if the Attorney General certifies that a federal employees is acting within the scope of employment, then indeed, he would be subsitituted as defendant. The US district Judge, Larry Burns, noted a tort committed abroad may be considered under the Military Claims Act, which would be judged based on common US law and not suggest Kent was acting within the scope of employment. Kent appealed with the idea of California law, but later was referred to the Washington D.C. law where his job was based. The DC law considered Kent to be on his job 24 hours a day, 7 days a week. From the State Department's Foreign Affairs Manual, transporting a consul general is a business function and with 24hr access to the consul, the US had significant control over him. Kent argued that the Department of Justice denied him certification because of the political backlash and media at the time. Russian media reported Kent was heavily intoxicated and left the accident to join a nearby nightclub in a notion of nonchalant behavior. However, Kent was never checked for blood-alcohol content because it was against US policy to inject a needle from a foreign official into the consul general. In appeal, the Ninth Circuit held that Kent was acting within the scope of his employment, which entitled him to immunity, upon reversal of the first ruling. They ruled Kent was within care of the US, every hour of the day, and was working on the state's interest at the time of the accident. Kent believed he was acting under the Department's order and engaged in work-related activities. The Judge ruled in his favored by granting the original petition of certification. CASE NO. 02CV2495-LAB (WMC) Motion for Attorney Fees and Court Cost In December of 2006, Kent filed another suit to claim the attorney fees and court cost associated with the case. He first was redirected because of the proper procedures necessary to file this claim. In CASE NO. 02CV2495-LAB (WMC), the court notes Kent waited to the 117th day of 120 days to file his claim. This last minute approach did not sit well with the Judge, pointing out the possible problems that could arise during this time. The Judge states, "Kent's own error causes a filing to be untimely, federal courts are under no obligation to come to the rescueof last-minute filer." Kent was denied with his application which was filed nunc pro tuncto. The case also states that even if Kent

was on time with his filing, there is a tort exception that would not allow him to collect the litigation fees. Cases sounding in tort are not automatically awarded attorney fees to the prevailing party. Kent continued to argue that his immunity was non-tort related and gave legislative history to declare his entitlement. The courts ruled that the statute was in plain language, did not need interpretation unless it was meant in another manner for which it was intended, and his case was actually "sounding in tort language" to dismiss his request. Kent was denied his motion for the request of attorney fees and court cost on April 26, 2007 by Honorable Larry Alan Burns, US District Judge. Sources: http://www.metnews.com/articles/2006/kent081106.htm Digest of United States Practice in International Law 2006 Oxford University Press US, 2008 Sally J. Cummins http://www.willamette.edu/wucl/journals/wlo/9thcir/06cases/20060815.htm http://www.websupp.org/data/SDCA/3:02-cv-02495-105-SDCA.pdf