Appeal from a judgment of the District Court for the Southern District of New York (Charles S. Haight, Jr., Judge), F. Supp. (S.D.N.Y. 1981), granting summary judgment and permanent injunctive relief to plaintiff Attorney General in plaintiff's suit to compel defendant to comply with the provisions of the Foreign Agents Registration Act of 1938, 22 U.S.C. §§ 611-621 (1976). Judgment affirmed.
Before Moore and Newman, Circuit Judges, and Tenney,*fn* District Judge.
In this appeal, the Irish Northern Aid Committee ("INAC") challenges the District Court's determination that INAC is an "agent of a foreign principal" under § 1(c)(1) of the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. § 611(c)(1) (1976),*fn1 and that INAC's foreign principal is the Irish Republican Army ("IRA").*fn2 The District Court for the Southern District of New York (Charles S. Haight, Jr., Judge) made this determination and granted summary judgment for plaintiff Attorney General of the United States in plaintiff's suit to enjoin INAC from violating various provisions of the Act and its accompanying regulations, 28 C.F.R. §§ 5.1-.801 (1980). Attorney General v. Irish Northern Aid Committee, -- - F. Supp. -- (S.D.N.Y.1981). We affirm, on Judge Haight's comprehensive opinion, the District Court's conclusion that INAC is the "agent" of the IRA within the meaning of the Act.
We add these few additional words to what Judge Haight has written because, while we agree with his construction of the Act, we wish to express a note of caution concerning the statute's coverage of those who act at the "request" of a foreign principal. As the District Court held, "(It) is sufficient to establish agency under the Act that defendant is a "representative' of the IRA, or acts as its "request.' " -- - F. Supp. at -- . We agree that the agency relationship sufficient to require registration need not, as INAC urges, meet the standard of the Restatement (Second) of Agency with its focus on "control" of the agent by the principal.*fn3 Control is an appropriate criterion for a determination of common law agency because the agent contemplated by the Restatement has the power to bind his principal. In determining agency for purposes of the Foreign Agents Registration Act, however, our concern is not whether the agent can impose liability upon his principal but whether the relationship warrants registration by the agent to carry out the informative purposes of the Act.
Nevertheless, while we acknowledge that the Act requires registration by a person who acts, in specified ways,*fn4 at a foreign principal's "request," we caution that this word is not to be understood in its most precatory sense. Such an interpretation would sweep within the statute's scope many forms of conduct that Congress did not intend to regulate.*fn5 The exact perimeters of a "request" under the Act are difficult to locate, falling somewhere between a command and a plea. Despite this uncertainty, the surrounding circumstances will normally provide sufficient indication as to whether a "request" by a "foreign principal" requires the recipient to register as an "agent." For example, it is important to ascertain whether those requested to act were identified with specificity by the principal. When members of a large religious, racial, or ethnic group respond to pleas for contributions or generalized political support, they do not thereby become "agents" under the Act. To so hold would make all Americans who sent money, food, and clothing to the Italian earthquake victims "agents" of the Italian Government. But when a particular individual, or a sufficiently limited group of identifiable individuals, is asked to act, the surrounding circumstances may show that those "requested" are in some way authorized to act for or to represent the foreign principal.*fn6 Also relevant is the specificity of the action requested. A general plea for political or financial support is less likely to constitute a "request" under the Act than is a more specific instruction. Once a foreign principal establishes a particular course of conduct to be followed, those who respond to its "request" for complying action may properly be found to be agents under the Act.
In this case there was sufficient undisputed evidence from which the District Court properly concluded that INAC is the agent of the IRA. The evidence, much of it drawn from correspondence in INAC's files, is meticulously set forth and assessed in Judge Haight's opinion. INAC did not present any evidence to put its "agent" status in issue. The conclusory affidavit submitted by INAC's counsel in opposition to summary judgment was insufficient to refute plaintiff's proof of INAC's agency status, especially in light of INAC's assertion that the only persons with personal knowledge sufficient to respond to any of the claims in this case are INAC's three U. S. Representatives, all of whom have their Fifth Amendment privilege against self-incrimination.
The judgment of the District Court ...