                                              Filed:   July 30, 2002

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                             No. 01-1628
                           (CA-00-1913-A)



Sidney L. Jaffe, et al.,

                                               Plaintiffs - Appellants,

          versus


Accredited Surety and Casualty Co., Inc.,

                                                  Defendant - Appellee.



                               O R D E R



     The court amends its opinion filed June 25, 2002, and reported

at 294 F.3d 584, as follows:

     On page 4, first full paragraph, lines 18-19 -- the clause

“Jaffe again immediately fled to Canada” is corrected to read

“Jaffe immediately fled to Canada.”

                                           For the Court - By Direction



                                           /s/ Patricia S. Connor
                                                    Clerk
            PUBLISHED

   UNITED STATES COURT OF APPEALS

          FOR THE FOURTH CIRCUIT


SIDNEY L. JAFFE; RUTH JAFFE,
     Plaintiffs-Appellants,

     v.

ACCREDITED SURETY AND CASUALTY                          No. 01-1628

COMPANY, INCORPORATED,
    Defendant-Appellee.

CENTER FOR CONSTITUTIONAL RIGHTS,
     Amicus Curiae.


Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Gerald Bruce Lee, District Judge.

       (CA-00-1913-A)

Argued: February 26, 2002

  Decided: June 25, 2002

Before MOTZ, KING, and GREGORY, Circuit Judges.


____________________________________________________________

Affirmed in part and certified in part by published opinion. Judge
Motz wrote the opinion, in which Judge King and Judge Gregory
joined.

____________________________________________________________

                 COUNSEL

ARGUED: Harold M. Jaffe, Oakland, California, for Appellants.
Michael Lee Sturm, WILEY, REIN & FIELDING, L.L.P., Washing-
ton, D.C., for Appellee. ON BRIEF: David Barger, KILPATRICK
STOCKTON, Reston, Virginia, for Appellants. Fred F. Fielding, Les-
lie D. Fetter, WILEY, REIN & FIELDING, L.L.P., Washington,
D.C., for Appellee. Jennifer Green, CENTER FOR CONSTITU-
TIONAL RIGHTS, New York, New York; William J. Aceves, CALI-
FORNIA WESTERN SCHOOL OF LAW, San Diego, California, for
Amicus Curiae.

____________________________________________________________

                  OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

   In this diversity action, Sidney Jaffe and his wife, Ruth Jaffe, Cana-
dian citizens now living in Mexico, seek recognition of two default
judgments — one in favor of Sidney Jaffe and one in favor of Ruth
Jaffe. A Canadian court entered the default judgments against Accred-
ited Surety & Casualty Co., Inc. (Accredited), a Florida corporation
doing business in Virginia. The Canadian default judgments arise
from the Jaffes' contention that, after Sidney Jaffe jumped bail on
Florida criminal charges, bail bondsmen employed by Accredited
"kidnapped" him in Canada and illegally transported him to Florida
for trial.

   The district court refused to recognize the Canadian default judg-
ments and granted summary judgment to Accredited. Because we
must give full faith and credit to a Florida court's previous judgment
refusing to recognize Ruth Jaffe's Canadian default judgment, we
affirm the district court's grant of summary judgment to Accredited
with respect to Ruth Jaffe's default judgment. However, because Vir-
ginia law is unclear as to whether the claim for relief on which Sidney
Jaffe's default judgment is based "is repugnant to the public policy"
of Virginia, or otherwise "need not be recognized" under Virginia's
Foreign Country Money-Judgments Recognition Act, Va. Code Ann.
§ 8.01-465.6 et seq. (Michie 2000), we respectfully certify that ques-
tion to the Supreme Court of Virginia.

             I.

   On August 7, 1980, Sidney Jaffe was arrested in Florida and
charged with 28 counts of violating the Florida Uniform Land Sales

             2
Practices Law, as codified at Fla. Stat. ch. 498.001 et seq. (1979). See
Jaffe v. State, 438 So.2d 72, 74 (Fla. Dist. Ct. App. 1983). These
charges stemmed from Jaffe's involvement in allegedly fraudulent
real estate transactions in which he delivered quit-claim (rather than
warranty) deeds to 28 purchasers of subdivision lots located in Put-
nam County, Florida. At the time Jaffe was charged with violating the
Land Sales Practices Law, a civil lawsuit filed by the purchasers of
the properties had been pending in Florida state court for more than
two years.

   Jaffe was released on $137,500 bond, which Accredited posted on
Jaffe's behalf. Jaffe signed a bond agreement with Accredited provid-
ing that Accredited had the right to "apprehend, arrest and surrender"
Jaffe in the event Jaffe left the Florida jurisdiction "without the writ-
ten consent of the court and [Accredited]" or if Jaffe moved from his
then-current residence without notifying Accredited.

   Once free on bail, Jaffe fled with family members to Toronto, Can-
ada, without notifying or obtaining the permission of the court or
Accredited. Jaffe subsequently failed to appear for trial in Florida,
scheduled for May 18, 1981. At that time, Jaffe's counsel presented
evidence to the Florida court that Jaffe's failure to appear was attrib-
utable to a basketball injury Jaffe had suffered in Canada. The Florida
court added a failure to appear charge to the original charges against
Jaffe and issued a warrant for Jaffe's arrest. The Florida court also
estreated, or took away, Jaffe's bond based on his failure to appear.
Accredited sought to have the estreature set aside, reiterating the rep-
resentation by Jaffe's counsel that Jaffe's failure to appear was due
to a basketball injury. On September 18, 1981, the court agreed to set
aside the estreature on the condition that Accredited produce Jaffe
within ninety days.

   Later that month, two Accredited bondsmen, posing as police offi-
cers, located and apprehended Jaffe at his condominium building in
Toronto, Canada, as he returned from jogging. The bondsmen then
took Jaffe by car across the international border to Niagara Falls, New
York, and returned with him by airplane to Florida. Jaffe stood trial
and, on October 23, 1981, was convicted on all 28 Land Sales Prac-
tices counts and one count of failing to appear. See Jaffe v. State, 438
So.2d at 74.

             3
   A number of legal developments occurred over the course of the
next two years, during which Jaffe served sentences on the above con-
victions. First, in April 1982, in the civil action related to the quit-
claim deeds the Florida state court entered judgment against Jaffe's
corporations in the amount of $3 million, which was affirmed on
appeal. Then, in July 1983, Jaffe was charged with eight counts of
criminal "organized fraud," again related to the allegedly fraudulent
land deals. See Jaffe v. Sanders, 463 So.2d 318 (Fla. Dist. Ct. App.
1984) (holding that the prior convictions did not bar — by collateral
estoppel or double jeopardy — prosecution of criminal fraud charges
against Jaffe). Two months later, in September 1983, a state appellate
court set aside Jaffe's convictions on the Land Sales Act convictions
due to "defective" wording in the indictment; however, the court
upheld his failure to appear conviction. See Jaffe v. State, 438 So.2d
at 75-77. That same month, Jaffe became eligible for parole on the
failure to appear conviction and also filed a letter of credit in lieu of
bond in the amount of $150,000 with respect to the criminal fraud
charges. When released the next month on parole, Jaffe imme-
diately fled to Canada.

   Florida authorities filed more criminal charges against Jaffe in
March 1984, while Jaffe continued to reside in Canada. This time,
Jaffe was charged with four counts of perjury stemming from answers
to interrogatories in both the state civil action and in a subsequent fed-
eral civil action brought by Jaffe relating to the allegedly fraudulent
land deals.1

   In the meantime, Canadian officials "took a very jaundiced view"
of the bondsmen's arrest of Jaffe, who had since become a Canadian
citizen, in Canada, without notice or surrender to Canadian officials.
See Kear v. Hilton, 699 F.2d 181, 182-83 & n.1 (4th Cir. 1983) (deny-
ing habeas relief to Accredited bondsman seeking to prevent his
extradition to Canada for kidnapping Jaffe). Contrary to the law in
each of the United States, in Canada a surety must either obtain an
order from a Canadian court permitting the arrest of the accused or
must surrender the accused to Canadian peace officers. Id. at 182 &
____________________________________________________________
  1
     An arrest warrant for Jaffe on these perjury charges remains outstand-
ing, although the organized fraud charges brought in 1983 apparently
were dropped sometime in 1996 or 1997.

             4
n.3 (citing Criminal Code, R.S.C. ch. C-34, §§ 449, 700(1), 702
(1970) (Can.)). At the request of Canadian authorities, the two
Accredited bondsmen were extradited to Canada and were charged
and convicted there of criminal kidnapping.

   On September 20, 1985, after a Canadian court had convicted the
bondsmen, the Jaffes filed a civil suit in the Ontario Court of Justice
against Accredited and its president, Hank M. Snow.2 The Jaffes
alleged that the bondsmen kidnapped Sidney Jaffe in violation of
Canadian law, "struck [Jaffe] on the head, threatened him with further
physical harm, handcuffed him, and threatened to kill members of his
family in order to prevent his escaping." In the same action, the Jaffes
also sued a host of other persons whom they alleged caused or con-
spired in the "wrongful abduction" or "wrongful imprisonment,"
including various Florida state attorneys, local government and
county officials in Putnam County, and the attorneys who litigated the
civil suit against Jaffe's corporations.

   Accredited and Snow entered special appearances and filed a
motion to dismiss for lack of personal jurisdiction and forum non con-
veniens; the Canadian court dismissed that motion. See Jaffe v. Mil-
ler, [1989] 76 O.A.C. 15. Accredited and Snow elected not to defend
further against the action. On November 22, 1990, the Canadian court
entered two default judgments against Accredited — one in favor of
Sidney Jaffe for $617,434.17 in Canadian dollars, plus $290,140.94
in U.S. dollars, plus interest, and a second and separate default judg-
ment in favor of Ruth Jaffe for $115,293.56 in Canadian dollars, plus
$903,481.47 in U.S. dollars, plus interest.3
____________________________________________________________
  2
    In 1982 and 1984 the Jaffes had filed civil actions in the United States
based on allegations that the Accredited bondsmen had illegally kid-
napped and mistreated Jaffe. The Jaffes voluntarily dismissed the first
action and did not prosecute the second.
  3
    These values are expressly set forth in the Canadian judgment. None-
theless, the Jaffes claim that the Canadian court awarded Sidney Jaffe
"413,806.47 U.S. Dollars and $822,956.45 Canadian Dollars," plus post-
judgment interest, and awarded Ruth Jaffe "$1,401,570.80 U.S. Dollars
and $177,752.30 Canadian Dollars," plus post-judgment interest.

             5
   On January 15, 1991, Ruth Jaffe filed an action in Florida state
court seeking recognition of her Canadian default judgment. The Flor-
ida court refused recognition, reasoning that to do so would contra-
vene Florida public policy because Florida law "favors and sanctions
the apprehension of a bond jumper" by a surety, like Accredited, and
because Jaffe's criminal act in failing to appear constituted the direct
cause of the bondsmen's actions. Jaffe v. Snow, No. CI 91-1593, at
8-9 (Fla. Cir. Ct. July 26, 1991) (order granting summary judgment).
The court concluded that Ruth Jaffe was not entitled to recognition of
her Canadian default judgment because "the claim upon which it was
based was intertwined with, solely derivative of and utterly dependent
upon that of her husband." Id. For these reasons, the Florida trial court
granted summary judgment to Accredited; the Florida appellate court
affirmed. Jaffe v. Snow, 610 So.2d 482 (Fla. Dist. Ct. App. 1992).

   In 1994, a Canadian court, after a full trial, issued a comprehen-
sive, 93-page decision resolving the Jaffes' claims as to the remaining
defendants in the Jaffes' Canadian action. The same court that previ-
ously had entered the default judgments in favor of the Jaffes (speak-
ing through a different judge) dismissed each of the Jaffes' claims and
entered judgment in favor of one defendant on his counterclaim
against the Jaffes. The Canadian court spared little scorn in detailing
the Jaffes' lack of credibility and the minimal foundation supporting
their claims.4 As to the earlier default judgments entered against
Accredited and Snow, the court declared that "[i]t strikes me as being
wrong that Jaffe now has or should obtain a judgment against Accred-
ited" based on his allegations of "kidnapping." The court further
stated:

        I have no doubt that [the other judge of this court] granted
        judgment in favor of both Jaffe and Mrs. Jaffe on the basis
        of misstatements or misrepresentations knowingly made to
        him . . . and allow[ed] a recovery of money to which neither
        of them are entitled. I have a serious concern about this mat-
____________________________________________________________
   4
     For example, the court stated that "I can say without any hesitation
that in all my years on the Bench, I have not seen or experienced a more
untrustworthy witness or litigant [than Jaffe]. . . . There is absolutely no
justification whatsoever for this action, let alone this [ten-week] trial,
having taken place."

             6
        ter and question whether the judgments [in favor of the Jaf-
        fes] should now be enforced. I think the matter of their
        validity should be the subject of further consideration on
        another occasion.

   On November 16, 2000, the Jaffes nonetheless filed this enforce-
ment action against Accredited in the United States District Court for
the Eastern District of Virginia, after having withdrawn a similar
action from a Virginia state court in 1996. The Jaffes sought enforce-
ment of both Canadian default judgments pursuant to the Foreign
Country Money-Judgments Recognition Act, Va. Code Ann. § 8.01-
465.6 et seq.

   The district court granted summary judgment to Accredited. The
district court reasoned that the Florida court's refusal to recognize the
Canadian default judgment barred Ruth Jaffe's claim for recognition
of the same default judgment. The court held that Sidney Jaffe could
not succeed on his claim for recognition of his Canadian default judg-
ment because to permit this would be repugnant to Virginia public
policy and therefore was barred by Va. Code Ann. § 8.01-465.10. The
district court explained that "[s]uch recovery would be against public
policy because it would permit Sidney Jaffe to benefit from his wrong
doing," i.e., his bail-jumping, and allow a "fugitive" to "utiliz[e] the
American justice system to his benefit."

   Both Jaffes appeal. We review the district court's grant of sum-
mary judgment de novo. Guinness PLC v. Ward, 955 F.2d 875, 882
(4th Cir. 1992). We consider first Ruth Jaffe's claim and then Sidney
Jaffe's claim.

            II.

    The full faith and credit statute, 28 U.S.C.A. § 1738 (West 1994),
governs our disposition of Ruth Jaffe's claim. That statute requires
that federal courts afford state court judgments "full faith and credit."
Id. (providing that state judicial proceedings "shall have the same full
faith and credit in every court within the United States . . . as they
have by law or usage in the courts of such State . . . from which they
are taken").

             7
   To determine whether the full faith and credit statute applies in a
particular case, a court engages in a two-step inquiry. Meindl v.
Genesys Pac. Techs., Inc. (In re Genesys Data Techs., Inc.), 204 F.3d
124, 128 (4th Cir. 2000) (citing Marrese v. Am. Acad. of Orthopaedic
Surgeons, 470 U.S. 373, 381 (1985)). First, we "must refer to the pre-
clusion law of the State in which the judgment was rendered" to
ascertain the preclusive effect of the state-court judgment in that state.
Heckert v. Dotson (In re Heckert), 272 F.3d 253, 257 (4th Cir. 2001)
(internal quotation marks and citation omitted); Meindl, 204 F.3d at
128. If the law of that state "would not bar relitigation of an issue or
claim decided in the earlier proceeding, then the inquiry ends — a
federal court will not give it preclusive effect either." Meindl, 204
F.3d at 128. However, "[i]f state law would afford the judgment pre-
clusive effect . . . then a federal court must engage in a second step
— it must determine if Congress created an exception to § 1738." Id.
(citation omitted). Only if federal law provides an exception to § 1738
can a federal court refuse to give a state court judgment the same pre-
clusive effect given it under the law of that state. Id.

             A.

    We therefore must first determine whether, under Florida preclu-
sion law, the Florida court's judgment refusing to recognize Ruth
Jaffe's Canadian default judgment bars her claim for recognition of
that judgment in the present suit. Florida law provides that "several
conditions must occur simultaneously if a matter is to be made res
judicata: [1] identity of the thing sued for; [2] identity of the cause of
action; [3] identity of parties; [4] identity of the quality in the person
for or against whom the claim is made." Albrecht v. State, 444 So.2d
8, 12 (Fla. 1984), superseded by statute on other grounds, as stated
in Bowen v. Florida Dep't of Envtl. Reg., 448 So.2d 566 (Fla. Dist.
Ct. App. 1984). Finally, under Florida law, the prior cause of action
must have been resolved by a final "adjudication on the merits."
Ludovici v. McKiness, 545 So.2d 335, 337 (Fla. Dist. Ct. App. 1989)
(citations omitted).

   Ruth Jaffe does not (and indeed cannot) maintain that the first four
prongs of Florida's res judicata test have not been met. What Ruth
Jaffe claims is that the Florida judgment would not be entitled to res
judicata under Florida law because it is not "an adjudication on the

             8
merits." Id. She asserts that the Florida public policy which provided
the rationale for the Florida judgment — refusal to enforce a judg-
ment based on Sidney Jaffe's criminal failure to appear in court —
is inconsistent with Virginia public policy. For this reason, she
argues, a federal court in Virginia, sitting in diversity, should hold
that the Florida court's grant of summary judgment to Accredited was
not "on the merits." Even assuming that Virginia public policy does
not accord with Florida public policy (which is not at all clear, see
infra part III), this contention is meritless.

   Ruth Jaffe's reliance on this argument seems to arise from her con-
fusion as to what is at issue in her case. With respect to her claim, we
must determine the enforceability of the prior Florida judgment refus-
ing to enforce her Canadian default judgment, not the enforceability
of the Canadian default judgment itself. Neither the full faith and
credit statute, nor the Full Faith and Credit Clause of the Constitution,
applies to judgments issued from foreign countries. See Miller v. Mil-
ler, 240 F.3d 392, 400 (4th Cir. 2001) (citations omitted); Guinness,
955 F.2d at 883. Accordingly, while both federal and state courts in
the United States must give "full faith and credit" to any judgment of
a state court empowered to enter the judgment, see Baker v. Gen.
Motors Corp., 522 U.S. 222, 233 (1998), they need only recognize the
judgment of a foreign court to the extent that this recognition com-
ports with principles of judicial comity. See Hilton v. Guyot, 159 U.S.
113, 203 (1895).

   For this reason, a state can refuse, as Florida did, to recognize a
foreign judgment on the ground that it conflicts with the public policy
of that state. Id. at 163; Herron v. Passailaigue, 110 So. 539, 542
(Fla. 1926) (stating that a state court could refuse to enforce judgment
from foreign country if contrary to "some paramount rule of public
policy"); see also Uniform Foreign Money-Judgments Recognition
Act of 1962 § 1 et seq., 13 U.L.A. 268 (1986) (providing that a for-
eign country money judgment "need not be recognized" if, among
other reasons, the claim for relief "on which the judgment is based is
repugnant to the public policy of this state").

   But neither a state nor a federal court can refuse to give full faith
and credit to the judgment of a state court because of disagreement
with the public policy basis for that decision. Indeed, the Supreme

             9
Court recently addressed this precise question and reiterated that its
"decisions support no roving `public policy exception' to the full faith
and credit due [state court] judgments." Baker, 522 U.S. at 233 (origi-
nal emphasis omitted); see also Estin v. Estin, 334 U.S. 541 (1948);
Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943); Fauntleroy v.
Lum, 210 U.S. 230 (1908). Thus, even if Florida public policy on this
issue is contrary to Virginia public policy, this provides no basis for
a state or federal court in Virginia to refuse to give a Florida judgment
based on its public policy full faith and credit.

     Ruth Jaffe simply ignores this precedent and argues that because
the Florida judgment is based on Florida public policy, it, like some
Rule 41(b) dismissals on limitations grounds, see Semtek Int'l Inc. v.
Lockheed Martin Corp., 531 U.S. 497, 501-506 (2001), is not a judg-
ment "on the merits" for res judicata purposes. Even if the line of
Supreme Court cases from Fauntleroy to Baker did not apparently
foreclose this argument, we would have to reject it. This is so because
under Florida law, even an involuntary dismissal on limitations or
other grounds, except for "a dismissal for lack of jurisdiction or for
improper venue or for lack of an indispensable party," Fla. R. Civ. P.
1.420(b), does constitute an adjudication "on the merits" for res judi-
cata purposes. See 33 Fla. Jur. 2d Judgments and Decrees § 190
(1994) ("Under the civil procedure rule governing involuntary dis-
missals . . . a final judgment of dismissal . . . is a final adjudication
on the merits, and will bar a subsequent suit on the same cause of
action between the same parties unless it affirmatively appears from
the order of dismissal that it was made without prejudice." (citations
omitted)); see also, e.g., Allie v. Ionata, 503 So.2d 1237, 1242 (Fla.
1987) (holding that dismissal on limitations grounds is a "dismissal
. . . on the merits" under Fla. R. Civ. P. 1.420(b) and constitutes an
"adjudication[ ] on the merits for res judicata purposes").

   Accordingly, we must conclude that Florida law would afford the
Florida court's grant of summary judgment to Accredited preclusive
effect in any subsequent identical action, like the one at hand, brought
by Ruth Jaffe.

             B.

  We now proceed to the second step of our inquiry in resolving
whether the full faith and credit statute, 28 U.S.C.A. § 1738, applies

            10
here — examination of whether Congress has created a statutory
exception to § 1738 that permits relitigation of Ruth Jaffe's claim. A
court will recognize an exception to § 1738 only if "a later [federal]
statute contains an express or implied partial repeal" of § 1738; an
implied repeal requires an "irreconcilable conflict" between the two
federal statutes. Kremer v. Chem. Constr. Corp., 456 U.S. 461, 468
(1982). The Supreme Court has noted that it has "seldom, if ever, held
that a federal statute impliedly repealed § 1738 . . . due to the rela-
tively stringent standard" for such findings. Matsushita Elec. Indus.
Co. v. Epstein, 516 U.S. 367, 380-81 (1996).

   Ruth Jaffe has identified no statute that explicitly or implicitly
repeals § 1738 and so "the second step of our analysis can be easily
resolved." See Meindl v. Genesys Pac. Techs., Inc. (In re Genesys),
245 F.3d 312, 314 (4th Cir. 2001) (citations omitted). We can only
conclude that Congress has not repealed § 1738 to create some excep-
tion in this case; rather, the full faith and credit statute must be hon-
ored here. Hence, the district court properly held that the prior Florida
judgment, refusing to recognize Ruth Jaffe's Canadian default judg-
ment, must be given full faith and credit.

            III.

   Sidney Jaffe's claim seeking enforcement of his Canadian default
judgment presents a more difficult question. Sidney Jaffe too seeks
recognition and enforcement of his Canadian default judgment pursu-
ant to Virginia's Foreign Country Money-Judgments Recognition Act
(the "Act"), Va. Code Ann. § 8.01-465.6 et seq. (Michie 2000). The
Act, which parallels in relevant part the Uniform Foreign Money-
Judgments Recognition Act, provides that a "foreign country money
judgment is enforceable in the same manner as the judgment of a sis-
ter state which is entitled to full faith and credit." Id. § 8.01-465.9.5
____________________________________________________________
   5
     Jaffe's Canadian default judgment against Accredited seems at pres-
ent to be enforceable in Canada notwithstanding the doubts expressed by
the Canadian court in resolving the Jaffes' claims against the other
defendants. See supra at 6-7. We note that the Act requires that a judg-
ment be "final and conclusive and enforceable where rendered," even
though "an appeal therefrom is pending or [the judgment] is subject to
appeal." Va. Code Ann. § 8.01-465.8.

             11
As a condition to enforcement, however, a court must first establish
that the foreign country money judgment should be recognized. See
Guinness PLC v. Ward, 955 F.2d at 891 (interpreting Maryland's ver-
sion of the Uniform Recognition of Foreign Money-Judgments Act);
Matusevitch v. Telnikoff, 877 F. Supp. 1, 2-3 (D.D.C. 1995), aff'd,
159 F.3d 636 (D.C. Cir. 1998) (stating that pursuant to the Uniform
Foreign-Money Judgments Recognition Act, "[b]efore a party can
enforce a judgment from a foreign country in the United States, the
moving party must have the foreign judgment recognized by the state
in which he is seeking to enforce the judgment"). A judgment that
need not be recognized is not entitled to enforcement.

   In relevant part, the Act provides that a "foreign country money
judgment need not be recognized if . . . [t]he claim for relief on which
the judgment is based is repugnant to the public policy of this Com-
monwealth." Va. Code Ann. § 8.01-465.10(B)(3). We have found no
cases from Virginia courts applying the Act's public policy exception.
We nonetheless look to Virginia case law to determine if we can dis-
cern whether a Virginia court would hold that the basis for Jaffe's
Canadian judgment is repugnant to an important public policy mani-
fested in Virginia law.

   Accredited principally contends6 that, as the district court held, rec-
ognition of Sidney Jaffe's Canadian default judgment "would be
repugnant to Virginia public policy" for two interrelated reasons. To
recognize Sidney Jaffe's default judgment would, Accredited main-
____________________________________________________________
   6
     Accredited also briefly argues that the Florida judgment denying Ruth
Jaffe's claim for recognition of her Canadian default judgment consti-
tutes "res judicata" barring Sidney Jaffe's claim for recognition of his
default judgment. This argument fails. Although under Florida law a
judgment against an injured party bars any future derivative claims by a
spouse, see, e.g., Gates v. Foley, 247 So.2d 40, 45 (Fla. 1971), no Florida
case supports the application of res judicata when the parties bring their
claims in reverse order, as they did here. We cannot extend Florida law
to preclude claims by an assertedly injured party (Sidney) after his
spouse (Ruth) has lost on her derivative claim because a claim by an
injured party and a derivative claim are not identical claims. Rather, a
derivative claim may fail while the principal claim succeeds. See, e.g.,
Resmondo v. Int'l Builders of Fla., Inc., 265 So.2d 72, 73-74 (Fla. Dist.
Ct. App. 1972).

            12
tains, be contrary to Virginia public policy because it would (1) per-
mit a wrongdoer to benefit from his own wrongs and (2) allow a
fugitive from justice to call upon the resources of the courts while
simultaneously evading their process.

             A.

   The Supreme Court of Virginia has consistently refused to allow
a party "to profit from its own wrongdoing." Chosar Corp. v. Owens,
370 S.E.2d 305, 308 (Va. 1988); see Edwards v. Lowry, 348 S.E.2d
259, 261 (Va. 1986) (refusing to reduce a father's child support obli-
gation where his changed circumstance — termination from his job
— was "the consequenc[e] of his own wrongdoing"); McNeir v.
McNeir, 16 S.E.2d 632, 633 (Va. 1941) (refusing to award ex-wife
support payments when she admitted to fraudulently obtaining a
divorce because it would "offend[ ] a principle of law, that one cannot
profit by one's own wrong"); Eagle, Star & British Dominions Ins.
Co. v. Heller, 140 S.E. 314, 321 (Va. 1927) (refusing to allow arsonist
to recover under fire insurance policy for goods he intentionally
burned).

   "When [this principle is] applied to actions in tort . . . consent or
participation in an immoral or unlawful act by plaintiff precludes
recovery for injuries sustained as a result of that act." Miller v. Ben-
nett, 56 S.E.2d 217, 219 (Va. 1949); see also Zysk v. Zysk, 404 S.E.2d
721, 722 (Va. 1990) (stating that in a tort action, "consent, freely
given without fraud or duress, bars recovery, even though the conduct
constitutes a crime" because "courts will not assist the participant in
an illegal act who seeks to profit from the act's commission"); Trace
Mountain Prods., Inc. v. Special Data, Inc., 1994 WL 1031414 at *3
(Va. Cir. Ct. Nov. 3, 1994) (ruling that corporate directors who fail
to keep "accurate records" cannot "profit from uncertainty created by
their own wrongdoing").

   Applying this rule, the Supreme Court of Virginia has denied relief
when "[t]he very illegal act to which the plaintiff consented and in
which she participated produced the injuries and damages of which
she complains." Zysk, 404 S.E.2d at 722 (holding that a wife could
not recover against her husband for disease contracted from him prior
to marriage because she participated in and consented to unlawful

            13
premarital intercourse); see also Miller, 56 S.E.2d at 219 (ruling that
a husband, as administrator of deceased wife's estate, could not main-
tain a wrongful death action based on an attempted abortion because
his wife had participated in and consented to the unlawful abortion).

   On the other hand, Virginia's highest court has held that this princi-
ple does not bar recovery if the plaintiff's unlawful act is not the
direct cause of his injuries. Godbolt v. Brawley, 463 S.E.2d 657, 659-
60 (Va. 1995); cf. Matthews v. Warner, 70 Va. 570 (Va. 1877) (stat-
ing that trial court was not required to instruct jury that if it found
"that the death of the deceased . . . was the result of his own miscon-
duct or neglect, then the jury must find for the defendant"). For exam-
ple, Godbolt held that the plaintiff could maintain a civil action for
assault against a security guard who shot him during a bar brawl,
despite the plaintiff's participation in the brawl, because although the
plaintiff "may have intentionally engaged in assaultive behavior, he
did not engage in the use of deadly force and did not consent to its
use." Godbolt, 463 S.E.2d at 660.

   We cannot determine from these precedents whether the Virginia
courts would permit Jaffe to recover against Accredited for "wrongful
abduction" when Jaffe's own illegal act — jumping bail — led to
Accredited's actions in apprehending him. Under Virginia law, Jaffe's
instigating act of jumping bail constitutes a felony, see Va. Code Ann.
§ 19.2-128 (Michie 2000), and, therefore, an illegal and wrongful act.7
Furthermore, like the plaintiffs in Zysk and Miller, Jaffe expressly
manifested his consent to the very conduct undertaken by the defen-
____________________________________________________________
   7
     Jaffe contends that the district court should have applied judicial
estoppel to bar Accredited from asserting that he jumped bail because
Accredited, relying on a statement by Jaffe's own counsel, had repre-
sented to the Florida court that Jaffe's failure to appear in court was due
to a basketball injury. The hypocrisy of this argument is breathtaking. In
essence, Jaffe seeks to punish Accredited for innocently repeating Jaffe's
own lie. Judicial estoppel does not apply when a party's assertedly incon-
sistent positions stem from reliance on statements made to the court by
an opponent, which later prove untrue. See, e.g., Lowery v. Stovall, 92
F.3d 219, 224 (4th Cir. 1996) (stating that party taking an inconsistent
position must have "intentionally misled" the court (citation omitted)).
Thus, the district court did not abuse its discretion in refusing to invoke
the doctrine of judicial estoppel against Accredited.

            14
dants that caused injury. Jaffe did this by consenting, in the bond
agreement, to Accredited's right to "apprehend, arrest and surrender"
him if he left Florida without Accredited's permission or moved from
his residence without notifying Accredited.8 Nonetheless, a Virginia
court might conclude that Jaffe's act of jumping bail and fleeing to
Canada was not a sufficiently direct cause of his alleged injuries, as
required by the Godbolt rule, to apply the principle that a party cannot
profit from his own wrongdoing.

             B.

   Similarly, we cannot determine whether Virginia courts would pre-
clude Jaffe's underlying claim as contrary to public policy based on
the fugitive from justice doctrine. Pursuant to that doctrine, also
known as the fugitive disentitlement doctrine, a court may "dismiss
an appeal or writ of certiorari if the party seeking relief is a fugitive
while the matter is pending." Degen v. United States, 517 U.S. 820,
824 (1996); see also Ortega-Rodriguez v. United States, 507 U.S.
234, 242 (1993) (stating that the Supreme Court has upheld the doc-
trine "consistently and unequivocally"). A court has discretion in
determining whether to apply the doctrine, which is equitable rather
than jurisdictional in nature. See Molinaro v. New Jersey, 396 U.S.
365, 366 (1970).

   Federal courts have adopted the doctrine, see, e.g., Goya Foods,
Inc. v. Unanue-Casal, 275 F.3d 124, 129 (1st Cir. 2001); Prevot v.
Prevot (In re Prevot), 59 F.3d 556, 562 (6th Cir. 1995), as have some
state courts. See, e.g., In re J.J., 656 A.2d 1355, 1356 (Pa. 1995).
____________________________________________________________
  8
    That a Canadian court convicted the Accredited bondsmen of criminal
kidnapping leads to no contrary conclusion. A wrongdoer who partici-
pates or consents to the wrongdoing is not entitled to recover against an
alleged tortfeasor even if the alleged tortfeasor could be subject to crimi-
nal prosecution for the same act. As the Supreme Court of Virginia has
explained, "when the consenting participant seeks monetary reward for
harm resulting from the unlawful conduct, the public interest [invaded by
the crime] is protected sufficiently by criminal sanctions and does not
require that the participant receive compensation." Zysk, 404 S.E.2d at
722 (citing Miller, 56 S.E.2d at 219-21; Restatement (Second) of Torts
§ 892C(1) cmt. b (1979)).

            15
Other states have established the doctrine "by statute or rule." See
State v. Bell, 608 N.W.2d 232, 234 (N.D. 2000) (citing authorities);
see also, e.g., Estelle v. Dorrough, 420 U.S. 534 (1975).

   No Virginia statute or rule codifies the doctrine, and we have found
no decisions in which a Virginia court has adopted it. Nevertheless,
the considerations justifying the doctrine reflect substantial public
policy interests Virginia likely shares with other jurisdictions that
have applied the doctrine. These include (1) a party's fugitive status
can render a judgment "impossible to enforce"; (2) the inequity of
allowing a fugitive to "call upon the resources of the Court for deter-
mination of his claims," and (3) the need to "discourage[ ] the felony
of escape and encourage[ ] voluntary surrenders." Degen, 517 U.S. at
824 (internal quotation marks and citations omitted).

   Relying on these justifications, both federal and state courts have
applied the fugitive from justice doctrine not only in criminal cases
but in "a variety of civil cases and proceedings." Empire Blue Cross
& Blue Shield v. Finkelstein, 111 F.3d 278, 280-82 (2d Cir. 1997).9
Indeed, the Florida appellate court cited the doctrine as one of the
grounds for affirming the dismissal of Ruth Jaffe's claim, explaining
that "[t]he fugitive from justice doctrine bars any claim or defense
that is solely derivative of the fugitive's claim." Jaffe v. Snow, 610
So.2d at 486, 488 (stating also that Florida courts had adopted the
doctrine because a fugitive's "duplicitous approach" in "wield[ing] a
sword against our judicial system by escaping criminal prosecution"
while "shield[ing] himself with the protection of his rights in the civil
____________________________________________________________
   9
     In fact, some courts have stated that the doctrine should apply "with
greater force in civil cases where an individual's liberty is not at stake."
Conforte v. C.I.R., 692 F.2d 587, 589 (9th Cir. 1982) (citations omitted).
At least one court also has expanded the notion of "fugitive status" to one
"who becomes a fugitive to escape the effect of [a] civil judgment." Fin-
kelstein, 111 F.3d at 282. We are dealing here with a mixed criminal-
civil case in which a fugitive from criminal charges is seeking a civil
remedy. See also Sarlund v. Anderson, 205 F.3d 973, 974-76 (7th Cir.
2000) (dismissing civil rights suit "on the basis of the fugitive-
disentitlement doctrine" because the plaintiff was "a fugitive from justice
with two arrest warrants outstanding against him, one for disorderly con-
duct and the other for violating the terms of his probation").

            16
courts" was "repugnant to our inherent sense of equity" (internal quo-
tation marks and citation omitted)).

   Although the fugitive from justice doctrine dates back more than
one hundred years, the Supreme Court recently limited its application
in the federal courts. In 1993, the Ortega-Rodriguez Court rejected
the Eleventh Circuit's automatic rule mandating dismissal of fugi-
tives' appeals and held that "some connection between a defendant's
fugitive status and his appeal" must exist for the doctrine to apply.
Ortega-Rodriguez, 507 U.S. at 249. Then, in 1996, Degen expanded
on the nexus requirement and held that a federal court could not rely
on the fugitive from justice doctrine to dismiss a civil forfeiture action
merely "because [the party] is a fugitive from, or otherwise is resist-
ing, a related criminal prosecution." Degen, 517 U.S. at 823. In reach-
ing this conclusion, the Court held that fugitive status alone does not
suffice to invoke the doctrine because disentitlement "is too blunt an
instrument" for advancing the need to deter flight from prosecution by
criminal defendants. Degen, 517 U.S. at 828.

    Since Degen, both federal and state courts have continued to apply
the doctrine in a civil setting. See, e.g., Goya Foods, 275 F.3d at 128-
29; Pesin v. Rodriguez, 244 F.3d 1250, 1252-53 (11th Cir. 2001);
Matsumoto v. Matsumoto, 792 A.2d 1222, 1232-33 (N.J. 2002); Gue-
rin v. Guerin, 993 P.2d 1256, 1258 (Nev. 2000). Federal courts after
Degen, however, have required a substantial nexus between a liti-
gant's fugitive status and the issue before the court. See, e.g., Barnett
v. YMCA, 268 F.3d 614 (8th Cir. 2001) (holding insufficient nexus
between a claim that a work release program violated federal mini-
mum wage laws and the prisoner's departure from a half-way house
where he was paroled); Daccarett-Ghia v. C.I.R., 70 F.3d 621, 629
(D.C. Cir. 1995) (holding that "mere commonality of subject matter"
did not establish a sufficient nexus between a Tax Court proceeding
and a party's fugitive status based on "his failure to appear in a crimi-
nal case pending in another jurisdiction"). Although some state courts
have also followed Degen and Ortega-Rodriquez to require a close
nexus, see, e.g., Matsumoto, 792 A.2d at 1233; State v. Lundahl, 882
P.2d 644, 646-47 (Ore. Ct. App. 1994), not all state courts have
regarded the Supreme Court cases as affecting the relevant state law.
See, e.g., Scelba v. Scelba, 535 S.E.2d 668, 672 (S.C. Ct. App. 2000)

            17
(relying on pre-Degen and Ortega-Rodriquez state cases to determine
the contours of the fugitive disentitlement doctrine).

   Jaffe maintains that even if Virginia follows the fugitive from jus-
tice doctrine, Virginia courts could not apply the doctrine in this case
because, inter alia, an insufficient nexus exists to invoke the doctrine.
Jaffe's status as a fugitive stems from charges that he committed
criminal fraud through answers to interrogatories in two civil law-
suits, while his current enforcement action relates to the allegedly ille-
gal acts of the bondsmen who kidnapped him in Canada after he
jumped bond in an attempt to avoid criminal prosecution on charges
that were related to, but preceded, the criminal fraud charges. In the
absence of any Virginia statute, rule, or case stating or discussing the
fugitive from justice doctrine, we cannot determine if a Virginia court
would adopt the doctrine and, if so, whether a Virginia court would
hold that under Virginia law the doctrine would apply to bar a claim
like that which forms the basis of Jaffe's default judgment.

            C.

   Finally, even if we could conclude that Virginia law would not per-
mit the claim for relief on which Jaffe's Canadian default judgment
was based, under either the principle that a party cannot profit from
his own wrongdoing or the fugitive from justice doctrine, we cannot
determine whether a Virginia court would conclude that the conflict
between Virginia public policy and the Canadian default judgment
rises to a level that warrants non-recognition of the default judgment.
See, e.g., Ackermann v. Levine, 788 F.2d 830, 842-43 (2d Cir. 1986)
(explaining that under the common law "it is not enough merely that
a foreign judgment fails to fulfill domestic practice or policy" and
agreeing that it must "offend [a] sense of justice and menace the pub-
lic welfare" (citation omitted)); McCord v. Jet Spray Int'l Corp., 874
F. Supp. 436, 439 (D. Mass. 1994) (applying a similar standard in
interpreting the Massachusetts version of the Uniform Foreign-Money
Judgments Recognition Act).

            D.

  Given these several uncertainties, we will not substitute our judg-
ment for the judgment of the Supreme Court of Virginia and, there-

            18
fore, respectfully certify to that court, pursuant to its discretionary
authority under Rule 5:42 of the Rules of the Supreme Court of Vir-
ginia, the following question:

         Is the claim for relief that forms the basis for the Canadian
         default judgment in favor of Sidney Jaffe and against
         Accredited repugnant to the public policy of Virginia, such
         that the judgment need not be recognized pursuant to the
         Foreign Country Money-Judgments Recognition Act, Va.
         Code Ann. § 8.01-465.6 et seq.?

See Va. S. Ct. R. 5:42(a).

   In certifying this question, we note that although our discussion of
the possible grounds for non-recognition of Jaffe's Canadian default
judgment has focused on the principle that one cannot profit from his
own wrongdoing and on the fugitive from justice doctrine, we do not
intend to foreclose the Supreme Court of Virginia from considering
any other grounds for non-recognition that it believes the facts of this
case present.

   Should the Supreme Court of Virginia accept certification on the
above question and answer in the affirmative, Jaffe's Canadian
default judgment need not be recognized and, consequently, Jaffe is
not entitled to enforce it. In the event the Supreme Court of Virginia
court answers in the negative, we cannot refuse recognition of Jaffe's
judgment based on the public policy exception of Va. Code Ann.
§ 8.01-465.10(B)(3).

              IV.

   For the above reasons, we hold that the full faith and credit statute
bars Ruth Jaffe's claim for recognition of her Canadian default judg-
ment. We therefore affirm summary judgment in favor of Accredited
on Ruth Jaffe's claim. However, we certify to the Supreme Court of
Virginia the question of whether the basis for Sidney Jaffe's Canadian
default judgment is repugnant to Virginia public policy, rendering it
unenforceable under § 8.01-465.10(B)(3). The accompanying certifi-
cation order shall first be released to counsel, who shall have 15 days

              19
to submit suggested changes to the Statement of Facts. We reserve the
right to modify this opinion in light of the comments received. The
judgment of the district court granting summary judgment to Accred-
ited therefore is

AFFIRMED IN PART AND CERTIFIED IN

PART TO THE SUPREME COURT OF VIRGINIA.

            20
