In international abduction case, U.S. Supreme Court holds (1) that the Federal Tort Claims Act's exception to waiver of U. S. sovereign immunity for claims "arising in" foreign country bars claims based on injury suffered in Mexico regardless of where tortious act or omission occurred and (2) that Alien Tort Claims Act does not create alien's right of action for false arrest in foreign nation
The underlying events began in 1985, when Humberto Alvarez-Machain (plaintiff) was a medical doctor in Guadalajara, Mexico. Allegedly, he assisted in the torture and murder of Drug Enforcement Administration (DEA) Special Agent Camarena-Salazar. After a federal grand jury indicted him, the DEA arranged to have plaintiff abducted and brought to the U.S. Francisco Sosa, a former Mexican policeman, was one of those who had taken part in Alvarez-Machain's abduction. The district court held that it did have jurisdiction to try plaintiff.
The criminal case ended up in the Supreme Court. In 1992, the Court had held, in United States v. Alvarez-Machain, 504 U.S. 655, 669 (1992), that the abduction did not deprive the district court of criminal jurisdiction over plaintiff. It did note, however, that plaintiff "may be correct" in claiming that his abduction was in violation of general international law principles. Eventually, the district court granted plaintiff's motion for a judgment of acquittal.
Plaintiff then sued Sosa and other Mexicans involved in his abduction, along with the United States, and four DEA agents. The district court granted the Government's motion to dismiss the Federal Tort Claims Act (FTCA) [28 U.S.C. Section 1346(b)(1), Sections 2671-2689] claim, but gave summary judgment and awarded damages on the Alien Tort Claims Act (ATCA) [28 U.S.C. Section 1350] claim. A divided en banc Ninth Circuit then held in Alvarez-Machain v. United States, 331 F.3d 604 (9th Cir. 2003), that the DEA had no authority to arrest and detain plaintiff and that he may seek redress under the FTCA and the ATCA. See 2003 International Law Update 83. The U.S. Supreme Court granted certiorari and finds that Alvarez-Machain lacks a remedy under either statute.
Under the first claim, the FTCA's exception for claims arising in a foreign country applies. Plaintiff's arrest was "false" (meaning "tortious") to the extent that it occurred in Mexico. The Court rejects the "headquarters doctrine" that some Courts of Appeals have applied in cases where acts or omissions committed in the U.S. have an operative effect in a foreign country.
"The potential effect of this sort of headquarters analysis flashes the yellow caution light. "It will virtually always be possible to assert that the negligent activity that injured the plaintiff [abroad] was the consequence of faulty training, selection or supervision " or even less than that, lack of careful training, selection or supervision " in the United States.' ..."
"Legal malpractice claims, ... allegations of negligent medical care, ..., and even slip-and-fall cases, ..., can all be repackaged as headquarters claims based on the failure to train, a failure to warn, the offering of bad advice, or the adoption of a negligent policy. If we were to approve the headquarters exception to the foreign country exception, the "'headquarters claim' [would] become a standard part of FTCA litigation' in cases potentially implicating the foreign country exception. ... The headquarters doctrine threatens to swallow the foreign country exception whole, certainly at the pleadings stage. [...]"
"Although not every headquarters case is rested on an explicit analysis of proximate causation, this notion of cause is necessary to connect the domestic breach of duty (at headquarters) with the action in the foreign country (in a case like this) producing the foreign harm or injury. It is necessary, in other words, to conclude that the act or omission at home headquarters was sufficiently close to the ultimate injury, and sufficiently important in producing it, to make it reasonable to follow liability back to the headquarters behavior. Only this way could the behavior at headquarters properly be seen as the act or omission on which all FTCA liability must rest under Section 2675." [2749]
Congress seemingly intended that a claim "arising in a foreign country" would bar application of the headquarters doctrine because it would apply to injury or harm that took place in a foreign country. "There is ... specific reason to believe that using "arising under' as referring to place of harm was central to the object of the foreign country exception."
"Any tort action in a court of the United States based on the acts of a Government employee causing harm outside the State of the district court in which the action is filed requires a determination of the source of the substantive law that will govern liability. When the FTCA was passed, the dominant principle in choice of law analysis for tort cases was lex loci delicti: courts generally applied the law of the place where the injury occurred. ... For a plaintiff injured in a foreign country, then, the presumptive choice in American courts under the traditional rule would have been to apply foreign law to determine the tortfeasor's liability. [...]"
"The object being to avoid application of substantive foreign law [in tort suits against the U.S.], Congress evidently used the modifier "arising in a foreign country' to refer to claims based on foreign harm or injury, the fact that would trigger application of foreign law to determine liability. That object, addressed by the quoted phrase, would obviously have been thwarted, however, by applying the headquarters doctrine, for that doctrine would have displaced the exception by recasting claims of foreign injury as claims not arising in a foreign country because some planning or negligence at domestic headquarters was their cause. And that, in turn, would have resulted in applying foreign law of the place of injury, in accordance with the choice-of-law rule of the headquarters jurisdiction." [2751-52]
The Supreme Court concludes that the FTCA's foreign country exception bars all claims against the U.S. based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred.
The Court then turns to plaintiff's ATCA claim against Sosa. Essentially, the Court finds that the ATCA is merely jurisdictional and does not authorize the plaintiff's substantive right of action for false arrest.
"We think it is correct, then, to assume that the First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations, though we have found no basis to suspect that Congress had any examples in mind beyond those torts corresponding to Blackstone's three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy."
"We assume, too, that no development in the two centuries from the enactment of Section 1350 to the birth of the modern line of cases beginning with Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law; Congress has not in any relevant way amended Section 1350 or limited civil common law power by another statute. ..."
"Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized. This requirement is fatal to Alvarez's claim." [2761-62]
Plaintiff sought support in the Universal Declaration of Human Rights [G.A. Resolution 217(A) (III), U.N. Doc. A/810 (1948)][UDHR] and the International Covenant on Civil and Political Rights [December 19, 1966, 999 U.N.T.S. 171][ICCPR] to argue that his abduction in Mexico was unlawful. The Court, however, is unconvinced.
The UDHR was a United Nations resolution not originally intended to be binding international law. Moreover, the U. S. ratified the ICCPR with the express understanding by the Senate that it was not self-executing, i.e., did not itself create substantive obligations enforceable in the federal courts.
The Court concludes that "[w]hatever may be said for the broad principle Alvarez advances, in the present, imperfect world, it expresses an aspiration that exceeds any binding customary rule having the specificity we require. Creating a private cause of action to further that aspiration would go beyond any residual common law discretion we think it appropriate to exercise. It is enough to hold that a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy." [2769]
Citation: Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 72 U.S.L.W. 4660 (2004).
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