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ALIEN TORT CLAIMS ACT
Eleventh Circuit affirms dismissal of Alien Tort Claims Act suit against Palestine Authority and PLO in case of Israeli citizen murdered while driving within Gaza Strip, and rules that single murders committed by private actors during isolated armed skirmishes do not give rise to ATCA’s international jurisdiction
Ahuva Amergi, an Israeli citizen (Deceased), was shot and killed during a firefight in 2002 while she was simply driving her car in the Gaza Strip. Her estate and her survivors (Plaintiffs) sued the Palestinian Authority (PA) and the Palestine Liberation Organization (PLO) (Defendants) in the U.S. District Court for the Southern District of Florida. The Plaintiffs charged that Deceased died in the course of an armed conflict, and that the district court had subject matter jurisdiction based on the Alien Tort Claims Act (ATCA).
The Complaint alleges that Yaser Mahmud Alkativ, a Commander of the Palestinian Intelligence Services, recruited Muhamad Al Katzir to commit terrorist acts. Alkativ sent a videotape to Katzir describing his assigned terrorist acts. Soon thereafter, Katzir travelled near Kisufim, Israel, armed with an AK‑47 and explosives. There he opened fire on several cars, killing the Deceased. Katzir then died in the ensuing firefight with Israeli Defense Forces.
The district court dismissed the complaint for lack of subject matter jurisdiction on the grounds that ATCA does not apply to random acts of terrorism. The Plaintiffs noted their appeal. The U.S. Court of Appeals for the Eleventh Circuit affirms.
ATCA provides federal jurisdiction for a limited class of international wrongs, e.g. where an alien sues for a tort committed against him or her in violation of the law of nations. In such cases, it provides a U.S. forum for aliens to enforce their international rights. The primary actors in international law matters, however, are sovereign states. In this case, there is no state action and no indication that Deceased’s murder, however wrongful and tragic, did violate the law of nations.
“The [Plaintiffs’] … legal theory is that a killing by private actors in the course of an armed conflict is enough to give rise to subject matter jurisdiction under the ATCA, at least under the facts of this case. … [W]hile they concede that there is no state action, they argue nevertheless that the murder of [Deceased] by the PA and the PLO is sufficiently egregious to constitute an international war crime, thus conferring jurisdiction under ATCA. The Defendants maintain, however, that even a private killing in the course of an armed conflict cannot support subject matter jurisdiction under ATCA. In dismissing, the district court squarely rejected Plaintiffs’ theory. …”
“The first problem that the [Plaintiffs] face in this appeal is that the pleadings and the record do not evince any support for the theory that this single killing took place during the course of an international armed conflict. There is virtually nothing in the Third Amended Complaint (TAC) that pleads the existence of [such] an ongoing armed conflict. … The TAC does not explain whether the conflict was a war, how long it had gone on, who was fighting, what they were fighting for, how the conflict had evolved, or how the tort at issue fit into the larger picture.”
“Quite simply, the TAC fails to establish subject matter jurisdiction under the ATCA. … While the [Plaintiffs] suggest that we may look to facts extrinsic to the complaint to support subject matter jurisdiction …, the problem here is that the record is completely barren of any facts in support of the [Plaintiffs’] second legal theory.” [Slip op. 15‑17]
“As reprehensible as Katzir’s actions were, the result is a single act of murder. The Supreme Court has stated that any proposed cause of action under ATCA must be compared to the three torts contemplated in ATCA as originally passed: [1] offenses against ambassadors, [2] violations of safe conduct, and [3] piracy. Violations of these narrow sets of international norms threaten serious consequences in international affairs. See Sosa v. Alvarez‑Machain, 542 U.S. 692, 715, 725 (2004).”
“The Court is not aware of any case that suggests that a single murder committed by private actors in the course of an armed conflict gives rise to subject matter jurisdiction under ATCA. Otherwise [U.S.] courts would be open to [litigate] effectively every incident of violence in every unstable part of the world.”
The Court also warns of the adverse political consequences if it were to find subject matter jurisdiction. “Were we to assert subject matter jurisdiction in this case and on this barren record, the ‘collateral consequences,’ … could well be great. The issue of international terrorism ‘concerns an area of international law in which… the disagreements concern politically sensitive issues that are especially prominent in the foreign relations problems of the Middle East.’ …”
“Moreover, this case implicates the struggle between Israelis and Palestinians, an issue of U.S. foreign policy that presents numerous diplomatic and political challenges for the White House today, just as it has in years past. … A federal court weighing in on claimed Palestinian war crimes could add to the complexity, and could potentially undermine American objectives in the region. …”
“We do not point out these collateral concerns to say that the federal courts should simply decline to hear cases involving politically sensitive matters of international law. … In fact, there can be little doubt that ATCA permits federal courts to assert jurisdiction over hot‑button matters of international law. …”
“Rather, we raise these issues, at the direction of the Supreme Court, to underscore the real‑world consequences that can accompany federal judicial participation in matters of international concern. In an ATCA case such as this one, these foreign policy concerns weigh in the balance, and provide further support for our holding that, on this factual record, the district court lacked subject matter jurisdiction to hear this case.” [Slip op. 30‑31].
Citation: Estate of Ahuva Amergi, Amergi v. The Palestine Authority, 611 F.3d 1350 (11th Cir. 2010).
Filed in: 2010 International Law Update, Issue 9
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ALIEN TORT CLAIMS ACT
In case involving alleged torture and murder of Colombian trade union leaders by paramilitary and police, Eleventh Circuit finds lack of subject matter jurisdiction under ATCA and failure to state claim upon which relief can be granted for TVPA claims where Colombian government merely tolerated paramilitary actors and complaint failed to adequately allege conspiracy between police and trade unionists’ employers
The Complaint alleges that the Colombian bottling companies that employed the Plaintiffs collaborated with Colombian paramilitary forces and Colombian police to murder and torture Plaintiffs, many of whom are trade union leaders. Plaintiffs also sued the Coca‑Cola Company and its Colombian subsidiary Coca‑Col0a de Colombia, S.A. (the Coca‑Cola Defendants). Plaintiffs sued in a Florida federal court, alleging the systematic intimidation, kidnapping, detention, torture and murder of Colombian trade unionists by paramilitary forces working as Defendants’ agents. After the Defendants jointly moved to dismiss the complaint under Civil Rule 12(b)(1) for lack of subject matter jurisdiction, the Plaintiffs amended their complaint by filing four separate complaints (the Gil case, the Galvis case, the Leal case and the Garcia case).
The Gil case involved a bottling factory run by Bebidas y Alimentos de Urabá and its owner, Richard Kirby (the Bebidas Defendants). The other three cases implicate separate bottling factories operated by Panamco Colombia and its owners, Panamerican Beverages Company, LLC and Panamco, LLC (the Panamco Defendants).
The District Court held that it lacked subject matter jurisdiction over the ATCA and TVPA claims against the Coca‑Cola Defendants in the Gil case. The bottler’s agreement between The Coca‑Cola Defendants and the Bebidas Defendants lacked the requisite control for the Coca‑Cola Defendants to be answerable for the acts of Bebidas or its employees.
In a separate opinion, the District Court found that each of the four complaints failed to plead factual allegations sufficient to invoke the court’s subject matter jurisdiction under the ATCA and the TVPA. This appeal resulted.
The U.S. Court of Appeals for the Eleventh Circuit affirms. The Court upholds the jurisdictional dismissal of the ATCA claims. It vacates the dismissal of the TVPA claims, however, for lack of subject matter jurisdiction. It instructs the District Court instead to dismiss the TVPA claims for failure to state a claim.
“Plaintiffs contend [that] Colombia has experienced pervasive civil unrest. This stems from a longstanding civil war involving armed leftist groups on one side and the Colombian military, as well as right‑wing paramilitaries, on the other. Since 1986, when the largest trade union confederation in Colombia was formed, over 4,000 trade unionists have been murdered. Plaintiffs describe the violent persecution of trade unionists in Colombia as reaching ‘epidemic proportions’ for many years. Plaintiffs also contend they lack an access to an independent or functioning legal system in Colombia, because they suggest the country is not governed by the rule of law. …”
It is not alleged “[that] any defendant caused or precipitated the violence; rather, Defendants are accused of capitalizing on the hostile environment and conspiring with paramilitaries – or the local police in the case of Garcia – to rid their respective bottling facilities of unions.”
“Plaintiffs each brought claims under the ATCA and TVPA. … Federal subject matter jurisdiction exists for an ATCA claim when the following three elements are satisfied: (1) an alien (2) sues for a tort (3) committed in violation of the law of nations. … In this case, as in most ATCA cases, the only issue is whether Plaintiffs have satisfactorily pled a violation of the law of nations [or a U.S. treaty].. See [Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995)].”
TVPA claims require the following three elements: (1) an individual (2) committed torture or extrajudicial killing (3) under the actual or apparent authority, or color of law, of any foreign nation. 28 U.S.C. § 1350 note § 2(a). Failure to plead any of the elements of a TVPA claim results in a failure to state a claim upon which relief can be granted …” ‘[D]efects in pleading claims under the [TVPA] are not jurisdictional defects[, rather t]hese pleading issues involve stating claims on which relief can be granted…. not a lack of subject matter jurisdiction.”
“ATCA claims generally require allegations of state action because the law of nations are the rules of conduct that govern the affairs of a nation, acting in its national capacity, in relations with another nation, … TVPA claims, by statutory definition, always require allegations of ‘actual or apparent authority, or color of law.’ … ‘State‑sponsored torture, unlike torture by private actors, likely violates international law and is therefore actionable under the Alien Tort [Claims] Act.’ …” [Slip op. 20‑22]
To establish A2TCA subject matter jurisdiction, the complaint must sufficiently plead either [1] that state actors committed the wrongful acts or [2] the culprits were sufficiently connected to the government as to be acting under color of law and [3] that the defendant(s) or their agents, conspired with the state actors, or those acting under color of law, in carrying out the tortious acts. The District Court ruled that the allegations in the Gil, Galvis and Leal cases did not sufficiently show that the Colombian paramilitary had committed the torture and murder under color of law. In its view, official toleration of the misdeeds of private security forces does not transform their actions into state acts.
In the absence of state action, plaintiffs can plead valid ATCA claims for torture and murder carried out in the course of committing war crimes. Plaintiffs argue that the use of open violence to suppress the unions took place as a result of a raging civil war. The Circuit Court rejects the Plaintiffs’ arguments; the mere occurrence of the acts during an armed civil conflict is not enough to establish an ATCA claim. The Court therefore affirms the District Court’s dismissal of the Gil, Galvis and Leal cases for lack of subject matter jurisdiction.
As to the ATCA claim in the Garcia case, it did involve the actions of the local police rather than paramilitary forces. The Court, however, finds that the District Court did not err in dismissing this complaint for lack of subject matter jurisdiction, because the Complaint failed to sufficiently establish a conspiracy. For instance, the Garcia complaint alleged that the local police had arrested, detained and mistreated local union leaders because of false accusations by the bottling plant’s chief of security that he had found a bomb. Although Plaintiffs had alleged that the police acted because either the Security Chief arranged for payment or that the police had a shared purpose, the attenuated chain of conspiracy fails to render the conceivable claims plausible.
The Court further notes that there was no allegation that the treatment received by the Plaintiffs fell within the scope of the conspiracy. Plaintiffs also failed to allege that a single illegal detention of less than a day, followed by transfer of custody to lawful authorities, violated the norms of customary international law.
The Court vacates the District Court’s dismissal of the TVPA claims. The district court incorrectly determined that the TVPA claims lacked subject matter jurisdiction because subject matter jurisdiction was lacking for the ATCA claims. The Court concludes that 28 U.S.C. § 1331 does confer subject matter jurisdiction over TVPA claims. Thus the correct ruling would have been to dismiss the TVPA claims for failure to state a viable claim under Rule 12(b)(6).
“To survive a motion to dismiss for failure to state a claim upon which relief can be granted on the TVPA claims, Plaintiffs must sufficiently allege (1) the paramilitaries were state actors or were sufficiently connected to the Colombian government so they were acting under color of law and (2) the Defendants, or their agents, conspired with the state actors, or those acting under color of law, in carrying out the state‑sponsored torture. Plaintiffs failed to do so.” [Slip op. 32‑33]
Citation: Sinaltrainal v. Coca‑Cola Company, No. 06‑15851 (11th Cir. August 11, 2009).
Filed in: 2009 International Law Update, Issue 9
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ALIEN TORT CLAIMS ACT
In ATCA action against Boeing subsidiary company by terrorism suspects who were allegedly abducted and flown to Morocco at behest of U.S. Central Intelligence Agency (CIA), Ninth Circuit reverses dismissal of complaint based on State Secret doctrine because pleadings alone fail to show that this lawsuit necessarily has to involve such material
The Plaintiffs alleged in their lawsuit that the U.S. Central Intelligence Agency (CIA) ran an “extraordinary rendition program” to seize suspected foreign terrorists and to transfer them to other countries for detention and often harsh interrogation by U.S. or foreign officials. This program has allegedly allowed U.S. officials indirectly to use severe interrogation methods that U.S. and international law forbid.
For example, some authority arrested Plaintiff Mohamed, an Ethiopian citizen and resident of the United Kingdom, in Pakistan, and shifted him off to Morocco. There he claimed that Moroccan officials tortured him; they allegedly broke his bones and cut his entire body with a scalpel. Eighteen months later the Moroccans transferred him to American custody. Eventually, he ended up at Guantanamo Bay, where he spent almost five years in custody.
Plaintiffs sued Jeppesen Dataplan, Inc.(Defendant), a subsidiary of the Boeing Company, based on the Alien Tort Claims Act, 28 U.S.C. Section 1350 (ATCA). They allege that Defendant played a crucial role in the Plaintiffs’ abductions and detentions by arranging the airplane flights and providing logistical support. The U.S. intervened in the case, however, and asserted a State Secrets privilege.
The district court agreed and dismissed the case. In particular it held that “The invocation of states secret privilege is a categorical bar to a lawsuit under the following circumstances: (1) if the very subject matter of the action is a state secret; (2) if the invocation of the privilege deprives a plaintiff of evidence necessary to prove a prima facie case; and (3) if the invocation of the privilege deprives a defendant of information necessary to raise a valid defense.”
“Moreover, ‘at the core of Plaintiffs’ case against Defendant Jeppesen are ‘allegations’ of covert U.S. military or CIA operations in foreign countries against foreign nationals clearly a subject matter which is a state secret.’ Holding that ‘the very subject matter of this case is a state secret,’ the district court expressly declined to reach whether invocation of the privilege would deprive Plaintiffs of evidence necessary to establish a prima facie case or Jeppesen of evidence necessary to mount a valid defense.” [999‑1000].
Plaintiffs noted a timely appeal, arguing that the district court misapplied the state secrets doctrine. The U.S. Court of Appeals for the Ninth Circuit agrees and reverses and remands the case.
The Court finds that this case does not involve a state secret because it is not predicated on the existence of a secret agreement between Plaintiffs and the Executive. Also, the Court’s limited inquiry under Federal Rule of Civil Procedure 12(b)(6) assesses the sufficiency of the complaint as pled and precludes the prospective consideration of hypothetical evidence.
“Two parallel strands of the state secrets doctrine have emerged from its relatively thin history. Totten v. United States, 92 U.S. 105 (1875), perhaps the earliest case to turn on state secrets in any posture, stands for the proposition that an American court must dismiss a suit on the pleadings showing that it is predicated on the existence and content of a secret espionage agreement between a plaintiff and the U.S. government because the ‘very subject matter’ of the suit is secret.
In that case, William Lloyd’s estate sued the U.S. government to recover compensation for contractual services that Lloyd had allegedly rendered as a Northern spy during the Civil War. … The estate claimed that Lloyd had performed on the contract, but failed to receive full payment for his services. “[Upholding the dismissal of ] the case on the pleadings, the U.S. Supreme Court observed that the secrecy of the parties’ relationship was a ‘condition of the engagement’ and ‘[b]oth employer and agent must have understood that the lips of the other were to be for ever sealed respecting the relation of either to the matter.’ Id.”
“This condition of secrecy, the Court reasoned, is ‘implied in all secret employments of the government in time of war, or upon matters affecting our foreign relations.’ Id. ‘The publicity produced by an action’ to enforce the conditions of any such agreement, moreover, ‘would itself be a breach of a contract of that kind, and thus defeat a recovery.’ Id. Because ‘the existence of a contract of that kind is itself a fact not to be disclosed,’ id. at 107, ‘the very subject matter of the action … [is] a matter of state secret,’ and the action must therefore be ‘dismissed on the pleadings without ever reaching the question of evidence,’ citing Totten.”
“In contrast with the Totten bar, [in United States v. Reynolds, 345 U.S. 1, 11 n. 26 (1953) involving the crash of a military aircraft bearing secret equipment near Norcross, Georgia] the evidentiary privilege upheld prevents only discovery of secret evidence when disclosure would threaten national security. See Reynolds, supra at 1. Application of the Reynolds privilege involves a ‘formula of compromise’ in which the court must weigh ‘the circumstances of the case’ and the interests of the plaintiff against the ‘danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.’ Id. at 9‑10.”
“While the court should ‘defer to the Executive on matters of foreign policy and national security’ in making this determination, … ‘[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers,’ Reynolds, supra at 9‑10. The court must therefore undertake an independent evaluation of the claim of privilege to ensure the privilege properly applies. Once the court determines a claim of privilege is legitimate, however, ‘even the most compelling [personal] necessity cannot overcome’ it. Reynolds, supra at 11.”
“Successful invocation of the Reynolds privilege does not necessarily require dismissal of the entire suit. Instead, invocation of the privilege requires ”simply that the evidence is unavailable, as though a witness had died [or a document had been destroyed], and the case will proceed accordingly, with no consequences save those resulting from the loss of [that] evidence.” … Within the Reynolds framework, the ‘litigation can proceed,’ therefore, so long as (1) ‘the plaintiffs can prove ‘the essential facts’ of their claims `without resort to [privileged evidence],” id. …, and (2) invocation of the privilege does not deprive ‘the defendant of information that would otherwise give the defendant a valid defense,’ …” [1000‑01]
Further, the Court notes that the Reynolds framework takes separation‑of‑powers concerns into account. It does uphold the President’s secrecy interests, but does not completely immunize the CIA or similar organizations from judicial scrutiny. Principles such as the Separation of Powers and Judicial Review suggest a narrow construction of the blunt Totten doctrine, and a broad construction of the more flexible Reynolds privilege. Therefore, if a lawsuit is not predicated on the existence of a secret agreement between a plaintiff and the government, Totten does not apply, thus the subject matter of this lawsuit as such is not a state secret.
Finally, the Government argues that Plaintiffs cannot possibly prove their case without introducing privileged evidence. The Court can neither agree or disagrees. There is no way an appellate court can prospectively evaluate hypothetical, future claims of privilege that no party has raised and the district court has not considered.
Citation: Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 996 (9th Cir. 2009).
Filed in: 2009 International Law Update, Issue 4
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ALIEN TORT CLAIMS ACT
In case of naturalized American Citizen, formerly high ranking military official during Salvadoran military dictatorship who injured Plaintiffs, charged with crimes under Alien Tort Claims Act and Torture Victims Protection Act, Sixth Circuit holds that circumstances in El Salvador gave court discretion to equitably toll ten‑year statute of limitations and that, as resident American citizen, El Salvadoran Amnesty law did not shelter Defendant from civil liability under U.S. law
On December 10, 2003, several victimized Salvadoran citizens (Plaintiffs) filed suit against Nicholas Carranza (Defendant), a naturalized American citizen since 1991, in federal court. The complaint charged Defendant with acts of torture, extrajudicial killing, and crimes against humanity in violation of the Alien Tort Claims Act (ATCA) and the Torture Victims Protection Act (TVPA).
A jury found Defendant liable and awarded $500,000 in compensatory damages and $1 million in punitives to all but one of the Plaintiffs. Defendant appealed to the U.S. Court of Appeals for the Sixth Circuit. He contended (1) that the district court erred in equitably tolling the U.S. statute of limitations and (2) that the Salvadoran Amnesty Law passed in March 1993 barred the Plaintiffs’ claim. The Sixth Circuit affirms.
The TVPA is subject to a ten year statute of limitations. Although the ATCA does not specify a statute of limitations, the Sixth Circuit and several other Courts have applied the TVPA’s statute of limitations to the ATCA. The TVPA “calls for consideration of all equitable tolling principles in calculating this [statute of limitations] period with a view towards giving justice to plaintiff’s rights.” S. REP. NO. 102‑249, at 10 (1991).
Equitable tolling applies to TVPA and ATCA claims where extraordinary circumstances justify its application. The Court held that “When the situation in a given country precludes the administration of justice, fairness may require equitable tolling. In such limited circumstances, where plaintiffs legitimately fear reprisals against themselves or family members from the regime in power, justice may require tolling.” [Slip Op. 6] The Court cites a long list of cases to support this principle.
Defendant disputes that the former situation in El Salvador justifies equitable tolling. Reviewing the lower court’s decision for abuse of discretion, the Court found enough evidence in the record showing Plaintiffs’ fear of reprisal to justify tolling the statute until March 1994. It found that the violence associated with the civil war continued after its formal end in 1992.
As his alternative point, Defendant argues that Salvadoran Amnesty Law (SAL) should have barred the claims since it provides for amnesty for those who took part in political or common crimes during the civil war before 1992. The Circuit Court disagrees. It holds that the SAL was not extraterritorial in application.
“International comity is ‘the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or other persons who are under the protection of its laws.’ Hilton v. Guyot, 159 U.S. 113, 164 (1895). In order for an issue of comity to arise, there must be an actual conflict between the foreign law and the law of the forum. Hartford Fire Ins. Co. v. Cal., 509 U.S. 764, 798 (1993). There is no conflict for comity purposes ‘where a person subject to regulation by two states can comply with the laws of both.’ Id. at 799 (quoting RESTATEMENT (THIRD) FOREIGN RELATIONS LAW § 403 cmt. e (1987)).”
“There is no conflict between domestic and foreign law because the [SAL] cannot be interpreted to apply extraterritorially. A statute must not be interpreted as having extraterritorial effect without a clear indication that it was intended to apply outside the country enacting it. BMW Stores, Inc. v. Peugeot Motors of Am., Inc., 860 F.2d 212, 215 n.1 (6th Cir. 1988). There is nothing in the [SAL] to suggest that it should apply or was intended to apply outside of El Salvador.”
“Moreover, compliance with both domestic law and the [SAL] is possible. Plaintiffs may be barred from filing suit in El Salvador, but they are not barred from filing suit in the United States. Likewise, if Defendant were living in El Salvador, he would likely be immune from suit. However, he is a citizen and resident of the United States and is therefore subject to civil liability for his violations of the ATCA and TVPA. In addition, the Republic of El Salvador, as amicus, argues that this case would be rejected if it were brought in El Salvador – further demonstrating that Salvadoran courts can apply the [SAL] domestically without undermining the jurisdiction of United States courts.” (Slip op. 4)
Citation: Chavez v. Carranza, 559 F.3d 486 (6th Cir. 2009).
Filed in: 2009 International Law Update, Issue 2
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As matter of first impression in Ninth Circuit, in long‑pending class action against mining company in Papua New Guinea charging, inter alia, crimes against humanity, starvation and slavery, court plurality holds that district courts should decide in Alien Tort Claims Act cases preliminary issue of whether Plaintiffs should have and did exhaust available local remedies
The following class action has been pending since November 2000. See 2007 International Law Update 66. Native residents of Bougainville, Papua New Guinea (PNG) (Plaintiffs) brought a class action against the mining company Rio Tinto, PLC (Defendant), and other parties, based on the Alien Tort Claims Act (ATCA), a 1789 Act of Congress. They alleged that they suffered serious damages because of war crimes, crimes against humanity, racial discrimination, and environmental torts. Bougainville is the largest of the Solomon Islands in the South Pacific, near the main island of PNG. It is rich in copper, gold and other minerals.
Defendant is part of a large international mining group – with links to Australia and the U.K. – that began operating on Bougainville beginning in the 1960s. With Government support, Defendant allegedly displaced entire villages, razed large tracts of rain forest, polluted the environment, and treated local workers like slaves. In 1988 a peasant revolt took place that led to the closure of the mine, and the dispute eventually grew into a civil war. It is alleged that, to prevent Defendant from investing and operating elsewhere, the government mounted a blockade that prevented medical and other necessities from reaching the rebels for almost 10 years ending in March 2002. The complaint in this case describes Defendant as the instigator. The violence is said to have caused the deaths of about 15,000 local citizens, including children.
The district court found that there were cognizable ATCA claims, but dismissed the matter because of its non‑justiciable political questions. Then the U.S. Supreme Court decided Sosa v. Alvarez‑Machain, 542 U.S. 692 ( 2004); it clarified that the ATCA is a jurisdictional statute, but also indicated federal courts may impose a preliminary exhaustion requirement in a proper ATCA case.
The ATCA grants U.S. courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. Section 1350. The ATCA itself does not expressly require an exhaustion of local remedies, but the Supreme Court suggested that the lower courts should invoke an exhaustion requirement when appropriate. See Sosa, supra, at 733 n. 21.
On appeal to the Ninth Circuit, a majority upheld the dismissal on political question grounds. Most important for the present case, the panel majority held that the ATCA does not require exhaustion of local remedies. The whole Court then decided to rehear the matter en banc.
In its eleven judge en banc opinions, six judges of the U.S. Court of Appeals for the Ninth Circuit agreed to focus the appeal on issues of exhaustion under the ATCA.
The Court summarizes its holdings as follows. “Although we decline to impose an absolute requirement of exhaustion in ATCA cases, we conclude that, as a threshold matter, certain ATCA claims are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law. Where the ‘nexus’ to the United States is weak, courts should carefully consider the question of exhaustion, particularly – but not exclusively – with respect to claims that do not involve matters of ‘universal concern.’ Matters of ‘universal concern’ are offenses ‘for which a state has jurisdiction to punish without regard to territoriality or the nationality of the offenders.’ Kadic v. Karadzic, 70 F.3d 232, 240 (2d Cir. 1995) (citing Restatement (Third) Foreign Relations Law of the United States Section 404 (1987) (‘Restatement ’).” [Slip Op. 1]
The district courts should treat exhaustion as a prudential principle. It is not a pre‑requisite to the exercise of jurisdiction, but rather governs the timing of federal court action. Under international law, one state usually does not consider a claim by another state for an injury to its national until that person has exhausted available domestic remedies. Sovereigns are co‑equal, and one sovereign can exercise power over another only through consent.
The Court then proceeds to develop a framework for evaluating the appropriateness of requiring exhaustion. “To begin, exhaustion under the ATCA should be approached consistently with exhaustion principles in other domestic contexts. The defendant bears the burden to plead and justify an exhaustion requirement, including the availability of local remedies. …. Although the plaintiff may rebut this showing with a demonstration of the futility of exhaustion, the ultimate burden remains with the defendant. See, e.g., Honig v. Doe, 484 U.S. 305, 325‑29 (1988) (allowing plaintiffs to by‑pass administrative process where exhaustion would be futile or inadequate). This same burden‑shifting analysis is invoked under the TVPA:”
“[O]nce the defendant makes a showing of remedies abroad which have not been exhausted, the burden shifts to the plaintiff to rebut by showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile. The ultimate burden of proof and persuasion on the issue of exhaustion of remedies, however, lies with the defendant. S.Rep. No. 102‑249, at 9 (1991) … While the Torture Victim Protection Act (TVPA) [which does have an exhaustion clause] is not dispositive of the question of whether exhaustion is required by the ATCA, the TVPA nonetheless provides a useful, congressionally‑crafted template to guide our adoption of an exhaustion principle for the ATCA. ….”
“As a preliminary matter, to ‘exhaust,’ it is not sufficient that a plaintiff merely initiate a suit, but rather, the plaintiff must obtain a final decision of the highest court in the hierarchy of courts in the legal system at issue, or show that the state of the law or availability of remedies would make further appeal futile. …. Another basic element is that the remedy must be available, effective, and not futile.” Restatement Sections 703 cmt. d, 713 cmt. f …”
“To measure effectiveness, a court must look at the circumstances surrounding the access to a remedy and the ultimate utility of the remedy to the petitioner. Restatement Sections 703 cmt. d, 713 cmt. f. In addition, ‘[w]hen a person has obtained a favorable decision in a domestic court, but that decision has not been complied with, no further remedies need be exhausted.’ Id. Section 713 cmt. f. A judgment that cannot be enforced is an incomplete, and thus ineffective, remedy. The adequacy determination will also necessarily include an assessment of any delay in the delivery of a decision. …” [832] A bare plurality of six judges agree that the Court remand for the limited purpose of determining whether the Plaintiffs should first exhaust local remedies in an ATCA case.
Two concurring judges interpret the ATCA itself to require exhaustion of local remedies, and not just as a matter of judicial prudence. Two dissenting judges would affirm the dismissal of the case because U.S. courts lack subject matter jurisdiction since this case does not directly concern U.S. territory or the rights of U.S. citizens. A federal court has discretion to choose among the threshold grounds for dismissing a case, and the district court here did not have to consider exhaustion before dismissing on Political Question grounds.
Four other dissenting judges opine that neither the Supreme Court nor any Circuit Court have ever applied an exhaustion requirement to an ATCA case. Congress did not include an exhaustion requirement in the statute. The Supreme Court did not suggest that courts apply such a requirement, and there is nothing that would make this “an appropriate case” to consider doing so.
Citation: Sarei v. Rio Tinto PLC, 550 F.3d 822 (9th Cir. 2008).
Filed in: 2008 International Law Update, Issue 12
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In Plaintiffs’ appeal of suit against Colombian mining subsidiary of U.S. company which allegedly hired paramilitaries to torture and kill members of mining union, Eleventh Circuit rules that ATCA grants jurisdiction over Plaintiffs’ claims against corporation for violating law of nations; federal question statute provides for jurisdiction over Plaintiffs’ TVPA claims and supplemental jurisdiction statute provides jurisdiction over Plaintiffs’ claims under state law and Colombian law
This lawsuit alleges that executives of Drummond, Ltd., (Defendant) the Colombian subsidiary of an Alabama coal mining company, instigated paramilitary operatives to torture and kill members of a trade union. The Colombian workers union SINTRAMIENERGETICA and several affiliated persons (Plaintiffs) sued Drummond and related parties under the Alien Tort Claims Act. 28 U.S.C. Section 1350 (ATCA), and the Torture Victims Protection Act of 1991, 106 Stat. 73, codified at 28 U.S.C. 1350, note (TVPA). In particular, Plaintiff claimed that the President of Defendant, Augusto Jimenez, hired paramilitary forces to torture specific union leaders, in violation of Colombian law, Alabama law, and the TVPA.
The ATCA grants federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. Section 1350. The TVPA establishes a separate cause of action for victims of torture and extrajudicial killings. 28 U.S.C. Section 1350, note Section 2(a).
Eventually, a jury found for Defendant. This appeal ensued, with the Plaintiffs challenging partial summary judgment, as well as discovery and evidentiary rulings. Defendant challenges the subject‑matter jurisdiction of the district court. The U.S. Court of Appeals for the Eleventh Circuit affirms.
Defendant presents various arguments to challenge the court’s jurisdiction: (1) that the TVPA and the ATCA do not permit lawsuits against corporations; (2) that these Acts do not provide for claims of aiding and abetting in prohibited acts; and (3) that the TVPA provides the exclusive cause of action for extrajudicial killings in violation of international law.
The Court disagrees. Issues under the TVPA are not jurisdictional, and precedent contradicts the ATCA arguments. The Court then proceeds to explain the relationship between the two statutes.
“The two related statutes that pertain to this appeal perform complementary but distinct roles. The [ATCA] is jurisdictional and does not create an independent cause of action. See Sosa v. Alvarez‑Machain, 542 U.S. 692, 724 (2004). In contrast, the [TVPA] provides a cause of action for torture and extrajudicial killing but does not grant jurisdiction. 28 U.S.C. Section 1350, note, Section 2(a). Federal courts are empowered to entertain [TVPA] complaints when either the [ATCA] or the [general] federal question statute, 28 U.S.C. Section 1331, provides jurisdiction.”
“This distinction between the [ATCA] and the [TVPA] gives rise to a general rule regarding claims under the latter Act: when either the [ATCA] or federal question statute provides jurisdiction, defects in pleading claims under the [TVPA] are not jurisdictional defects. These pleading issues involve stating claims on which relief can be granted and should be raised in motions filed under Fed. R. Civ. Pro. 12(b)(6).”
“The [ATCA] provides jurisdiction over the plaintiffs’ claims for violations of the law of nations; the federal question statute provides jurisdiction over their claims under the [TVPA] and the supplemental jurisdiction statute provides jurisdiction over their claims under state law and Colombian law. 28 U.S.C. Section 1367.” [Slip op. 5].
Thus, the question of corporate liability under the [TVPA] seems more substantive and does not go to federal court jurisdiction. Moreover, the [TVPA] does allow lawsuits against corporate defendants. See Aldana v. Del Monte Fresh Produce, Inc., 416 F.3d 1242 (11th Cir. 2005). However, the Court discusses corporate liability under the [TVPA] which is jurisdictional. The Statute itself does not provide for an exception for corporations. The Eleventh Circuit has ruled that the [TVPA] grants jurisdiction for torture complaints against corporate defendants. Aldana, supra, at 1242.
“[T]he law of this Circuit permits a plaintiff to plead a theory of aiding and abetting liability under the [ATCA] and the [TVPA]. Cabello v. Fernandez‑Larios, 402 F.3d 1148, 1157‑58 (11th Cir. 2005) … We based our decision in Cabello on the text of the statutes, the decisions of two sister circuits, Hilao v. Estate of Marcos, 103 F.3d 767, 776‑77 (9th Cir. 1996), and Carmichael v. United Technologies Corp., 835 F.2d 109, 113‑14 (5th Cir. 1988), and the legislative history of the [TVPA] … We are bound by our decision in Cabello.”
“[T]he law of this Circuit suggests that the [TVPA] is not the exclusive cause of action for claims of extrajudicial killing. In Aldana, we held that ‘a plaintiff may bring distinct claims for torture under each statute,’ supra at 1250, and the analysis that supported that conclusion supports the same conclusion for claims of extrajudicial killing. In Aldana, we stated that the statutory texts permit plaintiffs to seek relief for claims of torture under both statutes because both define torture and ‘each statute provides a means to recover for torture as that term separately draws its meaning from each statute.’ Id.”
“The same is true for extrajudicial killing, which is actionable under the [ATCA] if it is ‘committed in violation of the law of nations,’ 28 U.S.C. Section 1350, and under the [TVPA] as that Act expressly defines it, 28 U.S.C. Section 1350, note Section 3(a). For the same reason that we held in Aldana that the [TVPA] does not provide the exclusive remedy for claims of torture, we decline to read the [TVPA] as providing the exclusive remedy for claims of extrajudicial killing.” [Slip op. 6].
Finally, the Court holds that Plaintiffs failed to satisfy the state action requirement of the [TVPA]. Moreover, the district court did not abuse its discretion in refusing to exercise supplemental jurisdiction over Plaintiffs’ wrongful death claim under Colombian law.\
Citation: Romero v. Drummond Co., Inc., 552 F.3d 1303 (11th Cir. 2008).
Filed in: 2008 International Law Update, Issue 12
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In case by West African plantation workers charging pesticide makers and users with genocide, crimes against humanity and racial discrimination under Alien Tort Claims Act (ATCA), Ninth Circuit finds that current state of U.S. and international law does not support such claims
Dole Food Company, Inc. entered into an agreement with Societe d’Etat pour le Developpement de la Production des Fruitieres et Legumes (Sodefel), an entity of the Ivory Coast government. It allegedly called for Sodefel, which owned and operated the plantations, to grow fruit according to Dole Food’s specifications; these included the use of DBCP produced by Dow Chemical Company, Shell Oil Company or AMVAC Chemical Corporation (collectively Defendants).
Akebo Abagninin, and other African nationals who have worked on Ivory Coast plantations (Plaintiffs), sued the Defendants in a California federal court. Plaintiffs allege that exposure to DBCP caused male sterility and low sperm counts and that Defendant AMVAC had been aware of these risks since the 1950s. The Plaintiffs’ alleged the Defendants’ commission of genocide and Crimes against Humanity under the Alien Tort Claims Act (ATCA), 28 U.S.C. Section 1350.2. Plaintiffs’ also claimed racial discrimination and unlawful distribution of pesticides.
Defendant Dow Chemical, joined by AMVAC, moved for judgment on the pleadings. The district court then dismissed the Plaintiffs’ claims for genocide and unlawful distribution of pesticides for failing to allege a violation of applicable norms of international law. The court determined that genocide required a specific intent to destroy a particular racial or other identifiable group of victims. The court rejected Plaintiffs’ argument that the Rome Statute of the International Criminal Court required only knowledge of the effects of DBCP, because the statute did not constitute a norm of international law under ATCA. The district court dismissed the remaining claims for failure to allege a State or organizational policy to injure civilians.
Plaintiffs next filed an amended complaint alleging Crimes against Humanity and racial discrimination under the ATCA. Dow Chemical joined by AMVAC moved to dismiss. The district court found that Plaintiffs had failed to sufficiently allege a State or organizational policy to sterilize Plaintiffs and dismissed the case with prejudice.
When Plaintiffs appealed these rulings to the Ninth Circuit, it affirms. The Court finds that Plaintiffs failed to sufficiently allege violations of applicable norms of international law, either with regard to [1] the specific intent necessary to sustain a claim of genocide or [2] the presence of a State or organizational policy necessary to state a claim of Crimes against Humanity.
The Court explains that all claims under the ATCA must be “committed in violation of the law of nations or a treaty of the United States.”� It construes the phrase “law of nations”� narrowly to include only those “norms of international character accepted by the civilized world.”� The Court, however, does decline to limit such claims to universal violations of international law, such as piracy. The Court recognizes the need to avoid creating new violations of international law and the need to consider the practical consequences of making such claims generally available.
As to the Plaintiffs’ genocide claim, the Circuit Court focuses its analysis on the international norms issue. The U.S. has not ratified the Rome Statute that the Plaintiffs identify as lowering the standard for genocide to mere knowledge that its actions would have a genocidal effect. This precludes any jurisdictional basis under the “treaty”� language of the ATCA.
The Court also determines that the Rome Statute lacks the status of a “norm of international character”� and could not therefore provide the basis for a new standard of liability on the genocide claim. While the Court recognizes that many nations have ratified the new standard, the court is not convinced that the standard has reached the level of definiteness and acceptance contemplated by the ATCA. Therefore, absent an allegation of specific intent to destroy an identifiable group of people, it was proper to dismiss the genocide claim.
As to the claims of Crimes against Humanity, the Circuit Court agrees with the district court that neither AMVAC, nor the governmental entity, Sodefel, had violated a norm of international law; neither one had acted pursuant to a “State or organizational policy”� to attack civilians.
In upholding the dismissal of the ATCA claim for Crimes against Humanity against AMVAC, the Court rejects the Plaintiffs’ claims that AMVAC, as a business organization, used DBCP under an “organizational policy”� to injure or kill civilians. The Court does recognize some modification of the ATCA requirements to include certain non state actors. The Court does not agree with Plaintiffs, however, that international law has relaxed the requirement to the extent of including a business organization like AMVAC.
“The traditional conception regarding crimes against humanity was that a policy must be present and must be that of a State, as was the case in Nazi Germany. [Cite]. This conception was expanded to include non State entities which, although not a part of the legitimate government, have de facto control over a defined territory [...] De facto control thus requires control analogous to that of a State or government, such as erecting checkpoints on main roads, examples of exercising command and control, developing civilian structures, and holding a substantial percentage of territory. [Cite].”� [Slip Op. 15]
As to the ATCA claim for Crimes against Humanity against Sodefel, the Circuit Court does not find that Sodefel acted pursuant to a State or organizational policy as defined by customary international law. Although Sodefel is an agency of the Ivory Coast government, its actions fell short of satisfying the “state action”� requirement. The simple charge of buying DBCP for use on plantations failed to allege a state or organizational policy to “sterilize the plantation workers,”� that would support a claim for Crimes against Humanity.
Citation: Abagninin v. AMVAC Chemical Corporation, 2008 WL 4330544; No. 07 56326 (9th Cir., 2008).
Filed in: 2008 International Law Update, Issue8
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Second Circuit affirms dismissal of case brought by Vietnamese Plaintiffs allegedly injured by U.S. use of Agent Orange and other defoliants during Vietnam War, deciding (1) that there is no universally accepted customary international norm against use of herbicides in war, and (2) that injunctive relief is inappropriate since U.S. court lacks jurisdiction over affected Vietnamese territory
Plaintiffs are (1) a class of Vietnamese nationals suing on behalf of themselves and all others similarly situated for injuries allegedly sustained by their exposure to Agent Orange (AO) and other herbicides used by the U.S. military during the Vietnam War. Plaintiffs also include (2) the Vietnamese Association for Victims of Agent Orange (VAVAO), a Vietnamese non profit, non governmental organization representing persons who were exposed to AO. Its purpose is to protect the interests of its members and to raise funds for their care and treatment. Defendants are U.S. companies who manufactured the chemicals and supplied them to the U.S. government.
U.S. forces were using AO in the Vietnam War in order to clear off large swaths of jungle and dense forest, so as to protect U.S. troops against ambushes. The military applied the herbicides by an aerial spray; the military claims that they tried hard to spray only military targets in places remote from civilian centers.
During the conflict, the U.S. government thought that the pace of AO production was not enough to meet its projected needs. Acting under the Defense Production Act of 1950 (DPA), it decided to compel Defendants to prioritize AO production. DPA Section 101 authorized the President to “require that performance under contracts or orders . . . which he deems necessary or appropriate to promote the national defense shall take priority over performance under any other contract or order, and, for the purpose of assuring such priority, to require acceptance and performance of such contracts or orders in preference to other contracts or orders.”� He in effect commandeered all of the corporate Defendants’ capacity to produce AO.
In 1966, a government study uncovered evidence that exposure to AO was causing health problems and the U.S. stopped using AO in 1970. After the war, however, both American military personnel and Vietnamese citizens began to report health defects, allegedly caused by exposure to AO and other herbicides. Plaintiffs’ allege, such injuries included, inter alia, miscarriages, birth defects, breast cancer, ovarian tumors, lung cancer, Hodgkin’s Disease, and prostate tumors.
The Plaintiffs’ complaint charged (1) that the U.S. use of AO violated international, domestic, and Vietnamese law and (2) that Defendants either aided and abetted these violations or committed independent violations by fulfilling the military’s demand for herbicides. With respect to their claims arising under international law, Plaintiffs alleged that Defendants’ actions constituted torts under the “law of nations”� that were actionable under the Alien Tort Claims Act, 28 U.S.C. Section 1350 (ATCA); these wrongs included war crimes, genocide, crimes against humanity, and torture.
Their complaint also included various claims arising under U.S. and New York law and the internal tort law of Vietnam. Plaintiffs sought compensatory and punitive damages. They also asked for an injunction ordering Defendants to provide environmental remedies in the allegedly contaminated areas in Vietnam and to disgorge profits gained from their production and supply of AO and other herbicides.
Defendants moved to dismiss the Complaint for failure to state a claim under the ATCA. They further moved for partial summary judgment dismissing all Plaintiffs’ claims as time barred. On the merits, Defendants contended that Plaintiffs failed to allege a violation of the Law of Nations, citing Sosa v. Alvarez Machain, 542 U.S. 692 (2004). On January 12, 2005, the U.S. government filed a Statement of Interest supporting Defendants’ motion to dismiss the ATCA claims and raised the government contractor defense.
The District Court ultimately determined that none of Plaintiffs’ claims could proceed. As to the ATS claims, the Court found that Plaintiffs had failed to state a cause of action because neither the U.S. military’s use of Agent Orange, nor Defendants’ agreement to supply it to the military, violated a universal international norm prohibiting the use of herbicides in war. The Plaintiffs’ domestic and Vietnamese law claims were barred by the government contractor defense. The District Court then granted Defendants’ motion to dismiss. This appeal ensued. The U.S. Court of Appeals for the Second Circuit essentially agrees with the district court and affirms.
On appeal, Plaintiffs argued, inter alia, two major contentions: (1) the District Court had erred by dismissing their ATCA claims since Defendants had violated customary international law banning the use of poisoned weapons and the infliction of unnecessary suffering; and (2) the District Court had prematurely dismissed their claims for injunctive relief without the benefit of adequate discovery.
On the ATCA claims, the Court of Appeals is unable to find any customary international law specific enough under Sosa to bar the use of herbicides in war, particularly where there is no allegation and no evidence that the U.S. intended the herbicides to poison human life. The Plaintiffs have not established that there is a universally accepted ban against the use of substances which only secondarily harm humans.
Plaintiffs also allege that the use of AO and other herbicides violated the norm of proportionality and caused unnecessary suffering. The Court notes, however, that “[t]he principle of proportionality implicates the element of intent, e.g., “�calculated to cause unnecessary suffering,’ “�wanton destruction,’ “�willfully causing great suffering,’ and “�carried out unlawfully and wantonly.’ [Cite.] Because Plaintiffs do not allege, nor could they on this record prove, the required mens rea, they fail to make out a cognizable basis for their ATCA claim.”� [Slip op. 22]
Finally, the District Court found that the extraterritorial injunction that the Plaintiffs sought implicated Vietnam’s sovereignty and was “wholly impracticable.”� The District Court would be unable to enforce an order of abatement and remediation for areas of land over which the U.S. has no jurisdiction. Plaintiffs claimed that further discovery was essential to guide the District Court in ruling on the injunction. The Court of Appeals disagrees. The facts relied on by the District Court, Vietnam’s sovereignty and the lack of jurisdiction over the relevant territory, are readily apparent on the present record.
Citation: Vietnam Association for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104 (2d Cir. 2008).
Filed in: 2008 International Law Update, Issue 3
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In dispute over pollution from mine in Papua New Guinea that sparked decade of violent uprisings, Ninth Circuit, in matter of first impression, concludes, inter alia, that Alien Tort Claims Act does not contain an exhaustion requirement
The Plaintiffs in this case are present and former residents of Bougainville, an island province of Papua New Guinea (PNG), who allegedly suffered violations of international law at the hands of the Defendant, Rio Tinto, PLC, a London-based mining corporation. The Plaintiffs assert that, with the aid of PNG’s government, Defendant committed war crimes, crimes against humanity, and environmental devastation.
More than thirty years ago, Defendant set out to develop a copper and gold mine on Bougainville, offering the PNG government 19.1 % of the profits for its cooperation. Mining started in 1972, and involved the blasting of about 300,000 tons of ore and waste rock per day. Waste from the mine soon began to pollute the environment. Moreover, Defendant was allegedly keeping the black islanders who worked there in “slave-like” conditions. In 1988, sabotage by the islanders forced the mine to close down. When Defendant called on the PNG government for help, the PNG army intervened, killing civilians, bombing civilian targets, and burning villages. The struggle lasted for 10 years.
Eventually, the Plaintiffs sued in a California federal court, seeking compensation and injunctive relief. The court asked for guidance from the U.S. Department of State (DOS) as to the impact of the suit on U.S. foreign policy. The DOS filed a Statement of Interest (SOI), opining that the lawsuit might have an adverse impact on the PNG peace process.
The district court dismissed the lawsuit, finding all of the claims non-justiciable. It also dismissed the racial discrimination claim, and a claim arising under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) [21 I.L.M. 1261, not listed by DOS as of 1/1/2005 as ratified by U.S. ] international comity and the Act of State Doctrine. This appeal followed.
The Ninth Circuit affirms in part and reverses in part. The Court agrees that Plaintiffs may pursue some of their claims in the U.S. courts. It vacates the judgment, however, for the lower court to reconsider its dismissal of the racial discrimination and UNCLOS claims.
First, the Court applies the Political Question Doctrine, pursuant to the six factors outlined in Baker v. Carr, 369 U.S. 186 (1962). The four factors at issue in this case are: (1) “a textually demonstrable constitutional commitment of the issue to a coordinate political department”; (2) “the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government”; (3) “an unusual need for unquestioning adherence to a political decision already made”; or (4) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”
In applying the Baker factors, the Court ponders the weight it should accord to the SOI. “Guided by separation of powers principles, … we conclude that, although we will give the view in the SOI ‘serious weight,’ … [I]t is not controlling on our determination of whether the [pertinent] Baker factors are present. Ultimately, it is our responsibility to determine whether a political question is present, rather than to dismiss on that ground simply because the Executive Branch expresses some hesitancy about a case proceeding.” [Slip op. 11].
The Court concludes that there is no political question here. The DOS did not request the district court to dismiss on political question grounds, and the Court is unable to discern that any “embarrassment” could arise from deciding this case. The SOI does not establish that any of the Baker factors is “inextricable from the case.” See Baker, 369 U.S. at 217.
The Court then turns to the Act of State Doctrine (ASD). Generally speaking, the ASD prevents the U.S. courts from inquiring into the validity of the public acts of a sovereign nation carried out on its own territory. The Court finds, however, that the discrimination alleged would violate jus cogens and therefore, under international law, cannot be lawful acts of a sovereign. Thus, the district court had erred in dismissing these claims.
As for the alleged UNCLOS violation, the Court agrees with the district court that PNG’s efforts to exploit its own resources are sovereign acts. “[A]lthough UNCLOS codifies norms of customary international law, … it is not yet clear whether ‘the international community recognizes the norm[s] as one[s] from which no derogation is permitted.’ [Cite] … Without more, we cannot conclude that the UNCLOS norms are also jus cogens norms. Therefore, … the UNCLOS provisions at issue do not yet have a status that would prevent PNG’s acts from simultaneously constituting official sovereign acts. We further agree with the district court that to adjudicate the UNCLOS claim would require a court to judge the validity of these official acts.” [Slip op. 16-17].
The Court next considers international comity. Comity allows a U.S. court to decline to exercise an otherwise valid jurisdiction out of respect for differing foreign interests. In dismissing the racial discrimination and UNCLOS claims, the court below discerned a true conflict between U.S. and foreign law. PNG’s Compensation (Prohibition of Foreign Proceedings) Act of 1995 bars the filing of foreign court actions (such as the present one) to seek compensation arising out of mining and petroleum projects in PNG.
Furthermore, the Restatement of the Foreign Relations Law of the United States Section 403(2) suggests some non-exhaustive standards for such a review. The Restatement factors include (a) the link of the activity to the regulating state, (b) the connections between the regulating state and the person principally responsible for the activity to be regulated, and ( c) the character of the activity to be regulated. The court below should reconsider its decision in light of the insufficiencies of the SOI.
Defendant had cross-appealed, arguing that the ATCA requires exhaustion of local remedies. The ATCA simply provides that the “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. Section 1350. Although the U.S. Supreme Court hinted in Sosa that, in an appropriate case, it may find an exhaustion requirement implicit in the ATCA, this remains an unresolved issue.
In a statutory exhaustion inquiry, Congressional intent is of paramount importance. The Torture Victim Protection Act of 1991 (TVPA), for instance, does contain an explicit exhaustion requirement (see 106 Stat. 73). Congress noted, however, that it did not intend the TVPA to replace the ATCA. Hence, the Court cannot determine Congressional intent from these sources.
Finally, Defendant contended that the Court should impose an exhaustion requirement as an exercise of judicial discretion. “The central argument [that] Defendant, amicus curiae and the dissent advance to justify exercising judicial discretion is that exhaustion of local remedies is an established aspect of international law. … But see Foreign Relations Law Restatement Section 703, cmt. D (‘The individual’s failure to exhaust remedies is not an obstacle to informal intercession by a state on behalf of an individual …). … Consequently, the ‘law of nations’ language of the ATCA allegedly provides courts with the discretion to import an international law doctrine of exhaustion into an ATCA claim.”
“Moreover, the argument goes, not only would requiring exhaustion be consonant with international law, but such requirement would address many of the policy concerns identified by the district court in its decision to dismiss some (or all) claims on political question, act of state and comity grounds. Finally, exhausting local remedies assumedly would encourage the development of effective local criminal and civil penalties for human rights violations.”
“However, this is a patchwork argument. … First, the international law of exhaustion does not compel a U.S. court to apply it in an ATCA cause of action. Exhaustion, to the extent it may be a norm within international human rights law, was developed specifically in the context of international tribunals … which were created through treaties and with the consent of sovereign countries. …”
“Thus, the international norm of exhaustion does not speak to the hybrid situation before us where a domestic court in a sovereign country, rather than an international tribunal, is charged with adjudicating violations of customary international law through the vehicle of a civil suit. … [T]he exhaustion limitation imposed on and accepted by international tribunals as a requirement of international law is not dispositive as to a United States court’s discretion to impose exhaustion as part of the ATCA.” [Slip op. 27-28]
In sum, the Court reverses the district court’s dismissal of all claims as non-justiciable political questions, and the dismissal of the racial discrimination claim on ASD grounds. The Court vacates the district court’s dismissal of the racial discrimination claim and the UNCLOS claims.
Citation: Sarei v. Rio Tinto, PLC, 456 F.3d 1069, 36 Envtl. L. Rep. 20,157 (9th Cir. 2006).
Filed in: 2006 International Law Update, Issue8
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In suit by Nigerian citizens against former dictator, Seventh Circuit rules that Foreign Sovereign Immunities Act does not apply to individuals and that Torture Victim Protection Act precludes plaintiffs’ Alien Tort Claims Act claims
The plaintiffs in this case are surviving Nigerian victims of the military junta that oppressed Nigeria from November 1993 until May 1999. They allege that officially sanctioned government crimes took place ranging from torture to murder.
The Illinois federal court rejected General Abdulsalami Abubakar’s (defendant’s) claim that he was immune from suit under the Foreign Sovereign Immunities Act of 1976 (28 U.S.C. Section 1605) for official conduct taken while he was a Nigerian public official. Defendant filed this interlocutory appeal. In a divided vote, the U.S. Court of Appeals for the Seventh Circuit affirms and remands.
The Court first notes that “‘[t]he FSIA defines a foreign state to include a political subdivision, agency or instrumentality of a foreign state but makes no mention of heads of state.’ … We noted that the FSIA did not seem to subscribe to Louis XIV’s not-so-modest view that ‘L’etat, c’est moi.’” [Slip op. 9] Under 28 U.S.C. Section 1603(a), a “foreign state” includes “a political subdivision of a foreign state or an agency or instrumentality of a foreign state.”
In turn, an “agency or instrumentality of a foreign state” includes a “separate legal person, corporate or otherwise.” 28 U.S.C. Section 1603(b). Spurning defendant’s argument that “separate legal person” must include an individual, the Court declares: “[I]f it was [sic] a natural person Congress intended to refer to, it is hard to see why the phrase ‘separate legal person’ would be used, having as it does the ring of the familiar legal concept that corporations are persons.” [Slip op. 10-11]
Acknowledging a conflict with the Ninth Circuit on this point, the Seventh Circuit writes, “We are troubled by this approach – that is, by saying Congress did not exclude individuals; therefore they are included. Not only does it seem upside down as a matter of logic, but it ignores the traditional burden of proof on immunity issues under the FSIA.
“The party claiming FSIA immunity bears the initial burden of proof of establishing a prima facie case that it satisfies the FSIA’s definition of a foreign state.” [Slip op. 12] The Court does concede, however, that some courts have applied the FSIA to individuals when they are acting in their official capacity.
While the Seventh Circuit’s interpretation of the FSIA as not affording immunity to defendant favors the plaintiffs here, the Court’s conclusions about the relationship between the Alien Tort Claims Act (ATCA) [28 U.S.C. Section 1350] and the TVPA has the opposite effect. The majority holds that the 1991 Torture Victim Protection Act (TVPA) [Pub.L. No. 102-256, 106 Stat. 72, 28 U.S.C. Section 1350 note] precludes the bringing of torture claims under the ATCA.
Congress intended the TVPA to occupy the field of civil remedies against torture and extrajudicial killing. “If it did not, it would be meaningless. No one would plead a cause of action under the Act and subject himself to its requirements if he could simply plead under international law.” [Slip op. 20]
The majority also finds some support in Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004), See 2004 International Law Update 98. The Circuit Court writes: “[w]hile there is no explicit statement to this effect in Sosa, the implications are that the cause of action Congress provided in the Torture Victim Protection Act is the one which plaintiffs alleging torture or extrajudicial killing must plead.” [Slip op. 20]
Noting the Supreme Court’s emphasis that courts should exercise “great caution” when asked to adapt international law to private rights of action, the Seventh Circuit reasons that “[i]t is hard to imagine that the Sosa Court would approve of common law claims based on torture and extrajudicial killing when Congress has specifically provided a cause of action for those violations and has set out how those claims must proceed.” [Slip op. 22]
The Court’s reading of Sosa specifically weakens the plaintiffs’ case because, unlike the ATCA, the TVPA, contains a preliminary procedural demand that the claimant has to have “[exhausted] adequate and available remedies in the place in which the conduct giving rise to the claim occurred.” 28 U.S.C. Section 2(b).
This might be problematic here because the Nigerian government had persecuted the plaintiffs or their relatives as political enemies, arguably impeding their access to justice. The Seventh Circuit remands the case to the district court to determine whether it should let the plaintiffs file an amended complaint under the TVPA, and if so, whether they have exhausted “all adequate and available remedies” within Nigeria.
Citation: Enahoro v. Abubakar, 2005 WL 1243178; No. 03-3089 (7th Cir. May 23, 2005); news report by Laolu Akande “Abubakar floored at U.S. Appeal Court: Judges Say Human Rights Case Against Ex Ruler Can Proceed,” available at www.africanews.com.
Filed in: 2005 International Law Update, Issue 6
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