Sosa v. Alverez-Machain – dwkcommentaries

Additional Thoughts About Mexican and U.S. Legal Issues in the Pending U.S. Lawsuit Against Ernesto Zedillo, Former President of Mexico

In September 2011 Ernesto Zedillo, a former president of Mexico, was sued in the federal court in Connecticut for money damages for his alleged complicity in a massacre in the Mexican village of Acteal in 1997. In September 2012, the U.S. government asked the court to grant immunity to Zedillo and dismiss the case based upon the Mexican government’s request to that effect and the subsequent similar request by the U.S. Department of State. These matters were covered in prior posts (here and here).

The U.S. court has not yet resolved the immunity or any other preliminary issues in the case, and the latest dockets sheets reveal no activities whatsoever since early February this year.

In March 2013 a Mexican court decided that the Mexican request to the U.S. State Department requesting such immunity was legally insufficient, as discussed in a prior post.

Subsequently a Mexican lawyer and friend, Juan Carlos Arjona Estévez, has provided me with additional comments about the Mexican court decision that prompt these additional thoughts about Mexican and U.S. legal issues in the case.[1]

The Mexican Court Decision

The Mexican court said the Mexican Ambassador’s letter to the U.S. Department of State requesting such immunity was legally deficient.[2] First, it was a letter from the Ambassador in his diplomatic capacity, not an official communication of Mexican government policy. Second, the letter did not cite to all the Mexican legal provisions relevant to the case. Third, the letter did not explain why immunity for Zedillo in the U.S. case was appropriate under those Mexican legal authorities and why such immunity would not affect Mexican ethnic groups’ right to access justice.

Moreover, there is no basis in the Mexican constitution for immunity for a former president or other government officials. Such immunity under Mexican law applies only when such individuals are in office.

This court decision could be appealed in Mexico by the Mexican Minister of Foreign Affairs, but reversal does not seem likely because the defense in the Mexican case is that the action of the Ambassador was not an “authorized act” that can affect the human rights of Mexicans, but only a diplomatic action.

If the decision is appealed, the three-magistrate appellate tribunal could affirm the decision and also refer to the provision in the Mexican Constitution stating that Mexican foreign policy has to promote human rights and that the request for Zedillo immunity for alleged human rights violations is contrary to such promotion.

Another possible outcome is for the Mexican Ambassador to rescind his request for immunity and to send a new letter to the U.S. Department of State saying that Senor Zedillo has not been sued in Mexico for the same claims and that Mexican courts should have the first opportunity to deal with these issues.

Related U.S. Legal Issues

These developments in Mexico raise at least two issues for U.S. law.

1. With or without a rescission of the original Ambassador’s letter, should the U.S. court grant immunity to Zedillo?

The original September 2012 letter from the U.S. State Department to the U.S. Department of Justice said “a sitting head of state’s immunity is based on his status as the incumbent office holder and extends to all of his actions.” (Emphasis added.)

On the other hand, the State Department letter went on, the “residual immunity of a former official . . . is based upon the character of that official’s conduct and extends only to acts taken in an official capacity. . . . [The] Department of State generally presumes that actions taken by a foreign official exercising the powers of his office were taken in his official capacity. This . . . is particularly appropriate when a former head of state is sued, because holders of a country’s highest office may be expected to be on duty at all times and to have wide-ranging responsibilities.” (Emphasis added.)

The State Department letter mentioned the Mexican Ambassador’s request for immunity based upon his assertion that “any actions [by Zedillo] . . . in connection with the events alleged in the complaint were taken in the course of his official duties as head of state.” This Mexican government assertion, the State Department letter says, corroborates its assessment to the same effect. In addition, the plaintiffs have not rebutted this assessment.

Therefore, the State Department’s letter concluded that Zedillo’s “alleged actions were taken in an official capacity, and he enjoys immunity from this lawsuit.”

This letter, taken by itself, might suggest that immunity might still be open even if the Mexican Ambassador’s letter were rescinded as it only corroborated that Zedillo was acting in his official capacity.

However, when the State Department in another case declined to request immunity for a former Somali official, it said any immunity protecting foreign officials for their official acts ultimately belongs to the sovereign, not the official. Thus, the foreign state must claim or waive any such immunity for the official. Where there is no recognized government, as was the case for Somali at the time, there was no one that could assert such a claim or make such a waiver. As a result, the State Department concluded that the former official did not enjoy immunity, and the court endorsed that conclusion and rejected the immunity claim.

Thus, if the Mexican Ambassador’s letter to the State Department is rescinded and not replaced by another request for immunity, the principles enunciated in the Somali case suggests that Zedillo would not be entitled to immunity.

2. Failure To Exhaust Mexican Remedies.

Another U.S. issue is whether the plaintiffs have failed to exhaust whatever remedies they have in Mexico.

Some of the claims in the U.S. case are asserted under the Torture Victims Protection Act (28 U.S.C. § 2350 note), which provides, in part, “A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred [here, Mexico].” There is no similar provision in the Alien Tort Statute, under which some of the claims are also asserted, but the U.S. Supreme Court in Sosa v. Alverez-Machain suggested that failure to exhaust remedies in the other country could be a limitation on ATS claims.

Thus, the issue for the U.S. court in such a hypothetical situation would be whether the claims under Mexican law are “adequate and available” and whether the plaintiffs had exhausted whatever Mexican remedies they had. [3]

Conclusion

I would anticipate that the plaintiffs’ lawyers in the U.S. case will advise the court in Connecticut of the Mexican court decision;[4] that the U.S. court will wait until there is a final resolution of the Mexican case before doing anything, and if the recent Mexican decision is not reversed, request the views of the State Department on the significance of the former; and thereafter the U.S. court will make a decision on whether or not to grant immunity to Zedillo.

[1] The Yale Daily News and ctlatinonews also have articles about the Mexican court decision.

[2] Because of the significance of the Mexican Ambassador’s letter, its text is attached at the conclusion of this post.

[3] There also should be a U.S. procedural problem if Zedillo now tries to raise the plaintiffs’ alleged failure to exhaust Mexican remedies as a defense in the U.S. case. The original U.S. complaint anticipated such a defense with the allegation that the plaintiffs do not have adequate remedies in Mexico and that they have exhausted their available Mexican remedies. Zedillo’s U.S. motion to dismiss the complaint only asserted immunity, and Rule 12(g) of the Federal Rules of Civil Procedure should prevent him from now raising this affirmative defense by motion.

[4] One of the plaintiffs’ attorneys has said they would so advise the U.S. court and ask it to request the State Department for reconsideration of the immunity issue.

=================================================

EMBASSY OF MEXICO

07654

Washington, DC, on November 4, 2011.

Madam Secretary:

On behalf of my Government, I have the honor to refer to the case v Doe et al. Zedillo Ponce de León, filed with the U.S. District Court for the District of Connecticut as No. 3:11-cv-01433, in place of the former President of Mexico, Ernesto Zedillo Ponce de León.

In this regard, I wish to express my Government’s rejection of any internal process that violates the sovereignty of Mexico, to exercise jurisdiction over alleged acts occurred in territory in which he allegedly spoke the President in his official capacity. In this regard it should be noted that any other act performed by former President Ernesto Zedillo regard to the facts in the lawsuit that gave rise to the case of history, took place in the course of his official duties as head of state and is Therefore, to rule in some sense, the Court would be deciding on actions the government of Mexico sovereign within their own territory.

In light of the above, I would sincerely request the intervention of the Department of State through the Department of Justice before the U.S. District Court for the District of Connecticut, by a suggestion of immunity to former senses of Mexico. In this regard, I note that the recognition of immunity enjoyed by foreign officials for acts performed in their official capacity is largely rooted in a principle of customary international law, whose application has been confirmed many times by the U.S. government, particularly in situations involving heads of state. There are also precedents in American jurisprudence that confirmed the practice.

In this regard, I quote Gemisen v cases. De la Madrid v Habyarimana. Kagame, Giraldo v. Drummond Co., Wei Ye v. Jiang Zemin and Lafontant v. Aristide, as a sign of the instances in which the State Department has intervened in the past the U.S. courts to reaffirm its position on immunity accompanying heads of state, even after completing your order. Enclosed is a legal memorandum that contains more elements on those precedents.

Similarly, I wish to present it as a process which aims to substantiate against former President of Mexico affect the bilateral relationship between Mexico and the United States, in dismissing the action of various national authorities in response to the event that occurred in the village of Acteal, Chiapas in December 1997, the Government made strongly condemned in turn, immediately abocándose research and presentation of those responsible to the law enforcement bodies.

In thanking Your Excellency in advance for your valuable support for the State Department’s intervention in the case of history, I do own the opportunity to renew the assurances of my highest consideration.

Ambassador Arturo Sarukhan

Re-argument of Important Human Rights Case in U.S. Supreme Court

On October 1, 2012, the U.S. Supreme Court heard re-arguments in an important human rights case, Kiobel v. Royal Dutch Petroleum Co. (Sup. Ct. No. 10-1491).[1]

This case involves claims by a putative class of Nigerians against Netherlands/United Kingdom corporations (Royal Dutch Petroleum Co. and Shell Transport and Trading Company PLC (Shell)) for allegedly assisting in certain human rights violations in Nigeria in 1993-1995.

The claims in this case were asserted under the Alien Tort Statute (ATS) that provides that U.S. federal district courts have “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.”[2]

The order for rehearing asked the parties to address the following issue:

Whether and under what circumstances the [ATS] . . . allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

This issue was addressed in the Petitioners’ Supplemental Opening Brief; the Supplemental Brief for Respondents; the Supplemental Reply Brief for Petitioners; 31 amici curiae briefs supporting the petitioners; 14 amici curiae briefs supporting respondents; and 7 amici curiae briefs supporting neither party. One of those not supporting either party was the U.S. Government.[3]

During the hour-long hearing the Court heard from lawyers representing the plaintiffs-petitioners, the defendants-respondents and the U.S. Government. They all were actively questioned by eight of the Justices with only Justice Thomas not participating. Those eight Justices all seemed to be searching for a way to limit the reach of the ATS, especially when such cases adversely affected U.S. foreign policy.[4]

I will not attempt to predict how the Court will resolve the case. Instead I will set forth how I think the Court should do so.

First, Corporations are not immune from lawsuits under the ATS.

Second, As the Court held in Sosa v. Alverez-Machain in 2004, the ATS is a jurisdictional statute.[5] The Court’s presumption against extraterritorial application of U.S. statutes (unless Congress specifically states otherwise), applies to statutes that impose substantive U.S. regulatory measures, not to jurisdictional statutes.[6] Therefore, there is no issue of extraterritoriality with respect to the ATS.

Third, there are various existing legal doctrines and jurisprudence that federal courts have used and should use, in appropriate cases, to dismiss ATS cases at the outset upon a motion by the defendant asserting such affirmative defenses. They include the following:

The court lacks personal jurisdiction over the defendant because it does not have sufficient contacts with the forum to make litigation consistent with U.S. notions of fair play and substantial justice as guaranteed by the Fifth and Fourteenth Amendments’ due process clauses.[7]

The case is not brought within 10 years after the acts in question under the statute of limitations borrowed from the Torture Victims Protection Act unless under established principles of equity the statute of limitations should be tolled or stayed.[8]

The plaintiff has failed to exhaust remedies in the country where the acts occurred unless those remedies are unavailable or futile.[9]

A foreign court is the more appropriate and convenient forum than an U.S. courts under the established principles of forum non conveniens.[10]

An individual defendant is entitled to official immunity according to the U.S. Department of State.[11]

A non-individual defendant is entitled to immunity under the Foreign Sovereign Immunities Act.[12]

The “act of state” doctrine protects the conduct in question.[13]

The case presents a “political question” that is inappropriate for judicial resolution.[14]

The case should be rejected because of concerns about its impact on U.S. foreign relations or because of “international comity.”[15]

The case presents an issue of U.S. state secrets that prevent adjudication of the case.[16]

Fourth, the affirmative defenses just mentioned were not raised by the defendants-respondents in their appeal to the U.S. Court of Appeals for the Second Circuit and, therefore, are not before the Supreme Court for decision.

Fifth, the Second Circuit is reversed, and the case is remanded to the District Court for further proceedings in accordance with this opinion.

Within the next four months the Court should issue its opinion(s) in this case.

[1] Prior posts reviewed the procedural background of this case, the Second Circuit decision rejecting such liability, the initial Supreme Court argument in this case regarding whether corporations could be held liable under the ATS, and the Supreme Court’s order for rehearing in this case.

[2] Earlier posts have reviewed the history of the ATS for the periods 1789-1979, 1980 (Filartigacase), 1980-2004, 2004 (Sosa case) and 2004-present .

[3] All of the briefs in Kiobel are available on the website of the Center for Justice and Accountability, a human rights organization, along with its summary of 18 of the 52 amici curiae briefs.

[4] The transcript of that hearing is available online. Reports about the hearing are available in the New York Times, the Washington Post, the Wall Street Journal and the widely followed U.S. Supreme Court blog. In an editorial the New York Times supported sustaining the ATS in this case; the Wall Street Journal did not.

[5] Sosa v. Alvarez-Machain, 542 U.S.692, 713 (2004).

[6] Morrison v. Australia Nat’l Bank, 130 S. Ct. 2869, 2877 (2010).

[7] In one of the most recent Supreme Court cases on personal jurisdiction in another context, the Court unanimously determined, in an opinion by Justice Ginsburg, that the South Carolina courts did not have personal jurisdiction over three corporations that were organized and operating in France, Luxembourg and Turkey, but were not registered to do business in South Carolina, had no place of business, employees or bank accounts in the state, did not design, manufacture or advertise its products in the state and did not solicit business in the state or sell or ship products to customers in the state. (Goodyear Dunlop Tires Operations, S.A. v. Brown, No. 10-76 (Sup. Ct. June 27, 2011). This defense has ended ATS cases for some foreign corporate defendants. (E.g., Doe v. Unocal Corp., 248 F.3d 915, 930-31 (9th Cir. 2001) (French corporation).) However, Shell and the other defendants in the Kiobel case did not raise this defense and thereby waived it under Fed. R. Civ. Pro. 12 (h)(1); another defendant (a Nigerian subsidiary) was dismissed from this case on this ground.

[8] E.g., Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 462 (D.N.J. 1999); Doe v. Saravia, 348 F. Supp. 2d 1112, 1146-48 (E.D.. Cal. 2005)(10-year period tolled or stayed because plaintiff could not have obtained justice due to legitimate fear of being killed for making a claim).

[9] This defense was suggested by the Supreme Court in Sosa, 542 U.S. at 733 n.21, and the lower courts are split as to whether it is appropriate in ATS cases. (E.g., Lizarbe v. Rondon, 642 F. Supp. 2d 473 (D. Md. 2009)(civil remedy in Peru inadequate because it is contingent on conclusion of criminal charges that can take years and because civil damages are ineffective).)

[10] Here are two examples of dismissal of ATS cases on the forum non conveniens ground. (Aldana v. Del Monte Fresh Produce N.A., 578 F.3d 1283 (11th Cir. 2009), cert.denied, 549 U.S. 1032 (2010) (litigation in Guatemala, but with the proviso that the motion would be reconsidered if plaintiffs had to return to Guatemala where they feared for their safety); Turedi v. Coca-Cola Co., 343 Fed. Appx. 623 (2d Cir. 2009) (litigation in Turkey).) But such a dismissal was rejected in Licea v. Curacao Drydock Co., 537 F. Supp. 2d 1270, 1274 (S.D. Fla. 2008) (Cuban plaintiffs would be in danger if forced to litigate in Curaco where they had been subjected to slavery-like conditions). In Kiobel, Shell did not assert the forum non conveniens defense and, therefore, waived it. Shell did do so in a parallel case, but the court rejected the defense. (Wiwa v. Royal Dutch Pet. Co., 226 F.3d 88, 108 (2d Cir. 2000), cert. denied, 532 U.S. 941 (2001).)

[11] For example, the issue of official immunity for former government officials of Somalia and Mexico has been examined in prior posts.

[12] A prior post looked at some of the basic provisions of the Foreign Sovereign Immunities Act while another post discussed the Supreme Court case that decided that his statute did not protect former foreign government officials.

[13] This defense was suggested by the Supreme Court in Sosa, 542 U.S. at 733 n.21, and it has been used in ATS cases. E.g., Doe v. Israel, 400 F. Supp. 2d 86, 114 (D.D.C. 2005) (acts of Israeli government).

[14] This defense was suggested by the Supreme Court in Sosa, 542 U.S. at 733 n.21, and it has been used in ATS cases. E.g., Corrie v. Caterpiller, 503 f. 3d 974 (9th Cir. 2007) (dismissal of ATS claim for selling bulldozers to Israeli Defense Force); Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005), cert. denied, 547 U.S. 1069 (2006) (dismissal on political question ground of ATS case against former U.S. National Security Advisor over killing of Chilean general in 1970 coup d’etat).

[15] E.g., Ungaro-Benages v. Dresdner Bank AG, 379 F. 3d 1227, 1237-39 (11th Cir. 2004).

[16] Foreigners sued an U.S. corporation under the ATS and TVPA for allegedly aiding and abetting the CIA’s extraordinary rendition of five foreign nationals to other countries for torture and interrogation when the corporation provided flight training and logistical and support services to the aircraft and crew. Before the defendant answered the complaint, the U.S. Government intervened and moved to dismiss the complaint under the state secrets doctrine. The district court granted the motion, which the Ninth Circuit, en banc, ultimately affirmed, 6 to 5. The court held that the state secret privilege established by United States v. Reynolds, 348 U.S. 1 (1953), required dismissal because “there is no feasible way to litigate [the defendant’s] alleged liability without creating un unjustifiable risk of divulging state secrets.” (Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc).)