Ulpianus

Case analysis of Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (2004).

Imagine the following scenario: Dr. Phillip Morris, a pediatrician, finished his last patient consultation, exited his offices in Houston, Texas and walked through the parking lot to reach his car. Suddenly, six armed persons took him by force into a van. The kidnappers, in accordance with the Attorney General of the State of Israel, flew Dr. Morris to Tel Aviv, Israel, where he was arrested.

How would you feel as an American? Would you expect the Judicial Authority of the State of Israel to grant a remedy for the intentional torts committed by the kidnappers?

A similar story happened in 1990, not to an American citizen, but to a Mexican; the criminal act was not planned by the secretive Mossad[1] of Israel, but orchestrated by the United States Drug Enforcement Agency.[2] Yet the cry for legal remedy to the torts suffered by the Mexican Doctor has been silenced by the Supreme Court in its 2004 decision in the case Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2769 (2004) (rev’g Alvarez-Machain v. U.S., 331 F.3d 604 (9th Cir. 2003)).

The Supreme Court’s decision in the Sosa case was correct in my opinion with regarding of the non applicability of the FTCA by virtue of the foreign country exception. Nevertheless, in my view, the Supreme Court’s originalist approach to Dr. Alvarez’s claims under the ATCA was not adequate and risked the United States to be held responsible at the international level for denial of justice. Part I provides legal and factual background of Sosa, its procedural posture and explains the originalist approach for the interpretation of statutes. Part II describes my positions with the different parts of Sosa, gives example of cases that have used an originalist method of interpretation, provides a case where this approach was disregarded, and gives the reasons as to why the United States could be held responsible at the international level for denial of justice for aliens. Part III concludes.

I
The Federal Tort Claims Act (FTCA) was passed by Congress in 1946.[3] Its main purpose was to eliminate the “sovereign immunity of the United States from suits in tort”[4] subject to he exceptions provided by § 2680. Particularly, subsection (k) establishes that “[t]he provisions of [FTCA] shall not apply to… [a]ny claim arising in a foreign country.”[5]

As a way to circumvent the foreign country exception of the FTCA, some courts developed what is known as the headquarters doctrine. According with this doctrine, the exception contained in § 2680(k) does not apply when the tortious act occurs in the United States but the injury is sustained abroad,[6] if the act or acts in the United States are the proximate cause of such injury.[7]

The other statute involved in the Sosa case, the Alien Tort Act (ATCA), is found in 28 U.S.C. §1350 and is even older: it was enacted as part of the Judiciary Act of 1789[8] and gives original jurisdiction to the District Courts on lawsuits against aliens for torts committed “in violation of the law of nations or a treaty of the United States.”[9]

It is within this context that the Supreme Court came to its decision in the Sosa case. But who is the abducted doctor we talked about in the first page of this case analysis?

On April 2, 1990, Humberto Álvarez-Macháin, a Mexican medical doctor, was kidnapped in Guadalajara, México, and illegally transported to El Paso, Texas, where agents from the Drug Enforcement Administration (DEA) apprehended him[10]. A warrant for his arrest had been issued by the United States District Court for the Central District of California,[11] for his alleged participation on the torture and killing of Eduardo Camarena-Salazar, a DEA agent working in México.[12] Dr. Álvarez-Macháin’s case went to trial in 1992 and after the government rested its case, the District Court granted a motion for a judgment of acquittal presented by the defense.[13]

After returning to México, Dr. Álvarez-Macháin sued the United States, as well as different Mexicans and American citizens, including four DEA agents.[14] His claims were brought under the Federal Tort Claims Act (FTCA) and the Alien Tort Statute (ATCA).[15]

The District Court dismissed the FTCA claim, but awarded $25,000 in damages to Mr. Álvarez-Macháin on the ATCA claim.[16] A panel of three judges from the Ninth Circuit reversed the dismissal of the FTCA claim.[17] Rehearing en banc, the Court of Appeals arrived to the same conclusion, holding that the ATCA creates “a cause of action for an alleged violation of the law of nations.”[18]

Jose Francisco Sosa, one of the original defendants in the ATCA claims, petitioned for writ of certiorari and it was granted by the United States Supreme Court to clarify the scope of the FTCA and the ATCA.[19] The Court, through an opinion delivered by Justice Souter[20], reversed the decision of the United States Court of Appeals for the Ninth Circuit, holding that the FTCA’s foreign country exception “bar[red] all claims based on [actions occurred]… in a foreign country”;[21] and that ATCA did not create a cause of action for Dr. Álvarez’s claims.[22]

In reversing the Ninth Circuit Court of Appeals holding regarding the FTCA, the Court considered that the foreign country exception of the Act applied.[23] It expressively rejected the headquarters doctrine used by the Circuit Court for two reasons: first because the wrongdoings were caused both by the government and by private parties;[24] allegedly the actions of the DEA in California were not the only proximate cause of the abduction, as “the actions of Sosa and others in México were just as surely proximate causes, as well”.[25] Secondly, the headquarters doctrine does not circumvent the foreign country exception of FTCA § 2680(k) plainly because the language of this exception is clear and lets no room for interpretation. [26] Its precise intention is to bar recovery for acts “arising in” a foreign country. [27] Torts occurred outside the territory of the United States, namely in México, surely fell into that category. Additionally, when the FTCA was passed, “the dominant principle in choice of law analysis for tort cases was lex loci delicti: courts generally applied the law of the place where the injury occurred.”[28]

Regarding the ATCA claims, the Court held that it only provided cause of action for three kinds of claims: “offenses against ambassadors . . . violations of safe conduct . . . and individual actions arising out of prize captures and piracy.”[29] The Court concluded that the First Congress intended the district courts to recognize “causes of action for certain torts in violation of the law of nations,”[30] but limited to the three described torts: “violation of safe conducts, infringement of the rights of ambassadors, and piracy.”[31]

Before Sosa, diverse federal courts had found private causes of action under the ATCA at least during the last two decades to recover for torts against international law beyond the three cases recognized by the Court in the instant case.[32] But for now the Supreme Court has settled the matter, erring, in my opinion, by limiting the causes of action permitted by ATCA to the three cases named in the preceding paragraph.

The Supreme Court arrived to its conclusion on ATCA using an originalist approach. Under this method of legal interpretation, primarily applied to the Constitution,[33] the courts read the text in front of them as it was understood at the time of the ratification.[34] In other words, originalists “seek[] to freeze meanings against erosion by time.”[35]

Finally in Sosa, three different additional opinions concurring in part and concurring in the judgment were filed:[36] Justice Scalia did not endorse the word discretion Justice Souter used when referring to federal court’s ability to consider a new cause of action under ATCA.[37] Justice Ginsburg also emitted a concurring opinion, not joining the majority reasoning regarding the construction of the foreign exception included in § 2680(k) of the FTCA[38]. Last, Justice Breyer also concurred, questioning whether use of ATCA was compatible with the notion of international comity.[39]

II
I opine that the Court correctly blocked the application of the headquarters doctrine[40] to the foreign country exception of in the FTCA.[41] The unambiguous language of the statute does not let room for a different interpretation. And when a statue provides unambiguous language, courts should “adopt the plain meaning of a statute, however severe the consequences.”[42] The statute means exactly what its wording says. That is what the Legislature intended to express. I agree that the foreign country exception is clear and lets no room for interpretation. [43] Its precise goal was to bar recovery for acts “arising in” a foreign country. [44] That the FTCA shall not apply to any claim arising in a foreign country means exactly that: no FTCA for claims related to torts committed outside the territory of the United Sates. It does follow the principle of lex loci delicti.”[45]

It is with regard to the ATCA’s limited hypothesis where the Court found causes of action that I disagree with the Court’s holding in Sosa. ATCA will not provide the adequate answers to aliens who are victims of torts if it only remedies three types of claims: “offenses against ambassadors . . . violations of safe conduct . . . and individual actions arising out of prize captures and piracy.”[46]

It is especially of no help the fact that the Supreme Court arrived to its conclusion on ATCA using an originalist approach. Under this method of legal interpretation, changing circumstances of a complex reality are ignored.

For an example on how applying an originalist approach to interpret the law can produce heinous results, I refer to the well-known nineteen century case of Dred Scott v. Sandford, 60 U.S. 393 (1856). In Scott, the Court was asked if a “negro … [could] become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen”.[47]

The Court, using an originalist approach, held that African descendants living in America were not considered part of the people of the United States. The court answered issue in a poor manner: “[w]e think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”[48]

The reason was simple: the Supreme Court found that its duty was “to interpret the instrument [the Framers created], with the best lights [it could] obtain on the subject, and to administer it as [the Court] find it, according to its true intent and meaning when it was adopted.”[49]

But the Framers’ intent should not be an excuse to read the statutes wrong. Justice Harlan, dissenting from the majority in the case Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting), expressed that courts can conceive a statute to be unreasonable and impolitic, regardless of what the legislature or even the framers intended.[50] At the end of his dissent, Justice Harlan prophesized what most of us consider true today: “[i]n my opinion, the judgment this day rendered [in the Plessy v. Ferguson case] will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.[51]

A third case can give us guidance on how a court can free itself from restrains with circumstances, policies and values no longer applicable at the time a case is decided: in Brown v. Board of Educ. of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954), the case that ended with racial segregation in particular in public school, and in general in all public accommodations, the Court rejected to adjudicate the case with the mindset of the framers of the Fourteen Amendment.[52] Chief Justice Warren rejected an originalist approach to solve the matter. In his opinion, he wrote that they could not “turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written”,[53] but consider the issues of the case and their implications at the conditions of 1954, to be able to determine “if segregation in public schools deprives these plaintiffs of the equal protection of the laws”.[54] Fortunately, the Supreme Court held that separate educational facilities were inherently unequal, and therefore violated the equal protection clause of the Fourteen Amendment.[55] This result could not be possible had the Court used an originalist approach, as it did in Sosa.[56]

Blind adherence to the mindset of even of the best characters of the late Eighteen Century does not per se advance the American legal system. To the contrary: in some cases, ignoring the challenges and changes on the circumstances of modern world can be an attractive trap that in no way helps to close the gap between the reality and the law that is looking to regulate it. Two hundred and fifteen years are too much.[57]

One complication of the Sosa holding can come at the international level. Outside the three hypotheses accepted by Sosa, the federal legal system gives no possibility of recovery to aliens for the torts caused by others. This failure to provide a remedy can suggest a denial of justice. Denial of justice is “[a] defect in a country's organization of courts or administration of justice, resulting in the country's violating its international legal duties to protect aliens.”[58] Denial of justice can occur, exempli gratia, when a court is unable or unwilling to provide a remedy for torts caused by somebody outside the court itself.[59] The Restatement (Third) of the Foreign Relations Law of the United States § 711 cmt. a (1987), explains that this concept is linked to denial of access to courts,[60] and in the international level the foreign state –in this case, the United States- is responsible for it.[61]

Under modern international law, the United States could be held responsible of denial of justice if remedies are not found to compensate aliens for the torts they suffer.[62]

Before Sosa, diverse federal courts had found private cause of action under the ATCA for diverse claims.[63] But for now, all those precedents are irrelevant, as the Court has settled the matter in the case I analyze in this work. The Supreme Court, in my opinion, erred by limiting the causes of action permitted by ATCA to the three cases it thought the First Congress had in mind.[64]

The question after Sosa is: will the Court recognize as actionable under ATCA a violation against international law besides the three Blackstone examples it found actionable in this case?[65] Professor Paust et al. in their book International Law and Litigation in the U.S.,[66] point out the incongruence of Justice Souter by limiting to three cases to which the ATCA provided a cause of action, and at the same time, citing two other hypothesis that had been covered before Sosa.[67] It will be up to the Court –probably to one with a different composition- to give us the answer.

As I opined before, the Court in Sosa[68] acted more like the Court in Dred Scott[69] than as in Brown.[70] To our misfortune, in Sosa, the Court fell into the trap of trying to freeze the intent of the First Congress against adaptation.[71] But its holding is settled law now, and the legal maxim applies: dura lex, sed lex.[72]

III
The Supreme Court, in deciding Sosa, was correct in rejecting the application of the headquarters doctrine to the foreign country exception of § 2680(k) in the FTCA. The language of the statute unambiguously forbids recovery for acts arising in a foreign country.

The Supreme Court, in deciding Sosa, limited the scope of the Alien Tort Statute dramatically, ruling that it only provided cause of action for claims related to: (1) violation of safe conducts, (2) infringement of the rights of ambassadors, and (3) piracy.

In my opinion, the originalist approach the Court used in resolving the ATCA claims in Sosa was inadequate, because modern challenges and changes on the circumstances demand innovative answers not imagined by the First Congress in 1789 when it enacted the Alien Tort Statute.

Sosa, settled law now regarding the ATCA application, can generate international responsibilities to the United States if aliens argue denial of justice for lack of a judicial remedy to claims similar to those of Álvarez-Macháin.

We will see the development of analogous claims, and wait for a bold Court to act more as in Brown v. Board of Education. But until then, dura lex, sed lex.

Footnotes:

[1] Israel Secret Intelligence Service,
http://www.mossad.gov.il/Mohr/MohrTopNav/MohrEnglish/MohrAboutUs/ (last visited Nov. 10, 2005). The Institute for Intelligence and Special Operations, also known as “Mossad”, is the intelligence agency for the State of Israel. See also Ardi Imseis, On the Fourth Geneva Convention and the Occupied Palestinian Territory, 44 Harv. Int’l L.J. 65, 128 n.516 (2003) (“[Mossad] agents forcibly abducted [Nazi war criminal Adolf Eichmann] from Argentina and transferred him to Israel to stand trial for . . . genocide”).
[2] Alvarez-Machain v. United States, 96 F.3d 1246, 1248 (9th Cir. 1996).
[3] James R. Levine. Note: The Federal Tort Claims Act: A Proposal for Institutional Reform. 100 Colum. L. Rev. 1538, 1540 (2000).
[4] Richards v. United States, 369 U.S. 1, 6 (1962).
[5] 28 U.S.C.A. § 2680(k).
[6] Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2748 (2004) (citing Sami v. United States, 617 F.2d 755, 761 (9th Cir. 1979)); Cominotto v. United States, 802 F.2d 1127, 1130 (9th Cir. 1986)).
[7] Cominotto v. United States, 802 F.2d 1127, 1130 (9th Cir. 1986). In Cominotto, the petitioner failed to prove the proximity between the acts in the United States and the injury abroad, and therefore the foreign country exception applied.
[8] Sosa, 124 S.Ct. at 2748.
[9] 28 U.S.C.S. § 1350. Cf. Jordan J. Paust, International Law as Law of the United States 3 (Carolina Academic Press, 2nd ed. 1996) (the courts had used interchangeably the phrases international law and law of nations).
[10] United States v. Caro-Quintero, 745 F.Supp. 599, 603(C.D.Cal. 1990).
[11] Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2746 (2004).
[12] Id.
[13] Id.
[14] Id. at 2747.
[15] Id. Specifically, Dr. Álvarez-Macháin sought damages from the United States under the FTCA claiming false arrest, and from his abductors under the ATCA claiming violation of the laws of nations.
[16] Id.
[17] Id. See also Alvarez-Machain v. United States, 266 F.3d 1045, 1064 (9th Cir. 2001) (“[W]e AFFIRM the district court's judgment with respect to Sosa's liability under the ATCA . . . However, we REVERSE the district court's dismissal of Alvarez's FTCA claims against the United States and REMAND the case for a determination of the United States' liability”).
[18] Id. (citing Alvarez-Machain v. United States, 331 F.3d 604, 612 (9th Cir. 2003)).
[19] Id.
[20] Id. at 2746.
[21] Id. at 2754.
[22] Id.
[23] Sosa, 124 S.Ct. at 2748. See also 28 U.S.C.A. § 2680(k) (“The provisions of this chapter and section 1346(b) of this title shall not apply to--… Any claim arising in a foreign country”).
[24] Id. at 2750.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id. at 2759.
[30] Id. at 2761.
[31] Id.
[32] See, e.g., Kadic v. Karadzic, 70 F.3d 232, 238 (2nd Cir. 1996) (ATCA provides a cause of action when “(1) an alien sues (2) for a tort (3) committed in violation of the law of nations (i.e., international law)”); Abebe-Jira v. Negewo, 72 F.3d 844, 847-48 (11th Cir. 1996) (ATCA requires no more than an “allegation of a violation of a violation of the law of nations” for 28 U.S.C. §1350 to apply); In re Estate of Marcos, 25 F.3d 1467, 1475 (9th Cir. 1994) (ATCA § 1350 “creates a cause of action for violations of specific, universal and obligatory international human rights standards”); Xuncax v. Gramajo, 886 F.Supp. 162, 180 (D. Mass. 1995) (§ 1350 of ATCA is an exercise of Congress’ Art. III power “to allow aliens to seek civil redress in federal court for wrongs committed in violation of international law or United States treaties”); Forti v. Suarez-Mason, 672 F.Supp. 1531, 1539 (N.D. Cal. 1987) (“There appears to be a growing consensus that § 1350 provides a cause of action for certain "international common law torts’”).
[33] See also Sosa, 124 S.Ct. at 2759. In the Sosa case, the Court did not refer to the Framers of the Constitution, but to the First Congress. For the Supreme Court, the relevant intent was the one that the First Congress had in mind when enacted the ATCA in 1789.
[34] Rebecca L. Brown, History for the Non-Originalist, Harv. J.L. & Pub. Pol’y 69, 73 (2003) (the argument is that because the original text was the one actually voted on by the people, has to be interpreted as the Framers –in representation of the people- would do it).
[35] Robert Gordon, The Struggle Over the Past, 44 Clev. St. L. Rev. 123, 132 (1996).
[36] Sosa, 124 S.Ct. at 2745. (“SOUTER, J., delivered the opinion of the Court, Parts I and III of which were unanimous, Part II of which was joined by REHNQUIST, C. J., and STEVENS, O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., and Part IV of which was joined by STEVENS, O'CONNOR, KENNEDY, GINSBURG, and BREYER, JJ. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which REHNQUIST, C. J., and THOMAS, J., joined. GINSBURG, J., filed an opinion concurring in part and concurring in the judgment, in which BREYER, J., joined. BREYER, J., filed an opinion concurring in part and concurring in the judgment”).
[37] Sosa, 124 S.Ct. at 2772 (Scalia, J., concurring) (for Scalia, just imagining the possibility that federal courts could eventually consider a new cause of action under ATCA would amount to endorse judicial activism, or legislating from the bench).
[38] Sosa, 124 S.Ct. at 2776 (Ginsburg, J., concurring). Because my own disagreement with Sosa is related to the ATCA and not to the FTCA, I will not detail Justice Ginsburg’s arguments.
[39] Sosa, 124 S.Ct. at 2782. See generally Hilton v. Guyot, 159 U.S. 113, 163-64 (1895) (“‘Comity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it 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 of other persons who are under the protection of its laws”); Black’s Law Dictionary 261 (7th ed. 1999) (comity is a courtesy among political entities –in the context of the Sosa case, courtesy among nations- related to the mutual recognition of governmental acts).
[40] Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2748 (2004).
[41] 28 U.S.C.A. § 2680(k).
[42] Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 927 (1956).
[43] Id.
[44] Id.
[45] Id.
[46] Id. at 2759.
[47] Dred Scott v. Sandford, 60 U.S. 393, 404 (1856).
[48] Id.
[49] Id. at 405.
[50] Plessy v. Ferguson, 163 U.S. 537, 558-59 (1896) (Harlan, J., dissenting).
[51] Id.
[52] Brown v. Board of Educ. of Topeka, Shawnee County, Kan., 347 U.S. 483, 492 (1954).
[53] Id.
[54] Id. at 492-93.
[55] Id. at 692.
[56] I am in no way suggesting that the Sosa case can be compared in transcendence to Brown, but this comment is made only to point out the narrowness of the originalist method of interpretation. I consider Brown as one of the cornerstones not only of the American legal system, but of the American society.
[57] This is the time elapsed between the enactment of the ATCA and the decision of the Court in Sosa. The originalist approach used by the Supreme Court in 2004 made them try to imagine what the members of the First Congress had in mind in 1789.
[58] Black's Law Dictionary 446 (7th ed. 1999) (“A denial of justice is a wrongful act under international law. -- Also termed justitia denegata; déni de justice; refus de justice”).
[59] Bradford K. Gathright, A Step in the Wrong Direction: The Loewen Finality Requirement and the Local Remedies Rule in NAFTA Chapter Eleven, 54 Emory Int’l L. Rev. 1093, 1109-10 (2005).
[60] In my opinion, this is the situation faced by Álvarez-Macháin after the Sosa resolution. Furthermore, any alien that suffers a tort will find themselves barred from recovery due to Sosa. And if the legal system does not provide a remedy for torts suffered by the aliens, the United States would be failing to protect those aliens, therefore denying them justice.
[61] Restatement (Third) of the Foreign Relations Law of the United States § 711 cmt. a (1987).
[62] See Genc Trnavci, The Meaning and Scope of the Law of Nations in the Context of the Alien Tort Claims Act and International Law, 26 U. Pa. J. Int’l Econ. L. 193, 258 (2005).
[63] See cases cited supra note 32.
[64] Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2759 (2004).
[65] Jordan J. Paust, Jon M. Van Dyke & Linda A. Malone, International Law and Litigation in the U.S. (West Group, 2nd ed. forthcoming 2005).
[66] Id.
[67] Id. (“Justice Souter had also recognized that the 1781 Resolution addressed two others: (1) acts of hostility against such as are in amity with the U.S.…, and (2) all ‘infractions of treaties and conventions to which the United States are a party’”).
[68] Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2754 (2004) (“We do not believe, however, that the limited, implicit sanction to entertain the handful of international law cum common law claims understood in 1789 should be taken as authority to recognize the right of action asserted by Alvarez here”).
[69] Dred Scott, 60 U.S. at 405 (sustaining that the Court’s duty was to interpret the Constitution “according to its true intent and meaning when it was adopted”).
[70] Brown, 347 U.S. at 492.
[71] See Robert Gordon, The Struggle Over the Past, 44 Clev. St. L. Rev. 123, 132 (1996).
[72] The law is strict, but it is the law nevertheless.