[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-16246 AUGUST 29, 2011
________________________ JOHN LEY
CLERK
D. C. Docket Nos. 07-22459-CV-AJ,
08-21063-CV-AJ
07-22459-CV-AJ:
ELOY ROJAS MAMANI,
ETELVINA ROMAS MAMANI,
SONIA ESPEJO VILLALOBOS,
HERNAN APAZA CUTIPA,
JUAN PATRICIO QUISPE MAMANI, et al.,
Plaintiffs-Appellees,
versus
JOSE CARLOS SANCHEZ BERZAIN,
Defendant-Appellant.
---------------------------------------------------------------------------------------------------
08-21063-CV-AJ:
ELOY ROYAS MAMANI,
Warisata, Bolivia,
ETELVINA RAMOS MAMANI,
Warisata, Bolivia,
SONIA ESPEJO VILLALOBOS,
El Alto, Bolivia,
JUAN PATRICIO QUISPE MAMANI,
El Alto, Bolivia,
TEOFILO BALTAZAR CERRO,
El Alto, Bolivia, et al.,
Plaintiffs-Appellees,
versus
GONZALO DANIEL SANCHEZ DE
LOZADA SANCHEZ BUSTAMANTE,
Defendant-Appellant.
________________________
No. 10-13071
________________________
D.C. Docket Nos. 1:07-cv-22459-AJ,
1:08-cv-21063-AJ
ELOY ROYAS MAMANI,
Warisata, Bolivia,
ETELVINA RAMOS MAMANI,
Warisata, Bolivia,
SONIA ESPEJO VILLALOBOS,
El Alto, Bolivia,
HERNAN APAZA CUTIPA,
JUAN PATRICIO QUISPE MAMANI,
El Alto, Bolivia, et al.,
Plaintiffs-Appellees,
versus
2
JOSE CARLOS SANCHEZ BERZAIN,
GONZALO SANCHEZ DE LOZADA SANCHEZ BUSTAMANTE,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(August 29, 2011)
Before EDMONDSON and MARCUS, Circuit Judges, and FAWSETT,* District
Judge.
EDMONDSON, Circuit Judge.
Plaintiffs are the relatives of persons killed in Bolivia in 2003. All are
citizens and residents of Bolivia. Plaintiffs bring suit under the Alien Tort Statute
(“ATS”) against two of the former highest-level leaders of Bolivia--the former
president of Bolivia, Gonzalo Daniel Sánchez de Lozada Sánchez Bustamante
(“President”), and the former defense minister of Bolivia, José Carlos Sánchez
Berzaín (“Defense Minister,” and together with the President, “defendants”)--for
decisions these leaders allegedly made while in high office. Given the indefinite
*
Honorable Patricia C. Fawsett, United States District Judge for the Middle District of
Florida, sitting by designation.
3
state of the pertinent international law and the conclusory pleadings, we decide that
plaintiffs have failed to state a claim against these defendants.
I. BACKGROUND
Plaintiffs’ claims arise out of a time of severe civil unrest and political
upheaval in Bolivia--involving thousands of people, mainly indigenous Aymara
people--which ultimately led to an abrupt change in government. Briefly stated, a
series of confrontations occurred between military and police forces and protesters.
Large numbers of protesters were blocking major highways, preventing travelers
from returning to La Paz, and threatening the capital’s access to gas and
presumably other needed things. Over two months, during the course of police and
military operations to restore order, some people were killed and more were
injured. The President ultimately resigned his responsibilities, and defendants
withdrew from Bolivia. The entire complaint is attached as an appendix to this
opinion.
Plaintiffs filed suit in federal district court against the President and Defense
Minister personally but on account of their alleged acts as highest-level military
and police officials. Plaintiffs do not contend that defendants personally killed or
4
injured anyone. In their corrected amended consolidated complaint (“Complaint”),
plaintiffs brought claims under the ATS, asserting that defendants violated
international law by committing extrajudicial killings; by perpetrating crimes
against humanity; and by violating rights to life, liberty, security of person,
freedom of assembly, and freedom of association.1 Plaintiffs sought compensatory
and punitive damages.
Defendants moved to dismiss, asserting that the Complaint raised political
questions; that the act-of-state doctrine barred resolution of the suit; and that
defendants were immune from suit under common law head-of-state immunity and
the Foreign Sovereign Immunities Act. Defendants also argued that plaintiffs
failed to state a claim under the ATS and that plaintiffs’ state law claims failed
under both Maryland and Florida law.
The United States government notified the district court that it had received
a diplomatic note from the current government of Bolivia in which the government
of Bolivia formally waived any immunity that defendants might otherwise enjoy.
The United States government accepted the waiver but took no official position on
the litigation.
1
Plaintiffs also alleged violations of the Torture Victim Protection Act (“TVPA”) and
brought state law claims of wrongful death, intentional infliction of emotional distress, negligent
infliction of emotional distress, and negligence. These claims are not at issue in this limited
interlocutory appeal.
5
The district court granted in part and denied in part defendants’ motion to
dismiss.2 Defendants petitioned this Court for permission to bring an interlocutory
appeal. We granted defendants’ petition and allowed them to appeal the issue of
the applicability of the political question doctrine and the issue of whether
plaintiffs had stated a claim under the ATS.3 We now reverse and conclude that
plaintiffs have failed to state a plausible claim for relief against these defendants.
II. DISCUSSION
On appeal, defendants argue that plaintiffs’ suit is barred by the political
question doctrine, that plaintiffs have failed to state a claim under the ATS, and
that defendants are immune from suit. We conclude that plaintiffs have failed to
plead facts sufficient to state a claim under the ATS against these defendants.4
2
The district court concluded that neither the political question doctrine nor the act-of-
state doctrine barred resolution of the suit; that defendants were not immune to suit; that seven of
the nine plaintiffs had pleaded facts sufficient to state a claim under the ATS for extrajudicial
killings; that plaintiffs had pleaded facts sufficient to state a claim under the ATS for crimes
against humanity; and that plaintiffs’ wrongful death claims were timely. The district court
concluded that plaintiffs had not stated a claim for violations of the rights to life, liberty, security
of persons, freedom of assembly, and association under the ATS. The district court also
concluded that plaintiffs’ state law claims for intentional infliction of emotional distress,
negligent infliction of emotional distress, and negligence were time-barred.
3
Defendants appeal as of right the district court’s decision of no immunity.
4
We accept that the present government of Bolivia has waived any immunity that
defendants might otherwise enjoy. For background, see In re Doe, 860 F.2d 40, 44-46 (2d Cir.
6
A.
The ATS is no license for judicial innovation. Just the opposite, the federal
courts must act as vigilant doorkeepers and exercise great caution when deciding
either to recognize new causes of action under the ATS or to broaden existing
causes of action. See Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2764 (2004).
“[C]ourts should require any claim based on the present-day law of nations to rest
on a norm of international character accepted by the civilized world and defined
with a specificity comparable to [violation of safe conducts, infringement of the
rights of ambassadors, and piracy].” Id. at 2761-62 (emphasis added). This
standard is a high one.
For a violation of international law to be actionable under the ATS, the
offense must be based on present day, very widely accepted interpretations of
international law: the specific things the defendant is alleged to have done must
1988) (cited in United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir. 1997)); In re Grand Jury
Proceedings, Doe No. 700, 817 F.2d 1108, 1110-11 (4th Cir. 1987). This case presents no
political question: plaintiffs’ tort claims require us to evaluate the lawfulness of the conduct of
specific persons towards plaintiffs’ decedents, not to decide the legitimacy of our country’s
executive branch’s foreign policy decisions. Cf. Linder v. Portocarrero, 963 F.2d 332, 337 (11th
Cir. 1992) (concluding plaintiffs’ allegations of tort liability did not present a non-justiciable
political question where “the complaint challenge[d] neither the legitimacy of the United States
foreign policy toward the contras, nor d[id] it require the court to pronounce who was right and
who was wrong in the Nicaraguan civil war”). See also Abebe-Jira v. Negewo, 72 F.3d 844, 848
(11th Cir. 1996).
7
violate what the law already clearly is. High levels of generality will not do.
To determine whether the applicable international law is sufficiently
definite, we look to the context of the case before us and ask whether established
international law had already defined defendants’ conduct as wrongful in that
specific context. See id. at 2768 n.27. Claims lacking sufficient specificity must
fail. See id. at 2769 (“Whatever may be said for the broad principle [the plaintiff]
advances, in the present, imperfect world, it expresses an aspiration that exceeds
any binding customary rule having the specificity we require.”).
We do not look at these ATS cases from a moral perspective, but from a
legal one. We do not decide what constitutes desirable government practices. We
know and worry about the foreign policy implications of civil actions in federal
courts against the leaders (even the former ones) of nations. And we accept that
we must exercise particular caution when considering a claim that a former head of
state acted unlawfully in governing his country’s own citizens. “It is one thing for
American courts to enforce constitutional limits on our own State and Federal
Governments' power, but quite another to consider suits under rules that would go
so far as to claim a limit on the power of foreign governments over their own
citizens, and to hold that a foreign government or its agent has transgressed those
limits.” Id. at 2763. Although “modern international law is very much concerned
8
with just such questions, and apt to stimulate calls for vindicating private interests
in [ATS] cases,” the Supreme Court instructs us that federal courts are to exercise
“great caution” when deciding ATS claims. Id.
Broadly speaking, this Court has decided that “crimes against humanity” and
“extrajudicial killings” may give rise to a cause of action under the ATS. See, e.g.,
Romero v. Drummond Co., 552 F.3d 1303, 1316 (11th Cir. 2008) (stating that an
extrajudicial killing is actionable under the ATS where it is committed in violation
of international law); Cabello v. Fernandez-Larios, 402 F.3d 1148, 1151-52 (11th
Cir. 2005) (affirming judgment under the ATS for extrajudicial killing and crimes
against humanity). But general propositions do not take us far in particular ATS
cases. Allegations amounting to labels are different from well-pleaded facts, and
we must examine whether what this Complaint says these defendants did--in non-
conclusory factual allegations--amounts to a violation of already clearly
established and specifically defined international law.
B.
To state a claim for relief under the ATS, a plaintiff must (1) be an alien (2)
suing for a tort (3) committed in violation of the law of nations. Sinaltrainal v.
9
Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009).5 To avoid dismissal of an
ATS claim, a “complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” See Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955,
1974 (2007)).
Stating a plausible claim for relief requires pleading “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged”: this obligation requires “more than a sheer possibility that a
defendant has acted unlawfully.” Id. While plaintiffs need not include “detailed
factual allegations,” they must plead “more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id.
“Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility
of entitlement to relief.’” Id. (quoting Twombly, 127 S. Ct. at 1966).
Following the Supreme Court’s approach in Iqbal, we begin by identifying
conclusory allegations in the Complaint. See id. at 1950. Legal conclusions
without adequate factual support are entitled to no assumption of truth. See id.;
5
The ATS provides that “[t]he 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. § 1350.
10
Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010).
In their “Preliminary Statement,” plaintiffs begin the Complaint by alleging
that defendants “order[ed] Bolivian security forces, including military
sharpshooters armed with high-powered rifles and soldiers and police wielding
machine guns, to attack and kill scores of unarmed civilians.” Then, plaintiffs go
on to allege in a conclusory fashion many other things: that defendants “exercised
command responsibility over, conspired with, ratified, and/or aided and abetted
subordinates in the Armed Forces . . . to commit acts of extrajudicial killing,
crimes against humanity, and the other wrongful acts alleged herein”; that
defendants “met with military leaders, other ministers in the Lozada government to
plan widespread attacks involving the use of high-caliber weapons against
protesters”; that defendants “knew or reasonably should have known of the pattern
and practice of widespread, systematic attacks against the civilian population by
subordinates under their command”; and that defendants “failed or refused to take
all necessary measures to investigate and prevent these abuses, or to punish
personnel under their command for committing such abuses.”
These allegations sound much like those found insufficient by the Supreme
Court in Iqbal: statements of legal conclusions rather than true factual allegations.
Formulaic recitations of the elements of a claim, such as these, are conclusory and
11
are entitled to no assumption of truth. See Iqbal, 129 S. Ct. at 1951 (describing as
conclusory allegations that “petitioners ‘knew of, condoned, and willfully and
maliciously agreed to subject [him]’ to harsh conditions of confinement ‘as a
matter of policy, solely on account of [his] religion, race, and/or national origin’”
and that one defendant was a “principal architect” of and another was
“‘instrumental’ in adopting and executing” the policy at issue (internal citations
omitted)).
Plaintiffs here base their claims on allegations that defendants knew or
should have known of wrongful violence taking place and failed in their duty to
prevent it. Easy to say about leaders of nations, but without adequate factual
support of more specific acts by these defendants, these “bare assertions” are “not
entitled to be assumed true.” Id. See also Sinaltrainal, 578 F.3d at 1268.
Next, we “consider the factual allegations in [plaintiffs’] complaint to
determine if they plausibly suggest an entitlement to relief.” Iqbal, 129 S. Ct. at
1951. Defendants were facing a situation where many of their opponents in
Bolivia were acting boldly and disruptively (for example, blocking major highways
to the nation’s capital and forcing the Defense Minister out of at least one town),
not merely holding--or talking about--political opinions. Plaintiffs pleaded facts
sufficient to show that the President, in the face of significant conflict and
12
thousands of protesters, ordered the mobilization of a joint police and military
operation to rescue trapped travelers; authorized the use of “necessary force” to
reestablish public order; and authorized an executive decree declaring the transport
of gas to the capital city to be a national priority.
Plaintiffs also pleaded facts sufficient to show that the Defense Minister, in
the face of significant conflict and thousands of protestors, ordered the
mobilization of a joint police and military operation to rescue trapped travelers;
directed military personnel; authorized an executive decree declaring the transport
of gas to the capital city to be a national priority; and, at times, accompanied
military personnel in a helicopter from which shots were fired and directed them
where to fire their weapons. Plaintiffs do not allege that a connection exists
between the Defense Minister’s directing of where to fire weapons and the death of
plaintiffs’ decedents.6
We must determine whether these facts, taken as a whole and drawing
reasonable inferences in favor of plaintiffs, are sufficient to make out a plausible
claim that these defendants did things that violated established international law
and gave rise to jurisdiction under the ATS. We do not accept that, even if some
6
That the Defense Minister may have been directing military personnel not to fire at
uninvolved civilians is consistent with the pleadings about his helicopter directives. See Iqbal,
129 S. Ct. at 1950-51 (discussing pleadings that are compatible with lawful inferences).
13
soldiers or policemen committed wrongful acts, present international law embraces
strict liability akin to respondeat superior for national leaders at the top of the long
chain of command in a case like this one. But before we decide who can be held
responsible for a tort, we must look to see if an ATS tort has been pleaded at all.
We look first to plaintiffs’ claims of extrajudicial killing, relying--as did
plaintiffs--on the TVPA definition for guidance.7 Briefly stated, the TVPA states
that an extrajudicial killing must be “a deliberated killing not authorized by a
previous judgment pronounced by a regularly constituted court affording all the
judicial guarantees which are recognized as indispensable by civilized peoples.”
TVPA § 3(a), 28 U.S.C. § 1350.
The district court “conclude[d] that seven of the plaintiffs . . . stated claims
for extrajudicial killings by alleging sufficient facts to plausibly suggest that the
killings were targeted.” D. Ct. Order 25. Facts suggesting some targeting are not
enough to state a claim of extrajudicial killing under already established and
specifically defined international law. But even if the Complaint includes factual
7
Extrajudicial killings are actionable under the TVPA if the killing falls within the
statutory definition, and under the ATS if committed “in violation of the law of nations.”
Romero, 552 F.3d at 1316. We assume for purposes of this discussion that an extrajudicial
killing falling within the statutory definition of the TVPA would also likely violate established
international law. But this may not be true under all circumstances. See Aldana v. Del Monte
Fresh Produce, N.A., 416 F.3d 1242, 1252 (11th Cir. 2005) (“[N]either Congress nor the
Supreme Court has urged us to read the TVPA as narrowly as we have been directed to read the
Alien Tort Act generally.”).
14
allegations that are consistent with a deliberated killing by someone (for example,
the actual shooters), not all deliberated killings are extrajudicial killings.
Plaintiffs allege no facts showing that the deaths in this case met the minimal
requirement for extrajudicial killing--that is, that plaintiffs’ decedents’ deaths were
“deliberate” in the sense of being undertaken with studied consideration and
purpose. On the contrary: even reading the well-pleaded allegations of fact in the
Complaint in plaintiffs’ favor, each of the plaintiffs’ decedents’ deaths could
plausibly have been the result of precipitate shootings during an ongoing civil
uprising.8
Given these pleadings, alternative explanations (other than extrajudicial
killing) for the pertinent seven deaths easily come to mind; for instance, the alleged
deaths are compatible with accidental or negligent shooting (including mistakenly
identifying a target as a person who did pose a threat to others), individual
motivations (personal reasons) not linked to defendants, and so on. For
8
The Complaint may possibly include factual allegations that seem consistent with ATS
liability for extrajudicial killing for someone: for example, the shooters. But to decide whether
plaintiffs have stated a claim for extrajudicial killing against these defendants, we must look at
the facts connecting what these defendants personally did to the particular alleged wrongs. For
extrajudicial killings, we do not accept the following statement of the district court as correct as
a matter of international law or of federal court pleading: “The plaintiffs here allege that their
relatives were killed by the Bolivian armed forces and that at all relevant times the armed forces
acted under the authority of [defendants]. This is sufficient.” D. Ct. Order 27 (citation omitted).
We believe it is insufficient. We do not, in principle, rule out aiding and abetting liability or
conspiratorial liability and so on under the ATS, but the pleadings here are too conclusory to
make out such a claim against these defendants.
15
background, see Iqbal, 129 S. Ct. at 1950-51. Plaintiffs have not pleaded facts
sufficient to show that anyone--especially these defendants, in their capacity as
high-level officials--committed extrajudicial killings within the meaning of
established international law. See generally Belhas v. Ya’alon, 515 F.3d 1279,
1293 (D.C. Cir. 2008) (Williams, J., concurring) (“[Plaintiffs] point to no case
where similar high-level decisions on military tactics and strategy during a modern
military operation have been held to constitute . . . extrajudicial killing under
international law.”).9
Nor have plaintiffs pleaded facts sufficient to state a claim for a crime
against humanity pursuant to established international law. “[T]o the extent that
crimes against humanity are recognized as violations of international law, they
occur as a result of ‘widespread or systematic attack’ against civilian populations.”
Aldana, 416 F.3d at 1247 (quoting Cabello, 402 F.3d at 1161).
9
We note the district court said in its Order that “it is not clear what constitutes an
extrajudicial killing.” D. Ct. Order 24. We agree. When the law applicable to the
circumstances is unclear, we have been warned not to create or broaden a cause of action. See
Sosa, 124 S. Ct. at 2766 n.21 (noting the “requirement of clear definition” for seeking relief from
a violation of customary international law). The only case from this Circuit to give detailed
consideration to the merits of a claim of extrajudicial killing under the ATS was different and
clearer than this case. In Cabello, we concluded that there was sufficient evidence to support a
jury verdict where the former military officer defendant personally commanded a “killing squad”
that killed civilian prisoners who had opposed the military junta; where the defendant assisted in
selecting the plaintiff’s decedent (a political prisoner) for execution after reviewing his prisoner
file; and where the political prisoner was then tortured and killed by the defendant. Cabello, 402
F.3d at 1159-60. The specific targeting of the victim based on his political beliefs, direct
involvement of the defendant, and premeditated and deliberate circumstances of the victim’s
death set Cabello apart from the facts alleged in this case.
16
The scope of what is, for example, widespread enough to be a crime against
humanity is hard to know given the current state of the law.
The Complaint’s factual allegations show that defendants ordered military
and police forces to restore order, to rescue trapped travelers, to unblock roads
(including major highways), and to ensure the capital city’s access to gas and
presumably to other necessities during a time of violent unrest and resistance.
According to plaintiffs, the toll--one arising from a significant civil disturbance--
was fewer than 70 killed and about 400 injured to some degree, over about two
months. The alleged toll is sufficient to cause concern and distress. Nevertheless,
especially given the mass demonstrations, as well as the threat to the capital city
and to public safety, we cannot conclude that the scale of this loss of life and of
these injuries is sufficiently widespread--or that wrongs were sufficiently
systematic, as opposed to isolated events (even if a series of them)--to amount
definitely to a crime against humanity under already established international law.
Allowing plaintiffs’ claims to go forward would substantially broaden, in
fact, the kinds of circumstances from which claims may properly be brought under
the ATS. As we understand the established international law that can give rise to
federal jurisdiction under the ATS, crimes against humanity exhibit especially
wicked conduct that is carried out in an extensive, organized, and deliberate way,
17
and that is plainly unjustified. It is this kind of hateful conduct that might make
someone a common enemy of all mankind. But given international law as it is now
established, the conduct described in the bare factual allegations of the Complaint
is not sufficient to be a crime against humanity under the ATS.
The possibility that--if even a possibility has been alleged effectively--these
defendants acted unlawfully is not enough for a plausible claim. And the well-
pleaded facts in this case do not equal the kind of conduct that has been already
clearly established by international law as extrajudicial killings or as crimes against
humanity. Plaintiffs “would need to allege more by way of factual content to
‘nudg[e]’ [their claims] . . . ‘across the line from conceivable to plausible.’” Iqbal,
129 S. Ct. at 1952 (quoting Twombly, 127 S. Ct. at 1974). The Complaint does
not state a plausible claim that these defendants violated international law, and
these claims must be dismissed.
III. CONCLUSION
The Complaint in this case has all of the flaws against which Iqbal warned.
In addition, the case runs into the limitations that Sosa set for ATS cases: judicial
creativity is not justified. See Sosa, 124 S. Ct. at 2763. For ATS purposes, no tort
18
has been stated.
Plaintiffs, through their claims, seek to have us broaden the offenses of
extrajudicial killings and crimes against humanity. Given the context, the
pleadings are highly conclusory; and the international law applicable to the specific
circumstances is not clearly defined. As we see it, the criteria to judge what is
lawful and what is not lawful, especially for national leaders facing thousands of
people taking to the streets in opposition, is largely lacking.
In a case like this one, judicial restraint is demanded. See id. at 2762. The
ATS is only a jurisdictional grant; it does not give the federal courts “power to
mold substantive law.” Id. at 2755. Because the pertinent international law is not
already clear, definite, or universal enough to reach the alleged conduct (especially
after the pleadings are stripped of conclusory statements), we decline to expand the
kinds of circumstances that may be actionable under the ATS to cover the facts
alleged in this case. The denial of the motion to dismiss these claims is
REVERSED.
REVERSED and REMANDED with instructions to dismiss.
19