Abebe-Jira v. Negewo

United States Court of Appeals,
Eleventh Circuit.

No. 93-9133.

Hirute ABEBE-JIRA; Edgegayehu Taye; Elizabeth Demissie,
Plaintiffs-Appellees,

v.

Kelbessa NEGEWO a/k/a Kelbessa Negaw, a/k/a Kellbessa, Defendant-
Appellant.

Jan. 10, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:90-02010-CV-GET), G. Ernest Tidwell,
Judge.

Before HATCHETT and COX, Circuit Judges, and JOHNSON, Senior
Circuit Judge.

HATCHETT, Circuit Judge:

Appellant, Kelbessa Negewo, appeals a judgment of the District

Court for the Northern District of Georgia awarding compensatory

and punitive damages to appellees, Hirute Abebe-Jira, EdgeGayehu

Taye, and Elizabeth Demissie, for torture and cruel, inhuman, and

degrading treatment, pursuant to the Alien Tort Claims Act, 28

U.S.C. § 1350. We affirm.
FACTS

In the mid-1970s, a military dictatorship, known as "the

Dergue," ruled Ethiopia and employed a campaign of torture,

arbitrary imprisonment, and summary executions against perceived

enemies of the government. Leaders of local governing units

carried out the terror campaign, called "the Red Terror," at the

local level. The dictatorship divided Ethiopia's capital, Addis

Ababa, into twenty-five governing units called Higher Zones.

During the relevant period, Negewo served as chairman of Higher
Zone 9.

In December 1977, guards from Higher Zone 9 arrested Abebe-

Jira and took her to a prison where she met Negewo. She remained

imprisoned for two weeks without any charges being filed against

her. In January 1978, Higher Zone 9 guards arrested Abebe-Jira and

her sixteen-year-old sister and took them to the prison where

Abebe-Jira had been previously detained. Negewo and other men

tortured and interrogated Abebe-Jira for several hours. They

ordered her to undress, bound her arms and legs, and whipped her on

her legs and back with a wire. Abebe-Jira's torturers also

repeatedly threatened her with death. The district court found

that Negewo personally supervised at least some of the

interrogation and torture of Abebe-Jira and also personally

interrogated and participated directly in some of the acts of

torture. Following her interrogation and torture, Abebe-Jira

remained imprisoned for three months.

Higher Zone 9 guards arrested Taye in February 1978. Shortly

after her arrest, Negewo and guards interrogated and tortured her

for a period of several hours. Negewo and several guards

instructed Taye to remove her clothes, bound her arms and legs

together, hung her from a pole, and severely beat her. They then

poured water onto her wounds to increase her pain. Taye received

no medical care for the wounds and, as a result of the torture,

bears permanent physical scars. Taye remained incarcerated for a

period of ten months, and during that time she endured frequent

interrogations and several incidents of torture. The district

court found that Negewo personally supervised and participated in
some of the interrogation and torture of Taye.

In April 1977, Negewo and several guards arrested Demissie, a

seventeen-year-old student, three of her sisters, and her father.

Demissie and her family remained imprisoned for two weeks without

charges. In October 1977, Higher Zone 9 guards again arrested

Demissie and her fifteen-year-old sister, Haimanot. After being

detained at two different prisons, guards took Demissie and her

sister to the jail in Higher Zone 9 that Negewo controlled, where

guards interrogated and tortured them. The guards ordered Demissie

to undress, bound her arms and feet, placed a wooden pole under her

legs, and lifted her into the air; then, they beat her severely.

After torturing her, the guards returned Demissie to her cell with

her sister. Several days later, guards took Demissie's sister from

the cell. Demissie and her family have not heard from nor seen

Haimanot since that day. Demissie remained in custody until June

1978. The district court found that Negewo personally supervised

some of the interrogation and torture of Demissie.

Following their release, the appellees fled Ethiopia and

sought exile in the United States and Canada. In 1989, Taye

encountered Negewo in an Atlanta, Georgia, hotel where they both

worked.

PROCEDURAL HISTORY

In September 1990, the appellees filed this lawsuit against

Negewo charging him with responsibility for their torture and other

cruel acts in violation of the Alien Tort Claims Act, 28 U.S.C. §

1350. Prior to trial, Negewo made three requests for the

appointment of counsel. The district court denied the first two
requests on the ground that Negewo had not made a showing

sufficient to authorize or justify the appointment. The district

court apparently did not enter a written order on Negewo's third

request. Following a two-day bench trial, the court found Negewo

liable for the torture and cruel, inhuman, and degrading treatment

of the appellees and awarded each appellee $200,000 in compensatory

damages and $300,000 in punitive damages. Negewo appeals.

CONTENTIONS

Negewo argues that the district court lacked subject matter

jurisdiction because the Alien Tort Claims Act neither provides a

private right of action, nor incorporates a right of action through

reference to a treaty or federal law. He also contends that this

suit is barred because it involves a nonjusticiable political

question.*

The appellees contend that a literal reading of the Alien Tort

Claims Act demonstrates that the district court had subject matter

jurisdiction. They also contend that the political question

doctrine does not bar this action.

DISCUSSION

Subject Matter Jurisdiction Under the Alien Tort Claims Act

*
Negewo presses two other claims that we reject in summary
fashion. First, Negewo asserts that the applicable statute of
limitations, which he contends is Georgia's two-year limitation
for tort actions, bars this lawsuit. Negewo, however, did not
raise this claim below; accordingly, we will not consider it on
appeal. Second, Negewo argues that the district court erred in
failing to grant his requests for appointment of counsel. In a
civil case, appointment of counsel "is justified only by
exceptional circumstances." Fowler v. Jones, 899 F.2d 1088, 1096
(11th Cir.1990). Because Negewo has not demonstrated exceptional
circumstances, we hold that the district court did not abuse its
discretion in denying his requests for counsel.
 The subject matter jurisdiction of the district court is a

question of law we review de novo. United States v. Perez, 956

F.2d 1098, 1101 (11th Cir.1992).

The Alien Tort Claims Act provides: "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.A. § 1350 (West 1993). The

leading case interpreting the Alien Tort Claims Act was decided by

the Second Circuit Court of Appeals in Filartiga v. Pena-Irala, 630

F.2d 876 (2d Cir.1980). In 1979, Dolly Filartiga, who had

immigrated to the United States, learned that Americo Norberto

Pena-Irala, a former Paraguayan police official, was residing in

Brooklyn, New York. Thereafter, Filartiga and her father, Dr. Joel

Filartiga, filed a wrongful death action in federal district court

under section 1350, alleging that in 1976 Pena-Irala kidnapped and

tortured to death Joelito Filartiga, Dr. Filartiga's

seventeen-year-old son. The district court dismissed the

Filartigas' complaint for lack of subject matter jurisdiction. The

court of appeals reversed, however, recognizing the emergence of a

universal consensus that international law affords substantive

rights to individuals and places limits on a state's treatment of

its citizens. Filartiga, 630 F.2d at 880-87. The court of appeals

emphasized that federal courts considering whether to assume

jurisdiction under section 1350 should interpret international law

as it has evolved and exists at the time of the case. Filartiga,

630 F.2d at 881. The court then concluded that official torture is

now prohibited by the law of nations. Filartiga, 630 F.2d at 884.
 The Filartiga court was not squarely presented with the

question of whether the Alien Tort Claims Act provided a private

right of action. The Second Circuit, however, in dicta,

"construe[d] the Alien Tort Statute, not as granting new rights to

aliens, but simply as opening the federal courts for adjudication

of the rights already recognized by international law." Filartiga,

630 F.2d at 887. Since Filartiga, a majority of courts have

interpreted section 1350 as providing both a private cause of

action and a federal forum where aliens may seek redress for

violations of international law. See, e.g., Kadic v. Karadzic, 70

F.3d 232, 236 (2d Cir.1995) ("[The] Act appears to provide a remedy

for the appellants' allegations of violations related to genocide,

war crimes, and official torture...."); Hilao v. Estate of Marcos

(In re Estate of Ferdinand Marcos, Human Rights Litigation ), 25

F.3d 1467, 1474-75 (9th Cir.1994) ("Marcos ") (rejecting the

assertion that section 1350 is a jurisdictional provision that does

not grant a cause of action and concluding that the section

"creates a cause of action for violations of specific, universal

and obligatory international human rights standards"), cert.

denied, --- U.S. ----, 115 S.Ct. 934, 130 L.Ed.2d 879 (1995);

Xuncax v. Gramajo, 886 F.Supp. 162, 179 (D.Mass.1995) ("§ 1350

yields both a jurisdictional grant and a private right to sue for

tortious violations of international law ... without recourse to

other law as a source of the cause of action."); Paul v. Avril,

812 F.Supp. 207, 212 (S.D.Fla.1993) ("The plain language of the

statute and the use of the words "committed in violation' strongly

implies that a well pled tort[,] if committed in violation of the
law of nations, would be sufficient [to give rise to a cause of

action]."); Forti v. Suarez-Mason, 672 F.Supp. 1531, 1539

(N.D.Cal.1987) (same), on reconsideration on other grounds, 694

F.Supp. 707 (N.D.Cal.1988). But see Tel-Oren v. Libyan Arab

Republic, 726 F.2d 774, 798 (D.C.Cir.1984) (Bork, J., concurring)

(concluding that neither federal common law, federal statute, nor

international law affords an alien plaintiff a cause of action),

cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985).

We reject Negewo's assertion that the district court lacked

subject matter jurisdiction because the Alien Tort Claims Act does

not provide a private right of action. On its face, section 1350

requires the district courts to hear claims "by an alien for a tort

only, committed in violation of the law of nations." 28 U.S.C.A.

§ 1350 (West 1993) (emphasis added). We read the statute as

requiring no more than an allegation of a violation of the law of

nations in order to invoke section 1350. See, e.g., Kadic, 70 F.3d

at ---- ("[The] statute confers federal subject-matter jurisdiction

when the following three conditions are satisfied: (1) an alien

sues (2) for a tort (3) committed in violation of the law of

nations (i.e., international law)."); Marcos, 25 F.3d at 1475 ("

"[N]othing more than a violation of the law of nations is required

to invoke section 1350.' ") (quoting Tel-Oren, 726 F.2d at 779

(Edwards, J., concurring)); Xuncax, 886 F.Supp. at 180 ("All that

the statute requires is that an alien plaintiff allege that a

"tort' was committed "in violation' of international law or treaty

of the United States."). Moreover, the "committed in violation"

language of the statute suggests that Congress did not intend to
require an alien plaintiff to invoke a separate enabling statute as

a precondition to relief under the Alien Tort Claims Act. See,

e.g., Handel v. Artukovic, 601 F.Supp. 1421, 1427 (C.D.Cal.1985)

("[T]he "violation' language of section 1350 may be interpreted as

explicitly granting a cause of action...."); Paul, 812 F.Supp. at

212 (same); Forti, 672 F.Supp. at 1539 (same). Lastly, we find

support for our holding in the recently enacted Torture Victim

Protection Act of 1991 (TVPA), Pub.L. No. 102-256, 106 Stat. 73.

In enacting the TVPA, Congress endorsed the Filartiga line of

cases:

The TVPA would establish an unambiguous and modern basis for
a cause of action that has been successfully maintained under
an existing law, section 1350 of the Judiciary Act of 1789
(the Alien Tort Claims Act), which permits Federal district
courts to hear claims by aliens for torts committed "in
violation of the law of nations."

H.R.Rep. No. 367, 102d Cong., 2d Sess. 3, reprinted in 1992

U.S.C.C.A.N. 84, 86 (emphasis added). Congress, therefore, has

recognized that the Alien Tort Claims Act confers both a forum and

a private right of action to aliens alleging a violation of

international law.

Accordingly, we conclude that the Alien Tort Claims Act

establishes a federal forum where courts may fashion domestic

common law remedies to give effect to violations of customary

international law. See, e.g., Kadic, 70 F.3d at 236; Filartiga,

630 F.2d at 887; Xuncax, 886 F.Supp. at 179-83. Congress, of

course, may enact a statute that confers on the federal courts

jurisdiction over a particular class of cases while delegating to

the courts the task of fashioning remedies that give effect to the

federal policies underlying the statute. See, e.g., Textile
Workers of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1

L.Ed.2d 972 (1957).

Applicability of the Political Question Doctrine

Negewo also contends that this case should have been

dismissed because it presents a nonjusticiable political question.

The political question doctrine prevents the judicial branch from

deciding issues textually committed to the legislative or executive

branches. Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706, 7

L.Ed.2d 663 (1962). However, "it is error to suppose that every

case or controversy which touches foreign relations lies beyond

judicial cognizance." Baker, 369 U.S. at 211, 82 S.Ct. at 706. In

Linder v. Portocarrero, 963 F.2d 332, 337 (11th Cir.1992), we held

that the political question doctrine did not bar a tort action

instituted against Nicaraguan contra leaders. Consequently, we

reject Negewo's contention in light of Linder.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED.