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.