[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_____________ ELEVENTH CIRCUIT
January 4, 2006
No. 02-14427 THOMAS K. KAHN
_____________ CLERK
D.C. Docket No. 99-08364-CV-DTKH
JUAN ROMAGOZA ARCE,
NERIS GONZALEZ,
and CARLOS MAURICIO,
Plaintiffs-Appellees,
versus
JOSE GUILLERMO GARCIA,
an individual,
CARLOS EUGENIO VIDES CASANOVA,
an individual,
Defendants-Appellants.
__________________________
Appeal from the United States District Court
Southern District of Florida
__________________________
(January 4, 2006)
Before TJOFLAT and CARNES, Circuit Judges, and CONWAY*, District Judge.
*
Honorable Anne C. Conway, United States District Judge for the Middle District of
Florida, sitting by designation.
TJOFLAT, Circuit Judge:
On its own motion, entered on August 5, 2005, the court vacated its opinion
issued on February 28, 2005, in Arce v. Garcia, 400 F.3d 1340. We substitute the
following as the opinion of the court:
The three plaintiffs in this case are Salvadoran refugees who were allegedly
tortured by military personnel in El Salvador during a campaign of human rights
violations by the Salvadoran military from 1979 to 1983; the two defendants were
leaders in the Salvadoran military. All of the plaintiffs sought compensatory and
punitive damages under the Torture Victim Protection Act (“TVPA”), 28 U.S.C. §
1350 note;1 two plaintiffs sought the same relief under the Alien Tort Claims Act
(“ATCA”), 28 U.S.C. § 1350.2 A jury awarded the plaintiffs a total of
$54,600,000, and the court entered judgments accordingly. The defendants now
appeal, contending that the statute of limitations bars the plaintiffs’ claims. We
1
The TVPA provides, in relevant part:
(a) Liability.–An individual who, under actual or apparent authority, or color of
law of any foreign nation–
(1) subjects an individual to torture shall, in a civil action, be liable for
damages to that individual . . . .
28 U.S.C. § 1350 note.
2
The ATCA grants district courts “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. The ATCA is a jurisdictional statute that does not, in itself, create a cause of
action. Sosa v. Alvarez-Machain, 542 U.S. 692, 724, 124 S. Ct. 2739, 2761, 159 L. Ed. 2d 718
(2004).
2
conclude, based on the doctrine of equitable tolling, that the claims are not time-
barred.
I.
The plaintiffs in this case are Juan Romagoza Arce, Neris Gonzalez, and
Carlos Mauricio. Arce, a physician, was allegedly kidnaped by Salvadoran
soldiers on or about December 12, 1980 and tortured for approximately twenty-
two days; he arrived in the United States in 1983. Gonzalez, a lay worker with the
Catholic Church, was allegedly abducted by Salvadoran soldiers on December 26,
1979 and tortured for approximately twelve days; she came to the United States in
1997. Mauricio, a college professor, was allegedly kidnaped on June 13, 1983 and
tortured for approximately ten days at the National Police Headquarters; he came
to the United States in 1983.
The defendants in this case are Jose Garcia and Carlos Vides Casanova.
Garcia served as Minister of Defense of El Salvador from 1979 to 1983, and
Casanova served as Director General of the El Salvador National Guard during the
same period. After Garcia resigned as Minister of Defense in 1983, Casanova was
appointed as his successor and held the position of Minister of Defense until he
resigned in 1989. Both defendants became permanent residents of the United
States in 1989, Casanova in August and Garcia in October.
3
II.
A.
Arce and Gonzalez3 commenced this action against Garcia and Casanova on
May 11, 1999, by filing in the United States District Court for the Southern
District of Florida a nine-count complaint seeking compensatory and punitive
damages for torture they allegedly suffered at the hands of Salvadoran military
personnel under the defendants’ command. They invoked the court’s jurisdiction
under the ATCA, by claiming that the torture had been administered in violation
of the law of nations and treaties of the United States,4 and 28 U.S.C. § 1331, by
claiming that the torture was actionable under the TVPA. On November 12,
1999, they moved the court for leave to amend their complaint, in conformance
with the amended complaint attached to their motion, to add as parties plaintiff
Mauricio5 and Jorge Montes. On December 22, 1999, the court granted the motion
3
Gonzalez initially appeared under the pseudonym “Jane Doe.” Gonzalez used her real
name in the second amended complaint and all pleadings subsequent thereto.
4
As noted, supra note 2, only aliens are authorized to bring suit under the ATCA. Arce
sued under the ATCA even though he was naturalized citizen of the United States.
5
Mauricio appeared under the pseudonym “John Doe,” and sought damages only against
Casanova. In his subsequent pleadings, Mauricio used his real name.
4
and, at the same time, dismissed on its own initiative the proposed amended
complaint because it failed to comply with the Rules of Civil Procedure.6
On February 17, 2000, the plaintiffs, now consisting of Arce, Gonzalez,
Mauricio, and Montes, having been granted leave to do so, filed a second amended
complaint (hereafter the “complaint”). Like the initial complaint, it consisted of
nine counts, each containing multiple claims for compensatory and punitive
damages. The first count was brought by all of the plaintiffs under the TVPA.
The remaining counts, in which Arce, not being an alien, did not join, were
brought by Gonzalez, Mauricio, and Montes7 under the ATCA.8 Garcia and
6
See Fed. R. Civ. P. 8(a) (“A pleading . . . shall contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief . . . .”); Fed. R. Civ. P. 10(b) (“Each
claim founded upon a separate transaction or occurrence . . . shall be stated in a separate count . .
. whenever a separation facilitates the clear presentation of the matters set forth.”). The
plaintiffs’ initial complaint was composed of 164 paragraphs, and each of its nine counts
contained more than one claim. The amended complaint contained 85 paragraphs and four
counts. Each count asserted multiple claims under essentially the same legal theories as the
initial complaint. The third and fourth counts also invoked the court’s jurisdiction under 28
U.S.C. § 1367 (supplemental jurisdiction) and 28 U.S.C. § 1332 (diversity jurisdiction) and
sought relief under (unidentified) statutes and common law of Florida and (unidentified) laws of
El Salvador.
7
While the case was in the pleading stage, Montes obtained a voluntary dismissal of his
claims.
8
The second amended complaint omitted the claims based on the laws of Florida and El
Salvador asserted in the third and fourth counts of the amended complaint. As before, this
complaint invoked the court’s jurisdiction under the ATCA for the plaintiffs’ (except Arce’s)
claims that the subject torture had occurred in violation of the law of nations and treaties of the
United States. In the first count, this complaint also sought damages under the TVPA. As noted
supra, the initial and amended complaints cited 28 U.S.C. § 1331 as the jurisdictional basis for
the TVPA count. The second amended complaint failed to cite § 1331 as the jurisdictional basis
5
Casanova answered the second amended complaint,9 denying liability and
asserting several affirmative defenses, including the statute of limitations defense,
the focus of this appeal.10
B.
The question of whether the statute of limitations barred the plaintiffs’
claims was presented to the district court on several occasions prior to trial. The
defendants raised the defense in motions to dismiss11 and for judgment on the
pleadings. The court denied each motion, concluding that the complaint contained
allegations of fact sufficient to make out a case for equitable tolling so as to make
for the first count; rather, it cited the TVPA as the jurisdictional source. The TVPA contains no
jurisdictional provision. The omission of a jurisdictional basis for the first count is not fatal,
however, for we assume jurisdiction under § 1331 when it appears that a complaint’s allegations
state a cause of action under federal law. See Lykins v. Pointer, Inc., 725 F.2d 645, 646 (11th
Cir. 1984) (“The law of this circuit . . . is that ‘where a complaint fails to cite the statute
conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged in the
complaint satisfy the jurisdictional requirements of the statute.’” (quoting Hildebrand v.
Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980))).
9
After answering the second amended complaint, the defendants filed an amended
answer. The amended answer asserted several affirmative defenses, including the statute of
limitations. We treat the answer and amended answer as one and the same.
10
The other affirmative defenses are therefore irrelevant.
11
The defendants moved the court to dismiss the plaintiffs’ claims both before and after
answering the second amended complaint.
6
the plaintiffs’ claims timely.12 The final denial occurred at the pretrial
conference.13
Prior to the commencement of the trial on June 24, 2002, the court gave the
parties a set of jury instructions and elicited their comments. The set did not
include an instruction on the defendants’ statute of limitations defense. In
response, the defendants sent the court an instruction on the statute of limitations
defense. The court did not act on it, however, until trial, after the plaintiffs had
rested and the defendants were putting on their case.
12
In its order of May 31, 2001, the court said:
Plaintiffs argue that their claims were tolled at least until the
Salvadoran civil war ended on January 16, 1992, which is the date
the Salvadoran Peace Accords were negotiated under the auspices
of the United Nations, and the independence of the judiciary was
restored in El Salvador. The court agrees. It is undisputed that
prior to this date, El Salvador was in a state of civil war with
rampant brutal reprisals initiated by death squads and others. In
this environment, plaintiffs had legitimate reason to conclude their
lives, and the lives of their relatives, would be in jeopardy if they
initiated human rights litigation against high government officials
in El Salvador.
Although the court’s order does not indicate the precise source of these facts, it appears
that there were several sources: the second amended complaint and the plaintiffs’ memoranda
filed in response to the defendants’ motions to dismiss and for judgment on the pleadings on the
statute of limitations ground. As noted above, the defendants presented their statute of
limitations defense on several occasions, and the court rejected it each time. In the orders entered
after the May 31, 2001 order, the court summarily rejected the defense without explanation.
13
The pretrial conference was held on May 21, 2002, following which the court entered
an omnibus order on all pending motions, including those relating to the statute of limitations
defense.
7
The jury instruction aside, the question of whether the statute of limitations
barred any of the plaintiffs’ claims as a matter of law surfaced at the conclusion of
the plaintiffs’ case when the defendants moved for judgment as a matter of law.
Defense counsel contended that the claims brought by Arce and Maurcio were
time-barred because they came to the United States in 1983 and could have filed
suit at any time thereafter.14 The court denied the motion. Considering the
evidence in the light most favorable to Arce and Maurcio, the court concluded that
a trier of fact could reasonably find that conditions in El Salvador between 1983
and 1992, when the El Salvador Peace Agreement was reached, justified these
plaintiffs’ delay in filing suit and thus warranted application of equitable tolling.
The question of whether the jury should resolve the equitable tolling issue
(as the defendants’ proposed jury instruction presumed) was taken up in the midst
of the defendants’ case. In the absence of the jury, a colloquy ensued between the
court and counsel over whether equitable tolling was a matter for the jury or the
court to decide. Plaintiffs’ counsel contended that the court should decide the
issue since it sounded in equity. The court agreed and turned to the evidence
bearing on the question of whether the conditions in El Salvador effectively
14
The record is not clear as to whether counsel sought judgment as a matter of law on
Arce’s claim. The court cut counsel off in the midst of his argument, and we infer from the
colloquy that counsel intended to include Arce’s claim along with Maurcio’s.
8
precluded the plaintiffs from filing suit against the defendants until after the El
Salvador Peace Agreement was reached in 1992. The court found that until the
agreement was reached, the fear of reprisals against the plaintiffs’ relatives
orchestrated by people aligned with the defendants excused the plaintiffs’ delay in
prosecuting their claims against the defendants. The court therefore declared the
statute of limitations equitably tolled, and that the plaintiffs’ claims were timely
filed. At this point in the proceedings, and before the jury returned, the plaintiffs
announced that they had reduced their nine-count complaint to three claims of
torture: Arce’s claim under the TVPA and Gonzalez and Mauricio’s claims under
the ATCA.
Following this announcement, the defendants resumed their defense. Both
defendants took the stand. Their testimony related, for the most part, to the issue
of whether they had command responsibility for the torture the plaintiffs allegedly
endured. They testified that they neither ordered the torture nor participated in it.
At the close of all the evidence, defense counsel moved the court for
judgment as matter of law on all claims on the ground that the evidence failed to
establish that the defendants exercised command responsibility for the alleged
torture. As an additional ground for judgment as a matter of law on Mauricio’s
claim, which was lodged against Casanova only, counsel asserted that the claim
9
was barred by the statute of limitations. The court denied the motions, and,
following counsels’ oral arguments, sent the case to the jury. The jury found that
the plaintiffs had been tortured, as alleged, held the defendants liable under the
doctrine of command responsibility, and returned verdicts totaling $54,600,000.
After the jury returned its verdicts, the defendants filed two motions. One,
a motion for judgment as a matter of law or a new trial on all claims, addresses the
focus of this appeal, the statute of limitations defense. It asserts that the statute
had run prior to the commencement of suit and that “no legally or equitably
sufficient reasons” tolled the limitations period. The other motion raises an issue
not before us.15 The court denied their motions, and the defendants appealed.
III.
The defendants’ brief on appeal raises two issues. One of them, the issue
dealt with in the brief’s argument section, merits discussion: Whether the district
15
This motion sought judgment as a matter of law or a new trial on the ground that the
plaintiffs had failed to join indispensable parties, i.e., “the subordinates, their immediate
commanders or supervisors of the Defendants.” The defendants had moved pretrial to dismiss
the case for failure to join such parties, but did not include this ground in their motion for
judgment as a matter of law made at the conclusion of all the evidence. Fed. R. Civ. P. 50(b)
limits the grounds for a post-verdict motion for judgment as a matter of law to those asserted in
the Rule 50(a) motion. See Caban-Wheeler v. Elsea, 71 F.3d 837, 842 (11th Cir. 1996) (holding
that defendants could not raise judicial immunity defense in their Rule 50(b) motion because they
failed to raise the defense in a Rule 50(a) motion).
10
court abused its discretion in equitably tolling the statute of limitations.16 Abuse
of discretion is the standard of review. See Ellis v. Gen. Motors Acceptance
Corp., 160 F.3d 703, 706 (11th Cir. 1998) (noting “discretion” of district courts to
apply equitable tolling). A district court abuses its discretion when it misapplies
the law in reaching its decision or bases its decision on findings of fact that are
clearly erroneous. See Mincey v. Head, 206 F.3d 1106, 1137 n.69 (11th Cir.
16
This issue is raised by the defendants’ notice of appeal, which challenges the district
court’s final judgments. The notice of appeal states that in addition to the judgments, the
defendants are appealing: (1) “Order Denying Defendants’ Motions for Judgments on the
Pleadings and/or New Trial entered July 31, 2002”; (2) “Order Denying Defendants’ Motion to
Dismiss entered July 26, 1999”; (3) “Order Denying Defendants’ Motion to Amend or Alter
Judgment and set Aside Default entered February 12, 2001”; (4) “Order Denying Defendants’
Motion for Judgments of the Pleadings entered June 1, 2001”; (5) "Order Denying Defendants’
Motion for Amendment of Judgment entered June 29, 2001”; (6) "Order Denying Defendants’
Motion and Amended Motion for Judgment on the Pleadings/Failure to Exhaust Remedies
entered July 27, 2001”; and (7) “Omnibus Order on various Pre-Trial Motions entered May 21,
2002.” Of these rulings, only items (1), (4), (5), and (7) relate to the statute of limitations
defense and the equitable tolling issue. In issuing orders (4), (5), and (7), the court did not
exercise its discretion and equitably toll the limitations period; instead, all the court did was to
hold that assuming them to be true, the factual allegations of the complaint were legally sufficient
to make out a case for tolling. In order (1), the court (a) rejected Casanova’s argument that
Mauricio’s claim was time-barred as a matter of law, and (b) denied the defendants a new trial on
the equitable tolling issue as to all claims. This leaves the final judgments. The gist of the
defendants’ argument, as stated in their brief, is that the district court abused its discretion in
tolling the limitations period on all claims. The only time the court exercised its discretion to do
so was at trial, during the presentation of the defendants’ case, when the question arose as to
whether the court, instead of the jury, should decide the equitable tolling issue.
The second issue the defendants’ brief presents is: Whether either defendant fraudulently
concealed his identity or whereabouts from any of the plaintiffs. In raising this issue, the
defendants infer that equitable tolling could occur only during such times as they concealed their
whereabouts, such that they could not be served with process. The issue warrants no discussion
for two reasons: (1) they failed to present an argument for the point in their brief; (2) the
plaintiffs, in contending that equitable tolling rendered timely the filing of their claims, have not
relied on concealment as a basis for tolling.
11
2000). In this case, we find no error in the court’s application of the law or clear
error in its findings of fact.
A.
Statutes of limitations serve important purposes in promoting the fair
administration of justice. As the Supreme Court stated in Burnett v. New York
Central Railroad Co.:
Statutes of limitations are primarily designed to assure fairness to
defendants. Such statutes “promote justice by preventing surprises
through the revival of claims that have been allowed to slumber until
evidence has been lost, memories have faded, and witnesses have
disappeared. The theory is that even if one has a just claim it is unjust
not to put the adversary on notice to defend within the period of
limitation and that the right to be free of stale claims in time comes to
prevail over the right to prosecute them.” Moreover, the courts ought
to be relieved of the burden of trying stale claims when a plaintiff has
slept on his rights.
380 U.S. 424, 428, 85 S. Ct. 1050, 1054, 13 L. Ed. 2d 941 (1965) (quoting Order
of R.R. Tel’rs v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49, 64 S. Ct. 582,
586, 88 L. Ed. 788 (1944)). Statutes of limitations embody the recognition that the
defendant’s interest in promptly facing the plaintiff’s claims along with the court’s
interest in hearing only claims that a plaintiff has diligently pursued can trump the
plaintiff’s right to assert even the most meritorious of claims.
12
The interests of justice, however, can weigh in favor of allowing a plaintiff
to assert untimely claims if circumstances beyond the plaintiff’s control prevented
timely filing. The doctrine of equitable tolling allows a court to toll the statute of
limitations until such a time that the court determines would have been fair for the
statute of limitations to begin running on the plaintiff’s claims. See Justice v.
United States, 6 F.3d 1474, 1475 (11th Cir. 1993) (“The doctrine of equitable
tolling abates the harsh operation of the statute of limitations under certain
circumstances in which barring a plaintiff’s potentially meritorious action would
be unjust.”). “Equitable tolling is appropriate when a movant untimely files
because of extraordinary circumstances that are both beyond his control and
unavoidable even with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271
(11th Cir. 1999) (emphasis added). The plaintiff bears the burden of showing that
such extraordinary circumstances exist. Justice, 6 F.3d at 1479. In determining
whether a plaintiff meets this burden, we must keep in mind that “[equitable]
tolling is an extraordinary remedy which should be extended only sparingly.” Id.
(citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 457-58,
112 L. Ed. 2d 435 (1990)).
We look to the relevant statute for guidance in determining whether
equitable tolling is appropriate in a given situation. “The basic question to be
13
answered in determining whether, under a given set of facts, a statute of
limitations is to be tolled, is one ‘of legislative intent whether the right shall be
enforceable . . . after the prescribed time.’” Burnett, 380 U.S. at 426, 85 S. Ct. at
1053 (alteration in original) (quoting Midstate Horticultural Co. v. Penn. R.R. Co.,
320 U.S. 356, 360, 64 S. Ct. 128, 130, 88 L. Ed. 96 (1943)). We glean legislative
intent from “the purposes and policies underlying the limitation provision, the Act
itself, and the remedial scheme developed for the enforcement of the rights given
by the Act.” Id. at 427, 85 S. Ct. at 1054.
The ATCA and the TVPA promote the protection of human rights
internationally – the ATCA by granting aliens access to the federal courts to
redress torts “committed in violation of the law of nations or treaties of the United
States,” 28 U.S.C. § 1350, and the TVPA by granting relief for victims of torture,
28 U.S.C. § 1350 note. Congress enacted the TVPA “to carry out obligations of
the United States under the United Nations Charter and other international
agreements pertaining to the protection of human rights . . . .”17 Pub. L. No. 102-
256, 106 Stat. 73. Absent a cause of action in the United States courts, some of
17
For the purposes of discussion, we refer to the legislative history behind the TVPA
because it is better documented than that of the ATCA. This is appropriate given that the statutes
share the same statute of limitations, see Cabello v. Fernandez-Larios, 402 F.3d 1148, 1153 (11th
Cir. 2005); the same purpose, see Papa v. United States, 281 F.3d 1004, 1012 (9th Cir. 2002)
(finding that the TVPA and the ATCA share the purpose of protecting human rights); the same
mechanism – civil suits, see id.; and the same location within the United States Code, see id.
14
the most egregious cases of human rights violations might go unheard because
regimes that commit the most serious human rights abuses often possess the most
woefully inadequate legal mechanisms for redressing those abuses. Congress
recognized this problem in enacting the TVPA:
Judicial protection against flagrant human rights violations is often
least effective in those countries where such abuses are most
prevalent. A state that practices torture and summary execution is not
one that adheres to the rule of law. Consequently, the Torture Victim
Protection Act (TVPA) is designed to respond to this situation by
providing a civil cause of action in U.S. courts for torture committed
abroad.
S. Rep. No. 102-249, at 3-4 (1991). This court must therefore apply equitable
tolling to ensure that abuses occurring abroad do not thwart the fair administration
of justice in the courts of the United States.
Congress has provided additional, explicit guidance regarding equitable
tolling in the TVPA context:
The legislation provides for a 10-year statute of limitations, but
explicitly calls for consideration of all equitable tolling principles in
calculating this period with a view toward giving justice to plaintiff’s
rights. Illustrative, but not exhaustive, of the types of tolling
principles which may be applicable include the following. The
statute of limitations should be tolled during the time the defendant
was absent from the United States or from any jurisdiction in which
the same or similar action arising from the same facts may be
maintained by the plaintiff, provided that the remedy in that
jurisdiction is adequate and available. Excluded also from calculation
of the statute of limitations would be the period when a defendant has
15
immunity from suit. The statute of limitations should also be tolled
for the period of time in which the plaintiff is imprisoned or otherwise
incapacitated. It should also be tolled where the defendant has
concealed his or her whereabouts or the plaintiff has been unable to
discover the identity of the offender.
S. Rep. No. 102-249, at 10-11 (emphasis added) (footnoted omitted). Congress
clearly intends that courts toll the statute of limitations so long as the defendants
remain outside the reach of the United States courts or the courts of other,
similarly fair legal systems.
Justice may also require tolling where both the plaintiff and the defendant
reside in the United States but where the situation in the home state nonetheless
remains such that the fair administration of justice would be impossible, even in
United States courts. Absent regime change, those in power may wish to protect
their former leaders against charges of human rights abuses. The quest for
domestic and international legitimacy and power may provide regimes with the
incentive to intimidate witnesses, to suppress evidence, and to commit additional
human rights abuses against those who speak out against the regime. Such
circumstances exemplify “extraordinary circumstances” and may require equitable
tolling so long as the perpetrating regime remains in power. See Cabello v.
Fernandez-Larios, 402 F.3d 1148, 1155 (11th Cir. 2005) (tolling statute of
limitations under the ATCA and the TVPA “[u]ntil the first post-junta civilian
16
president was elected in 1990” for claims against a Chilean military officer);18
Hilao v. Estate of Marcos, 103 F.3d 767, 773 (9th Cir. 1996) (tolling statute of
limitations for TVPA and ATCA claims against former Philippine dictator
Ferdinand Marcos until the Marcos regime in the Philippines was overthrown);19
Forti v. Suarez-Mason, 672 F.Supp. 1531, 1550 (N.D. Cal. 1987) (holding that the
plaintiff raised an issue of fact as to whether the ATCA statute of limitations
should be tolled for claims against an Argentine military officer until a
democratically-elected government took power from a military dictatorship in
Argentina).20
18
In Cabello, the defendant resigned from the Chilean military in 1987 and moved to the
United States in the same year. 402 F.3d at 1153. This court nonetheless tolled the statute of
limitations until the military dictatorship lost power because, until then, “the Chilean political
climate prevented the Cabello family from pursuing any efforts to learn of the incidents
surrounding Cabello’s murder.” Id. at 1155.
19
While not directly analogous, due to the fact that Marcos fled the Philippines
immediately after his regime was ousted in 1986, see 103 F.3d at 771, 773, Hilao supports the
proposition that, in some situations, regime change may be necessary before the limitations
period begins to run for TVPA and ATCA claims. The following factors influenced the court’s
decision to toll the statute of limitations: (1) Marcos and those acting at his direction enjoyed
immunity from suit while he held office; (2) “many victims of torture in the Philippines did not
report the human-rights abuses they suffered out of intimidation and fear of reprisals”; and (3)
the Marcos regime controlled the judiciary. Id. at 773 (emphasis added). Considering these
factors, the Ninth Circuit tolled the statute of limitations for claims against Marcos “until he left
office in February 1986.” Id.
20
The Forti court denied the defendant’s motion to dismiss, 672 F.Supp. at 1535,
because the complaint alleged that the “military’s reign of terror” caused such a breakdown of the
Argentine legal system that the plaintiffs “were denied effective access to Argentine courts” until
the democratically elected government took over from the military dictatorship. Id. at 1550.
17
B.
The evidence before the district court on the equitable tolling issue
established the following:21 A brutal civil war ravaged El Salvador until a United
Nations negotiated peace agreement ended hostilities in 1992.22 A military regime
held power during this time period, and Garcia and Casanova held positions of
power in this regime, Garcia from 1979 until 1983 and Casanova from 1979 until
1989. Both defendants became permanent residents of the United States in 1989,
Casanova in August and Garcia in October. Until the end of civil war in 1992, the
military would have used its significant power to thwart any efforts to redress the
human rights violations that it perpetrated. Evidence of those violations would
have been suppressed. Potential witnesses would have been intimidated and
perhaps tortured if they came forward. The plaintiffs legitimately feared that their
21
The district court found the facts we recite when, during the presentation of the
defendants’ case to the jury, it ruled that the equitable tolling issue should be submitted to and
decided by the court rather than the jury and proceeded to find that the evidence established an
equitable basis for tolling the 10-year limitations period until the end of civil war in 1992.
22
In deciding the tolling issue during the defendants’ presentation of their case, the court
said:
[T]here is no dispute in the facts of this case that there was the discord and
breakdown of civil law and so on in El Salvador. There was a civil war which
was brought to a negotiated resolution in ‘92.
Record, vol. 19, at 2047.
18
family members and friends remaining in El Salvador would be subject to harsh
reprisals and the same brutalities that the plaintiffs suffered.23
The district court’s findings of fact are not clearly erroneous; indeed, they
are heavily supported by the record. The record swells with evidence regarding
the brutality and oppression that the Salvadoran military visited upon the people of
El Salvador. The evidence includes reports on abductions, torture, and murder by
the military. The evidence reveals a judiciary too meek to stand against the
regime. The U.N. Truth Commission Report, published immediately following the
end of civil war in 1992 and presented as part of the plaintiffs’ case in chief,
discloses:
The situation in El Salvador is such that the population at large
continues to believe that many military and police officers in active
service or in retirement, Government officials, judges, members of
[the military regime] and people who at one time or another were
connected with the death squads are in a position to cause serious
physical and material injury to any person or institution that shows a
23
In deciding the tolling issue during the defendants’ presentation of their case, the court
said:
And we talked about the ability to gather evidence, if there were witnesses and so
on, and another aspect of that is the nature of the allegation deals with torture
inflicted by the governmental entities. The fact that the entities were still in power
at that time . . . the fear of retaliation over family members and so on.
...
The facts are that the U.N. Peace Accord did not take place until ‘92, that family
members were present in El Salvador, gathering of evidence, seeking – the fear of
reprisal were legitimate considerations that would allow the court to toll that.
Record, vol. 19, at 2049-50.
19
readiness to testify about acts of violence committed between 1980
and 1991. The Commission believes that this suspicion is not
unreasonable, given El Salvador’s recent history and the power still
wielded or, in many cases, wielded until recently by people whose
direct involvement in serious acts of violence or in covering up such
acts is well known but who have not been required to account for
their acts or omissions.
U.N. Sec. Council, From Madness to Hope: The 12-year War in El
Salvador: Report of the Commission on the Truth for El Salvador, at 22,
U.N. Doc. S/25500 (1993), available at
http://www.usip.org/library/tc/doc/reports/el_salvador/tc_es_03151993_toc.
html.
C.
Given the district court’s findings of fact, we conclude that it was well
within the district court’s discretion to toll the statute of limitations until the
defendants left El Salvador to reside in the United States, Casanova in August
1989 and Garcia in October 1989. The TVPA’s legislative history shows
Congress’s clear intent that courts toll the statute of limitations so long as the
defendants are outside the reach of the United States courts. Such tolling is
especially appropriate in this case; Casanova, as Garcia’s successor, held one of
the most important positions of power within the Salvadoran military until 1989.
One would expect him to retaliate against any victim (of torture) who sued him.
20
When we toll the statute of limitations until the defendants became United States
residents, it becomes clear that Arce and Gonzalez’s claims are timely; they filed
suit on May 11, 1999, within the ten-year statute of limitations for the TVPA and
the ATCA.24 Unlike Arce and Gonzalez, Mauricio did not join the lawsuit until
December 22, 1999, when, with leave of court, Arce and Gonzalez filed their
amended complaint. If the statute of limitations is tolled only until the defendants
became United States residents, Mauricio’s claims are time-barred. The district
court, however, did not abuse its discretion by tolling the statute of limitations
until the end of the civil war in 1992.
The court found that the plaintiffs legitimately feared reprisals from the
Salvadoran military, despite the fact that the defendants resided in the United
States. The military regime, in which both Garcia and Casanova had held
positions of great influence, remained in power. State-sponsored acts of violence
and oppression continued to ravage El Salvador. The very regime against whom
the plaintiffs leveled their accusations remained intent on maintaining its power at
any cost and acted with impunity to do so. Mauricio could not reasonably have
24
The claims Arce and Gonzalez brought in their second amended complaint were
closely related, if not identical, to the claims asserted in their initial complaint and thus were
timely. See Fed. R. Civ. P. 15(c)(2) (“An amendment of a pleading relates back to the date of
the original pleading when . . . the claim . . . asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading .
. . .”).
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expected to achieve justice until after the military regime fell from power in 1992;
only then could the evidence have come to light and Mauricio have made his
claims without fear of reprisal against family and friends in El Salvador.
III.
Statutes of limitations serve important purposes in our legal system and
should be strictly enforced in all but the most egregious of circumstances. Mere
ambient conflict in another country does not, by itself, justify tolling for suits filed
in the United States. From the standpoint of the United States, many countries
oppress their citizens today, and many countries have oppressed their citizens in
decades and centuries past. A lenient approach to equitable tolling would revive
claims dating back decades, if not centuries, when most or all of the eye witnesses
would no longer be alive to provide their accounts of the events in question.
This case, however, exemplifies the kind of “extraordinary circumstances”
that, in the interests of justice, require equitable tolling. The remedial scheme
conceived by the TVPA and the ATCA would fail if courts allowed the clock to
run on potentially meritorious claims while the regime responsible for the heinous
acts for which these statutes provide redress remains in power, frightening those
who may wish to come forward from ever telling their stories. We therefore find
that the district court did not abuse its discretion in holding the plaintiffs’ claims
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to be timely under the doctrine of equitable tolling. The judgment of the district
court is, accordingly,
AFFIRMED.
23