Alvarez-Machain v. U.S.

Decision Date19 February 1997
Docket NumberP,Nos. 95-55464,ALVAREZ-MACHAI,95-55768 and 95-56121,s. 95-55464
Parties97 Cal. Daily Op. Serv. 1109, 97 Daily Journal D.A.R. 1721 Humbertolaintiff-Appellee, v. UNITED STATES of America; Antonio Garate-Bustamante; Francisco Sosa, Defendants, and Hector Berellez; Bill Waters; Pete Gruden; Jack Lawn, Defendants-Appellants. Humbertolaintiff-Appellee, v. UNITED STATES of America, et al., Defendant-Appellant. Humbertolaintiff-Appellant, v. UNITED STATES of America, Defendant, and Francisco Sosa; Antonio Garate-Bustamante, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Gary S. Lincenberg and Thomas V. Reichert, Bird, Marella, Boxer Wolpert & Matz, Los Angeles, California, for Antonio Garate-Bustamante; Charles S. Leeper and Karl N. Metzner, Spriggs & Hollingsworth, Washington, DC, for Francisco Sosa.

Peter Goldberger, Ardmore, Pennsylvania, for amicus Human Rights Watch; Harold Hongju Koh, Allard K. Lowenstein, International Human Rights Clinic, New Haven, Connecticut, for amicus Lawyers Committee for Human Rights, et al.

Appeals from the United States District Court for the Central District of California, John G. Davies, District Judge, Presiding. D.C. No. CV 93-04072-JGD.

Before: GOODWIN and SCHROEDER, Circuit Judges, and KING *, District Judge.

GOODWIN, Circuit Judge:

In April 1990 the United States Drug Enforcement Agency (DEA) orchestrated the abduction and torture of Dr. Alvarez-Machain, a Mexican doctor, and transported him to the United States for prosecution for the murder of a DEA agent in Mexico. The criminal case ended when the district court granted a judgment of acquittal.

Alvarez-Machain returned to Mexico and filed this civil action against the United States and its agents under 42 U.S.C. § 1983 and other federal statutes. His claims included the violation of constitutional rights as well as ten torts, ranging from torture to false imprisonment. Defendants moved to dismiss the complaint, and the district court granted the motion in part and denied it in part.

The court dismissed the constitutional claims that were based upon activities occurring in Mexico. The court also dismissed a claim brought under the Torture Victim Protection Act (TVPA). The court refused to dismiss the tort claims as barred by the statute of limitations, and denied the motion based upon the defense of qualified immunity asserted by defendants accused of wrongful conduct within the United States. We affirm the district court in its judgment with respect to all claims other than the TVPA claim. The district court held that it could not apply the TVPA to defendant's actions because the TVPA was enacted subsequent to the pertinent events. Because we hold that application of the TVPA to past acts would not have a retroactive effect, we reverse the district court on this ruling.

FACTS

On April 2, 1990, a team of men alleged to be hired by DEA agents working in Mexico, abducted Dr. Alvarez-Machain from his office in Guadalajara. They blindfolded him, transported him to an unknown location, and proceeded to beat him and subject him to electrical shocks. His kidnappers injected him with unknown chemical substances causing nausea and dizziness, denied him food and water, and forced him to lie face down on the floor for a long period of time. His life was repeatedly threatened, as well as the safety of his family. After enduring this torment for several hours, he was delivered into the hands of the DEA in El Paso, Texas.

Defendant Antonio Garate-Bustamante coordinated and led the activities in Mexico, and defendant Francisco Sosa participated in the events. Both were working as the paid agents of the DEA, who undertook to bring Alvarez-Machain to the United States in order to prosecute him for his alleged role in the murder of DEA agent Enrique Camarena.

Once in El Paso, defendant Garate-Bustamante and several DEA agents interrogated Alvarez-Machain. The DEA agents threatened Alvarez-Machain during the interrogation, denied him food and adequate medical attention, and at one point forced him to stand naked and be photographed. In El Paso, the DEA processed Alvarez-Machain under an assumed name or names, despite knowing his true identity, frustrating efforts by his family members and the Mexican government to learn his whereabouts.

On April 10, 1990, Alvarez-Machain was transferred to Los Angeles and arraigned on charges of murder before United States District Judge Edward Rafeedie. Subsequently, Judge Rafeedie dismissed the charges, concluding that the court lacked jurisdiction over Alvarez-Machain because his abduction violated the extradition treaty between the United States and Mexico. United States v. Caro-Quintero, 745 F.Supp. 599, 601 (C.D.Cal.1990), aff'd sub nom United States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir.1991). The Supreme Court reversed the dismissal, however, and Alvarez-Machain was forced to stand trial. United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992). As noted, the prosecution ended with a judgment of acquittal on December 14, 1992. After the acquittal, Judge Rafeedie revealed that the government had withheld potentially exculpatory evidence from the defense, in addition to failing to take him promptly before a magistrate after he reached United States territory under arrest.

In addition to the cases consolidated in this appeal, Alvarez-Machain filed an administrative claim against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2401(b). He added the United States as a defendant in January, 1994, after the six-month waiting period required by statute had expired. Against all defendants he alleged claims for kidnapping; torture; cruel and inhuman and degrading treatment or punishment; prolonged arbitrary detention; assault and battery; false imprisonment; intentional infliction of emotional distress; false arrest; negligent employment of public employees and agents; negligent infliction of emotional distress; and violations of the Fourth, Fifth and Eighth Amendments to the United States Constitution. Against defendants Garate-Bustamante and Sosa, Alvarez-Machain also alleged a claim under the Torture Victim Protection Act (TVPA). 1

In dismissing the constitutional claims arising out of conduct in Mexico, the district court held that the United States Constitution does not protect Mexican nationals in Mexico from wrongs committed against them by United States government agents engaged in extraterritorial law enforcement. The district court allowed the action to proceed on conduct by DEA agents acting within the United States, however, holding that the alleged conduct, if proved, clearly violated established constitutional rights. Accordingly, as noted, the DEA agents who participated in the El Paso activities were denied dismissal on qualified immunity grounds, and they have appealed that ruling.

The court denied Defendants Garate-Bustamante's and Sosa's motions for dismissal as to all but the TVPA claim, holding that more discovery was necessary to determine the exact relationship between the Mexican defendants and the United States before a determination could be made whether the defense of qualified immunity was available, or whether the United States could be substituted as the defendant on the tort claims based on their conduct in the United States. As for the TVPA, the district court declined to apply it to claims of torture occurring prior to the enactment of the statute, and Alvarez-Machain appeals that ruling.

Finally, with regard to the United States, the district court denied its motion to dismiss the tort claims as barred by the statute of limitations. The court recognized that the statute of limitations raised a potential problem for Alvarez-Machain, but believed more discovery might reveal a basis for equitable tolling of the statute because of the lengthy duration of the plaintiff's incarceration, including his being held incommunicado, and otherwise prevented from timely protecting his civil rights while defending the murder charges against him.

These rulings are the subject of the present interlocutory appeals. 2

DISCUSSION

I. Statute of Limitations-No. 95-55768

The government argues that Alvarez-Machain's FTCA claims are barred by the statute of limitations because he failed to file an administrative claim until July 1993-three years after his alleged abduction and torture.

The FTCA provides:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues....

28 U.S.C. § 2401(b). The key question here is the date of accrual for Alvarez-Machain's claims.

Generally a claim accrues when the plaintiff knows, or in the exercise of reasonable diligence should know, of both the injury and its cause. Dyniewicz v. United States, 742 F.2d 484, 486 (9th Cir.1984). Under our case law, all the torts alleged by Alvarez-Machain accrued more than three years before he filed his administrative claim and so normally would be barred.

In this case, however, Alvarez-Machain's claims of false arrest, false imprisonment, and negligent infliction of emotional distress are not barred by the statute because they did not accrue until after his acquittal in his criminal trial. In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court held that those § 1983 claims of state prisoners which implicated the validity of their convictions would...

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