726 F.2d 774 (D.C. Cir. 1984), 81-1870, Tel-Oren v. Libyan Arab Republic

Docket Nº:81-1870, 81-1871.
Citation:726 F.2d 774
Party Name:Hanoch TEL-OREN, in his capacity as father, on behalf of the deceased, Imry Tel-Oren, et al., Appellants, v. LIBYAN ARAB REPUBLIC, et al. Hanoch TEL-OREN, et al., Appellants, v. LIBYAN ARAB REPUBLIC, et al.
Case Date:February 03, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 774

726 F.2d 774 (D.C. Cir. 1984)

Hanoch TEL-OREN, in his capacity as father, on behalf of the

deceased, Imry Tel-Oren, et al., Appellants,



Hanoch TEL-OREN, et al., Appellants,



Nos. 81-1870, 81-1871.

United States Court of Appeals, District of Columbia Circuit

February 3, 1984

Argued March 24, 1982.

Appeals from the United States District Court for the District of Columbia (D.C. Civil Action Nos. 81-0563 & 81-0564).

Michael S. Marcus, Arlington, Va., with whom Oren R. Lewis, Jr., and Richard H. Jones, Arlington, Va., were on brief, for appellants.

Karla J. Letsche, Washington, D.C., for appellee, National Association of Arab Americans. Cherif Sedky and Lawrence Coe Lanpher, Washington, D.C., were on brief, for appellee, National Association of Arab Americans.

Michael Kennedy, New York City, was on brief, for appellee, Palestine Information Office.

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Michael E. Tigar, Washington, D.C., entered an appearance for appellee, Palestine Congress of North America.

Before EDWARDS and BORK, Circuit Judges, and ROBB, Senior Circuit Judge.

Concurring opinions filed by Circuit Judge HARRY T. EDWARDS, Circuit Judge BORK, and Senior Circuit Judge ROBB.


Plaintiffs in this action, mostly Israeli citizens, are survivors and representatives of persons murdered in an armed attack on a civilian bus in Israel in March 1978. They filed suit for compensatory and punitive damages in the District Court, naming as defendants the Libyan Arab Republic, the Palestine Liberation Organization, the Palestine Information Office, the National Association of Arab Americans, and the Palestine Congress of North America. 1

In their complaint, plaintiffs alleged that defendants were responsible for multiple tortious acts in violation of the law of nations, treaties of the United States, and criminal laws of the United States, as well as the common law. Jurisdiction was claimed under four separate statutes: 28 U.S.C. Sec. 1331 (federal question jurisdiction); 28 U.S.C. Sec. 1332 (diversity jurisdiction); 28 U.S.C. Sec. 1350 (providing jurisdiction over actions by an alien alleging a tort committed in violation of the law of nations or a treaty of the United States); and the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. Secs. 1330, 1602-1611. For purposes of our jurisdictional analysis, we assume plaintiffs' allegations to be true.

The District Court dismissed the action both for lack of subject matter jurisdiction and as barred by the applicable statute of limitations. Hanoch Tel-Oren v. Libyan Arab Republic, 517 F.Supp. 542 (D.D.C.1981). Plaintiffs appeal the District Court's rulings on two of their claimed jurisdictional bases, 28 U.S.C. Secs. 1331, 1350, and on the statute of limitations issue.

We affirm the dismissal of this action. Set out below are separate concurring statements of Judge Edwards, Judge Bork, and Senior Judge Robb, indicating different reasons for affirming the result reached by the District Court.

HARRY T. EDWARDS, Circuit Judge, concurring:

This case deals with an area of the law that cries out for clarification by the Supreme Court. We confront at every turn broad and novel questions about the definition and application of the "law of nations." As is obvious from the laborious efforts of opinion writing, the questions posed defy easy answers.

At issue in this case is an aged but little-noticed provision of the First Judiciary Act of 1789, which gives federal courts jurisdiction over a minute class of cases implicating the law of nations. Thus, it is not startling that the central controversy of this action has now produced divided opinions between and within the circuits. The opinions of Judge Bork and Judge Robb are fundamentally at odds with the decision of the Second Circuit in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980), which, to my mind, is more faithful to the pertinent statutory language and to existing precedent. Although I cannot concur in the opinions of my colleagues, I do agree with them that the decision of the District Court should be affirmed. I write separately to underscore the rationale for my decision; I do this because, as will be apparent, there are sharp differences of viewpoint among the judges who have grappled with these cases over the meaning and application of 28 U.S.C. Sec. 1350 (1976). 1

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On March 11, 1978, thirteen heavily armed members of the Palestine Liberation Organization (hereinafter "the PLO") turned a day trip into a nightmare for 121 civilian men, women and children. The PLO terrorists landed by boat in Israel and set out on a barbaric rampage along the main highway between Haifa and Tel Aviv. They seized a civilian bus, a taxi, a passing car, and later a second civilian bus. They took the passengers hostage. They tortured them, shot them, wounded them and murdered them. Before the Israeli police could stop the massacre, 22 adults and 12 children were killed, and 73 adults and 14 children were seriously wounded. Most of the victims were Israeli citizens; a few were American and Dutch citizens. They turned to our courts for legal redress and brought this action for damages asserting jurisdiction under 28 U.S.C. Secs. 1331 and 1350 (1976). The District Court dismissed the action for lack of subject matter jurisdiction. The critical issue on appeal is whether plaintiffs alleged sufficient facts to meet the jurisdictional elements of those sections.


My inquiry into the sufficiency of plaintiffs' allegations is guided by the Second Circuit's decision in Filartiga. For reasons set out below, I adhere to the legal principles established in Filartiga but find that factual distinctions preclude reliance on that case to find subject matter jurisdiction in the matter now before us. Specifically, I do not believe the law of nations imposes the same responsibility or liability on non-state actors, such as the PLO, as it does on states and persons acting under color of state law. Absent direction from the Supreme Court on the proper scope of the obscure section 1350, I am therefore not prepared to extend Filartiga's construction of section 1350 to encompass this case.

The pertinent allegations in Filartiga are as follows. Dr. Joel Filartiga, a Paraguayan known to oppose the Paraguayan Stroessner regime, and his daughter, Dolly, alleged that, in 1976, the defendant Pena-Irala, a Paraguayan police official, had kidnapped and tortured to death Dr. Filartiga's 17-year-old son, Joelito. They claimed he was killed in retaliation for his father's political activities. On the day of the murder, Dolly Filartiga was taken to Pena's home and confronted with her brother's body, which bore marks of severe torture. Thereafter, Filartiga commenced a murder action against Pena in a Paraguayan court. The action was still pending at the time of the Second Circuit opinion.

Pena entered the United States in 1978 on a visitor's visa and remained beyond the term of the visa, living in Brooklyn, New York. Dolly Filartiga, living in Washington, D.C., learned of his presence and notified the Immigration and Naturalization Service. She also filed a civil complaint against him, alleging that he had wrongfully caused her brother's death by torture and seeking compensatory and punitive damages of ten million dollars. Jurisdiction was claimed under the general federal question provision, 28 U.S.C. Sec. 1331 (1976), and under the Alien Tort Statute, 28 U.S.C. Sec. 1350 (1976). The District Court dismissed the complaint on jurisdictional grounds. In so doing, the trial court relied on prior cases in which the Second Circuit had defined the "law of nations" to encompass only relationships between states, or an individual and a foreign state, and not a state's treatment of its own citizens. E.g., Dreyfus v. von Finck, 534 F.2d 24, 30-31 (2d Cir.), cert. denied, 429 U.S. 835, 97 S.Ct. 102, 50 L.Ed.2d 101 (1976); IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir.1975). It concluded that a Paraguayan plaintiff's suit against a Paraguayan defendant did not implicate the law of nations and, therefore,

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did not fit within the jurisdictional limits of section 1350. The Second Circuit reversed the district court and remanded for further proceedings.

Section 1350 provides that a district court shall have original jurisdiction over civil actions "by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." In the absence of an allegation of a treaty violation, the critical issue in Filartiga was whether torture constitutes a violation of the law of nations. In determining that it does, Judge Kaufman reviewed the accepted sources of international law--the usage of nations, judicial opinions and the works of jurists--and concluded that official torture of both aliens and citizens is prohibited by the law of nations. 630 F.2d at 884. That section 1350 was enacted in the Judiciary Act of 1789, ch. 20, Sec. 9, 1 Stat. 73, 77, when world perceptions both of the role of international law and its substantive provisions differed considerably from perceptions of today, did not preclude this result. Judge Kaufman took guidance from The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290, 44 L.Ed. 320 (1900) (holding that the traditional prohibition against seizure of an enemy's coastal fishing vessels had ripened from a standard of comity into a settled rule of international law), and observed that "courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today." 630 F.2d at 881.

The opinion thus established several propositions. First, the "law of nations" is not stagnant and should be construed as it exists today among the nations of the world. Id. Second, one source of that law is the customs...

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