Jara v. Núñez

• Decision Date: 03 January 2018
• Docket Number: No. 16-15179,16-15179
• Parties: Joan JARA, in her individual capacity, and in her capacity as the personal representative of the Estate of Víctor Jara, Amanda Jara Turner, in her individual capacity, Manuela Bunster, in her individual capacity, Plaintiffs–Appellants, v. Pedro Pablo Barrientos NÚÑEZ, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

878 F.3d 1268

Joan JARA, in her individual capacity, and in her capacity as the personal representative of the Estate of Víctor Jara, Amanda Jara Turner, in her individual capacity, Manuela Bunster, in her individual capacity, Plaintiffs–Appellants,

v.Pedro Pablo Barrientos NÚÑEZ, Defendant–Appellee.

No. 16-15179

United States Court of Appeals, Eleventh Circuit.

January 3, 2018

Mark D. Beckett, Amy Belsher, Christian Urrutia, Cooley, LLP, New York, NY, Richard S. Dellinger, Lowndes Drosdick Doster Kantor & Reed, PA, Orlando, FL, Adriana T. Ingenito, Marc Suskin, Norton Rose Fulbright US LLP, New York, NY, Daniel McLaughlin, L. Kathleen Roberts, Nushin Sarkarati, Center for Justice and Accountability, San Francisco, CA, for Plaintiffs–Appellants.

Pedro Pablo Barrientos Núñez, Pro Se.

Leland H. Kynes, Law Office of Lee Kynes, Esq., for Amicus Curiae Leland H. Kynes.

Before WILLIAM PRYOR, JILL PRYOR, and ANDERSON, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide whether the presumption against extraterritorial application forecloses exercising jurisdiction under the Alien Tort Statute, 28 U.S.C. § 1350, over a complaint that alleges wholly foreign conduct. In 1973, Pedro Pablo Barrientos Núñez, a Lieutenant in the Chilean Army, oversaw and participated in the detention, torture, and murder of Víctor Jara in the days following General Augusto Pinochet's coup in Chile. Barrientos moved to the United States in 1989 and became an American citizen in 2010. In 2013, Víctor's family sued Barrientos in the district court and invoked the Alien Tort Statute and the Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note). The district court dismissed the claims where jurisdiction was based on the Alien Tort Statute because the claims did not "touch and concern the territory of the United States ... with sufficient force to displace the presumption against extraterritorial application." The claims under the Torture Act proceeded to trial, and a jury awarded the Jaras $28 million. The Jaras now appeal the dismissal of their claims where jurisdiction was based on the Alien Tort Statute. We affirm because a federal court may not exercise jurisdiction under the Alien Tort Statute when all of the defendant's relevant conduct took place outside the United States.

I. BACKGROUND

On September 11, 1973, the Chilean military overthrew the government of Chile. In the days following the coup, the military detained many civilians who were allegedly sympathetic to the old government. Víctor Jara was one of these civilians, and he was imprisoned between September 12 and 15. During this period, soldiers under the command of Pedro Pablo Barrientos Núñez "blindfolded, handcuffed, interrogated, brutally beat, and otherwise tortured" Víctor. The abuse ended on September 15, when Barrientos shot Víctor in the head during a game of Russian roulette. Soldiers "then shot Víctor Jara's corpse at least forty times" before discarding the body.

In 1989, Barrientos permanently moved to the United States, and in 2010, he became an American citizen. While in the United States, Barrientos has held employment, owned businesses, owned property, declared bankruptcy, transferred assets, and married an American citizen.

In 2012, Víctor's wife and children discovered that Barrientos was living in the United States, and the Santiago Court of Appeals charged Barrientos for the murder of Víctor. But Barrientos refuses to return to Chile to stand trial, Chile does not permit criminal trials in absentia , and the United States has not agreed to extradite Barrientos.

The Jaras sued Barrientos in the district court and alleged that Barrientos was responsible for "the arbitrary detention, torture, cruel, inhuman or degrading treatment, and extrajudicial killing of Víctor Jara, as well as the crimes against humanity that took place [in Chile]." For the allegations of torture and extrajudicial killing, the complaint asserted both common-law claims that invoked jurisdiction under the Alien Tort Statute, 28 U.S.C. § 1350, and statutory claims under the Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note), that invoked federal-question jurisdiction, 28 U.S.C. § 1331. See Doe v. Drummond Co., Inc. , 782 F.3d 576, 601 (11th Cir. 2015) ("In contrast to the [Alien Tort Statute], which can confer jurisdiction but does not include an independent cause of action, the [Torture Act] provides a cause of action but contains no jurisdictional grant. Our jurisdiction to consider [the] [p]laintiffs' [Torture Act] claims is grounded, instead, in 28 U.S.C. [section] 1331, the general federal question jurisdiction statute." (citation omitted)). And the complaint alleged that the Jaras' remaining common-law claims of cruel, inhuman, or degrading treatment or punishment, arbitrary detention, and crimes against humanity were within the jurisdictional grant of the Alien Tort Statute.

The district court dismissed the claims that invoked the Alien Tort Statute for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The district court explained that the Alien Tort Statute "generally [does not] have extraterritorial application" and that Barrientos's "tortious conduct took place entirely outside the United States." Although the district court weighed Barrientos's American citizenship and the policy goal of denying "a safe haven to human rights abusers," it determined that these considerations could not establish federal jurisdiction.

The Jaras proceeded to trial on their claims of torture and extrajudicial killing in violation of the Torture Act, and the jury awarded the Jaras $28 million in damages. Barrientos failed to appeal this verdict, and he is no longer participating in the litigation. But the Jaras appealed the dismissal of their common-law claims that invoked the jurisdiction of the Alien Tort Statute. This Court appointed amicus curiae to defend the decision of the district court.

II. STANDARD OF REVIEW

"This [C]ourt is under a duty to review its jurisdiction of an appeal at any point in the appellate process," Wahl v. McIver , 773 F.2d 1169, 1173 (11th Cir. 1985), and "[w]e review our subject matter jurisdiction de novo ." Amaya–Artunduaga v. U.S. Att'y Gen. , 463 F.3d 1247, 1250 (11th Cir. 2006) (italics added). "We review a district court order granting a motion to dismiss de novo ...." Randall v. Scott , 610 F.3d 701, 705 (11th Cir. 2010). And "[w]e ... accept as true the facts as set forth in the complaint and draw all reasonable inferences in the plaintiff's favor." Id.

III. DISCUSSION

We divide our discussion in two parts. First, we explain that the judgment in favor of the Jaras' claims under the Torture Act does not moot this appeal because the Alien Tort Statute provides jurisdiction to award relief for at least one common-law claim that is not available under the Torture Act. Second, we hold that the district court correctly dismissed the Jaras' claims that invoked the Alien Tort Statute because Barrientos's relevant conduct occurred exclusively in Chile and a defendant must have engaged in relevant conduct on American soil before a claim carries sufficient force to displace the presumption against extraterritorial application.

A. This Appeal Is Not Moot.

Amicus curiae argues that the Jaras' common-law claims that invoked jurisdiction under the Alien Tort Statute are moot because the Jaras prevailed on claims of torture and extrajudicial killing under the Torture Act premised on the same underlying tortious conduct, but we disagree. "[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome." De La Teja v. United States , 321 F.3d 1357, 1362 (11th Cir. 2003) (quoting Powell v. McCormack , 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) ). But "[a]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot." Campbell–Ewald Co. v. Gomez , ––– U.S. ––––, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016) (quoting Chafin v. Chafin , 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) ).

The Jaras maintain a concrete interest in the outcome of this litigation. In addition to their statutory claims under the Torture Act, the Jaras asserted a common-law claim for "crimes against humanity," for which the Alien Tort Statute provides jurisdiction. This Court has explained that "crimes against humanity" is a distinct claim with distinct factual predicates: "To prove the claim of crimes against humanity, the [plaintiff must] prove a widespread or systematic attack directed against any civilian population." Cabello v. Fernández–Larios , 402 F.3d 1148, 1161 (11th Cir. 2005). In contrast, a plaintiff who sues under the Torture Act need not prove that other victims suffered torture. See § 3(b)(1), 106 Stat. at 73 ("[T]he term ‘torture’ means any act, directed against an individual ...." (emphasis added)). Amicus curiae fails to establish that the jury could not have awarded the Jaras additional damages for Barrientos's alleged "crimes against humanity."

The Jaras also argue that this appeal is not moot because they have asserted jurisdiction under the Alien Tort Statute for claims of "arbitrary detention" and "cruel, inhuman, [or] degrading treatment, or punishment," but we need not decide whether these claims are actionable, especially in the light of conflicting statements in our precedents. The Alien Tort Statute provides federal jurisdiction for a "modest number of international law violations" recognized by "the common law," Sosa v. Alvarez–Machain , 542 U.S. 692, 724, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), and this Court has made inconsistent statements about whether "arbitrary detention" and "cruel, inhuman, [or] degrading treatment, or punishment" are among those violations. Compare Aldana v. Del Monte Fresh...