Linder v. Portocarrero

• Decision Date: 17 June 1992
• Docket Number: No. 90-5862,90-5862
• Parties: David LINDER, Elisabeth Linder, individually and as Co-Personal Representatives of the Estate of Benjamin Linder, John Linder, Miriam Linder, Plaintiffs-Appellants, v. Adolfo Calero PORTOCARRERO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 332

963 F.2d 332

David LINDER, Elisabeth Linder, individually and as Co-Personal Representatives of the Estate of Benjamin Linder, John Linder, Miriam Linder, Plaintiffs-Appellants, v. Adolfo Calero PORTOCARRERO, et al., Defendants-Appellees.

No. 90-5862.

United States Court of Appeals Eleventh Circuit.

June 17, 1992.

Michael Ratner, Center for Constitutional Rights, New York City, for plaintiffs-appellants.

William M. Walker, ACLU Foundation of Southern California, Los Angeles, Cal., for amicus-ACLUS of So. Cal.

Carl R. Schenker, Jr., O'Melveny & Myers, Washington, D.C., Margaret Laura Ratner, Center for Constitutional Rights, New York City, Jules Lobel, Univ. of Pittsburgh Law School, Pittsburgh, Pa., for amicus-Intern. Human Rights Law Group.

Franklin Burt, Tew, Jorden & Schulte, John E. Kirkpatrick, Miami, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY, Circuit Judge, DYER and CLARK ^*, Senior Circuit Judges.

DYER, Senior Circuit Judge:

In this diversity action, plaintiffs appeal the dismissal of an amended complaint seeking damages against the defendants Adolfo Calero Portocarrero, Enrique Bermudez Varela, Aristides Sanchez Herdocia and Indalecio Rodriguez Alaniz, and three organizations, the Nicaraguan Democratic Force, the United Nicaraguan Opposition, and the Nicaraguan Resistance, controlling the Nicaraguan anti-government military forces (contras), for targeting for attack Benjamin Linder, an American citizen working in Nicaragua, and in subsequently causing his capture, torture and murder during the civil war between the Sandanistas and the contras. Although the complaint is prolix and overbroad in many respects, we conclude that the allegations of Florida tort liability state a claim upon which relief may be granted, and we therefore reverse.

The Allegations of the Amended Complaint

Plaintiffs ask us to disregard most of the averments of the amended complaint as surplusage and confine our attention solely to the following allegations: After graduating from college with a mechanical engineering degree in 1983, Linder, as a civilian, went to remote areas of Nicaragua to construct dams and hydroelectric plants. He chose San Jose de Bocay, a town that had never had electricity, as a plant site. In April 1987, Linder went to the site with six co-workers. He wore civilian clothes and carried a rifle. His co-workers were volunteers from a local farming cooperative. Some wore military uniforms and carried guns because, although not Nicaraguan Army soldiers, they were civilian Self-Defense Militia members. Lying in ambush were at least a dozen members of the Nicaraguan Democratic Force (FDN). After Linder and his co-workers put down their rifles and began their work, the FDN patrol attacked them with grenades and machine guns. The patrol shot Linder through both of his legs and his left arm, immobilizing but not mortally wounding him. While he lay defenseless, patrol members tortured him by stabbing him thirty to forty times in the face. He was then executed by shooting him through the temple from a range of less than two feet.

This planned attack on Linder was allegedly part of a policy, pattern and practice of widespread torture targeted at development workers and development projects for the purpose of destroying the projects and terrifying other development workers, foreign and Nicaraguan, from engaging in similar development work.

Four individual defendants, Enrique Bermudez, Adolfo Calero, Aristides Sanchez and Indalecio Rodriguez are allegedly responsible for the torture and murder of Linder. ¹ These individuals, who resided in Miami, Florida, were responsible for the military decisions and operational directions that were issued.

The allegations in the 33-page complaint are painted with a broad brush, culminating in five counts for relief: (1) under the Florida Wrongful Death Act, (2) battery by gunshot, grenade and a sharp pointed instrument, (3) intentional infliction of emotional distress, (4) civil conspiracy and (5) violation of Article 3 of the First Geneva Convention, the Second Geneva Convention and the Protocols thereto, customary international law, and other treaties.

Proceedings in the District Court

The district court granted defendants' motion to dismiss the amended complaint. 747 F.Supp. 1452. It gave three reasons for finding that plaintiffs' claims raised non-justiciable political questions: (1) a lack of judicially manageable standards to adjudicate the merits of the claims, (2) the prospect that the parties would not be able to gather the information necessary to adjudicate the claims, (3) the danger that adjudication of the merits could lead to interference with the conduct of foreign policy by the political branches of the United States government.

Standard of Review

Because this is an appeal from the granting of a motion to dismiss, the amended complaint's allegations must be taken as true and read in the light most favorable to the plaintiffs. Quality Foods de Centro America, S.A. v. Latin American Agribusiness Development Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). A complaint may not be dismissed unless the plaintiff can prove no set of facts which would entitle him to relief. H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195 (1989) (quoting Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)); Conley v. Gibson, 355 U.S. 41, 45-48, 78 S.Ct. 99, 101-103, 2 L.Ed.2d 80 (1957). Errors of law in evaluating the dismissal of the complaint are subject to plenary review by this court. Taffet v. Southern Co., 930 F.2d 847, 851 (11th Cir.1991).

District Court's Reasons for Dismissal

The district court concluded first that 28 U.S.C. § 1331 does not confer federal jurisdiction over claims for relief by an individual predicated upon an alleged breach of customary international law. Second, even if this were not so, it would fail because of the non-governmental status of the defendants. Third, the Geneva Conventions are not self-executing. Fourth, even if suit would otherwise lie under 28 U.S.C. § 1332(a)(3), there can be no judicial redress for injuries occurring outside of the United States during conflicts between belligerents.

The district court found that:

[the amended complaint] is based on the underlying torts of battery and intentional infliction of emotional distress. There are however no applicable standards which would readily permit the fact-finder to thoroughly assess the defendants' liability in this case. As a federal court sitting in diversity jurisdiction, we would ordinarily apply the tort law of Florida to determine the liability of the defendants. However, the plaintiffs have failed to cite, and we are unaware of any instance in which Florida tort law or the tort law of any other jurisdiction has been applied to actions arising out of injuries suffered in the midst of civil war occurring on foreign soil....

The allegations contained in the amended complaint go far beyond the simple claim that Linder was tortiously killed through acts of the defendants. Rather, the plaintiffs have levelled broadbased charges that the participation in acts of warfare and terror against Nicaragua constitute unlawful action....

The realm of issues determinable by a court or jury with reference to Florida tort law simply does not include issues such as these arising out of conflict between belligerents in the midst of a foreign civil war.

Contentions of the Parties

The plaintiffs contend that the district court seriously misread and mischaracterized the complaint to require an expansive judicial inquiry into the contra policies in Nicaragua. While they concede that some allegations of the complaint present theories that could be read broadly, plaintiffs rely on the narrow allegations that the individual defendants operating out of the Southern District of Florida are personally liable for the torture and murder of Linder. The complaint, they say, does not simply allege that agents of the defendants caused the torture and murder of Linder, or that the defendants generally approved particular attacks; rather the defendants themselves ordered Linder's killing because he was a United States citizen.

The plaintiffs argue that the allegations of the defendants' torture and execution of Linder violated fundamental norms of international law that are cognizable under federal question jurisdiction; that Common Article 3 of the Geneva Convention confers private rights on individuals and that its prohibitions on torture and summary execution can be enforced in United States courts; that jurisdiction under municipal tort law is applicable. They further argue that the political question doctrine is inapplicable to the narrow issue posed by this case because the relief sought does not interfere with foreign policy.

The defendants assert that since the plaintiffs' cause of action arises out of conduct by belligerents in a foreign war on foreign soil, it cannot be a matter of judicial complaint. They argue that municipal law does not recognize a claim for relief stemming from the conduct of war on foreign soil, and that neither the Geneva Conventions nor customary international law provides a private right of action. They submit that the political question doctrine bars relief because jurisdiction based upon alleged wrongs in foreign wars would require the court to intrude into foreign policy, create insurmountable information-gathering difficulties, and leave the court without judicially manageable standards.

Discussion

We have little doubt that the broad-based issues alleged in the district court by the plaintiffs only slightly resemble the narrow issue presented to us. We do not agree with the plaintiffs that the district court seriously misread and mischaracterized the complaint to require a broad...