Machain v. USA., ALVAREZ-MACHAI

• Decision Date: 11 September 2001
• Docket Number: 99-56880,DEFENDANTS-APPELLANTS,DEFENDANTS-APPELLEES,PLAINTIFF-APPELLANT,ALVAREZ-MACHAI,GARATE-BUSTAMANTE,No. 99-56762,PLAINTIFF-APPELLEE,99-56762
• Citation: 266 F.3d 1045
• Parties: (9th Cir. 2001) HUMBERTO, v. UNITED STATES OF AMERICA; HECTOR BERELLEZ; BILL WATERS; PETE GRUDEN; JACK LAWN; ANTONIO; FRANCISCO SOSA, AND FIVE UNNAMED MEXICAN NATIONALS CURRENTLY IN THE FEDERAL WITNESS PROTECTION PROGRAM, HUMBERTO, v. FRANCISCO SOSA, AND FIVE UNNAMED MEXICAN NATIONALS CURRENTLY IN THE FEDERAL WITNESS PROTECTION PROGRAM,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1045

266 F.3d 1045 (9th Cir. 2001)

HUMBERTO ALVAREZ-MACHAIN, PLAINTIFF-APPELLANT, v. UNITED STATES OF AMERICA; HECTOR BERELLEZ; BILL WATERS; PETE GRUDEN; JACK LAWN; ANTONIO GARATE-BUSTAMANTE; FRANCISCO SOSA, AND FIVE UNNAMED MEXICAN NATIONALS CURRENTLY IN THE FEDERAL WITNESS PROTECTION PROGRAM, DEFENDANTS-APPELLEES.

HUMBERTO ALVAREZ-MACHAIN, PLAINTIFF-APPELLEE, v. FRANCISCO SOSA, AND FIVE UNNAMED MEXICAN NATIONALS CURRENTLY IN THE FEDERAL WITNESS PROTECTION PROGRAM, DEFENDANTS-APPELLANTS.

No. 99-56762, 99-56880

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 11, 2001

Filed September 11, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Charles S. Leeper, Spriggs & Hollingsworth, Washington, D.C., for appellant/appellee Sosa.

Robert M. Loeb, Department of Justice, Washington, D.C., for appellee/appellant United States of America.

Hamish P.M. Hume, Cooper, Carvin & Rosenthal, Washington, D.C., for appellees Lawn, Gruden, Waters and Berellez.

Paul Hoffman, Aclu, Los Angeles, California, for appellee/ appellant Alvarez-Machain.

William J. Aceves, California Western School of Law, San Diego, for amici curiae International Human Rights Organizations and International Law Scholars.

John P. Schnitker, Department of Justice, Washington, D.C., for amicus curiae United States of America.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding. D.C. No. CV 93-04072-SVW-06; D.C. No. CV 93-04072-SVW

Before: Mary M. Schroeder, Chief Judge, Alfred T. Goodwin, Circuit Judge, and Samuel P. King,¹ District Judge.

Goodwin, Circuit Judge

The appeal and cross-appeals in this case challenge a number of rulings in the litigation which followed the arrest of Humberto Alvarez-Machain ("Alvarez") at his office in Guadalajara by Mexican civilians, including Jose Francisco Sosa ("Sosa"), at the behest of United States Drug Enforcement Agency ("DEA") agents.

FACTUAL & PROCEDURAL BACKGROUND

Alvarez is a medical doctor. He practices in Guadalajara, Jalisco, Mexico. In February, 1985, DEA Special Agent Enrique Camarena-Salazar ("Camarena") was abducted and brought to Guadalajara, tortured, and murdered. Alvarez was present at the house where Camarena was held. In 1990 a federal grand jury in Los Angeles indicted Alvarez for his involvement in the incident, and a warrant was issued for his arrest. DEA Headquarters approved the employment of Mexican nationals to apprehend Alvarez in Mexico and to bring him to the United States. The DEA hired Garate-Bustamente ("Garate"), a Mexican informant, to contact Mexican nationals whom he believed could help in apprehending Alvarez in Mexico. Garate contacted a Mexican businessman, Ignacio Barragan ("Barragan") to assist in the operation. In March, 1990, Barragan asked a former Mexican policeman, Sosa, to participate in Alvarez's apprehension. Barragan told Sosa that the DEA had a warrant for Alvarez's arrest, would pay the operation's expenses, and, if he succeeded in bringing Alvarez to the United States, would recommend Sosa for a Mexican government position.

On April 2, 1990, Sosa and others apprehended Alvarez at his office and held him overnight at a motel. The next day, they flew Alvarez to El Paso, Texas, where federal agents arrested him. Less than twenty-four hours passed between Alvarez's apprehension in Mexico and his transfer to federal custody in El Paso.

Alvarez was brought to Los Angeles for trial and remained in detention from April 1990 until December 1992. Alvarez argued that the federal courts lacked jurisdiction to try him because his arrest violated the United States-Mexico Extradition Treaty. See United States v. Caro-Quintero , 745 F.Supp. 599, 601 (C.D. Cal. 1990). The district court and the Ninth Circuit agreed with him, see id. at 614 and United States v. Alvarez-Machain, 946 F.2d 1466, 1466-67 (9th Cir. 1991), but the Supreme Court disagreed and remanded the case for trial. See United States v. Alvarez-Machain, 504 U.S. 655, 669-70 (1992). Alvarez was acquitted, see Alvarez-Machain v. United States, 107 F.3d 696, 699 (9th Cir. 1996), and he returned to Mexico.

On July 9, 1993, Alvarez filed this action in which he asserted against the United States, Sosa, Garate, five unnamed Mexican civilians, and DEA agents Jack Lawn, Peter Gruden, William Waters, and Hector Berrellez the following claims: (1) kidnaping, (2) torture, (3) cruel and inhuman and degrading treatment or punishment, (4) arbitrary detention, (5) assault and battery, (6) false imprisonment, (7) intentional infliction of emotional distress, (8) false arrest, (9) negligent employment, (10) negligent infliction of emotional distress, and (11) various constitutional torts. The defendants moved to dismiss the complaint. The district court in 1995 granted the motion in part and denied the motion in part. We affirmed in part, reversed in part, and remanded the matter to the district court. See Alvarez-Machain, 107 F.3d at 701.

On summary judgment, the district court entered a judgment against Sosa for kidnaping and arbitrary detention under the Alien Tort Claims Act ("ATCA"). The district court held that Alvarez could recover damages only for his detention prior to his arrival in the United States, applied United States rather than Mexican damage laws, and awarded Alvarez $25,000. The district court substituted the United States for the DEA agents and dismissed Alvarez's Federal Tort Claims Act ("FTCA") claims. Alvarez has appealed the district court's decision to substitute the United States for the DEA agents and its dismissal of his FTCA claims of false arrest, false imprisonment, kidnaping, and intentional and negligent infliction of emotional distress. He also appeals the district court's decision to limit damages to those imposed for his imprisonment in Mexico. He has dropped his allegations of mistreatment in Mexico and in the United States and the related causes of actions. Sosa appeals the judgment against him and assigns error to the district court's choice of federal common law of damages on the ATCA claim. The parties have stipulated to the dismissal of Alvarez's case against Garate.

Alvarez's ATCA claim

The district court found two independent grounds for sustaining jurisdiction and a claim for relief against Sosa for kidnaping under the ATCA. First, it held that state-sponsored abduction within the territory of another state without its consent is a violation of international law of sovereignty. Second, it held that state-sponsored abduction violates customary norms of international human rights law. We hold that Alvarez has standing to recover under the ATCA based only on the second ground.

A. Meaning of "Law of Nations"

The ATCA provides that "[t]he district courts shall have 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 (1993). Sosa argues on appeal that only violations of jus cogens norms are actionable under the ATCA. Jus cogens norms are"rules of international law [that] are recognized by the international community of states as peremptory, permitting no derogation. These rules prevail over and invalidate international agreements and other rules of international law in conflict with them." Restatement (Third) of Foreign Relations Law §§ 102, cmt. k. However, Sosa's contention that there must be a jus cogens violation for the ATCA to apply finds no support in cited cases. ATCA cases have held that the norm must be "specific, universal, and obligatory." In re Estate of Ferdinand E. Marcos, Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994); Martinez v. City of Los Angeles, 141 F.3d 1373, 1383 (9th Cir. 1998). This Court has held that a jus cogens violation satisfies the "specific, universal, and obligatory" standard, Hilao v. Estate of Marcos, 103 F.3d 789, 795 (9th Cir. 1996), but it has never held that a jus cogens violation is required to meet the standard. In Martinez, 141 F.3d at 1383, we stated that arbitrary arrest and detention were actionable under the ATCA, but did not consider whether they constituted jus cogens. We have recognized that the "law of nations," the antecedent to customary international law, and jus cogens are related but distinct concepts. See Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714-16 (9th Cir. 1991). Therefore, we reject Sosa's argument that the ATCA requires a violation of a jus cogens norm and decline to decide whether arbitrary detention and kidnaping reach this heightened standard.

B. Mexican Sovereignty

Alvarez's claim that Sosa should be liable under the ATCA because his kidnaping violated Mexican territorial sovereignty fails. Alvarez lacks standing to sue for the violation. The Supreme Court has held that "the irreducible constitutional minimum of standing contains three elements:" (1) an " `injury in fact' -an invasion of a legally protected interest which is (a) concrete and particularized, and (b)`actual or imminent, not conjectural or hypothetical,' " (2) a "causal connection between the injury and the conduct complained of -the injury has to be `fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court," and (3) the likeliness that the injury will be "redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations omitted). Alvarez's abduction does not satisfy the Lujan test, because Alvarez does not have a legally protected interest in Mexican sovereignty. As the Fifth Circuit has explained, "it is up to the offended nations to determine whether a violation of sovereign interests occurred and requires redress." United States v. Zabaneh, 837 F.2d 1249, 1261 (5th Cir. 1988) (discussing an individual's...