Mamani v. Berzain
| Decision Date | 16 June 2016 |
| Docket Number | No. 14-15128,14-15128 |
| Citation | 825 F.3d 1304 |
| Parties | Eloy Royas Mamani, Etelvina Ramos Mamani, Sonia Espejo Villalobos, Hernan Apaza Cutipa, Juan Patricio Quispe Mamani, et al., Plaintiffs-Appellees, v. Jose Carlos Sanchez Berzain, Gonzalo Sanchez de Lozada, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Steven H. Schulman, Akin Gump Strauss Hauer & Feld, LLP, Washington, DC, Jeremy Bollinger, Mariya Hutson, Jonathan P. Slowik, Michael C. Small, Akin Gump Strauss Hauer & Feld, LLP, David Rudovsky, Kairys Rudovsky Messing & Feinberg, LLP, Los Angeles, CA, Judith Brown Chomsky, Elkins Park, PA, Susan Hannah Farbstein, Tyler R. Giannini, Harvard Law School, Cambridge, MA, Jennifer M. Green, Beth Stephens, Center for Constitutional Rights, New York, NY, Paul Hoffman, Schonbrun DeSimone Seplow Harris Hoffman & Harrison, LLP, Venice, CA, Ira J. Kurzban, Kurzban Kurzban Weinger Tetzeli & Pratt, PA, Miami, FL, for Plaintiffs–Appellees.
Kannon K. Shanmugam, Kevin M. Downey, Greg S. Hillson, Ana Cecilia Reyes, Kristin Ann Shapiro, Williams & Connolly, LLP, Washington, DC, Alan M. Dershowitz, Jack Landman Goldsmith, III, Harvard Law School, Cambridge, MA, Glenn Evan Goldstein, Eliot Pedrosa, Greenberg Traurig, PA, Fort Lauderdale, FL, Mark Paul Schnapp, Greenberg Traurig, LLP, Miami, FL, for Defendant–Appellant.
Before ED CARNES, Chief Judge, TJOFLAT and SENTELLE,* Circuit Judges.
The plaintiffs who brought this Torture Victim Protection Act (TVPA) lawsuit are heirs to eight civilians killed in 2003 by Bolivian troops acting under the direction of the President and Minister of Defense at the time. The TVPA bars courts from hearing claims brought under it “if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.”
Pub. L. No. 102-256, 106 Stat. 73, § 2(b) (1992) (). These plaintiffs have exhausted all of their available Bolivian remedies. They received some compensation through those remedies but not nearly as much as they claim is necessary to fully compensate them for their losses. The defendants contend that the fact the plaintiffs received some compensation through the local remedy bars them from any compensation under the TVPA. In other words, they would have us construe the TVPA so that when it comes to exhaustion, you're barred if you do and barred if you don't. We won't.
Because this is an appeal from the denial of a Federal Rule of Civil Procedure 12(b)(6) motion, we take the facts as stated in the second amended complaint, accepting them as true and construing them in the light most favorable to the plaintiffs. See United States ex rel. Lesinski v. S. Fla. Water Mgmt. Dist. , 739 F.3d 598, 600 n. 2 (11th Cir.2014).
Defendant Gonzalo Sánchez de Lozada Sánchez Bustamante (Lozada) was twice elected President of Bolivia, serving from 1993 to 1997 and again from August 2002 to October 2003. Defendant José Carlos Sánchez Berzaín (Berzaín) served as Minister of Defense of Bolivia from August 2002 to October 2003. This case arises from actions they took during Lozada's second term to quash opposition to his administration.
Before they even took office, Lozada and Berzaín knew that certain economic programs they planned to implement, particularly their plan to export natural gas, would probably trigger political protests. They agreed that if their programs provoked widespread protest, they would use military force to kill as many as 2,000 or 3,000 civilians in order to squelch the opposition.
In mid-September 2003, Lozada announced that the government was finalizing a contract to sell natural gas to Mexico and the United States. As he and Berzaín anticipated, the announcement triggered widespread opposition and protest. The protestors, among other things, blocked roads by digging trenches in them or covering the roads with rocks or other impediments. One road they blocked ran between La Paz and Sorata, which is a small town in the mountains several hours from La Paz. Hundreds of foreign tourists were trapped in Sorata by the roadblocks. The Lozada government decided to use the foreign tourists as a justification for military force against the protestors blocking the roads. On September 19 in a meeting of military officials chaired by Berzaín, plans were made to use military force to carry out Lozada's order to clear the road and rescue the tourists. What followed was a series of operations in September and October 2003 designed to suppress opposition to the Lozada administration. In those operations, troops killed 58 civilians and injured over 400. Eight of those killed were relatives of the plaintiffs.
On October 17, 2003, the United States embassy issued a statement withdrawing support for Lozada and his administration. He resigned the presidency that same day and fled, along with Berzaín, to the United States. That night the commander of the army “issued a statement in which he acknowledged that members of the Armed Forces had successfully complied with the orders of their superiors.”
In November 2003 the new Bolivian government passed a “Humanitarian Assistance Agreement” that provided “humanitarian assistance compensation” to the heirs of those killed by the Lozada government's use of military force. The agreement provided payments of 55,000 bolivianos as general compensation and 5,000 bolivianos for funeral expenses. The total amount provided, 60,000 bolivianos, was equivalent to about eight times the average annual income in Bolivia. See Mamani v. Berzain , 636 F.Supp.2d 1326, 1329 (S.D.Fla.2009) (“Mamani I ”). All the plaintiffs have received the full amount of compensation available under the agreement.
In 2007 the prosecutor for a specially convened Trial of Responsibilities filed a formal indictment charging the defendants and 15 other high-ranking former government officials with various crimes. The ones who had not fled Bolivia were all found “guilty of the crime of genocide through mass killings.” Lozada and Berzaín had fled, the United States has refused to extradite them, and Bolivia does not permit trials in absentia. As a result, the two of them have not been tried. Bolivia has declared them fugitives from justice.
The amended complaint sought relief under: (1) the Alien Tort Statute (ATS), 28 U.S.C. § 1350 ; (2) the Torture Victim Protection Act, Pub. L. No. 102-256, 106 Stat. 73, § 2(b) (1992) (); and (3) state law.1 It alleged that in the military operations of September and October 2003, Lozada and Berzaín caused disproportionate force to be used against civilians in order to quell opposition to their administration, which resulted in the extrajudicial killings of eight of the plaintiffs' relatives. Plaintiffs sought compensatory, punitive, and exemplary damages (in amounts to be determined at trial), as well as costs and attorney's fees. The defendants filed a motion to dismiss the amended complaint, which the district court disposed of in two separate orders.
The first order dismissed the plaintiffs' TVPA claims for failure to satisfy the exhaustion requirement in § 2(b) of that act. Mamani I , 636 F.Supp.2d at 1332–33. The court reasoned that the plaintiffs had failed to exhaust a newly available local remedy created in 2008 by Bolivian Law No. 3955, which provided further compensation to the heirs of those killed by the Lozada government, and that they were required to exhaust that remedy before they could proceed with their TVPA claims. Id. at 1329–33. The second order dismissed some of the plaintiffs' ATS claims and one of their state-law claims but refused to dismiss others.
The district court granted the defendants' motion to certify an interlocutory appeal of that second order involving the issue of whether the complaint failed to state ATS claims, and we granted them permission to appeal that order. See 28 U.S.C. § 1292(b). On appeal, we held that the plaintiffs had not alleged sufficient facts to make out claims for relief under the ATS, reversed the denial of the motion to dismiss, and remanded with instructions to dismiss. Mamani v. Berzain , 654 F.3d 1148, 1152–57 (11th Cir.2011) ( “Mamani II ”). Which the district court did.
While their interlocutory appeal from the district court's second order was pending, the plaintiffs did what that court's first order on the motion to dismiss, which involved the TVPA claims, had required them to do. They sought compensation under Bolivian Law No. 3955. As heirs of the victims, they received the benefits they were entitled to under that law: (1) a free public university education to obtain a bachelor's degree; and (2) a payment of about 145,000 bolivianos. At the time, the 145,000 bolivianos, which equaled USD $19,905.56, was about 15 times the average annual income in Bolivia. Mamani I , 636 F.Supp.2d at 1329–30. When the award under Bolivian Law No. 3955 was combined with the payment they had already received under the 2003 Humanitarian Assistance Agreement, each plaintiff received from their Bolivian remedies total compensation worth 205,000 bolivianos, which is about 23 times the average annual income in Bolivia. That is the equivalent of USD $28,264.17 (based on the 2008 exchange rate), not counting the value of the free education, which is not disclosed in the record. See id.
On remand from the interlocutory appeal of the second order, involving the ATS claims, the plaintiffs sought and received leave to amend their complaint again in light of this Court's decision in that appeal. Their second amended complaint added close to one hundred paragraphs of allegations. It once again sought relief under the ATS, the TVPA, and state law; the defendants once again moved to dismiss; and the district court once again granted the motion to dismiss in part and denied it in part. Mamani v. Berzaín , 21 F.Supp.3d 1353, 1364, 1379 (S...
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