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UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CASE NO. 93-9133 KELBESSA NEGEWO, A/K/A KELBESSA NEGAW, DEFENDANT-APPELLANT, V. HIRUTE ABEBE-JIRA, EDGEGAYEHU TAYE, AND ELIZABETH DEMISSIE, PLAINTIFFS-APPELLEES. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA REPLY BRIEF OF DEPENDANT-APPELLANT JOHN MATTESON, ESQUIRE "ATTORNEY FOR KELEESSA NEGEWO APPEARING PRO BONO 230 PEACHTREE STREET, N.W. SUITE 900 ATLANTA, GEORGIA 30303 (404) 584-0872 TABLE OF CONTENTS PAGE TABLE OF CONTENTS I TABLE OF CITATIONS ii ARGUMENT AND CITATIONS OF AUTHORITY 1 I. THE DISTRICT COURT DID NOT HAVE JURISDICTION OVER APPELLANT PURSUANT TO THE ALIEN TORT STATUTE 1 A. ANALYSIS OF THE ALIEN TORT STATUTE IN CONNECTION WITH ARGUMENTS RAISED BY APPELLEES 1 B. APPELLEES CLAIMS ARE TIME-BARRED BY THE STATUTE OF LIMITATIONS 4 II. APPELLEES CANNOT ASSERT NOR ARE THEY ENTITLED TO CLAIM RELIEF UNDER THE TORTURE VICTIM PROTECTION ACT 6 A. RETROACTIVITY IS NOT APPLICABLE HERE 6 B. APPELLEES HAVE NOT ESTABLISHED THAT THEY HAVE EXHAUSTED ALL ADEQUATE AND AVAILABLE REMEDIES IN ETHIOPIA 7 C. APPELLEES' TVPA CLAIMS ARE TIME-BARRED BY THE STATUTE OF LIMITATIONS 8 III. THE DISTRICT COURT ERRED IN NOT RULING ON APPELLANT'S THIRD REQUEST FOR APPOINTMENT OF COUNSEL 8 CONCLUSION 12 TABLE OF CITATIONS CASES PAGE Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988) 8 Filartiga v. Pena-Irala, 630 F. 2d 876, (2nd Cir. 1980) 1,2,3,6 *Fort) v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal 1987), reconsideration granted in part, 694 F. Supp. 707 4,5 Landgraf v. USI Film Products, U.S , 114 S.Ct. 1483 (1994) 6 *Poole v. Lambert, 819 F. 2d. 1025 (llth Cir. 1987) 9 *Tel-Oren v. Libvan Arab Republic, 726 F.2d. 774 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985) 2,4 STATUTES *28 U.S.C. Section 1350 1,2,3,4,5,8,9 LEGISLATION *Torture Victim Protection Act, Pub L. No. 102-256, 106 Stat. 78 (1992) 6,8,9 MISCELLANEOUS *137 Cong. Rec. H11244 (daily ed. November 25, 1991) 8 H.R. 2092, 102 Cong., 1st sess. (1991) 8 JOURNALS AND LAW REVIEW ARTICLES PAGE *Alien Tort Statute and How Individuals Violate International Law, 21 Van. J. Transnational Law 47 (1988) 2 *Burley. The Alien Tort Statute and The Judiciary Act of 1789. A Badge of Honor, 83 Am. Int'l. L. 461 (1990) 4 *Courts Open UP to Foreign Lawsuits, Wall Street Journal (October 16, 1992) 3 *Jacobsen, Case Comment. 28 U.S.C. 1350 A Legal Remedy For Torture in Paracuay. 69 Geor. L.J. 833 (1986) 2 *Simon. The Alien Tort Claims Act: Justice or Show Trials?, 11 Boston University Int'l. Law Journal Spring 1993 1,2,3,4,6,7 Sinclair, The Vienna Convention on the Law of Treaties, (2d ed. 1984) 7 *Stephens, Suing for Torture and Other Human Rights Abuses in Federal Court: A Litigation Manual, (Center for Constitutional Rights August 2, 1993) 3
As previously identified in Appellant's initial brief, Appellant has shown that the United States District Court of the Northern District of Georgia did not have jurisdiction over him to proceed with this action. In their response brief, Appellees argued the case of Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir 1980) to buttress their contention as to the correct interpretation of the "ATS", where the Second Circuit held that the "ATS" could be used to pursue a tort claim against an individual by foreigners for acts of torture and death inflicted upon a family member of the prospective plaintiffs.
As the Court is aware, the Filartiga decision is not binding precedent for the Eleventh Circuit, and Filartiga has been extensively criticized for its broad holding that actions can be pursued under the "ATS". Throughout the entire opinion, there is no discussion where the Court states that it was Congress' intention to have cases similar to the case at bar as cases and actions to be pursued under the "ATS"; yet, Filartiga has served as a basis whereby all subsequent opinions finding jurisdiction under the "ATS", Filartiga is the authority for the proposition and theory that human rights violations and torture are included within the "ATS" purview. Id. See Jean Marie Simon.
The Alien Tort Claims Act: Justice or Show Trials? 11 Boston University Int'l. Law Journal 1 Spring 1993, quoting, Mark Jacobsen, Case Comment 28 U.S.C. 1350 A Legal Remedy for Torture in Paraguay, 69 Geor. L.J. 833 (1986) (Decision in Filartiga criticized for mistakenly finding individuals to be subject of law of nations and for misunderstanding international agreements and failing to define practice of states with regard to torture).
From the basis of this decision, courts have expansively granted relief to persons under the "ATS", when it is clear that it was not Congress' intention for the statute to have such a broad expansion. See, Alien Tort Statute and How Individuals Violate International Law, 21 Van. J. Transnational Law 47 (1988) (28 U.S.C. 1350 is not created whereby federal courts can exercise general international jurisdiction.) Even in Judge Edwards' concurring opinion in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. 1984). cert. denied. 470 U.S. 1003 (1085), there was a great concern about adjudicating actions under the "ATS" between two aliens in that there is no connection between the litigants and their causes of action and the United States courts other than physical presence in the United States. These opinions granting jurisdiction under the "ATS" have occurred in situations where courts granted default judgments and never raised questions about the jurisdictional propriety of bringing lawsuits concerning allegations of human rights abuses and tortious conduct abroad and have not addressed the issues of whether United States courts are the proper forums for resolving
claims of human rights violations. Simon, quoting, Courts Open Up to Foreign Lawsuits, Wall Street Journal October 16, 1992 at B8.
Additionally, the purpose of these actions have not been to pursue legal redress, but instead, it has been to proceed with actions based solely on political grounds. One survey notes that actions have been used only to punish either individual right-wing officials or governments and no actions have ever been filed against leftist groups; and that furthermore, the choice of which Defendants to proceed with actions against emanates as much from a desire to punish ideological opponents and opposition as from a desire to obtain legal recourse. Simon, supra at notes 15 and 16, citing, BETH STEPHENS ET AL. (EMPHASIS ADDED), Suing for Torture and Other Human Rights Abuses in Federal Court: A Litigation Manual (Center for Constitutional Rights August 2, 1993)
It is important further to note that in pursuit of these actions, the attorneys for Plaintiffs have indicated and admitted that the "ATS" is not clear with respect to its legislative purpose. The Simon article illustrates that the Center for Constitutional Rights, attorneys in some of these types of actions concede that the "ATS" is at best ambiguous. Simon, supra, citing, Stephens. note 14 at 12, ("no definitive analysis of the statute's origin and purpose has emerged); while this same article cites another source as admitting that the Filartiga decision and its progeny are not the types of cases that the framers of the "ATS" intended to be adjudicated under the "law of nations" rubric. Simon, citing, Anne Marie Burley. The Alien Tort
statute and The Judiciary Act of 1789 A Badge of Honor, 83 Am. Int'l L. 461 at 490 (1990). In the case at bar, it is apparent that this action is a political action against Appellant in nature, well financed to seek ideological goals rather than to secure legitimate relief for Appellees. The District Court did not have jurisdiction over Appellant. Appellees cannot cite any authority that it was the framers' intent to include these types of cases within the purview of the "ATS", and in Tel-Oren, there is no language which advocates any support for the specific proposition or idea that torture is a violation of the law of nations. An extensive analysis absent any such notions of political bias and/or political correctness shows that this is not a case for which "ATS" should be used.
Assuming that the District Court did have jurisdiction to hear this matter under the "ATS", Appellees are time-barred by the Statute of Limitations. Appellees have incorrectly cited the decision of Forti v. Suarez- Mason, 672 F. Supp. 1531 (N.D. Cal. 1987) for the proposition that the Court implicitly rejected the California statute of limitations period. While the Forti court held that the "ATS" was most analogous to another federal statute, it held that it was the opinion of the Court that the state statute of limitations period should be applied for claims under the "ATS". Additionally, Appellees urge application of the
"TVPA" statute of limitations period to the case at the bar as it is the most analogous statute; yet, this argument is incongruent in that at the time this action was commenced, the "TVPA" had not been enacted and cannot be claimed as an analogous federal statute. Based on the foregoing, the Georgia statute is the applicable period of limitations to be used.
Appellees' contention that any applicable statute of limitations was tolled in this case until 1989 is incorrect. Applying the two standards set forth in Forti, Id. at 1549, first, there is nothing to suggest that Appellant's alleged wrongful conduct prevented the timely assertion of any claim. With respect to Appellees' contention that extraordinary circumstances outside their control prevented the exercise of their rights, it is necessary to point out facts that were omitted in Appellees' argument.
Appellees suggest that they could not pursue civil actions against Appellant for fear of persecution; yet, Appellees fail to remember the fact that Appellant was in prison in Ethiopia for several years.(R2-32-2) It seems illogical for Appellees to claim a well-founded fear of persecution when their so-called alleged "torturer" was in jail. Appellant was in no position to leave prison and Appellees had ample opportunity to pursue any civil and/or criminal relief against Appellant but chose not to do so. Furthermore, upon Appellant's subsequent departure and admission to the United States, Appellees fully admit in their complaint that Appellant sought political asylum in the United States. (R1-
1-4) He did not go into hiding or flee to avoid persecution, but instead, he sought and was granted political asylum because of his well-founded fear of persecution.
Any claims by Appellees that the statute of limitations was tolled until Appellant was located in the United States are not correct. Appellees had significant opportunities to seek recourse; yet Appellees did not pursue their actions until the present time; and thus they should not be allowed to pursue these claims.
Appellant has set forth in its brief the general presumption against retroactivity of a statute; yet, Appellees suggest retroactivity should be executed here under the two exceptions in the Landgraf v. USI Film Products, U.S. _ , 114 S.Ct. 1483 (1994)
Appellees cite Filartiga, 630 F.2d. at 881-883 and use its language to state that torture is condemned in the international law context. Torture is defined from items such as treaties defining such language; yet, Appellees fail to state that treaties do not have retroactive applicability, Simon, supra, page 43 note 254. See, Ian Sinclair. The Vienna Convention on the Law of Treaties 1-5 (2nd ed. 1984) (treaties must have express retroactive provisions; otherwise provisions and language may not be treated as such). Retroactive treatment becomes permissible
only where the statutory text and language express and states clear legislative intent to do so. Simon, page 43, note 256.
Appellees cannot cite any authority that expressly urges retroactivity and because there is no express language to the contrary, retroactivity cannot be applied. Absent a proper showing of express retroactivity intent, the presumption against retroactivity as set forth in Bowen v. Georgetown Univ. Hospital, 488 U.S. 204 (1988) must stand.
Appellees have not established that they have exhausted all adequate and available remedies in Ethiopia, but instead, Appellees have attempted to misstate the simple argument made by Appellant in support of this contention. Appellant did not claim merely that Appellees failed to satisfy this requirement because Appellant acts were tortious under Ethiopian law and, therefore, Appellees should have brought suit against Appellant in Ethiopia. Appellees clearly stated that if their "claims are proven, they would be entitled to full compensation in Ethiopia for the torts alleged in their complaint." (R2-34-1 and 2) Appellant was not making some colorful or fanciful argument, but instead, he is fully restating what Appellees have expressed and admitted in their supplemental briefs filed after trial and testimony given by witness John Harberson.
Additionally, Appellees should not attempt to mislead this Court as to the burden of proof with respect to the issue of
exhaustion of remedies. In the original bill in the House of Representatives, Appellant would have had to shown by "clear and convincing evidence" that Appellees have not yet exhausted remedies in Ethiopia where the events took place. See H.R. 2092, 102nd Cong., 1st sess. (1991), but the Conference Committee for this legislation later adopted language removing "the clear and convincing" standard and giving the responsibility of the courts to ascertain and apply standards that would normally be required for burden of proof. 137 Cong. Rec. H 11244 (daily ed. November 25 1991) at H. 11245 (remarks of Rep. Mazzoli)
Appellant has established that Appellees did not exhaust all adequate remedies despite Appellees' attempts to muddle and deflect this argument with incorrect assertions and misstatements.
As discussed above in Appellant's argument regarding the inapplicability of equitable tolling to the "ATS". equitable tolling principles are not applicable here because Appellant did not make any fraudulent concealment and Appellees had sufficient time opportunity to pursue any criminal and/or civil relief; yet Appellees chose not to pursue such action.
As shown in Appellant's brief, the district court erred in not ruling on his third request for appointment of counsel.
Contrary to Appellees' interpretation of Poole v. Lambert, 819 F. 2d. 1025 (llth Cir. 1987), this Court failure to rule on a litigant's motion for counsel was significant because a litigant's motion should have been carefully reviewed and responded to by the court. That failure to rule on the motion for appointment of counsel along with other factors was sufficient to vacate the decision of the District Court and remand the case back for reconsideration. Id.
Applying the facts in Poole to the case at bar, Appellees' attempt to simplify the difficulty of this case. First, Appellees indicate that this case was not complex. This argument is completely bereft considering Appellees had available at trial seven attorneys to act on their behalf experienced in this area of law against one prose person handling a case of first impression before the United States District Court of the Northern District of Georgia on the application of the Alien Tort Statute and the Torture Victim Protection Act to tort claims that occurred allegedly in another country over ten years ago.
Next, Appellees claim that Appellant fully participated in discovery and trial, yet how can Appellant be considered to have participated fully in discovery when he was subject to motions by Appellees' cadre of attorneys seeking compelling of discovery and sanctions (R1-12. R1-14) and he was without counsel on the day of trial. At trial, Appellant could not understand and comprehend the ramifications of Mr. Harberson's qualification as an expert (R3-35), Additionally, the Court noted Appellant's inability to
cross-examine witness (R3-62, 4-39, 4-41, 4-43), and its difficulty in understanding Defendant and his arguments (R4-98, R4-lOO). Furthermore, contrary to Appellees' assertion, the Court did not issue a straight across the board objection to Appellant's testimony (R4-103-108) and did admit documentation and exhibits without objection from Appellant (R4-129). Moreover, Appellant was unable or did not have the ability to raise legal issues such as affirmative defenses, motions to dismiss based on statutory grounds and other relief that is being argued here only on the first time on appeal.
Finally, Counsel wishes to address two issues raised by Appellees that suggest some sort of tacit admission by Appellant. First, Appellees wish to emphasize the fact that counsel for Appellant is not asking for oral argument is not relevant to the discussion. This request was tendered simply for the reason that unlike Appellees, who have the availability of counsel from around the nation financed from abroad that seeks to pursue these actions on pure political grounds against ideological figures that are contrary to their leftist views, Appellant does not have the resources available to him to take this case to oral argument.
Next, Appellant would like to address suggestions by Appellees that Appellant did not deny the misconduct set forth by Appellees and such lack of denial is an admission of the facts set forth by Appellees. This Court is not in position to be the trier of fact and cannot and will assume this role; however,
Appellant has always denied all facts as alleged by Appellees as to his so-called alleged acts of torture inflicted by him upon Appellees.
For the reasons specified above in this brief and Appellant's prior brief, the decision of the District Court should be reversed or in the alternative, the decision of the District Court should be vacated and remanded back to the District Court for reconsideration.Respectfully submitted.
I hereby certify that I have served the foregoing Brief on Behalf of Defendant-Appellant upon Plaintiffs- Appellees by causing a copy of same to be mailed by first class mail and addressed to:Miles J. Alexander, Esq.