The FTCA exception on its face seems plainly applicable to the facts of this case. Alvarez’s arrest was said to be “false,” and thus tortious, only because, and only to the extent that, it took place and endured in Mexico. Nonetheless, the Ninth Circuit allowed the action to proceed under what is known as the “headquarters doctrine,” concluding that, because Alvarez’s abduction was the direct result of wrongful planning and direction by DEA agents in California, his claim did not “aris[e] in” a foreign country. Because it will virtually always be possible to assert negligent activity occurring in the United States, such analysis must be viewed with skepticism. Two considerations confirm this Court’s skepticism and lead it to reject the headquarters doctrine.
The first consideration applies to cases like this one, where harm was arguably caused both by action in the foreign country and planning in the United States. Proximate cause is necessary to connect the domestic breach of duty with the action in the foreign country, for the headquarters’ behavior must be sufficiently close to the ultimate injury, and sufficiently important in producing it, to make it reasonable to follow liability back to that behavior. A proximate cause connection is not itself sufficient to bar the foreign country exception’s application, since a given proximate cause may not be the harm’s exclusive proximate cause. Here, for example, assuming the DEA officials’ direction was a proximate cause of the abduction, so were the actions of Sosa and others in Mexico. Thus, at most, recognition of additional domestic causation leaves an open question whether the exception applies to Alvarez’s claim.
The second consideration is rooted in the fact that the harm occurred on foreign soil. There is good reason to think that Congress understood a claim “arising in” a foreign country to be a claim for injury or harm occurring in that country. This was the common usage of “arising under” in contemporary state borrowing statutes used to determine which State’s limitations statute applied in cases with transjurisdictional facts. And such language was interpreted in tort cases in just the same way that the Court reads the FTCA today. Moreover, there is specific reason to believe that using “arising in” to refer to place of harm was central to the foreign country exception’s object. Congress did not write the exception to apply when foreign law would be applied. Rather, the exception was written at a time when “arising in” meant where the harm occurred; and the odds are that Congress meant simply that when it used the phrase.The District Court dismissed all of the tort claims raised by Mr. and Mrs. Rodriguez, but granted them leave to amend their claim under the Tucker Act, which they did combined with a motion to transfer the case to the United States Court of Claims. When you get no relief from the Federal District Court you go to the United States Court of Federal Claims.
Monday, November 8, 2010
A PRIVATE BILL in the 111th CONGRESS
Recall the language of the First Amendment. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" (emphasis added). One manner of petitioning the Government for a redress of a grievance is to find a legislator who will file a private bill on a person's behalf. Today's blog looks at one private bill filed during the 111th Congress.
H.R. 798 is a private bill "For the Relief of Adrian Rodriguez". Rodriguez is an American citizen whose wife, Ali Jazmin Rodriguez, also an American citizen did something very legal. Mrs. Rodriguez bought a car which United States Customs and Border Protection seized because it was used to bring illegal drugs into America. Customs and Border Protection found 33 pounds of marijuana in the vehicle.
The car needed some repair work, it was making a strange sound. Mr. Rodriguez took that car from his home in San Diego to a mechanic in Tijuana. When the mechanic discovered illegal drugs, another 33 pounds of marijuana, in the car he and Rodriguez called the police. For being a good American citizen and reporting the contraband to Mexican authorities Mr. Rodriguez was rewarded with a month in a Mexican jail and his car was siezed by Mexico.
A Mexican judge decided that Mr. Rodriguez had nothing to gain by reporting those discovered illegal drugs to Mexican police. Mr. Rodriguez was set free. He returned home and sued the United States and the private auction service which conducted the sale. The Rodriguez suit in Federal District Court was probably made moot by a recent decision by the United States Supreme Court in the case of Sosa v. Alvarez-Machain.
The Drug Enforcement Agency (DEA) approved using Jose Francisco Sosa, a Mexican national, along with other Mexicans to abduct Humberto Alvarez-Machain from Mexico so that he could be brought to the United States to stand trial for the kidnapping, torture, and murder of a DEA agent. Mexico refused to extradite Machain. Machain was acquitted of those charges and sued the United States for False Arrest under the Federal Tort Claims Act (FTCA), The FTCA waives sovereign immunity “for … personal injury … caused by the negligent or wrongful act or omission of any [Government] employee while acting within the scope of his office or employment,” 28 U.S.C. § 1346(b)(1). Machain sued Sosa for violating the law of nations under the Alien Tort statute, (ATS). The ATS is a 1789 law. Section 1350 of the ATS gives Federal District Courts "original jurisdictions of any civil action by an alien for a tort only, committed in violation of the law of nations.”
The District Court dismissed Machain's FTCA claim but awarded him summary judgment and damages on the ATS claim. The Ninth Circuit Court of Appeals affirmed the ATS judgment but reversed FTCA claims dismissal.
Associate Justice Souter delivered the opinion of the Court. Three concurring opinions were filed by Associate Justices Scalia, Ginsburg, and Breyer. The Court held that 1) The FTCA’s exception to waiver of sovereign immunity for claims “arising in a foreign country,” 28 U.S.C. § 2680(k), bars claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred. The Court's abbreviated summary said:
So Mr. Rodriguez finds no help in the Federal District Court, although his attorney did argue that Customs and Border Protections were operating under a profit motive and outside the scope of their duty. Mr. Rodriguez's lawyer filed depositions that Customs and Border Protections became aware of problems with vehicles being sold with illegal contraband still on board.
The Tucker Act, 28 U.S.C. §1941, provides that persons may sue to resolve claims arising from express or implied contract terms, where the United States is a party to the contract, and that if the amount in question is under $10,000 the party can elect to sue in District Court or the Court of Claims, but where the amount in dispute exceeds $10,000 jurisdiction lies with the Court of Claims.
Mr. Rodriguez was not a party to the contract. His wife bought the car and his name was not on the contract. Mr. Rodriguez was kicked out of the United States Court of Claims. So where do you go when you cannot get justice from the courts? You go to the Congress and ask for a private bill. That's just what Mr. Rodriguez did. Democratic Representative Bob Filner, Chairman of the House Committee on Veteran Affairs introduced H.R. 798. The bill was sent to the House Judiciary Committee on February 3, 2009 and has been collecting dust since February 20, 2009 with the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law.