825 F.3d 1304
11th Cir.2016Background
- Plaintiffs are heirs of eight civilians killed in Bolivia in Sept.–Oct. 2003 during military operations ordered by President Gonzalo Sánchez de Lozada and Defense Minister José Carlos Sánchez Berzaín. Plaintiffs allege extrajudicial killings carried out to suppress political protest.
- After Lozada and Berzaín fled to the U.S., Bolivia enacted a 2003 Humanitarian Assistance Agreement (payments ≈ 60,000 bolivianos) and later Law No. 3955 (additional payments ≈ 145,000 bolivianos plus free university education); plaintiffs received the available Bolivian compensation.
- Plaintiffs sued in U.S. federal court under the Torture Victim Protection Act (TVPA), the Alien Tort Statute (ATS), and state law; the district court dismissed ATS claims post-Kiobel and initially dismissed TVPA claims on exhaustion grounds before plaintiffs sought additional Bolivian remedies.
- After plaintiffs exhausted available Bolivian remedies, the district court denied defendants’ renewed motion to dismiss TVPA claims for failure to exhaust and found the complaint plausibly pleaded command-responsibility TVPA claims; defendants sought interlocutory appeal under 28 U.S.C. § 1292(b).
- The Eleventh Circuit considered whether TVPA § 2(b)’s exhaustion requirement bars a TVPA suit by claimants who have obtained local remedies and whether the second amended complaint sufficiently pleaded TVPA claims; the court answered only the exhaustion question.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TVPA § 2(b) bars a TVPA suit after a claimant has obtained local remedies | Mamani: § 2(b) requires exhaustion before suit; plaintiffs satisfied that prerequisite by exhausting Bolivian remedies, so suit may proceed | Lozada/Berzain: § 2(b) should be read to bar TVPA claims where claimants have "sought and obtained adequate remedies" or received substantial local compensation | Held: § 2(b) bars suits only when claimants have NOT exhausted adequate and available local remedies; successful exhaustion does not bar a TVPA claim |
| Whether the plaintiffs’ second amended complaint fails to state TVPA claims under the command-responsibility doctrine | Mamani: complaint plausibly alleges command-responsibility and extrajudicial killings | Lozada/Berzain: allegations insufficient as to elements such as superior-subordinate relationship, knowledge, and extrajudicial nature of killings; may require heightened knowledge standard for civilian officials | Declined to decide on interlocutory appeal — issue is not a pure question of law and is fact-intensive; district court proceedings remain |
| Whether § 2(b) should incorporate common-law exhaustion doctrines to preclude suits after successful local recovery | Mamani: text controls; Congress used a negative conditional limiting the bar to non-exhaustion, so no implied additional bar | Defendants: Congress intended common-law exhaustion meaning, which can preclude further suit after local recovery | Held: Court rejects importing such common-law preclusion into § 2(b); statute’s plain words control |
| Whether the court should rewrite § 2(b) to add a bar when plaintiffs receive substantial local compensation | Mamani: judicially rewriting statute is impermissible; courts must apply text as written | Defendants: policy/legislative intent supports barring suits after substantial local recovery | Held: Court refuses to rewrite statute; would be a legislative function and would render words “if” and “not” superfluous |
Key Cases Cited
- United States ex rel. Lesinski v. S. Fla. Water Mgmt. Dist., 739 F.3d 598 (11th Cir. 2014) (standard for accepting pleadings on motion to dismiss)
- Mamani v. Berzain, 636 F. Supp. 2d 1326 (S.D. Fla. 2009) (district-court decision addressing initial TVPA exhaustion and 2003 humanitarian payments)
- Mamani v. Berzain, 654 F.3d 1148 (11th Cir. 2011) (Eleventh Circuit decision dismissing ATS claims)
- Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (Supreme Court limitation on extraterritorial reach of the ATS)
- McFarlin v. Conseco Servs., 381 F.3d 1251 (11th Cir. 2004) (standards for interlocutory appeals under § 1292(b))
- Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002) (elements of command-responsibility doctrine)