e · 2018-02-08 · a~chimedes trajano. b~ings an action on behalf of herself and her son. she...

-83-

IN THE UNITED STATES DISTRICT COURT

POR THE DISTRICT OF HAWAII

AGAPITA TRAJANO. on behalf ) of the estate of A~chimedes ) T~ajano and Agapita T~ajano. ) individually. )

) Plaintiffs. )

) vs. )

) PERDINAND E. MARCOS. et ale )

) Defendants. )

-----------------------------y

CIVIL NO. 86-0207

flL!D IN r~ '._ PNITEl) STATES DICTlia '.

DISTRICT 0' HAWAlJ.~~[V.

- . ::. e J986~ II ~ o'croa' .na ~r . .t!:M. WALTER A. Y. H. CHI~ ~

DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

This motion having come on fo~ hea~ing before the court

on July 8. 1986 at 10:30 a.m •• Richa~d Hibey and Lex Smith

appea~ing on behalf of the movant Pe~dinand E. Marcos. Sherry

B~odet and Jon Van Dyke. appea~ing on behalf of the plaintiffs.

with assistance from Paul Hoffman and Robert Swift during the

argument. and the cou~t having conside~ed the memo~anda and

a~quments in support and in opposition the~eto. and being fully

app~ised of the p~emises therein. the cou~t ~ules as follows:

In T~ajano v. Ma~cos. et ale (Civil No. 86-207).

Agapita T~ajano. the mother of the deceased. A~chimedes Trajano.

b~ings an action on behalf of herself and her son. She states

that she intends to petition to be appointed 'the executor of he~

son's estate pursuant to Philippine law. The complaint alleges

that Archimedes T~ajano was kidnapped and forcibly ~emoved from

the open,forum by military intelligence personnel and taken fo~

incommunicado interrogation. p'laintiff was allegedly subjected

to torture and ill-t~eatment and eventually murdered by the

University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection

-84-

military police. With respect to defendant Marcos. the

complaint alleges:

At all times herein. defendant FERDINAND MARCOS declared martial law in the Philippines and pursuant to said "law" all acts of the police and military were carried out pursuant to his own orders. Defendant MARCOS was the senior official with ultimate responsibility for the administration of prisoners detained or arrested under martial law. At all times relevant herein. Defendant FABIAN VER was the chief military officer in charge of the various branches of the Philippines military intelligence and all acts of the police and military intelligence were carried out pursuant to his order. • •.

Complaint' 12.

Plaintiff allege~ that she and her son are citizens

of the Philippines. .She is here in Honolulu on permanent

resident alien status. Jurisdiction is alleged under 28

U.S.C. 5 1331. 1332. and 1350.

II. STANDARD:

aule 12(b) of the Federal Rules of Civil Procedure

provides in pertinent part:

Every defense. in law or fact. to a claim for relief in any pleading. whether a claim. counterclaim. cross-claim. or third-party claim. shall be asserted in the responsive pleading thereto. except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter ••• (6) failure to state a claim upon which relief may be granted .•..

In considering a motion to dismiss for failure to

state a claim. the general rule is that a complaint should

not be dismissed on the pleadings "unless it appears beyond

doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to I:elief."

Conley v. Gibson. 355 U.S. 41. 45-46 (1957): Gillespie v.


- 85-

Civiletti. 629 F.2d 637 (9th Cir . 1980); California ex. rel.

Younger v. Mead. 618 F.2d 618 . 620 (9th Cir . 1980).

In evaluating a .complaint. any doubts should be

construed in favor of the pleader. Ernest W. Hahn. Inc. v.

Codding. 615 F.2d 830. 834-36 (9th Cir. 1980). The

complaint must be liberally construed. giving the plaintiff

the benefit of all proper inferences. Scheuer v. Rhodes.

416 U.S. 232. 236 (1974). All that must be contained in the

complaint is a "'short and plain statement of the claim that

will give [the defendant) fair notice of what the

plaintiff's claim is and the grounds upon which it rests."

Conley v. Gibson. 355 U.S. 41. 47 (1957).

On a motion to dismiss for lack of federal subject

matter jurisdiction. it is incumbent upon the plaintiff to

establish by competent proof that federal subject matter

jurisdiction exists. KVOS. Inc . v. Associated Press. 299

U.S. 269. 277-78 (1936).

Ill. JURISDICTION:

A. Under Section 1350

28 U.S.C. S 1350 states:

The 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.

The "alien tort claims statute." as it has come to

be called. has an obscure history. In lIT. v . Vencap. Ltd .•

519 F . 2d 1001 (2d Cir . 1975). Judge Friendly remarked:

..• This old but little used section is~ legal Lohengrin; although it has been with us since !be f i rst Judiciary Act. S 9. 1 Stat. 73. 77 (1789). no one seem to know whence it came. We


-86-

dealt with it some yea~s ago in Khedival Line. S.A.E. v. Seafare~s' Union. 278 F.2d 49. 52 (2 Ci~. 1960>(pe~ cu~iam). At that time we could find only one case whe~e ju~isdiction under it had been sustained. in that instance violation of a treaty •.• there is now one more .•.•

ld. at 1015.

Earlier cases defined the "law of nations" rather

narrowly. Judge Friendly observed that:

••• (a] violation of the law of nations arises only where there has been la violation by one or more individuals of those standards. rules or customs (a> affecting the relationship between states or between an individual and a foreign state. and (b) used by those states for their common good and/or in dealings inter ~.' •.• (citations omitted]

lIT V. Vencap. Ltd •• supra at 1015.

In Dreyfus v. von Finck. 534 F.2d 24, 30-31 (2d

Cir. 1976). cert. denied. 429 U.S. 835 (1976). the Second

Circuit stated:

There has been little judicial interpretation of what constitutes the law of nations and no universally accepted definition of this phrase .••. (citations omitted]. There is a general consensus. however, that it deals primarily with the £elationship among nations rather than among individuals. lIt is termed the Law of Nations--or International Law--because it is relative to States or Political Societies and not necessarily to individuals. although citizens or subjects of the earth are greatly affected by it. 1 von Redlich. The Law of Nations 5 (2d ed. 1937) ••.

* * * More importantly for purposes of this lawsuit.

violations of international law do not occur when the aggrieved parties are nationals of the acting state. This was pointed out by Mr. Justice White in his dissenting opinion in Banco Bactonal de CUba V. Sabbatino. 376 U.S. 398, 441-442. 84 S.Ct. 923. 947. 11 L.Ed.2d 804. 831 (1964). and it is the clear holding in Salimoff & Co. v. Standard Oil ~. 262 N.Y. 220. 186 N.E. 679 (1933). cited by both the majority and dissenting opinions.


-87-

In Filartiqa v. Pena-Irala. 630 F.2d 876 (2d Cir.

1980). however. the Second Circuit took a divergent

approach. In Filartiqa. the plaintiffs were two Paraguayan

nationals living in the United States under permanent

resident alien status. The defendant was a former

Paraguayan official who had remained illegally in the United

States after expiration of his tourist visa. The plaintiffs

alleged that the defendant had kidnapped and tortured to

death an individual who was the plaintiffs' brother and son

in retaliation for his father's political activities. The

defendant then brought the deceased's sister to his home and

confronted her with the body.

The plaintiffs filed suit alleging jurisdiction

under section 1350. The district court dismissed the

co~plaint. relying on lIT v. Vencap, Ltd .• supra and Dreyfus

v. von Finck. supra. The Second Circuit reversed. The

Second Circuit concluded. after a review of international

law authorities that:

Having examined the sources from which customary international law is derived -- the usage of nations. judicial opinions and the works of jurists -- we conclude that official torture is now prohibited" by the law of nations. The prohibition is clear and unambiguous. and admits of no distinction between treatment of aliens and citizens. Accordingly. we must conclude that the dictum in Dreyfus v. von Finck. supra. 534 F.2d at 31. to the effect that 'violations of international law do not occur when the aggrieved parties are nationals of the acting state.' is clearly out of tune with the current usage and practice of international law. The treaties and accords cited above. as well as the express foreign policy of our own government. all make it clear that international law confers fundamental rights upon all people vis-a-vis their own governments ••••

Id. at 884.


-88-

The Filartiqa court emphasized that only those acts

which constituted clear violations of international law

would be cognizable under section 1350. The court concluded

that official torture was universally condemned by all

nations, and as such constituted a violation of

international law:

Construing this rarely-invoked provlslon, we hold that deliberate torture perpetrated under color of official authority violates universally accepted Dorms of the international law of human rights. regardless of the nationality of the parties. Thus, whenever an alleged torturer is found and served with process by an alien within our borders, 5 1350 provides federal jurisdiction.

Id. at 878.

Since Filartiqa,' a consensus on the scope of

section 1350 jurisdiction has not emerged. The

fractionalization of opinions on the issue is best

demonstrated in the three concurring opinions in Tel-Oren v.

Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), cert.

denied, ___ u.S. ___ , 105 S.Ct. 1354 (1985). In that case,

a group of American, Israeli and Dutch citizens who were the

victims of a terrorist attack in Israel sued their alleged

tormentors in federal court. The alien plaintiffs sued

under section 1350. The district court dismissed the

complaint. The three judges on the panel affirmed. but for

widely differing reasons.

Judge Edwards agreed with the Filartiqa analysis,

but distinguished the Tel-Oren facts. First. Judge Edwards

concluded that international terrorism was not universally

recognized to be a violation of the law of nations, hence


-89-

there was no cause of action under section 1350. Id. at

795-96. Judge Edwards also noted that Filartiqa required

that the tortious act alleged 'must be official or

state-implicated torture. In Tel-Oren, the torture alleged

was committed by the Palestine Liberation Organization,

which is not recognized as a member of the community of

nations, thus no "state action" was possible. Id. at

791-92. Judge Edwards was not willing to find that a

private dispute between individuals was cognizable under the

law of nations. Only when the acts complained of were

"official" would the law of nations be implicated, giving

rise to a cause of action under section 1350.

Judge, Bork took the position that, absent a private

right of action created by treaty, international law does

not authorize individuals to vindicate rights by bringing

actions in either international or municipal tribunals,

agreeing with Dreyfus v. von Finck, supra. He disagreed

with Pilartiqa's assumption that section 1350 gave the

federal courts jurisdiction and conferred a private cause of

action for violation of international human rights. Id. at

801.

Judge Robb reasoned alternatively that the case,

should be dismissed because it was simply, non-justiciable.

He concluded by saying:

We ought Dot to parlay a two hundred years-old statute into an entree into so sensitive an area of foreign policy. We have no relfable evidence whatsoever as to what purpose this 'legal Lohengrin', as.Judge Friendly put it, was intended to serve •••• [citation omitted]. We ought not to cobble together for it a modern mission on the


- 90 -

vague idea that international law develops over the years. Law may e v olve . but IitatlJtes ought not to mutate . To allow S 1350 the opportunity to support l uture actions of the sort both countenanced in Filartiga and put forward here is to judicially will that statute a new life. Every consideration that informs that sound application of the political question doctrine militates against this resul t . ..

Id. at 827.

Thus. Filartiga did not conclusively settle the

question of the scope of section 1350. At least two lines

of thought. those advanced by Judges Bork and Robb. suggest

that section 1350 does not confer upon the federal courts

the jurisdiction to adjudicate questions of international

human rights . Even the most liberal interpretation of

section 1350 jurisdiction requires that the plaintiffs

allege that the tortious acts were official([9 committed

under the authority of law.

In one area. there appears to be consensus. A

taking or expropriation of a foreign national ' s property by

his government is not cognizable under section 1350 . As

stated in Sanchez-Espinoza v . Reagan . 770 F.2d 202 (D.C.

Cir. 1985):

.[T]he standards of human rights that have be en genera ll acce ted - nd en ·ncoroo at d in t e law of nations -- are still limited . They encompass only such baslc rlgfi ts as the right not to be murdered. tortured or otherwise subjected to cruel. inhuman or degrading punishment ... De Sanchez v . Banco Central de Nicaragua . 770 F.2d 1385. 1397 (5th cir. 1985) ... At present. the taking by a state of its national's property does not contravene the international law of minimum human rights .

.!S. at 1397.


-91-

B. Under Section 1331

The plaintiffs also allege jurisdiction under 28

U.S.C. 5 1331, federal question jurisdiction. The argument

is that international law forms a part of federal common

law. Claims arising under federal common law can be

asserted under 28 U.S.C. 5 1331. Illinois v. City ~f

Milwaukee. 406 U.S. 91. 100 (1972). Plaintiffs reason that

their claims arise under international law. therefore the

court has subject matter juriSdiction. Defendants argue

that plaintiffs must establish first that they have a cause

of action arising under federal law. For purposes of this

question, Judge Edwards' analysis in Tel-Oren is helpful.

Wherein he stated:

As to the aliens, most of the plaintiffs here, jurisdiction under 5 1331 is available at least to the extent that 5 1350 [creates a cause of action]. If it does, their action "arises under" 5 1350 and. therefore, under a law of the United States, as required by 5 1331.

Citizens of the United States ..• do not meet the alienage requirement of S 1350 and must seek other law under which their action might arise. The only plausible candidate is the law of nations itself.

Assuming, without deciding, that the law of nations constitutes a law of the United States for 51331 jurisdictional purposes, • • . the language of 51331, unlike S 1350, suggests that plaintiffs must identify a remedy granted by the law of nations or argue successfully for one to be implied. Plaintiffs here are not able to point to a right to sue in international law and I decline to imply one, given my belief, set out, supra, that the law of nations consciously leaves the provision of rights of action up to the states.

Id. at 779-80 n.4.

Judge Edwards' understanding of the "arising under"

requirement is consistent with that of the Ninth Circuit. Even


-92 -

where a .federal question exists. the lack of a private cause of

action. either express or implied. requires dismissal of the

lawsuit. See Price v . State of Hawaii. 764 F.2d 623 (9th Cir. -1985). cert. denied. ___ U.S . ___ • 106 S.Ct. 793 ;

(

KeaUkaha-panaewa Community Association v. Hawaiian Homes

Commission. 588 F.2d 1216 (9th Cir. 1978). cert. denied. 444

U. S . 826 (1979). In this case . plaintiffs have not alleged any

private cause of action arising under the law of nations which

would enable them to recover against foreign nations for injury

to themselves or to their relatives. Nor do they invoke any law

of the Unite~ States which permits such a cause of action .

In conclusion. the inquiry as to jurisdiction under

section 1350 will answer the issue of federal question

jurisdiction. If section 1350 confers a cause of action on the

plaintiffs. then plaintiffs have a claim "arising under" federal

law. However. plaintiffs have not successfully raised any other

source of a private cause of action under section 1331.

C. Under Section 1332

The plaintiffs originally alleged diversity

jurisdiction. presumably under 28 U.S.C. 5 1332(a)(2) . However.

the subsequent affidavit of Agapita Trajano establishes that she

and her son are not diverse from the defendants. Therefore.

diversity jurisdiction does not lie in this case.

IV. ISSUES

A. Head of State Immunity

Marcos claims he should be immune from suit based on

"head of state" immunity. He argues first that he is the de

jure president of the Philippines. based on the results of the


' .

- 93 -

elections conducted in the Philippines in February of 1986. He

argues secondly that even if he is no longer the de jure

president of the Philippines. he is immune from suit for acts

committed during his actual tenure as the President of the

Philippines. Because the question of immunity is

jurisdictional. the court must address this issue first.

1. De Jure Status

It has been the rule that "the judiciary fs not to

second guess the determination of the other branches as to who

is the sovereign. de jure or de facto. of a territory."

Tel-Oren v. Libyan Arab Republic. 726 F.2d 774. 791 n.21 (D.C.

Cir. 1984) (Edwards. J •• concurring). quoting. Oetjen v. Central

Leather Co .• 246 U.S. 297 (1918). This court will not intrude

into the foreign affairs powers of the executive branch. which

currently recognizes the Aquino government as the lawful

government of the Philippines.

2. Former Head of State Immunity

Far more problematic is Marcos' claims to immunity

based on his status as the former head of state of the

Philippines. There can be no question that Marcos was the duly

recognized head of state up to February 25. 1986. The issue is

whether his status as a former head of state accords him any

immunity from suit. and if so. the scope of that immunity.

Plaintiffs would argue that former heads of state enjoy no

immunity. and if they do. such immunity does not extend to acts

of torture. Marcos has argued that such immunity is absolute

for acts committed during the term of his presidency.


-94-

The scope of head of state immunity has not been

discussed at length in the case law, although it has been the

subject of schola~ly publications. See,~, Note, Resolving

the Confusion Over Head of State Immunity: The Defined Right of

Kings, 86 Colum L. Rev. 169 (1986). Unlike foreign sovereign

immunity, which has been codified in order to permit judicial

inte~pretation, there is no readily ascertainable standard of

judicial review.

Head of state immunity is not a common law privilege,

but one which arises out of conside~ations of international

comity. Any immunity granted to an alien within the borders of

another ·country is a privilege granted by the receiving state.

The.extent.of the immunity is informed by the receiving

country's commitment to certain international compacts and by

constderations. of reciprocity. ~ Resolving the Confusion OVer

Bead of State Immunity: The Defined Rights of Kings, 86 Colum.

L. Rev. 169, 169 (1986). Bead of state immunity has been

afforded to foreign heads of state pursuant to a suggestion of

immunity by the State Department. No independent judicial

source for head of state immunity appears to exist. Id. at

171-73.

Marcos presents an argument based on international law

authorities and on analoqy to diplomatic immunity. In effect,

he is asking this court to find a judicial source for head of

state immunity based on precedent. However, head of state

immunity is not derived from judicial precedent. It is a

privilege which to date has been accorded only by the executive

branch in furtherance of its sovereign authority over foreign

affairs. University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection

- 95-

commentators have complained that head of state

immunity is accorded by the State Department in a rather

expedient fashion. Id. at 182-87. However. much as the courts

may question the wisdom of subjecting former heads of state to

liability for acts committed while in office. that decision i .s

not one for the judicial branch. Until such time as head of

state immunity is made a creature of judicial interpretation.

this court will not intrude on the prerogative of the executive

branch to make such determinations.

That is not say. however. that the federal courts are

powerless to avoid entanglement in issues outside the scope of

their competence. The courts' power to do so. however. has

developed not in the form of a doctrine of immunity. but in the

form of the judicial doctrines of "act of state" and "political

question . "

C. Act of State Doctrine

The "political question" doctrine and its foreign

relations counterpart. the "act of state" doctrine are

discretionary rules developed by the judicial branch.

Essentially. the act of state doctrine is "the

principle that the conduct of one independent government cannot~

11 7

be questioned in the courts of another. ' Oetjen v. Central .<"

I

Leather Co .• 246 U.S. 297. 303 (1918). The act of state

doctrine in its traditiona'l formulation precludes the courts

from inquiring into the validity of the public acts of ~

recognized foreign sovereign power committed within its own

territory. Banco Nacional de CUba v. Sabbatino. 376 U.S. 398. -=:.,

423 (1964). The Sabbatino court noted that. although the


- 96 -

constitution does not compel the act of state doctrine. the

doctrine has "constitutional underpinnings." It arises out of

the basic relationships between branches of government in a

system of separation of powers. It concerns the competency of

dissimilar institutions to make and implement particular kinds

of decisions in the area of international relations . 376 U.S.

at 423. The court went on to say that the doctrine's

"continuing vitality depends on its capacity to reflect the

proper distribution of functions between the judicial and

political branches of the Government on matters depending on

foreign affairs." Id. at 427-28. The doctrine is a judicially

created one. -and is not dependent on any declarations by the

executive branch regarding the propriety of judicial resolution

of an issue.

The a~t of state doctrine also forbids review by the

United States courts of the acts of a foreign head of state

acting in his @ i ii-iV capacity ._ See DeRoburt v. Gannett Corp ..

733 F.2d 701 (9th Cir.1984). cert. denied. ___ U.S. 105

S . Ct. 909 (1985). Cf. Jimenez v . Aristequieta. 311 F.2d 547.

557 (5th Cir. 1962). cert. denied. 373 U.S. 914 (1963). reh'nq

denied. 374 U.S. 858 (1963) .

IV. CONCLUSION

At the outset. it is clear that -the question of

jurisdiction over these claims is far from settled. However.

the court will assume for purposes of argument that the Ninth

Circuit would adopt the formulation of section 1350 jurisdiction

set forth in Filartiqa v. pena-Iralai

630 F.2d 876 (2d Cir.

1980). However. under the facts of this case. even the most


-97-

liberal interpretatjoo of section 1350 does not prevent

entanglement with the act of state doctrine .

To sustain jurisdiction under 28 u.s.c. 1350. the

plaintiffs must allege that the tortious acts were official acts

or acts committed under color of law. Further. the plaintiffs

cannot argue that Marcos himself committed the specific acts. as

was the case in Filartiga. Rather they seek to show that the

kidnapping. torture. and murder of Archimedes Trajano was

conducted by agents of Marcos for whose actions he bore ultimate

responsibility. Thus. the theory of liability must be that

Ferdinand Marcos in his capacity as President of the Philippines

instructed his agents to engage in murder. torture. arbitrary

arrest and detention in violation of the tenets of the law of

nations. This theory of recovery requires precisely the type of

inquiry in which the federal courts have refused to engage under

the act of state doctrine. It is beyond that capacity or

function of the federal courts to subject the official acts or

policies of the head of a foreign state to traditional standards

of judicial review .

The dilemma faced by the plaintiffs here was

illustrated in oral argument. For purposes of arguing that

jurisdiction existed under section 1350. Marcos' actions were

characterized as a "systematic governmental operation to

suppress dissent." In contrast. when the issue of act of state

arose. this case was characterized as one involving "discrete

violations" of international human rights. Plaintiffs cannot

have it both ways. However Marcos' acts are characterized. it

is clear that this case would require examination of official


-9 8-

policies of the Marcos administration. Regardless of the

semantics. these cases would still involve judicial review of

the acts of the duly recognized head of a foreign sovereign

committed under authority of law. Such cases have long been

considered non-justiciable under the act of state doctrine.

Because the court has determined that this case is

non-justiciable under the act of state doctrine. it need not

reach the issues of forum non conveniens. personal jUrisdictio~ and the statute of limitations .

For the foregoing reasons.

IT IS HEREBY ORDERED THAT the defendant's Motion to

Dismiss be. and the same is GRANTED.

DATED: Honolulu. Hawaii. ____ ~J~U~L~1~8~~~86~ ____ ___

civil No. 86-207; TRAJANO. et al. v. MARCOS. et al.; DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS


e · 2018-02-08 · a~chimedes trajano. b~ings an action on behalf of herself and her son. she...

Documents