Trajano v Marcos

1 of 95 DOCUMENTS

In re: ESTATE OF FERDINAND E. MARCOS HUMAN RIGHTS LITIGATIONAGAPITA TRAJANO; ARCHIMEDES TrAJANO, Plaintiffs-Appellees, v.FERDINAND E. MARCOS, Defendant, and IMEE MARCOS-MANOTOC,

Defendant-Appellant.

No. 91-15891

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

978 F.2d 493; 1992 U.S. App. LEXIS 26680; 92 Cal. Daily Op. Service 8631; 92 DailyJournal DAR 14333; 116 A.L.R. Fed. 765

June 8, 1992, Argued and Submitted, San Francisco, CaliforniaOctober 21, 1992, Filed

SUBSEQUENT HISTORY: Writ of certiorari deniedMarcos-Manotoc v. Trajano, 508 U.S. 972, 113 S. Ct.2960, 125 L. Ed. 2d 661, 1993 U.S. LEXIS 4065 (1993)

PRIOR HISTORY: [**1] Appeal from the UnitedStates District Court for the District of Hawaii. D.C. No.CV-86-207-MLR. Manuel L. Real, District Judge,Presiding.Trajano v. Marcos, 878 F.2d 1438, 878 F.2d 1439, 1989U.S. App. LEXIS 10115 (9th Cir. Haw., 1989)

CASE SUMMARY:

PROCEDURAL POSTURE: Defendant foreign officialsought review of an order from the United States DistrictCourt for the District of Hawaii, which entered a defaultjudgment for plaintiff mother of torture victim in themother's wrongful death suit.

OVERVIEW: The mother, a foreign citizen, claimedthat the official had orchestrated the torture and death ofher son in the Philippines, so the mother filed a wrongfuldeath suit in the district court. The district court entered adefault judgment for the mother. On appeal, the officialchallenged the district court's subject matter jurisdictionover the suit, claiming that the Foreign Sovereign

Immunities Act (FSIA) made her immune from the suit.The court held that the official was not acting within anyofficial mandate when the tort occurred, so the FSIA wasnot triggered and could not provide subject matterjurisdiction over the suit. The court, however, held thatthe district court properly asserted jurisdiction under theAlien Tort Statute because the torture of the victim wasclearly a violation of international law, which triggeredthe district court's exercise of jurisdiction over the case.The court rejected the official's claim that the extensionof jurisdiction to the district court violated the "arisingunder" clause of U.S. Const. art. III.

OUTCOME: The court affirmed the default judgmentfor the mother.

COUNSEL: Bernard J. Rothbaum, Jr., Linn & Helms,Oklahoma City, Oklahoma (argued the case); Donald C.Smaltz, Smaltz & Anderson, Los Angeles, California(signed the briefs), for the defendant-appellant.

Jon M. Van Dyke, University of Hawaii School of Law;Sherry P. Broder, and Lillian Ramirez-Uy, Graulty, Ikeda& Ramirez-Uy, Honolulu, Hawaii, for theplaintiffs-appellees.

Ellen Lutz, Los Angeles, California, for amicus curiaeHuman Rights Watch.

Harold Hongju Koh, New Haven, Connecticut; MichaelRatner, New York, New York, for amici curiae Allard K.Lowenstein International Human Rights Clinic and theCenter for Constitutional Rights.

JUDGES: Before: James R. Browning, Harry Pregersonand Pamela Ann Rymer, Circuit Judges.Opinion by JudgeRymer.

OPINION BY: RYMER

OPINION

[*495] OPINION

RYMER, Circuit Judge:

After former Philippine President Ferdinand Marcosand his daughter, Imee Marcos-Manotoc, fled to Hawaiiin 1986, they were sued in federal court by AgapitaTrajano, a citizen of the Philippines who then lived inHawaii, for the torture and wrongful death of Trajano'sson, Archimedes, [**2] in the Philippines on August 31,1977. 1 Marcos-Manotoc did not appear and a defaultjudgment was entered against her. On appeal, shecontends that the district court lacked subject-matterjurisdiction under the Alien Tort Statute, 28 U.S.C. §1350, and that the Foreign Sovereign Immunities Act, 28U.S.C. §§ 1330, 1602-11, does not authorize a federalcourt to assert jurisdiction, over actions taken by aforeign government against its own citizens. 2 We havejurisdiction under 28 U.S.C. § 1291, and affirm.

1 This appeal pertains only to the action againstMarcos-Manotoc. Several amici appear in supportof Trajano: the Allard K. LowensteinInternational Human Rights Clinic, the Center forConstitutional Rights, and Human Rights Watch.The United States filed a brief as amicus curiae inconnection with an earlier appeal from an orderdismissing the action against Ferdinand Marcoson act of state grounds; the brief covers the issuesraised in Marcos-Manotoc's appeal and we haveconsidered it as well.2 Marcos-Manotoc also argues that the action istime-barred by the two-year Hawaii statute oflimitations, Haw. Rev. Stat. § 657-7, but this is anaffirmative defense which was waived by virtue

of her default. Because the statute of limitations isnot jurisdictional, we do not consider this issue.See United States v. DeTar, 832 F.2d 1110, 1114(9th Cir. 1987).

In her reply brief, Marcos-Manotoc claimsthat the district court did not have personaljurisdiction over her because she was not properlyserved. The district court found to the contrary.Because this issue was raised for the first time inher reply brief, Marcos-Manotoc has waived thisissue as well. See Nevada v. Watkins, 914 F.2d1545, 1560 (9th Cir. 1990), cert. denied, 113 L.Ed. 2d 215, 111 S. Ct. 1105 (1991).

[**3] I

In August of 1977, Ferdinand Marcos was Presidentof the Philippines, Marcos-Manotoc was the NationalChairman of the Kabataang Baranggay, and Fabian Verwas in charge of military intelligence. ArchimedesTrajano was a student at the Mapua Institute ofTechnology. On the 31st of August, Trajano went to anopen forum discussion at which Marcos-Manotoc wasspeaking. When Trajano asked a question about herappointment as director of an organization, he waskidnapped, interrogated, [*496] and tortured to death bymilitary intelligence personnel who were acting underVer's direction, pursuant to martial law declared byMarcos, and under the authority of Ver, Marcos, andMarcos- Manotoc. He was tortured and murdered for hispolitical beliefs and activities. Marcos-Manotoccontrolled the police and military intelligence personnelwho tortured and murdered Trajano, knew they weretaking him to be tortured, and caused Trajano's death.

In February of 1986, Marcos, Marcos-Manotoc,General Ver and others left the Philippines and arrived atHickam Air Force Base in Hawaii. On March 20, 1986,Agapita Trajano filed her complaint in the United StatesDistrict Court for the District of Hawaii. 3 The [**4]complaint seeks damages on behalf of the estate ofArchimedes Trajano for false imprisonment, kidnapping,wrongful death, and a deprivation of rights, and on behalfof Trajano's mother for emotional distress. Default wasentered against Marcos-Manotoc on May 29, 1986. In1991, she moved to set aside entry of default on theground of insufficiency of service. The motion wasdenied and, after a damages hearing, judgment wasentered based on the court's findings that Trajano wastortured and his death was caused by Marcos-Manotoc.

978 F.2d 493, *; 1992 U.S. App. LEXIS 26680, **1;

92 Cal. Daily Op. Service 8631; 92 Daily Journal DAR 14333

The court concluded that this violation of fundamentalhuman rights constitutes a tort in violation of the law ofnations under 28 U.S.C. § 1350, and awarded damages of$ 4.16 million and attorneys' fees pursuant to Philippinelaw. 4

3 Marcos moved to dismiss on act of stategrounds, and the district court's order grantingthat motion was reversed on appeal in light of ourintervening decision in Republic of thePhilippines v. Marcos, 862 F.2d 1355, 1360-61(9th Cir. 1988) (en banc) (civil RICO actionbrought by the Philippines against Marcos notbarred by act of state doctrine), cert. denied, 490U.S. 1035, 104 L. Ed. 2d 404, 109 S. Ct. 1933(1989). See Trajano v. Marcos, 878 F.2d 1438(9th Cir. 1989). The Judicial Panel onMultidistrict Litigation then consolidated twoother actions against Marcos in the District ofHawaii and two actions in the Northern District ofCalifornia, and assigned them to the HonorableManuel L. Real, sitting pursuant to an intracircuitassignment under 28 U.S.C. § 292(b). The fouractions consolidated with Trajano's are not beforeus at this time.

[**5]4 The district court awarded the estate ofArchimedes Trajano $ 236,000 for lost earningspursuant to Article 2206(1) of the Philippine CivilCode; $ 175,000 for moral damages includingphysical suffering, mental anguish, fright, bodilyinjury, and wrongful death pursuant to Articles2217, 2204, and 2206 of the Philippine CivilCode; awarded Agapita Trajano $ 1,250,000 formental anguish pursuant to Article 2206(3) of thePhilippine Civil Code; and awarded both Mrs.Trajano and the estate $ 2,500,000 in punitivedamages pursuant to Articles 2229 and 2231 ofthe Philippine Civil Code, as well as $ 246,966.99in costs and attorneys' fees pursuant to Article2208(1), (5), (9) and (11) of the Code.

II

We must first determine whether Marcos-Manotoc isentitled to immunity under the Foreign SovereignImmunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602-11.The FSIA "must be applied by the district courts in everyaction against a foreign sovereign, since subject-matterjurisdiction in any such action depends on the existence

of one of the specified exceptions to foreign sovereignimmunity." Verlinden B.V. v. Central Bank of Nigeria,461 U.S. 480, 493, 76 L. Ed. 2d 81, 103 S. Ct. 1962(1983); [**6] see also Argentine Republic v. AmeradaHess Shipping Corp., 488 U.S. 428, 102 L. Ed. 2d 818,109 S. Ct. 683 (1989); Liu v. Republic of China, 892 F.2d1419, 1424 (9th Cir. 1989), cert. denied, 111 L. Ed. 2d840, 111 S. Ct. 27 (1990). A "foreign state" under the Actincludes "an agency or instrumentality of a foreign state."28 U.S.C. § 1603(a). 5 We have, in turn, held that an"agency or instrumentality of a foreign state" forpurposes of the FSIA includes individuals acting in theirofficial capacity. Chuidian v. [*497] Philippine Nat'lBank, 912 F.2d 1095, 1099-1103 (9th Cir. 1990).Therefore, because Marcos-Manotoc's default concedesthat she controlled the military police, the FSIA isimplicated and we must be satisfied that it does not barjurisdiction, even though the issue was not raised in thedistrict court.

5 28 U.S.C. § 1603(b) defines an "agency orinstrumentality of a foreign state" as any entity:

(1) which is a separate legal person, corporateor otherwise, and

(2) which is an organ of a foreign state orpolitical subdivision thereof, or a majority ofwhose shares or other ownership interest is ownedby a foreign state or political subdivision thereof,and

(3) which is neither a citizen of a State of theUnited States as defined in section 1332(c) and(d) of this title, nor created under the laws of anythird country.

[**7] Marcos-Manotoc argues that the FSIA is thesole basis for jurisdiction, preempting all other basesincluding § 1350. She relies on Amerada Hess, in whichtwo Liberian corporations sued the Argentine Republic ina United States District Court for a tort allegedlycommitted by its armed forces on the high seas inviolation of international law. The court of appeals hadallowed the action to proceed under the Alien TortStatute, but the Supreme Court held that it should bedismissed because the FSIA controls and does notauthorize jurisdiction over a foreign state in thesecircumstances. 6 The Court made clear that the FSIA isthe "sole basis for obtaining jurisdiction over a foreignstate in our courts." 488 U.S. at 434; see also Lui, 892

978 F.2d 493, *496; 1992 U.S. App. LEXIS 26680, **4;


F.2d at 1424. Thus, the FSIA trumps the Alien TortStatute when a foreign state or, in this circuit, anindividual acting in her official capacity, is sued.

6 The Court held that the most pertinent FSIAexception to sovereign immunity - that fornoncommercial torts, § 1605(a)(5) - did not applybecause it is limited to those cases in which thedamage occurs in the United States. 488 U.S. at439-40.

[**8] Marcos-Manotoc argues that the PhilippineMilitary Intelligence is an "instrumentality" of a foreignstate within § 1603(b) of the FSIA, and that the tortiousacts were brought about by persons acting pursuant to theauthority of Marcos, Marcos-Manotoc, and Ver such thatthe liability of Marcos-Manotoc is expressly premised onher authority as a government agent. She further contendsthat, regardless of whether she acted within the scope ofher employment, she is entitled to absolute immunityunder § 1604 7 because a foreign state and its agents losesovereign immunity only for tortious acts occurring in theUnited States. See McKeel v. Islamic Republic of Iran,722 F.2d 582, 588 (9th Cir. 1983) (Congress did notintend to assert jurisdiction over foreign states for eventsoccurring wholly within their own territory), cert. denied,469 U.S. 880, 83 L. Ed. 2d 182, 105 S. Ct. 243 (1984).Trajano, on the other hand, argues that under Chuidian,the FSIA does not immunize acts of individuals whichare outside the scope of their official duties, 8 and that theacts of torture and arbitrary killing (which the complaintavers occurred under Marcos-Manotoc's [**9] ownauthority) cannot be "official acts" within whateverauthority Marcos-Manotoc was given by the Republic ofthe Philippines.

7 28 U.S.C. § 1604 provides:

Subject to existing international agreementsto which the United States is a party at the time ofenactment of this Act a foreign state shall beimmune from the jurisdiction of the courts of theUnited States and of the States except as providedin sections 1605 to 1607 of this chapter.8 Amicus urges that the FSIA does notimmunize individuals at all, see Amerada Hess,488 U.S. at 438 (the Alien Tort Statute "of coursehas the same effect after the passage of the FSIAas before with respect to defendants other thanforeign states"), but this argument is foreclosed byChuidian.

In Chuidian, we held that the FSIA covers a foreignofficial acting in an official capacity, but that an officialis not entitled to immunity for acts which are notcommitted in an official capacity (such as sellingpersonal [**10] property), and for acts beyond the scopeof her authority (for example, doing something thesovereign has not empowered the official to do). 912F.2d at 1106. In McKeel, in construing § 1605(a)(5) ofthe FSIA, which waives immunity for damages against aforeign state for injury occurring in the United States, 9

we found that Congress [*498] intended the FSIA to beconsistent with international law - and that the prevailingpractice in international law is "that a state loses itssovereign immunity for tortious acts only where theyoccur in the territory of the forum state." 722 F.2d at 588.

9 Section 1605(a)(5) provides:

(a) A foreign state shall not be immune fromthe jurisdiction of courts of the United States or ofthe States in any case -

. . . .

(5) not otherwise encompassed [in thecommercial activity exception], in which moneydamages are sought against a foreign state forpersonal injury or death, or damage to or loss ofproperty, occurring in the United States andcaused by the tortious act or omission of thatforeign state or of any official or employee of thatforeign state while acting within the scope of hisoffice or employment; except this paragraph shallnot apply to -

(A) any claim based upon the exercise orperformance or the failure to exercise or performa discretionary function regardless of whether thediscretion be abused. . . .

[**11] Marcos-Manotoc's default makes theapplication of both cases easy in this case, for she hasadmitted acting on her own authority, not on the authorityof the Republic of the Philippines. 10 Under thesecircumstances, her acts cannot have been taken withinany official mandate and therefore cannot have been actsof an agent or instrumentality of a foreign state within themeaning of the FSIA. On any view, FSIA coverage underChuidian is not triggered, and the statutory limitation toinjury occurring in the United States recognized inMcKeel is not relevant. As a matter of law, therefore, the

978 F.2d 493, *497; 1992 U.S. App. LEXIS 26680, **7;


district court did not err in failing to dismissMarcos-Manotoc in her individual capacity. 11

10 This is consistent with our earlier decisionthat the same allegations against former PresidentMarcos are not nonjusticiable "acts of state." SeeTrajano v. Marcos, 878 F.2d 1438 (9th Cir.1989). In so holding, we implicitly rejected thepossibility that the acts set out in Trajano'scomplaint were public acts of the sovereign.Marcos-Manotoc presented no evidence to thecontrary; indeed, her affidavit in support of themotion to lift entry of default declares that shewas not a member of the government or themilitary at the time of Trajano's murder.

[**12]11 The parties also disagree about whether thePhilippine government's statement ofnon-objection to the litigation against formerPresident Marcos amounts to a waiver ofsovereign immunity for Marcos-Manotoc. Givenour view that Marcos-Manotoc was not an officialentitled to immunity, it is unnecessary to reachthis issue.

III

Absent jurisdiction under the Foreign SovereignImmunities Act, 12 there is no dispute that the onlypossible jurisdictional basis for Trajano's action is theAlien Tort Statute, 28 U.S.C. § 1350. Section 1350provides:

12 28 U.S.C. § 1330(a) provides:

The district courts shall have originaljurisdiction without regard to amount incontroversy of any nonjury civil action against aforeign state as defined in section 1603(a) of thistitle as to any claim for relief in personam withrespect to which the foreign state is not entitled toimmunity either under sections 1605-1607 of thistitle or under any applicable internationalagreement.

Sections 1605-1607 set out the exceptions toimmunity and the extent of liability. BecauseMarcos-Manotoc was not acting in an officialcapacity, she has no claim to sovereign immunity,no exceptions are applicable, and there can be nojurisdiction under § 1330(a).

[**13] The district courts shall have originaljurisdiction of any civil action by an alien for a tort only,committed in violation of the law of nations or a treaty ofthe United States.

It was enacted as part of the First Judiciary Act of 1789,13 but has seldom been invoked. The debates that led tothe Act's passage contain no reference to the Alien TortStatute, and there is no direct evidence of what the FirstCongress intended it to accomplish. The statute has,however, been comprehensively analyzed by the SecondCircuit in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980), which recognized a cause of action andsubject-matter jurisdiction under § 1350 in an actionbetween Paraguayan citizens for acts of torturecommitted in Paraguay, and by the District of ColumbiaCircuit in Tel-Oren v. Libyan Arab Republic, 233 U.S.App. D.C. 384, 726 F.2d 774 (D.C. Cir. 1984) (JudgesEdwards, Bork, and Robb writing separately), cert.denied, 470 U.S. 1003, 84 L. Ed. 2d 377, 105 S. Ct. 1354(1985), which affirmed dismissal for lack ofsubject-matter jurisdiction of an action by Israeli citizensagainst the Palestine Liberation [**14] Organization[*499] for acts of terrorism in violation of internationallaw.

13 Judiciary Act of September 24, 1789, ch. 20,§ 9, 1 Stat. 73, 76-77. The original statute read:

The district courts shall . . . have cognizance,concurrent with the courts of the several States, orthe circuit courts, as the case may be, of all causeswhere an alien sues for a tort only in violation ofthe law of nations or a treaty of the United States.

We start with the face of the statute. It requires aclaim by an alien, a tort, and a violation of internationallaw. Trajano's complaint alleges that she and her sonwere citizens of the Philippines, and that her claims forrelief arise under wrongful death statutes and variousinternational declarations. 14

14 These include the United Nations Charter; theUniversal Declaration of Human Rights, G. A.Res. 217A(III), 3 U.N. GAOR Supp. (No. 16),U.N. Doc. A/810 (1948); the AmericanConvention on Human Rights, Nov. 22, 1969, 36O.A.S.T.S. 1, O.A.S. Official Records OEA/Ser. 4v/II 23, doc 21, rev. 2 (1975); the Declaration onthe Protection of All Persons From BeingSubjected to Torture, G. A. Res. 3452, 30 U.N.

978 F.2d 493, *498; 1992 U.S. App. LEXIS 26680, **11;


GAOR Supp. (No. 34) at 91, U.N. Doc. A/1034(1975); and the United Nations ConventionAgainst Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment, G.A. Res.39/46, 39 U.N. GAOR Supp. No. 51 at 197, U.N.Doc. A/RES/39/708 (1984), reprinted in 23 I.L.M.1027 (1984).

[**15] There is no doubt, as the district court found,that causing Trajano's death was wrongful, and is a tort.15 Nor, in view of Marcos-Manotoc's default, is there anydispute that Trajano's death was caused by torture. And,as we have recently held, "it would be unthinkable toconclude other than that acts of official torture violatecustomary international law." Siderman de Blake v.Republic of Argentina, 965 F.2d 699, 717 (9th Cir.1992).

15 Marcos-Manotoc does not contend that theactions alleged do not give rise to tort liability forwrongful death both in the Philippines and inHawaii. Because the case comes to us after entryof a default judgment, and she does not appeal thedistrict court's award of damages pursuant toPhilippine law, we have no call to decide issuespertaining to choice of law.

We believe, therefore, that Trajano's suit as an alienfor the tort of wrongful death, committed by militaryintelligence officials through torture prohibited by thelaw of nations, is within [**16] the jurisdictional grant of§ 1350.

Marcos-Manotoc argues, however, that the districtcourt erred in assuming jurisdiction of a tort committedby a foreign state's agents against its nationals outside ofthe United States, and having no nexus to this country. If§ 1350 were construed to confer jurisdiction under thesecircumstances, she asserts, it would exceed theconstitutional limits on federal court jurisdiction underArticle III of the Constitution. We disagree.

A

Marcos-Manotoc argues that there is noextraterritorial jurisdiction over civil actions based ontorture. She urges that Filartiga has been undermined byintervening acts of the legislative and executive brancheswhich indicate that the United States is not obliged toopen its courts for the redress of torture occurring inanother country. First, Marcos-Manotoc points to the fact

that when the Senate ratified the United NationsConvention Against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment, G.A. Res. 39/46, 39U.N. GAOR Supp. No. 51 at 197, U.N. Doc.A/RES/39/708 (1984), reprinted in 23 I.L.M. 1027(1984), [**17] it attached an understanding to Article 1416 that a state is required to provide a private right ofaction only for torture committed in territory under itsjurisdiction. 17 From this she infers that it is inappropriateto rely on principles of international law to give victims[*500] of torture enforcement rights outside their owncountry. Nothing in the understanding, however, goes sofar. Even if it could be read to reach transitory torts suchas wrongful death, the understanding does not prohibitthe United States from providing a forum for claims byaliens for torture occurring elsewhere. 18 Theunderstanding, accordingly, sheds little light on the scopeof § 1350.

16 Article 14 of the 1984 Convention provides:

1. Each State Party shall ensure in its legalsystem that the victim of an act of torture obtainsredress and has an enforceable right to fair andadequate compensation, including the means foras full rehabilitation as possible. In the event ofthe death of the victim as a result of an act oftorture, his dependents shall be entitled tocompensation.

2. Nothing in this article shall affect any rightof the victim or other persons to compensationwhich may exist under national law.

[**18]17 The Senate's understanding under Article 14reads:

It is the understanding of the United Statesthat Article 14 requires a State Party to provide aprivate right of action for damages only for acts oftorture committed in territory under thejurisdiction of that State Party.

136 Cong. Rec. S17486 (daily ed. Oct. 27,1990).18 See, e.g., The Torture Victim Protection Actof 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992)(providing federal cause of action for redress oftorture and extrajudicial killing, irrespective ofnationality of parties or locus of activities).

978 F.2d 493, *499; 1992 U.S. App. LEXIS 26680, **14;


The same is true of the fact that the Department ofJustice has changed its position on whether a plaintiffsuch as Trajano has a cause of action cognizable infederal court for a violation of international lawcondemning torture. Marcos-Manotoc notes that thegovernment urged the court in Filartiga to read § 1350expansively, while its amicus brief in this action supportsa cause of action only for violations of international lawrights which form a part of the law of the United States.Marcos-Manotoc [**19] suggests that the executivebranch's withdrawal of support for Filartiga and theSenate's refusal to obligate federal courts to hear actionssuch as Trajano's demonstrate that the United States doesnot recognize a private right of action for torture havingno nexus with the United States. We do not read theexecutive branch's flip on this issue as signifying somuch; its change of position in different cases and bydifferent administrations is not a definitive statement bywhich we are bound on the limits of § 1350. Rather, weare constrained by what § 1350 shows on its face: nolimitations as to the citizenship of the defendant, or thelocus of the injury.

Nor do these acts by the Senate and the Departmentof Justice support Marcos-Manotoc's argument thatgeneral principles of international law may not provide abasis for federal court jurisdiction under § 1350.Regardless of the extent to which other principles mayappropriately be relied upon, the prohibition againstofficial torture "carries with it the force of a jus cogensnorm," which "'enjoys the highest status withininternational law.'" [**20] Siderman, 965 F.2d at 715,717 (quoting Committee of U.S. Citizens Living inNicaragua v. Reagan, 859 F.2d 929, 940 (D.C. Cir.1988)). As our survey of the scholarly and judicialopinion in Siderman reflects, there is widespreadagreement on this; "all states believe [torture] is wrong,all that engage in torture deny it, and no state claims asovereign right to torture its own citizens. Underinternational law, any state that engages in official tortureviolates jus cogens." Id. at 717 (citations omitted). Wetherefore conclude that the district court did not err infounding jurisdiction on a violation of the jus cogensnorm prohibiting official torture.

Marcos-Manotoc finally argues that the districtcourt's interpretation of § 1350 would open the floodgatesto "foreign" cases in the federal courts. She also suggeststhat, contrary to the original purpose behind § 1350, topermit cases of this sort would invite, rather than avoid,

controversy with foreign nations. We do not share theseconcerns in this case. As Siderman makes clear, theprohibition [**21] against official torture occupies auniquely high status among norms of international law.The Philippine government has no objection to a UnitedStates District Court's entertaining Trajano's claim, sothere can be no unwarranted interference with itsdomestic affairs. The FSIA, with its limitation on tortrecovery to injuries occurring in the United States, willapply in almost all other situations. And, because ofMarcos-Manotoc's default, traditional brakes on access tothe federal courts by those having insufficient nexus tothe United States were not considered. Such limitationsas venue and the doctrine of forum non conveniens areavailable in § 1350 cases as in any other. Finally, it goeswithout saying that personal jurisdiction must first beobtained; one [*501] hopes the universe of potentialdefendants is not that large.

For these reasons, subject-matter jurisdiction was notinappropriately exercised under § 1350 even though theactions of Marcos-Manotoc which caused a fellow citizento be the victim of official torture and murder occurredoutside of the United States.

B

Marcos-Manotoc argues that Article III of the United[**22] States Constitution does not support jurisdictionover purely foreign disputes such as Trajano's claimagainst her. Of the nine categories of federal judicialpower defined in Article III, only two arguably authorizejurisdiction in this case: the Foreign Diversity Clause, 19

which enables the federal courts to hear cases between astate, or its citizens, and a foreign country or its citizens,and the "Arising Under" Clause, 20 which extends thejudicial power to cases arising under the Constitution,laws of the United States, and treaties. It is clear thatjurisdiction may not be predicated on the ForeignDiversity Clause, as a foreign plaintiff is neither "a Statenor the Citizen[] thereof." Marcos-Manotoc contends thatjurisdiction under the "Arising Under" Clause equallyviolates Article III because § 1350 is purely ajurisdictional statute and for "arising under" jurisdictionto exist, the rights of the parties must turn on theinterpretation of federal substantive law. We agree that ajurisdictional statute may not alone confer jurisdiction onthe federal courts, and that the rights of the parties muststand or fall on federal substantive law to [**23] passconstitutional muster. Mesa v. California, 489 U.S. 121,

978 F.2d 493, *500; 1992 U.S. App. LEXIS 26680, **18;


136-37, 103 L. Ed. 2d 99, 109 S. Ct. 959 (1989) (nakedjurisdictional statutes "cannot independently support Art.III 'arising under' jurisdiction"); Verlinden, 461 U.S. at495-97. We disagree that the rights of Trajano andMarcos-Manotoc do not depend on federal substantivelaw.

19 The Foreign Diversity Clause provides thatthe judicial power extends "to Controversies . . .between a State, or the Citizens thereof, andforeign States, Citizens or Subjects." U.S. Const.Art. III, § 2, cl. 1.20 "The judicial Power shall extend to all Cases .. . arising under this Constitution, the Laws of theUnited States, and Treaties made, or which shallbe made, under their Authority." U.S. Const. Art.III, § 2, cl. 1.

As we have already done, a federal courtadjudicating a claim against a foreign state or official,Chuidian, 912 F.2d at 1103, must determine as athreshold matter whether the FSIA provides [**24]subject-matter jurisdiction. Verlinden, 461 U.S. at493-94; Siderman, 965 F.2d at 706; Liu, 892 F.2d at1424. In Verlinden, a foreign plaintiff sued aninstrumentality of a foreign sovereign on a nonfederalcause of action; subject-matter jurisdiction waspredicated on the FSIA. The Court held that Congress, inpassing the FSIA, did not "exceed[] the scope of Art. IIIof the Constitution by granting federal courtssubject-matter jurisdiction over certain civil actions byforeign plaintiffs against foreign sovereigns where therule of decision may be provided by state law." Id. at491-97. Because federal courts must first determinewhether foreign sovereigns or individual officials areimmune before allowing suits against them to proceed, "asuit against a foreign state under [the FSIA] necessarilyraises questions of substantive federal law at the veryoutset, and hence clearly 'arises under' federal law, as thatterm is used in Art. III." Id. at 493. The Court alsoemphasized that "actions against foreign sovereigns inour courts raise sensitive issues concerning the foreign[**25] relations of the United States, and the primacy offederal concerns is evident." Id.

For the same reasons, Congress did not lack power toconfer subject-matter jurisdiction over this action. Onlyindividuals who have acted under official authority orunder color of such authority [*502] may violateinternational law, Tel-Oren, 726 F.2d at 791-95

(Edwards, J., concurring) (rejecting notion that purelyprivate actors have responsibilities under internationallaw), and proceeding against such individuals necessarilyimplicates sovereign immunity. AlthoughMarcos-Manotoc's default concedes that she controlledthe military intelligence personnel who tortured andmurdered Trajano, and in turn that she was acting undercolor of the martial law declared by then-PresidentMarcos, we have concluded that her actions were notthose of the Republic of the Philippines for purposes ofsovereign immunity under Chuidian. 21 Nevertheless,when questions of sovereign immunity under the FSIAare raised, as they have been here, Verlinden controls.Under Verlinden, subject-matter jurisdiction over thisaction satisfies Article III.

21 See supra Part II.

[**26] Marcos-Manotoc argues that theunderstanding attached by the Senate to Article 14 of the1984 Convention - that the United States does not have toprovide a forum for the redress of extraterritorial acts oftorture - negates any constitutional underpinning for"arising under" jurisdiction because Congress hasrejected application of federal court jurisdiction to suchclaims. This would, however, turn the point of Article IIIpower upside down. It does not derive from the Senate,nor even the Congress; rather, the Congress derives itscapacity to confer jurisdiction from the Constitution.

The "Arising Under" Clause of Article III isconstrued differently, and more broadly, than the "arisingunder" requirement for federal question jurisdiction under28 U.S.C. § 1331. See Verlinden, 461 U.S. at 495 ("Art.III 'arising under' jurisdiction is broader thanfederal-question jurisdiction under § 1331."); id. ("Themany limitations which have been placed on jurisdictionunder § 1331 are not limitations on the constitutionalpower of Congress to confer jurisdiction on the federalcourts.") (quoting Romero v. International TerminalOperating Co., 358 U.S. 354, 379 n.51, 3 L. Ed. 2d 368,79 S. Ct. 468 (1959)); [**27] cf. Brannon v. Babcock &Wilcox Co. (In re TMI Litigation Cases Consolidated II),940 F.2d 832, 861, 864-77 (3d Cir. 1991) (Scirica, J.,concurring) (discussing differences betweenconstitutional and statutory grants of "arising under"jurisdiction), cert. denied, 112 S. Ct. 1262, 117 L. Ed. 2d491 (1992). There is ample indication that the "ArisingUnder" Clause was meant to extend the judicial power ofthe federal courts, as James Madison put it, to "all cases

978 F.2d 493, *501; 1992 U.S. App. LEXIS 26680, **23;


which concern foreigners," Letter from James Madison toEdmund Randolph (April 8, 1787), reprinted in 9 ThePapers of James Madison 368, 370 (R. Rutland & W.Rachal ed. 1975), and "all occasions of having disputeswith foreign powers," 3 The Debates in the Several StateConventions on the Adoption of the Federal Constitution530 (J. Elliot ed. 1836) (remarks of J. Madison), and, asAlexander Hamilton wrote, to "all those [cases] in which[foreigners] are concerned. . . ." The Federalist No. 80, at536 (A. Hamilton) (J. Cooke ed. 1961). It is also wellsettled that the law of nations is part of federal commonlaw. See The Paquete Habana, 175 U.S. 677, 700, 44 L.Ed. 320, 20 S. Ct. 290 (1900) [**28] ("International lawis part of our law, and must be ascertained andadministered by the courts of justice of appropriatejurisdiction, as often as questions of right depending uponit are duly presented for their determination."); UnitedStates v. Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L. Ed.57 (1820) (same). Thus, in addition to resolving thedefendant's immunity, for a court to determine whether aplaintiff has a claim for a tort committed in violation ofinternational law, it must decide whether there is anapplicable norm of international law, whether it isrecognized by the United States, what its status is, andwhether it was violated in the particular case. Wetherefore hold that Congress had power through the"Arising Under" [*503] Clause of Article III of theConstitution to enact the Alien Tort Statute, and thatexercising jurisdiction over Trajano's claims againstMarcos-Manotoc comports with Article III.

IV

At most, Marcos-Manotoc argues, the district courthad jurisdiction under § 1350 to determine whetherTrajano had a separate, substantive cause of action; noneexists, she contends, because neither the treaties set out in[**29] the complaint nor the law of nations provides aprivate cause of action. 22 Thus, to the extent the court'sdecision relies upon either treaties or international law,Marcos-Manotoc submits it is erroneous.

22 Because Congress passed the Torture VictimProtection Act, supra n.18, after the districtcourt's decision, we have no occasion to considerits applicability to the present case.

The district court in fact agreed withMarcos-Manotoc that § 1350 is simply a jurisdictionalstatute and creates no cause of action itself. It proceededto determine damages on default under Philippine law.

From this we assume that the court did not rely ontreaties or international law to provide the cause ofaction, only to establish federal jurisdiction. Indeed, thecomplaint alleges that Trajano's claims arise underwrongful death statutes, as well as international law.Since Marcos-Manotoc's appeal is only to the extent thedistrict court founded Trajano's right to sue on treaties orthe law of nations, [**30] it lacks merit because the tortis admitted. That it was committed in violation ofinternational law supplies the jurisdictional key to federalcourt under § 1350. We cannot say the district courterred.

The district court's approach comports with the viewthat the First Congress enacted the predecessor to § 1350to provide a federal forum for transitory torts (a tortaction which follows the tortfeasor wherever he goes),see Filartiga, 630 F.2d at 885 (tracing transitory tortdoctrine to 1774 decision of Lord Mansfield), wheneversuch actions implicate the foreign relations of the UnitedStates. See Banco Nacional de Cuba v. Sabbatino, 376U.S. 398, 427 n.25, 11 L. Ed. 2d 804, 84 S. Ct. 923(1964) (citing § 1350 as example of congressional intentto make claims implicating foreign affairs cognizable infederal courts); Tel-Oren, 726 F.2d at 790 (Edwards, J.,concurring) ("As best we can tell, the aim of section 1350was to place in federal court actions potentiallyimplicating foreign affairs. The intent was not to providea forum that otherwise would not exist . . . [**31] but toprovide an alternative forum to state courts."). Thedistrict court's approach also allows the "law of nations"and "treaty" prongs of § 1350 to be treated consistently,in that the cause of action comes from municipal tort lawand not from the law of nations or treaties of the UnitedStates. This avoids the anomalous result which troubledJudge Bork in Tel-Oren, that whereas Filartiga found aprivate right of action by implying it from principles ofinternational law, no private cause of action can ever beimplied from a nonself-executing treaty. See Tel-Oren,726 F.2d at 820 (Bork, J., concurring).

For these reasons we affirm the judgment inTrajano's favor. Her suit as an alien againstMarcos-Manotoc for having caused the wrongful death ofher son, by official torture in violation of a jus cogensnorm of international law, properly invokes thesubject-matter jurisdiction of the federal courts under §1350.

AFFIRMED.

978 F.2d 493, *502; 1992 U.S. App. LEXIS 26680, **27;


Trajano v Marcos

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