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FILARTIGA v. PENA-IRALA

January 10, 1984

DOLLY M. E. FILARTIGA and JOEL FILARTIGA, Plaintiffs,
v.
AMERICO NORBERTO PENA-IRALA, Defendant



The opinion of the court was delivered by: NICKERSON

MEMORANDUM AND ORDER

 NICKERSON, District Judge

 Plaintiffs, Dolly M. E. and Dr. Joel Filartiga, citizens of Paraguay, brought this action against defendant Pena, also a Paraguayan citizen, and the former Inspector General of Police of Asuncion. They alleged that Pena tortured and murdered Joelito Filartiga, the seventeen year old brother and son, respectively, of plaintiffs, in retaliation for Dr. Filartiga's opposition to President Alfredo Stroessner's government. Plaintiffs invoked jurisdiction under, among other provisions, 28 U.S.C. § 1350, giving the district court "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."

 This court followed what it deemed the binding precedents of IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975) and Dreyfus v. Von Finck, 534 F.2d 24 (2nd Cir.), cert. denied, 429 U.S. 835, 97 S. Ct. 102, 50 L. Ed. 2d 101 (1976), and dismissed for lack of jurisdiction on the ground that violations of the law of nations "do not occur when the aggrieved parties are nationals of the acting state," id. at 31.

 The Court of Appeals reversed and remanded, concluding that the above quoted language from the Dreyfus opinion was "clearly out of tune with the current usage and practice of international law." Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980). The Court of Appeals held that "deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties," and that 28 U.S.C. § 1350 gave jurisdiction over an action asserting such a tort committed in violation of the law of nations. Id. at 878.

 Following remand Pena took no further part in the action. This court granted a default and referred the question of damages to Magistrate John L. Caden for a report. The Magistrate, after a hearing, recommended damages of $200,000 for Dr. Joel Filartiga and $175,000 for Dolly Filartiga. Plaintiffs filed objections to the report, and the matter is now here for determination.

 I

 Before addressing damages the court considers two matters urged before but not decided by the Court of Appeals. Both go to whether the court should decline to exercise jurisdiction.

 The first is whether the court should abstain in deference to the so-called act of state doctrine. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 11 L. Ed. 2d 804, 84 S. Ct. 923 (1964). Were the government of Paraguay concerned that a judgment by the court as to the propriety of Pena's conduct would so offend that government as to affect adversely its relations with the United States, presumably Paraguay would have had the means so to advise the court.

 In any event, the Court of Appeals held that the alleged acts constitute, by the "general assent of civilized nations," a "clear and unambiguous" violation of the law of nations. 630 F.2d at 881, 884. As the Supreme Court noted in discussing the act of state doctrine in the Sabbatino decision, "the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it." 376 U.S. at 428. Where the principle of international law is as clear and universal as the Court of Appeals has found it to be, there is no reason to suppose that this court's assumption of jurisdiction would give justifiable offense to Paraguay.

 Moreover, as the Court of Appeals noted, Paraguay has not ratified Pena's acts, 630 F.2d at 889, and this alone is sufficient to show that they were not acts of state. See Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 684, 694, 48 L. Ed. 2d 301, 96 S. Ct. 1854 (1976).

 Pena argued here on the original motion and in the Court of Appeals that this court should decline to proceed because Paraguay and not the United States is the convenient forum. Pena's default now casts doubt on the good faith of this contention. Its merits depend on whether the courts of Paraguay are not only more convenient than this court but as available and prepared to do justice. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). Pena submitted nothing to cast doubt on plaintiffs' evidence showing that further resort to Paraguayan courts would be futile. This court will therefore retain jurisdiction.

 II

 The Court of Appeals decided only that Section 1350 gave jurisdiction. We must now face the issue left open by the Court of Appeals, namely, the nature of the "action" over which the section affords jurisdiction. Does the "tort" to which the statute refers mean a wrong "in violation of the law of nations" or merely a wrong actionable under the law of the appropriate sovereign state? The latter construction would make the violation of international law pertinent only to afford jurisdiction. The court would then, in accordance with traditional conflict of laws principles, apply the substantive law of Paraguay. If the "tort" ...


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