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Media Alerts - Warfaa v. Ali -- Fourth Circuit
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February 25, 2016
  Warfaa v. Ali -- Fourth Circuit
Alien Tort Explained: Fourth Circuit Limits International Application of Alien Tort Statute

Areas of Law: Civil Procedure, International Law

Issues Presented: Whether the District Court has subject matter jurisdiction under the Alien Tort Statute or the Torture Victim Protection Act when acts of torture occur outside the United States.

Brief Summary: In the 1980s, Yusuf Ali was part of a military unit in Somalia that kidnapped and tortured Farhan Warfaa. Warfaa sought to bring claims against Ali for these actions. Ali now resides in the United States, while Warfaa still resides in Somalia. In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the District Court for the Eastern District of Virginia did not have subject matter jurisdiction under the Alien Tort Statute to hear Warfaa's claims against Ali because Warfaa's claims do not "touch and concern" the United States. The Fourth Circuit also held that two of Warfaa's claims could move forward under the Torture Victim Protection Act.

Extended Summary:
Throughout the 1980s, Somalia experienced a period of political upheaval. The country was ruled by military dictatorship, and the government persecuted opposition political organizations. Appellant Farhan Warfaa lived in Somalia during that time period and was a member of a clan that opposed the government. Yusuf Ali supported the dictatorship and was the commander of the Fifth Battalion of the Somali National Army.

In December of 1987, soldiers from Ali's unit kidnapped Warfaa from his home and took him to a military base. While in captivity, Warfaa was tortured by Ali and his soldiers, including severe beatings on more than nine occasions. In 1988, as the military regime was collapsing, Ali shot Warfaa in the wrist and leg, and left him for dead. Warfaa was able to bribe one of the remaining guards and escaped. He still lives in Somalia today.

Ali fled Somali in advance of the government's fall, and immigrated to Canada. He was eventually deported from Canada and traveled to the United States, where he was subsequently put in removal proceedings and deported. Ali returned to the United States on a spousal visa in 1996 and was permitted to remain after initially being placed in removal proceedings. He currently resides in the United States.

In 2005, Warfaa filed six claims against Ali in the District Court for the Eastern District of Virginia. Warfaa's claims include (1) attempted extrajudicial killing, (2) torture, (3) cruel, inhumane, or degrading treatment or punishment, (4) arbitrary detention, (5) crimes against humanity, and (6) war crimes. Warfaa alleged that the District Court had jurisdiction over all six claims based on the Alien Tort Statute. Warfaa also maintained the court had jurisdiction over the first two claims under the Torture Victim Protection Act of 1991.

While Warfaa's claims were initially filed in 2005, the District Court stayed the case until 2012 until either party could provide assurance from the U.S. State Department that the case would not interfere with U.S. foreign policy. The State Department ultimately chose not to comment, and the District Court allowed the case to move forward. The court also enforced a stay from 2012 to 2014 pending the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013). Once the State Department declined to comment and the Supreme Court addressed the Alien Tort Statute in Kiobel, the District Court allowed Warfaa's case to move forward.

Warfaa claimed the District Court had subject matter jurisdiction over all six claims under the Alien Tort Statute ("ATS"). The ATS is a brief, one-sentence provision passed within the Judiciary Act of 1789, which provides that "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." From its passage to 1980, the ATS was essentially never invoked. From 1980 onward, however, several courts interpreted the statute to permit claims of torture committed abroad where all claims involved foreign nations.

In Kiobel, however, the Supreme Court placed limitations on this application of the ATS. The Kiobel Court held that claims involving conduct that occurred in a foreign country are ordinarily not covered by the ATS, and that a "presumption against extraterritorial application" exists when applying the ATS to foreign cases. Kiobel did not categorically prohibit application of the ATS to foreign cases, but rather established a requirement that the actions in question must "touch and concern" the United States with sufficient force to displace the presumption against extraterritorial application.

Based on the Supreme Court's decision in Kiobel, the District Court granted summary judgment for Ali on the Alien Tort Statute claims. However, the District Court did allow Warfaa's first two claims to proceed under the Torture Victim Protection Act, finding that Ali could not claim "official act" immunity because his actions violated jus cogens norms and were so universally against international law that they could not be protected by governmental immunity.

Both parties appealed to the Fourth Circuit. On appeal, the Fourth Circuit upheld the judgment of the District Court and found that Warfaa's ATS claims were properly dismissed, but the two claims under the Torture Victim Protection Act ("TVPA") could go forward.

The Fourth Circuit applied the newly formed Kiobel test to Warfaa's case and found that Ali's actions did not sufficiently touch and concern the United States. While the court acknowledged that Ali did immigrate to the U.S. and has lived here for nearly 20 years, the court did not find sufficient facts to demonstrate a "strong and direct connection" to the United States to overcome the Kiobel presumption. The Fourth Circuit noted that Ali's residence in the United States was mere "happenstance" and did not demonstrate any compelling reason for U.S. courts to exercise jurisdiction over his actions in Somalia.

The court also upheld the District Court's decision to allow the claims under the TVPA to move forward. The court found that Ali's actions violated jus cogens norms, and Ali did not dispute this fact. Instead, Ali sought to have the Fourth Circuit overturn Yousuf v. Samatar, 699 F.3d 763 (4th Cir. 2012), which held that foreign officials cannot claim official act immunity for jus cogens violations. The court declined to overturn this precedent.

Judge Gregory dissented from the majority's opinion with regard to the ATS issue. In his dissent, Judge Gregory wrote that Ali's conduct did in fact "touch and concern" the United States. He noted that Ali is a lawful permanent resident of the U.S., has resided in the U.S. for 20 years, and received specialized military training at U.S. military institutions on three separate occasions, including once after his actions in Somalia against Warfaa. Judge Gregory also argued that the Alien Tort Statute is meant to give individuals a remedy against those living in the U.S. who have committed human rights atrocities.

To read the full text of this opinion, please click here.

Panel: Agee, Diaz, and Gregory (dissenting as to Part III)

Argument Date: 09/16/2015

Date of Issued Opinion: 02/01/2016

Docket Number: 14-1810, 14-1934

Decided: Affirmed by published opinion.

Case Alert Author: Benjamin Garmoe, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Joseph Peter Drennan, Alexandria, Virginia, for Appellant/Cross-Appellee. Tara Melissa Lee, DLA PIPER LLP (US), Reston, Virginia, for Appellee/Cross-Appellant. ON BRIEF: Joseph C. Davis, Reston, Virginia, Paul D. Schmitt, Mason Hubbard, DLA PIPER LLP (US), Washington, D.C.; Laura Kathleen Roberts, Nushin Sarkarati, Scott A. Gilmore, CENTER FOR JUSTICE & ACCOUNTABILITY, San Francisco, California, for Appellee/Cross-Appellant.

Author of Opinion: Agee, J.

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/25/2016 08:37 AM     4th Circuit  

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