Alvarez-Machain v. Sosa et al./Alvarez-Machain v. The United States of America (rehearing en banc)

Court	United States Court Of Appeals For The Ninth Circuit, United States
Case number	331 F.3d 604
Decision title	Opinion (rehearing en banc)
Decision date	3 June 2003
Parties	Humberto Alvarez-Machain Francisco Sosa Five unnamed Mexican nationals, in the Federal Witness Protection Program at time of the trial United States of America
Other names	Sosa v. Alvarez-Machain
Categories	Human rights violations, Torture
Keywords	torture, abduction, arbitrary detention, assault and battery, cruel, inhuman and degrading treatment or punishment, denial of adequate medical treatment, false arrest, false imprisonment, kidnapping, negligent employment, universal jurisdiction
Links	Opinion

Summary

In 1990, several Mexican nationals, executing an assignment from the United States Drug Enforcement Agency, abducted one of the persons suspected of involvement in the murder of a DEA official. He was eventually acquitted of all charges by an American Court and returned to Mexico.

Alvarez-Machain attempted to take legal action against the Mexican nationals (including Jose Francisco Sosa) involved in his arrest, and against the United States. In first instance, the Court rejected the action against the United States, but established Sosa’s liability. The Court of Appeal confirmed Sosa’s liability, establishing that his involvement in the arbitrary arrest and detention of Alvarez-Machain constituted a breach of the ‘law of nations’. In the current en banc hearing and opinion the Court of Appeal affirmed its earlier conclusion concerning Sosa, and also established liability of the United States: Machain's arrest, planned by the DEA in the United States, was found unlawful.

Procedural history

In 1990, Humberto Alvarez-Machain, a Mexican citizen and resident, was forcibly kidnapped from his home and flown to Texas where he was arrested for his participation in the kidnapping and murder of a Drug Enforcement Administration (DEA) agent and the agent's pilot. Both the Court of First Instance and Court of Appeal found this forcible abduction a violation of the extradition treaty between the US and Mexico, which barred Alvarez-Machain's trial before a US court. This decision was overturned by the Supreme Court in its 1992 ruling that the abduction did not violate the extradition treaty. Alvarez-Machain's trial was allowed to commence, albeit to no avail: he was ultimately acquitted in 1993 due to lack of evidence, after which he returned to Mexico.

Alvarez-Machain brought a lawsuit against the United States for false arrest and against several Mexican nationals, including Francisco Sosa, for violating the law of nations. The federal district court ruled that the DEA had acted lawfully when they arrested Alvarez-Machain. Therefore, it held that the United States was not liable, while Sosa’s liability was established. The Court of Appeals confirmed the findings regarding Sosa, but it remanded the question of liability of the US. Since this question was found to be a matter of exceptional public importance, an en banc court hearing was initiated to deal with this question.

Related developments

The Supreme Court reversed the current decision, holding that the claims against Sosa and the United States did not fall within the scope of, respectively, the Alien Tort Statute (ATS) or the Federal Tort Claims Act (FTCA).

Legally relevant facts

After investigating the kidnapping and murder of a US Drug Enforcement Agency (DEA) special agent, the DEA concluded that physician Humberto Alvarez-Machain had participated in the murder. It was alleged that he had prolonged the agent’s life so that others could further torture and interrogate him. An arrest warrant was issued. The United States negotiated with the Mexican government without any formal extradition request (paras. 8-10). On 2 April 1990, Alvarez-Machain was forcibly kidnapped, e.g. by Mexican nationals who were not affiliated with either the Mexican or US government, and flown to Texas, where he was arrested by the DEA (para. 11). Alvarez-Machain moved to dismiss the indictment, claiming that his abduction constituted outrageous governmental conduct, and that the Court lacked jurisdiction to try him because he was abducted in violation of the extradition treaty between the United States and Mexico. The Supreme Court eventually held that the arrest did not violate the extradition treaty (Ker v. Illinois) and that Alvarez-Machain could be tried in a US court (paras. 12-13). He was eventually acquitted. After his return to Mexico, Alvarez-Machain filed an action against several Mexican nationals who had assisted in his arrest, the United States and four DEA agents (para. 15).

Core legal questions

The question to be answered is whether the forcible, transborder abduction of Alvarez-Machain by Mexican civilians at the behest of the DEA gave rise to a civil claim against the US under US law.

This meant the en banc Court had to assess whether there was a “violation of the law of nations”, a predicate to federal court jurisdiction under the ATS (28 U.S.C. para. 1350, stating 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”). Furthermore, it had to assess whether the FTCA (28 U.S.C. para. 1346(b)(1), 2671-2680, which authorises private tort actions against the United States where, if the US were a private person, it would be liable to the claimant according to the law of the place where a particular act or omission occurred) provides a remedy for the cross-border abduction of Alvarez-Machain.

Specific legal rules and provisions

28 United States Code, paragraph 1350.
28 United States Code, paragraph 1346(b)(1).
28 United States Code, paragraphs 2671-2680.

Court's holding and analysis

The previous three-member panel judgment was for a large part affirmed. The court ruled that Alvarez-Machain lacked standing under the ATS for claims based on alleged violations of Mexican sovereignty, as the ATS does not allow individual to “vindicate the rights of a foreign government” (para. 48). Also, it assessed that an international legal obligation to refrain from transborder kidnapping does not exist (para. 66).

The court established, based on several human rights instruments and previous rulings (e.g. Martinez v. City of LA) that arbitrary arrest and detention do constitute violations of the law of nations. (para. 70). According to the Court, a criminal statute might apply extraterritorially, but this does not sanction extraterritorial enforcement authority (para. 83). In this case, Alvarez-Machain’s arrest and detention were not based in law and thereby arbitrarily (para. 76).

With regard to the FTCA, the Court that DEA agents had no authority under federal law to execute an arrest in Mexico (para. 152). Since the arrest was planned in the United States, the FTCA could be applied (paras. 133 and 139-141). The Court of Appeals rejected the District Court’s ruling that the arrest could be justified as a citizen arrest under Californian law, since this would inappropriately extend the authority of law enforcement officers (paras. 149-151).

Further analysis

In a commentary on the Alien Tort Statute, Bhatia discusses the legal history of this Act. Berman elaborates on the term ‘law of nations’. Ku and Yoo discuss the ability of federal courts to incorporate customary international law through the Alien Tort Statute.