Case 3:13-cv WQH-BGS Document 33 Filed 03/27/14 Page 1 of 34

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1 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 GERALD SINGLETON, State Bar No. ERIKA VASQUEZ, State Bar No. SINGLETON LAW FIRM, APC 0 N. Coast Hwy 0, Suite A Encinitas, California Tel: (0-0 Fax: (0 - gerald@geraldsingleton.com ROBERT C. HILLIARD, TX State Bar No. 000 MARION REILLY, TX State Bar No. 0 HILLIARD MUNOZ GONZALES, LLP S. Shoreline Blvd, Ste. 00 Corpus Christi, Texas 0 Tel: ( - s: bobh@hmglawfirm.com marion@hmglawfirm.com STEVE SHADOWEN, PA State Bar No. HILLIARD & SHADOWEN, LLP W. Main Street Mechanicsburg, Pennsylvania 0 Tel: ( - steve@hilliardshadowenlaw.com DANIEL GONZALES, TX State Bar No. 0 HILLIARD & SHADOWEN, LLP 0 E. th Street, Suite 00 Austin, Texas 0 Tel: ( - daniel@hilliardshadowenlaw.com Motion to Dismiss Plaintiffs First Amended Complaint

2 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 MARIA DEL SOCORRO QUINTERO PEREZ, CY, a Minor, And BY, a Minor, Plaintiffs, v. UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES CUSTOMS AND BORDER PROTECTION OFFICE OF BORDER PATROL, JANET NAPOLITANO, THOMAS S. WINKOWSKI, DAVID AGUILAR, ALAN BERSIN, KEVIN K. McALEENAN, MICHAEL J. FISHER, PAUL A. BEESON, RICHARD BARLOW, RODNEY S. SCOTT, CHAD MICHAEL NELSON, and DORIAN DIAZ, and DOES - 0 Defendants. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Case No. cv0wqh (BGS PLAINTIFFS MEMORANDUM OF LAW IN OPPOSITION TO THE UNITED STATES, ITS AGENCIES, AND THE OFFICIAL-CAPACITY DEFENDANTS MOTION TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT CTRM: B (Annex JUDGE: Hon. William Q. Hayes Motion to Dismiss Plaintiffs First Amended Complaint

3 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 TABLE OF CONTENTS INTRODUCTION... STATEMENT OF FACTS... SUMMARY OF ARGUMENT... ARGUMENT... I. SIDERMAN DE BLAKE V. REPUBLIC OF ARGENTINA AND ITS PROGENY PRECLUDE SOVEREIGN IMMUNITY... II. SOSA V. ALVAREZ MACHAIN PRECLUDES SOVEREIGN IMMUNITY... III. CONGRESS ENACTED THE ATS AGAINST A BACKGROUND OF NO IMMUNITY FOR OFFICIAL CONDUCT... IV. IMMUNITY WOULD CONFLICT WITH INTERNATIONAL LAW... V. DEFENDANTS OFFER NO VIABLE ARGUMENT TO JUSTIFY SOVEREIGN IMMUNITY... A. Defendants Canon of Construction Is Offset by the Charming Betsy Canon.... B. Defendants Cases Do Not Hold that the ATS Provides Immunity for Jus Cogens Violations... CONCLUSION... APPENDICES: APPENDIX A: APPENDIX B: American Convention on Human Rights, Pact of San Jose, Costa Rica, November, UNTS, art. International Covenant on Civil and Political Rights, Article I. G.A. Res. 00A (XXI (March, Motion to Dismiss Plaintiffs First Amended Complaint i

4 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 APPENDIX C: UN Human Rights Committee, General Comment : The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C//Rev.l/Add. (0 APPENDIX D: APPENDIX E: APPENDIX F: APPENDIX G: APPENDIX H: Lopez Mendoza v. Venezuela (Merits, Reparations, and Costs, IACtHR, September, Ser. C, No. Blake v. Guatemala (Reparations and Costs, IACtHR, January, Ser. C, No. Corfu Channel case, Judgment of April th,: I.C.J. Reports Factory at Chorzow (Germany v Poland (, PCIJ (Ser A No. Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports APPENDIX I: New Zealand Bill of Rights Act 0, Sec., APPENDIX J: Constitution of the Republic of South Africa ( APPENDIX K: Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, Conn. L.Rev., ( Motion to Dismiss Plaintiffs First Amended Complaint ii

5 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 CASES TABLE OF AUTHORITIES Burch v. Secretary of Health & Human Servs., 0 WL (Ct. Fed. Cl Canadian Transport Co. v. United States, F.d 0 (D.C.Cir.0... Enahoro v. Abubakar, 0 F.d (th Cir F. Hoffman-La Roche, Ltd. v. Empagran, S.A., U.S. (0... F.A.A. v. Cooper, S. Ct. (... Filartiga v. Pena-Irala, 0 F.d (d Cir. 0,...0, Goldstar (Panama S.A. v. United States, F.d (th Cir.... Goldstein v. United States, No , 0 U.S. Dist. LEXIS (D.D.C. Apr., 0... Heong v. United States, U.S. (... Hernandez v. United States, 0 F. Supp. d (W.D. Tex.... In re Estate of Ferdinand E. Marcos Human Rights Litig., F.d (th Cir. Cir....,, In re Estate of Ferdinand E. Marcos Human Rights Litig., F.d (th Cir...., 0 Motion to Dismiss Plaintiffs First Amended Complaint iii

6 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 Industria Panificadora, S.A. v. United States, F.d (D.C. Cir.... Koohi v. United States, F.d (th Cir.... Larson v. Domestic & Foreign Commerce Corp., U.S. (... Little v. Barreme, U.S. ( Cranch 0 (0... Mitchell v. Harmony, U.S. ( How. (... Murray v. Schooner Charming Betsy, U.S. (0..., Ortega-Chavez v. United States, No. -CV-0 BEN (DHB, U.S. Dist. LEXIS (S.D. Cal. Nov.,... Richard v. United States, F.d (Fed. Cir.... Richlin Sec. Serv. Co. v. Chertoff, U.S. (0..., Sanchez-Espinoza v. Reagan, 0 F.d (D.C. Cir.... Sarei v. Rio Tinto, PLC, F.d (th Cir. 0...,, Schillinger v. U.S., U.S. (... Siderman de Blake v. Republic of Argentina, F.d (th Cir. Cir.... passim Motion to Dismiss Plaintiffs First Amended Complaint iv

7 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 Sosa v. Alvarez-Machain, U.S. (0... passim Tobar v. United States, F.d (th Cir...., U.S. Dept. of Energy v. Ohio, 0 U.S. 0 (... United States v. Lee, 0 U.S. (... Ware v. Hylton, U.S. ( Dall. (... Weldon v. United States, 0 F.d (d Cir... Yousuf v. Samantar, F.d (th Cir....0, FOREIGN CASES Corfu Channel case, Judgment of April th,: I.C.J. Reports... Ferrini v Federal Republic of Germany (0 Cass sez un 0/0... Jones and Others v. the United Kingdom (application nos. /0 and 0/0... Prefecture of Voiotia v Federal Republic of Germany (Case No /00 (unreported May STATUTES U.S.C Motion to Dismiss Plaintiffs First Amended Complaint v

8 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 OTHER AUTHORITIES Cong. Rec. S 0, S, WL (April,... American Convention on Human Rights, Pact of San Jose, Costa Rica, November, UNTS, art. ; OASTS ; ILM... Blake v. Guatemala (Reparations and Costs, IACtHR, January, Ser. C, No.... Chisholm v. Georgia, U.S ( Dall. (... Constitution of the Republic of South Africa (... Dirk Ehlers & Ulrich Becker, European Fundamental Rights and Freedoms (0... European Convention for the Protection of Human Rights and Fundamental Freedoms, November 0, UNTS, art, Eur TS..., Factory at Chorzow (Germany v Poland (, PCIJ (Ser A No... International Covenant on Civil and Political Rights, United Nations, Treaty Series, vol.... Jo M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (0... Jurgen Brohmer, State Immunity and the Violation of Human Rights (... Lopez Mendoza v. Venezuela (Merits, Reparations, and Costs, IACtHR, September, Ser. C, No.... New Zealand Bill of Rights Act 0... Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports... Motion to Dismiss Plaintiffs First Amended Complaint vi

9 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 Restatement (Third of Foreign Relations, comment e (...,,, Restatement (Third of Foreign Relations 0, comment c (... The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, Conn. L.Rev., & n. (... UN Human Rights Committee, General Comment : The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C//Rev.l/Add. (0... United States v. Van Lech et al., 0 CCL Trials and CCL Trials (... Vicki C. Jackson, Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence, Geo. Wash. Intl. L. Rev. (0... William R. Casto, Notes on Official Immunity in ATS Litigation, 0 Fordham L. Rev. (..., Motion to Dismiss Plaintiffs First Amended Complaint vii

10 Case :-cv-0-wqh-bgs Document Filed 0// Page 0 of 0 INTRODUCTION The family of Jesus Alfredo Yañez Reyes ( Yañez seeks redress for the death of their husband and father. Mr. Yañez was killed as a result of the United States Rocking Policy, pursuant to which border patrol agents along the nation s southern border deemed the throwing of rocks at them to be per se lethal force that justified the agents in responding with fatal gunfire. Under the Rocking Policy, Border Patrol agents shot to kill Mexican nationals who allegedly threw rocks at them, regardless of whether the alleged rock-throwing posed an imminent risk of death or serious injury to the agents or anyone else, and regardless of whether other, non-lethal means were available to avert any such risk. The Rocking Policy violated the peremptory international norm binding on the United States and its agencies against extrajudicial killing. The United States has itself many times asserted that other nations violated this jus cogens norm by permitting their military or police agencies to respond to alleged rock-throwing with deadly force. After Plaintiffs filed their Amended Complaint ( Comp., the United States announced that it has clarified the Rocking Policy. The new policy purportedly conforms to international law by now requiring agents to respond to alleged rockthrowing with non-lethal means whenever agents can do so safely. This change in policy, while potentially welcome (depending on its actual implementation, does not bring recompense to Plaintiffs. Instead, despite the acknowledged change in policy, the Government Defendants assert sovereign immunity to Plaintiffs claims for damages under the law of nations. The Government Defendants are the United States of America, the Department of Homeland Security, the United States Customs & Border Protection, and the Office of Border Patrol. Motion to Dismiss Plaintiffs First Amended Complaint

11 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 No such immunity applies here. By definition, a jus cogens norm is binding on the sovereign regardless of whether it consents to suit. The Ninth Circuit has so held three times, and those holdings are supported by Supreme Court authority, the history of the Alien Tort Statute, and unequivocal international law. STATEMENT OF FACTS Pursuant to the unlawful Rocking Policy, Border Patrol agents along the southern border regularly used excessive, lethal force against alleged rock-throwers. At all relevant times, all of the Government Defendants knew that Border Patrol agents along the southern border: had a regular pattern and practice of deeming the throwing of rocks at them to be per se lethal force that justified the agents shooting to kill the alleged rock-throwers; understood the Government Defendants to have, at a minimum, tacitly approved the Rocking Policy by, for example, failing and refusing to countermand express statements by Border Patrol agents representatives that the Rocking Policy was lawful and appropriate, and by failing to take remedial action when agents acted unlawfully pursuant to the Rocking Policy; and had a regular pattern and practice of taking advantage of the existence of the Rocking Policy to justify the unlawful use of excessive force by falsely asserting that they had been subject to rock-throwing. Comp.. Despite actual knowledge of this patently unlawful policy and practice, the Government Defendants failed and refused to: (a issue a lawful policy regarding the use of force in response to alleged rock-throwing; (b provide adequate training to agents Motion to Dismiss Plaintiffs First Amended Complaint

12 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 regarding lawful responses to alleged rock-throwing ; and (c discipline agents who acted unlawfully pursuant to the Rocking Policy. Id.. For example, the U.S. Department of Justice concluded that a border patrol agent did not act inconsistently with [Border Patrol] policy or training regarding use of force when he fatally shot a -year-old boy. Id.. Three videotapes of that incident showed that the boy had not thrown any rock; the agent s first show of any force was the lethal shot; and the agent could have simply backed up if he somehow felt threatened. Id. The DOJ concluded that the killing in these circumstances was consistent with the policy and the agent s training. Id. International human rights organizations have complained to the United States for almost a decade that the Rocking Policy blatantly violates international law. Id.. Indeed, the international proscription against extrajudicial killing is a peremptory, jus cogens norm a specific, universal, and obligatory norm from which no nation may lawfully depart. Id. -. Police use of excessive, lethal force is one of the core forms of extrajudicial killings defined by international law. Id. 0-. For decades, the U.S. Department of State has insisted, correctly, that the international norm against extrajudicial killing includes deliberate, illegal, and excessive use of lethal force by the police, security forces, or other agents of the State whether against criminal suspects, The Complaint also alleges the specific ways in which the Government Defendants failed to properly train border patrol agents who allegedly encounter rock-throwing. Id.. These complaints came from, among others, the Border Network for Human Rights, the American Civil Liberties Union, the U.N. Committee on the Elimination of Racial Discrimination, the United Nation s Office of the High Commissioner for Human Rights, Amnesty International, Human Rights Watch, the Inter-American Commission on Human Rights, the American Friends Service Committee, a coalition of 0 other rights groups, and, of course, the Government of Mexico. Comp.. Motion to Dismiss Plaintiffs First Amended Complaint

13 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 detainees, prisoners, or others, specifically including responding to rock-throwing with deadly force. Id.. In response to international outrage, the United States commissioned the Police Executive Research Forum ( PERF to provide guidance to the Government Defendants regarding the Rocking Policy. Id.. In a confidential report subsequently obtained by the Los Angeles Times and characterized by it as scathing, PERF concluded that the Rocking Policy is unlawful and should be reformed. Comp.. Nevertheless, the Government Defendants announced in November that they rejected the expert recommendations that they had hired PERF to provide. Id. After Plaintiffs filed their Amended Complaint, Jeh Johnson succeeded Defendant Napolitano as Secretary of Homeland Security. His first order of business was to insist on a clarification of the Rocking Policy to conform it to the requirements of international law. That change in policy came three years too late for Mr. Yañez and his family. SUMMARY OF ARGUMENT The Alien Tort Statute ( ATS empowers district courts to hear 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. U.S.C. 0. Congress thus authorized non-u.s. citizens to pursue tort claims to enforce a narrow category of norms under the law of nations. These enforceable international standards include what are today known as jus cogens norms. Jus cogens norms occupy the apex of the hierarchy of international rights and obligations. They include, for example, the bans on torture, genocide, human trafficking, and extrajudicial killing. The defining characteristic of a jus cogens norm is that it binds the sovereign regardless of its consent. To permit a defense of sovereign immunity Motion to Dismiss Plaintiffs First Amended Complaint

14 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 where Congress has authorized a tort claim to enforce a sovereign-binding norm would literally be a contradiction in terms. For that reason, the Ninth Circuit famously held that there is no sovereign immunity to a jus cogens violation. Siderman de Blake v. Republic of Argentina, F.d, (th Cir.. The court explained that [w]hereas customary international law derives solely from the consent of states, the fundamental and universal norms constituting jus cogens transcend such consent. Id. (emphasis added. Consequently, states and their officials have no immunity when they violate a jus cogens norm: International law does not recognize an act that violates jus cogens as a sovereign act. A state's violation of the jus cogens norm prohibiting official torture therefore would not be entitled to the immunity afforded by international law. Id. at (emphasis added. The Court of Appeals has reiterated that holding in both subsequent cases that have come before it involving jus cogens claims. Sarei v. Rio Tinto, PLC, F.d, 0 (th Cir. 0 (no act-of-state immunity because conduct that violates jus cogens cannot constitute official sovereign acts ; In re Estate of Ferdinand E. Marcos Human Rights Litig., F.d, 0 (th Cir. (no sovereign immunity under ATS because no state claims a sovereign right to torture, and therefore the district court did not err in founding jurisdiction on a violation of the jus cogens norm prohibiting official torture. The Ninth Circuit law was strengthened by the Supreme Court s watershed decision in Sosa v. Alvarez-Machain, U.S., (0. The Court adopted the Ninth Circuit s holding that the international norms that are actionable under the ATS are specific, universal, and obligatory. Id. at (quoting In re Estate of Ferdinand E. Marcos Human Rights Litig., F.d, (th Cir. Cir. (emphasis added. An obligatory norm is one that confers fundamental rights upon all people vis-a-vis governments. Estate of Marcos, F.d at (emphasis added. And Congress Motion to Dismiss Plaintiffs First Amended Complaint

15 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 intended federal courts to use their jurisdiction under the ATS to make these sovereignbinding norms enforceable as common law without further statutory authority. Sosa, U.S. at. The Courts conclusion that there is no immunity for violating jus cogens norms conforms to Congress understanding when it enacted the ATS. When Congress enacted the statute in, government officers were routinely sued for their official conduct with not the faintest suggestion that they could invoke sovereign immunity. William R. Casto, Notes on Official Immunity in ATS Litigation, 0 Fordham L. Rev., (. Indeed, Congress was prompted to enact the ATS when a New York constable violated international law by arresting one of the Dutch Ambassador s servants. Anxious to assure the world that the new Republic would observe the law of nations, Sosa, U.S. at n., the First Congress enacted the ATS to provide redress to non-u.s. citizens for official conduct, like that of the New York constable, that violates the law of nations. Id. at (concluding that the ATS was prompted by this and one other incident. The same rule of non-immunity prevails today in international law. That law prohibits sovereigns from claiming immunity in the nation s own courts for violating jus cogens norms. Specifically with respect to claims by non-u.s. citizens, international law prohibits sovereign immunity even if it would otherwise have applied under domestic law: A state is also responsible if it fails to provide to an alien remedies for injury to person or property, whether inflicted by the state or by private persons[,] in circumstances in which a remedy would be provided by the major legal systems of the world. That such remedy might not be available because under domestic law the state or an official is immune from suit does not diminish the state's responsibility under international law. Restatement (Third of Foreign Relations, comment e ( (emphasis added. Motion to Dismiss Plaintiffs First Amended Complaint

16 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 The major legal systems of the world do not permit sovereign immunity for jus cogens claims prosecuted in the nation s own courts. For example, the signatories to the European Convention on Human Rights provide, in Article, that [e]veryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. domestic courts for jus cogens claims applies throughout the world. The same rule of non-immunity in Thus, non-immunity is compelled by the ATS s plain language, the decisions in Siderman and its progeny, the determinative analysis in Sosa, the statute s history, and the clear international law. Against this unanimous authority, the Defendants lean on a single, slender reed the canon of construction against implying a waiver of sovereign immunity. Def. Br. at. But that canon is not applicable here: Plaintiffs need not imply a waiver because the ATS by its plain terms permits a tort claim for violation of a norm whose defining characteristic is that it binds the sovereign regardless of its consent. By authorizing a tort claim to enforce such a norm, Congress authorized liability without regard to any purported non-consent. In any event, the immunity canon is merely a tool for interpreting the law and we have never held that it displaces the other traditional tools of statutory construction. Richlin Sec. Serv. Co. v. Chertoff, U.S., (0. That canon is neutralized here by a weighty countervailing canon the requirement that the Court construe U.S. law so as not to conflict with international law. Murray v. Schooner Charming Betsy, U.S., (0 (Marshall, C.J.. The Ninth Circuit has already resolved this issue, holding three times that jus cogens claims are not subject to immunity. No other reading of the ATS is reasonable in European Convention for the Protection of Human Rights and Fundamental Freedoms, November 0, UNTS, art, Eur TS (entered into force September. Motion to Dismiss Plaintiffs First Amended Complaint

17 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 light of Congress authorizing tort claims to enforce international norms whose defining characteristic is that they are enforceable against the sovereign regardless of consent. And Congress authorized those claims specifically in order to provide relief against state conduct that violates the law of nations, understanding that immunity did not shield that official conduct. International law flatly denies immunity to the U.S. and its officials for jus cogens claims prosecuted in the nation s own courts. Congress enacted the ATS to assure the world that the new Republic would observe the law of nations. Sosa, U.S. at n.. The Court should make good on Congress assurance by denying Defendants motion. ARGUMENT I. SIDERMAN DE BLAKE V. REPUBLIC OF ARGENTINA AND ITS PROGENY PRECLUDE SOVEREIGN IMMUNITY. For purposes of their motion to dismiss Plaintiffs ATS claim, the Government Defendants have not disputed that: ( the international proscription against extrajudicial killing is a jus cogens norm; ( that norm encompasses police use of lethal force against alleged rock-throwers; and ( the Complaint alleges that the Rocking Policy violated this norm. In these circumstances, the Ninth Circuit s decisions in Siderman de Blake v. Republic of Argentina, F.d, (th Cir., and its progeny preclude Defendants demands for immunity. Siderman considered an ATS claim that the government of Argentina violated the jus cogens norm against torture. The court held: Plaintiffs intend to file a motion to voluntarily dismiss the Bivens claims against the Government Defendants and the individuals sued in their official capacities, as well as the Eighth Claim for Relief (seeking declaratory judgment. Motion to Dismiss Plaintiffs First Amended Complaint

18 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 [J]us cogens embraces customary laws considered binding on all nations, [Klein, A Theory for the Application of the Customary International Law of Human Rights by Domestic Courts, Yale J. Int l L., 0- (], and is derived from values taken to be fundamental by the international community, rather than from the fortuitous or self-interested choices of nations, id. at. Whereas customary international law derives solely from the consent of states, the fundamental and universal norms constituting jus cogens transcend such consent, as exemplified by the theories underlying the judgments of the Nuremberg tribunals following World War II. F.d at. The Court concluded that what flows from the nature of jus cogens norms is that a state that violates them is not entitled to sovereign immunity: International law does not recognize an act that violates jus cogens as a sovereign act. A state's violation of the jus cogens norm prohibiting official torture therefore would not be entitled to the immunity afforded by international law. Id. at (emphasis added. The Ninth Circuit has consistently followed Siderman in adjudicating assertions of sovereign immunity for jus cogens violations. Most recently, in Sarei v. Rio Tinto, PLC, F.d (th Cir. 0, plaintiffs alleged that defendants committed jus cogens The principle underlying the Nuremberg judgments is that [i]nternational law operates as a restriction and limitation on the sovereignty of nations. It may also limit the obligations which individuals owe to their states, and create for them international obligations which are binding upon them to an extent that they must be carried out even if to do so violates a positive law or directive of the state. United States v. Van Lech et al., 0 CCL Trials and CCL Trials ( (the High Command Case. Siderman concluded that with respect to foreign sovereign immunity immunity of foreign states or officials in U.S. courts Congress had occupied the field through the Foreign Sovereign Immunities Act, U.S.C. 0, 0. See Siderman, F.d at -. Congress has enacted no similar comprehensive scheme regulating U.S. sovereign immunity for international law violations prosecuted in our own courts. Having not been displaced by any such statutory framework, the general rule laid down by Siderman applies here. Motion to Dismiss Plaintiffs First Amended Complaint

19 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 violations systematic racial discrimination at the behest of the government of Papua New Guinea. Invoking Siderman, the Court rejected defendants assertions that they were immune from ATS claims under the act-of-state doctrine. A jus cogens violation cannot constitute[] an official act. Id. at. The Court explained: F.d at 0. [Plaintiffs ] allegations, which must be accepted as true at this stage, constitute jus cogens violations. Therefore, because [i]nternational law does not recognize an act that violates jus cogens as a sovereign act, Siderman de Blake, F.d at, the alleged acts of racial discrimination cannot constitute official sovereign acts, and the district court erred in dismissing these claims under the act of state doctrine. The Court reached the same conclusion in In re Estate of Ferdinand E. Marcos Human Rights Litig., F.d (th Cir.. There victims of the Marcos regime sued his daughter who controlled the military intelligence personnel who tortured and murdered [plaintiff s decedent]. Id. at 0. Defendant could not invoke sovereign immunity under the ATS: no state claims a sovereign right to torture its own citizens, and therefore the district court did not err in founding jurisdiction on a violation of the jus cogens norm prohibiting official torture. Id. at 00 (quoting Siderman, F.d at. Thus, although she controlled the military intelligence personnel and was acting under color of the martial law her actions were not those of the Republic of the Philippines for purposes of sovereign immunity. Id. at 0. The most recent appellate decision on this issue is unequivocal, concise, and determinative here: jus cogens violations are not legitimate official acts and therefore do not merit foreign official immunity. Yousuf v. Samantar, F.d, (th Cir.. Relying on the Ninth Circuit cases discussed above, Yousuf reasoned that as a matter of international and domestic law, jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign. Id.; see also Enahoro v. Abubakar, 0 Motion to Dismiss Plaintiffs First Amended Complaint 0

20 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 F.d, (th Cir. 0 (Cudahy, J., dissenting in part ("officials receive no immunity for acts that violate international jus cogens human rights norms (which by definition are not legally authorized acts". These cases hold that the force of jus cogens norms is so strong that it withholds sovereign immunity from governments and officials of foreign nations for jus cogens claims prosecuted in U.S. courts. That is, jus cogens norms so clearly deprive conduct of its sovereign character as to permit another sovereign to sit in judgment of that conduct in a foreign court. A fortiori those cases deprive the United States and its officials of sovereign immunity for jus cogens norms prosecuted in our own courts. See Sosa v. Alvarez Machain, U.S., (0. (It is more consequential for federal courts to enforce norms against foreign sovereigns and officials than against the United States and its officials. II. SOSA V. ALVAREZ MACHAIN PRECLUDES SOVEREIGN IMMUNITY. Siderman and its progeny are strongly reinforced by the Supreme Court s watershed decision in Sosa v. Alvarez Machain, U.S. (0. In Sosa the U.S. Drug Enforcement Agency hired Sosa to detain Alvarez in Mexico and bring him to the United States for trial. Id. at. The Court rejected the analysis of some lower courts that had held that the ATS was in effect stillborn because it provided only jurisdiction without also providing an enforceable cause of action. Id. at. While the ATS is in terms only jurisdictional, Congress provided the jurisdiction to enable federal courts to enforce international law as common law.id. at. Congress directed federal courts to The earliest modern case reached the same conclusion, albeit in dicta. Addressing an assertion of immunity under the act of state doctrine, the court in Filartiga v. Pena-Irala, 0 F.d, 0 (d Cir. 0, noted: Paraguay's renunciation of torture as a legitimate instrument of state policy, however, does not strip the tort of its character as an international law violation, if it in fact occurred under color of government authority. Motion to Dismiss Plaintiffs First Amended Complaint

21 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 craft common law to enforce norm[s] of international character accepted by the civilized world and defined with a specificity comparable to the features of the th-century paradigms [that originally underlay the ATS]. Id. at -. Sosa s claim of arbitrary detention failed because it lacked the international condemnation and definiteness necessary to meet this standard. Id. at -. The Court s opinion is nevertheless highly instructive on the issue of sovereign immunity. First, the Court adopted the Ninth Circuit s holding that the international norms that are actionable under the ATS are those that are specific, universal, and obligatory. Id. at (quoting In re Estate of Ferdinand E. Marcos Human Rights Litig., F.d, (th Cir. (emphasis added. The very definition of an obligatory norm is one that confers fundamental rights upon all people vis-a-vis their own governments." Estate of Marcos, F.d at (quoting Filartiga v. Pena Irala, 0 F.d, (d Cir. 0. Sosa thus confirms that Congress enacted the ATS in order to permit non-u.s. citizens to pursue tort claims to enforce norms whose fundamental characteristic is that they that are binding against governments. Indeed, the Sosa majority and dissent both refer to the ATS s applicability to U.S. state and federal officials. See, e.g, Sosa, U.S. at - (0 (assuming ATS applies to U.S. state and federal officials; see also id. at (acknowledging Restatement principle that a state violates international law if, as a matter of state policy it engages in arbitrary detention; see also id. at -0 (Scalia, J., concurring (giving example of ATS applying to Texas and its officials. 0 Second, the Court concluded that one of Congress specific purposes in enacting the ATS was to allow non-u.s. citizens to bring tort claims under the law of nations 0 The Court took for granted that the ATS authorizes tort claims governments and their officials, and questioned only the extent to which the statute reaches private actors. U.S. at n.. Motion to Dismiss Plaintiffs First Amended Complaint

22 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 against officials in the U.S. acting within the scope of their actual authority. One of two events that immediately precipitated the statute occurred when a New York constable entered the Dutch Ambassador s residence to arrest his servant, thus violating international law. Id. at. Secretary of Foreign Affairs John Jay lamented to Congress that the federal government does not appear... to be vested with any judicial Powers competent to the Cognizance and Judgment of such Cases. Id. at (quoting Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, Conn. L.Rev., & n. (. Congress therefore enacted the ATS to allow non-u.s. citizens a tort claim against such officials who were carrying out their duties. Third, Congress enacted the ATS to boost the new nation s international prestige by showing that it intended to abide by international norms. Id. at. The ATS was part of a program to assure the world that the new Republic would observe the law of nations. Id. at n.. The statute would hardly have achieved its objective if Congress had silently exempted the United States and its officials from the norms that it purported to make enforceable. Fourth, Congress intended the ATS to be available to enforce a small number of international norms that a federal court could properly recognize as within the common law enforceable without further statutory authority. Id. at (emphasis added. Congress did not believe that any further statutory action was required in order to provide an effective remedy against defendants like the New York constable. The ATS was intended to have practical effect the moment it became law. Id. at. It would have been passing strange for Ellsworth [the principal draftsman] and this very Congress to vest federal courts expressly with jurisdiction to entertain civil causes brought by aliens The constable was later tried and convicted under the common law in New York state courts with no immunity. See Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, Conn. L.Rev., (. Motion to Dismiss Plaintiffs First Amended Complaint

23 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 alleging violations of the law of nations, but to no effect whatever until the Congress should take further action. Id. at. Clearly, no additional Congressional waiver of sovereign immunity was required. Fifth, the international norm at issue in Sosa arbitrary detention can by violated only by state actors. The Court therefore assumed that Sosa was acting on behalf of a government when he made the arrest. Id. at. Yet the Court never so much as hinted that Sosa could invoke sovereign immunity. The Court identified other possible principle[s] limiting the availability of relief in the federal courts for violations of customary international law. Id. at n.. The possible limitations include failure to exhaust administrative remedies, the political question doctrine, and case-specific deference to the political branches. Id. Conspicuously absent from the list is any mention of sovereign immunity, even though Sosa himself was acting on behalf of a government. Id. at. To sum up: Congress permitted non-u.s. citizens to pursue tort claims for violations of international norms whose defining characteristic is that they are binding on sovereigns regardless of their consent. Congress did so knowing and intending that U.S. state and federal officials would be defendants in these claims Congress specific animating purpose was to provide relief to plaintiffs against official conduct like that of the New York constable. And Congress intended the statute to have practical effect the moment it became law and the norms to be enforceable without further statutory Citing page of Sosa, Defendants here advise the Court that [t]he Supreme Court has held that the ATS does not constitute a waiver of sovereign immunity so as to permit suits against the United States. Defendants Nino Brief at 0; see also Def. Br. at (incorporating Nino brief and again advising the Court that Sosa recognized that the ATS does not constitute a waiver of sovereign immunity. The Court will search in vain for any such holding on page or anywhere else in Sosa. Motion to Dismiss Plaintiffs First Amended Complaint

24 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 authority. Congress intended all this to assure the world that the new Republic would observe the law of nations. Every aspect of the statue as elucidated in Sosa is utterly incompatible with Defendants assertion that Congress undermined its own purposes by silently reserving the defense of sovereign immunity for state conduct. III. CONGRESS ENACTED THE ATS AGAINST A BACKGROUND OF NO IMMUNITY FOR OFFICIAL CONDUCT. The conclusion under the case law is unequivocally confirmed by the ATS s legislative history. Sosa noted two key aspects of that history: ( Congress wanted to assure the world that the new Republic would abide by the law of nations; and ( this specifically included imposing tort liability for official conduct like that of the New York constable. A broader aspect of the legislative history is also determinative here: U.S. domestic law in provided no sovereign immunity for conduct in an official capacity. The modern conferring of sovereign immunity on state officials for violating domestic law simply did not exist when Congress enacted the ATS. That doctrine did not coalesce until 0 years later in. See Larson v. Domestic & Foreign Commerce Corp., U.S. (. For at least a hundred years after courts applying domestic law routinely recognized tort claims with no immunity against officers for acts done in their official capacity. See, e.g., Little v. Barreme, U.S. ( Cranch 0 (0 (award of damages against U.S. naval officer for interdicting a vessel pursuant to a presidential order; Mitchell v. Harmony, U.S. ( How. ( (affirming monetary judgment against U.S. military officer for wrongfully confiscating plaintiff's goods; United States v. Lee, 0 U.S. ( (no immunity for federal officials because [n]o man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity.. Motion to Dismiss Plaintiffs First Amended Complaint

25 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 Thus, when granting jurisdiction to federal courts in to enforce the law of nations against state officials, Congress knew that they could not defeat the claims by a plea of sovereign immunity. A leading authority explains that for at least a century U.S. courts denied immunity to officials on the ground that a state may not lawfully authorize an officer to act unlawfully. William R. Casto, Notes on Official Immunity in ATS Litigation, 0 Fordham L. Rev., (. Accordingly, an officer who violates the law is treated as a private citizen and is responsible just as a private citizen is responsible. Id. Simply put, [d]amages actions against government officers were treated as ordinary tort actions, in which liability was premised on the tort rules regulating a private citizen. Id.; see also Vicki C. Jackson, Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence, Geo. Wash. Intl. L. Rev., (0. In short, the settled domestic principle applied to state officers in their official capacity in was the same principle that Siderman applies to states and their officials with respect to jus cogens norms today: conduct that violates the norm is not legitimate state conduct and therefore is not sheltered by sovereign immunity. This legislative history is determinative of the Government Defendants assertions of sovereign immunity under the ATS today. Today the United States insists on substituting itself in as the named defendant in cases that in would have been brought against U.S. officials. See Def. Br. at n. 0. That subsequent procedural development does not detract one iota from the significance of the ATS s history. Congress enacted the ATS against the background understanding that state officials would not be immune from the liability that courts imposed under the statute. Congress intended non-u.s. citizens to recover for violations of the applicable norms, not to have Motion to Dismiss Plaintiffs First Amended Complaint

26 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 those claims defeated by sovereign immunity. That the United States today insists on being the named defendant in these cases does not change that fact. With respect to whether the United States itself enjoyed sovereign immunity under domestic law in, the historical record is less clear. See, e.g., Chisholm v. Georgia, U.S ( Dall., ( (Jay, C.J. (deliberating whether the United States can be compelled to do justice, and be sued by individual citizens, and concluding I leave it a question. Whatever the domestic law in, however, the Founders intended for federal courts to apply the law of nations as it grew and matured over time. When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement. Sosa, U.S. at (quoting Ware v. Hylton, U.S. ( Dall., ( (Wilson, J., concurring. We show next that unequivocal international law, in its modern state of purity and refinement, prohibits the United States from claiming sovereign immunity from jus cogens claims in its own courts. IV. IMMUNITY WOULD CONFLICT WITH INTERNATIONAL LAW. As noted above, as a matter of international and domestic law, there is no sovereign immunity for jus cogens violations. Yousuf, F.d at. That principle is so strong that it deprives foreign sovereigns of immunity in U.S. courts for violating the rights of their own citizens. Id.; Sarei v. Rio Tinto, F.d at 0; Estate of Marcos, F.d at 0; Siderman, F.d at. That principle is infinitely stronger Under modern international law the United States in fact bears responsibility for violations committed by any organ, agency, official, employee, or other agent of a government or of any political subdivision, acting within the scope of authority or under color of such authority. Restatement (Third of Foreign Relations Law (. International law is evolving and somewhat unsettled regarding the effect on official immunity of a jus cogens violation prosecuted in a forum other than the official s domestic courts. For example, compare Ferrini v Federal Republic of Germany (0 Motion to Dismiss Plaintiffs First Amended Complaint

27 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 here, because plaintiffs sue to vindicate the rights of a foreign national against U.S. officials in U.S. courts. International law has special solicitude for a non-citizen who comes within a nation s authority. A state is responsible under international law for injury to a national of another state caused by an official act or omission that violates (a a human right that, under 0, a state is obligated to respect for all persons subject to its authority. Restatement (Third of Foreign Relations Law (a (. Section 0(b refers to, inter alia, the jus cogens norms identified in Section 0, including the norm against extrajudicial killing (which the Restatement calls murder. Id. 0(c. Being responsible for these violations includes being precluded from interposing a defense of sovereign immunity for claims prosecuted in the nation s own courts: A state is also responsible if it fails to provide to an alien remedies for injury to person or property, whether inflicted by the state or by private persons in circumstances in which a remedy would be provided by the major legal systems of the world. That such remedy might not be available because under domestic law the state or an official is immune from suit does not diminish the state's responsibility under international law. Id., comment e (emphasis added. The principle specifically applies to claims of arbitrary or excessive use of force by state officials. Id., note A (citing Moore, HISTORY AND DIGEST OF INTERNATIONAL ARBITRATIONS (. Cass sez un 0/0 (no sovereign immunity for jus cogens claims against Germany prosecuted in Italian court; and Prefecture of Voiotia v Federal Republic of Germany (Case No /00 (unreported May 00, Hellenic Sup Ct (same regarding claim prosecuted in Greek court, with Jones and Others v. the United Kingdom (application nos. /0 and 0/0 (sovereign immunity still applicable if claim is prosecuted in a foreign court. We show in the text, however, that jus cogens violations unequivocally negate sovereign immunity for claims prosecuted in the sovereign s own courts. All aliens, even those unlawfully in the country, are entitled to the basic civil rights such as the right to life. Id., comment i. Motion to Dismiss Plaintiffs First Amended Complaint

28 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 There is no doubt that the major legal systems of the world preclude sovereign immunity where, as here, a non-citizen brings a jus cogens claim in the sovereign s own courts. For example, signatories to the European Convention on Human Rights expressly provide that [e]veryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. This Article plainly prohibits a sovereign immunity defense. See, e.g., Jurgen Brohmer, STATE IMMUNITY AND THE VIOLATION OF HUMAN RIGHTS, at ( ( judicial proceedings which are subject to the immunity defence cannot be considered effective in the sense of art. ; Dirk Ehlers & Ulrich Becker, EUROPEAN FUNDAMENTAL RIGHTS AND FREEDOMS, at (0 (Article requires a mechanism for establishing any liability of State officials and bodies and financial and non-pecuniary compensation. Similarly, the parties to the American Convention on Human Rights commit to provide effective recourse in domestic courts for protection against acts that violate his fundamental rights recognized by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. Under the Convention, [w]hen a wrongful act occurs that is imputable to a State, the State incurs international responsibility for the violation of international law, with the resulting duty to make reparation, and the duty to put an end to the consequences of the violation. Blake v. Guatemala (Reparations and Costs, IACtHR, January, Ser. C, No., European Convention for the Protection of Human Rights and Fundamental Freedoms, November 0, UNTS, art, Eur TS (entered into force September (emphasis added. American Convention on Human Rights, Pact of San Jose, Costa Rica, November, UNTS, art. ; OASTS ; ILM (entered into force July. Motion to Dismiss Plaintiffs First Amended Complaint

29 Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 para.. See generally Jo M. Pasqualucci, THE PRACTICE AND PROCEDURE OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS, at - (0 (parties to the Convention have undertaken an international obligation to respect and ensure the rights delineated in the treaty and to provide reparations to the injured parties if the State violates those rights. The same is true throughout the developed world, including, for example, in South Africa and New Zealand. Finally, we note that Restatement s applicability here is reinforced by the United States signing the American Convention on Human Rights (discussed above, and ratifying the International Covenant on Civil and Political Rights, United Nations, Treaty Series, vol., p. ( ICCPR. Like the American Convention, the ICCPR prohibits the United States and its officials from committing jus cogens violations, including extrajudicial killings (art. (, and requires the United States to provide an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity (art. (a. Specifically, no official status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility. UN Human Rights Committee, General Comment : The Constitution of the Republic of South Africa ( arts. &. New Zealand Bill of Rights Act 0, Sec.,. Indeed, the state s responsibility to provide an adequate remedy in its own courts for jus cogens violations is now itself an established principle of customary international law. See, e.g., Lopez Mendoza v. Venezuela (Merits, Reparations, and Costs, IACtHR, September, Ser. C, No., para. ( any violation of an international obligation that has caused damage triggers the duty to provide a proper reparation ; Corfu Channel case, Judgment of April th, : I.C.J. Reports, p.; Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports, p. -; Factory at Chorzow (Germany v Poland (, PCIJ (Ser A No at. The Senate ratified the ICCPR with the understanding that its provisions are not selfexecuting. Cong. Rec. S 0, S, WL (April,. The ATS provides for federal courts to execute jus cogen norms. Motion to Dismiss Plaintiffs First Amended Complaint

30 Case :-cv-0-wqh-bgs Document Filed 0// Page 0 of 0 Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C//Rev.l/Add. (0, at para.. V. DEFENDANTS OFFER NO VIABLE ARGUMENT TO JUSTIFY SOVEREIGN IMMUNITY. Defendants do not address any of the relevant authority. They do not discuss the statute s plain language, the Ninth Circuit s trio of cases holding that there is no immunity to jus cogens violations, Sosa s determinative reading of the statute, Congress understanding that there was no immunity for official conduct like that of the New York constable, or the clear international law preventing immunity for jus cogens violations litigated in the sovereign s domestic courts. The two arguments that Defendants offer come nowhere near overcoming this authority. A. Defendants Canon of Construction Is Offset by the Charming Betsy Canon. Defendants rely on the canon of statutory construction that statutes should be presumed not to waive sovereign immunity absent a clear indication of Congressional intent. Def. Br. at. As demonstrated in detail above, the language of the ATS provides exactly that clear indication. Congress gave federal courts jurisdiction to hear tort claims to enforce the law of nations, including jus cogens norms whose defining characteristic is that they bind sovereigns regardless of their consent. The ATS itself provides the clear indication that Defendants demand. Even absent the statute s plain language, the Supreme Court has made clear that the sovereign immunity canon on which Defendants rely is merely a tool for interpreting the law and we have never held that it displaces the other traditional tools of statutory construction. Richlin Sec. Serv. Co. v. Chertoff, U.S., (0; see also F.A.A. v. Cooper, S. Ct., (. When the canon conflicts with other tools of construction, courts will give the statute a neutral, most-reasonable reading. See, e.g., Richard v. United States, F.d, (Fed. Cir. (immunity Motion to Dismiss Plaintiffs First Amended Complaint