Linder v. Calero Portocarrero

After Filartiga v Pena-Irala was heard in the federal district court of New York a number of other cases cropped up in Federal Courts claiming the ATS as a means of getting jurisdiction over the defendant.

In Linder v. Calero Portocarrero 747 F.Supp.1452 (1990) the plaintiffs sued on behalf of the deceased, Benjamin Linder. Mr. Linder was killed by Contra rebels in Nicaragua in April of 1987. He was wounded by gun fire while at an unfinished Hydroelectric dam. He was taken and then tortured by the rebels and have between 30 to 40 wounds on his face with a sharp pointed object.

In the original complaint there were a number of defendants, including Nicaraguan Democratic Force, the United Nicaraguan Opposition, the Nicaraguan Resistance, and four individuals, Adolfo Calero Portocarrero, Enrique Bermudez Varela, Aristides Sanchez Herdocia, and Indaleco Rodriguez Alaniz. The named individuals were sued in their individual capacity for actions that took place in Florida. The organizations were largely organized and operated in Nicaragua.

The Defendants raised several arguments: 1) Court lacks subject matter jurisdiction over the action because the claims represent non-justiciable political questions, 2) dismissed under the State Doctrine, and 3) plaintiffs have failed to state a claim under customary international law and 4) the Geneva Conventions do not provide a private right of action for the defendants.

The Court held held that the political question doctrine prevented the court from hearing the case. (Id at1457) The court further held that there were no judicially discoverable critieria to resolve the serious issues raised by the claim. (Id at 1459) The court was unwilling to determine if the actors were state actors and protected by the State Action doctrine (Id. at 1457-1458.)

Linder v. Calero then goes on to distinguish the facts of this case from Filartiga v. Pena-Irala which was cited by the Plaintiff. The Court held that Linder involved a U.S. citizen and that the ATS allowed for aliens to bring an action, not U.S. Citizens. The court stated that the plaintiff must show that international law unambiguously provides a cause of action for their claim. The court noted that in Filartiga the Court found official torture to be a clear and unambiguous violation of the law of nations...however, the case at bar differs from Filartiga in respect to the status of the parties allegedly inflicting torture. The contras are private individuals whose actions simply do not represent state action. (Id at 1462) The court further held that domestic tort actions are not appropriate remedies for injuries occurring outside the United States during conflicts between belligerents. (Id at 1463)

The plaintiffs appealed the decision of the court and was heard by the United States Court of Appeals and can be found at 963 F.2d 332. The Court of Appeals held in part the defendants motion to dismiss and remanded in part. The court held that there is no foreign civil war exception to the right to sue for tortious conduct that violates the fundamental norms of the customary laws of war (Id at 336). Regarding the political question doctrine the court stated, " In our view, this presents no difficulty in going forward with the case. Under the allegations of tort liability that we have explicated, the complaint challenges neither the legitimacy of the United States foreign policy toward the contras, nor does it require the court to pronounce who was right and who was wrong in the Nicaraguan civil war. On the contrary, the complaint is narrowly focused on the lawfulness of the defendants' conduct in a single incident." (Id at 337)