09 Aug Jury Trials and Choice of Law in ATS Cases
A federal district court has rendered an interesting memorandum opinion on whether plaintiffs in the Kenyan embassy bombing case are entitled to a jury in the determination of damages. The case also raises important questions on the applicable law in the calculation of ATS damages. Here is an excerpt from Mwani v. Bin Laden:
The 523 Plaintiffs include Kenyan citizens who are the victims, survivors, relatives, and businesses who have suffered harm as a result of a truck-bomb exploding outside the United States Embassy in Nairobi, Kenya during August of 1998. Plaintiffs allege that Defendant Osama bin Laden orchestrated this bombing through the al Qaeda terrorist network. Furthermore, Plaintiffs allege that Defendants did “ willfully, maliciously and with a depraved indifference to life … cause the loss, injury and damage set forth in this Complaint.” …
On September 28, 2006, this Court issued an Order and accompanying Memorandum Opinion, holding that the Court has subject matter jurisdiction over Plaintiffs’ claims pursuant to the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350, and granting Defendants’ Renewed Motion for Entry of Default: “ Thus, the attack on the United States Embassy in Nairobi, Kenya alleged in Plaintiffs’ Complaint impinged the diplomatic mission of the United States and directly infringed on the rights of ambassadors, which was and has been a clear violation of the law of nations since the inception of the ATCA….
Plaintiffs filed the instant motion on January 31, 2007, seeking an ex parte proof hearing and entry of default judgment against Defendants pursuant to Federal Rule of Civil Procedure 55(b) of the Federal Rules of Civil Procedure. In Plaintiffs’ Motion, Plaintiffs argue for a jury determination of damages and set forth their intent to seek compensatory and punitive damages….
While no precedent from this circuit exists on this issue, several other circuits (and district court opinions from this and other circuits) have explicitly rejected Plaintiffs’ claim that the Federal Rules of Civil Procedure and the Seventh Amendment trigger a right to a jury determination of damages with respect to a Rule 55(b) evidentiary motion. [I]n a default case neither the plaintiff nor the defendant has a constitutional right to a jury trial on the issue of damages.” However, the ATCA is a jurisdictional statute and does not create an independent cause of action, nor does it afford any procedural guidance as to the manner in which damages should be calculated.
In addition, the Court notes that an exhaustive survey of federal cases reveals that a bench (rather than a jury) determination of damages is the norm in cases brought pursuant to the ATCA where default has been entered. This is the case even where the amount of damages is uncertain, where punitive damages are sought, and where the determination of damages is necessarily complicated by choice of law questions. In fact, the complicated choice of law questions accompanying the determination of an appropriate legal basis for a remedy crafted in an ATCA case necessitates court involvement in the determination of damages, at least with respect to any open legal questions…
The Court agrees that an evidentiary hearing shall be held on the issue of damages. However, as Plaintiffs are not statutorily entitled to a jury trial and as the Court would need more information than that presently before it as to why a jury determination of damages would be appropriate and how it would be practicable considering the number of Plaintiffs in this case and the choice of law questions at issue, the Court shall deny without prejudice Plaintiffs’ request for a jury trial rather than a bench trial on the issue of damages.
The issue of the applicable law in assessing damages in the ATS context is yet another area of human rights litigation that I think deserves greater attention. For the victims of the Kenyan embassy bombing, the measure of damages could be dramatically different if one law applies rather than another. Does anyone have thoughts on which law should apply to the determination of damages in this case? Kenyan law? International law? U.S. law? Most of the terrorism cases that I am aware of have been against governments and the award of damages did not appear to focus on choice of law in assessing damages.
As for a jury trial, I am not aware of a single ATS case involving a jury trial at any stage in the proceeding. Is anyone aware of one?
Roger–
The Drummond Mining case in Alabama, which I blogged about in early July and which involved charges of corporate complicity in war crimes committed in Colombia, went to trial and resulted in a jury verdict for the defendants. Here is a link to the press coverage from July 27. (I missed it as I was out of the country). As far as I know, this is the only ATS case to go to a jury.
Peggy
Dinah Shelton’s Remedies in International Human Rights Law 85 (Oxford 1999) suggests that international law would govern the calculation of damages in ATS cases. A court can only use national law if does not inhibit the enforcement of applicable international law. So, for example, the voluntary law of nations principle of restitutio in integrum would ensure that punitive damages are awarded.
Francisco Forrest Martin
Cabello v. Fernández-Larios. The Eleventh Circuit upheld a Florida jury’s award of $3 million in compensatory and $1 million punitive. 402 F.3d 1148. There are some other cases too…
Several other ATS/TVPA cases have been tried by a jury, and in an additional pair of cases involving default judgments, a jury determined the damages. 1. The first ATS case to go to a jury was In re Estate of Marcos, Human Rights Litigation, 910 F.Supp. 1460 (D.Haw. 1995). Paul Hoffman has spoken of the progression of understanding by the jurors about what took place under Marcos, as witness after witness after witness took the stand. The jury determined both liability and damages. 2. Romagoza v. Garcia and Vides Casanova, 400 F.3d 1340 (11th Cir. 2005). In an earlier case against Generals Garcia and Vides Casanova, brought by family members of the four American churchwomen murdered in El Salvador, the jury returned a verdict of not guilty due to a very limiting jury instruction on command responsibility (Ford v. Garcia). Afterward several jurors stated that they did believe the defendants were responsible for the churchwomen’s deaths but that as jurors their hands were tied by the jury instruction. Shortly thereafter, when Juan Romagoza and his co-plaintiffs brought their suit, plaintiffs’ attorneys were prepared with jury instructions on command responsibility and with expert witnesses such as Maggi Popkin, who provided a… Read more »
Francisco I think you are right to point to Dinah’s book. It makes logical sense that an international law violation would be subject to damage calculations based on international law. But that may mean that damages may be less than what U.S. tort would allow. Some of these cases terrorism cases have been brought under domestic U.S. wrongful death statutes applied extraterritoriality, which likely would afford greater damages than a calculation based purely on international law. For example, I seriously doubt international law would support a claim for punitive damages, which are not uncommon in the terrorism cases.
As for ATS cases using jury trials, that’s very helpful Aaron and Stephanie. I appreciate the cites identifying the involvement of juries in past cases.
Roger Alford