Teofila Lizarbe v. Juan Rivera Rondon

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:07-cv-01809-PJM Copies to all parties and the district court/agency. [998430216] [09-1376]

Teofila Lizarbe v. Juan Rivera Rondon

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1376 TEOFILA OCHOA LIZARBE, in her individual capacity, and in her capacity as the foreign personal representative of the estates of Silvestra Lizarbe Solis, Gerardo Ocho Lizarbe, Victor Ochoa Lizarbe, Ernestina Ochoa Lizarbe, Celestino Ochoa Lizarbe and Edwin Ochoa Lizarbe; CIRILA PULIDO BALDEON, in her individual capacity, and in her capacity as the foreign personal representative of the estate of Fortunata Baldeon Gutierrez and Edgar Pulido Baldeon, Plaintiffs - Appellees, v. JUAN MANUEL RIVERA RONDON, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:07-cv-01809-PJM) Submitted: September 2, 2010 Decided: September 22, 2010

Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges. Affirmed in part and dismissed in part by unpublished per curiam opinion. Timothy F. Maloney, Cary J. Hansel, Joseph M. Creed, JOSEPH, GREENWALD & LAAKE, P.A., Greenbelt, Maryland, for Appellant. Natasha Fain, CENTER FOR JUSTICE & ACCOUNTABILITY, San

Dockets.Justia.com

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Francisco, California; Wade B. Wilson, Mark N. Bravin, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for Appellees. Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Plaintiffs Teofila Ochoa Lizarbe and Cirila Pulido Baldeon brought this action under the Torture Victim Protection Act of 1991 ("TVPA"), see Pub. L. 102-256, 106 Stat. 73 (1992), and the Alien Tort Statute ("ATS"), see 28 U.S.C. § 1350, seeking relief from Defendant Juan Manuel Rivera Rondon for alleged war crimes and human rights family violations members by committed Peruvian in the 1980s against under

plaintiffs'

military

forces

Rondon's command.

Rondon moved to dismiss under Rule 12(b)(1)

for lack of subject matter jurisdiction, arguing that he was entitled to immunity under the Foreign Sovereign Immunities Act ("FSIA"), see 28 U.S.C. §§ 1602-1611. Additionally, Rondon

argued that plaintiffs' claims were barred by the statute of limitations and their failure to exhaust remedies available in Peru. Rondon also raised numerous other grounds for dismissal

that are not at issue in this appeal. Relying on our decision in Yousuf v. Samantar, 552 F.3d 371, 381 (4th Cir. 2009), the district court concluded that the FSIA does not apply to individual agents of a foreign government and denied immunity to Rondon. Rondon's doctrine statute of of The district court also rejected defense, to concluding extend the that the

limitations tolling

equitable

applied

10-year

limitations period for TVPA and ATS claims such that plaintiffs' action, filed in 2007, was timely. 3 Finally, the district court

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rejected Rondon's assertion that plaintiffs failed to exhaust available Rondon remedies to in Peru. The as court required concluded by the that: TVPA, (1) that

failed

demonstrate,

there were adequate remedies in Peru available to plaintiffs, see Pub. L. 102-256, 106 Stat. 73, sec. 2(b); and (2) the ATS contains no exhaustion requirement. Rondon filed this interlocutory appeal to challenge the

denial of immunity under the FSIA, arguing that the denial of sovereign immunity is an immediately appealable issue. Rondon

also sought review of the district court's ruling on the statute of limitations and exhaustion of remedies questions, urging us to exercise our discretionary pendent appellate jurisdiction

over these issues. While the instant appeal was pending, the Supreme Court granted certiorari to review this court's opinion that the FSIA does not shield individual foreign government agents from suit. See Samantar v. Yousuf, 130 S. Ct. 49 (2009). Accordingly, we

placed Rondon's appeal in abeyance pending a disposition from the Supreme Court. On June 1, 2010, the Supreme Court issued a decision

affirming this court's holding in Samantar that an individual foreign official sued for conduct undertaken in his official capacity is not a "foreign state" entitled to immunity from suit within the meaning of the FSIA. 4 See Samantar v. Yousuf, 130 S.

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Ct. 2278, 2289 (2010).

We then solicited additional briefing

from the parties addressing the effect, if any, of Samantar on the instant appeal.

II. This court may exercise jurisdiction only over "final

decisions of the district courts," 28 U.S.C. § 1291; see Catlin v. United States, 324 U.S. 229, 233 (1945) (defining a "final decision" as one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment"), and certain interlocutory orders, see 28 U.S.C. § 1292. The

Supreme Court has established a narrow exception to the final judgment rule, permitting appeals from otherwise interlocutory orders that "finally determine claims of right separable from, and collateral to, rights asserted in the action." Beneficial Indus. Loan Corp., 337 U.S. 541, 546 Cohen v. (1949).

Although the denial of a motion to dismiss generally does not qualify as a final order, see, e.g., Dotzel v. Ashbridge, 438 F.3d 320, 323 (3d Cir. 2006), "[o]rders denying sovereign

immunity are immediately appealable collateral orders," Eckert Int'l, Inc. v. Gov't of the Sovereign Democratic Republic of Fiji, 32 F.3d 77, 79 (4th Cir. 1994); see Rux v. Republic of Sudan, 461 F.3d 461, of 467 n.1 (4th of Cir. 2006) under (reviewing the FSIA).

interlocutory

appeal

denial 5

immunity

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Thus, this court has jurisdiction to review the district court's denial of immunity under the FSIA. Plaintiffs contend that Samantar, having expressly

considered and rejected the same arguments advanced in district court by Rondon, forecloses Rondon's appeal of the denial of immunity under the FSIA. We agree that Samantar clearly

forecloses Rondon's argument that he is entitled to immunity under the FSIA. In Supreme though response, Court's they are Rondon makes that by two claims, seizing on the

suggestion

individual the FSIA,

foreign may

officials, enjoy

unprotected

still

immunity under the common law. 2292-93. First, Rondon

See Samantar, 130 S. Ct. at that, even if statutory

contends

immunity is not available to him under the FSIA, he is entitled to common law immunity for any claims based on acts he performed in his official capacity on behalf of the Peruvian government. Second, Rondon asserts that he raised a common law immunity

defense in the district court proceedings and that the question of immunity is therefore properly before the panel. After

carefully reviewing the record of the proceedings, we conclude that Rondon did not raise a common law immunity defense below. We therefore affirm without addressing the question of whether Rondon is actually entitled to assert immunity under the common law as a defense. 6

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III. An order denying a motion to dismiss on statute of

limitations or exhaustion of remedies grounds is not immediately appealable as a final order under 28 U.S.C. § 1291 or as a collateral order under Cohen. Rondon does not suggest to the

contrary, but he asks the panel to exercise pendent appellate jurisdiction to review these issues. Pendent appellate

jurisdiction is "a judicially-created, discretionary exception to the final judgment requirement." Rux, 461 F.3d at 475. This

doctrine allows us to consider issues that would not otherwise be immediately appealable "when such issues issues are that so they

interconnected

with

immediately

appealable

warrant concurrent review."

Id.; see Swint v. Chambers County Pendent appellate jurisdiction an issue is "inextricably

Comm'n, 514 U.S. 35, 51 (1995). is available only (1) when

intertwined" with a question that is the proper subject of an immediate appeal; or (2) when review of a jurisdictionally

insufficient issue is "necessary to ensure meaningful review" of an immediately appealable issue. Swint, 514 U.S. at 51. The

decision to exercise pendent appellate jurisdiction is "purely discretionary." Cir. 2002). We decline to exercise pendent appellate jurisdiction over the non-FSIA issues raised by Rondon. 7 Because we affirmed the Clem v. Corbeau, 284 F.3d 543, 549 n.2 (4th

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denial

of

FSIA or

immunity the

without of

regard remedies

to

the

statute

of

limitations

exhaustion

requirement,

these

issues are not inextricably intertwined with the question of immunity under the FSIA, nor is our review of Rondon's claim to statutory issues. immunity dependent in any way upon the non-FSIA

Finally, to the extent that Rondon urges us to review

the statute of limitations and exhaustion of remedies issues for purposes of judicial economy, his argument is misguided. The

doctrine of pendent appellate jurisdiction is not focused on efficiency; application efficiency." it is "an by exception of of limited need, and rather narrow than

driven

considerations

Rux, 461 F.3d at 475.

IV. For the foregoing reasons, we affirm the district court's denial of immunity to Rondon under the FSIA. appeal as to the remaining issues. We dismiss the

AFFIRMED IN PART AND DISMISSED IN PART

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