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Eleventh Circuit reverses dismissal for lack of standing to sue under Torture Victim Protection Act of 1991 where plaintiff children of murdered union leaders qualified as wrongful death claimants under Colombian law.

Against the backdrop of a long history of trade union violence in Colombia, employees of the Colombian company Drummond organized a trade union. Shortly after, Drummond company entities and employees ("Drummond") hired and paid paramilitaries from the United Self-Defense Forces of Colombia (a.k.a. AUC) to destroy the union and, in 2001, murder union leaders Valmore Locarno Rodriguez, Victor Hugo Orcasita Amaya, and Gustavo Soler Mora.

The children of Locarno, Orcasita, and Soler (the Children) brought suit in district court, alleging Drummond hired the AUC to assassinate their fathers in violation of the Alien Tort Statute (ATS), 28 U.S.C. [section] 1350, the Torture Victim Protection Act of 1991 (TVPA), 28 U.S.C. [section] 1350, and the wrongful death laws of Colombia, and that the murders caused the Children damages including emotional harm, loss of companionship, and financial support. The district court dismissed the complaint on res judicata and preclusion grounds and alternatively for lack of standing to sue under both the ATS and the TVPA.

The U.S. Court of Appeals for the Eleventh Circuit reverses and remands on the res judicata issue and reverses on the issue of standing.

The key issue on appeal is the Children's standing to sue under the TVPA. After affirmatively answering the threshold question whether the Children satisfied the Constitutional requirement of "Case or Controversy" for standing, the Appeals Court addresses whether the TVPA provides a cause of action in this case. The Court lays out all the requirements for obtaining relief pursuant to the TVPA: i.e., the plaintiff must be "(1) a legal representative or any person who may be a claimant in an action for wrongful death; (2) of a victim of an extrajudicial killing; (3) committed by an individual acting 'under actual or apparent authority, or color of law, of any foreign nation.'" [1346] After holding that plaintiffs satisfied the second and third prongs, the Court focuses on the first, stating: "The Parties' dispute centers upon whether the Children are proper 'claimant[s] in an action for wrongful death' as that phrase is used in the TVPA." [1347] The Court notes that

"Congress did not explicitly define, nor is it apparent from the face of the TVPA, how a court should properly ascertain who is a 'claimant in an action for wrongful death.' Neither can we discern from the statute itself whether Congress intended state law or federal law to supply the meaning of 'claimant in an action for wrongful death.' See De Sylva v. Ballentine,351 U.S. 570, 76 S.Ct. 974, 980, 100 L.Ed. 1415 (1956) ('The scope of a federal right is, of course, a federal question, but that does not mean that its content is not to be determined by state, rather than federal law.')." [1348] The Court then turns to the TVPA's legislative history for illumination:

"[T]he report issued by the House of Representatives Committee on the Judiciary states that '[c]ourts may look to state law for guidance as to which parties would be proper wrongful death claimants.' H.R.Rep. No. 102-367(I), at 4, 1992 U.S.C.C.A.N. at 87 (1991). The Senate Committee Report similarly explained '[t]he term 'beneficiary in a wrongful death action' is generally intended to be limited to those persons recognized as legal claimants in a wrongful death action under Anglo-American law.' S.Rep. No. 102-249, at 7 (1991). In addition, the Senate Report also elaborated that:

Where application of Anglo-American law would result in no remedy whatsoever for an extrajudicial killing, however, application of foreign law recognizing a claim by a more distant relation in a wrongful death action is appropriate. In re Air Crash Disaster Near New Orleans, Louisiana, on July 9, 1982, 789 F.2d 1092, 1097-98 (5th Cir.1986) (recognizing claim of nephew for wrongful death of aunt where Louisiana law on wrongful death action would have afforded no remedy). Id. at n. 10. Thus, Congress's intent, as evinced in the House and Senate reports, is that state law should govern the determination of whether a plaintiff is a claimant in an action for wrongful death and, where state law would provide no remedy, a court may apply the foreign law that would recognize the plaintiff's claim.

We must therefore first determine whether the plaintiffs are wrongful death claimants under Alabama law. Although the TVPA instructs courts to look to 'state law' to determine the parties' status as wrongful death claimants, it does not specify whether a court should apply the state's 'whole law, including its choice-of-law provisions, or only its substantive "internal law." We need not resolve which approach to apply in this case, because ultimately under either framework Colombian law applies.

The Children alleged in their complaint that they are 'legal beneficiaries' under Colombian law, with standing to sue for their personal damages. In further support of this proposition, they attached to their pleadings filed in response to the Motion to Dismiss, an affidavit containing the 'legal opinion of Pedro R. LaFont Pianetta, a former Justice on the Supreme Court of Colombia. The record does not reflect that the appellees have disputed the Children's assertion that they are proper wrongful death claimants under Colombian law; Mr. Pianetta's conclusions to that effect; or Mr. Pianetta's qualifications to render this opinion." [1348-1350]

The Court thus concludes the Children properly alleged their entitlement to proceed as wrongful death claimants under Colombian law and that therefore they adequately pled a TVPA violation.

CITATION: Baloco v. Drummond Co., Inc., 640 F.3d 1338 ([11th Cir. 2011).
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Publication:International Law Update
Geographic Code:3COLO
Date:Apr 1, 2011
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