Argued: September 16, 2015.
Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. (1:05-cv-00701-LMB-JFA). Leonie M. Brinkema, District Judge.
ARGUED: Joseph Peter Drennan, Alexandria, Virginia, for Appellant/Cross-Appellee.
Tara Melissa Lee, DLA PIPER LLP (U.S.), Reston, Virginia, for Appellee/Cross-Appellant.
ON BRIEF: Joseph C. Davis, Reston, Virginia, Paul D. Schmitt, Mason Hubbard, DLA PIPER LLP (U.S.), Washington, D.C.; Laura Kathleen Roberts, Nushin Sarkarati, Scott A. Gilmore, CENTER FOR JUSTICE & ACCOUNTABILITY, San Francisco, California, for Appellee/Cross-Appellant.
Before GREGORY, AGEE, and DIAZ, Circuit Judges. GREGORY, Circuit Judge, concurring in part and dissenting in part.
AGEE, Circuit Judge.
Farhan Warfaa alleges that in 1987, a group of soldiers kidnapped him from his home in northern Somalia. Over the next several months, Warfaa claims he was beaten, tortured, shot, and ultimately left for dead at the direction of Yusuf Ali, a colonel in the Somali National Army at the time. Warfaa later sued Ali under the Alien Tort Statute (" ATS" ), 28 U.S.C. § 1350, and the Torture Victim Protection Act of 1991 (" TVPA" ), Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note), alleging several violations of international law.
After lifting a multi-year stay, the district court dismissed Warfaa's ATS claims, finding they did not sufficiently " touch and concern" the United States so as to establish jurisdiction in United States courts under Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1669, 185 L.Ed.2d 671 (2013). The district court allowed Warfaa's TVPA claims to proceed after holding that Ali was not entitled to immunity as a foreign official. Both Warfaa and Ali appeal. For the reasons set forth below, we affirm the judgment of the district court.
Throughout the 1980s, Somalia experienced a period of political upheaval. A military dictatorship led by Siad Barre controlled the country's government, and Barre's dictatorship employed violence and intimidation to maintain control and stay in power. Among other things, the Somali
government targeted members of certain opposition " clans" through killings, torture, and property destruction. Warfaa's clan, the Isaaq, was targeted.
Ali supported the Barre regime and commanded the Fifth Battalion of the Somali National Army stationed in Gebiley, the area where Warfaa lived. Early one morning in December 1987, two armed soldiers from the Fifth Battalion appeared at Warfaa's hut, rousted him from his sleep, and forced him to a nearby collection point. There, Warfaa and several other local farmers learned that they were accused of supporting an opposition organization, the Somali National Movement (" SNM" ). Soldiers then forced the men to march to another village where an army truck drove them to Fifth Battalion headquarters. Some of the other farmers were freed, but Warfaa, as a member of the Isaaq clan, was detained and placed in a small, windowless cell with ten other prisoners.
Warfaa alleges he was subjected to many acts of violence during his detention at the direction of Ali. For instance, Warfaa claims that soldiers hit him with the butt of a gun, tied him in a painful position, kicked him, and stripped him naked. He was taken to Ali's office, where Ali personally questioned him about his supposed support of SNM and his rumored involvement in the theft of a water truck. Later, soldiers again stripped Warfaa naked, beat him to unconsciousness, woke him with cold water, and then beat him again. Once more, Ali interrogated Warfaa after this torture, this time with Warfaa's hands and feet chained. During the early months of 1988, Ali and his soldiers committed similar acts of torture against Warfaa at least nine times.
In March 1988, SNM fighters attacked Fifth Battalion headquarters while Ali was interrogating Warfaa. After ordering his soldiers to defend the base, Ali shot Warfaa in the wrist and leg, causing him to fall unconscious. Ali thought he had killed Warfaa and ordered his guards to bury the body. When Warfaa regained consciousness, however, he convinced the guards to accept a bribe, and they released him. Warfaa still resides in Somalia today.
The Barre regime collapsed in 1991, but Ali had departed the country in advance of the fall and immigrated to Canada in December 1990. Canada deported Ali two years later for serious human rights abuses, and he then came to the United States. The United States began deportation proceedings soon thereafter, but Ali voluntarily left the country in 1994. For reasons not explained in the record, Ali returned to the United States in December 1996 and now resides in Alexandria, Virginia.
Warfaa, identified only as a John Doe, and a Jane Doe originally filed suit against Ali in the United States District Court for the Eastern District of Virginia in 2004. Plaintiffs voluntarily dismissed the complaint and refiled it in June 2005.
For most of its duration, this case has been stayed. In August 2005, the district court stayed the case until a party could provide a declaration from the United States Department of State indicating that the action would not interfere with U.S. foreign policy. In April 2012, after the case briefly resumed, the district court
granted a consent motion to further stay the case pending the Supreme Court's decision in Kiobel. After the Supreme Court issued its Kiobel decision in April 2013, the district court again extended the stay and invited the State Department to express its view as to whether the issues before the court would affect United States foreign policy. The State Department " decline[d] to express views on the subject" and, upon further request, explained that it was " not in a position to present views to the Court concerning this matter at this time."  J.A. 17, 22.
On April 25, 2014, the district court lifted the stay and ordered Warfaa to file an amended complaint. Warfaa's amended complaint contains six counts: (1) attempted extrajudicial killing; (2) torture; (3) cruel, inhuman, or degrading treatment or punishment; (4) arbitrary detention; (5) crimes against humanity; and (6) war crimes. All six counts allege torts purportedly committed in violation of international law, with jurisdiction arising under the ATS. In addition, the first two counts -- attempted extrajudicial killing and torture -- are alleged to violate the TVPA, which provides a jurisdictional basis separate from the ATS. ...