UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_ _ _ _ _ _ _ _ _ _ _ _ _ _ x
:
DOLLY M.E. FILARTIGA and :
DR. JOEL FILARTIGA, :
:
:
Plaintiffs, :
:
-against- : 79 Civ.917(EHN)
:
AMERICO NORBERTO PENA-IRALA, :
et al., :
:
Defendants. :
_________________________________X
_______________________________________
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF ORDER TO SHOW CAUSE
FOR STAY OF DEPORTATION AND FOR ORDER
PERMITTING DEPOSITION OF THE PRISONERS
_______________________________________
PETER WEISS
RHONDA COPELON
JOHN W. CORWIN
JOSE ANTONIO LUGO
c/o Center for Constitutional Rights
853 Broadway, Suite 1401
New York, New York 10003
(212) 674-3303
MICHAEL MAGGIO
Goren and Maggio
1801 Columbia Road, N.W.
Suite 100
Washington, D.C.
(202) 483-8055
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_ _ _ _ _ _ _ _ _ _ _ x
DOLLY M.E. FILARTIGA and :
DR. JOEL FILARTIGA, :
:
Plaintiffs, :
:
-against- . : 79 Civ. 917 (EHN)
:
AMERICO NORBERTO PENA-IRALA, :
et al., :
:
Defendants. :
_____________________________X
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF ORDER TO SHOW CAUSE FOR
STAY OF DEPORTATION AND FOR ORDER
PERMITTING DEPOSITION OF THE
PRISONER DEFENDANT.
Preliminary Statement
This civil action for damages for the wrongful torture and death of Joelito Filartiga was commenced by the filing of a complaint on Friday, April 6, 1979, just a few days ago. De fendant Pena-Irala, who is accused of the murder, was ordered deported by the federal defendants on April 5, 1979 by Immigration Judge Anthony M. DeGaeto. So was Juana Villalba, a material witness to the torture-murder. They are presently in the custody of the federal defendants at the Brooklyn Navy Yard. Plaintiffs need to take their depositions and seek a court order to authorize the depositions and to stay their de portations so as to preserve plaintiffs' ability to pursue this lawsuit and the capacity of the Court to adjudicate it.
ARGUMENT
I. PLAINTIFFS SHOULD BE PERMITTED TO TAKE THE DEPOSITION OF DEFENDANT PENA-IRALA AND JUANA VILLALBA, A MATERIAL WITNESS.
Plaintiffs are required to seek this Court's permission to take the deposition of Pena-Irala and Juana Villalba solely because they are in custody. F.R.C.P. 30(a)1/ The need for these depositions is manifest. Pena-Irala is not only a party but is accused of the torture-murder upon which this action is based. He is uniquely in possession of many of the facts which plaintiffs will need to prove their case, facts highly relevant to his liability in this action and to recovery against him. Juana Villalba is a crucial material witness to the alleged tort and crime against human rights as she shares the same house with Pena-Irala, the house where the body of Joelito Filartiga was tortured or brought after his torture-murder. The mere fact of their incarceration presents no basis for denying plaintiffs their opportunity to depose him. Thus, an order permitting, the taking of these depositions should be granted.
II. THIS COURT HAS POWER TO STAY THE DEPORTATIONS PENDING THE TAKING OF THE DEPOSITIONS.
This Court's power to stay the deportations pending depo sitions flows from the inherent power and duty of the federal courts, codified in 28 U.S.C. §1651, to issue all orders "nec essary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."
There is no doubt of the Court's power to order that Pena Irala and Juana Villalba be available to testify in this action. See United States v. Hayman, 342 U.S. 205, 72 S. Ct. 263, 273 (1952). To achieve this, both the Federal Rules of Civil Procedure 30(a) and 28 U.S.C. §1651 give the Court the power to issue the writ of habeas corpus ad testificandum to assure their presence for the deposition already noticed, and for other proceedings as they become necessary. 4A Moore's Federal Practice ¶30.56. This writ is clearly necessary and appropriate in aid of this Court's jurisdiction to entertain plaintiffs' civil action. Price v. Johnston, 334 U.S. 266, 68 S. Ct. 1049, 1057 (1948); United States v. Hayman, supra. Such a writ is also "agreeable to the usages and principles of law" founded as it is on common principles. Price v. Johnnston, supra. Blackstone describes this writ as one "which issue[s] when it is necessary to remove a prisoner, in order to. . .bear testimony in any court " 3 Blackstone's Commentaries, 129-130. United States v. Hayman, supra at 273, n. 35. This writ necessarily takes precedence over any other order of custody.
Here, it is likewise clear that orders to testify in a deposition would be meaningless if Pena-Irala and Juana Villalba were to be deported from the United States immediately or in
the very near future as is intended by the federal defendants. Returning them to Paraguay, where they would be inaccessible to plaintiffs and free to disappear, would frustrate the Court's intention that the depositions be taken and effectively defeat the jurisdiction of this Court to adjudicate plaintiffs' claims. Therefore, the All Writs Act likewise recognizes this Court's inherent power to stay their deportations to permit the depositions and other matters related to the civil action to go forward. In this respect, the stay of deportation is in the nature of the common law writ ne exeat. In re Lipke, 98 F. 970 (S.D.N.Y. 1900); In re Cohen, 136 F. 993 (S.D. Ill. 1905), and is "agreeable to the usages and principles of law" as that phrase is used in 28 U.S.C. §1651. As the Court held in Price v. Johnston, supra, federal courts are not "confined to the precise forms of writ[s] in vogue at the common law." Rather, the concept of "law" and the inherent power to issue writs recognized in §1651 "is a legislatively approved source of procedural instruments designed to achieve 'the rational ends of justice' (cite omitted)." supra at 282,
Indeed, the inherent authority of the federal district courts to stay deportation orders to permit pursuit of pending litigation has been explicitly recognized. In Hong v. Agency for International Development, 470 F. 2d 507 (9th Cir. 1972), the court affirmed the authority of the district court in which an alien's action for breach of contract was pending to stay the alien's deportation pending prosecution of his civil proceeding
The federal courts have also recognized that losing the presence of a deportable alien can raise constitutional problems. In United States v. Takamatsu, 500 F. 2d 420 (9th Cir. 1974) and United States v. Hendez-Rodriguez, 450 F. 2d 1 (9th Cir. 1971), the courts dismissed indictments against aliens who were deprived of their Sixth Amendment right to confrontation by virtue of the deportation of otherwise validly deportable potential witnesses for the defense. In this case, deportation of Pena-Irala and Juana Villalba will deprive plaintiffs of their right under the Fifth Amendment to prosecute this civil action against Pena-Irala. The stay of deportation is here the necessary and, indeed, the only available remedy to ensure plaintiffs this right and to preserve the jurisdiction of this Court.
III. THIS COURT SHOULD EXERCISE ITS POWER TO STAY PENA-IRALA'S DEPORTATION PENDING THE TAKING OF HIS DEPOSITION AND CONSIDERATION OF PLAINTIFFS' MOTION FOR A STAY OF DEPORTATION PENDING THE ADJUDICATION OF THIS LAWSUIT.
The stay of deportation requested herein is temporary to preserve the status quo and thereby permit the taking of the depositions to which plaintiffs are entitled under Rule 30(a). Preserving the status quo is also necessary to permit the Court to consider issuance of a longer-term stay of deportation pending the adjudication of this lawsuit. It is equitable in nature and is authorized by the Federal Rules of Civil Procedure. 65(b).
Here, the temporary stay should be granted because if Pena Irala or Juana Villalba leave the country immediately, plaintiffs will suffer immediate and irreparable injury. In addition, plaintiffs meet the tests which make issuance of a stay in the nature of a preliminary injunction likely -- i.e., the balance of hardships tips in their favor, they have raised serious questions on the merits, and there is a strong public interest in maintaining them here pending resolution of this dispute. Pride v. Community School Board of Brooklyn, New York, 482 F. 2d 257, 264 (2d Cir. 1973).
A. Plaintiffs Will Be Irreparably Harmed If A Stay Is Not Granted.
It is plain that the opportunity of the plaintiffs to ob tain justice through this civil action will be irreparably lost if Pena-Irala and Juana Villalba are allowed to leave this country before their deposition can be taken, and consideration of maintaining them here for further proceedings can be had. There is no assurance whatsoever that plaintiffs will ever have the opportunity to depose them again if they leave.
Although the Federal Rules of Civil Procedure provide a variety of mechanisms for securing testimony of a witness abroad, Rule 28, the efficacy of these methods depends on the recognition thereof and the cooperation of the government of Paraguay, which has acted in every respect to shield Pena-Irala from investigation and blocked efforts to have civil redress against him there.
Reports of international investigating tribunals also affirm that the judiciary is merely an appendage of the executive. (Exhs. 1-3 to D.M.E. Filartiga Affidavit). More importantly, upon return to Paraguay, Pena-Irala could and is likely simply to disappear, with the connivance of the Paraguayan government. This would completely frustrate pursuit of this action against him. Thus, the planned, immediate deportations will spell the effective end of plaintiffs' ability to pursue their claims.
B. Defendants Will Not Be Prejudiced By The Issuance Of A Stay
The federal defendants can point to no interest whatsoever which requires that Pena-Irala or Juana Villalba be deported immediately. Nor can they be in any way harmed by the taking of their deposition by the plaintiffs in this civil action.
Indeed, the public interest and stated commitment of this country to halting gross human rights violations such as those alleged herein warrants that Pena-Irala's deportation be stayed, both to preserve this action and to permit thorough investigation of his activities in Paraguay and here.
Neither defendant Pena-Irala nor Juana Villalba can complain of this effort to take their depositions. Depositions are explicitly authorized under the Federal Rules of Civil Procedure, and are automatically permitted immediately following the filing of a complaint where the witnesses are about to leave the jurisdiction. F.R.Civ. P. 30(a).
C. The Complaint Raises Substantial Questions On The Merits.
For the purpose of issuing the temporary stay sought herein, the Court need not decide whether the complaint states
a valid cause of action. The power to issue a temporary injunction and maintain the status quo may be exercised even to permit the Court to determine whether it has jurisdiction over the action. United States v. United Mine Workers of America, 330 U.S. 258, 293,6 S. Ct. 677, 695 (1947). It needs no argument to sustain the proposition that an action for the wrongful death by torture of their son and brother, as well as the pain and suffering inflicted upon the plaintiffs in connection therewith, constitutes a substantial claim.
However, since the use of 28 U.S.C. §1350 jurisdiction to redress violations of human rights appears to be one of first impression, plaintiffs will briefly outline here their theory of jurisdiction.
This Court has jurisdiction over the subject matter.
Diversity jurisdiction, per se, under 28 U.S.C. §1332, does not apply to a case in which both plaintiff and defendant are aliens. 1 Moore's Federal Practice, ¶0.75 at 709.6-7 (1974). No such prohibition, however exists in a case brought under 28 U.S.C. §1350, which confers jurisdiction over "any civil action by an alien for a tort only committed in violation of the law of nations or a treaty of the United States." III v. Vencap, Ltd. 519 F. 2d 1001,1015 ( 2d Cir. 1975); Dreyfus v. Von_Finck, 534 F. 2d 24 (2d Cir. 197-)
In IIT, the parties were, respectively, a Luxemburg corporation and a Ba~namian corporation. In Dreyfus, they were a citizen of Switzerland and a citizen of West Germany. In the former case, one sounding in fraud and conversion, jurisdiction, although present in principle, was ultimately held to be absent because the court could not "subscribe to plaintiff's view that the Eighth Commandment 'Thou Shalt not steal' is part of the law of nations." 519 F. 2d 1001, 1015. Here, the gravamen of the complaint is death by torture, a violation of the law of nations if ever there was one in this age of human rights. (See Affidavit of Professor Richard Arens, attached to Complaint.)
In Dreyfus, the tort alleged was defendant's purchase from plaintiff of plaintiff's interest in a banking firm, at far less than its real value, under duress caused by the confiscation of plaintiff's assets by the Nazi government. Based on these facts, the court held that "for purposes of this lawsuit, violations of international law do not occur when the aggrieved parties are nationals of the acting state." In support of this highly dubious proposition, the court,at 534 F. 2d 24, 31, cites only a dictum by Mr. Justice White in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 441-442 (1964), and an old opinion by the New York Court of Appeals in Salinoff Co. v. Standard Oil Co., 262 N. y 220, 186 N.E. 679 (1933).
In fact, particularly in the area of human rights, there has in recent years been a marked shift away from the old doctrine of international law as applicable only between states, toward the recognition of individuals as both subjects and objects of international law. According to Louis Henkin, Tlamilton Fish Professor of International Law and Diplomacy at Columbia University and President of the U.S. Institute of Human Rights, "The new law buried the old dogma that the individual is not a 'subject' of international politics and law and that a government's behavior toward its own nationals is a matter of domestic, not international concern. It penetrated national frontiers and the veil of sovereignty." Henkin, The Rights of Man Today, 2/ Westview Press, 1978, p. 94.
Indeed, as early as 1955, Professor Lauterpacht added the following crucial revision to his 8th Edition of Oppenheim, International Law, the leading treatise in the field:
. . .the quality of individuals as subjects of International Law is apparent from the fact that, in various spheres, they are, as such, bound by duties wnich International Law imposes directly upon them. The various developments since the two World Wars no longer countenance the view that, as a matter of positive law, States are tne only subjects of International law. In proportion as t'ne realisation of that fact gains ground, there must be an increasing disposition to treat individuals, within a limited sphere, as subjects of International Law. Quoted at p. 6, Sohn Buergenthal, International Protection of Human Rights, Bobbs-Merrill, 1973.
Furthermore, since no government could lawfully have authorized the monstrous actions of the defendant described in the Complaint, the tort for which redress is sought here was committed by the defendant in his individual capacity, as well as in his capacity as an agent of the government of Paraguay.
In IIT v. Vencap, Ltd., supra, at 1001, Judge Friendly described 28 U.S.C. §1350 as "a kind of legal Lohengrin; although it has been with us since the first judiciary
. . . (1789), no one seems to know whence it came." Although we cannot trace its ancestry with precision, we know from its birthdate that it must have come out o~ a legal-philosophical environment in which the inalienable rights of humankind counted for a great deal more than in the positivist era of the late nineteenth and early twentieth century. Now, after iluremberg, after the U.'N. Charter, after the multitude of treaties, conventions and solemn declarations dealing with all aspects of fundamental human rights, §1350 may be ready, after a 200-year wait, to come into its own. This case may be the vehicle for its rebirth.
For all these reasons, plaintiffs' motion for a temporary restraining order to stay the deportations of Pena-Irala and Juana Villalba and to permit the taking of their depositions while in the custody of the Immigration and Naturalization Service should be granted.
* * * endnotes * * *
1. The Court's permission is not sought or required on the basis that plaintiffs seek to take the depositions prior to the expiration of 30 days from the filing of the complaint, since defendant Pena-lrala is about to go out of the United States. F.R.C.P. 30(b)(a)(A); Affidavit of Dolly M.E. Filartiga,
2. For a number of views generally supportive of this thesis, see International Human Rights Law and Practice, a Professional Education Publication prepared in cooperation with the Section of International Law, American Bar Association, 1978. Thus, Prof Virginia Leary, at p. 21:"In summary, it appears clear that gross violations of human rights can no longer be considered a matter essentially within the domestic jurisdiction of the offending state under the U.N. Charter."