Ochoa Lizarbe v. Rivera Rondon , 402 F. App'x 834 ( 2010 )

UNPUBLISHED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Affirmed in part and dismissed in part by unpublished per curiam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
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Unpublished opinions are not binding precedent in this circuit.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 violations committed in the 1980s against
plaintiffs’ family members by Peruvian military forces under
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. The district court also rejected
Rondon’s statute of limitations defense, concluding that the
doctrine of equitable tolling applied to extend the 10-year
limitations period for TVPA and ATS claims such that plaintiffs’
action, filed in 2007, was timely. Finally, the district court
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rejected Rondon’s assertion that plaintiffs failed to exhaust
available remedies in Peru. The court concluded that: (1)
Rondon failed to demonstrate, as required by the TVPA, that
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. 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.” Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (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, 467 n.1 (4th Cir. 2006) (reviewing
interlocutory appeal of denial of immunity under the FSIA).
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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 response, Rondon makes two claims, seizing on the
Supreme Court’s suggestion that individual foreign officials,
though they are unprotected by the FSIA, may still enjoy
immunity under the common law. See Samantar, 130 S. Ct. at
2292-93. First, Rondon contends that, even if statutory
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.
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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 are so
interconnected with immediately appealable issues that they
warrant concurrent review.” Id.; see Swint v. Chambers County
Comm’n, 514 U.S. 35, 51 (1995). Pendent appellate jurisdiction
is available only (1) when an issue is “inextricably
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.” Clem v. Corbeau, 284 F.3d 543, 549 n.2 (4th
Cir. 2002).
We decline to exercise pendent appellate jurisdiction over
the non-FSIA issues raised by Rondon. Because we affirmed the
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denial of FSIA immunity without regard to the statute of
limitations or the exhaustion of remedies 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 immunity dependent in any way upon the non-FSIA
issues. 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; it is “an exception of limited and narrow
application driven by considerations of need, rather than
efficiency.” 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. We dismiss the
appeal as to the remaining issues.
AFFIRMED IN PART AND DISMISSED IN PART
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