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STAN J.

CATERBONE PRO SE - A LANDMARK HUMAN RIGHTS AND ANTI-TRUST CASE

It's Time the U.S. Paid Reparations to the Prisoners It


Tortured

By Jessica Schulberg

December 4, 2014
The past month has been a relatively good one for the U.S. policy on torture. The military
transferred seven detainees out of Guantnamo Bay and the White House forced out the
defense secretary who admitted reluctance in approving detainee releases in the past.
Meanwhile, Senator Dianne Feinstein is assuring reporters that the release of the Senate
intelligence committees report on the CIA torture program is only days away. And
appearing before the U.N. Committee Against Torture, the U.S. delegation unequivocally
affirmed, torture and cruel inhuman and degrading treatment are prohibited at all times
and in all places, including places outside of U.S. borders, like Guantnamo Bay.

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The statement to the U.N. was celebrated as a positive shift away from Bush-
administration policy, but it only addresses part of the U.S.s history of failure to adhere
to the U.N. Convention Against Torture. Article 14 of the treaty requires signatory states
to ensure that victims of torture have access to redress and compensation. In November,
the U.N. Committee Against Torture reviewed U.S. compliance with the treaty and asked
the American delegation how many victims of torture had successfully obtained effective
remedy for their treatment.
State Department Legal Adviser Mary McLeod effectively dodged the question. In lieu of
providing actual numbers (there is no known case in which a torture victim has been
financially compensated by the U.S.), she explained, Although Article 14 of the
Convention contemplates an enforceable right to fair and adequate compensation for
victims of torture, it would be anomalous under the law of war to provide individuals
detained as enemy belligerents with a judicially enforceable individual right to a claim for
monetary compensation against the detaining power for alleged unlawful conduct.
Essentially, because the U.S. picked people up for fighting with or alongside the Taliban,
Al Qaeda, or its associated forces, law of war says they arent eligible for compensation.
There are a few problems with her analysis. Being an enemy of the U.S. does not
preclude an individual from being a victim of torture. It is illegal to torture anyoneanti-
American terrorists included. If you admit you committed a violation of fundamental
norm, a treaty breach, obligation says you have to remedy it, said Fionnuala N Aolin,
the executive editor of Just Security. Thats the heart of the contract, the heart of the
Convention Against Torture.

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Not only is it illegal to torture enemy fighters, but many of the U.S. victims of torture
were not actually part of the Taliban, Al Qaeda, or any mutation of either groupthey
were simply in the wrong place at the wrong time.
In 2010, Lawrence Wilkerson, the former chief of staff to Secretary of State Colin Powell,
testified in federal court about the known innocence of several Guantnamo prisoners. It
became apparent to me as early as August 2002, and probably earlier to other State
Department personnel who were focused on these issues, that many of the prisoners
detained at Guantanamo had been taken into custody without regard to whether they
were truly enemy combatants, or in fact whether many of them were enemies at all, he
said.
He continued, We relied upon Afghans...and upon Pakistanis, to hand over prisoners
whom they had apprehended or who had been turned over to them for bounties,
sometimes as much as $5,000 per head. Such practices meant that the likelihood was
high that some of the Guantnamo detainees had been turned in to U.S. forces to settle
local scores, for tribal reasons, or just as a method of making money.
Murat Kurnaz was one of these detainees. Pakistani police picked him up shortly after
September 11, 2001 and sold him to U.S. intelligence agents for $3,000. Kurnaz spent
two months in U.S. custody in Kandahar, where interrogators beat him, forced his head
under water, and electrocuted him, before flying him to Guantanamo. There was no
evidence of the 19-year-old German citizens guilt, and by 2002, American and German
intelligence officials agreed that Kurnaz was innocent and should be released. But he
remained in Guantanamo until August of 2006.
He has received no compensation from the U.S. government. Financially things have not
been easy. He was in Guantnamo, instead of trade school, so its been hard for him to
find sustainable work, said his lawyer, Baher Azmy. He is doing better now that he was
before, but I actually think he is uniquely strong among released detaineesmany of
them are shattered.
When Kurnaz appeared before the UN Committee Against Torture in November, he did
not seek reparationshe simply asked that those who tortured him be punished for their
actions.
What this means, says N Aolin about the U.S.s failure to compensate torture victims,
is that the cost of owing up to the fact that We tortured some folks becomes zero. She
added, This not only risks making a mockery of the torture treaty, but also sets a
precedent for other states. You have a pathway for other states to say, We violated the
torture treaty, but we dont have to compensate the victims because they fall into a
category of undesirable or enemy combatant.
Associate Deputy Attorney General Robin Jacobinson assured the U.N. panel that U.S.
domestic law provides a range of options for torture victims seeking redress. These
include injunctions, compensatory damages, punitive damages, and declaratory relief. In
addition, the U.S. Congress has authorized the federal government to bring civil actions
to enjoin acts or patterns of conduct that violate constitutional rights, including those
that would amount to torture. At the federal level, the principal avenues of individual
redress are administrative tort claims and civil litigation, she said.
This roughly translates to: The court can order that acts that amount to torture be
stopped. They can award money to victims of torture. They can levy fines against those
who committed the torture. In addition, the Justice Department can file a lawsuit against
those who committed torture and victims of torture can file their own lawsuits.

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While these rights may exist on paper, the U.S. delegation failed to give a single example
of this happening in practice. Neither the architects of the torture program nor the
practitioners have been charged with any wrongdoing. The Justice Department is highly
unlikely to sue the CIA for committing acts of torture. As for victims of torture filing their
own lawsuits? Past precedent doesnt inspire much hope.
Khaled Al-Masri was picked up in Macedonia in 2003 by CIA agents who mistook him for
an Al Qaeda suspect with a similar name. He was stripped, beaten, and drugged in a
secret prison before the CIA realized they had the wrong guy and dumped him on the
side of the road in Albania. When he tried to sue the CIA in federal court in 2006, U.S.
District Judge T.S. Ellis III admitted that he deserved remedy for his injuries, but
ultimately threw out the case. Private interests must give way to the national interest in
preserving state secrets, he wrote when he dismissed the lawsuit.
Theres a gap between rhetoric and reality, said N Aolin. These kinds of technical
gymnastics actual serve to undermine legitimacy and integrity of U.S.s acknowledgement
on torture.

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NEXT CASE LAW

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A. Federal Common Law TORTURE AND DAMAGES


1. Federal Choice of Law Analysis
Federal courts have yet to articulate a consistent choice-of-law analysis for the
determination of damages in ATS and TVPA cases. Few courts have explicitly addressed
the question of what law applies to damages under the ATS or the TVPA. A review of the
decisions addressing the choice of law applicable to damages under the ATS or the TVPA,
however, demonstrates that federal common law is the appropriate choice.

1The first court to conduct a detailed choice-of-law analysis for damages under the ATS
was Filartiga v. Pea-Irala (Filartiga II), 577 F. Supp. 860 (E.D.N.Y. 1984). The Filartiga
II court found that almost all the contacts relevant to the choice of law analysis took
place in Paraguay, and so Paraguayan law applied to the award of compensatory
damages. But because Paraguay did not recognize punitive damages, the Filartiga II
court held that federal common law, which included principles of international law,
applied to its award of punitive damages. Id. at 865. The court held that this was
warranted in order to give effect to the 1 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)
is the only Supreme Court case to address the ATS. Sosa held that the ATS is only a
jurisdictional grant but it does not address the applicable law for damages under the ATS.
Id. 713. There are, however, several findings in the opinion that impliedly support the
applicability of federal law to ATS and TVPA claims.

First, the Court held that the jurisdictional grant (in the ATS) is best read as having been
enacted on the understanding that the common law would provide a cause of action for
the modest number of international law violations with a potential for personal liability at
the time. Id. at 724. This implies that international law is a part of the common law.

Second, the Court states that in most cases where a court is asked to state or formulate
a common law principle in a new context, there is a general understanding that the law is
not so much found or discovered as it is either made or created. This acknowledges that
federal courts may play an active role in fashioning the common law in areas under the
oversight of federal courts such as claims brought under the ATS.

Third, the Court found that a clear mandate appears in the Torture Victim Prevention Act
of 1991, 106 Stat 73, providing authority that establish[es] an unambiguous and
modern basis for federal claims of torture and extrajudicial killing, H.R. Rep. No. 102-
367, pt. 1, p3 (1991). This plainly states that claims arising under the TVPA arise under
federal law, and implies that federal common law could apply to TVPA claims.

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6manifest objectives of the international prohibition against torture. Id. The Filartiga II
court applied Paraguayan law to the determination of damages, insofar as it did not
conflict with federal common law. For practical purposes, this amounts to an application
of federal common law.2

In Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996), the Eleventh Circuit held
that federal common law applied to the question of remedies under the ATS. Id. at 848.
([W]e conclude that the Alien Tort Claims Act establishes a federal forum where courts
may fashion domestic common law remedies to give effect to violations of customary
international law.).

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See also Paul v. Avril, 901 F.Supp. 330, 335 (S.D. Fla. 1994) (citing Filartiga II).

In Tachiona v. Mugabe, 234 F. Supp. 2d 401 (S.D.N.Y. 2002) the court conducted an in-
depth choice of law analysis for damages under the ATS. Id. at 406-418. After reviewing
the entire body of case law regarding the applicable damages, the court found that
traditional choice of law analyses do not apply in ATS and TVPA cases, because the
evolution of international human rights law in the light of contemporary realities points
to the necessity of staking out a more flexible course in the determination of the
substantive law to be applied in adjudicating ATCA cases. Id. at 420. With specific
reference to claims for torture and extrajudicial killing, the court found that the
Congressional intent was to favor[] the adjudication of TVPA claims in federal courts as
a matter of United States policy and also to recognize that in considering the
substantive law governing a cause of action invoking the TVPA the courts may apply
federal law rights embodied in the TVPAs definitions of torture and extrajudicial killing to
adjudicate the dispute. Id. at 422. The court, further, found that for claims of torture
and extrajudicial killing asserted under the TVPA and the ATS there was no 2 The TVPA
was enacted by Congress later, in 1991.

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7
need to conduct and adhere to a strict choice of law analysis. Id. at 422-23. In sum,
the
Tachiona court held that both federal law and international law apply to ATS and TVPA
claims.
The Ninth Circuit also conducted an examination of the applicable choice-of-law
for damages in ATS cases, in Alvarez-Machain v. United States 331 F.3d 604, (9th Cir.
2003)
revd on other grounds, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). After finding that
federal common law applies to the choice-of-law determination, the court held that it
should first
look to the Restatement (Second) of Conflict of Laws, which states that choice of law
principles
in tort law are governed by the most significant relationship test. Id. at 633-34. (citing
Section
145 Restatement 6). In order to determine what law has the most significant
relationship to the
tort, the Restatement looks to the following factors:
(a) the place where the injury occurred; (b) the place where the
conduct causing the injury occurred; (c) the domicile, residence,
nationality, place of incorporation and place of business of the
parties; and (d) the place where the relationship, if any, between
the parties is centered. Id. at 634.
The court then articulated competing policy factors that should be considered in
ATS cases. These factors included:
(a) the needs of the interstate and international systems, (b) the
relevant policies of the forum, (c) the relevant policies of other
interested states and the relative interests of those states in the
determination of the particular issue, (d) the protection of justified
expectations, (e) the basic policies underlying the particular field
of law, (f) certainty, predictability and uniformity of result, and (g)

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ease in the determination and application of the law to be applied.


Id. at 634 (citing Section 145 Restatement 6(2)).
The Alvarez-Machain court held that the totality of the factors, including the
policy of the United States, as expressed in the ATCA, to provide a remedy for violations
of the
law of nations, weighed in favor of applying United States law. Id.
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The federal common law analysis articulated in these precedents favors the
underlying federal interest in enforcing the ATS, so that the choice of law analysis is
effectively
trumped by federal law where the applicable law is inconsistent with federal common law.
As a
practical matter, this means that federal courts typically apply federal common law to
damages
under the ATS. Here, under Eleventh Circuit precedent, federal common law would apply
to the
determination of damages under the ATS. Under the analysis articulated by the Tachiona
court,
the law of nations and federal common law would apply to the damages inquiry under
the ATS.
Tachiona at 419-20. Under the Alvarez-Machain standard, the most significant
relationship
test favors the application of Peruvian law, but the relevant policy considerations
articulated in
the decision favor the application of federal common law. The totality of the case law,
thus,
weighs in favor of applying federal common law to the determination of damages under
the
ATS. This Court should award Plaintiffs damages under federal common law for their ATS
and
TVPA claims.
Federal courts also analyze the choice of law applicable to a claim by looking to
the source of the right for the claim. See In re: Air Disaster At Lockerbie, Scotland on
Dec. 21,
1988, 928 F.2d 1267, 1278 (2d Cir. 1991) (citing Van Gemert v. Boeing Co., 553 F.2d
812, 813
(2d Cir. 1977). In analyzing cases under the Warsaw Convention, federal courts have
held that
because the source of the right to sue is the Convention itself, and only the federal
government
has the power to make a treaty, federal common law applies to claims under the
Convention
itself. Id. at 1278. See also Clearfield Trust Co. v. United States, 318 U.S. 363, 366-67
(1943);
Corporacion Venezolana de Formento v. Vintero Sales Corp., 629 F.2d 728, 795 (2d Cir.
1980);
DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1201 n.12 (3d Cir. 1978). In ATS
and
TVPA cases, the source of the right to sue is the statute itself one that only the federal

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9
government has the power to create.3 By analogy to this line of cases, federal common
law
would also apply to claims under the ATS and the TVPA.4
2. Federal Common Law on Damages
Once it has been determined that federal common law applies to the question of
damages, it becomes necessary to determine how to ascertain what the federal common
law of
damages is, as it relates to damages under the ATS and the TVPA. In order to determine
or to
fashion federal common law remedies, courts may be guided by appropriate statutes
without
adopting any in their entirety. See Park v. Korean Air Lines Co., 1992 U.S. Dist. LEXIS
16841,
20 (S.D.N.Y. 1992) (citing Moragne v. State Marine Lines, Inc., 398 U.S. 375, 406-408
(1970);
3 This is true under both the ATS, which is simply a jurisdictional grant of that enables
plaintiffs to bring
claims for violations of established international law, and under the TVPA, which creates a
specific cause of action
for claims of torture and extrajudicial killing. In each case, absent the federal statute,
plaintiffs would have no
ability to sue in federal court.
4 The application of federal common law to damages under ATS and TVPA cases is also
supported by legal
commentators. International Human Rights Litig. in U.S. Courts states that in ATS
litigation [t]he remedy
however, is a purely domestic tort remedy governed by traditional, well-established
concepts of federal common
law. Beth Stephens, International Human Rights Litigation in U.S. Courts (Brill
Publishers 2008), citing William
R. Casto, The New Federal Common Law of Tort Remedies for Violations of International
Law, 37 Rutgers L.J. 635,
641 (2006). Wright & Miller states that courts should look to a wide variety of sources,
including considerations of
what rule is best designed to implement the underlying federal policy or statute involved
[and] general
considerations of equity jurisprudence. Wright & Miller, Federal Practice & Procedure
4518.
Although some courts conceptualize this broad inquiry as a choice of law analysis, they
only follow choice
of law principles to the extent those principles are consistent with the federal common
law policy objective
enforcing the intent of the ATS. Most federal court decisions that perform any choice of
law analysis do so in the
context of an inquiry over other aspects of ATS law, rather than damages. See e.g. In re
Estate of Ferdinand Marcos
Human Rights Litigation (Hilao v. Marcos) 25 F.3d 1467, 1475 (9th Cir. 1994), cert.
denied 513 U.S. 1126 (1995)

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(abatement); Estate of Cabello v. Fernandez-Larios, 157 F.Supp.2d 1345 (S.D. Fl. 2001
(standing). Many of these
courts, although notably not the Eleventh Circuit, cite to the Restatement 2nd of Conflicts
or refer to more
traditional choice of law principles drawn from United States Supreme Court holdings
such as Lauritzen v. Larsen
345 U.S. 571 (1953). See e.g. Tachiona at 420 (reviewing pre-2002 case law on choice
of law issues). One outlier
court based the choice of law analysis on the law of the U.S. state in which the federal
court sits. Presbyterian
Church of Sudan v. Talisman Energy Inc., 453 F.Supp.2d 633 (S.D.N.Y. 2006) (appeal
pending).
But federal courts have consistently refused to be shackled by any conventional choice of
law principles in
ATS cases and if they conduct a choice of law analysis at all, they do so only within the
larger context of the federal
common law inquiry, which itself allows reference to a broad range of legal principles.
See e.g. Filartiga II. Many
courts simply collapse the choice of law analysis into the federal common law analysis of
the appropriate source of
law, as the District Court did in Filartiga II. Most courts facing the issue in this case
assessment of ATS damages
after a default skip a choice of law analysis altogether and instead rely on previously
decided ATS cases that
awarded compensatory and punitive damages. See e.g. Paul v. Avril, 901 F.Supp. 330
(S.D. Fla. 1994).
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Miles v. Apex Marine Corp., 111 S. Ct. 317, 325-326)). Federal courts have continued to
employ
this flexible analysis in ATS cases. See e.g. Doe v. Rafael Saravia, 348 F. Supp. 2d 1112,
1158
n.4 (E.D. Calif. 2004) (Awarding compensatory and punitive damage awards with
reference to
prior ATS decisions on damages and holding that [i]f a choice of law analysis is
necessary to
determine the applicability of punitive damages, this Court may look to the law of El
Salvador
but only to the extent it does not frustrate the very purpose of the ATCA.).
This same analysis applies to damages under the TVPA. The TVPA was enacted
by Congress in 1991 in order to provide damages to victims of torture and execution. 28
U.S.C.
1350, Provisions 2(a). (Party shall, in a civil action, be liable for damages.) Although
the
TVPA does not specifically define damages, courts have uniformly held that federal
common
law applies and allows for both compensatory and punitive awards: Courts in this and
other
circuits have awarded substantial compensatory and punitive damages to plaintiffs
claiming

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torture and extra-judicial killing under the TVPA See Tachiona v. Mugabe 216 F.2d 262,
267
(S.D.N.Y. 2002). The TVPAs legislative history cites extensively to Filartiga (which
awarded
both compensatory and punitive damages) and states that the purpose of the TVPA is to
enhance the remedy provided by the ATS. H.R. Rep. No. 102-367, at 4 (1991). See
also
Xuncax v. Gramajo, 886 F.Supp. 162, 199 (D. Mass 1995) (in enacting the TVPA,
Congress
contemplated the award of punitive damages thereunder.)
Federal courts have further held that the lack of Congressional instruction
regarding how to determine damages under the TVPA permits federal courts to create
federal
common law in order to achieve justice under the ATS and the TVPA. See Tachiona v.
Mugabe,
216 F.2d 262, 267 (S.D.N.Y. 2002) ([B]ecause Congress in the TVPA offered no
methodology
as to how damages should be determined, federal courts are free to and should create
federal
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common law to provide justice for any injury contemplated by the Alien Tort Statute and
the
TVPA or treaties dealing with the protection of human rights.); In re Estate of Marcos,
910 F.
Supp. 1460, 1469 (D. Haw. 1995) (citing Textile Workers Union of America v. Lincoln
Mills of
Ala., 353 U.S. 448, 457 (1957) (Some [problems] will lack express statutory sanction
but will
be solved by looking at the policy of the legislation and fashioning a remedy that will
effectuate
that policy.).
B. Peruvian Law On Damages Does Not Differ From Federal Common Law
Even if the Court were to decide that Peruvian law on damages applies to these
claims, the result would be the same as that dictated by federal common law. Although
Peruvian
law does not explicitly refer to compensatory and punitive damages by name, the same
concepts
that govern compensatory and punitive damages in United States courts are found in the
Peruvian statutes and legal precedents that govern the award of civil damages in Peru.
The Peruvian Penal Code provides for damages, or civil reparation, both to punish
a criminal defendant and to provide redress to his or her victim. See Declaration of
Peruvian
Attorney Ronald Gamarra (attached here as Exhibit A, Gamarra Decl.), 3.5 The
Peruvian
Civil Code regulates the concept of damages, but judges have wide discretion in
determining the
amount of damages. Id. at 5. The law in Peru differentiates between material damages
and
moral damages. Id. at 5-7. Material damages include non-economic harms such as

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pain and
suffering, as well as economic losses to the victims or their families. Id. at 6. Thus,
material
damages are analogous to the concept of compensatory damages under United States
law. Moral
damages take into account the egregiousness of the crime as well as the deterrence
value in
5 Relevant previsions of Peruvian penal and civil codes, as well as Peruvian
jurisprudence, on the issue of
civil damages are provided in detail in the Gamarra Declaration, that is attached here as
Exhibit A. Mr. Gamarra has
attached to his declaration English translations of the Peruvian statutes to which he cites.
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awarding damages. Id. at 7. Both these factors punishment for outrageous behavior
and
deterrence - are taken into account when determining punitive damages under United
States law.
Smith v. Wade, 461 U.S. 30, 54 (1983). Thus, moral damages in Peru are analogous to
punitive
damages under United States law. Saravia, 348 F.Supp.2d at 1159, n.4 (Salvadoran law
does
support awards of moral damages, which are tantamount to punitive damages under-
U.S.
law.). Additionally, Peru has accepted the jurisdiction of the Inter-American Court of
Human
Rights, which has upheld the right of victims of human rights abuses to collect both
material and
moral damages. Id. at 8.
The law that governs damages in Peru incorporates concepts that overlap with
United States concepts of compensatory and punitive damages. A determination of
damages
based on Peruvian law would include the same factors used to determine damages under
federal
common law developed in the ATS and TVPA case law. Thus, even if this Court decides to
look
to the law of Peru in assessing damages in this case, the evidence, as discussed below,
supports a
substantial award of damages to the Plaintiffs in this case.
C. Florida Law Does Not Apply
While either federal common law or Peruvian law may apply to the instant case,
Florida law does not apply. First, Floridas sole connection to this lawsuit is an arbitrary
one
the Defendant happened to be located here, thus enabling this Court to obtain personal
jurisdiction over him. This is a claim by Peruvian citizens against a Peruvian citizen,
acting
under the color of Peruvian governmental authority, for the violation of an international
law,
created by a United States federal statute. These facts weigh in favor of applying federal
common law, not the law of Florida.

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Second, as discussed, federal precedent applies federal common law, not state
law, to claims under the ATS and the TVPA. The Alvarez-Machain court looked at the
question
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of whether to apply federal or state law to ATS claims and held that because the ATCA
invokes
international law principles of universal concern, it holds a unique place among federal
statutory
tort causes of action, and application of federal common law is therefore appropriate
Alvarez
Machain at 635-36 (citing Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641
(1981) (observing that, in international disputes implicating relations with foreign
nations
our federal system does not permit the controversy to be resolved under state law
because the
international nature of the controversy makes it inappropriate for state law to control);
Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 n. 25 (1964) (noting that the ATCA is
an
example of a statute reflecting a concern for uniformity in this countrys dealings with
foreign
nations.)).
Third, logic compels this result. Congress enacted the ATS and the TVPA to
create a right of redress for violations of international law something that is beyond the
scope
of existing state law and beyond the scope of a States legislative powers. State law does
not
contemplate torts of the type articulated by the ATS and the TVPA. Thus, it would not
make
sense to apply state law to claims under the ATS and the TVPA.
Finally, the application of state law to damages claims under the ATS and the
TVPA would result in the inconsistent application of law to damages awarded under these
statutes. For example, state law varies regarding what damages may be compensated in
tort
actions and the availability of punitive damages for tort claims. Applying state law to
damages
claims under the ATS and the TVPA would create potentially different recoveries for
different
plaintiffs based solely on the state where the defendants happened to be located.
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III. Under the Federal Common Law on Compensatory and Punitive Damages,
ATS
and TVPA Claims Warrant a Substantial Award to the Plaintiffs
The federal common law, which has developed to give effect to the remedial
purpose of the ATS and the TVPA, compels an award of substantial compensatory
damages,
including damages based on non-economic harm such as pain and suffering and
substantial

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punitive damages.
The controlling federal common law of the ATS and the TVPA allows a court to
craft a flexible remedy that includes both compensatory and punitive damages, if a
plaintiff can
demonstrate that (1) he or she has suffered compensable harm, including non-economic
harm
such as pain and suffering, and (2) any given defendants conduct warrants a punitive
award.
Plaintiffs have met their burden and provided overwhelming evidence of compensable
harm
including the acute pain and suffering of the Plaintiffs and their deceased relatives and
similarly overwhelming evidence that Defendant Hurtados conduct is a prototypical
example of
grounds justifying a large punitive damages award.
The fact that Plaintiffs should receive an award, however, does not automatically
suggest what amount is appropriate. This Court is faced with the task of assigning a
quantitative
value to torture and murder on a scale not often seen in a federal district court in the
United
States. The task is not an easy one, but it is a task that is imposed upon this Court by
the ATS
and the TVPA, precisely in order to allow recovery. It should be noted that, although it is
difficult to calculate damages for harms that are so outside the frame of reference for
United
States courts, the difficulty of quantification does not result in no damages being
awarded. Such
a line of reasoning would defeat the purpose of both statutes. Accordingly, Plaintiffs
suggest
two methods that this Court should use to arrive at an appropriate compensatory and
punitive
damage award.
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15
First, the Court should be guided by the decisions of other Federal District Courts
that have granted compensatory and punitive awards for similarly heinous acts. Second,
Plaintiffs suggest that this Court conduct a detailed examination of the evidence
submitted by
Plaintiffs, including the admitted facts of the Complaint, the testimony, and documentary
evidence and assess that evidence according to six factors recently proposed by the
Eastern
District of California for use in this precise situation. The decision in Doe v. Saravia, 348
F.Supp.2d 1112, 1158 (E.D. Calif. 2004) reviewed the existing federal law on damages
and
concluded that courts awarding compensatory and punitive damages under the ATS and
the
TVPA typically look to six factors in shaping the damage award:
i. Brutality of the act;
ii. Egregiousness of defendants conduct;
iii. Unavailability of criminal remedy;
iv. International condemnation of act;

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v. Deterrence of others from committing similar acts;


vi. Provision of redress to plaintiff, country and world.
Doe v. Saravia at 1158.
A. The Federal Common Law of Compensatory Damages in ATS and TVPA
Claims Authorizes a Substantial Award
In this case there are two sets of Plaintiffs: the survivor plaintiffs, Tefila Ochoa
Lizarbe and Cirilia Pulido Balden; and the decedent plaintiffs. Prior to analyzing federal
common law regarding compensatory damages in ATS and TVPA cases, it is important to
note
that different types of harm were suffered by each set of plaintiffs.
The decedent plaintiffs seek compensation for their pain and suffering prior to
their deaths, as well as compensation for the brutal murders that resulted in their
deaths. ATS
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16
and TVPA cases routinely permit compensation for these acts. See e.g. Tachiona at 420-
22.
Additionally, federal common law, as articulated, for example, by maritime law, permits
claims
for decedents pain and suffering prior to their deaths. See Anderson v. Whittaker Corp.,
692 F.
Supp. 764, 773 (W.D. Mich. 1988) affd in part, revd in part, 894 F.2d 804 (6th Cir.
1994)
(citing Azzopardi v. Ocean Drilling & Exploration Co. of Phil., 742 F.2d 890, 893 (5th Cir.
1984)). Compensation for pain and suffering prior to death includes the fright, shock
and terror
felt by decedents who are in apprehension of imminent death, or who are faced with a
situation
involving life-threatening peril. Anderson at 774. (citing Stissi v. Interstate & Ocean
Transport
Co., 590 F. Supp. 1043, 1048-49 (E.D.N.Y. 1984), affd in part, vacated in part on other
grounds, 765 F.2d 370 (2d Cir. 1985).
The survivor plaintiffs seek compensation for their pain and suffering caused by
being placed in fear for their lives during the invasion of their village; witnessing the
massacre of
their relatives and the looting of their village; hiding from soldiers over the next months;
and
escaping reprisals. They also seek compensation for their ongoing pain and suffering
caused by
living through this severe trauma. Finally, they seek compensation for their pain and
suffering
caused by watching their family members tortured and killed. Federal courts adjudicating
ATS
and TVPA claims have consistently upheld the right of surviving victims to be
compensated for
these types of suffering. See Tachiona at 438. See also Jama v. United States INS, 22
F.Supp.
2d 353, 363 (D.N.J. 1998); Mehinovic 198 F.Supp.2d at 1347-48 (citing Abebe-Jira, 72
F.3d at
847; Cabello v. Fernandez-Larios, 157 F.Supp. 2d 1345, 1362 (S.D. Fla. 2001). In

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permitting
recovery for similar claims under the TVPA, the Tachiona court held, the relatives
necessarily
made to bear witness to the torture and degradation of their kin, or the ransacking of
their
common property, are technically not themselves victims of torture. Few would quarrel,
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17
however, that the offenders lawlessness would cause these individuals themselves to
suffer the
severe emotional pain and indignities associated with forms of cruelty and inhuman
treatment.
Tachiona at 438.
It is within the power of federal courts to award substantial compensatory damage
awards. A review of federal case law in ATS and TVPA cases shows that compensatory
damages for pain and suffering are substantial and correspond to the level of extreme
harm
suffered by plaintiffs in these cases. In Arce v. Garcia, compensatory damages of
$5,000,000
were awarded to Plaintiff Romagoza Arce for his kidnapping and torture (22 days) by
Salvadoran soldiers; compensatory damages of $6,500,000 were awarded to Plaintiff
Gonzalez
for his kidnapping and torture (12 days) by Salvadoran soldiers; and compensatory
damages of
$3,100,000 were awarded to Plaintiff Mauricio for his kidnapping and torture (10 days).
Arce,
Case No. 99-8364 CIV-HURLEY (July 31, 2002) (final judgment), Arce v. Garcia, 434 F.3d
1254, 1256 (11th Cir. 2006) (affirming jury award of $54,600,000 in total damages). In
Estate of
Cabello v. Fernandez-Larios, the jury awarded $3 million in compensatory damages to
plaintiffs
for the torture, extrajudicial killing, and crimes against humanity of a Chilean economist
killed
by a member of Pinochets caravan of death. Cabello at 1148. In Abebe-Jira v. Negewo, a
jury
awarded each plaintiff $200,000 in compensatory damages for their arrest and
imprisonment
without charges (for variable periods), their torture while in prison, and other cruel acts
by the
Ethiopian military. Abebe-Jira, 72 F.3d 844, 845-46 (11th Cir. 1996), cert. denied, 519
U.S. 830
(1996). In Paul v. Avril, plaintiffs were awarded between $2,500,000 and $3,500,000
each in
compensatory damages for their detention without charge, torture, and other cruel acts
by the
Haitian military. Paul, 901 F.Supp. at 336.6 See also Hilao v. Estate of Marcos, 103 F.3d
767,
6 In another Eleventh Circuit case, after the lower courts grant of the defendants motion
to dismiss was
(cont.)

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18
787 (9th Cir. 1996); Tachonia at 267-269; Mehinovic v. Vukovic, 198 F. Supp. 2d. 1322,
1358-60
(N.D. Ga. 2002); Jane Doe v. Karadzic, Civ. No. 93-0878, 2001 WL 986545 (S.D.N.Y.
Aug. 28,
2001), Filartiga II at 867; Saravia at 1112.
These awards sought to compensate the plaintiffs for non-economic damages such
as pain and suffering and mental anguish. See Paul v. Avril, at 335. (The Court awards
compensatory damages for pain and suffering); Mehinovic v. Vukovic at 1358-60.
(Courts have awarded substantial compensatory damage awards to plaintiffs in ATCA
and
related cases in light of the gravity of the abuses and the serious physical and
psychological
injuries caused by acts such as those suffered by plaintiffs.); Mushikiwabo v.
Barayagwiza,
1996 U.S. Dist. LEXIS 4409, *7 (S.D.N.Y. Apr. 9, 1996) (the award for pain and suffering
damages will be calculated at $500,000 per relative). In one recent decision, Judge
Lenard of
the Southern District of Florida considered a case factually similar to this case, in which
she
granted a default judgment against a defendant from Honduras accused of serious
human rights
violations under the ATS and the TVPA. She awarded five of the plaintiffs $2,000,000
each in
compensatory damages, and the sixth plaintiff $3,000,000. Final judgment, Reyes v.
Grijalba,
02-CIV-22046-JAL (S.D. Fla. March 31, 2006). In the Findings of Fact and Conclusions of
Law, she stated,
Each of the plaintiffs in this action has endured mental pain and
suffering, mental anguish, and shock, and is therefore entitled to
compensatory damages. Findings of Fact and Conclusions of Law
at 16, Reyes v. Grijalba, 02-CIV-22046-JAL (S.D. Fla. March 31,
2006).
In Mushikiwabo v. Barayagwiza, the District Court was asked to award damages
to five Rwandan Tutsi plaintiffs after a grant of default judgment against a Rwandan Hutu
overturned, the case went to trial resulting in a jury verdict of $3,500,000 in
compensatory damages. 03-20161-
CIV-KING (Aug. 16, 2007 (final judgment), Jean v. Dorelien, 431 F. 3d 776 (11th Cir.
2005).
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19
military leader. The Court heard similar facts regarding the systematic extermination of a
whole
community of unarmed men, women, and children and commented:
One cannot place a dollar value on the lives lost as the result of the
defendants actions and the suffering inflicted on the innocent
victims of his cruel campaign. Unfortunately, however, a
monetary judgment is all the Court can award these plaintiffs.
Id. at *6 (awarding plaintiffs $500,000 in compensatory damages, $1,000,000 in

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punitive damages to each plaintiff for each relative killed, plus an additional $5,000,000
in
punitive damages for each plaintiff).
As shown above, federal courts award extremely substantial compensatory and
punitive damage awards in situations similar to this case awards that often total tens of
millions
of dollars. These decisions suggest an appropriate order of magnitude for the award.
Courts in the Eleventh Circuit usually consider some combination of the Saravia
factors when making compensatory damages awards. See e.g. Paul v. Avril, 901 F.Supp.
330,
336 (S.D. Fla. 1994) (egregiousness); Mehinovic v. Vuckovic, 198 F.Supp.2d 1322, 1358
(N.D.
Ga. 2002) (brutality; egregiousness); Abebe-Jira v. Negewo, 1193 WL 814304, *4, affd
72 F.3d
844, 847 (11th Cir. 1996), cert denied 519 U.S. 830 (1996) (finding that plaintiffs were
entitled
to compensatory damages sufficient to compensate for all physical and nonphysical
injuries
caused by the illegal act and punitive damages sufficient to punish the defendant and
deter future
violations.).7 The testimony and documentary evidence submitted by Plaintiffs shows
that
under federal common law in ATS and TVPA cases and under the six Saravia factors,
Plaintiffs
should be granted a substantial compensatory damage award.
7 As detailed in the Gamarra Declaration, Exhibit A, the law of Peru is in accord. If this
Court finds the law
of Peru to be inconsistent with the federal common law, it should disregard Peruvian law
in favor of a source of law
which allows the court to fashion a remedy that effectuates the intent of the ATS and the
TVPA.
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20
B. Federal Common Law on Punitive Damages
There is a large body of federal precedent including three separate decisions of
the Eleventh Circuit in which punitive damages were awarded in ATS cases. In Arce v.
Garcia
punitive damages were awarded in the amount of $15,000,000 to Plaintiff Romagoza
Arce,
$15,000,000 to Plaintiff Gonzalez, and $10,000,000 to Plaintiff Mauricio. Arce, 434 F.3d
1254,
1256 (11th Cir. 2006) (affirming jury award of $54,600,000 in total damages). In Cabello
v.
Fernandez-Larios punitive damages were awarded in the amount of $1,000,000. Cabello
at
1151-52. In Abebe-Jira v. Negewo, the district court awarded $300,000 in punitive
damages to
each plaintiff. Abele at 846 (affirming district courts award of $300,000 in punitive
damages to
each plaintiff). See also Hilao at 787; Tachonia at 267-69; Mehinovic at 1358-60;

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Karadzic, Civ.
No. 93-0878, 2001 WL 986545 (S.D.N.Y. Aug. 28, 2001); Filartiga II at 867; Paul at 336
(awarding $4,000,000 in punitive damages to each plaintiff); Saravia at 1158. In Reyes
v.
Grijalba, the court also granted a substantial total punitive damages award in the amount
of
$16,000,000. In the Findings of Fact and Conclusions of Law, the Court [found] that the
award
of substantial punitive damages in this action will send a message that the offenses of
torture,
disappearance, and extrajudicial killing shall not be tolerated under any circumstances
and shall
always be punished. Findings of Fact and Conclusions of Law at 21, Reyes v. Grijalba,
02-
CIV-22046-JAL (S.D. Fla. March 31, 2006).
The Eleventh Circuit ATS cases cited above, in which substantial punitive
damages were awarded, also included TVPA claims. See Arce, 434 F.3d 1254; Cabello,
402
F.3d 1148, and Jean, 431 F.3d 776. Under the federal common law that gives content to
the
broad remedial purpose of both the ATS and the TVPA, this Court should award
significant
punitive damages to Plaintiffs.
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21
General principles of federal common law also favor an award of punitive
damages and articulate standards for determining an award of punitive damages in
accordance
with the due process principles of the federal Constitution. BMW of N. Am., Inc. v. Gore,
517
U.S. 559 (1996); State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003). In
BMW v.
Gore, the Court highlighted three factors to consider when reviewing the appropriateness
of an
award of punitive damages. These factors were: the reprehensibility of the conduct; the
disparity
between the actual or potential harm to the plaintiffs, and the punitive damages
assessed
described as a ratio; and the difference between the punitive damages and the civil and
criminal
penalties authorized by the law for that conduct. BMW v. Gore at 575, 580, 583.
In BMW v. Gore, the defendant had repainted damages cars and passed them off
as never-damaged cars. Id. at 563-64. The jury awarded $4,000 in compensatory
damages to the
plaintiff (who purchased one of the cars) and $4,000,000 in punitive damages; the
Alabama
Supreme Court reduced the punitive damage award to $2,000,000. Id. at 565. The Court
held
that the punitive damages were excessive because the only harm was economic, not
physical, and

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a ratio of 500 to 1 was too high in those circumstances. Id. at 576, 583. The Court,
however,
refused to draw any bright line rule regarding acceptable ratios for punitive damages. Id.
at 585-
86. In its holding, the Court found that reprehensibility is the most important indicium of
the
reasonableness of a punitive damage award. Id. at 575. It also analogized to criminal
cases,
pointing out that non-violent crimes are less reprehensible than violent crimes. Id.
In 2003, the Supreme Court issued a more comprehensive opinion regarding the
determination of punitive damages awards, State Farm Mut. Auto Ins. Co. v. Campbell,
538 U.S.
408 (2003). The State Farm Court reiterated that reprehensibility was the most
important
indicium of the reasonableness of a punitive damages award. Id. at 419. The State Farm
Court
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22
also articulated a more comprehensive analysis of what factors to examine when
considering
reprehensibility. Specifically the Court held that there are five factors to reprehensibility:
(1)
whether the harm caused is physical rather than economic; (2) whether the conduct
causing harm
shows indifference to or a reckless disregard of the health or safety of others; (3)
whether the
target of the conduct is financially vulnerable; (4) whether the defendants conduct
involves
repeated actions; and (5) whether the harm is the result of intentional malice, trickery,
or deceit,
or mere accident. Id. at 419. The Court further held that the ratio of punitive damages
to
compensatory damages should generally not exceed 9 to 1. Id. at 425.
Significantly, the Court discussed combinations of factors that would justify
higher ratios. In particular, the Court held that if a particularly egregious act has
resulted in
only a small amount of economic damages, or if the injury is hard to detect or the
monetary
value of the non-economic harm might have been difficult to determine then ratios in
the high
single-digits or even higher could be warranted. Id. at 425. (quoting BMW v. Gore at
582).
When determining punitive damages, federal courts must also consider mitigating
factors: e.g., if
defendants act promptly and comprehensively to ameliorate any harm they cause in
order to
encourage such socially beneficial behavior. See In re: Exxon Valdez, 490 F.3d 1066,
1084 (9th
Cir. 2007).
In accord with the federal law in this area, the un-refuted facts of this case show

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that a multiplier greater than 9 to 1, is appropriate. The conduct at issue here involves
the brutal
torture and massacre of innocent civilians. It is a crime so reprehensible that it has been
condemned internationally. The harm itself is physical, although it also had economic
repercussions for the surviving plaintiffs. It involved the deliberate and systematic
massacre of
an entire village, showing extreme indifference and reckless disregard for the health
and
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23
safety of others. The brutal acts were targeted at a population of indigenous,
subsistence
farmers, who were extremely vulnerable, and included the looting and destruction of
their homes
and few possessions. The acts sued for involved the repeated and systematic slaughter of
an
entire village, not one single, stand-alone act. And finally, Hurtados own testimony,
relayed by
Senator Xavier Diez Canseco, demonstrated that the horrors he perpetrated on
Accomarca were
intentional. Reprehensibility is the most significant factor in any analysis of punitive
damages,
and in this case, the reprehensibility of these acts beggars description. BMW at 575;
State Farm
at 419; Exxon Valdez at 1084.
The criminal and civil penalties for these actions are also severe. Under federal
law, murder is punishable by the most severe penalties of life imprisonment or death,
demonstrating that high punitive damages awards are appropriate in these cases. The
federal
case law regarding ATS and TVPA claims, likewise, shows that punitive damages awards
are an
established part of the jurisprudence, and are traditionally high.
Under both the federal common law of damages in ATS and TVPA cases, and
general principles of federal common law, Plaintiffs have demonstrated that substantial
punitive
damages should be awarded in this case.
IV. Closing Statement
On August 13, 1985, Plaintiffs Tefila Ochoa Lizarbe and Cirilia Pulido Balden
were both 12-year-old girls living a peaceful, quiet rural life with their families in a
community
outside of the Andean mountain town of Accomarca in the Department of Ayacucho, in
Peru.
Both girls were exceptionally close to their mothers and to their siblings and lived in a
tight knit
indigenous Quechua-speaking community. Both girls worked tending animals and
assisted with
their families agricultural activities and Cirila also went to school. Both Plaintiffs gave
detailed
testimony about their memories of their mothers and siblings before they were killed and
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24
described the unique personalities of each decedent. Neither girl nor their families were
involved in politics in any way or had even heard of the Maoist insurgent group the
Shining Path.
The facts admitted and evidence at trial conclusively shows that, by the
conclusion of the following day August 14, 1985 the lives of both girls were utterly
shattered. When both girls woke up, in their separate homes high in the hills, they saw
the
unspeakable events unfold: a heavily-armed Peruvian army patrol, commanded by
Defendant
Hurtado, had encircled the community and was moving house to house, rounding up the
villagers
and forcing them down to a large flat field known as Lloccllapampa. Tefila testified that
soldiers came to her house and her mother, Silvestra, attempted to pacify them by
offering them
food and talking with them about her older son, who himself served in the Peruvian army.
Although they accepted Silvestras food, the soldiers then forced her out of the house.
She took
her terrified youngest children with her Victor, Ernestina, Celestino, and the baby
Edwin.
Silvestra told Tefila and her younger brother Gerardo to stay behind, to take care of the
house
and the animals. Knowing what was likely to happen, Silvestra buried the familys papers
and
valuables before she left, carrying her crying children.
Cirila testified that from her house, which was higher up the hill and less
accessible, she watched a similar scene unfold with two of her younger brothers and
sisters.
Having heard gunfire the night before in Pitsecc, Cirilas parents and her 9 month-old
baby
brother Edgar had left in fear of the soldiers. As Cirila watched the army patrol rounding
up the
villagers, Cirila realized that her mother, Fortunata, and her brother Edgar were among
them
that they had been captured.
Both girls, from their separate vantage points, then watched the same grotesque
scene unfold. While Tefila and Cirila, trembling with fear, watched helplessly, Hurtado
and the
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25
Peruvian soldiers, under the authority of the government, tortured and executed
Plaintiffs
mothers and siblings and all of the other villagers who had been herded to
Lloccllapampa. The
defenseless, weaponless civilians, all of whom were known to Plaintiffs, were raped,
beaten,
lined up, marched in single file down to a building where the soldiers repeatedly shot at
them,
threw grenades into their midst, and burned them alive. These villagers included the
elderly,

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women (some visibly pregnant), children and babies.


Both Plaintiffs testified about their additional, separate ordeals of personally
fleeing from soldiers, dodging bullets and hiding to avoid capture and death. Tefila was
forced
to flee immediately when the soldiers began their mop up operation, returning to all
the houses
in the village after the first round of killings in order to make sure that no survivors
remained.
Tefila and her brother Gerardo both left the house in order to hide and almost
immediately
encountered the soldiers. Tefila ran up the path, while Gerardo ran down the path
towards the
soldiers. In his last words, Gerardo who was ten years old screamed that he wanted
to die
next to his mother, whose death he had just witnessed. Tefila ran, dodging the soldiers
and
their bullets, and hid behind a rock, until the soldiers left her for dead.
Cirila was able to remain in her remote home, high in the hills, with her two
younger siblings. They huddled there alone for days, afraid of starting a cooking fire that
would
attract the attention of the soldiers. Ultimately her father returned, expecting to see his
wife and
youngest child. Cirila had to tell her father that her mother and brother, Edgar, had been
killed.
Both Plaintiffs buried their loved ones and the others executed by Hurtado and his
soldiers, and
both testified about the condition of the bodies at the time of burial a sticky mixture of
severed
limbs and heads, grain and gravel that could only be moved by shovel. Several weeks
later,
Cirila and her remaining family were in hiding when the soldiers returned and attempted
to
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26
eliminate by execution any remaining witnesses. Cirila ran from the soldiers, through the
dense
forest and down a river. She hid under a waterfall, in the river, for most of a day and
night while
the soldiers searched for her. She, too, was left for dead by the Peruvian soldiers.
Plaintiffs also testified about their lives after the massacre, how their communities
were shattered and the population of their town forcibly displaced destroying the
unique
indigenous culture that was their birthright. Both Plaintiffs were forced to abandon their
lives
and move to Lima in order to find jobs to support themselves and their remaining family
members. Due to their youth and lack of preparation, both plaintiffs testified they were
forced to
accept jobs as domestic workers in private houses where neither received a salary for
their work,
and they were forced to eat the leftovers for their food. Plaintiffs had to abandon their

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native
language, Quechua, and learn a second language, Spanish, in order to survive. Both
Plaintiffs
testified about their desire for an education and their belief that if their families had
survived
intact, their lives would have been profoundly different and significantly better a fact
that is
quite self-evident.
Most importantly, both Plaintiffs testified about their own extreme and continuing
mental anguish. Both Plaintiffs suffer lasting psychological and emotional harm because
of
Hurtados acts and both Plaintiffs have physical manifestations relating to that emotional
harm.
Plaintiffs testified about nightmares and depression and overwhelming fear of soldiers
and of
fire. Both Plaintiffs provided compelling testimony about the abject terror of their
mothers and
siblings as they were led to their deaths. Silvestras partial torso was one of the few
identifiable
bodies pulled from the wreckage of the fire. Silvestras youngest child, nine-month old
Edwin,
was still strapped to her back, headless. Tefilas testimony also proves the sheer terror
and
desperation of her young siblings and especially her 10-year old brother Gerardo, who
ran
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27
towards the soldiers, screaming that he wanted to die next to his mother. For her part,
Cirila
testified about her mothers fear of the soldiers, which drove her to flee the area.
Finally, there is ample evidence of the physical pain suffered by all eight
decedents. Plaintiffs themselves testified about the screams of the villagers, including
their
relatives, as they were beaten and raped in Lloccllapampa and later as they were strafed
with
bullets and grenades. This testimony is entirely consistent with the separate reports of
both the
Peruvian Senate (Plaintiffs Exh. 3) and the later Peruvian Truth and Reconciliation
Commission
(Plaintiffs Exh. 2).
With respect to the Defendant Hurtados conduct, Plaintiffs presented two
witnesses with specific expertise in the social and political situation of Peru in 1985:
Peruvian
Truth Commission Senior Editor and transitional justice expert Eduardo Gonzalez, and
former
Senator Javier Diez Canseco, a member of the Peruvian Senate Commission set up in
September
1985 to investigate the Accomarca Massacre. Mr. Gonzalez testified that Defendant
Hurtado
and his patrol were part of a planned military operation called Operation Huancayoc, in

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which
the soldiers made no distinction between members of the insurgent Shining Path guerilla
movement and innocent civilians. As detailed by the Peruvian Truth Commission Report
(Plaintiffs Exh. 2), Operation Huancayoc had, as its object, the outright extermination
and
cleansing of the civilian population in the Accomarca area. Senator Diez Canseco testified
about
detailed statements Defendant Hurtado made to the Senator personally in which
Hurtado
admitted his direct and central role in the massacre. In the course of this interview,
Defendant
Hurtado stated that he believed the children needed to be killed, and failed to
demonstrate
any remorse whatsoever. These statements are memorialized verbatim in the Senate
Report.
(Plaintiffs Exh. 3).
Case 1:07-cv-21783-AJ Document 32 Entered on FLSD Docket 02/29/2008 Page 27 of 31
28
Both Mr. Gonzalez and Senator Diez Canseco testified about the complete
impunity of Defendant Hurtado from prosecution. Senator Diez Canseco testified about
his
proposal to constitute a Senate Investigative Commission to investigate the events of
August 14,
1985. Despite the senators findings and the petitions made to the Peruvian civilian
prosecutor
by the Senate to prosecute Defendant Hurtado and the others responsible for the
massacre, the
Peruvian military co-opted the nascent civilian investigation into the massacre, starting
its own
sham investigation.
After a controversial jurisdictional decision by the Peruvian Supreme Court, the
responsibility for prosecuting the admitted crimes of Defendant Hurtado fell to the
military. As
described in depth in the Peruvian Truth Commission Report on the Accomarca Massacre
(Plaintiffs Exh. 2) and by Mr. Gonzalez, the military investigation and prosecution resulted
in
Hurtados conviction on only one charge Abuse of Authority with only a de minimus
sentence. But this trivial sentence was not enforced. In 1995, the Peruvian Congress
passed a
general amnesty law, exempting all participants in the counter-insurgency campaign
against the
Shining Path from prosecution. Although this amnesty was ultimately nullified, Defendant
Hurtado fled from Peru and thus, could not be criminally prosecuted. In fact, Defendant
Hurtado, between 1985 and the time he left Peru, was actually commended and
promoted by the
Peruvian military. These circumstances insured that Hurtado never served any sentence
or bore
any real responsibility for his heinous crimes.
The Accomarca Massacre was deeply emblematic in Peru and internationally.
Mr. Gonzalez testified about the notoriety of the massacre and its profound importance in

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Peru,
Latin America and the world. Mr. Gonzalez testified that the massacre demonstrated that
the
presidency of Alan Garcia would continue the repressive policies of his predecessor and
the
Case 1:07-cv-21783-AJ Document 32 Entered on FLSD Docket 02/29/2008 Page 28 of 31
29
executive branch of Peru would continue to abdicate all responsibility for checking the
militarys
human rights abuses. Mr. Gonzalez further testified that the massacre was reported in
media
throughout the world, appeared in a number of prominent human rights reports, and was
universally condemned.
Mr. Gonzalez opined that a substantial monetary award from this Court would
have a profound deterrent effect. Defendant Hurtados conduct during the course of the
Accomarca Massacre, and the subsequent cover-up, is a prototypical example of
impunity. The
evidence submitted by Plaintiffs demonstrates that a damage award here would deter
others who
might be tempted to commit similar acts; it would show that such impunity is not
absolute and
there is no safe haven in the United States for human rights violators such as Defendant
Hurtado.
Plaintiffs also provided compelling testimony on what a large compensatory and punitive
damages award would mean to them and to the association of survivors of the
Accomarca
Massacre, whom they represent. Both Plaintiffs testified that they seek justice and to
bring
attention to Defendant Hurtados heinous acts. Mr. Gonzalez testified that a large damage
award
would also recognize and work to address the racism inherent in the Peruvian armys
repressive
policies in the 1980s and 90s.
This case is the story of a peaceful community that was caught in the social and
political struggle of a country to repress a violent terrorist group, the Shining Path. The
innocent
Plaintiffs here were victimized because they were wrongly identified as supporters and
sympathizers of the Shining Path and then victimized again when the military, with the
implicit
permission of the government, covered up its crimes and refused to punish the
wrongdoers.
Accordingly, Plaintiffs ask for the following compensatory and punitive damage award:
Case 1:07-cv-21783-AJ Document 32 Entered on FLSD Docket 02/29/2008 Page 29 of 31
30
Compensatory Damages:
Tefila Lizarbe and Cirila Balden: no less than $2,000,000 each
Eight Decedents: no less than $500,000 each
Punitive Damages:
Tefila Lizarbe and Cirila Balden: no less than $4,000,000 each
Eight Decedents: no less than $4,000,000 each

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Such an award would compensate Plaintiffs and effectively punish Defendant


Hurtado in accordance with the controlling federal common law of the ATS and the TVPA.
V. Conclusion
The admitted facts, testimony and documentary evidence demonstrates that
Plaintiffs and the estates that they represent should be awarded substantial damages.
Should the
Court so request, Plaintiffs would gladly proffer Proposed Findings of Fact and
Conclusions of
Law.

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US judge awards $15 million to Somali torture


victim
Thursday 22 August 2013 at 9:34 AM ET by G. Redd
A judge for the US District Court for the Southern District of Ohio [official websites] on
Tuesday awarded [CJA press release, PDF] $5 million in compensatory damages and $10
million in punitive damages to a victim of torture at the hands of a Somali military
colonel some 25 years ago. Judge George Smith determined [JURIST report] in
November that constitutional law professor Abukar Hassan Ahmed was arbitrarily
detained by Colonel Abdi Aden Magan's subordinates for three months in 1988. The
Center for Justice and Accountability (CJA) [advocacy website] filed a lawsuit [CJA
materials] on behalf of Ahmed in 2010, when Magan was residing in Ohio. This is the
largest amount ever awarded in a US court for the torture of one individual by another,
but since Magan has left the US it is uncertain whether Ahmed could ever actually receive
any damages. Ahmed currently serves as an adviser to the president of Somalia.
US courts have recently supported international torture victims in several suits. In August
the US District Court for the Eastern District of Virginia [official website] awarded $21
million [JURIST report] to seven Somalis in a separate CJA lawsuit [CJA materials]
against former Somali prime minister Mohamed Ali Samantar [JURIST news archive]. The
lawsuit, which started in 2004 and made it to the US Supreme Court [JURIST report] in
2010, alleged Samantar was responsible for the killing and torture of members of the
Isaaq clan in Somalia throughout the 1980s under former dictator Siad Barre. In April
2011 the Virginia court denied a motion to dismiss [JURIST report] the lawsuit against
Samantar, whose lawyers had argued for dismissal because the statute of limitations had
expired and because the courts should not interfere in political matters. That February a
federal judge had ruled that Samantar was not entitled to legal immunity from civil
lawsuits [JURIST report], following the Supreme Court's 2010 ruling that the Foreign
Sovereign Immunities Act of 1976 (FSIA) [28 USC 1330, 1602 et seq. text] does not
provide foreign officials immunity from civil lawsuits.
Posted in Paper Chase

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What is the Remedy for American Torture?


By Fionnuala N Aolin
Tuesday, November 25, 2014 at 9:17 AM
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Asst. Sec. of State for Democracy, Human Rights, and Labor, Tom Malinowski stated to
the UN Committee on Torture two weeks ago that:
A little more than ten years ago, our government was employing interrogation
methods that, as President Obama has said, any fair-minded person would
believe were torture. At the same time, the test for any nation committed to
this Convention and to the rule of law is not whether it ever makes mistakes,
but whether and how it corrects them.

But what does correction look like? What obligations of repair follow from the
acknowledgement that torture was routinely and consistently practiced by the United
States? It is very clear that the Convention Against Torture (Article 14) as well as the
collective jurisprudence of regional and international courts require that reparations
follow from harm committed in breach of human rights treaty obligations. At the same
hearings, Acting Legal Advisor to the State Department, Mary McLeod claimed that the
United States has taken important steps to ensure adherence to its legal obligations.
These include the creation and enforcement of laws and processes to strengthen the
safeguards against torture and cruel treatment including Executive Order 13491. We are
told that Army Field Manual Rules on Interrogation are now being fully enforced, and that
there is great transparency in interrogation procedures, though with some ambiguity
whether these procedures apply outside the territory of the United States. There is one
resounding silence. In the context of torture committed at Guantanamo Bay and in other
detention sites across the world not one word emerged from the delegation on what
direct and specific obligations of reparation were owed to those persons who experienced
torture at the hands of agents of the United States. This gap was directly addressed by
Jens Modvig, the Country Rapporteur who asked the delegation to clarify:
how many victims of torture have legally pursued and successfully obtained
effective remedy for torture during U.S. custody within and outside U.S.
territory?

In parallel, the US position on prosecution maintains a curious silence on the salience of


accountability for torture post 9/11, though prosecutions in other contexts against
international recognized torturers is touted as evidence of a commitment to broadly
based accountability. In the midst of this resounding silence, my comments focus on
what the Committee can and should expect of the United States with respect
to reparations for Guantanamo Bay detainees and others ill-treated in black sites.
A starting point to addressing why the United States has an obligation of reparations is to
recall why remedies exist for human rights violations under international treaty law.
Reparations exist because they provide a concrete means to show a desire for non-
repetition, to give redress to persons who have been harmed and to individually confirm
meaningful condemnation in the aftermath of grievous harm to a human being. Recall
that the ICJ has held that the power to afford reparations is implicit in jurisdiction to
hear a case, as a necessary concomitant to deciding disputes. Simply put, reparations

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are necessary to repair the legal injury.


The practice of regional human rights bodies gives us useful insights into what might be
expected of the United States for violation of the CAT. It is fair to say that the European
Court of Human Rights (ECtHR) has historically taken a more conservative approach to
the provision of remedies. The form of remedies for torture has generally followed the
model of direct financial compensation to the individual who has been harmed, the
payment of lawyers fees and the admonition not to breach again. More recently however,
the Court is adopting a broader approach to remedies and now proactively indicates the
measure a violating state should take to prevent torture recurring. So for example, in
early cases like Soering v. United Kingdom (1989)involving breach of the torture
prohibition in a decision to extradite a German national facing the death penalty to the
United Statesneither pecuniary nor non-pecuniary damages were awarded to the
victim. However costs and expenses of 26,782.80 were sustained. In later cases such
as Ribitsch v. Austria (1991)involving ill-treatment in Federal Police Authority custody
in Viennathe ECtHR specifically requested that similar violations do not occur in the
future. In the past two decades a robust application of non-pecuniary damages both to
applicants and their families can be observed in torture cases such as Kurt v. Turkey
(1998). Here non-pecuniary damages of 15,000 were awarded to the applicants son
and 10,000 to the applicant; in Selmouni v. France (1999) 500,000 FRF were awarded
in non-pecuniary damages for torture in police custody; and in Taz v. Turkey (2000)
20,000 were awarded in non-pecuniary damages following the enforced disappearance
of the applicants son and 10,000 in respect of the applicant for torture in the context of
disappearance. Recently, in the context of rendition cases from Poland (here), the Court
has confirmed that Poland not only had to pay direct compensation to those rendered
but the government was required to take proactive institutional action to protect them.
The emerging scope of an expansive remedies approach for systematic violations of non-
derogable rights is trenchantly illustrated by a series of cases in which the United
Kingdom was found in violation of another non-derogable Convention rightthe right to
life (Article 2). Spanning almost two decades, these cases included deaths resulting from
the exercise of force against members of paramilitary organizations (e.g. McCann v.
United Kingdom (1995), Jordan v. United Kingdom (2001), McKerr and Others v United
Kingdom (2001), and McCaughey and Grew v. United Kingdom (2013) and the Court
determined that a range of institutional measures had to be taken in order to provide
Just Satisfaction to those killed and their families. These measures include positive and
procedural obligations for the state and its agents that addressed planning, training,
oversight, investigation, prosecution and civil remedies. The obvious precursor to these
institutional remedies was individual compensation to all those whose families members
were killed by the use of force violating the right to life provisions of the Convention.
The UK precedent and specifically the broad package of measures agreed by the
Council of Europe to firmly address and remedy violations of the right to life occurring
during the conflict in Northern Ireland provides one useful model to conceptualize
what US reparations for torture practices post 9/11 might look like in practice.
The Inter-American Court (IACHR) has been exceedingly robust in its provision
of reparations for torture, both with respect to the ability to order compensation and
force other remedial measures. In Aloeboetoe et al. v. Suriname (1990) where multiple
violations including violation of the right to humane treatment were sustained, the Court
ordered collective reparations for a wide range of family and village members including
individual payments to multiple families. The Court ordered the creation of two trust
funds and the establishment of a foundation for the entire harmed community. Justices

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stipulated that this financial instrument should not be subject to national taxation rules.
The Court ordered the state, as an act of reparation, to reopen the school located in the
area where the harms took place with an obligation to staff it with teaching and
administrative personnel.
It is important to be aware that the IACHR has adjudicated cases in which the individuals
tortured have been alleged (by the state) to be members of paramilitary/non-state
organizations. In these torture cases the Court has been reliably clear that the imputed
political status of those subject to exceptional detention regimes is not a basis to justify
torture. Remedies in these cases show that the state does not get deferential treatment
simply because of the (alleged) context in which the harms occurred whether a situation
of armed conflict or terrorism. Thus, for example, in Loayza Tamayo v. Peru (1998) the
victim was an alleged collaborator of the subversive group Shining Path. She was
detained for ten days and subjected to torture, cruel and degrading treatment. The
reparations required by the Court included:
1. A sum equivalent to the salaries that the victim ceased to receive between the
time she was detained and the date of the decision by the Court.
2. A lump sum for the victims medical expenses during her incarceration.
3. A sum corresponding to the travel expenses incurred by the next of kin to visit the
victim while she was held in detention.
4. An amount corresponding to the likely future medical expenses of the victim and
her children.
As for compensatory damages Peru was ordered to pay a total of US$167,190.30 for the
victim: $20,000 for the victims parents; $30,000 for the victims children; $18,000 for
the victims brothers. Importantly, and relevant as comparison practice in relation to
correction for torture practices were the institutional reform and measures required to
prevent recurrence of violence by the IACHR. Peru was required to adopt all internal legal
measures necessary to adapt Decree Laws 25,475 (Crime of Terrorism) and 25,659
(Crime of Treason) to conform to the ACHR. Peru was mandated to investigate the facts
in the applicants case, and identify and punish those responsible for those acts, and
adopt all the necessary domestic legal measures to ensure that this obligation is
discharged. The Justices also required the State to take all measures necessary to re-
instate Ms. Loayza-Tamayo in the teaching service of the University from which she had
been fired. This reinstatement was also based on the understanding that the amount of
her salaries and other benefits would be equal to the pay she was receiving for the
teaching at the time she was detained, with appreciation to the date of the date of the
IACHRs decision. Down to the specifics, Peru was required to guarantee Loayza-Tamayo
her full retirement benefits, including those owed for the period that followed
her detention.
Another relevant case as we survey the international jurisprudence for torture is that of
Cantoral Benavides Case v. Peru (2001). This case is valuable because the remedies
given reflect the Courts understanding of the long term medical needs of the Luis Alberto
Cantoral Benavides following torture experienced in custody. Cantoral Benavides was a
20 year-old University biology student when he was arrested. He was detained for four
years and after release he experienced ongoing physical and psychiatric complaints.
Reparations to Cantoral Benavides included US $24,000 which was calculated to
compensate the salary he would have received if not imprisoned. For medical treatment
received in custody he was awarded US $1,000 and for future medical treatment the
Court allocated US $10.000. In a distinctly egalitarian move, appreciating the parallel
harms that are experienced by the families of those tortured, the Court found that

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Cantoral Benavides mother suffered and still evidenced symptoms physical and
psychological pain originating from the imprisonment and situation of her son. In this
instance of extended reparation the Court ordered Peru to pay US $1,500 for medical
treatment. A parallel sum was also awarded to Cantoral Benavides brother for medical
and psychological aid. Moral damages were paid to the primary victim, his mother, and
his three brothers ($125,000).
In terms of institutional reparation the state was ordered to annul any domestic criminal,
administrative or judicial records against the victim. Notably the Court ordered that the
merits judgment of the Court be published in a national legal journal. The state was
required to make public amends to the victim including providing a scholarship for
graduate studies with a monthly fee for living expenses. All medical costs for the victims
mother were to be paid by the state.
These IACHR cases are illustrative of a broader trend to transformative reparations
where serious human rights have been engaged by the state. Increasingly, it is simply
insufficient to compensate the victim financially when non-derogable human rights are
violated (though that is an essential first step of repair). Rather, regional human courts
have recognized that the imprint of the harm of torture is life-long, life-changing, and
effects the lives of families as well as of the persons whose bodies and integrity have
been violated. In this context, the response of the United States to the probing of the UN
Committee on remedies seems woefully inadequate. While having provided the
Committee with the names of 33 individuals who had filed claims against the Department
of Defense, no substantive information was provided on the status of those cases.
Despite questions asked by the Committee, the US delegation neatly avoided giving
information on whether any of those individual had been provided non-judicial remedies,
and on the numbers of lawsuits involving torture or serious ill-treatment that had failed
to proceed on the basis of non-exhaustion of the internal grievance system. Despite the
apparent formal assurances of Robin Jacobson, Associate Deputy Attorney General, there
is no evidence that the United States has taken responsibility to implement remedies for
acknowledged torture. He stated:
U.S. law provides a wide range of civil remedies for seeking redress in cases of
torture. These include injunctions, compensatory damages, punitive damages,
and declaratory relief. In addition, the U.S. Congress has authorized the federal
government to bring civil actions to enjoin acts or patterns of conduct that
violate constitutional rights, including those that
would amount to torture. At the federal level, the principal avenues of
individual redress are administrative tort claims and civil litigation.
Common law tort actions for assault, battery, wrongful death, civil actions for
violations of federally protected civil rights, suits based on
federal constitutional rights. On the state level, all of our states provide for civil
tort suits to be brought against state officials and many permit damages
for violations of state constitutional rights.

This formal litany of effectively unavailable rights to tortured Guantanamo Bay detainees
and others operates as a secondary layer of Convention violation. Namely, the violation
of the right to an effective remedy for torture. Words in fact, may be cheap. As Gabor
Rona has noted here, there is little new about the acknowledgement of
extraterritoriality official by this US delegation, despite the hype. Harold Koh among
other commentators here, has applauded the honesty and increased transparency of the
acknowledgments made before the Committee (a cheer for the unequivocal yes). On

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that matter, I am less persuaded. There is a grave danger that acknowledgment may blur
the ongoing, daily violations of detainees human rights. It may also cloud and allow us
to forget that there are a host of other obligations that follow from naming the fact that
torture has taken place. Lest we forget, the United States has a direct obligation to each
individual tortured and subject to cruel treatment at Guantanamo Bay, and that
obligation is one of repair, remedy and restitution.
Tags: Convention Against Torture, IACHR, remedies, torture
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About the Author


Fionnuala N Aolin is concurrently the Robina Chair in Law, Public Policy, and Society at
the University of Minnesota Law School and Professor of Law at the University of Ulsters
Transitional Justice Institute in Belfast, Northern Ireland. Follow her on Twitter
(@NiAolainF).

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Assessing Emotional Distress Damages: Torture or Fair Play?


I. THE ROLE OF THE MENTAL HEALTH PROFESSIONAL IN EMPLOYMENT
CASES
Mental health issues have come to play an increasingly prominent role in employment
law matters over the last 15 years, due in large part to enactment of the Americans with
Disabilities Act in 1990 (which prohibits discrimination against employees with mental as
well
as physical disabilities) and the Civil Rights Act of 1991 (which permits the recovery of
emotional distress damages in employment discrimination and harassment lawsuits), as
well as
the proliferation of statutory and tort-based causes of action under state law that provide
for
recovery of compensatory damages. Although the most familiar role is that of expert
witness on
emotional damage issues, the mental health professional can play a variety of roles in
employment cases.
A. Expert on Damages Issues
In this role, the psychiatrist or psychologist examines the plaintiff and then typically
gives an expert opinion on one or more of the following issues:
1. Is the plaintiff suffering from a diagnosable mental disorder (or did she suffer
from such a disorder in the past)?
2. If so, what was its cause? In other words, was the condition solely caused by
workplace events, or were alternative stressors totally or partially responsible?
3. If the mental disorder has not resolved, what is its prognosis and course of future
treatment?
B. Expert on Liability Issues
The psychiatrist or psychologist might also testify on liability issues, in addition to or
instead of damages issues. This is a developing area of the law, and not all courts permit
such
testimony, but such liability issues might include:
1. Whether the plaintiff in a discrimination case suffers from a personality disorder
that causes him or her to misperceive the words and actions of supervisors or coworkers,
or that affects the plaintiffs interaction with others in the workplace.
2. Whether the plaintiff in a sexual harassment case suffers from a personality
disorder traits that caused her to perceive the words or actions of supervisors or
co-workers in ways other than a "reasonable woman" would have perceived them,
or that caused to "welcome" the conduct at issue in the litigation.
3. Why a plaintiff did not complain of harassment, or whether decision-makers were
applying gender stereotypes (this type of testimony is usually given by a social
psychologist).
C. Consultant in Litigation
The mental health professional might not actually testify in court, but might instead work
behind the scenes with plaintiff or defense counsel to effectively address mental health
issues in
the case. Tasks commonly performed by litigation consultants include review of medical
records, assistance with taking depositions of the opposing party and that party's
treatment
providers and mental health experts, and advice on strategies for effective presentation
of mental
health issues to the court.

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D. Psychiatrist or Psychologist?
Psychiatrists are physicians who complete a residency in psychiatry following medical
school. Following the completion of their training, they are eligible to become "Board
certified,"
which means they have passed the examination for their specialty given by the American
Board
of Psychiatry and Neurology.
Psychologists are doctoral level professionals who have completed a doctorate of
philosophy in psychology (Ph.D.) or a doctorate in psychology (Psy.D.). There are several
branches of psychology; two are relevant to employment litigation. Clinical psychologists
are
trained in the diagnosis and treatment of mental illness, and in many states they must
complete a
clinical internship before being fully-licensed to practice. Clinical psychologists may
conduct
independent mental examinations and give expert testimony regarding the plaintiffs
diagnosis
and treatment in most jurisdictions. Social psychologists are not clinically trained and
generally
cannot conduct examinations or give diagnoses. They can, however, provide expert
testimony
on social frameworks, stereotypes and other phenomena where supported by social
psychological
research.
There are no strict rules for determining whether a psychologist or psychiatrist would be
the more appropriate choice as an expert witness. In fact the primary criterion for
choosing an
expert is his or her fit for the case. For example, a female clinician might be more
appropriate as
a defense expert in a sexual harassment case tried to a jury. A local doctor may be a
better
choice in a nual jurisdiction than an expert from a distant large city with a fancier
resume.
Especially where jury trials are involved, an expert must be evaluated in terms of his or
her
ability to communicate complex and unfamiliar concepts effectively to laypeople.
Nonetheless,
the following general guidelines apply with respect to choosing a psychiatrist versus a
psychologist:
Where issues of medication are involved (for example, where a plaintiffs
symptoms might have resulted from side effects of psychotropic medication or
might have been the result of overmedication or the wrong medication), a
psychiatrist should be chosen because psychologists typically do not receive
formal training in pharmacology.
Where issues of psychological testing are involved (for example, the plaintiffs
treater or expert arrived at a diagnosis via psychological testing), a psychologist
should be chosen because psychiatrists typically do not receive formal training in
psychological testing.
Note finally that master's level professionals (masters in social work, marriage and family
therapists, etc.) should not be used as expert witnesses. Their training is often not

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adequate for
forensic work and they are quite vulnerable to cross-examination by opposing counsel.
A. When a Mental Examination May Be Ordered
Rule 35 of the Federal Rules of Civil Procedure or its state law counterparts provides that
when the mental condition of a party is at issue in a lawsuif upon a showing of "good
cause" the
court may order that party to undergo amental examination bya physician or
psychologist.
Although no court order is necessary if the parties agree to a mental examination of the
plaintiff, plaintiffs' attorneys are more frequently objecting to mental examinations, or
are
agreeing to them only with very restrictive conditions. If no agreement can be reached
for a
mental examination to occur under conditions sufficiently flexible to allow the defense
examiner
to conduct a meaningful inquiry, a motion will bc necessary.
Usually, the court will order the plaintiff to undergo a Rule 35 mental examination where
the plaintiff seeks to recover damages for mental or emotional injuries. Occasionally,
however, a
court will deny a defendant's request for a Rule 35 mental examination where the
plaintiff
describes his or her mental damages in terms of "embarrassment," "humiliation,"
"mental
anguish" and similar non-clmical terms. These have come to be known as "garden
variety"
emotional distress claims.
In Javeed v. Covenant Medical Center, Inc., 218 F.R.D. 178 (N.D. Iowa 2001), the
court
provided a definition of a "garden variety" emotional damage claim in a sexual
harassment
lawsuit. As that court put it:
They are claims for emotional distress for which the plaintiff seeks no diagnosis or
treatment. They are accurately characterized as being claims of generalized insult, hurt
feelings, and lingering resentment. These claims do not involve a significant disruption of
the plaintiffs work life and rarely involve more than a temporary disruption of the
claimant's personal life. In this court's experience, juries in Northern Iowa most often
award between $5,000 and $25,000 for such claims.
The Javeed court went on to find that the claim posed in that case was not a "garden
variety"
claim because the plaintiff asserted that she suffered weight loss, weight gain, insomnia,
rashes,
diarrhea and panic attacks as a result of sexual harassment, and that she saw a
psychologist for
anxiety.
The weight of judicial authority holds that a defendant is entitled to have the plaintiff
undergo a Rule 35 mental examination whenever any of the following is present:
The plaintiff claims to have suffered a diagnosable mental disorder;
The plaintiff obtained medical or psychological treatment for his or her injuries;
The plaintiff plans to have a psychiatric or psychological expert testify at trial;
The plaintiff claims to be suffering continuing emotional distress; andlor

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The plaintiff has pled a separate claim for intentional infliction of emotional
distress.
See, e.g., Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 131 (E.D. Pa. 1997);
Turner v.
Imperial Stores, 161 F.R.D. 89,95 (S.D. Cal. 1995). No "quid pro quo" mental
examination of
the defendant is required or appropriate, unless the defendant places his or her own
mental
condition into controversy. See Schlagenhauf v. Holder, 379 U.S. 104 (1964).
B. Presence of Outsiders
In employment cases, plaintiffs ordered to submit to a Rule 35 mental examination will
often request the presence of a third party, such as their attorney, psychotherapist,
relatives, or a
court reporter. In Edwards v. Superior Court, 16 Cal.3d 905, 130 Cal.Rptr. 14 (1976),
the court
refused to allow the plaintiffs attorney to attend her mental examination. The plaintiff
had
argued that her attorney's presence was necessary to protect her from improper
questioning, to
assure accurate reporting, and to make the examination a more comfortable experience
for her.
The court rejected all three arguments. Concerning that plaintiffs claim that she needed
counsel
to protect her from improper questions, the court remarked:
The analyst in a psychiatric examination seeks by careful direction of areas of inquiry to
probe, possibly very deeply, into the psyche, measuring stress, seeking origins, tracing
aberrations, and attempting to form a professional judgment or interpretation of the
examinee's mental condition. Given such techniques and purposes we do not think that
an attorney, no matter how well intentioned, can fairly and objectively monitor such an
examination. Psychiatry is a discipline requiring highly specialized skills. Further, while
properly objecting to a question on legal grounds, counsel does not necessarily possess
the ability to define the psychiatric relevance of elicited answers. Many questions which
would be legally objectionable, if posed in a courtroom, might be very relevant in the
formulation of a sound psychiatric judgment.
In answer to the plaintiffs argument that her counsel's presence was necessary for her
comfort
and emotional support, the Edwards court expressed its concern that the presence of
others
during the examination would be "distracting, if not disrupting," and noted that an
examination
must proceed free of such disruptions if it is to be valid.
A majority of courts in employment cases have disallowed the presence of plaintiffs
counsel during the Rule 35 mental examination absent compelling reasons to find
otherwise.
See, ee.g.S, alemi v. Boccador, Inc., 2005 WL9 26965 (S.D.N.Y. Apr. 19,2005); EEOC
v. Grief
Brothers Corp., 218 F.R.D. 59 (W.D.N.Y. 2003); Ferrell v. Shell Oil Co., 1995 WL
688795, at
*2 (E.D. La 1995); Ilirschheimer v. ASOUA Corp., 1995 WL 736901, at *3 (S.D.N.Y.
1995);

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hon v. Superior Court, 43 Cal.3d 833, 239 Cal.Rptr. 292 (1987); Lowe v.
Philadelphia
Newspapers, Inc., 101 F.R.D. 296,299 (E.D. Pa. 1983); see al.vo Wheat v.
Riesecker, 125 F.R.D.
479,480 (N.D. Ind. 1989)(noting that majority rule is that plaintiffs attorney may not
attend a
Rule 35 examination). Justifications advanced for this view include: (1) the need to
conduct the
examination without the distractions of a third person in order to obtain a valid
psychiatric
profile; (2) providing the defendant with a "level playing field" since the plaintiffs
physician
examined the plaintiff without the presence of the defendant's attorney; (3) preventing a
more
adversarial atmosphere during such examinations than is, already, unavoidably present;
(4) the
possible conflict of interests created by the fact that the presence of the plaintifi's
attomey during
the examination makes the attomey a potential witness at trial; and (5) the availability of
other
less obtrusive devices to protect the interests of the plaintiff.
C. Psychological Testing During the Rule 35 Examination
Psychological testing can be particularly useful in employment cases. The MMPI-2 is
routinely allowed during Rule 35 mental examinations. See, e.g., Shirsat v. Mutual
Pharrn. Co.,
169 F.R.D. 68,71-72 (E.D. Pa 1996); Hirschheirner v. ASOMA Corp., 1995 WL
736901, at *4-5
(S.D.N.Y. 1995); Workman v. Carolina Freight Carriers Corp., 65 FEP Cases 1209
(M.D. Ala.
1994); Chaparro v. IBP, Inc., 1994 WL 714369 (D. Kan. 1994). For example, in
Bwger v.
Litton Industries, 1995 WL 736901, 68 FEP Cases 737 (S.D.N.Y. 1995), over the
plaintiffs
claim that such amounted to "harassment," the court ordered the plaintiff in an age and
sex
discrimination case to take the MMPI-2, which it described as a "generally accepted and
commonly used test to obtain a psychological profile and history of the subject." In
Greenhorn v.
Marrion International, Inc., 216 F.R.D. 649 (D. Kan. 2003), the court permitted the
defense
examiner to administer psychological testing (including the MMPI-2 and MCMI-111) as
part of
the Rule 35 examination, but it granted the plaintiffs request that she be given a copy of
the test
answer sheets she completed, the test booklets, and the instructions accompanying the
test
booklets immediately upon completion of the tests.
Only one court has refused to allow such an administration of the MMPI-2. In a peculiar
opinion in which the court referred to psychological tests as "mind control" devices, the
court in

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Usher v. Lakewood Engineering & Manufacturing Co., 158 F.R.D. 41 1 (N.D. 111.
1994), denied
the defendant's motion to have the plaintiff undergo a battery of psychological tests,
including
the MMPI-2, during the Rule 35 mental examination. The Usher Court did not provide
any
extensive analysis in support of its decision; it merely indicated that it felt that the
questions on
some of the tests were intrusive and of limited relevance to the issues in the litigation. At
this
point, however, the Usher decision is in the distinct minority.
An issue that is becoming more frequently litigated is whether the defense examiner
must
identify the psychological tests to be administered at the Rule 35 mental examination in
advance
of the examination. The obvious problem with advance disclosure is that the testing
process
becomes compromised; it is unknown whether the plaintiff rehearsed the answers in
advance,
with the aid of counsel andlor therapist. In Ragge v. MCA/Universal Studios, 165
F.R.D. 605
(C.D. Cal. 1995), the court refused to order the defense examiner to disclose in advance
the
specific psychological tests to be administered.
D. Restrictions on the Scope of the Examination
Most courts remain reluctant to place subject-matter restrictions on Rule 35 mental
examinations. In Stoner v. New York City Bullet Co., 2002 WL 31875404 (S.D.N.Y.
Dec. 24,
2002), the court rejected the plaintiffs request that the defense examiner be restricted
from
inquiring into "events preceding or separate from" the plaintms employment history. The
court
remarked: "[Wle cannot imagine that a competent psychiatrist would ever ignore such
data when
seeking to discern the degree of a subject's emotional dysfunction and thc causes for it."
The
court further rejected the plaintiffs suggestion that the examiner should be limited to
reviewing
prior treatment records as a substitute for a broad-ranging inquiry into the plaintiffs
psychological history during the examination. Finally, the court dismissed the notion that
the
examination should be limited because otherwise it might be stressful for the plaintiff:
We are also not persuaded that the parameters of the proposed examination pose any
threat to plaintiffs well-being, whether or not the prospect of an examination causes him
stress. Plaintiff has chosen to press this lawsuit and to seek relief from defendant, and is
required to submit to reasonable discovery, even when he finds it unattractive or
worrisome.
In Greenhorn v. Marriott International, Inc., 216 F.R.D. 649 @. Kan. 2003), the
court
denied the plaintiffs request that the defense examiner be prohibited from inquiring into

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nonwork-
related sexual matters or sexual matters with co-employees besides the accused
harasser. It
remarked: "This is a sexual harassment case. Plaintiff asserts that the conduct of
defendants has
caused her current mental state and several specific injuries. To validly assess her mental
state
and her injuries, the examiner must have leave to make relevant inquiries." Accord,
Hertenstein
v. Kimberly Home Health Care, Inc., 80 FEP Cases 355 @. Kan. 1999).
In Ny$eId v. Virgin Islandr Telephone Corp., 2001 WL 378858 (D.V.I. Apr. 17,
2001),
the defendant proposed the scope of the Rule 35 examination it sought to be "all physical
and
mental injuries alleged by Plaintiff, as well as pre-existing physical or mental conditions."
The
court found this to be overbroad. It ordered the examination to proceed, but without any
analysis
or explanation it limited the scope to "procedures and testing relevant to Plaintiff's
assertion that
his damages include mental anguish, pain and suffering, and loss of enjoyment of life
including
fi~tured amage there from."
111. THE ROLE OF PERSONALITY DISORDERS IN EMPLOYMENT LITIGATION
Personality disorders can play an important role in employment litigation in two key
respects -- by providing an alternative explanation for emotional distress suffered by the
plaintiff,
and in constituting the primary cause of the workplace incident at issue.
A. Alternative Cause of Plaintiffs Emotional Distress
Personality disorders often can be the cause of emotional distress that may be
misattributed
to workplace events that occur in temporal proximity with those events.
For example, persons with Borderline Personality Disorder frequently suffer depressions
that are not athibutable to contemporaneous events, but rather to the pathological
nature of their
own personality development. Borderlines and other personality disordered individuals
often
repeatedly make poor life choices. They may then suffer depression as a result of failures
in the
areas of interpersonal relationships, academic achievement and vocational success. Other
personality disorders may also cause symptoms and other conditions, such as
depression,
anxiety, marital discord, relationship difficulties, low self-esteem and even suicide
attempts, that
may be misattributed to the workplace.
Where it appears evident that the plaintiff suffers from a personality disorder, it should
be
considered whether the plaintiffs various symptoms of physical and emotional distress
might be
more accurately attributed to such personality disorder as opposed to workplace events.

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B. Catalyst of Many Harassment and Discrimination Claims


Personality disorders are manifest in the workplace - and may be the catalyst of
harassment and discrimination claims - in two ways.
First, personality disorders often cause conflicts between an employee and his or her
coworkers
that lead to claims of victimization by the employee. Such an employee's own
irritability, perfectionism, manipulation of others, or sexually suggestive behavior is often
the
beginning of a chain of events that ultimately leads to a claim of wrongful termination,
harassment, or discrimination. For example, an employee with a Borderline Personality
Disorder
may direct sexually suggestive comments or even blatantly seductive conduct toward a
supervisor and, when hc rcsponds in a friendly if not overtly sexual manner, she may
misinterpret their relationship as being more intimate than professional. But Borderline
personalities tend to view others (particularly those in positions of authority) in extreme
terms as
either "all good" or "all bad." Such an employee may idolize her supervisor until he
criticizes her
work performance and then react with rage and accuse him of misconduct. For example,
in
Ramirez v. Kelly, 1997 WL 223053 (N.D. Ill. 1997), the plaintiff and the defendant,
who was
above her in the chain of command, had an ongoing sexual relationship. After the
plaintiff (who
was diagnosed by the defense psychiatric expert as having a Borderline Personality
Disorder)
learned that the defendant was married, she sued him for sexual harassment, claiming
that she
was raped and coerced to carry on the sexual relationship. This is not an uncommon
outcome
when an employee with a Borderline Personality Disorder becomes involved with a
supervisor.
Second, personality disorders often affect an employee's perception of events in the
workplace. Individuals with personality disorders often interpret events in a distorted
fashion.
This frequently accounts for the diametrically opposite characterization of the very same
event
by plaintiff and defendant in so many employment lawsuits, particularly in "he saidlshe
said"
cases where there are no third-party witnesses to help break the credibility impasse.
Employees
with personality disorders tend to have relatively good contact with reality. Thus, their
accusations of co-worker misconduct, although false, are not obviously bizarre and on
the
contrary may sound quite plausible. Otten, to the personality-disordered individual,
"believing is
seeing." For example, if on account of a personality disorder an employee presumes that
a
colleague is thinking in sexual terms, a variety of behaviors can be construed as sexual in
nature

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- choice of clothing, a friendly smile, an inadvertent touch, a compliment, standing in


close
proximity, an invitation to lunch, glances, references to other relationships - the list is
endless.
Similarly, if one assumes that others are discriminating, this assumption becomes a
selffulfilling
prophecy - discrimination is perceived to be lurking around every comer. Inattention,
inadvertent slights, nonspecific discourtesy, lack of personal concern, random acts of
preference,
and other ordinary events may be construed by the personality disordered individual as
evidence
of discrimination. Sometimes the conduct of a personality-disordered employee will
alienate coworkers,
further buttressing the perception of ostracism. For example, most employees will seek
to avoid a colleague who is always talking of plots or conspiracies, who is prone to angry
outbursts, or who vigilantly seeks to document all of the wrongs done to himself by
others.
Such avoidance will likely be perceived as just further evidence of ostracism and
discrimination.
The following is a brief description the personality disorders most likely to appear in the
workplace and how they are manifest:
Antisocial These employees are often a subject of rule violations and disciplinary
action. They may become involved in altercations or physical violence
with co-workers, or launch disrespectful verbal attacks on a supervisor,
and then claim harassment or discrimination when disciplined for it.
Borderline These employees are adept at creating scenarios leading to their own
victimization. They may act out toward supervisors or co-workers in an
inappropriately sexual manner, and then complain of sexual harassment
when others respond in kind. They may act seductively toward a
supervisor and then become enraged and complain of harassment if
rejection by the supervisor is perceived.
Dependent These employees may endure abuse by supervisors or co-workers, failing
to use internal mechanisms to complain of harassment or discrimination.
Histrionic These employees often dress flamboyantly or provocatively for work.
They may address flirtatious innuendos to supervisors or co-workers and
then react with surprise (and complain of harassment) when one of them
responds to the overture. They tend to be quite excitable and they may
handle stressful situations poorly.
Narci~sivtic These employees may be self-centered and imperious, perceiving personal
slights where none are intended. They may react with rage when faced
with a major career setback such as demotion or termination and respond
with violence or legal action directed at some perceived external culprit.
Their insensitivity to the needs of subordinates may lead to turnover and
their ultimate failure as a manager.
Obsessive-
Compulsive These employees may encounter difficulty interacting effectively with
peers who may find their rigid perfectionism difficult to accept. They will
often fail as a manager as a result of insisting that subordinates conform to
rigid standards.
Paranoid These employees will often find malevolent meaning in innocent actions.

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They may perceive every unfavorable workplace development to be


rooted in discrimination or part of a plot. They are prone to spreading
rumors and gossip, creating dissension and apprehension among coworkers.
C. Personality Disorders in the Courts
Courts have become increasingly willing to consider whether a plaintiffs own prior
psychopathology contributed to the genesis of the workplace dispute being litigated. In
other
words, it may be that the plaintiffs psychological problems (in the form of a personality
disorder) caused the workplace dispute in question, instead of vice versa. Personality
disorders
have been especially prominent in cases involving alleged workplace harassment and
discrimination.
In Davis v. United States Steel Corp. 539 F.Supp. 839 (E.D. Pa. 1982), the court held
that
incidents the plaintiff alleged to be racial harassment were merely legitimate criticisms
and
discipline that the plaintiff misperceived due to an emotional disorder.
In Sand v. George P. Johnson Co., 33 FEP Cases 716 (E.D. Mich. 1982), in rejecting
the
plaintiffs sexual harassment claim, court found that the plaintiff was hypersensitive to
sexual
cues and cited her personality disorder. The court noted that the plaintiff "had an
ambivalent
attitude toward relationships with men and because of her particular personality had a
tendency
to exaggerate male conduct towards her."
In Lowe v. Philadelphia Newspapers, Znc., 594 F.Supp. 123 (E.D. Pa. 1984), a racial
harassment case, the court admitted the testimony of a psychiatrist to show that,
because of a
personality disorder, the plaintiff was oversensitive to ordinary criticism and perceived it
as
harassment.
In Sudtelgte v. Reno, 63 FEP Cases 1257 (W.D.Mo. 1994), the court admitted
psychiatric
testimony in a sexual harassment lawsuit concerning the fact that the plaintiff suffered
from a
paranoid personality disorder that adversely affected her ability to get along with
supervisors and
co-workers and that caused her to feel persistently "picked on." The court held that while
the
plaintiff may have felt subjectively harassed, such was the result of her abnormal
sensitivity
caused by her personality disorder and she could not show that a "reasonable woman"
would
have been offended.
In Pascouau v. Martin Marietta Corporation, 994 F. Supp. 1276 @. Colo. 1998), affd
in relevant part, 185 F.3d 874 (10'~ Ci. 1999)(table), a sexual harassment case, the
court
described at some length the plaintiff's pre-existing psychological problems, many of
which

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arose from the plaintiff's dysfunctional childhood. The court noted, for example, that the
plaintiff still suffered symptoms of Posttraumatic Stress Disorder as a result of an
incident when
she was eight years old in which her mother forced her and her sister into a car at knife
point and
then drove the car off a bridge in a suicide attempt The defense psychiatric expert
testified that
the plaintiff in Pascouau suffered from a pre-existing mixed personality disorder with
borderline
and narcissistic characteristics. The Pascouou court explained the relevance of the
plaintiffs
personality disorder:
The personality disorder is a condition, largely the product of being raised in a
dysfunctional home with dysfunctional parents, in which Plaintiff did not learn how to
solve problems effectively or to communicate effectively with other people. The disorder
leads to the formulation of implausible perceptions and thus diJTerent kinds of
conclusions about what other people's actions and behavior mean as distinguished from
what a reasonable person not subject to such a disorder would perceive them to mean.
Consistent with this disorder, Plaintiff makes judgments that are highly personalized and
overly emotional. She sees things in black and white terms rather than shades of gray
that permit allowances and generally feels whatever goes mng is someone else's fault
and she had no role in the misadventure. Persons with this disorder take no responsibility
for what goes wrong in their lives.
The Pascouau court then went on to discuss the role in the case of the symptoms of
Borderline
Personality Disorder exhibited by the plaintiff:
The essence of the Plaintiff's complaints in this case is the product of Plaintiffs
"splitting," a psychiatric term meaning the patient initially over-evaluates and overvalues
other people, and then, when thc slightest thing goes wrong, demeans those people
and becomes angry and upset with them. The major affective characteristic is anger or
rage. Secondarily, such a person is fearful of being abandoned or not being liked and
does not want to be alone. As a result, the borderline personality very often gets involved
in unsuccessful intimate relationships. Depression frequently accompanies thii
personality disorder because the unsuccessful outcomes of interactions with other people
lead to prolonged disappointment.
The court credited the testimony of the defense psychiatrist, a Dr. Plezak, noting:
When asked if Plaintiffs allegations had any role in the causes of Plaintiffs disorders,
Dr. Plezak replied that the situation is reversed in that the disorders are causes of the
allegations. The incidents Plaintiff related were characterized by misinterpretations of
events and interactions with fellow employees that were far more intense than would be
interpreted by a reasonable person.
In Lanni v. New Jersey,l77 F.R.D. 295 (D.N.J. 1998) the plaintiff filed a motion in
limine to exclude the testimony of the defendant's psychiatrist, who had diagnosed the
plaintiff
as having Narcissistic Personality Disorder, among other conditions. In denying the
motion, the
court stated that it had reviewed the psychiatrist's report, which detailed how the
plaintiffs
psychiatric condition might explain the plaintiffs perception that he was being mistreated
at

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work. The court found that the psychiatrist's testimony would 'hot only assist the trier of
fact in
understanding various mental and cognitive conditions, but will also assist in sorting out
issues
of causation."
In Newberry v. Emf Texas State Universiry, 161 F.3d 276 (5" Cir. 1998) an Americans
with Disabilities Act case, the plaintiffs psychiatrist testified that the plaintiff suffered
from an
Obsessive-Compulsive Personality Disorder. The plaintiff himself had testified that this
disorder
interfered with his relations with others by instilling in him a rigid perfectionism, rigidly
ethical
behavior, and an insistence on addressing all details of his interpersonal relationships.
In Stafford v. Noramco ofDelaware, Inc., 2000 WL 1868179 (D. Del. 2000), the plaintiff
claimed that he was not hired for a job for which he applied on account of his race and
age. In
granting the employer's motion for summary judgment, the court noted that the
defendant had
cited a determination by a Social Security Administrative Law Judge that the plaintiff was
disabled on account of a "severe personality disorder" and that he is "suspicious, hostile,
and
continually feelsvictimized." The court explained: "While this finding, in and of itself, does
not
suggest [the plaintiffJ is unqualified for the position, it suggests why, despite
overwhelming
evidence, he continues to believe Noramco discriminated against him."
Even where personality disorders are not formally diagnosed, courts are increasingly
willing to
consider that a plaintiff may have misperceived innocent events as harassing or
discriminatory.
For example, in Jemvold v. Shalala, 70 FEP Cases 788,792 (D. Md. 199G), the court
observed:
Plaintiffs version of events remains an illusion. Her skewed perception of events,
whether after-the-fact rationalizations borne of a personal sense of failure, or a
contemporaneous self-fulfilling prophesy, is entirely of her own creation. [The plaintiffl
was ready to see sinister motive in any action she perceived as remotely critical of her.
This is unfortunate, for she obviously had promise as a medical researcher. Instead of
trying harder, she sought to lay blame on others.
D. Presentation of Axis I1 Findings
Axis I1 pathology may play a variety of roles in an employment lawsuit, which should be
explained thoroughly by the expert in any written report or testimony on deposition or at
trial.
Examples include:
1. Plaintiffhaspersonal?v disorder that caused her to instigate events of which
she
now complains. This appears sometimes in sexual harassment cases, where an
employee with
Borderline or Histrionic Personality Disorder "gets the ball rolling" with seductive banter
or
conduct, and then complains when co-workers respond in kind. This would be relevant to

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the
defendant's liability, since a plaintiff who "welcomes" harassing conduct cannot later
complain
about it.
2. Plaintiff has a persondity disorder that caused him to misinterpret words or
actions
of co-workers. A Borderline employee may interpret a supervisor's compliment or
friendliness
as a sexual overture. An employee with Paranoid Personality Disorder may interpret
coworkers'
inadvertent failure to invite him to lunch as racially discriminatow or a sign that he is
about to be fired. This would also be relevant to liability, in that the allegations of
discrimination
are a product of the plaintiffs psychological processes rather than of external reality.
3. Plaintiff has a personality disorder that produced symptoms of emotional
distress.
A Borderline, Narcissistic or Obsessive-Compulsive employee may suffer great distress as
a
result of a rejection by a significant other outside of work. Particularly in the case of a
Borderline, the reaction may bc cxtreme, including suicidal gestures or requiring
psychotropic
medication. This would be relevant to damages, as it would provide an alternative
explanation
(besides the workplace event in question) for the plaintiffs objectively-verifiable
emotional
distress.
4. Plaintiff has a personality disorder but was nonetkeless the subject of
unlnwfd
conduet. An Axis I1 diagnosis does not always cany significance in an employment
lawsuit.
Sometimes, even though the plaintiff has a personality disorder, she may still be the
subject of
unlawful treatment and suffer emotional distress as a result that is unrelated to the
personality
disorder.
5. Plaintiff has a personality disorder that exacerbates the emotional distress
suffered as the result of ille~aclo nduct. This is an example of the "eggshell skull"
principle
applied to Axis I1 disorders. An employee with Dependent Personality Disorder may
become
inordinately attached to a supervisor and then be devastated by an unlawful termination,
or a
Bordcrline employee may be exploited sexually by an unscrupulous supervisor and then
attempt
suicide and require hospitalization lollowing the breakup of the tryst. The employer would
be
liable for this additional damage suffered on account of the plaintiffs heightened
susceptibility
to hm.
V. AVOIDING "JUNK SCIENCE"

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A. What Daubert Means


In Daubert v. MerriN Dow PharmaceuticaIs, Inc., 113 S.Ct 2786 (1993), the U.S.
Supreme Court held that a court must ensure the reliability of the methodology
underlying
scientific expert testimony prior to admitting it into evidence. The Court obsewed that
Rule 702
of the Federal Rulcs of Evidence provides that the subject of an expert's testimony must
be
"scientific knowledge." It emphasized that the word "knowledge" connotes more than
"subjective belief or unsupported speculation." While maintaining that the inquiry as to
the
reliability of an expert's theory and methodology is a flexible one, the Court set forth four
indicia
of such reliability:
Whether the theory is capable of being (and has been) tested;
w Whether it has been subjected to peer review and publication;
s The known rate of error; and
Whether the theory or methodology meets with general acceptance in the relevant
scientific community.
The trial court must determine the admissibility (and hence the reliability) of scientific
evidence at a preliminary hearing outside the presence of the jury. In Kumho Tire Co, v.
Carmichael, 526 U.S. 137 (1999), the Supreme Court extended the Daubert reliability
requirement to expert testimony involving nonscientific "technical" evidence.
On December 1, 2000, the Advisory Committee on Evidence Rules amended Federal
Rule of Evidence 702 in light of Daubert and Kumho Tire. Revised Rule 702 provides:
If the scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2)
the
testimony is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.
The amended rule essentially codifies the principles enunciated in Daubert and Kumho
Tire,
requiring that expert testimony be both reliable and helpful to the jury in order to be
admissible.
Rule 702 now formally empowers the trial judge to act as gatekeeper-screening the
expert
testimony to determine if it is sufficiently reliable and helpful to the trier of fact. The role
of the
trial court as gatekeeper diicrs from the rolc of the trier of fact because the court's focus
is on
the "principles and methodology" of the expert's testimony, not on whether or not the
conclusion
is correct.
B. Applications of Daubert to Mental Health Expert Testimony in Employment
Cases
Daubert may apply to a variety of forensic issues in an employment case. Obviously,
counsel will want to ensure that his or her expert avoids these problems while being alert
for

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their presence in the work of an opposing expert.


1. The Expert's Training and Experience
A mental health expert's opinion may be inadmissible if the expert lacks the pmper
clinical training or the requisite clinical experience in the subject area. Courts have
applied
Dauhert specifically to the qualifications of a proffered psychological expert. In Isley v.
Capuchin Province, 877 F. Supp. 1055 (E.D. Mich. 1995), the court set forth two
prerequisites
that a mental health expert must meet before being found qualified to testify. First, the
expert
must demonstrate that he or she has education and training in the discipline at issue
"sufficient to
give himher expertise or special knowledge such that any opinions that the expert has
will be of
assistance to the jury in its fact-finding responsibilities." Second, the expert must show
that he
or she has personal experience in treating patients with the condition at issue. For
example, a
psychiatrist who has never veated patients with personality disorders would have the
requisite
training and education but would lack the requisite clinical experience to qualify to give
an
opinion as to whether a plaintiff in an employment lawsuit does or does not suffer from a
personality disorder. See also Bleek v. Supervalu, Inc., 95 F.Supp.2d 1118 @. Mont.
2000)
(court refused to allow lwo licensed mental health counselors to testify that the plaintiffs
termination caused an exacerbation of his prior PTSD that caused him to become totally
disabled, remarking that neither of the counselors "is a medical expert qualified to testify
that
[the plaintiffs] termination caused him to become 100% disabled").
Perhaps the most striking example of the disqualification of a social worker's testimony
is found in Gilbert v. DaimlerChrysler Corporation, 470 Mich. 749, 685 N.W.2d 391
(2004).
The Michigan Supreme Court overmmed the largest single plaintiff sexual harassment
verdict
($21 million) in history; a verdict that was obtained on the basis of extensive testimony
by a
social worker that sexual harassment caused a permanent change in the plaintiffs '%rain
chemistry" that would cause her to relapse into substance abuse and depression and
ultimately
would lead to her untimely and excmciating death. The social worker, a Mr. Hnat,
testified that
he had read medical records prepared by other medical professionals, and that those
records read
like a "preview of [the plaintiffs] death certificate." He further testified that the plaintiffs
body
was beginning to "decompensate" and that she was "clearly dying." The Michigan
Supreme
Court criticized both the trial court and the appellate court below for failing to play any
"gatekeeper" role whatsoever so as to prevent the introduction of a "faux 'medical'

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opinion of an
individual who lacked any medical education, experience, training, skill or knowledge."
2. Failure to Utilize Accepted Diagnostic Protocols
An expert's citing Daubert or Kumho Tire to justify a departure from mainstream
diagnostic protocols and principles on the ground that the cases no longer absolutely
require that
an expert's theories be generally accepted by the relevant scientific community would be
misplaced. Kumho Tire still requires that an expert's methodologies be reliable in order
to be
admissible, and as noted above, diagnosis is an inherently scientific process. Where an
expert's
chosen methodologies are not be based on the scientific method and lack sufficient other
indicia
of reliability, the Daubert and Kumho Tire standards will not be met. Revised Rule 702
requires
that expert testimony be "the product of reliable principles and methods that are reliably
applied
to the facts of the case." Although the "principles" and "methods" applied in forensic
psychiatry
and psychology are different than those applied in the hmd sciences, the requirement of
reliability is no less applicable. See Turner v. Iowa Fire Equipment Co., 229 F.3d
1202, 1207
th . (8 Clr. 2000)("Daubert ensqres that all expert testimony is scientifically reliable
before being
submitted to the jury. A treating physician's expert opinion on causation is subject to the
same
standards of scientific reliability that govern the expert opinions of physicians hired solely
for
purposes of litigation"). Other courts have reached similar conclusions. See, e.g.,
Amorgianos v.
National R.R. Passenger Corp,, 303 F.3d 256 (2d Cir. 2002); Munafo v. Metro.
Tramp. Auth.,
2003 WL 21799913 (E.D.N.Y. Jan. 22,2003).
In employment cases, experts most frequently fail to use accepted diagnostic protocols in
two ways: (1) by failing to apply the diagnostic criteria set forth in the DSM and (2) by
failing to
apply principles of differential diagnosis.
(a) Failure to Use the DSM. Sometimes experts fail to follow the DSM in rendering
a diagnosis. Instead, they employ subjective, idiosyncratic diagnostic criteria not found in
any
manual. To the extent an expert's diagnosis of a plaintiff fails to conform with DSM-IV-TR
criteria, there is an issue as to whether that diagnosis will be admissible under either
Daubert or
Kumho Tire. But see Mancuso v. Consolidated Edison Co. of New York, 967 F.
Supp. 1437
(S.D.N.Y. 1997)(testimony of expert diagnosing a learning disorder using different criteria
than
those found in DSM-IV admitted).
One common situation in which a plaintiffs expert may fail to adhere to standard
diagnostic protocols occurs where the expert evaluated the plaintiff prior to the

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commencement
of litigation, with an eye toward prescribing treatment rather than toward giving
testimony in
court. For example, in Gier v. Educational Service Unit No. 16, 845 F. Supp. 1342 (D.
Neb.
1994), affd, 66 F.3d 940 (8th Cir. 1995), the court excluded expert testimony from
various
mental health professionals seeking to demonstrate that the plaintiffs had been sexually
and
emotionally abused. The court explained:
Plaintiffs have failed to demonstrate by a preponderance of the evidence that their
experts' methodologies for evaluating the plaintiffs in this particular case are reliable for
the investigative purposes plaintiffs now seek to use them. The witnesses all testified
that
their purposcs in evaluating plaintiffs were for the provision of therapy, not investigation.
The methods used here may well have been sufficiently reliable for purposes of choosing
a course of psychotherapy for these disturbed children, a course which must, to some
extent, rely upon perception as well as reality, and upon the subjective reports of parents
and others. However, the methodologies have not been shown to be reliable enough to
provide a sound basis for investigative conclusions and confident legal decision-making.
The Gier court quoted Daubert for the point that "scientific validity for one purpose is
not
necessarily scientific validity for other, unrelated purposes." In Neely v. MiNer Brewing
Co., 246
F.Supp.2d 866 (S.D. Ohio 2003), the court excluded the testimony of an
attorneyllicensed social
worker that the plaintiff suffered from PTSD as a result of race discrimination, even
though she
purportedly used the DSM criteria in reaching a diagnosis. The plaintiffs discrimination
claim
was based on her employer not allowing her to return to light duty work after an injury
when
Caucasian employees were allegedly permitted to do so, vandalism to her car, and racial
remarks
by a supervisor and co-workers. The social worker opined that the plaintiff met all of the
DSMN
requirements for a PTSD diagnosis, but the court held that she mis-applied the DSM-N
criteria With respect to the stressor criterion, she opined that the name-calling and
vandalism,
plus incidents of being asked to fix a dangerous machine and some inappropriate
touching by a
non-employee that wcre not at issue in the lawsuit, all "coalesced to make [the plaintiff]
feel
threatened, unprotected, and devalued." With respect to the persistent re-experiences
criterion,
the proffered expert said of the plaintiff: "She relives the inequities on a daily basis, she
dreams
of being raped and of having co-workers taunt her and tell her that she invited it. And
make no
mistake about it - Ms. Neely has been raped - of her ideals, of her trust in others and of

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her
ability to obtain pleaswe from her life." The Neely court held that the proffered expert
could not
rely on incidents that were not at issue in the lawsuit to support a PTSD diagnosis. When
those
incidents were disregarded, all that was left was some name-calling and tire-slashing,
which the
court maintained did not amount to "an obvious threat to physical integrity or threat of
serious
injury" so as to justify a PTSD diagnosis using the DSM-IV criteria.
(b) Failure to Conduct Dzxerentiui Diagnosis. It is fundamental principle of
forensic psychiatry and psychology that any mental evaluation must include an
exploration of
significant prior and concurrent events in the plaintiffs lifc to determine whether there
may be
an alternative cause -- besides the alleged acts or omissions of the defendant - for the
mental
condition at issue in the litigation. Specifically, the examiner must probe the plaintiffs
prior
psychological history for evidence of preexisting mental disorders (for example, bipolar
disorder
or chronic depression), personality disorders, or significant prior traumas such as sexual
assault
or childhood sexual abuse. The examiner also must explore whether concurrent stressors
exist in
the plaintiffs personal life that may have affected that person's psychological condition,
such as
marital problems or substance abue.
The examiner must not only ask questions of the plaintiff about these matters during the
clinical interview but also review all available records pertaining to the plaintiff. This
records
review should include medical and psychological records, employment records, criminal
records,
divorce records, and school records. Such a records review is essential because the
plaintiffs
own account of his or her history may at best be subject to memory lapses, and at worst
be
intentionally misrepresented.
Only after a comprehensive review of the plaintiffs prior psychological history and
potential concurrent stressors can a clinician render an objective opinion as to the
causation of
the plaintiffs current condition. The expert must rule out preexisting mental or
personality
disorders, prior traumas, and concurrent s&ssors as potential causes of the plaintiffs
current
condition to render any scientifically valid opinion that sexual harassment caused the
plaintiffs
cwrent psychopathology.
Numerous courts have excluded expert testimony under Dauber? because the expert
failed to conduct such a process of differential diagnosis. For example, in In re Paoli

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Railroad
Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994), the Third Circuit affmed exclusion of
expert
testimony of two physicians who failed to employ differential diagnosis. The wurt
remarked that
"at the wre of differential diagnosis is a requirement that experts at least consider
alternative
causes -- this almost has to be true of any technique that tries to find a cause of
something." The
court went on to explain:
Defendants' experts explained that a reliable differential diagnosis generally requires a
physical examination of the patient, a review of medical records, taking a history and
conducting of laboratory tests, and always requires careful consideration of alternative
causes. We agree with the defendants that performance of physical examinations, taking
of medical histories, and employment of laboratory tests all provide significant evidence
of a reliable differential diagnosis, and that their absence makes it much less likely that a
differential diagnosis is reliable.
The Paoli court noted that a clinician does not have to employ all these techniques for a
differential diagnosis to be reliable. The court was emphatic, however, that a medical
expert may
not rely simply upon a plaintiffs own self-report of symptoms and causation. It affirmed
the
exclusion of the testimony of one physician who had simply given the plaintiffs a written
questionnaire and based his diagnosis on the answers given by the plaintiffs. It described
such
questionnaires as "an unreliable source of information." Other courts similarly have
condemned
plaintiffs' experts' failure to employ differential diagnosis to take into account the
potential
impact of alternative psychosocial stressors on a plaintiffs mental condition. E.g.,
Munufo v.
Metropolitan Transportation Authority, 2003 WL 21799913 (E.D.N.Y. 2003)(plaintiffs
expert
psychiatrist's testimony excluded for failure adequately to account for alternative
stressors);
Mancuso v. Consolidated Edison Co., 967 F. Supp. 1437 (S.D.N.Y. 1997) (failure of
plaintiffs'
expert to employ differential diagnosis "is particularly disturbing in light of the common
nature
of many of the plaintiffs' complaints"); Alberts v. Wickes Lumber Co., 69 FEP Cases
304, 306
(N.D. Ill. 1995) (condcmning plaintiffs expert's acceptance of plaintiffs version of events
as
true and failing to consider other possible causes of plaintips condition). See also
Boravick v.
Shay, 68 F.3d 597,609 (2d Cir. 1995) (in part because there was no record of the
procedures that
the plaintiffs expert used, the expert's testimony was excluded because the court had no
means,
independent of the expert's testimony, to determine whether or not appropriate

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methodology was
applied).
Experts who simply diagnose a plaintiff as suffering from one or more mental disorders
based upon the plaintiffs self-report of symptoms and then endorse the plaintiffs view
that
workplace events were the sole cause of the emotional difficulties, without conducting
any
independent inquiry into alternative causation, therefore are highly vulnerable to attack
under
Rule 702.
3. Mis-use of Psychological Testing
Properly administered and interpreted, psychological testing can be quite helpll in an
employment case if properly administered and interpreted by plaintiffs' clinicians. Many
"tests"
relied upon by experts in litigation are not tests grounded in the scientific method,
however, but
merely inventories of symptoms. For example, in McGuire v. City of Santa Fe, 954
F.Supp. 230
(D.N.M. 1996), the court barred admission of the "Lost Pleasure of Life Scale" developed
by the
plaintiffs expert, noting that it only produced data that was no more reliable than that
"which
might be drawn out of a hat."
Improper methods of administration and interpretation include the following:
Unsupervised administration of the test (for example, having the plaintiff
complete the test at home);
Careless scoring of tests;
Failure to follow generally accepted protocols for scoring the tests (for example,
failure to use the Exner System in scoring the Rorschach Ink Blot Test);
Failure to take account of the various validity scales on the MMPI; and
Taking isolated portions of a test out of context (for example, concluding that a
person is depressed based upon his or her endorsement of a few items indicating
depression).
A clinician's failure to use tests that have been validated, or a failure to properly
administer and interpret those tests that have been validated, would render any opinion
derived
from those tests suspect and likely inadmissible under the Supreme Court standard set
forth in
Dauhert.
C. Special Issues
1. 'LPosttraamatic Stress Dishonesty*
A PTSD diagnosis is coveted by many plaintiffs looking to cash in on their workplace
misfortune. An expert witness' attaching a PTSD label to a plaintiff (whether or not any
valid
scientific basis exists for doing so) suggests to a jury that the plaintiff has suffered
horrible
torment akin to that suffered by torture victims and prisoners of war. Invoking the term
"trauma" to characterize most of the workplace events that lead to employment lawsuits,
however, is often grossly overstating the case.
Key to a diagnosis of PTSD is a traumatic stressor. ATM-IV-TR defmes the Criterion A

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stressor
in the following terms:
A. The person has been exposed to a traumatic event in which both of the following
were present:
(1) the person experienced, witnessed, or was confronted with an event or events that
involved actual or threatened death or serious injury, or a threat to the physical integrity
of self or others
(2) the person's response involved intense fear, helplessness, or horror.
Scholars who have studied and written about PTSD stress that a traumatic stressor must
be dramatic and severe in order to ju5tify a PTSD diagnosis. As one commentator has
noted:
"Most clinicians agree that the stressor event is not an inconsequential happening but
represents
a realistic threat to life or limb." C.R. Scrignar, Post-Traumatic Stress Disorder: Diagnosis,
Treatment, and Legal Issues 16 (3d ed. 1996). DSM-IV-TR sets forth a list of examples of
stressors that would qualify under Criterion A. It includes military combat, violent
personal
assault (sexual assault, physical attack, robbery, mugging), being kidnapped or taken
hostage,
being the victim of a terrorist attack, torture, incarceration as a prisoner of war or in a
concentration camp, natural or manmade disasters, severe automobile accidcnts, being
diagnosed
with a life-threatening illness, and observing the serious injury or unnatural death of
another
person due to violent assault, accident, war or disaster.
Nowhere on the DSM-W-TR list of qualifying stressors for PTSD is being fired, or being
the victim of employment discrimination or sexual harassment. In fact, DSM-N-TR
expressly
cautions that "being fired" is not a sufficiently extreme stressor so as to qualify for a
PTSD
diagnosis. As Scrignar observes, although "PTSD is a favorite diagnosis for some
clinicians" in
sexual harassment cases, 'wople claiming sexual harassment may not meet the stressor
criterion
for PTSD. It is difficult to establish that an improper sexual advance was associated with
actual
or threatened death or serious injury." Two other prominent commentators agree:
In sexual harassment casa, most triggering incidents simply do not constitute
lifethreatening
events. Although some workplace harassment involving sexual coercion,
unwanted touching, or even circumstances involving humiliation before coworkers may
fit within the scope of the current PTSD diagnostic criteria, it is probably inappropriate to
apply the PTSD diagnosis to most sexual harassment cases. Overuse of the PTSD
diagnosis in this context adds no diagnostic precision and does little to advance the
understanding of the finder of fact of the plaintiWs emotional reactions.
William E. Foote & Jane Goodman-Delahunty, Evaluating Sexual Harassment 13 1 (2005).
In an attempt to circumvent the requirement that a triggering stressor be life-threatening
and severe in order to support a PTSD diagnosis, some plaintirfs' experts seeking to
justify a
PTSD diagnosis in harassment and discrimination cases have fashioned the concept of

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"cumulative stressor PTSD." Under this notion, while relatively minor stressors such as
namecalling
or unwanted requests for would not themselves qualify for a PTSD diagnosis, a
combination of such incidents over some period of time might qualify. This is not valid.
Cumulative stressors might be relevant to certain types of employees (police officers and
emergency medical technicians, for example) who regularly witness death and serious
injury,
and who might not develop PTSD as a result of one or a few such exposures but may
develop
PTSD as a result of multiple exposures over time. Each such incident involving death or
serious
injury would itself qualify as a Criterion A stressor, however. To allow a collection of
nontraumatic
stressors to qualify under Criterion A would run counter to the notion of PTSD as a
response to extraordinary and life-threatening trauma.
In spite of the fact that employment termination, discrimination and most forms of
harassment do not qualify as triggering stressors for PTSD within the DSWs defmition,
PTSD
remains a very popular diagnosis in employment lawsuits today. In spite of any lack of
scientific
basis for it, plaintiffs in employment lawsuits are routinely diagnosed with PTSD following
nontraumatic
incidents, in most cases in the ostensible hope that the jury will award a larger verdict
to a victim of PTSD than to just a victim of a bad break.
2. "Social Framework Evidence"
In spite of the impossibility of ascribing a standardized measure of emotional hann that
might be presumed to flow from adverse workplace events, a new breed of expert
testimony has
appeared recently that purports to attempt to do just that. In recently published articles,
social
psychologist Louise Fitzgerald begins by positing that discovery into the existence and
amount
of a plaintiffs mental suffering serves no purpose other than further abuse of the plaintiff.
She
then proposes "social framework" evidence - based upon purportedly empirical studies of
the
consequences of harassment - as a solution. As she puts it: "This type of evidence is by
now
suflicicntly strong that if the facts are proved, one has, in effect, also proved the
damages -
without exposing the plaintiff to the invasive procedure of a mental examination." See
Louise F.
Fitzgerald, Sexual Harassment and Social Justice: Reflections on the Distance Yet
to Go, 58
Amer. Psychologist 915 (2003); Louise F. Fitzgerald, A New Framework for Sexual
Harassment
Cases, Trial 36 (Mar. 2003).
There are at least two flaws in this approach, however. The first is that the data from
which Fitzgerald would conclude that sexual harassment always causes emotional harm
has been

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held by at least one court to be so unreliable as to fail to meet the standards set by the
Supreme
Court in Dauhert.
In EEOC v. Dial Corp., 2002 WL 31061088 (N.D. Ill. 2002), Dr. Fitzgerald attempted to
use the results of a study she conducted to support her opinions that the employer's
workplace
was permeated by a high level of sexually hostile behavior and that the environment
caused a
variety of emotional and health-related problems for the women who encountered them.
Dr.
Fitzgerald's opinions relied heavily upon a testing instrument she developed, callcd the
"Sexual
Experiences Questionnaire" (SEQ), which purported to measure the survey respondent's
"offensive sex-related experiences at work." The defendant filed a motion in limine to
exclude
Dr. Fitzgerald's opinions based on the SEQ on the ground that the instrument is so
inherently
flawed it cannot satisfy the requirements of Rule 702. Specifically, the defendant argued
that:
(1) the SEQ is not a valid measure of unlawful sexual harassment; (2) the SEQ's survey
sample
size is too small to permit the survey findings to be generalized to the entire relevant
population
of female employees at Dial; (3) the survey failed to contine its focus to the relevant
time frame;
and (4) the survey was biased.
With respect to lack of validity, the defendant attacked the SEQ as not measuring sexual
harassment as defined by Title VII of the Civil Rights Act of 1964, but rather as defined in
broader social science terms. The wurt maintained that the fact that the SEQ does not
measure
"legal" sexual harassment does not necessarily affect its validity, but the fact that the
SEQ
measures something other than "legal" sexual harassment does raise the possibility of
jury
confusion. Thc court went on to find, however, that in any event, the SEQ was not
capable of
measuring what it claimed to measure, i.e., offensive sex-related experiences at work.
The court
focused its criticism on the SEQ's design; specifically on the manner in which it posed
questions
to its respondents. The questionnaire asked: "During the time you worked at Dial
Corporation,
have any of your supervisors or coworke rs..." and then it listed a number of items such
as "told
dirty stories or jokes?" Accompanying each item was a scale ranging from 0 to 4, such
that 0 is
associated with the response "never," 1 with "once or twice," 2 with "sometimes," 3 with
"often," and 4 with "many times." Significantly, the SEQ failed to instruct respondents to
limit
their responses to incidents that were offensive or that were performed by male

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supervisors or
coworkers, which means that several SEQ items could be answered with "3" or "4" by
respondents who may actually have experienced nothing offensive at work. For example,
a
respondent who enjoyed joking with her female coworkers "many times" would enter a 4
on the
first item of the SEQ, even though she would not likely have viewed this activity as an
offensive
scx-rclated expericnce at work.
Another question on the SEQ asked if a supervisor or coworker tried to get the
respondent to "talk about personal things." Thus, a respondent who was asked "how is
your
family?" could be characterized as a victim of sexual harassment because accumulation
of even
a single point on the SEQ means that the respondent experienced "sexual harassment"
as Dr.
Fitzgerald defmed the term. This, remarked the court, "raises serious doubts about the
validity of
her analysis and her conclusions."
The Dial court also took issue with the generalizations drawn by Dr. Fitzgerald from her
findings. For example, the defendant argued that the number of respondents to the SEQ
was too
small to warrant drawing conclusions about the experiences of all of the relevant
employees.
Nonetheless, Dr. Fitzgerald asserted that the SEQ's results "provide strong inference [sic]
that
the working environment at Dial Aurora had a pervasive pernicious effect on the women
who
worked there." As the court recognized, however, while this statement refers to a
pervasive
effect upon "the women who worked" at Dial, conclusions derived from the survey results
cannot validly be extended beyond the subset of women who completed the survey;
generalization of those conclusions to all women in the workplace is not appropriate.
The Dial court further criticized Fitzgerald's study for failing to focus on a relevant time
frame. As the court recogtuzed, there was no limitation in the study of a time frame for
occurrences of sexual events. Given that the average tenure of the survey respondents
was 14
years, the court noted the possibility that many respondents may have included
descriptions of
events and experiences in their surveys that occurred beyond the time frame relevant to
the
litigation. This feature of the study, combined with the response options available to the
respondents who completed the SEQ, interferes with the survey's reliability in yet
another way,
according to the court:
For example, a respondent who worked at Dial for two years and who heard a "dirty
joke" once per year would select the "once or twice" response option on the appropriate
portion of question number 35. An employee who worked at Dial for 15 years and who
heard a "dirty joke" once per year would likely select "many times" in response to the
same question, even though she experienced the jokes at the same rate as the other

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respondent. This creates an "artifact" that causes persons who worked at Dial for longer
periods of time to present higher SEQ scores. This artifact interferes with the survey
data's ability to describe the rate at which the respondents experienced the "harassing"
events listed in the survey.
Finally, the Dial court highlighted several sources of bias in Dr. Fitzgerald's study. For
one thing, the court attacked Dr. Fitzgerald's inclusion of a large number of plaintiff class
members in the swey sample. As the court recognized: 'The class members are highly
motivated to return surveys that enhance their chance for recovery, and it seems that
they may
have done precisely that." It noted that the difference between the class members'
responses and
the other employees' responses was pronounced.
As the Dial court recognized, the social science definition of harassment (to the extent
social scientists can even agree upon one) is much broader than the legal definition. A
respondent's answering even one question on Fitzgerald's SEQ is enough for Dr.
Fitzgerald to
conclude that the respondent has experienced sexual harassment -- even if that one
positive
response relates to non-offensive joking by same-sex co-workers or a supervisor asking
an
employee about her family. Thus, Dr. Fitzgerald's SEQ, which she touts as "thc most
psychometrically sound measwe of its type," was not only ruled scientifically defective
by the
Dial court, it utilizes a definition of harassment that is not consistent with the legal
definition.
The second flaw in Dr. Fitzgerald's "social framework" approach is found in her own
admission that the harm flowing From sexual harassment is not homogeneous. She
concedes that
"harassment is not a homogeneous experience and harm to the victim will vary
depending on
what was done to her, by whom, and for how long ...." Dr. Fitzgerald cites studies
indicating
that sexual harassment victims report experiencing such wideranging symptoms as
gastrointestinal disturbances, jaw tightness and teeth grinding, nervousness, binge
eating,
headaches, inability to sleep, tiredness, nausea, loss of appetite, weight loss, and crying
spells ... anger, fear, depression, anxiety, irritability, lowered self-esteem, feelings of
humiliation and alienation, and a sense of helplessness and vulnerability. To this list can
be added disruption of sexual adjustment (e.g., loss of desire, flashbacks during
intercourse), and diff~cultiesw ith partners, families and significant others.
Dr. Fitzgerald also notes recent research linking harassment with "major depression,
posttraumatic stress disorder, substance abuse and eating disorders." In addition, Dr.
Fitzgerald
correctly observes that "various personal experiences, characteristics, and resources can
exacerbate or bufk the effects of a stressor, leading to more or less severe outcomes
than would
otherwise occur.
It is unclear from Dr. Fitzgerald's articles just how much of this symptomatology the
courts are supposed to presume has been experienced by the "typical" victim of
harassment. Dr.

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Fitzgerald admits that "there will always be some role for forensic evaluations,
particularly in
egregious or complicated cases." One might wonder just how many cases are likely to be
conceded by plaintiffs' wunsel as not being "egregious or complicated."
"Social framework" evidence therefore is not a viable substitute for forensic evaluations
in employment lawsuits in which emotional damages are sought. The empirical data
upon which
such evidence is based may not be sufficiently reliable to satisfy the Dauberr standard.
Moreover, even if reliable data could be derived regarding the incidence of harassment
and
discrimination and their consequent effects, the effects vary so widely from victim to
victim that
reliable generalizations are impossible and a specialized forensic inquiry will still be
necessary in
virtually every case.

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NEXT CASE LAW

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What is the Remedy for American Torture?


By Fionnuala N Aolin
Tuesday, November 25, 2014 at 9:17 AM
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Asst. Sec. of State for Democracy, Human Rights, and Labor, Tom Malinowski stated to
the UN Committee on Torture two weeks ago that:
A little more than ten years ago, our government was employing interrogation
methods that, as President Obama has said, any fair-minded person would
believe were torture. At the same time, the test for any nation committed to
this Convention and to the rule of law is not whether it ever makes mistakes,
but whether and how it corrects them.

But what does correction look like? What obligations of repair follow from the
acknowledgement that torture was routinely and consistently practiced by the United
States? It is very clear that the Convention Against Torture (Article 14) as well as the
collective jurisprudence of regional and international courts require that reparations
follow from harm committed in breach of human rights treaty obligations. At the same
hearings, Acting Legal Advisor to the State Department, Mary McLeod claimed that the
United States has taken important steps to ensure adherence to its legal obligations.
These include the creation and enforcement of laws and processes to strengthen the
safeguards against torture and cruel treatment including Executive Order 13491. We are
told that Army Field Manual Rules on Interrogation are now being fully enforced, and that
there is great transparency in interrogation procedures, though with some ambiguity
whether these procedures apply outside the territory of the United States. There is one
resounding silence. In the context of torture committed at Guantanamo Bay and in other
detention sites across the world not one word emerged from the delegation on what
direct and specific obligations of reparation were owed to those persons who experienced
torture at the hands of agents of the United States. This gap was directly addressed by
Jens Modvig, the Country Rapporteur who asked the delegation to clarify:
how many victims of torture have legally pursued and successfully obtained
effective remedy for torture during U.S. custody within and outside U.S.
territory?

In parallel, the US position on prosecution maintains a curious silence on the salience of


accountability for torture post 9/11, though prosecutions in other contexts against
international recognized torturers is touted as evidence of a commitment to broadly
based accountability. In the midst of this resounding silence, my comments focus on
what the Committee can and should expect of the United States with respect
to reparations for Guantanamo Bay detainees and others ill-treated in black sites.
A starting point to addressing why the United States has an obligation of reparations is to
recall why remedies exist for human rights violations under international treaty law.
Reparations exist because they provide a concrete means to show a desire for non-
repetition, to give redress to persons who have been harmed and to individually confirm
meaningful condemnation in the aftermath of grievous harm to a human being. Recall
that the ICJ has held that the power to afford reparations is implicit in jurisdiction to
hear a case, as a necessary concomitant to deciding disputes. Simply put, reparations
are necessary to repair the legal injury.

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The practice of regional human rights bodies gives us useful insights into what might be
expected of the United States for violation of the CAT. It is fair to say that the European
Court of Human Rights (ECtHR) has historically taken a more conservative approach to
the provision of remedies. The form of remedies for torture has generally followed the
model of direct financial compensation to the individual who has been harmed, the
payment of lawyers fees and the admonition not to breach again. More recently however,
the Court is adopting a broader approach to remedies and now proactively indicates the
measure a violating state should take to prevent torture recurring. So for example, in
early cases like Soering v. United Kingdom (1989)involving breach of the torture
prohibition in a decision to extradite a German national facing the death penalty to the
United Statesneither pecuniary nor non-pecuniary damages were awarded to the
victim. However costs and expenses of 26,782.80 were sustained. In later cases such
as Ribitsch v. Austria (1991)involving ill-treatment in Federal Police Authority custody
in Viennathe ECtHR specifically requested that similar violations do not occur in the
future. In the past two decades a robust application of non-pecuniary damages both to
applicants and their families can be observed in torture cases such as Kurt v. Turkey
(1998). Here non-pecuniary damages of 15,000 were awarded to the applicants son
and 10,000 to the applicant; in Selmouni v. France (1999) 500,000 FRF were awarded
in non-pecuniary damages for torture in police custody; and in Taz v. Turkey (2000)
20,000 were awarded in non-pecuniary damages following the enforced disappearance
of the applicants son and 10,000 in respect of the applicant for torture in the context of
disappearance. Recently, in the context of rendition cases from Poland (here), the Court
has confirmed that Poland not only had to pay direct compensation to those rendered
but the government was required to take proactive institutional action to protect them.
The emerging scope of an expansive remedies approach for systematic violations of non-
derogable rights is trenchantly illustrated by a series of cases in which the United
Kingdom was found in violation of another non-derogable Convention rightthe right to
life (Article 2). Spanning almost two decades, these cases included deaths resulting from
the exercise of force against members of paramilitary organizations (e.g. McCann v.
United Kingdom (1995), Jordan v. United Kingdom (2001), McKerr and Others v United
Kingdom (2001), and McCaughey and Grew v. United Kingdom (2013) and the Court
determined that a range of institutional measures had to be taken in order to provide
Just Satisfaction to those killed and their families. These measures include positive and
procedural obligations for the state and its agents that addressed planning, training,
oversight, investigation, prosecution and civil remedies. The obvious precursor to these
institutional remedies was individual compensation to all those whose families members
were killed by the use of force violating the right to life provisions of the Convention.
The UK precedent and specifically the broad package of measures agreed by the
Council of Europe to firmly address and remedy violations of the right to life occurring
during the conflict in Northern Ireland provides one useful model to conceptualize
what US reparations for torture practices post 9/11 might look like in practice.
The Inter-American Court (IACHR) has been exceedingly robust in its provision
of reparations for torture, both with respect to the ability to order compensation and
force other remedial measures. In Aloeboetoe et al. v. Suriname (1990) where multiple
violations including violation of the right to humane treatment were sustained, the Court
ordered collective reparations for a wide range of family and village members including
individual payments to multiple families. The Court ordered the creation of two trust
funds and the establishment of a foundation for the entire harmed community. Justices
stipulated that this financial instrument should not be subject to national taxation rules.

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The Court ordered the state, as an act of reparation, to reopen the school located in the
area where the harms took place with an obligation to staff it with teaching and
administrative personnel.
It is important to be aware that the IACHR has adjudicated cases in which the individuals
tortured have been alleged (by the state) to be members of paramilitary/non-state
organizations. In these torture cases the Court has been reliably clear that the imputed
political status of those subject to exceptional detention regimes is not a basis to justify
torture. Remedies in these cases show that the state does not get deferential treatment
simply because of the (alleged) context in which the harms occurred whether a situation
of armed conflict or terrorism. Thus, for example, in Loayza Tamayo v. Peru (1998) the
victim was an alleged collaborator of the subversive group Shining Path. She was
detained for ten days and subjected to torture, cruel and degrading treatment. The
reparations required by the Court included:
1. A sum equivalent to the salaries that the victim ceased to receive between the
time she was detained and the date of the decision by the Court.
2. A lump sum for the victims medical expenses during her incarceration.
3. A sum corresponding to the travel expenses incurred by the next of kin to visit the
victim while she was held in detention.
4. An amount corresponding to the likely future medical expenses of the victim and
her children.
As for compensatory damages Peru was ordered to pay a total of US$167,190.30 for the
victim: $20,000 for the victims parents; $30,000 for the victims children; $18,000 for
the victims brothers. Importantly, and relevant as comparison practice in relation to
correction for torture practices were the institutional reform and measures required to
prevent recurrence of violence by the IACHR. Peru was required to adopt all internal legal
measures necessary to adapt Decree Laws 25,475 (Crime of Terrorism) and 25,659
(Crime of Treason) to conform to the ACHR. Peru was mandated to investigate the facts
in the applicants case, and identify and punish those responsible for those acts, and
adopt all the necessary domestic legal measures to ensure that this obligation is
discharged. The Justices also required the State to take all measures necessary to re-
instate Ms. Loayza-Tamayo in the teaching service of the University from which she had
been fired. This reinstatement was also based on the understanding that the amount of
her salaries and other benefits would be equal to the pay she was receiving for the
teaching at the time she was detained, with appreciation to the date of the date of the
IACHRs decision. Down to the specifics, Peru was required to guarantee Loayza-Tamayo
her full retirement benefits, including those owed for the period that followed
her detention.
Another relevant case as we survey the international jurisprudence for torture is that of
Cantoral Benavides Case v. Peru (2001). This case is valuable because the remedies
given reflect the Courts understanding of the long term medical needs of the Luis Alberto
Cantoral Benavides following torture experienced in custody. Cantoral Benavides was a
20 year-old University biology student when he was arrested. He was detained for four
years and after release he experienced ongoing physical and psychiatric complaints.
Reparations to Cantoral Benavides included US $24,000 which was calculated to
compensate the salary he would have received if not imprisoned. For medical treatment
received in custody he was awarded US $1,000 and for future medical treatment the
Court allocated US $10.000. In a distinctly egalitarian move, appreciating the parallel
harms that are experienced by the families of those tortured, the Court found that
Cantoral Benavides mother suffered and still evidenced symptoms physical and

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psychological pain originating from the imprisonment and situation of her son. In this
instance of extended reparation the Court ordered Peru to pay US $1,500 for medical
treatment. A parallel sum was also awarded to Cantoral Benavides brother for medical
and psychological aid. Moral damages were paid to the primary victim, his mother, and
his three brothers ($125,000).
In terms of institutional reparation the state was ordered to annul any domestic criminal,
administrative or judicial records against the victim. Notably the Court ordered that the
merits judgment of the Court be published in a national legal journal. The state was
required to make public amends to the victim including providing a scholarship for
graduate studies with a monthly fee for living expenses. All medical costs for the victims
mother were to be paid by the state.
These IACHR cases are illustrative of a broader trend to transformative reparations
where serious human rights have been engaged by the state. Increasingly, it is simply
insufficient to compensate the victim financially when non-derogable human rights are
violated (though that is an essential first step of repair). Rather, regional human courts
have recognized that the imprint of the harm of torture is life-long, life-changing, and
effects the lives of families as well as of the persons whose bodies and integrity have
been violated. In this context, the response of the United States to the probing of the UN
Committee on remedies seems woefully inadequate. While having provided the
Committee with the names of 33 individuals who had filed claims against the Department
of Defense, no substantive information was provided on the status of those cases.
Despite questions asked by the Committee, the US delegation neatly avoided giving
information on whether any of those individual had been provided non-judicial remedies,
and on the numbers of lawsuits involving torture or serious ill-treatment that had failed
to proceed on the basis of non-exhaustion of the internal grievance system. Despite the
apparent formal assurances of Robin Jacobson, Associate Deputy Attorney General, there
is no evidence that the United States has taken responsibility to implement remedies for
acknowledged torture. He stated:
U.S. law provides a wide range of civil remedies for seeking redress in cases of
torture. These include injunctions, compensatory damages, punitive damages,
and declaratory relief. In addition, the U.S. Congress has authorized the federal
government to bring civil actions to enjoin acts or patterns of conduct that
violate constitutional rights, including those that
would amount to torture. At the federal level, the principal avenues of
individual redress are administrative tort claims and civil litigation.
Common law tort actions for assault, battery, wrongful death, civil actions for
violations of federally protected civil rights, suits based on
federal constitutional rights. On the state level, all of our states provide for civil
tort suits to be brought against state officials and many permit damages
for violations of state constitutional rights.

This formal litany of effectively unavailable rights to tortured Guantanamo Bay detainees
and others operates as a secondary layer of Convention violation. Namely, the violation
of the right to an effective remedy for torture. Words in fact, may be cheap. As Gabor
Rona has noted here, there is little new about the acknowledgement of
extraterritoriality official by this US delegation, despite the hype. Harold Koh among
other commentators here, has applauded the honesty and increased transparency of the
acknowledgments made before the Committee (a cheer for the unequivocal yes). On
that matter, I am less persuaded. There is a grave danger that acknowledgment may blur

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the ongoing, daily violations of detainees human rights. It may also cloud and allow us
to forget that there are a host of other obligations that follow from naming the fact that
torture has taken place. Lest we forget, the United States has a direct obligation to each
individual tortured and subject to cruel treatment at Guantanamo Bay, and that
obligation is one of repair, remedy and restitution.
Tags: Convention Against Torture, IACHR, remedies, torture
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About the Author


Fionnuala N Aolin is concurrently the Robina Chair in Law, Public Policy, and Society at
the University of Minnesota Law School and Professor of Law at the University of Ulsters
Transitional Justice Institute in Belfast, Northern Ireland. Follow her on Twitter
(@NiAolainF).

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NEXT CASE LAW

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[House Report 110-844]


[From the U.S. Government Publishing Office]

110th Congress Report


HOUSE OF REPRESENTATIVES
2d Session 110-844

=======================================================
===============

JUSTICE FOR VICTIMS OF TORTURE AND TERRORISM ACT

_______

September 15, 2008.--Committed to the Committee of the Whole House on


the State of the Union and ordered to be printed

_______

Mr. Conyers, from the Committee on the Judiciary, submitted the


following

REPORT

[To accompany H.R. 5167]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill


(H.R. 5167) to amend the National Defense Authorization Act for
Fiscal Year 2008 to remove the authority of the President to
waive certain provisions, having considered the same, reports
favorably thereon with amendments and recommends that the bill
as amended do pass.

CONTENTS

Page
The Amendments................................................... 1
Purpose and Summary.............................................. 5

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Background and Need for the Legislation.......................... 5


Hearings......................................................... 9
Committee Consideration.......................................... 10
Committee Votes.................................................. 10
Committee Oversight Findings..................................... 10
New Budget Authority and Tax Expenditures........................ 10
Congressional Budget Office Cost Estimate........................ 10
Performance Goals and Objectives................................. 11
Constitutional Authority Statement............................... 11
Advisory on Earmarks............................................. 12
Section-by-Section Analysis...................................... 12

The Amendments

The amendments are as follows:


Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Justice for Victims of Torture and
Terrorism Act''.

SEC. 2. FINDINGS.

The Congress finds the following:


(1) During the Gulf War against Iraq in 1991, Americans
serving in the United States Armed Forces were captured, became
Prisoners of War (POWs), and were subsequently tortured,
beaten, starved, hooked to electrical shock devices, and
subjected to other horrendous acts by Saddam Hussein's regime.
(2) CBS News reporter Bob Simon and cameraman Roberto Alvarez
were kidnapped while on assignment during the 1991 Gulf War and
were held and tortured, along with the American POWs.
(3) Following the Iraqi invasion of Kuwait in August 1990,
many United States citizens were detained by Iraq, beaten,
subjected to cruel, inhumane and degrading treatment, confined
under deplorable conditions, and used as ``human shields'' for
the avowed purpose of preventing the United States and its
coalition allies from using military force to liberate Kuwait.
(4) At the time these acts occurred, the Department of State
had classified Iraq as a state sponsor of terrorism.
(5) The brave American POWs and American civilian hostages
have suffered long-term physical, emotional, and mental damage
as a result of this brutal, state-sponsored torture and
terrorism.
(6) When the American POWs returned home after the Gulf War
ended, they were given a hero's welcome by then Secretary of
Defense Dick Cheney, who told them, ``Your country is opening
its arms to greet you''.

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(7) During the Gulf War, the Congress unanimously passed


resolutions condemning the brutal treatment by the Government
of Iraq of captured United States service members, demanding
that the Government of Iraq abide by the Geneva Convention
regarding the treatment of prisoners of war, and stating an
intention to hold Iraq accountable for the torture of American
POWs.
(8) In 1996, Congress passed an amendment to the Foreign
Sovereign Immunities Act (FSIA) provisions of title 28, United
States Code, so that torture victims like the American POWs and
the American ``human shield'' victims from the Gulf War could
seek compensation for their injuries from terrorist countries,
including Iraq.
(9) On April 4, 2002, 17 Gulf War POWs and their families
filed claims in the United States District Court for the
District of Columbia seeking compensation for damages related
to their torture and abuse by the Government of Iraq. The POWs
included Colonel Clifford Acree, USMC (Ret.); Lieutenant
Colonel Craig Berryman, USMC (Ret.); Former Staff Sergeant Troy
Dunlap, US Army; Colonel David Eberly, USAF (Ret.); Lieutenant
Colonel Jeffrey D. Fox, USAF (Ret.); Chief Warrant Officer 5
Guy Hunter, USMC (Ret.); Sergeant David Lockett, US Army;
Colonel H. Michael Roberts, USAF; Colonel Russell Sanborn,
USMC; Captain Lawrence Randolph Slade, USN (Ret.); Major Joseph
Small, USMC (Ret.); Staff Sergeant Daniel Stamaris, US Army
(Ret.); Lieutenant Colonel Richard Dale Storr, Air National
Guard; Lieutenant Colonel Robert Sweet, USAF; Lieutenant
Colonel Jeffrey Tice, USAF (Ret.); Former Lieutenant Robert
Wetzel, USN; and Former Commander Jeffrey Zaun, USN.
(10) In 2003, after the Government of Iraq repeatedly refused
to participate in arbitration on the damage claims, and after
hearing evidence of how the former POWs had been repeatedly
tortured, a judge awarded them a judgment for damages, stating
that ``deterring torture of POWs should be of the highest
priority''.
(11) Despite this ruling, the POWs and their families have
not received payment, and are unable to further pursue their
claims in United States courts because of the waiver that was
granted for Iraq by the President under authority established
in the National Defense Authorization Act for Fiscal Year 2008.
(12) In December 2001, after conducting an evidentiary
hearing, the United States district court held, in Hill v.
Republic of Iraq, that Iraq was liable for having taken United
States citizens hostage following the Iraqi invasion of Kuwait
and subsequently awarded 180 of those former hostages and their
spouses a judgment for damages.
(13) On March 20, 2003, on the eve of Operation Iraqi
Freedom, the President of the United States directed that all
of the judgments that had been awarded in Hill v. Republic of
Iraq be paid from moneys held in blocked Iraqi accounts.

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(14) On that same date, the President issued an Executive


order confiscating all remaining blocked assets of Iraq and
ordering them to be deposited into the United States Treasury
to be used for Iraq reconstruction.
(15) The claims of more than 200 United States citizens who,
at the same time and in the same manner as the Hill plaintiffs,
were held hostage in territory occupied by Iraq are currently
pending in a United States district court in the case of Vine
v. Republic of Iraq.
(16) The plaintiffs in Vine v. Republic of Iraq have not been
compensated and are unable to enforce any judgment they may
obtain in United States courts because of the waiver that was
granted for Iraq by the President under authority established
in the National Defense Authorization Act for Fiscal Year 2008.
(17) Article 131 of the Third Geneva Convention relative to
the Treatment of Prisoners of War (August 12, 1949) prohibits
the United States as a party to that treaty from absolving the
Government of Iraq of any liability incurred due to the torture
of prisoners of war, such as the American POWs referred to in
this section.
(18) The United States has a moral obligation to protect its
past, present, and future members of its Armed Forces, and all
United States citizens, from torture and hostage-taking, and
the Congress is committed to holding state sponsors of
terrorism accountable for such horrendous acts.

SEC. 3. RESOLUTION OF CERTAIN CLAIMS AGAINST IRAQ.

(a) Resolution by Iraq of Certain Claims.--


(1) In general.--Unless the President, before the end of the
90-day period beginning on the date described in paragraph
(2)(A), certifies to the Congress that the Government of Iraq
has adequately settled the claims in the cases referred to in
subsection (b), then, upon the expiration of that 90-day
period, the waiver authority granted to the President in
section 1083(d) of the National Defense Authorization Act for
Fiscal Year 2008 (Public Law 110-181; 122 Stat. 343), and any
waiver granted before the end of that 90-day period under such
authority, shall terminate.
(2) Date described.--
(A) In general.--The date described in this paragraph
is--
(i) 30 days after the date of the enactment
of this Act, unless the President has certified
to the Congress, before the end of that 30-day
period, that--
(I) the Government of Iraq has not,
before, on, or after the enactment of
this Act, compensated any foreign
persons or entities for claims or

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liabilities incurred by or under the


control of the Saddam Hussein regime,
including, but not limited to,
commercial or financial claims, and
claims for acts against individuals
similar to those described in section
1605A(a)(1) of title 28, United States
Code; or
(II) negotiations are ongoing with
the Government of Iraq to settle the
claims in the cases referred to in
subsection (b), and the President
believes that those negotiations are
being conducted in good faith and could
lead to a satisfactory settlement of
those claims; or
(ii) if a certification is made under clause
(i), the day after the date on which that
certification terminates or, if a subsequent
certification is in effect under subparagraph
(B), the day after the date on which the last
such certification terminates.
(B) Duration of certifications.--A certification
under subclause (I) or (II) of subparagraph (A)(i)
terminates 180 days after it is made. The President may
make subsequent certifications under subclause (I) or
(II) of subparagraph (A)(i) for periods of not more
than 180 days each.
(b) Cases.--The cases referred to in subsection (a)(1) are cases
numbered 99:00CV03346 (TPJ), 1:01CV02674 (HHK), CIV.A. 02-632 (RWR)
(July 7, 2003), 1:03CV00691 (HHK), and 1:03CV00888 (HHK), in the United
States District Court for the District of Columbia.
(c) Adequate Settlement.--For purposes of subsection (a)(1), adequate
settlement means payment by the Government of Iraq of, or an
unqualified and unconditional guarantee made by a United States
depository institution to pay within 30 days after the end of the 90-
day period described in subsection (a)(1), at least the following
amounts to the following persons:
(1) To any person--
(A) whose claim in the applicable case referred to in
subsection (b) arose from an act of hostage taking or
from being held in hostage status, and
(B) who has not obtained a judgment on the claim
before the date of the enactment of this Act,
$150,000, plus $6,000 for each day the person was held as a
hostage, but in no event more than $900,000.
(2) To any person--
(A) whose claim in the applicable case referred to in
subsection (b) arose from an act of hostage taking or
from being held in hostage status,

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(B) who, while a hostage, was subjected to torture,


and
(C) who has not obtained a judgment on the claim
before the date of the enactment of this Act,
$2,500,000, plus $6,000 for each day the person was held as a
hostage.
(3) To a plaintiff in the applicable case referred to in
subsection (b) who is the spouse or child of any person who
qualifies for receipt of payment under paragraph (1) or (2),
one third of the amount that such person qualifies for receipt
under such paragraph.
(4) To any person who, before the date of the enactment of
this Act, obtained a judgment for compensatory damages in a
case referred to in subsection (b) (regardless of whether such
judgment was subsequently vacated)--
(A) payment of the unsatisfied amount of such
judgment, in an amount that is the lesser of $1,000,000
or the unsatisfied amount of the award; and
(B) if the amount of the judgment exceeds $1,000,000,
one third of the unsatisfied amount of such excess.
(d) Additional Condition in Case of Guarantee of Payment.--If the
claims in the cases referred to in subsection (b) are adequately
settled for purposes of subsection (a)(1) because of a guarantee of
payment by a depository institution within the 30-day period specified
in subsection (c), and such payment is not made within that 30-day
period, then upon the expiration of that 30-day period, the waiver
authority described in subsection (a)(1), and any waiver granted before
the end of that 30-day period under such authority, shall terminate.
(e) Definitions.--In this section:
(1) Foreign person or entity.--The term ``foreign person or
entity'' means--
(A) an individual other than a national of the United
States; and
(B) a person or entity, other than an individual,
that is organized under the laws of a country other
than the United States.
(2) Hostage.--The term ``hostage'' means an individual in
hostage status or an individual seized or detained in the
commission of an act of hostage taking.
(3) Hostage status.--The term ``hostage status'' has the
meaning given that term in section 599C(d)(1) of the Foreign
Operations, Export Financing, and Related Programs
Appropriations Act, 1991 (Public Law 101-513).
(4) Hostage taking.--The term ``hostage taking'' has the
meaning given that term in section 1605A(h)(2) of title 28,
United States Code.
(5) National of the united states.--The term ``national of
the United States'' has the meaning given that term in section
1605A(h)(5) of title 28, United States Code.
(6) Torture.--The term ``torture'' has the meaning given that

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term in section 3 of the Torture Victim Protection Act of 1991


(28 U.S.C. 1350 note).
(7) United states.--The term ``United States'' means the
several States, the District of Columbia, and any commonwealth,
territory, or possession of the United States.
(8) United states depository institution.--The term ``United
States depository institution'' means a depository institution
organized under the laws of any State, the District of
Columbia, or the United States, including a branch or agency of
a foreign depository institution.

SEC. 4. LIMITATION ON CERTAIN CLAIMS.

No funds of the United States Government may be used to pay any


claim--
(1) that is cognizable under section 1605A of title 28,
United States Code, as added by section 1083 of the National
Defense Authorization Act for Fiscal Year 2008, for money
damages against Iraq for personal injury or death that was
caused by acts committed by an official, officer, or employee
of the Iraqi Government under Saddam Hussein; and
(2) with respect to which the waiver authority under section
1083(d) of the National Defense Authorization Act for Fiscal
Year 2008 has been or may be exercised.

Amend the title so as to read:

A bill to terminate the authority of the President to


waive, with regard to Iraq, certain provisions under the
National Defense Authorization Act for Fiscal Year 2008 unless
certain conditions are met.

Purpose and Summary

H.R. 5167, the ``Justice for Victims of Torture and


Terrorism Act,'' would enable American POWs and civilians to
hold the Government of Iraq liable for the physical and
emotional injuries they sustained while held captive by Iraqi
officials during the Gulf War. Unlike previous legislative
proposals to compensate these victims, this bill would allow
them to recover only a portion of the judgments rendered or
claims made.

Background and Need for the Legislation

THE AMERICAN VICTIMS

This legislation addresses two groups of Americans who


suffered at the hands of the Government of Iraq during the 1991
Gulf War, when it was a designated foreign state sponsor of

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terrorism.
The first is a group of 17 prisoners of war (POWs) who were
part of the international coalition led by the U.S. which
initiated military action against Iraq on January 16, 1991,
after Iraq attacked and occupied Kuwait. All but one of these
POWs were pilots in aircraft downed over Iraq or Kuwait.
Believing these POWs to be in possession of sensitive
military information, the Iraqi government targeted them for
particularly brutal treatment. They were beaten, threatened
with castration and dismemberment, subjected to mock
executions, and shocked with electrical devices. They were also
starved, denied sleep, and exposed to extreme temperatures.
They were denied medical care, intentionally further
aggravating serious physical injuries that included broken
bones, perforated eardrums, nerve damage, infections, nausea,
and severe weight loss. The POWs and 37 of their immediate
family members are plaintiffs in Acree v. Republic of Iraq.\1\
---------------------------------------------------------------------------
\1\ Acree v. Republic of Iraq, 276 F. Supp. 2d 95 (D.D.C. 2003).
---------------------------------------------------------------------------
The second group comprises 237 civilians who were working
in Iraq and Kuwait during the period leading up to the Gulf
War. Shortly after Iraqi armed forces invaded Kuwait on August
2, 1990, Saddam Hussein issued a directive prohibiting foreign
nationals from leaving the region. On August 19, 1990,
President George H.W. Bush declared all U.S. citizens in Kuwait
and Iraq to be hostages, held by Saddam as ``human shields'' to
make it more difficult for the U.S. and its allies to push back
Iraq and liberate Kuwait.
These hostages were held in ``harsh, cruel, degrading, and
often terrorizing'' conditions.\2\ They ``lived in constant
fear for their lives and suffered from fatigue, depression,
severe anxiety and stress.'' \3\ Some were also subjected to
more severe forms of physical torture. They were eventually
released by Hussein in December 1990. They are plaintiffs in
Vine v. Republic of Iraq \4\ and Hill v. Republic of Iraq.\5\
---------------------------------------------------------------------------
\2\ Vine v. Republic of Iraq, 459 F. Supp. 2d 10 (2006).
\3\ Id.
\4\ Id.
\5\ Hill v. Republic of Iraq, 2003 U.S. Dist. LEXIS 3725 (D.D.C.
2003).
---------------------------------------------------------------------------

THE FOREIGN SOVEREIGN IMMUNITIES ACT

Under international law, sovereign nations have generally


been immune from liability in the courts of other nations, in
recognition of the independence of each nation. As the level of
international interactions has increased, the principle of

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absolute sovereign immunity has been gradually modified. This


evolving principle is reflected in the Foreign Sovereign
Immunities Act of 1978 (``FSIA''), P.L. 94-538, which provides
that a foreign state is immune from the jurisdiction of U.S.
courts, with specified exceptions.
The Anti-Terrorism and Effective Death Penalty Act of 1996
added an exception to allow U.S. victims of a terrorist act
such as torture, extrajudicial killing, or hostage taking to
bring civil suit against a foreign state responsible for the
act, if the foreign state is designated as a state sponsor of
terrorism by the State Department at the time the act occurred,
or is later so designated because of the act.\6\ It also
allowed the commercial property of a foreign state in the U.S.
to be attached in satisfaction of a judgment, regardless of
whether the property was involved in the act on which the claim
was based.\7\
---------------------------------------------------------------------------
\6\ P.L. 104-132, Title II, Sec. 221 (April 23, 1996); 110 Stat.
1241; 28 U.S.C. Sec. 1605(a)(7).
\7\ 28 U.S. C. 1610(b)(2).
---------------------------------------------------------------------------
In 1998, after a court held that the exception to sovereign
immunity did not in and of itself create a private right of
action,\8\ Congress passed the ``Flatow Amendment'' to clarify
that a cause of action existed against the officials,
employees, and agents of foreign states who commit the
terrorist act ``while acting within the scope of'' their
employment if a U.S. government official would be liable for
similar actions.\9\ Section 201 of the Terrorism Risk Insurance
Act, enacted in 2002,\10\ reaffirmed that, and broadened the
circumstances under which, frozen assets of terrorist states
are available to judgment holders for compensatory damages.
---------------------------------------------------------------------------
\8\ Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C.
1998).
\9\ P.L. 104-208, Title I, Sec. 101(c) (Sept. 30, 1996), 110 Stat.
3009-172; codified at 28 U.S.C. Sec. 1605 note.
\10\ P.L. 107-297 (November 26, 2002), 116 Stat. 2322.
---------------------------------------------------------------------------
Courts initially interpreted the Flatow Amendment as
creating a cause of action against a foreign state, as well as
against its agencies and instrumentalities, despite the fact
that the statute referred only to officials, employees, and
agents of foreign states. In 2004, however, the D.C. Circuit
held that neither the terrorism exception to FSIA nor the
Flatow Amendment created a private right of action against the
foreign state or its agencies and instrumentalities.
In response, victims have turned to U.S. State laws,
obtaining judgments totaling almost $18 billion in damages,
most of them against Iraq. Victims have had difficulty

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enforcing these judgments, however, due to the scarcity of


assets in the U.S. belonging to the foreign state defendants,
and by Executive Branch actions immunizing these assets from
attachment.
While Congress has supported giving terrorism victims the
right to obtain relief and to enforce judgments, the Executive
Branch has been less supportive. Both the Clinton and Bush
Administrations have opposed allowing the use of frozen assets
of foreign states to satisfy judgments, variously citing treaty
obligations to protect foreign diplomatic and consular
properties, a desire to maintain the frozen assets for
diplomatic leverage, and the fear that allowing the attachment
of frozen assets would subject U.S. assets in foreign states to
similar treatment.

ACTIONS BY PRESIDENT BUSH IN 2003 TO EXEMPT IRAQ FROM JUDGMENTS

In conjunction with the 2003 war against Iraq, President


Bush took a series of actions that, in combination, had the
effect of making Iraq's assets in the U.S. unavailable to
terrorism victims who, after March 20, 2003, obtained
terrorism-related judgments against Iraq.
On March 20, 2003, as the war began, President Bush issued
an executive order placing those assets--then totaling
approximately $1.73 billion--which had previously been frozen,
into a dedicated Development Fund for Iraq, to be used in the
post-war reconstruction of Iraq.\11\
---------------------------------------------------------------------------
\11\ E.O. 13290, 68 Fed. Reg. 14,305-08 (March 24, 2003). Assets
that had previously been ordered attached in satisfaction of judgments
against Iraq were excluded from the Executive Order, as was Iraq's
diplomatic and consular property.
---------------------------------------------------------------------------
Six weeks later, on May 7, he declared, based on general
authority Congress had recently granted him to exempt Iraq from
laws governing terrorist-supporting states,\12\ that neither
the terrorism exception to FSIA nor section 201 of the
Terrorism Risk Insurance Act would apply to Iraq.\13\
---------------------------------------------------------------------------
\12\ Emergency Wartime Supplemental Appropriations Act for FY2003,
P.L. 108-11, Sec. 1503 (April 16, 2003).
\13\ Memorandum for the Secretary of State (Presidential
Determination No. 2003-23) (May 7, 2003), 68 Fed. Reg. 26459 (May 7,
2003).
---------------------------------------------------------------------------
Two weeks later, on May 22, he issued another executive
order, prohibiting attachment of any assets in the Development
Fund for Iraq.\14\
---------------------------------------------------------------------------
\14\ E.O. 13303, 68 Fed. Reg. 31, 931 (May 28, 2003).

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---------------------------------------------------------------------------

EFFECT OF 2003 PRESIDENTIAL ACTIONS ON LAWSUITS AGAINST IRAQ

The POW and human shield victims have brought the following
Federal lawsuits:
Acree v. Republic of Iraq (POWs): The 17 Gulf War POWs--
many of whom had returned to active duty following their
release from captivity--and their immediate families filed suit
in April 2002. They obtained a default judgment in July 2003.
The district court awarded them and their families $653 million
in compensatory damages and $306 million in punitive damages.
The Department of Justice then sought to intervene in the case,
arguing that Iraq's sovereign immunity had been restored by
presidential determination pursuant to authority granted by
Congress.
The district court denied the Government's motion to
intervene, but ruled that the presidential determination
precluded the plaintiffs from enforcing their judgment against
the $1.73 billion in frozen Iraqi assets that had been
confiscated pursuant to the President's March 2003 executive
order.\15\ The court of appeals later vacated the default
judgment, holding that the plaintiffs had failed to state a
cause of action against Iraq. Although the terrorism exception
to the FSIA, combined with the Flatow Amendment, created a
private right of action against officials, employees, and
agents of a foreign government for their private conduct, the
court held, it did not create a cause of action against the
foreign government itself, including its agencies and
instrumentalities in their official capacity.
---------------------------------------------------------------------------
\15\ E.O. 13290, 68 Fed. Reg. 14,305-08 (March 24, 2003).
---------------------------------------------------------------------------
In 2005, plaintiffs filed a Rule 60(b) motion asking the
court to consider further argument regarding the causes of
action that plaintiffs had pled under State law but were not
considered in the court's previous ruling. The court denied the
motion in July 2008. Plaintiffs have filed a notice of appeal,
and the case remains pending.
Hill v. Republic of Iraq (human shields): This Federal case
was filed in December 1999 by 180 U.S. civilians who had been
held by the Iraqi government as human shields after the
invasion of Kuwait in 1990. In December 2001, they obtained a
default judgment and were awarded more than $94 million in
compensatory damages. They received full payment. In March
2004, 24 of them obtained increases in their judgments to
reflect lost property. These 24 now seek payment of the
remainder of their judgments, totaling approximately $70
million.
Vine v. Republic of Iraq (human shields): This case

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involves 237 human shields and their families who were unable
to join the Hill case for technical reasons. They filed suit in
December 2001. Although their claims are identical to those of
the Hill plaintiffs, they have not been awarded a judgment in
their favor because the 2003 presidential order--issued after
the Hill ruling--blocked their case. The case has been
temporarily suspended.
Simon v. Republic of Iraq (human shields): This case
involves CBS News reporter Bob Simon and CBS cameraman Roberto
Alvarez, who were kidnapped in January 1991, while on
assignment during the Gulf War and held and tortured along with
the U.S. POWs in Acree. They were released in March 1991. Their
case was filed in March 2003. The district court, stating that
the statute of limitations had run, dismissed the case. The
court of appeals reversed the dismissal, stating that the claim
was timely. The appellate court also rejected Iraq's argument
that the President had the authority to waive all claims
against Iraq, thereby removing U.S. courts' jurisdiction over
pending claims, under the FY08 NDAA. Iraq is now seeking
Supreme Court review.
Seyam v. Republic of Iraq (human shield): This case
involves Nabil Seyam, a U.S. national who was working as a
safety engineer for the Kuwait Metal Pipe Industries Company
prior to the Gulf War. After hiding from Iraqi forces for 2
months, he was taken hostage and tortured by Iraqi soldiers
before being released in October 1990. Mr. Seyam filed suit in
April 2003. He was killed in a car accident in 2006, and his
estate is pursuing his case. The district court consolidated
the Seyam case with the Simon case. It was therefore dismissed
along with Simon, on the same grounds that the statute of
limitations had run. The appellate court then reversed the
dismissal. Iraq has moved for a stay pending Supreme Court
review in Simon.

SECTION 1083 OF THE FY08 NATIONAL DEFENSE AUTHORIZATION ACT

Section 1083 of the FY2008 National Defense Authorization


Act (``FY08 NDAA''), P.L. 110-181, amends the Foreign Sovereign
Immunities Act of 1978 to enable victims whose claims were
dismissed for lack of a Federal cause of action to re-file
their claims under new 28 U.S.C. Sec. 1605A, a new FSIA
terrorism exception and explicit cause of action against
terrorist states. Section 1083 also facilitates victims'
efforts to enforce judgments by attaching a defendant state's
assets.
Section 1083 also states, in subsection (c)(4), that the
general authority Congress conferred on the President in 2003
has never authorized, directly or indirectly, making any
provision of FSIA inapplicable to Iraq or removing U.S. court
jurisdiction.

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President Bush vetoed the FY08 NDAA, solely on the basis of


section 1083. Asserting that the section as originally drafted
would jeopardize Iraq's economic development and security, he
insisted that it be rewritten to give him authority to waive it
with respect to Iraq, retroactively as to all pending cases, if
he determined that a waiver would serve the United States'
national security interest, promote U.S.-Iraq relations, and
facilitate reconstruction and political development in Iraq,
and that Iraq continued to be a reliable ally and partner in
combating terrorism. Congress passed the revised version of the
FY08 NDAA, and the President signed it into law January 28,
2008,\16\ exercising his waiver authority that very day.\17\
---------------------------------------------------------------------------
\16\ P.L. 110-181, Sec. 1083(d).
\17\ White House Memorandum of Justification for Waiver of Section
1083 of the National Defense Authorization Act (January 28, 2008),
available at [http://www.whitehouse.gov/ news/releases/2008/01/
20080128-12.html].
---------------------------------------------------------------------------

EFFECT OF PRESIDENTIAL WAIVER ON LAWSUITS

The 2008 waiver effectively bars the refiling of the Acree


lawsuit and, therefore, any relief for the POWs and their
families. The other pending suits against Iraq would all appear
to be subject to dismissal as a result of the waiver.
Anticipating the detrimental impact a waiver would have on
pending suits, Congress inserted a provision in Section 1083
urging the President to work with the Iraqi government to help
the American victims of Iraqi terrorism during the Gulf War
obtain relief for the emotional and physical injuries they
sustained. To date, the President has not indicated to Congress
that any efforts have been made to do so.

H.R. 5167

Representatives Bruce Braley (D-IA)and Joe Sestak (D-PA)


responded to the veto and revision of section 1083 by
introducing legislation to facilitate the settlement of the
claims against Iraq. Under the legislation, developed in close
consultation with the victims, the POWs would agree to forego
punitive damages and two-thirds of the compensatory damages
awarded, and the human shields to forego all punitive damages.
Iraq would be required to pay approximately $415 million.
The amount of recovery sought is de minimus relative to the
$20-$32 billion in commercial claims that Iraq has reportedly
settled with Mitsubishi of Japan and Hyundai of Korea. It
amounts to perhaps 1 percent of the Iraqi government assets
held in U.S. banks.

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Hearings

The Committee on the Judiciary held an oversight hearing on


``Ensuring Legal Redress for American Victims of State-
Sponsored Terrorism'' on June 17, 2008. Testimony was received
from the Honorable Bruce Braley; the Honorable Joe Sestak; John
Norton Moore, co-counsel, Acree v. Republic of Iraq; Larry
Slade, plaintiff, Acree v. Republic of Iraq; Daniel Wolf,
counsel, Vine v. Republic of Iraq; and George Charchalis,
plaintiff, Vine v. Republic of Iraq. The Departments of State
and Justice were invited, but declined to appear. The purpose
of the hearing was to examine the nature of the harms
underlying the claims pending against Iraq by the U.S.
prisoners of war and civilians, and the proposal by Rep. Braley
and Rep. Sestak to facilitate the settlement of those claims.

Committee Consideration

On July 30, 2008, the full Committee met in open session


and ordered the bill H.R. 5167 favorably reported, with an
amendment, by voice vote, a quorum being present.

Committee Votes

In compliance with clause 3(b) of rule XIII of the Rules of


the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 5167.

Committee Oversight Findings

In compliance with clause 3(c)(1) of rule XIII of the Rules


of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.

New Budget Authority and Tax Expenditures

Clause 3(c)(2) of rule XIII of the Rules of the House of


Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.

Congressional Budget Office Cost Estimate

In compliance with clause 3(c)(3) of rule XIII of the Rules


of the House of Representatives, the Committee sets forth, with
respect to the bill H.R. 5167, the following estimate and

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comparison prepared by the Director of the Congressional Budget


Office under section 402 of the Congressional Budget Act of
1974:

U.S. Congress,
Congressional Budget Office,
Washington, DC, September 9, 2008.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5167, the Justice
for Victims of Torture and Terrorism Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Sunita
D'Monte, who can be reached at 226-2840.
Sincerely,
Peter R. Orszag,
Director.

Enclosure

cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 5167--Justice for Victims of Torture and Terrorism Act.
H.R. 5167 would, under certain conditions, rescind the
President's authority to exempt Iraq from the jurisdiction of
U.S. courts in cases related to acts of terrorism, hostage-
taking, or torture. CBO estimates that enacting H.R. 5167 would
have no significant effects on the Federal budget.
Most foreign states that have been designated as state
sponsors of terrorism have no immunity from the jurisdiction of
U.S. courts in cases filed by U.S. nationals, members of the
armed forces, or Federal employees seeking compensation for
state-sponsored acts of terrorism, hostage-taking, or torture.
However, the President is authorized to provide such immunity
to Iraq on the basis of national security.
Unless the President certifies that Iraq has adequately
settled, or is making good-faith negotiations to settle, claims
against it from pending court cases, H.R. 5167 would rescind
that authority, thereby permitting the administrative expenses
of special masters appointed for claims against Iraq to be paid
from the Crime Victims fund. We estimate that direct spending,
if any, from the fund would be insignificant because of the
small number of cases likely to be affected.
H.R. 5167 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.

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The CBO staff contacts for this estimate are Sunita


D'Monte, who can be reached at 226-2840, and Mark Grabowicz,
who can be reached at 226-2860. This estimate was approved by
Theresa Gullo, Deputy Assistant Director for Budget Analysis.

Performance Goals and Objectives

The Committee states, pursuant to clause 3(c)(4) of rule


XIII of the Rules of the House of Representatives, that H.R.
5167 is intended to ensure fair redress to the American POWs
and civilians who were brutalized at the hands of the Iraqi
government during the Gulf War.

Constitutional Authority Statement

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the


House of Representatives, the Committee finds the authority for
this legislation in article 1, section 8 of the Constitution.

Advisory on Earmarks

In accordance with clause 9 of rule XXI of the Rules of the


House of Representatives, H.R. 5167 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.

Section-by-Section Analysis

Sec. 1. Short title. This section sets forth the short


title of the bill as the ``Justice for Victims of Torture and
Terrorism Act.''
Sec. 2. Findings. This section contains findings related to
the history of this issue.
Sec. 3. Resolution of Certain Claims Against Iraq.
Section 3(a). Resolution by Iraq of Certain Claims. This
subsection provides for the termination of the presidential
waiver authority granted in section 1083 of the FY08 NDAA
unless the President certifies to Congress that Iraq has
``adequately settled'' the cases listed in section 3(b) before
the expiration of the 90-day period beginning 30 days after the
bill's enactment, unless the President certifies to Congress,
before the end of that 30-day period, that:

Lthe Government of Iraq has not settled


foreign commercial debts or claims by foreign persons
or entities similar to the claims brought in those
cases;

Lthere are ongoing good-faith negotiations


with the Government of Iraq to settle the claims

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brought in those cases.

Certifications made under subsection (a) terminate after


180 days, but can be renewed for additional 180-day periods.
Section 3(b). Cases. This subsection provides that the
cases referenced in Sec. 3(a) are the Acree, Hill, Vine, Simon,
Alvarez, and Seyam cases.
Section 3(c). Adequate Settlement. This subsection defines
``adequate settlement'' as payment by Iraq, or an unconditional
guarantee made by a U.S. depository institution to make payment
from Iraqi funds within 30 days after the end of the 90-day
period described in subsection (a), to specified classes of
victims under specified terms:

Lto any person who was held hostage but not


subjected to torture, and who has not obtained a
judgment on the claim, $150,000 plus $6,000 for each
day held as a hostage, but not to exceed a total of
$900,000.

Lto any person who was held hostage and


subjected to torture, and who has not obtained a
judgment on the claim, at least $2,500,000 plus $6,000
per day for each day held as a hostage.

Lto a spouse or child of any person who


qualifies for compensation above, one-third of the
amount which the person who so qualifies is entitled to
receive.

Lto any person who obtained a judgment for


compensatory damages in one of the aforementioned cases
(regardless of whether It was later vacated), the
unsatisfied amount of that judgment up to $1,000,000,
plus one-third of any unsatisfied amount in excess of
$1,000,000.

Sec. 3(d). Additional Condition in Case of Guarantee of


Payment. This subsection provides that if claims in the
specified cases are settled by guarantee of payment by a U.S.
depository institution to pay within 30 days, and the payment
is not actually made within that period, the presidential
waiver authority granted in the FY08 NDAA will terminate.
Sec. 3(e). Definitions. This section contains definitions
of ``foreign person or entity,'' ``hostage,'' ``hostage
status,'' ``hostage taking,'' ``torture,'' ``United States,''
and ``United States Depository Institution.''
Sec. 4. Limitation on Certain Claims. This section
prohibits any funds belonging to the United States Government
from being used to pay any claim covered under this Act.

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