Juan Romagoza Arce v. Jose Guillermo Garcia

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

_____________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 28, 2005

No. 02-14427

THOMAS K. KAHN

_____________

CLERK

D.C. Docket No. 99-08364 CV-DTKH

JUAN ROMAGOZA ARCE,

NERIS GONZALEZ,

and CARLOS MAURICIO,

Plaintiffs-Appellees,

versus

JOSE GUILLERMO GARCIA,

an individual, and

CARLOS EUGENIO VIDES-CASANOVA,

an individual,

Defendants-Appellants.

__________________________

Appeal from the United States District Court

Southern District of Florida

__________________________

(February 28, 2005)

Before TJOFLAT and CARNES, Circuit Judges, and CONWAY*, District Judge.

*

Honorable Anne C. Conway, United States District Judge for the Middle District of

Florida, sitting by designation.

TJOFLAT, Circuit Judge:

I.

The three plaintiffs in this case are Salvadoran refugees who claim that they

were tortured by soldiers in El Salvador during the course of a campaign of

human-rights violations by the Salvadoran military from 1979 to 1983.

The first plaintiff, Juan Romagoza Arce, claims that he was kidnaped by

government soldiers on or about December 12, 1980 and that he was tortured until

January 5, 1981, when he was released. Specifically, Arce alleges that he was shot

in the foot and hand, hung from ropes made of sharp material, forced to undergo

electric shocks, pushed to the edge of the open door of a helicopter with threats

that he would be thrown out, and severely beaten for failing to answer questions to

his captor’s satisfaction. Arce arrived in the United States in 1983.

The second plaintiff, Neris Gonzalez, claims that she was abducted by

Salvadoran soldiers on December 26, 1979 and detained for two weeks. Gonzalez

alleges that she was burned with cigarettes, stuck with needles under her

fingernails, asphyxiated with a powder-filled rubber mask while she received

electric shocks, repeatedly raped, had a bed frame balanced on her stomach when

she was eight months pregnant, forced to drink the blood from an open wound in a

man’s stomach, and severely beaten. She arrived in the United States in 1997.

2

The third plaintiff, Carlos Mauricio, claims that he was kidnaped on June

13, 1983 and held for one and a half weeks at the National Police Headquarters.

Mauricio alleges that he was interrogated while he had his hands strung up behind

his back. He also claims that during his interrogation he was severely beaten with

a metal bar covered with rubber. It appears that he arrived in the United States in

1983.

The defendants in this case are Jose Garcia, the minister of defense of El

Salvador from 1979 to 1983, and Carlos Vides-Casanova (Casanova), the director-

general of El Salvador’s National Guard during the same period. Both defendants

moved to the United States in August 1989 and have since been residing in this

country as permanent residents.

On February 22, 2000, the plaintiffs brought this action against Garcia and

Casanova in the United States District Court for the Southern District of Florida.

Their complaint sought relief based on two general theories.1 One count relies on

the Torture Victim Protection Act of 1991 (TVPA), 28 U.S.C. § 1350 note (2000).

1

The plaintiffs describe the defendants’ acts with different terms, ranging from crimes

against humanity to arbitrary detention, and from torture to cruel, inhuman, and degrading

treatment. We focus on the gravamen on the plaintiffs’ claims and not the different ways in

which they are styled.

3

The others rely on the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350 (2000),

and its connection with corresponding causes of action.

The defendants filed an answer asserting several defenses, including lack of

subject-matter jurisdiction and the running of the statute of limitations. On April

27, 2001, the defendants filed a “motion for judgment on the pleadings” on

statute-of-limitations grounds, contending that the acts of which the plaintiffs

complained occurred more than ten years prior to the lawsuit. In a sparse one-

page order, the district court rejected this motion, holding that the plaintiffs’

claims “were [equitably] tolled at least until the Salvadoran civil war ended on

January 16, 1992, which is the date the Salvadoran Peace Accords were negotiated

under the auspices of the United Nations, and the independence of the judiciary

was restored in El Salvador.” The defendants immediately filed a “motion for

amendment of judgment,” arguing that the court should not have tolled the statute

of limitations because the defendants were subject to service of process for more

than ten years following the last alleged act of torture. The court rejected this

motion without explanation.

On October 23, 2001, the defendants filed a “motion to dismiss [for lack of]

subject matter jurisdiction.” They argued that the plaintiffs had failed to state a

cause of action under the ATCA. Three days later, they filed a motion for

4

“judgment on the pleadings [for] failure to state a claim,” raising similar

arguments. At that time, they also filed a “motion to dismiss [due to the] statute of

limitations” and a “motion for judgment on the pleadings [due to the] statute of

limitations,” which were virtually identical to each other. The plaintiffs responded

that these motions were redundant and untimely. The district court issued an

omnibus order denying, without explanation, all of the motions except the last

two.

At trial, the jury awarded the three plaintiffs $54.6 million in compensatory

and punitive damages. The defendants filed a motion styled “Motion for

Judgment as a Matter of Law and/or Motion for New Trial/Statute of Limitations,”

arguing that the verdicts should be overturned because the plaintiffs’ claims were

time-barred. The court denied this motion without written explanation. The

defendants now appeal, contending that the district court should have dismissed

the plaintiffs’ ATCA and TVPA claims under the relevant statutes of limitations.

This opinion focuses on two issues. First, in Part II, we discuss whether we

have subject-matter jurisdiction. Second, in Part III, we discuss whether the

plaintiffs asserted a cause of action within the relevant statute of limitations. We

conclude that although we have jurisdiction, the plaintiffs failed to assert a cause

5

of action within the statute of limitations. Accordingly, we reverse the district

court’s judgment.

II.

As stated above, the plaintiffs bring claims based on the TVPA and the

ATCA. Before we evaluate these claims, we must determine whether we have

jurisdiction because courts have a duty to consider their subject-matter jurisdiction

sua sponte. TVA v. Whitman, 336 F.3d 1236, 1257 n.34 (11th Cir. 2003).

One potential basis for jurisdiction is federal-question jurisdiction under

section 1331: “The district courts shall have original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties of the United States.” 28

U.S.C. § 1331 (2000). Here, federal-question jurisdiction applies because the

plaintiffs’ first claim for relief is brought under the TVPA, which provides a

federal cause of action against “[a]n individual who, under actual or apparent

authority, or color of law, of any foreign nation” subjects another to torture or

extrajudicial killing. 28 U.S.C. § 1350 note (2000).

In turn, this federal-question jurisdiction predicated upon the TVPA also

provides jurisdiction for the remainder of the plaintiffs’ claims—including those

causes of action relying on the ATCA—based on the same underlying acts of

torture under principles of supplemental jurisdiction. See 28 U.S.C. § 1367(a)

6

(2000) (giving district courts “supplemental jurisdiction over all claims . . . that are

so related to claims in the action within such original jurisdiction that they form

part of the same case or controversy under Article III of the United States

Constitution”). Accordingly, this court has jurisdiction to hear all of the plaintiffs

claims.2 Having established jurisdiction, we will now address whether the

plaintiffs pursued their claims too late.

III.

In this Part, we focus on the statute of limitations. Part III.A defines the

relevant statute of limitations for both the ATCA and the TVPA. Part III.B

addresses whether the ATCA and the TVPA are potentially subject to equitable

tolling, which is the “doctrine under which plaintiffs may sue after the statutory

time period has expired if they have been prevented from doing so due to

inequitable circumstances.” Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703,

706 (11th Cir. 1998) (citations omitted). Part III.C applies these rules and

concludes that the plaintiffs failed to present sufficient evidence to qualify for

equitable tolling.

2

The conclusion that we have federal-question jurisdiction says nothing about other

potential bases of jurisdiction, such as jurisdiction under the ATCA for torts in violation of the

law of nations. 28 U.S.C. § 1350 (2000); see also Sosa v. Alvarez-Machain, __ U.S. __, 124 S.

Ct. 2739, 2754, 159 L. Ed. 2d 718 (2004) (stressing that the ATCA is jurisdictional only).

7

A.

The TVPA contains an express ten-year statute of limitations. 28 U.S.C. §

1350, historical and statutory notes § 2(c) (“No action shall be maintained under

this section unless it is commenced within 10 years after the cause of action

arose.”).

The ATCA, however, does not contain an express statute of limitations.

When confronted with a federal statute that does not contain a limitations period,

we look to the statute’s closest state-law analogue to determine the limitations

period that the statute implicitly contains. See Reed v. United Transp. Union, 488

U.S. 319, 324, 109 S. Ct. 621, 625, 102 L. Ed. 2d 665 (1989) (noting the “general

rule that statutes of limitation are to be borrowed from state law”). However,

“when a rule from elsewhere in federal law clearly provides a closer analogy than

available state statutes, and when the federal policies at stake and the practicalities

of litigation make that rule a significantly more appropriate vehicle for interstitial

lawmaking, we have not hesitated to turn away from state law.” DelCostello v.

Int’l Bhd. of Teamsters, 462 U.S. 151, 172, 103 S. Ct. 2281, 2294, 76 L. Ed. 2d

476 (1983).

Several courts have held that the ATCA’s implicit limitations period should

be based on the TVPA because the statutes—and the policies behind the

8

statutes—are similar. E.g., Papa v. United States, 281 F.3d 1004, 1012-13 (9th

Cir. 2002); Doe v. Islamic Salvation Front, 257 F. Supp. 2d 115, 119 (D.D.C.

2003); Estate of Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1345, 1363 (S.D.

Fla. 2001); Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189, 1194-96 (S.D.N.Y.

1996). These courts point to many similarities between the statutes: purpose

(protecting human rights), mechanism (civil suits to protect human rights), and

location within the United States Code (provisions of the TVPA were added to the

ATCA). See Papa, 281 F.3d at 1012 (chronicling these and other reasons). We

join this consensus and adopt the TVPA’s ten-year statute of limitations for claims

brought under the ATCA.

In sum, the ATCA and the TVPA share the same ten-year statute of

limitations. Accordingly, my analysis of the statute of limitations under the ATCA

and the TVPA is the same because the underlying statute of limitations is the

same.

B.

As stated in Part III.A, the TVPA and the ATCA contain the same ten-year

statute of limitations. The general rule is that statute of limitations are subject to

equitable tolling. See United States v. Locke, 471 U.S. 84, 94 n.10, 105 S. Ct.

1785, 1792 n.10, 85 L. Ed. 2d 64 (1985) (“Statutory filing deadlines are generally

9

subject to the defenses of waiver, estoppel, and equitable tolling.”); Young v.

United States, 535 U.S. 43, 49, 122 S. Ct. 1036, 1040, 152 L. Ed. 2d 79 (2002) (“It

is hornbook law that limitations periods are customarily subject to equitable

tolling unless tolling would be inconsistent with the text of the relevant statute.”

(quotation marks and citations omitted)).

Here, there is nothing in the text, structure, or legislative history of the

TVPA that changes this general rule. To the contrary, the TVPA’s legislative

history demonstrates that Congress affirmatively intended that equitable tolling be

available. For example, the House Report accompanying the TVPA states that

“[i]n some instances, such as where a defendant fraudulently conceals his or her

identification or whereabouts from the claimant, equitable tolling remedies may

apply to preserve a claimant’s rights.” H.R. Rep. No. 102-367(I), at 5 (1991),

reprinted in 1992 U.S.C.C.A.N. 84, 88. The Senate Report similarly declares:

The statute of limitations should be tolled during the time the

defendant was absent from the United States or from any jurisdiction

in which the same or a similar action arising from the same facts may

be maintained by the plaintiff, provided that the remedy in that

jurisdiction is adequate and available. Excluded also from calculation

of the statute of limitations would be the period in which the plaintiff

is imprisoned or otherwise incapacitated. It should also be tolled

where the defendant has concealed his or her whereabouts or the

plaintiff has been unable to discover the identity of the offender.

S. Rep. No. 102-249, at 11 (1991) (footnotes omitted).

10

Because of the general rule in favor of equitable tolling, as well as the

unambiguous legislative history, the TVPA’s—and accordingly the

ATCA’s—statute of limitations is potentially subject to equitable tolling. Other

courts have reached this same conclusion. E.g., Estate of Cabello, 157 F. Supp. 2d

at 1368.

C.

The district court held that the plaintiffs were entitled to equitable tolling

until the Salvadoran civil war ended on January 16, 1992. We review these types

of equitable-tolling holdings de novo.3 Drew v. Dep’t of Corr., 297 F.3d 1278,

1283 (11th Cir. 2002); Helton v. Sec’y for the Dep’t of Corr., 259 F.3d 1310, 1312

(11th Cir. 2001).

Equitable tolling is appropriate only in “extraordinary circumstances.”

Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). To illustrate,

“extraordinary circumstances” can be those “that are both beyond [the plaintiff’s]

control and unavoidable even with diligence.” Id. For more examples, equitable

tolling may be appropriate if a “claimant has received inadequate notice; or where

3

As noted earlier, the defendants repeatedly moved both for dismissal and for judgment

as a matter of law on statute-of-limitations grounds. There is thus no basis for the plaintiffs’

argument that the defendants failed to preserve their statute-of-limitations defenses. We

therefore reject the plaintiffs’ contention that we must review some of the defendants’ arguments

under a “plain error” standard.

11

a motion for appointment of counsel is pending and equity would justify tolling

the statutory period until the motion is acted upon; or where the court has led the

plaintiff to believe that she had done everything required of her.” Baldwin County

Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 S. Ct. 1723, 1725-26, 80 L. Ed.

2d 196 (1984) (citations omitted).

The most common example of an extraordinary circumstance is when the

defendant’s misconduct induced the plaintiff into allowing the filing deadline to

pass. See Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 458,

112 L. Ed. 2d 435 (1990) (stating that equitable tolling applies when “the claimant

has actively pursued his judicial remedies by filing a defective pleading during the

statutory period, or where the complainant has been induced or tricked by his

adversary’s misconduct into allowing the filing deadline to pass” (emphasis

added)); Baldwin City Welcome Ctr., 466 U.S. at 157, 104 S. Ct. at 1726

(permitting tolling if “affirmative misconduct on the part of a defendant lulled the

plaintiff into inaction”); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (“We

recently explained that equitable tolling applies principally where the plaintiff is

actively misled by the defendant about the cause of action or is prevented in some

extraordinary way from asserting his rights.”). Indeed, without defendant

misconduct, courts have “generally been much less forgiving in receiving late

12

filings where the claimant failed to exercise due diligence in preserving his legal

rights.” Irwin, 498 U.S. at 96, 111 S. Ct. at 458; Wakefield v. R.R. Ret. Bd., 131

F.3d 967, 969 (11th Cir. 1997). Thus, there are many types of extraordinary

circumstances, but they often involve defendant misconduct.

To qualify for equitable tolling, “[t]he burden is on the plaintiff.” Justice v.

United States, 6 F.3d 1474, 1479 (11th Cir. 1993); accord Bost v. Fed. Express

Corp., 372 F.3d 1233, 1242 (11th Cir. 2004) (“[T]he plaintiffs must establish that

tolling is warranted.”). The plaintiff bears this burden because equitable tolling is

an exception to the rule of the statute of limitations, not the rule itself. Pac.

Harbor Capital, Inc. v. Barnett Bank, N.A., 252 F.3d 1246, 1252 (11th Cir. 2001);

see also Irwin. 498 U.S. at 96, 111 S. Ct. at 457 (“Federal courts have typically

extended equitable relief only sparingly.”). Placing this burden on the plaintiff

serves important social functions: “Statutes of limitations are not arbitrary

obstacles to the vindication of just claims, and therefore, should not be given

grudging application. They protect important social interests in certainty,

accuracy, and repose.” Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452-53

13

(7th Cir. 1990). Here, the plaintiffs seek to satisfy their burden by proving that

their circumstances are extraordinary in four ways.4 We consider each in turn.

First, the plaintiffs argue that the civil war in El Salvador, combined with

the power of the Salvadoran military, qualifies as an “extraordinary circumstance.”

The plaintiffs make this argument by citing several decisions, including Hilao v.

Estate of Marcos, 103 F.3d 767, 773 (9th Cir. 1996), Estate of Cabello, 157 F.

Supp. 2d at 1368, and Doe v. Unocal, 963 F. Supp. 880, 896-97 (C.D. Cal. 1997).

However, these cases, and the plaintiffs’ arguments, are insufficient to toll the

statute of limitations for a combination of reasons.

Initially, the situation in El Salvador seems irrelevant because most of the

plaintiffs and all of the defendants were in the United States in the 1980s.

Moreover, the plaintiffs fail to muster sufficient evidence of the defendants’

involvement.5 Instead, the plaintiffs focus on the ambient situation in El Salvador.

4

The four-fold division is ours. We subdivided the plaintiffs’ arguments to give each

argument due consideration. Nevertheless, we consider all of the circumstances. So while we

discuss each particular argument separately, we consider the plaintiffs’ arguments as a whole. As

a result, each reason for rejecting a particular argument applies to all of the plaintiffs’ other

arguments.

5

We recognize that defendant misconduct is not formally or always required for the

application of equitable tolling. E.g., Haekal v. Refco, Inc., 198 F.3d 37, 43 (2d Cir. 1999);

Hentosh v. Herman M. Finch Univ. of Health Servs./The Chicago Med. Sch., 167 F.3d 1170,

1174 (7th Cir. 1999); Browing v. AT&T Paradyne, 120 F.3d 222, 226 (11th Cir. 1997).

Nevertheless, we look at this factor in combination with other factors. The resulting totality of

circumstances suggests that the plaintiffs have failed to marshal sufficient evidence to justify

equitable tolling.

14

But given the particular facts in this case, the fact that other people or entities may

have hindered the plaintiff is by itself insufficient to trigger equitable tolling.

Therefore, the lack of cooperation from the Salvadoran government from 1983

(when the defendants left office) to 2000 (when the plaintiffs filed suit) is not

sufficient to toll the statute of limitations. Cf. Bodner v. Banque Paribas, 114 F.

Supp. 2d 117, 135 (E.D.N.Y. 2000) (holding that “[t]here is no reason that

plaintiffs should be denied a forum for addressing their claims as a result of

deceitful practices by the defendants which have kept them from knowing or

proving the extent of these claims”) (emphasis added); Iwanowa v. Ford Motor

Co., 67 F. Supp. 2d 424, 467 (D.N.J. 1999) (“To avoid dismissal, a complaint

asserting equitable tolling must contain particularized allegations that the

defendant actively misled the plaintiff.” (emphasis added) (quotation marks and

citation omitted)).

Finally, we are not persuaded by the cases cited by the plaintiffs. None is

binding on this court. More importantly, none stands for the premise that

domestic turmoil alone constitutes “extraordinary circumstances.” Take Rosner v.

United States, 231 F. Supp. 2d 1202 (S.D. Fla. 2002), for example. In that case,

Hungarian Jews sought to have the Federal Tort Claims Act’s statute of limitations

tolled so that they could seek the return of property seized by the federal

15

government during World War II. They argued in part that equitable tolling was

justified due to “the brutal reality of the Holocaust.” Id. at 1208. While the

district court granted their request, the core of its decision rested on the fact that

the plaintiffs “were induced or tricked by the Government’s misconduct into

allowing the filing deadline to pass.” Id. at 1209 (emphasis added); see also

Cabello Barrueto v. Fernandez Larios, 205 F. Supp. 2d 1325, 1331 (S.D. Fla.

2002) (tolling that statute of limitations, not because of General Pinochet’s death

squads, but rather because “the pre-1990 Chilean government’s concealment of the

decedent’s burial location and the accurate cause of death prevented Plaintiffs

from bringing this action until 1990”). While we recognize that some Ninth

Circuit cases have been more lenient, see, e.g., Hilao, 103 F.3d at 773, we decline

to follow their lead.

Second, the plaintiffs argue that they are entitled to equitable tolling

because the defendants “engaged in a pattern of denial about their personal

responsibility for human rights abuses in El Salvador.” Given the totality of

circumstances, we disagree.

To begin, denial does not rise to the level of misconduct usually required for

equitable tolling. As stated above, courts usually require some affirmative

misconduct, such as deliberate concealment. See, e.g., Estate of Cabello, 157 F.

16

Supp. 2d at 1368 (“Equitable tolling of the TVPA is appropriate in this case

because Chilean military authorities deliberately concealed the decedent’s burial

location from Plaintiffs . . . .”); Rosner, 231 F. Supp. 2d at 1209 (tolling the statute

of limitations because the plaintiffs “were induced or tricked by the Government’s

misconduct into allowing the filing deadline to pass”). Moreover, it is common

for people to deny wrongdoing, particularly when they are not under oath or when

they have no duty to disclose. Indeed, to accept the plaintiffs’ argument would be

to impose upon litigants an affirmative duty to disclose information before

litigation begins.

The plaintiffs finally fail to show how these denials prevented them from

proving their claims. Instead, the plaintiffs admit in their briefs that their claims

did not rest on much “direct” evidence beyond their own testimony, but was

instead based on testimony of

a medical expert, evidence from diplomatic observers who met

frequently with defendants (including Robert White, U.S.

Ambassador to El Salvador from 1979-80), political, legal, and

military experts, human rights workers who personally witnesses [sic]

or monitored the abuses of the Salvadorean military, and an

investigator from the U.N.-sponsored Commission on the Truth for El

Salvador (the U.N. “Truth Commission”). Plaintiffs also introduced

into evidence numerous declassified cables of the U.S. State

Department on political and military topics pertaining to El Salvador.

17

“The essence of the doctrine of equitable tolling of a statute of limitations is that a

statute of limitations does not run against a plaintiff who is unaware of his cause

of action.” Bodner, 114 F. Supp. 2d at 135 (citing Long v. Abbott Mortgage

Corp., 459 F. Supp. 108, 113 (D. Conn. 1978)). Here, the plaintiffs were aware of

their own experiences, and the lion’s share of their other evidence is from the

testimony of experts. It is therefore unclear how the defendants hindered the

plaintiffs from accessing any of this evidence. In sum, the defendants’ mere

denials are insufficient to warrant equitable tolling. See e.g., Deutsch v. Turner

Corp., 324 F.3d 692, 718 (9th Cir. 2003) (upholding the district court’s decision

that an allegation “that the defendants had kept the plaintiffs ignorant of essential

facts in the defendants’ possession” was “insufficient to trigger tolling”).

Third, Plaintiff Neriz Gonzalez argues that the statute of limitations should

be equitably tolled for her until 1997, when she left El Salvador and arrived in the

United States. This does not constitute an extraordinary circumstance, in large

part because a plaintiff’s residency is largely within her control. Indeed, nothing

in the record suggests that anyone prevented Gonzalez from coming to the United

States earlier, as her two co-plaintiffs did in 1983. Furthermore, although it would

have involved logistical difficulties, it is quite possible that Gonzalez could have

commenced her suit in a United States court despite being in El Salvador. Indeed,

18

from El Salvador she could have contacted an attorney in the United States, any of

the public-interest organizations involved in this litigation, other nongovernmental

organizations, or other entities.

Gonzalez counters by arguing that Salvadoran courts were unavailable to

hear her case. This argument misses the point: the fact that a foreign country’s

courts were unavailable does not explain why a suit could not have been brought

in this country. See In re World War II Era Japanese Forced Labor Litig., 164 F.

Supp. 2d 1160, 1181 (N.D. Cal. 2001) (“[The plaintiff’s] reference to the Japanese

government’s alleged suppression of similar claims brought by Korean forced

laborers in Japan shortly after the war does not explain why the same claims could

not have been alleged in a United States Court.”). Indeed, even the cases that

Gonzalez cites speak to the availability of a United States court, not a foreign

court. See, e.g., Hanger v. Abbott, 73 U.S. (6 Wall.) 532, 541, 18 L. Ed. 939

(1868) (tolling a statute of limitations for a diversity-based suit in federal district

court because the courts were closed during the United States Civil War).6

6

The Ninth Circuit has reached the opposite conclusion. See Hilao, 103 F.3d at 773

(equitably tolling the statute of limitations during years in which the writ of habeas corpus was

suspended in the Philippines and Philippine courts were unavailable). We do not follow the

Ninth Circuit’s lead because there are several factual differences between Hilao and our case, and

because the Ninth Circuit’s lenient approach toward equitable tolling softens the rigors of what

constitutes extraordinary circumstances.

19

Fourth, the plaintiffs argue that the statute of limitations should be equitably

tolled until the defendants took up residency in the United States. The plaintiffs

make this argument by citing the legislative history of the TVPA and one case on

point, Hilao. The legislative history suggests that tolling could apply in many

circumstances, including if “the defendant was absent from the United States or

from any jurisdiction in which the same or a similar action arising from the same

facts may be maintained by the plaintiff, provided that the remedy in that

jurisdiction is adequate and available.” S. Rep. No. 102-249 at 11 (1991).

Preceding this statement, however, are reminders that the Senate’s examples are

“[i]llustrative, but not exhaustive,” and that courts must consider “all equitable

tolling principles.” Id. at 10-11. These tolling principles include the affirmative

role of the court to consider the equitable circumstances. Cf. Baldwin County

Welcome Ctr., 466 U.S. at 151-52, 104 S. Ct. 1725-26 (discussing different types

of cases and factors that courts consider in deciding equitable-tolling cases). It is

not clear from this history that a defendant’s absence from a jurisdiction is alone

sufficient to toll the statute. Moreover, the legislative history does not dispose of

our consideration; rather, it provides guidance. Our consideration is also guided

by our case law, which stresses the role of the plaintiff’s diligence in pursuing a

cause of action and the defendant’s efforts to thwart that diligence. See generally

20

Drew, 297 F.3d at 1286-87. Here, the defendant’s absence is not enough to toll

the statute, especially given the lack of affirmative misconduct from the

defendants, the lack of diligence by the plaintiffs, and the litany of other factors

discussed in this subpart.

The plaintiffs cite Hilao to support their argument. It is true that Hilao cites

the legislative history quoted above, but it is not true that Hilao stands for the

monolithic proposition that the defendant’s absence is alone sufficient to require

tolling. Instead, Hilao focuses on a confluence of factors, such as a constitutional

amendment granting the defendant “immunity from suit during his term in office,”

“fear of reprisals,” and other factors. Moreover, the plaintiffs do not argue that a

court would not have equitably tolled the statute if their claims had been timely

filed (even if the defendants could not have been served), an option that plaintiffs

should have pursued. Thus, the facts in this case, including the defendants’

absence, do not constitute an extraordinary circumstance that warrants equitable

tolling. Rather, the facts are more similar to cases in which the plaintiffs failed to

diligently exercise their rights. See e.g., id. at 1286-87 (“In order to be entitled to

the benefit of equitable tolling, a petitioner must act with diligence, and the

untimeliness of the filing must be the result of circumstances beyond his

control.”); Sandvik, 177 F.3d at 1272 (holding that a late-filed motion did not

21

constitute an extraordinary circumstances because “[w]hile the inefficiencies of

the United States Postal Service may be a circumstance beyond [the plaintiff’s]

control, the problem was one that . . . could have avoided by mailing the motion

earlier or by using a private delivery service or even a private courier”).

After dismissing each of the plaintiffs’ arguments for equitable tolling, we

conclude by noting the dangerous precedent that this case could set if those

arguments were accepted. From a United States perspective, there are many

countries that oppress their citizens today, and many countries that have oppressed

their citizens in decades and centuries past. A lenient approach toward equitable

tolling would mean that United States courts would hear claims dating back

decades, if not centuries. In enacting a statute of limitations for the TVPA,

Congress surely did not intend to permit such trial-by-excavation, at least not

absent extraordinary circumstances. Courts would wind up with cases that are

based not on witnesses with personal knowledge, but instead on the generalized

testimony of human-rights workers, diplomats, and assorted experts. Much of the

evidence would pertain not to the particular incidents at issue, but to the

illegitimacy of an overall regime. Nevertheless, the plaintiffs’ failure in this case

to qualify for equitable tolling is not a death knell for future claimants. Instead, it

22

is merely a recognition that “extraordinary circumstances” is reserved for

extraordinary facts, and not for a plaintiff’s failure to timely assert her rights.

For these reasons, we conclude that the plaintiffs failed to satisfy the

requirements for equitable tolling, that their claims were time-barred, and that the

jury verdict should be vacated and the plaintiffs’ claims dismissed.

The district court’s judgement is

REVERSED.

23