09feb04

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Summary of proceedings in the case "J. Doe v. Álvaro Rafael Saravia".

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

J. Doe, Plaintiff, -against- Alvaro Rafael Saravia; and Does 1-10 inclusive, Defendants

CIV-F-03-6249 OWW LJO
Order after scheduling Conference

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Index

I. Date of Scheduling Conference
II. Appearances Of Counsel
III. Summary of Pleadings
IV. Orders Re Amendments To Pleadings
V. Factual Summary
VI. Legal Issues
VII. Consent to Magistrate Judge Jurisdiction
VIII. Corporate Identification Statement
IX. Discovery Plan and CUt-Off Date

I. Date of Scheduling Conference

February 5, 2004.

II. Appearances Of Counsel

Heller Ehrman White & McAuliffe LLP by Nicholas W. Van Aelstyn, Esq., and Russell P. Cohen, Esq.; and the Center for Justice & Accountability by Matthew J. Eisenbrandt, Esq., all appeared on behalf of Plaintiff.

Alvaro Rafael Saravia did not appear.

III. Summary of Pleadings

1. Oscar Arnulfo Romery y Galdamez, Archbishop of San Salvador and a leading figure in the struggle for human rights in El Salvador ("Archbishop Romero"), was assassinated on March 24, 1980, while celebrating mass in the Chapel of the Hospital of Divine Providence. Plaintiff, a relative of Archbishop Romero (who has obtained an Order from the Court permitting this action to be brought under the pseudonym J, Doe for reasons of personal safety), alleges that Captain Alvaro Rafael Saravia Merino ("Saravia") is liable for ordering, conspiring to commit, and aiding and abetting the Archbishop's assassination, and seeks compensatory and punitive damages.

2. Plaintiff asserts that Saravia has violated the law of nations, including the prohibition against extrajudicial killing and crimes against humanity, and for violation of the prohibition against extrajudicial killing under the Torture Victim Protection Act ("TVPA"), Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note). This Court has jurisdiction OVer this action under the Alien Tort Claims Act ("ATCA"), 28 U.S.C.§ 1350, and 28 U.S.C. § 1331.

IV. Orders Re Amendments To Pleadings

1. The parties do not anticipate filing any amendments to the pleadings at this time.

2. Defendant Saravia has not answered the complaint. Plaintiff believes valid service has been effectuated and will seek to move for default judgment on its claims.

3. Despite diligent efforts to make personal service on Saravia at his usual mailing address, his former business in Modesto, Californial and at the Florida residence of his son and daughter, plaintiff has thus far been unable to serVe Saravia personally with the complaint and summons.

4. Defendant Saravia was served by substitute service at his usual mailing address, 2401 Manor Oak Drive, Modesto,California, on October 18, 2003, and by United States mail on October 21, 2003. Substitute service was effected by leaving a copy of the Summons and Complaint at 2401 Manor Oak Drive with Ms. Ines Olsson, the owner of and a resident at that address. Ms. Olsson was informed of the contents of the Summons and Complaint, and a copy of the Summons and Complaint was also mailed to Saravia at 2401 Manor Oak Drive. Saravia lived at the Manor Oak address, registered a number of businesses to that address, and was involved in a personal and business relationship with Ms. Olsson.

5. Defendant Saravia's time to answer the Complaint has passed.

6. Additional "Doelt defendants are named in the Complaint. It is believed that these individuals were involved in the assassination of Archbishop Romero at (1) the operational level, (2) as intellectual authors of the crime; and (3) as financiers who funded the assassination and the operation of death squads generally. The investigation into these individuals is ongoing and it is anticipated that some may be named as additional defendants.

V. Factual Summary

A. Admitted Facts Which Are Deemed Proven Without Fur'ther Proceedings.

1. Defendant Saravia has not answered the complaint. Accordingly, the following facts, set out in the complaint, are uncontested.

2. Defendant Saravia is a Salvadoran citizen and is a resident of the City of Modesto in Stanislaus County, California. Saravia previously served as a captain in the Salvadoran Air Force. In 1979, he resigned or was discharged from the military, and from that time worked closely with Major Roberto D'Aubuisson. D'Aubuisson, at the direction of and in conjunction with elements of the Salvadoran armed forces and far right Salvadoran civilians inside and outside of El Salvador', founded the far right political movement Frente Amplio Nacional ("the "FAN") and the far right political party Alianza Republicana Nacionalista ("ARENA"), and organized "escuadrones de la muerte," or "death squads," paramilitary organizations composed of civilians and military figures that systematically carried out politically motivated assassinations and other human rights abuses in El Salvador.

3. Archbishop Romero was appointed Metropolitan. Archbishop of San Salvador on or about February 3, 1977. This was a period of growing political tension in El Salvador in which the miliary and security forces, and associated paramilitary groups, began engaging in a pattern of massive human rights abuses. By the early 1980s, as many as 1,000 civilians were being murdered each month.

4. During his tenure as Archbishop, Romero became an outspoken critic of the increasing human rights abuses being committed by the Salvadoran armed forces. His weekly homilies, broadcast nationally by radio, regularly exposed grave human rights violations committed by Salvadoran military and security forces. These weekly sermons capti.vated the Salvadoran people, and Archbishop Romero quickly became the most prominent figure in the struggle for human rights in El Salvador. Archbishop Romero was widely viewed as the voice of the Salvadoran oppressed as he increasingly advocated for the interests of the Salvadoran poor and those victimized or affected by the violence being committed by the armed forces.

5. As a result, the Salvadoran military and security forces came to perceive Archbishop Romero as a threat. He received death threats throughout the winter of 1979 and early 1980. On March 10, 1980, a briefcase containing a bomb was found behind the pulpit of the church at which Archbishop Romero had said mass the day before. The mass had been held on behalf of Christian Democratic Party leader and Chief State Counsel Mario Zamora, who had been murdered at his home shortly after the FAN publicly accused Zamora of being a member of "subversive" groups.

6. On March 23, 1980, Archbishop Romero delivered a sermon telling soldiers, "In the name of God, in the name of this suffering people whose cry rises to heaven more loudly each day, I implore you, I beg you, I order you: Stop the repression." The next day Archbishop Romero was killed by a sniper's bullet while performing mass in the Chapel of the Hospital of Divine Providence. No person has been criminally prosecuted for this politically-motivated and state-sponsored assassination.

7. Following a 1979 coup d'etat led by reformist junior officers in the Salvadoran armed forces, a number of officers identified with the Salvadoran far right resigned from the military and security forces. These officers included Major D'Aubuisson and Defendant Saravia. Prior to leaving the Salvadoran armed forces in 1979, D'Aubuisson held a high position in ANSESAL, the Salvadoran national intelligence agency which coordinated with intelligence units in all branches of the Salvadoran military and security forces and conducted surveillance against Salvadoran civilians.Upon his departure, D'A,wuisson, with the apparent per.mission of active military officers, took extensive ANSESAL intelligence files including inves tiga ti ve f i Ie s on thous ands of Sal vador'an ci vi lians

8. Following his departure from official military duty, and at the direction of and/or with the financial and logistical support of the Salvadoran armed forces and far right Salvadoran civilians inside and outside El Salvador, Major D'Aubuisson organized and began to lead a network of paramilitary groups or cells composed of then-active and former military officers and civilians dedicated to carrying out acts of political violence. At the direction of and/or with the financial and logistical support of the Salvadoran armed forces and far right Salvadoran civilians inside and outside El Salvador, D'Aubuisson simultaneously sought to create a public facade for these violent activities through a far right political movement under the banner of the FAN and, later, the ARENA party.

9. Paramilitary groups organi.zed by D'Aubuisson, known as "escuadrones de la muerte," or "death squads," participated in a widespread and systematic assault against Salvadoran civilians in conjunction with the Salvadoran armed and security forces that included intimidation, assault, abduction, torture, summary killings, and disappearances. These groups targeted individuals perceived as members or sympathizers of moderate and left wing political parties or guerrilla organizations, and groups and individuals who focused on the needs of farmers, workers, and the poor. Victims included labor activists, students, members of the clergy, farmworkers, villages in conflict zones, and leaders, officials, and members of various political parties, including the Christian Democratic Party, the Social Democratic Party, and the Democratic Revolutionary Front.

10. In or about early 1980, Major D'Aubuisson, Defendant Saravia and other far right military and civilian members of a group close to Major D'Aubuisson met to discuss and plan the executions of Archbishop Romero and other prominent civilian leaders perceived to be opponents of the Salvadoran armed forces. Defendant Saravia made arrangements to obtain weapons, vehicles, and other material necessary for these actions.

11. On or about March 24, 1980, Major D'Aubuisson, Defendant Saravia and others gathered at the home of a D'Aubuisson supporter in San Salvador. The group was informed that Archbishop Romero would be celebrating a mass that day and proposed that this provided a good opportunity to carry out the already approved assassination. D'Aubuisson agreed, and the group began to make arrangements.

12. Defendant Saravia coordinated the group. Among other things, he ordered his personal driver to take a car and transport the assassin to the murder site by following another car to the Chapel of the Hospital of Divine Providence. After the assassin shot and killed Archbishop Romero, Saravia's driver returned the assassin to the home from which they had departed earlier in the day. Upon returning to that location, the assassin informed Saravia, who was present, that the mission had been accomplished. Saravia then took the assassin inside the house. Later, Saravia notified Major D'Aubuisson that the group's plan to assassinate Archbishop Romero had been accomplished. Saravia also delivered a sum of money, which earlier had been provided to him to pay the assassin, to the assassin or his agent.

13. In furtherance of the conspirators' plan, design, and scheme to assassinate Archbishop Romero, National Police and other government officials charged with investigating the assassination failed to conduct a timely investigation, failed to collect and preserve material evidence. and failed to identify witnesses or take their statements. Just three days after the assassination, the investigating judge to whom the Romero case had been assigned, Judge Atilio Ramirez Amaya, was forced to flee the country after an attempt was made to kill him in his own home. Additionally, a witness, who had entered the Chapel of the Hospital of Divine Providence just after the assassination and witnessed the assassin's flight, was kidnapped and remains disappeared.

14. The United Nations Commission on the Truth for El Salvador and the Inter-American Commission on Human Rights conducted separate extensive investigations into the assassination of Archbishop Romero. The U.N. Truth Commission found that Saravia was Uactively involved in planning and carrying out the assassination" because he was in charge of the operation and was involved in paying the assassin's fees. The Inter-American Commission concluded that the State of El Salvador violated Archbishop Romero's right to life. In fact, the Inter-American Commission found that, in 1980 and 1981, death squad operations were frequently coordinated with the Armed Forces. The clandestine nature of their actions made it possible to cover up the state responsibility and to create an ambience of total impunity for the killers". Furthermore, "the death squads incorporated active members of the state security forces in their ranks and had the support of the corresponding official institutions." The Commissions both concluded that the Salvadoran government conspired to cover up responsibility for the assassination.

15. Defendant Saravia left El Salvador in or about 1985 and first arrived in the United States in or about 1985 or 1986. In 1987, a Salvadoran court initiated a criminal proceeding against Saravia for his alleged role i.n Archbishop Romero's assassination and requested his extradition from the United States. Saravia was detained in south Florida on immigration grounds while the extradition proceeding remained pending. In 1988, under questionable circumstances, the Supreme Court of El Salvador ruled that the arrest order and extradition request for Saravia were invalid. The U.N. Truth Commission found that the Salvadoran Supreme Court "played an active role that served to hinder the extradition from the United States and later imprisonment of former Capt. Saravia in El Salvador." After the extradition request was withdrawn, Saravia posted bond and was freed from detention. He has lived freely in the United States since that time.

16. No person has ever been held criminally responsible, let alone prosecuted for Archbishop Romero's assassination.

17. Following U.N.-supervised elections held pursuant to the Salvadoran Peace Accords, the first democratically-elected government took office in El Salvador on June 1, 1994. Prior to that time, the military and security forces held enormous power, and any person who leveled allegations against active or former members of the military not only risked reprisal but also the futility of confronting an institution that consistently and vigorously denied that human rights abuses were committed by its members and obfuscated investigations into those abuses. Even after the Salvadoran security forces were disbanded pursuant to the Peace Accords, Salvadoran courts were still unable or unwilling to hear most claims for human rights violations against individuals for alleged involvement in financing, ordering, assisting, or carrying out death squad killings, including the assassination of Archbishop Romero. Even today, survivors of torture and relatives of killings committed by Salvadoran death squads and the armed forces as far bas as the 1970s and early 1990s have declined to bring claims in El Salvador or elsewhere against the individuals responsible for fear of violent reprisals.

B. Contested Facts.

1. Defendant has not responded to the complaint, therefore, there are no contested facts to date.

VI. Legal Issues

A. Uncontested.

1. Jurisdiction exists under 28 U.S.C. § 1332.
2.Venue is proper under 28 U.S.C. § 1391.
3.Defendant Saravia has not answered the complaint.

Based on the uncontested facts Bet out in the complaint, plaintiff intends to move for default judgment on its claims for extrajudicial killing and crimes against humanity.

4. First Claim For Relief: Extrajudicial Killing:

Plaintiff will establish that the facts set out in the complaint are sufficient to establish defendant Saravia's liability for violating the prohibition on extrajudicial killing tInder the ATCA and TVPA.

5. Second Claim For Relief: Crimes Against Humanity:

Plaintiff will establish that the facts set out in the complaint are sufficient to establish defendant Saravia's liability for committing crimes against humanity under the ATCA.

VII. Consent to Magistrate Judge Jurisdiction

1. The parties have not consented to transfer the case to the Magistrate Judge for all purposes, including trial.

VIII. Corporate Identification Statement

1. Any nongovernmental corporate party to any action in this court shall file a statement identifying all its parent corporations and listing any entity that owns 10% or more of the party's equity securities. A party shall file the statement with its initial pleading filed in this court and shall supplement the statement within a reasonable time of any change in the information.

1. Because the Defendant has not answered, discovery will not proceed.

Motion for Default Judqment

1. Defendant Saravia has failed to answer the Complaint and Plaintiff is entitled to default judgment. Plaintiff will request entry of default under Fed. R. Civ. P. 55 (a) and will rnove for default judgment for compensatory and punitive damages under Fed. R. Civ. P. 55 (b) (2) on its first and second claims for relief.

2. As we intend to explain more fully in our motion for default judgment, Plaintiff will request an evidentiary hearing to present testimony in support of the claim for compensatory and punitive damages, as well as any other issue on which the Court requests proof. An evidentiary hearing following default is not unusual in ATCA or TVPA cases. See, e.g., Mehinovicb v. Vukovic, 198 F.Supp.2d 1322, 1329 (N.D. Ga. 2002) (default judgment proceeded by bench trial with live witnesses); Doe v. Karadzic, 2001 WL 986545, S.D.N.Y., Aug. 28, 2001, *1 (discussing prior proceeding during which two-week jury trial was held on question of damages following defendant's default).

3. This case is of great importance to Plaintiff, most Salvadorans and millions more around the world who have been touched by the life and death of Archbishop Romero. It also is a beacon for the survivors and the families of victims of the death squads that turned El Salvador into a killing field. An evidentiary hearing will provide an opportunity fox Plaintiff to speak out against impunity - the impunity that has protected Defendant Saravia from prosecution for more than 20 years.

4. In support of the claim for damages, Plaintiff intends to present testimony from high members of the Roman Catholic Church in El Salvador and elsewhere, and experts in the field of political science to help quantify the impact of Archbishop Romero's assassination on Plaintiff and Salvadoran society. Church leaders will provide testimony about the rise of liberation theology, the role of the Church in giving voice to the voiceless and speaking out against oppression, the targeting of the clergy by the extreme right in El Salvador, the impact of these attacks on the Church's ministry, Archbishop Romero's rise to prominence as a champion of human rights, and the impact of his assassination on the Church and its people in El Salvador and abroad. Political scientists will explain the conditions that led to the rise of the extreme right in El Salvador, the operations of these rightist groups and the formation of death squads, and the targeting of the Church, labor leaders, peasants, students and many others from all corners of society. These witnesses will testify also about how the assassination of Archbishop Romero was a key event that pushed El Salvador into a bloody civil war that left more than 75,000 dead. This testimony will addreas the truly profound scope of the damages resulting from Archbishop Romero's assassination. In addition, evidence will be offered concerning the impact of Archbishop Romero's assassination on his family.

5. Some of these anticipated witnesses live outside the United States. Because some will be traveling for an extended period of time dur'ing spring and early sunnner 2004, it is not anticipated that they would be available before August 2004. Accordingly, subject to the Court's direction, Plaintiff anticipates filing its motion in July 2004 for an August 2004 hearing.

Alternative Dispute Resolution

1. Because the Defendant has not answered the Complaint or otherwise appeared in the case, Plaintiff is unable to participate in the Voluntary Dispute Resolution Program.

Dated: February 5, 2004.

Oliver W. Wanger
United States District Judge

J. Doe v. Saravia sch con

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United States District Court for the Eastern District of California February 9, 2004

*Certificate of Service *
1:03-cy-06249

Doe
v
Saravia

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U" S. District Court, Eastern District of California.

That on February 9, 2004, I served a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, by placing said copy{ies) into an inter-office delivery receptacle located in the Clerk's office, or, pursuant to prior authorization by counsel, via facsimile.

Nicholas W Van Aelstyn
Heller Ehrman White and McAuliffe
333 Bush Street
San Francisco, CA 94104

Joshua Nathan Sondheimer
Center for Justice and Accountability
870 Market Street
Suite 684
San Francisco, CA 94102

Carolyn Patty Blum
PRO HAC VICE
Law Office of Carolyn Patty Blum
291 West 12th Street
New York, NY 10014

OWN LJO

Jack L. Wagner, Clerk
BY: Deputy Clerk

DDHH en el Salvador

This document has been published on 30Apr04 by the Equipo Nizkor and Derechos Human Rights.