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Tort/Negligence – Chaos in Somalia tolls period for torture victim’s claim

Where a torture victim failed to file suit within the 10-year statute of limitations of the Torture Victim Protection Act of 1991, or TVPA, but his expert testified about chaos in Somalia after its dictator was defeated, and the danger to the plaintiff if he asserted a claim for human-rights violations, these extraordinary circumstances supported tolling the statute of limitations.


Consistent with a jury verdict, the district court entered judgment against Yusuf Abdi Ali on Farhan Mohamoud Tani Warfaa’s claim of torture under the TVPA. On appeal, Ali does not challenge the underlying finding of culpability, but rather asserts that the district court erred in granting partial summary judgment in favor of Warfaa on Ali’s defense that the statute of limitations barred the claim because Warfaa was not entitled to equitable tolling.


The parties do not dispute that the TVPA is subject to a 10-year statute of limitations from the date the cause of action arose, and that the limitations period is subject to equitable tolling. For equitable tolling to apply, a litigant must establish “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.”

Courts addressing the TVPA and its “companion” statute, the Alien Tort Statute, have almost universally found equitable tolling appropriate where civil war and repressive authoritarian regimes significantly impeded a plaintiff’s access to a judicial remedy for claims of torture and related human rights abuses. This line of authority recognizes that regimes committing egregious human rights violations don’t ordinarily foster legal systems in which those abuses can be redressed, so permitting tolling until claimants have the ability to both compile evidence supporting their claims and pursue claims without fear of reprisal falls within the purpose of equitable tolling specifically and the TVPA more generally.

The district court did not err in determining that Warfaa’s unrebutted evidence demonstrated extraordinary circumstances justifying equitable tolling. Warfaa relied principally on an expert witness report prepared by Martin R. Ganzglass, an attorney who has written extensively about Somalia and other African countries. Ganzglass explained that the Barre dictatorship “simply ignored all laws in cases involving political prisoners, dissidents, or alleged opponents,” sometimes imprisoning such individuals “without charge or trial … under brutal conditions for years.”

He also stated that after Barre’s defeat, Somalia fell into chaos. Its central government collapsed and “disintegrated into regions or districts, controlled by warlords using clan-based militias to practice extortion, murder, rape, and robbery.” In particular, Ganzglass recounted the government’s inability to provide security and maintain a functioning court system in all regions. He further opined on the risk of retaliation to Warfaa and his family, given the specific problems with bringing a claim involving human-rights abuses perpetrated by former officials of the dictatorship, even though Barre was no longer in power. These unfavorable conditions persisted until at least 1997 and even to some degree until 2018, the date of his expert opinion.

Ali tendered no expert or other relevant evidence to refute Warfaa’s evidence or to support his position that Warfaa was not entitled to equitable tolling. Tellingly, Ali admitted in his deposition that the post-Barre chaos and violence that persisted in his country led him to file for asylum in Canada in March 1993.

Instead of coming forward with evidence to support his view that Warfaa could have pursued his claims earlier, Ali relied on speculation and conjecture that Warfaa could have pursued his claim in a refugee camp in Ethiopia or by traveling to the United States within the TVPA’s 10-year limitations period. But “[m]ere unsupported speculation” is insufficient to defeat a properly supported summary judgment motion. And the unrefuted evidence shows that even if Warfaa had an opportunity to file his claims in the United States during this period, he could not have done so safely given the continued danger to him and his family in Somalia.


Warfaa v. Ali (Lawyers Weekly No. 001-127-21, 14 pp.) (G. Steven Agee, J.) Case Nos. 19-1668 and 19-1675. June 17, 2021. From E.D. Va. (Leonie Brinkema, J.) Joseph Peter Drennan for Appellant. Paul Daniel Schmitt for Appellee.

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