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Lawyers who obtained a $4.5 billion judgment against fugitive Radovan Karadzic for war crimes in Bosnia-Herzegovina are not entitled to fees under the Alien Tort Claims Act, a Southern District of New York judge has ruled. Federal Senior Judge Peter K. Leisure, who presided over the trial of the absent Karadzic last year, rejected claims by several attorneys for $2,193,807 in fees for their work on the case. Although the attorneys’ hopes for a recovery in Doe v. Karadzic, 93 Civ. 0878, were no better than those of the 22 Muslim citizens of Bosnia-Herzegovina who sought to hold Karadzic accountable for acts of genocide, rape and torture, they nonetheless asked Judge Leisure for fees. The suit alleged that Karadzic directed forces under his control in the self-proclaimed Bosnian-Serb state of Srpska to engage in a campaign of terror and ethnic cleansing. Karadzic, who has been indicted by an international war crimes tribunal and is still at large, was served with a summons in 1993 while visiting the United Nations as a diplomatic invitee. While he fought for years to prevent the suit from going forward, Karadzic notified Judge Leisure on June 14, 2000, that he intended not to participate in the case. Leisure issued a default judgment and proceeded to hold a trial on damages, in which several plaintiffs gave emotional testimony as to their brutal treatment, including mass rape, at the hands of Karadzic’s troops. After the $4.5 billion verdict was issued, lawyers for the plaintiffs sought fees on the chance that a recovery could be made against Karadzic in the future. At the outset, the lawyers acknowledged that the Alien Tort Claims Act, 28 U.S.C. �1350, does not expressly provide for a prevailing party to paid attorneys’ fees. But the lawyers argued that the tort claims act was modeled after the Civil Rights Attorneys’ Fee Act of 1976. They made similar arguments based on other allegations made at trial under the Torture Victims Protection Act of 1991, 28 U.S.C. �1331. “In a sense, attorneys’ fee awards in human rights litigation are analogous to, and indistinguishable from, the purposes of granting prevailing attorneys’ fees in civil rights actions,” the lawyers argued. They put forth their argument in a memorandum that asked Judge Leisure to invoke his discretion to make awards in civil rights cases under 42 U.S.C. �1988(b). However, Leisure was not convinced. “Plaintiffs’ argument, however, fails to account for the fact that Congress chose, for whatever reason, not to include a fee-shifting provision in Section 1350,” he said. “Indeed, if Congress had intended for a prevailing party under Section 1350 to be entitled to an award of attorneys’ fees, it could have written such an award into the statute itself.” In their memorandum, the attorneys contended that the “broad grant of authority” to judges to “award attorneys’ fees to litigants seeking to protect federally protected interests extends to beyond cases where traditional civil rights are violated and includes federal statutory rights as well.” But Judge Leisure said that the grant of authority goes only to cases where plaintiffs could have, but did not, make civil rights claims under the federal statute 42 U.S.C. �1983. AMERICAN RULE Answering the attorneys’ argument that the Alien Tort Claims Act and the Torture Victims Protection Act would become “hollow pronouncements which the average citizen cannot enforce,” Leisure said: “While the court recognizes plaintiffs’ concerns, the court cannot haphazardly decide, without statutory authorization, that Section 1350 is more important than other statutes and therefore requires a fee-shifting provision.” The attorneys next argued that Judge Leisure had the inherent power to award fees under an exception to the American Rule on fees, which states that absent a statute or enforceable contract, litigants pay their own attorneys’ fees. They said Karadzic’s default and his failure to comply with discovery orders place the case within the “bad faith exception,” to the American Rule. But Leisure said: “Here, although the court is cognizant of the fact that defendant defaulted after four years of litigation, and was not cooperative in complying with discovery requests prior to his default, defendant’s actions fail to meet the stringent requirements to warrant an award of attorneys’ fees under the bad faith exception.” Karadzic’s default and noncooperation, the judge said, cannot be considered “conduct which abuses the judicial process.” “Moreover, given the exceptional circumstances surrounding this case, it was indeed foreseeable that defendant might not appear before the court at any point during the litigation,” he said. The plaintiffs were represented by Jennifer M. Green, Anthony P.DiCaprio and Judith Chomsky of the Center for Constitutional Rights; Denis F. Sheils and Nadia Ezzelerab of Kohn, Swift & Graf in Philadelphia; Cynthia Soohoo of Covington & Burling; Theresa M. Traber of Traber, Voorhees & Olguin in Pasadena, Calif.; and James J. Silk, Ronald C. Slye, Gregory H. Fox, Heather Friedman and Paul R. Dubinsky of the Allard K. Lowenstein International Human Rights Clinic at Yale Law School.

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