Commercial Litigation and Arbitration

Alien Tort Claims Act Applies Only to Conduct Committed Abroad or with an “International Savor” — Trafficking Victims Protection Reauthorization Act Preempts ATCA Claim Based on Human

Trafficking in the U.S. From Velez v. Sanchez, 2010 U.S. Dist. LEXIS 126586 (E.D.N.Y. Nov. 30, 2010):

Linda Velez ("Velez") claims that she was trafficked from Ecuador and forced to work in the home of Betsy Sanchez ("Betsy"). That single assertion spawned *** claims under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, [and other statutory and common law claims]. ***

The Court has no doubt that human trafficking and forced labor violate specific norms accepted by the civilized world. Accord Adhikari v. Daoud & Partners, 697 F. Supp. 2d 674 (S.D.Tex. 2009); Licea v. Curaçao Drydock Co., 584 F. Supp. 2d 1355 (S.D.Fla. 2008). Two other considerations, however, lead the Court to conclude that the ATS does not confer jurisdiction over Velez's claims.

First, the expanded role for the ATS has always been understood as covering torts committed abroad. See, e.g., Sosa, 542 U.S. at 715 (defining law of nations as, inter alia, "a body of judge-made law regulating the conduct of individuals situated outside domestic boundaries and consequently carrying an international savor"); Kiobel, 621 F.3d at 116 (noting that ATS litigation poses unique problems, in part because "the events took place abroad and in troubled or chaotic circumstances"). As a result, the Court has not found a single post-Filartiga case addressing claims arising out of domestic conduct; all of the conduct of which Velez complains occurred in the United States. Although no case holds that the ATS covers only torts occurring abroad, the Court is confident, as a matter of first impression, that Velez's claims of domestic human trafficking and forced labor are not within Filartiga's conception of the statute's grant of jurisdiction.

[Footnote 5] The 18th-century conception of the statute contemplated that some actionable violations of the law of nations would occur on United States soil. Indeed, one of the motivations for the ATS may have been an incident "in which a French adventurer, De Longchamps, verbally and physically assaulted the Secretary of the French Leg[at]ion in Philadelphia." Sosa, 542 U.S. at 716. This original concern with torts against diplomats further reinforces the conclusion that the ATS is limited to torts with "an international savor." Id. at 715. Here, Velez's status as a foreign national is pure happenstance; she could just as easily have been sent from Idaho as from Ecuador.

Second, even if, arguendo, the ATS had conferred jurisdiction over such claims, that jurisdiction has now been implicitly withdrawn. In 2003, Congress enacted the Trafficking Victims Protection Reauthorization Act ("TVPRA"), Pub. L. 108-193, 118 Stat. 2875, which, among other things, created a private right of action for any "individual who is a victim of a violation" of the federal criminal laws prohibiting human trafficking and forced labor. Id. § 4(a)(4), 117 Stat. at 2878 (codified at 18 U.S.C. § 1595). The act took effect on December 19, 2003, see 18 U.S.C. § 1595 note, almost a year before Velez commenced this action.

Section 1595 creates claims identical to Velez's ATS claims. From that, the Court concludes — again, as an apparent matter of first impression — that Congress has, as the Supreme Court contemplated it might in Sosa, limited ATS jurisdiction by enacting a statute that occupies the field of civil remedies for human trafficking and forced labor.

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