District Court Dismisses ATS Claims, but Upholds Related TVPA Claims, Where All Relevant Acts Occurred in Bolivia

The World in U.S. Courts: Summer 2014 - Alien Tort Statute (ATS)/Torture Victims Protection Act (TVPA)/Victims of Trafficking and Violence Protection Act (VTVPA)/Foreign Sovereign Immunity Act (FSIA) | May.20.2014

Mamani v. Berzain, U.S. District Court for the Southern District of Florida, May 20, 2014

This ATS and TVPA suit arose as a result of the Bolivian Government’s alleged massacre of its own citizens in 2003. Plaintiffs are representatives of alleged victims; the defendants are two high-ranking former Bolivian officials now resident in the U.S.

The District Court in Florida first took up the ATS claim, noting that the U.S. Supreme Court’s 2013 Kiobel decision recognized a presumption against extraterritorial application of the statute and held that federal courts could only hear cases "touching and concerning" the United States with "sufficient force" to displace the presumption. The Court further noted that, post Kiobel, courts had only sustained complaints where “at least some--if not a substantial portion--of the relevant conduct occurred domestically.” In the case at bar, by contrast, the Court found that none of the alleged conduct had occurred in the U.S., and on that basis dismissed the ATS claim. This conclusion was not affected by the fact that the defendants were permanent residents in the U.S. and allegedly could not be sued elsewhere, and that the current Government of Bolivia supported the litigation.

The Court next considered the plaintiffs’ TVPA claim based upon the alleged “extrajudicial killing” orchestrated by the defendants. The Court observed that, unlike ATS, the TVPA does apply extrajudicially to reach defendants in the U.S. responsible for covered conduct in other countries. The Court noted, however, that the TVPA also requires that a plaintiff have exhausted available remedies. That had occurred in this case, with the plaintiffs having participated in two Bolivian compensation schemes. The defendants argued that the existence of administrative remedies precluded an independent TVPA claim, but the Court disagreed, finding that the TVPA remedy would exist even if the plaintiffs had received “adequate” compensation in Bolivia. Next, the Court considered the defendants’ argument that resolution of the claim should be delayed because plaintiffs could still pursue civil actions against seven of the defendants’ subordinates who were convicted in Bolivia for their roles in the shootings. The Court noted that the defendants bore a “substantial” burden in making this argument, and concluded that their sketchy information from the press about potential civil suits was inadequate to warrant delay.

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