Ellul v. Congregation of Christian Bros.
| Citation | 774 F.3d 791 |
| Decision Date | 08 December 2014 |
| Docket Number | Docket No. 11–1682–cv. |
| Parties | Emmanuel ELLUL, on behalf of himself and all others similarly situated, Valerie Carmack, on behalf of herself and all others similarly situated, Hazel Goulding, on behalf of herself and all others similarly situated, Plaintiffs–Appellants, v. CONGREGATION OF CHRISTIAN BROTHERS, Order of the Sisters of Mercy, Catholic Religious Order, Does 1–10, Defendants–Appellees, Mercy International Association, Defendant. |
| Court | U.S. Court of Appeals — Second Circuit |
Neal Deyoung (H. Rajan Sharma on the brief), Sharma & DeYoung LLP, New York, NY, for plaintiffs-appellants Emmanuel Ellul, Valerie Carmack, and Hazel Goulding.
Timothy James O'Shaughnessy (Matthew W. Naparty on the brief), Mauro Lilling Naparty LLP, Great Neck, NY, for defendant-appellee Congregation of Christian Brothers.
Thomas Edward Wack (Michael Gordon Biggers on the brief), Bryan Cave LLP, St. Louis, MO, for defendant-appellee Order of the Sisters of Mercy.
Before: CALABRESI, LYNCH, and LOHIER, Circuit Judges.
In Kiobel v. Royal Dutch Petroleum Co., ––– U.S. ––––, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), the Supreme Court held that, with very limited exceptions, the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”), does not apply extraterritorially to conduct that occurs outside the United States. 133 S.Ct. at 1665. The actions that form the basis of this case occurred far from the United States and many decades ago. It is beyond question—and defendants do not dispute—that plaintiffs allege shocking violations of internationally accepted norms. But it is also beyond question that, based on the Supreme Court's interpretation of the ATS, most of plaintiffs' claims are not cognizable in an American court. Plaintiffs' remaining federal claims that even arguably survive Kiobel are, in any event, barred by the statute of limitations. Accordingly, we affirm the district court's dismissal of plaintiffs' complaint.
Plaintiffs' claims stem from an alleged “child migration” program undertaken in the aftermath of World War II. As part of the scheme, the purpose of which was to populate Australia with “pure white stock” from Britain and “working boys” from Malta (Compl. ¶ 1), defendants allegedly took plaintiffs away from their families as children, falsely told them that their parents had died or abandoned them, and transported them to Australia, where plaintiffs and other children were made to work essentially as slaves, for long hours without pay, and were subjected to extreme physical and, in some cases, sexual abuse.
Emmanuel Ellul was born in Malta in 1946. At age fourteen, he and his brothers were sent to Australia as part of the child migration program. Ellul's parents were told that he would be educated in Australia, and that after his education was complete, he could return to Malta or the family could be reunited in Australia. Once in Australia, however, Ellul and his brothers were taken to an agricultural school run by the Congregation of Christian Brothers (“CCB”), a Roman Catholic religious order, where they were made to work on a large commercial farm and were not given any schooling. The children at the farm performed physical labor from early morning until nightfall, were frequently beaten and threatened with physical violence, and were told that their parents were dead. At age seventeen, Ellul was sent to another farm where he worked for a year. Ellul was never paid for any of his labor and he lost contact with his brothers for nearly two decades.
Valerie Carmack was born in Britain in 1943. When she was ten years old, her mother was told that Carmack had been adopted by another family in Britain, but in fact she had been sent to Australia. Once there, she was made to work at Nazareth House, a home for the elderly. For roughly six years, she worked long hours, seven days a week, for no pay. At age sixteen, Carmack was sent to work at a convent2 where she was told that her wages were being kept for her “savings,” but upon reaching the age of majority, she was not given those savings. (Id. ¶ 24.) After leaving Australia, Carmack returned to Nazareth House as an adult to obtain her birth certificate. She was then informed that “she might have a mother but ... it would be pointless to contact her.” (Id. ¶ 25.) Carmack, who is now a U.S. citizen, made several attempts to locate information about what had happened to her, including a trip to Australia in 1993 during which she sought records about herself from government officials.
Hazel Goulding was sent from Britain to Australia in 1947 when she was eight years old. Like the other plaintiffs, she was made to work long hours for no pay and received virtually no education. She lived at an institution run by nuns who allegedly were part of the Order of the Sisters of Mercy (“OSM”). The nuns routinely beat and starved their wards, including Goulding. When Goulding was fifteen, she escaped the institution, but was caught and returned to the custody of OSM, after which she was kept in solitary confinement. In 1954, Goulding's family managed to track her down and she and her sister returned to Britain. She returned to Australia in 1970. Since then, she has sought public records about herself. She also testified about her personal experiences as part of an inquiry into the child migration program by the Australian Senate, which resulted in the 2001 release of a comprehensive report on the program (the “Senate Report”). See Commonwealth of Australia, Lost Innocents: Righting the Record–Report on child migration (Aug. 30, 2001), available at http://www.aph.gov.au/Parliamentary_ Business/Committees/Senate/Community_Affairs/completed_inquiries/1999-02/child_ migrat/report/index.htm.
Plaintiffs brought this suit in the Southern District of New York on December 30, 2009. They brought claims against CCB, OSM, and various unnamed Catholic religious orders3 under the ATS, alleging violations of customary international law including slavery and involuntary servitude, child trafficking, forced child labor, and cruel, inhuman, and degrading treatment or punishment, as well as common law claims of conversion, unjust enrichment, constructive trust, accounting, and breach of fiduciary or special duty.4 Defendants moved to dismiss or for summary judgment.
On March 23, 2011, the district court granted defendants' motions and dismissed the complaint. Ellul v. Congregation of Christian Bros., No. 09 Civ. 10590 (PAC), 2011 WL 1085325 (S.D.N.Y. Mar. 23, 2011). The court held that it did not have personal jurisdiction over CCB because CCB had never been properly served. Id. at *2.5 As to OSM, the district court found, based on the allegations in the complaint and an affidavit submitted with OSM's motion, that OSM was not a legal entity capable of being sued; rather, “OSM” was a loose term for nine independent, autonomous regional organizations of nuns that all use the name “Sisters of Mercy.” Id. at *3.6 Therefore, the district court dismissed all claims against CCB and OSM.
In the alternative, the district court determined that the statute of limitations barred plaintiffs' claims. Following decisions from the Ninth Circuit and another district court in the Southern District of New York, the court borrowed the ten-year statute of limitations from the Torture Victim Protection Act (“TVPA”), and applied it to the ATS claims. Id. at *4, citing Papa v. United States, 281 F.3d 1004, 1012 (9th Cir.2002), and Doe v. Karadzic, No. 93 Civ. 878 (PKL), 2000 WL 763851, at *1 n. 3 (S.D.N.Y. June 13, 2000). The court held that because the alleged conduct commenced more than sixty years ago, the statute of limitations had expired. Id. The court concluded that the various statutes of limitations for the pendent state common law claims had also run. Id. Finally, the court determined that neither the diligence-discovery rule nor the doctrines of equitable tolling and equitable estoppel saved plaintiffs' untimely claims. Id. at *4–*5.
Plaintiffs appealed. On appeal, defendants argued for the first time that our decision in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir.2010), which held that ATS claims for violations of customary international law could not be brought against corporations, barred plaintiffs' ATS claims. After the parties' briefing, the Supreme Court granted certiorari in Kiobel, heard oral argument, and then ordered reargument on the question “[w]hether and under what circumstances the Alien Tort Statute ... allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Kiobel v. Royal Dutch Petroleum Co., ––– U.S. ––––, 132 S.Ct. 1738, 182 L.Ed.2d 270 (2012). After that order, but before reargument in the Supreme Court, we heard oral argument in this case. At oral argument, we questioned whether it would be advisable to wait until the Court rendered a decision in Kiobel, which might affect the viability of plaintiffs' claims based on conduct occurring abroad.
After Kiobel was finally decided, the parties submitted supplemental briefing on its impact. Plaintiffs conceded that Kiobellikely precluded some of their ATS claims, but argued that others survived the Supreme Court's decision. Pls.' Letter of May 10, 2013, ECF No. 169. After awaiting resolution of a number of other cases pending before this Court that also presented Kiobel issues and had precedence over this one, we now consider the district court's March 23, 2011 opinion and order, the parties' arguments on appeal, and the supplemental briefing in light of Kiobel.
We review a district court's dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) de novo, accepting all factual allegations in the complaint as true. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). We may affirm on...
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