Adhikari v. Kellogg Brown & Root, Inc.
| Decision Date | 03 January 2017 |
| Docket Number | No. 15-20225,15-20225 |
| Citation | 845 F.3d 184 |
| Parties | Ramchandra ADHIKARI; Devaka Adhikari; Jit Bahdur Khadka; Radhika Khadka; Bindeshore Singh Koiri; Pukari Devi Koiri; Chittij Limbu; Kamala Thapa Magar; Maya Thapa Magar; Bhakti Maya Thapa Magar; Tara Shrestha; Nischal Shrestha; Dil Bahadur Shrestha; Ganga Maya Shrestha; Satya Narayan Shah; Ram Naryan Thakur; Samundri Devi Thakur; Jitini Devi Thakur; Bhim Bahadur Thapa; Bishnu Maya Thapa; Bhuji Thapa; Kul Prasad Thapa; Buddi Prasad Gurung, Plaintiffs–Appellants, v. KELLOGG BROWN & ROOT, INCORPORATED; Kellogg Brown & Root Services, Incorporated; KBR, Incorporated; KBR Holdings, L.L.C.; Kellogg Brown & Root L.L.C.; KBR Technical Services, Incorporated; Kellogg Brown & Root International, Incorporated; Service Employees International, Incorporated; Overseas Employment Administration ; Overseas Administration Services, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Agnieszka M. Fryszman, Cohen Milstein Sellers & Toll, P.L.L.C., Washington, DC, Paul Lindsey Hoffman, Schonbrun, DeSimone, Seplow, Harris & Hoffman, L.L.P., Venice, CA, for Plaintiffs–Appellants.
Geoffrey L. Harrison, Esq., Richard W. Hess, Susman Godfrey, L.L.P., Warren W. Harris, Yvonne Y. Ho, Esq., Jeffrey L. Oldham, Bracewell, L.L.P., Houston, TX, for Defendants–Appellees.
James C. Harrington, Esq., Texas Civil Rights Project, Austin, TX, for Amicus Curiae Professors of Civil Procedure and Federal Courts.
William Aceves, California Western School of Law, San Diego, CA, for Amicus Curiae International Law Scholars.
Tyler Richard Giannini, Harvard Law School, International Human Rights Clinic, Cambridge, MA, for Amicus Curiae Professors of Legal History.
Richard D. Snyder, Fredrikson & Byron, P.A., Minneapolis, MN, for Amicus Curiae Freedom Network (USA).
Deepak Gupta, Gupta Wessler, P.L.L.C., Washington, DC, for Amicus Curiae Richard Blumenthal.
Marissa Ann Vahlsing, Esq., EarthRights International, Washington, DC, for Amici Curiae EarthRights International, Center for Constitutional Rights.
Thomas More Flanagan, Andy Joseph Dupre, Camille Elise Gauthier, Flanagan Partners, L.L.P., New Orleans, LA, for Amicus Curiae Retired Military Officers.
Russell Lasser Kornblith, Sanford Heisler, L.L.P., New York, NY, for Amici Curiae Abukar Hassan Ahmed, Dr. Juan Romagoza Arce, Zita Cabello, Aziz Mohamed Deria, Carlos Mauricio, Cecilia Santos Moran, Gloria Reyes, Oscar Reyes, Zenaida Velasquez, Bashe Abdi Yousuf.
Andrew John Pincus, Archis Ashok Parasharami, Mayer Brown, L.L.P., Washington, DC, for Amicus Curiae Chamber of Commerce of the United States of America.
Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges.
In 2004, an Iraqi insurgent group kidnapped and murdered twelve Nepali men as they traveled through Iraq to a United States military base to work for Daoud & Partners ("Daoud"), a Jordanian corporation that had a subcontract with Defendant–Appellee Kellogg Brown Root ("KBR").1 In 2008, the victims' families, and one Daoud employee who was not captured (collectively "Plaintiffs"), sued Daoud and KBR. Plaintiffs alleged that the companies "willfully and purposefully formed an enterprise with the goal of procuring cheap labor and increasing profits," and thereby engaged in human trafficking. Plaintiffs brought causes of action under the Alien Tort Statute ("ATS"), the Trafficking Victims Protection Reauthorization Act ("TVPRA"), and state common law. Although Plaintiffs settled with Daoud, they have continued their lawsuit against KBR. The district court, after nearly six years of motion practice and discovery, eventually dismissed all of Plaintiffs' claims.
We hold that the district court's grant of summary judgment on the ATS claims in favor of KBR was proper in light of the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co. , ––– U.S. ––––, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), which held that the ATS did not apply extraterritorially. We also conclude that the district court correctly dismissed the TVPRA claims because (1) the TVPRA did not apply extraterritorially at the time of the alleged conduct in 2004 and (2) applying a 2008 amendment to the TVPRA that had the effect of permitting Plaintiffs' extraterritorial claims would have an improper retroactive effect on KBR. Lastly, we hold that the district court did not abuse its discretion in dismissing the common law claims by refusing to equitably toll Plaintiffs' state law tort claims. Accordingly, we AFFIRM.
Plaintiffs–Appellants in this case are Buddi Gurung ("Plaintiff Gurung") and surviving family members of eleven deceased men (collectively, the "Deceased"). All Plaintiffs are citizens of Nepal.
In or around 2004, the Deceased were recruited to work by a Nepal-based recruiting company. As the district court found, "each man was promised a hotel related job in Jordan" and "each man's family took on significant debt in order to pay recruitment fees." The Deceased travelled from Nepal to Jordan where they were housed by a Jordanian job-brokerage company, Morning Star for Recruitment and Manpower Supply ("Morning Star"). Morning Star transferred the Deceased to Daoud. Daoud had a subcontract with KBR, a U.S. military contractor, to provide staff to operate the Al Asad Air Base ("Al Asad"), a U.S. military base north of Ramadi, Iraq.
While in Jordan, the Deceased "were subject to threats and harm," "their passports were confiscated," and they were "locked into a compound and threatened." The Deceased were also told for the first time that they were actually being sent to Iraq to work on Al Asad and would be paid only three-quarters of what they were initially promised.
In August 2004, Daoud transported the Deceased into Iraq in an unprotected automobile caravan. The Deceased, however, never made it to the base. While traveling through Iraq, they were captured by Iraqi insurgents. The insurgents posted online videos of the Deceased in which the Deceased said that they had been "trapped and deceived and sent to Jordan" and had been "forced ... to go to Iraq." Horrifically, the Iraqi insurgents executed the Deceased, and a video of the executions was broadcast by international media outlets,
Plaintiff Gurung travelled in the same automobile caravan as the Deceased. He also had been recruited to work in Nepal and had travelled to Jordan, but the car he was in was not captured and he arrived at Al Asad. Plaintiff Gurung worked on the base as a "warehouse loader/unloader" for approximately fifteen months. Plaintiff Gurung alleged that Daoud and KBR told him that "he could not leave until his work in Iraq was complete."
In 2008, Plaintiffs filed suit against KBR and Daoud. They asserted claims under the TVPRA and the ATS, and also brought common law negligence claims.2 In November 2009, the district court granted KBR's motion to dismiss Plaintiffs' common law negligence claims. It held that these claims were barred by the statute of limitations and denied Plaintiffs' request for equitable tolling. However, the court denied KBR's motion as to Plaintiffs' TVPRA and ATS claims.
In August 2013, the district court granted in part and denied in part KBR's motion for summary judgment. It dismissed Plaintiffs' ATS claims against KBR in light of the Supreme Court's intervening decision in Kiobel . In Kiobel , the Supreme Court held that the presumption against extraterritoriality applies to ATS claims and nothing in the statute rebuts the presumption. 133 S.Ct. at 1669. The district court held that Kiobel compelled dismissal of the ATS claims because "all relevant conduct by Daoud and KBR occurred outside of the United States." The court denied KBR's motion for summary judgment on the TVPRA claim, noting that the law was "expressly extraterritorial" under 18 U.S.C. § 1596.
KBR moved for interlocutory review of the district court's TVPRA ruling under 28 U.S.C. § 1292(b). In response, the district court reconsidered its denial of summary judgment sua sponte on the TVPRA claim. The court reversed its previous decisions and held that the TVPRA—like the ATS—did not apply extraterritorially at the time of the alleged conduct in 2004. It explained that although Congress passed an amendment in 2008 that provided federal courts with jurisdiction over purely extraterritorial TVPRA civil claims, see Pub. L. No. 110–457, § 223(a), 122 Stat. 5044 (2008) (codified at 18 U.S.C. § 1596(a) ), this amendment had the effect of altering the parties' substantive rights and, as a result, could not be applied retroactively to KBR's alleged 2004 conduct.
Plaintiffs responded by filing motions for rehearing on the district court's TVPRA and ATS rulings and for leave to amend their ATS claims. In March 2015, the district court denied these motions. This appeal followed.
Plaintiffs argue that we should allow their ATS, TVPRA, and common law tort claims to proceed. We address each claim in turn.
The district court dismissed the ATS claims at summary judgment. We review a grant of summary judgment de novo. RTM Media, LLC v. City of Houston , 584 F.3d 220, 223 (5th Cir. 2009). "Summary judgment is proper when the evidence demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Id. (quoting Chacko v. Sabre, Inc. , 473 F.3d 604, 609 (5th Cir. 2006) ).
"The ATS provides, in full, that ‘[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.’ " Kiobel , 133 S.Ct. at 1663 (quoting 28 U.S.C. § 1350 ). Although the statute "provides district courts with jurisdiction to hear certain claims," it "does not expressly provide any causes of action." Id. Rather, the ATS provides jurisdiction for a "modest number of international law violations" that are derived from...
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