Taveras v. Taveraz

• Decision Date: 16 February 2007
• Docket Number: No. 06-3040.,06-3040.
• Citation: 477 F.3d 767
• Parties: Romil Rafael Estrella TAVERAS, Plaintiff-Appellant, v. Carolyn R. Paiewonsky TAVERAZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

477 F.3d 767

Romil Rafael Estrella TAVERAS, Plaintiff-Appellant, v. Carolyn R. Paiewonsky TAVERAZ, Defendant-Appellee.

No. 06-3040.

United States Court of Appeals, Sixth Circuit.

Argued: October 27, 2006.

Decided and Filed: February 16, 2007.

ARGUED: E. Dennis Muchnicki, Dublin, Ohio, for Appellant. Jay G. Perez, Columbus, Ohio, for Appellee. ON BRIEF: E. Dennis Muchnicki, Dublin, Ohio, for Appellant. Jay G. Perez, Columbus, Ohio, for Appellee.

Before KEITH and McKEAGUE, Circuit Judges; CLELAND, District Judge.^*

OPINION

DAMON J. KEITH, Circuit Judge.

Plaintiff-Appellant Romil Rafael Estrella Taveras appeals the district court's dismissal of his parental child abduction action brought under the Alien Tort Statute (also commonly referred to as the "Alien Tort Claims Act"), 28 U.S.C. § 1350, for lack of subject matter jurisdiction. For the reasons set forth below, we AFFIRM the district court's decision.

I. BACKGROUND

Plaintiff-Appellant Romil Rafael Estrella Taveras ("Mr. Taveras") and Defendant-Appellee Carolyn R. Paiewosky Taveraz¹ ("Ms. Taveraz") are citizens of the Dominican Republic. These individuals were once married to each other and had two children born during the marriage, both of whom are still minors. On December 22, 2003, the couple divorced in Santo Domingo, Dominican Republic, and Ms. Taveraz was granted full guardianship (or "sole physical and legal custody") of the children. (J.A. at 104).

On August 24, 2004, Ms. Taveraz traveled to the United States with the children under a visitor's visa, purportedly for a two-week vacation in Boston, Massachusetts. On September 8, 2004, while she was in the United States, Ms. Taveraz telephoned Mr. Taveras and told him to forget the children because she would never return to the Dominican Republic. A couple of weeks later, Mr. Taveras discovered that Ms. Taveraz and the children were living with Ms. Taveraz's family in Westerville, Ohio.

On October 28, 2004, Mr. Taveras filed a criminal complaint with the District Attorney for the Dominican Republic alleging that Ms. Taveraz was unlawfully withholding their children from the Dominican Republic. Later, on December 21, 2004, Mr. Taveras filed a civil action in the Santo Domingo, Dominican Republic Court of Children and Adolescents ("Santo Domingo family court"), seeking to terminate Ms. Taveraz's guardianship and to establish himself as the children's guardian. On July 14, 2005, the Santo Domingo family court ordered the return of Ms. Taveraz and the children to the Dominican Republic to appear for a hearing to be held on September 1, 2005. Neither Ms. Taveraz nor the children returned to the Dominican Republic for this or any other hearing.

On September 20, 2005, Mr. Taveras filed an action against Ms. Taveraz in the United States District Court for the Southern District of Ohio alleging parental child abduction. Mr. Taveras asserted his claims pursuant to the Full Faith and Credit Clause of the Constitution, U.S. Const. art. IV § 1; The Hague Convention on the Civil Aspects of International Child Abduction of October 25, 1980 ("The Hague Convention" or "The Hague Convention of 1980"), 19 I.L.M. 1501 (1980); and the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601-11610 (codifying The Hague Convention). Mr. Taveras sought a declaratory judgment that the children were being unlawfully withheld from their country of habitual residence; an order that the children be returned to the Dominican Republic to appear before the Santo Domingo family court for a redetermination of their guardianship; and an order placing the children in the temporary custody of Mr. Taveras for the purpose of assuring their appearance at the Santo Domingo family court proceedings.

On October 7, 2005, Ms. Taveraz moved to dismiss the action for lack of subject matter jurisdiction on the grounds that the ICARA and The Hague Convention could not supply jurisdiction since the Dominican Republic is not a member of The Hague Convention. On October 24, 2005, Mr. Taveras amended his complaint to include a cause of action under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350. Thereafter, both parties briefed the district court on the issue of subject matter jurisdiction, and a hearing was held on October 25, 2005 regarding Ms. Taveraz's motion to dismiss.

On November 3, 2005, the district court granted the motion to dismiss. The district court held that it did not have jurisdiction under The Hague Convention or the ICARA because the United States has not declared its acceptance of the Dominican Republic's accession to The Hague Convention. Taveras v. Taveras, 397 F.Supp.2d 908, 912 (S.D.Ohio 2005). Additionally, and more centrally to the issues on appeal, the district court held that it did not have jurisdiction under the ATS because Mr. Taveras's allegations did not qualify as a violation of any treaty or the law of nations, and the result of permitting such a cause of action would have the practical ramification of "turning district courts nationwide into ill-suited family courts." Id. at 915.

On January 11, 2006, Mr. Taveras filed the instant appeal, challenging the district court's order dismissing his action for lack of subject matter jurisdiction. Mr. Taveras does not dispute the district court's holding that The Hague Convention and the ICARA do not provide any independent basis for jurisdiction. (Tr. Oral Arg at 16:20-25 (audio recording)). Rather, the present appeal primarily centers on whether the district court had subject matter jurisdiction over the parental child abduction action pursuant to the ATS.

II. STANDARD OF REVIEW

This Court reviews a district court's grant of a motion to dismiss for lack of subject matter jurisdiction de novo. Genord v. Blue Cross & Blue Shield of Mich., 440 F.3d 802, 805 (6th Cir.2006) (citing Simon v. Pfizer Inc., 398 F.3d 765, 772 (6th Cir.2005)).

III. ANALYSIS

A. Alien Tort Statute

The ATS was passed by the First Congress in 1789. Judiciary Act of 1789, ch. 20, § 9(b), 1 Stat. 73, 76-77 (codified, as amended, at 28 U.S.C. § 1350 (2000)). After slight modifications, the ATS provides in its entirety: "The 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." 28 U.S.C. § 1350. During the first 191 years of its existence, the ATS lay effectively dormant. In fact, during the nearly two centuries after the statute's promulgation, jurisdiction was maintained under the ATS in only two cases. The earliest case to find jurisdiction under the ATS, Bolchos v. Darrel, 3 F.Cas. 810 (D.S.C.1795) (No. 1,607), employed the ATS as an alternative basis for jurisdiction to uphold the capture of Black slaves from an enemy ship at sea and to order the return of the slaves or the money arising from their sale by a libelee who had subsequently seized and sold the enslaved people.

Although the first case employing the ATS used the statute to perpetuate the inhumane institution of slavery, beginning in 1980 with the seminal case Filartiga v. Pena-Irala, the ATS has been utilized to address egregious international human rights abuses in the federal courts. 630 F.2d 876 (2d Cir.1980) (holding that torture perpetrated under the color of law violates universally accepted norms of international law, and thus the ATS provides federal jurisdiction when an alleged torturer is found and served with process by an alien within the borders of the United States); see also, e.g., Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.1996) (suit brought by ex-prisoners against a quondam governmental official of a former Ethiopian military dictatorship for torture); Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995) (action brought by Croat and Muslim victims from Bosnia-Herzegovina against self-proclaimed president of an unrecognized Bosnian-Serb entity for genocidal campaign of murder, rape, forced impregnation and prostitution, and torture); In re Estate of Marcos Human Rights Litig., 25 F.3d 1467 (9th Cir.1994) (lawsuit brought by families of victims of torture, summary execution, and disappearances against former president of the Phillippines).

The ATS holds great potential to bring justice to certain serious violations of human, civil, and environmental rights in a federal forum. However, the ATS, by no means, supplies jurisdiction over every wrong committed against an alien. In cases — such as the one at bar — where the alleged tort purportedly arises under the law of nations, rather than a treaty of the United States, the Supreme Court has directed the lower courts to exercise "great caution in adapting the law of nations to private rights." Sosa v. Alvarez-Machain, 542 U.S. 692, 728, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004).

In Sosa, the Supreme Court, for the first time, set forth a framework to determine whether a cause of action falls within the purview of the ATS. Id. at 725, 124 S.Ct. 2739. The Court, relying on Blackstone's Commentaries on the Laws of England, found that at the time the ATS was enacted only three actions were generally recognized as infractions of the law of nations: piracy, offenses against ambassadors, and violations of safe conducts. Id. at 724, 124 S.Ct. 2739 (citing 4 William Blackstone, Commentaries on the Laws of England (1769) ("Blackstone's Commentaries")). The Sosa majority held that, in addition to these traditional law of nations violations, other causes of action based upon present-day law of nations may be cognizable under the ATS if the claim both "rest[s] on a norm of international character accepted by the civilized world and [is] defined with a specificity comparable to the features of the [aforementioned] 18th-century paradigms[.]" Id. at 725, 124 S.Ct. 2739.

In other words, "federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance...