Ellul v. Congregation of Christian Bros.
2014 U.S. App. LEXIS 23025
| 2d Cir. | 2014Background
- Plaintiffs are adults who were sent from Malta and Britain to Australia as children in post–World War II "child migration" programs allegedly run or controlled by Catholic religious orders; they allege forced labor, deception, physical and sexual abuse, and loss of contact with families.
- Plaintiffs sued in S.D.N.Y. in 2009 against the Congregation of Christian Brothers (CCB), the Order of the Sisters of Mercy (OSM), and other related entities under the Alien Tort Statute (ATS) and state common law claims.
- The district court dismissed for lack of personal jurisdiction over some defendants and held plaintiffs’ claims time-barred, borrowing a ten-year limitations period from the Torture Victim Protection Act (TVPA).
- On appeal, after the Supreme Court decided Kiobel (addressing extraterritorial reach of the ATS), plaintiffs conceded some ATS claims were likely precluded but argued others (notably human trafficking) survived because of transnational conduct and defendants’ nexus to the U.S.
- The Second Circuit held Kiobel bars ATS claims based on conduct occurring entirely in a foreign country (Australia), leaving only the human-trafficking claim potentially cognizable — but that claim (and all state-law claims) is barred by the applicable statute of limitations (assumed to be ten years).
- The court rejected plaintiffs’ arguments for delayed accrual, equitable tolling, and equitable estoppel because plaintiffs had knowledge of the relevant injuries and elements decades earlier and the later Australian Senate Report (2001) did not reveal facts necessary to trigger a cause of action within the limitations period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ATS applies to alleged international-law violations occurring abroad after Kiobel | Ellul et al.: Kiobel shouldn't bar all ATS claims; trafficking is transnational and "touches and concerns" the U.S.; defendants had substantial U.S. nexus | Kiobel and presumption against extraterritoriality bar ATS claims based on conduct in Australia; mere presence/nexus insufficient | Kiobel bars ATS claims for conduct occurring in Australia; only trafficking claim arguably remains but not reached on merits because time-barred |
| Whether human trafficking claim survives Kiobel as non‑territorial tort | Trafficking is transnational (origin in Europe, transport via high seas to Australia) and analogous to piracy; thus outside presumption against extraterritoriality | Kiobel limits reach; mere corporate or organizational presence in U.S. cannot displace presumption | Court did not decide definitively whether trafficking survives Kiobel because trafficking claim is time‑barred under the limitations analysis |
| Applicable statute of limitations for ATS claim | Plaintiffs conceded a 10‑year limitations period (TVPA analogue) applies | Defendants relied on 10‑year period; argued claims long-since expired | Court assumed 10‑year TVPA period; plaintiffs’ claims accrued decades earlier and are untimely |
| Whether tolling, discovery rule, or equitable estoppel save plaintiffs’ claims | Plaintiffs: Senate Report (2001), document destruction, and defendants’ in loco parentis/fiduciary roles concealed claims and justify equitable tolling/estoppel or delayed accrual | Defendants: plaintiffs knew of their injuries and exploitation well before 2001; concealment did not prevent discovery within limitations; no misrepresentation that caused delay | Court rejected tolling and estoppel — plaintiffs knew facts sufficient for trafficking claim long before 2001, and extraordinary circumstances not shown; claims time‑barred |
Key Cases Cited
- Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (ATS claims limited to violations of international norms defined with historical specificity)
- Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (applies presumption against extraterritoriality to the ATS; claims must "touch and concern" U.S. territory with sufficient force)
- N. Star Steel Co. v. Thomas, 515 U.S. 29 (1995) (federal courts borrow state limitations unless a closer federal analogue exists)
- Mastafa v. Chevron Corp., 770 F.3d 170 (2d Cir. 2014) (defendant citizenship/presence does not establish ATS jurisdiction post-Kiobel)
- Guilbert v. Gardner, 480 F.3d 140 (2d Cir. 2007) (discovery rule: accrual when plaintiff discovered or with due diligence should have discovered injury)