We previously issued an opinion in this case.
Baloco v. Drummond Co., Inc.,
The children of Valmore Locarno Rodriguez, Victor Hugo Orcasita Amaya, and Gustavo Soler Mora, three former union leaders murdered in Colombia in 2001 (“the Children”), appeal from the dismissal of their complaint against Appellee-Defendants, Drummond Company, Inc., Drummond Ltd., 1 Augusto Jimenez, and Alfredo Araujo. 2 The Children allege that these Drummond entities and employees hired paramilitaries from the United Self-Defense Forces of Colombia, also referred to as the AUC, to assassinate their fathers, in violation of the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350; the Torture Victim Protection Act of 1991 (“TVPA”), 28 U.S.C. § 1350, 3 and the wrongful death laws of Colombia. They allege that the murders of their fathers caused them damages including emotional harm, loss of companionship and financial support.
As the district court recounted, “the allegations contained in the complaint are troubling:”
A long history of trade union violence exists in Colombia. Shortly after the Drummond employees in Colombia successfully organized a trade union, Defendant Alfredo Araujo met with leaders of the AUC, including Northern Block leader Jorge Cuarenta (“Jorge 40”) and his representatives to arrange for the AUC to eradicate the union through violent means. Drummond paid the AUC to carry out the destruction of the union, including the murders of Locarno, Orcasita, and Soler.
At the time, Locarno and Orcasita, President and Vice President of the union, respectively, had been in negotiations with Drummond for a year on a new contract. In the course of negotiations, pamphlets were passed out around the company labeling the union a “guerilla union,” and attacking Locarno and Orcasita as supporters of guerillas. In a lеtter to [Drummond Ltd.], Locarno asked for security protection from the death threats he had been receiving due to the pamphlets. His request was denied by [Drummond Ltd.’s] Senior Human Resources supervisor, Ricardo Urbina Aroca.
Locarno and Orcasita also expressed concerns for their safety to Garry Drummond and other representatives of Defendants. Their request was denied despite the fact that Colombia’s secret service agency, the DAS, alerted Drum *1342 mond that Locarno and Orcasita were at risk of assassination.
On March 12, 2001, Locarno and Orcasita were pulled off a Drummond company bus and murdered by paramilitaries of the AUC. On October 5, 2001, shortly after becoming the new president of the union, Soler was also murdered by paramilitaries of the AUC.
Baloco v. Drummond Co.,
No. 07:09-cv-00557-RDP,
The Children also allege a “close, symbiotic relationship between the military and paramilitaries in Colombia.” In support of this allegation, the Complaint cites reports from the United States State Department, the United Nations High Commissioner for Human Rights, and Amnesty International. The Children allege further:
The close, symbiotic relationship between the Military and paramilitaries in Colombia is such that the paramilitaries are acting under color of the authority of Colombia. The paramilitaries in Colombia, including those who committed the wrongful acts alleged herein, are legal creations of the government of Colombia, and they act with support from and cooperation with the official military.
While recognizing these allegations as “troubling,” the district court dismissed the Children’s complaint based on res judicata and preclusion grounds and alternatively for lack of standing. First, the district court found that the claims of five
4
of the eight plaintiffs were precluded under the doctrine of res judicata. The court reasoned that those five plaintiffs were parties to a prior suit,
In re Juan Aguas Romero v. Drummond Co., Inc.,
No. 03-cv-00575-BE-2,
Separately, the district court dismissed the claims of all eight plaintiffs on the basis that they lacked standing to sue under either the ATS or TVPA. The court reasoned that because the TVPA permits recovery of damages only “on behalf of’ the deceased person, the Children lacked standing to sue for their own personal damages. The court likewise dismissed the ATS claim, concluding that the ATS shares the same standing requirements as the TVPA. Before us is the Children’s appeal of these holdings.
I. DISCUSSION
We will analyze these issues separately. In Part A we address standing, both as a constitutional requirement and in terms of whether the Children possess a cause of action under the ATS and TVPA. In Part B we address the applicability of res judicata to the Children’s claims.
A. Standing
We begin with standing, “the threshold question in every federal case.”
Maverick Media Grp., Inc. v. Hillsborough Cnty., Fla.,
“In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.”
Warth,
1. Constitutional Standing
The requirement that a plaintiff must have standing to invoke the jurisdiction of the federal courts stems from the “case or controversy” requirement of Article III of the United States Constitution.
See Lujan v. Defenders of Wildlife,
The Children easily satisfy these requirements. First, each of the Children’s fathers were murdered, causing an immediate “invasion of a legally protеcted interest which is (a) concrete and particularized ... and (b) actual.”
Lujan,
2. The Children’s Cause of Action
We turn now to whether the ATS and TVPA, respectively, provide causes of action for the Children’s suits. Here, “[t]he concept of a ‘cause of action’ is employed specifically to determine who may judicially enforce statutory rights or obligations.”
Passman,
(i) Alien Tort Statute
The ATS states simрly: “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. The statute “is jurisdictional and does not create an independent cause of action.”
Romero v. Drummond Co., Inc.,
We have previously explained that there are three elements to a proper ATS claim. Specifically, “[t]o obtain relief under the AT[S], [the] plaintiff[ ] must be (1) an alien, (2) suing for a tort, which was (3) committed in violation of international law.”
Aldana,
For these reasons, and insofar as we are bound to accept the Children’s well-pleaded allegations as true, we conclude that the Children have adequately pled a cause of action cognizable under the ATS. We therefore reverse the district court’s conclusion that the plaintiffs lack standing under the ATS.
(ii) Torture Victim Protection Act
Albeit for different reasons, we also reverse the district court’s conclusion that the Children lack standing under the TVPA. Our review of both the statute’s plain text as well as its legislative history convinces us that the Children may litigate their TVPA claim as “person[s] who may be a claimant in an action for wrongful death.” 28 U.S.C. § 1350 note § 2(a)(2).
The TVPA differs from the ATS in certain crucial ways. Whereas the ATS is a jurisdiction conferring statute, “the [TVPA] provides a cause of action for torture and extrajudicial killing.”
Romero,
(a) ... An individual who, under actual or apparent authority, or сolor of law, of any foreign nation—
(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or
(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.
28 U.S.C. § 1350 note § 2(a). Additionally, the statute provides definitions for the conduct it regulates. First, the statute defines torture to be:
(b) Torture. — For the purposes of this Act—
(1) the term ‘torture’ means any act, directed against an individual in the offender’s custody or physical control, by *1346 which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and
(2) mental pain or suffering refers to prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculatеd to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
28 U.S.C. § 1350 note § 3(b).
Second, the statute defines “extrajudicial killing” as:
(a) ... a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.
28 U.S.C. § 1350 note § 3(a). That the TVPA and ATS employ different definitions of “torture” and “extrajudicial killing” has consequences. As we have explained, the difference means “each statute provides a means to recover for torture [and extrajudicial killing] as [those] term[s] separately draw[] [their] meaning[s] from each statute.”
Romero,
Two other features also distinguish the TVPA from the ATS. First, the TVPA empowers both United States citizens and aliens to recover for acts of torture and extrajudicial killing.
Cabello,
The upshot of all of this is that in order to obtain relief for an extrajudicial killing pursuant to the TVPA, a plaintiff must be: (1) a legal representative or any person who may be a claimant in an action for wrongful death; (2) of a victim of an extrajudicial killing; (3) committed by an individual acting “under actual or apparent authority, or color of law, of any foreign nation.” A plaintiff who satisfies these elements possesses a cause of action under the TVPA.
*1347
The parties’ dispute centers upon whether the Children are proper “claimant[s] in an action for wrongful death” as that phrase is used in the TVPA. Now at the pleadings stage of this case, we are convinced they are. The statute provides that the perpetrator of an extrajudicial killing can be held liable for
“damages
to the individual’s legal representative,
or
to any person who may be a claimant in an action for wrongful death.” § 1350 note § 2(a)(2) (emphasis added). This circuit has held that the use of the disjunctive “or” in statutes should be read as creating two different alternatives that should be treated separately.
See Rine v. Imagitas, Inc.,
This construction finds support in the statute’s underlying purpose. In enacting the TVPA, Congress explained that the Act would “protect[ ] ... human rights by establishing a civil action for recovery of damages from an individual who engages in torture or extrajudicial killing.” Torture Victim Protection Act, Public Law No. 102-256, 106 Stat. 73 (Jan. 3, 1992). This suggests that the focus of the TVPA is thus the torturеr and the extrajudicial killer, and the statute’s intent is to deter their tortious conduct. This purpose is better served by allowing more than one affected plaintiff to bring separate lawsuits.
Furthermore, the TVPA’s legislative history supports this result. Both the House and Senate Reports accompanying the TVPA set forth that the Act supports multiple claims for recovery.
See
H.R. Rep. 102-367(1) at 4 (1991),
reprinted in
1992 U.S.C.C.A.N. 84, 87 (“In cases of extrajudicial killing, ... the victim[’]s ‘legal representative’
and
‘any person who may be a claimant in an action for wrongful death’ may bring suit.” (emphasis added)); S. Rep. 102-249, at 7,
Wrongful death claimants are thus eligible to bring suit for damages under the TVPA.
11
The final inquiry,
*1348
then, is whether the Children in this case are in fact proper wrongful death claimants. Although “we start with the assumption that it is for Congress, not federal courts, to articulate the appropriate standards to be applied as a matter of federal law,”
City of Milwaukee v. Illinois,
Where the federal statute itself does not elucidate the plain meaning of a particular provision, a statute’s Congressional history may assist a court in detenmining the appropriate definition to apply. For example in
Taylor v. United States,
the Supreme Court considered the meaning of the undefined term “burglary” as it was used in 18 U.S.C. § 924(e), a federal sentencing enhancement statute.
The House and Senate Committee Reports accompanying the TVPA legislation also speak directly to Congress’s intentions. In explaining the wrongful death claimant provision of the TVPA, the report issued by the House of Representatives *1349 Committee on the Judiciary states that “[cjourts may look to state law for guidance as to which parties would be proper wrongful death claimants.” H.R.Rep. No. 102-367(1), at 4, 1992 U.S.C.C.A.N. at 87 (1991). The Senate Committee Report similarly explained “[t]he term ‘beneficiary in a wrongful death action’ is generally intended to be limited to those persons recognized as legal claimants in a wrongful death action under Anglo-American law.” S.Rep. No. 102-249, at 7 (1991). In addition, the Senate Report also elaborated that:
Where application of Anglo-American law would result in no remedy whatsoever for an extrajudicial killing, however, application of foreign law recognizing a claim by a more distant relation in a wrongful death action is appropriate. In re Air Crash Disaster Near New Orleans, Louisiana, on July 9, 1982,789 F.2d 1092 , 1097-98 (5th Cir.1986) (recognizing claim of nephew for wrongful death of aunt where Louisiana law on wrongful death action would have afforded no remedy).
Id. at n. 10. Thus, Congress’s intent, as evinced in the House and Senate reports, is that state law should govern the determination of whether a plaintiff is a claimant in an action for wrongful death and, where state law would provide no remedy, a court may apply the foreign law that would recognize the plaintiffs claim.
We must therefore first determine whether the plaintiffs are wrongful death claimants under Alabama law. Although the TVPA instructs courts to look to “state law” to determine the parties’ status as wrongful death claimants, it does not specify whether a court should apply the state’s “whole law,” including its choice-of-law provisions, or only its substantive “internal law.” We need not resolve which approach to apply in this case, because ultimately under either framework Colombian law applies. 12
The Children alleged in their complaint that they are “legal .beneficiaries” under Colombian law, with standing to sue for their personal damages. In further support of this proposition, they attached to their pleadings filed in response to the Motion to Dismiss, an affidavit containing the “legal opinion” of Pedro R. LaFont Pianetta, a former Justice on the Supreme Court of Colombia. The record does not reflect that the appellees have disputed the Children’s assertion that they are proper wrongful death claimants under Colombian law; Mr. Pianetta’s conclusions to that effect; or Mr. Pianetta’s qualifications to render this opinion. After thorough consideration, we conclude that the Children have properly alleged their entitlement to proceed as wrongful death claimants under Colombian law.
13
See generally Ramsay
*1350
v. Boeing Co.,
Having concluded that the Children adequately plead a TVPA violation, we also reverse the district court’s finding that the Children lack standing to litigate their TVPA claim.
B. Res Judicata
Because of our conclusion that the Children have standing to bring their claims for damages stemming from the deaths of their fathers, we must now address the district court’s finding that the claims of five of the eight plaintiffs are barred by the doctrine of res judicata. We have concluded that the district court resolved the issue prematurely. The pleadings alone are simply insufficient to assure us that those asserting claims for the minor children in
Drummond I
have interests identical to those being asserted by the Children in this action.
See generally Green v. Jefferson County Com’n,
What should be obvious — the identities and interests of the plaintiffs in the prior Drummond I suit — is not so because the family members of the deceased union leaders in that case were permitted to assert their claims anonymously as “John Does” and “Jane Does” to protect their safety. In the Third Amended Complaint filed in that action, each of the John or Jane Doe plaintiffs identified themselves merely as the “legal heirs” to the three murdered union leaders, Locarno Rodriguez, Orcasita Amaya, and Soler Mora. The district court in Drummond I then ordered the plaintiffs to file under seal a “Notice of Identity of Plaintiffs,” which they did, and the Notice was incorporated by reference within the Third Amended Complaint. In that Notice, the Drummond I plaintiffs identifiеd the various John and Jane Does by their true names and relationships with the murdered victims. For example, Jane Doe I is identified as “(1) Josefina Larios Henriquez, the legal wife of Valmore Locarno, and (2) the child of Josefina and Valmore.” The other John and Jane Does were identified in a similar fashion.
In light of the minority status of the plaintiffs in
Drummond I,
our inquiry into the “substantial identity of the parties” in the two eases requires more than one step. Even if we assume that the five children whose claims the district court dismissed on res judicata grounds are the same individuals identified as the children of the deceased in the
Drummond I
suit, this does not necessarily resolve the question of whether they were parties in the prior suit for the purposes of imposing a res judicata bar. Because at the time of the filing of the suit in
Drummond I
these five children were minors (and still are), they did not have the capacity to sue in their own right. Rather, Federal Rule of Civil Procedure 17(c)(2) provides that a minor may sue (or be sued) through a “duly appointed representative,” by a “next friend,” or by a “guardian ad litem,” and instructs district courts that they “must appoint a guardian ad litem — or issue another appropriate order — to protect a minor or incompetent person who is
*1351
unrepresented in an action.”
See Roberts v. Ohio Cas. Ins. Co.,
There is nothing on the face of the Third Amended Complaint in
Drummond I
or the Notice of Identities of Plaintiffs that would allow us to conclude that the children-plaintiffs in that case sued either by a “next friend” or through a guardian ad litem or that the court “issued another appropriate order” on their behalf. Although their mothers were also plaintiffs in
Drummond I,
we cannot presume that they intended to represent their children’s separate legal interests because the Notice did not indicate thаt the children were present in the suit “by and through their mother and next friend.” We have found nothing in the complaint or any other document for which we may take judicial notice that would confirm that the legal interests of the
Drummond I
children were properly represented by a guardian ad litem or other court appointed representative. For this reason, and at this stage of the proceedings when we are confined to the pleadings, we cannot conclude that the Children were also parties to the
Drummond I
suit.
Cf. Gerrard v. Larsen,
II. CONCLUSION
For these reasons, we conclude that the district court’s dismissal of the Children’s complaint for lack of standing on their TVPA and ATS claims is due to be REVERSED. We also reverse the district court’s dismissal of the TVPA and ATS claims of five of the Children on res judicata grounds, and we REMAND this case for further proceedings.
REVERSED and REMANDED.
Notes
. Drummond Ltd. is a subsidiary of Drammond Company, Inc., and manages Drammond's day-to-day mining operations in Colombia.
. Araujo moved to quash service of the complaint but the district court denied this motion as moot in light of its dismissal or the Children’s complaint.
. The TVPA does not separately appear in the United States Code. However, “[t]hat the TVPA, which was published in the Statutes at Large, appears in the United States Code as a historical and statutory note to the Alien Tort Act does not make the TVPA any less the law of the Iand/'
Aldana
v.
Del Monte Fresh Produce, N.A.,
Inc.,
. Those plaintiffs are Freddy Locarno Baloco, Katherine Paola Locarno Baloco, Marlon Alexi Orcasita, Ashly Patricia Orcasita Almarales, and Ingrid Karina Soler Urrego.
. The Supreme Court has not clarified whether the standing analysis encapsulates the cause of action inquiry, or whether they are analytically distinct.
Compare Warth,
. Under
Bonner v. City of Prichard,
. In so doing, we are compelled to reject the district court’s determination that the standing analysis for each statute is identical. The court reached this holding by relying upon our decision in
Arce v. Garcia,
. Although we used the term "violation of international law” in the
Aldana
opinion, it is clear that only a narrow class of international law violations constitute causes of action pursuant to the ATS.
Sosa,
. Freddy Locarno Baloco and Katherine Paolo Locarno Baloco both reside in Canada, where they have been given refugee status.
. State action does not, however, require proof of widespread government misconduct.
See Romero,
. The district court, relying on the reasoning of the United States District Court for the District of Columbia, reached an opposite conclusion by cоnstruing the TVPA’s description of
who
may bring suit as setting forth
what
damages a proper plaintiff may recover.
See Fisher v. Great Socialist People’s Libyan Arab Jamahiriya,
We do not read the statute to be so limited. To be sure, Congress specified that "any person who may be a claimant in an action for wrongfully death” is eligible to bring suit pursuant to the statute, but there is no indication that such individual's eligibility as a wrongful death claimant also informs the relief available to him. See 28 U.S.C. § 1350 note § 2. Here, the statute’s uniform use of the term "damages” throughout seсtion (2) suggests that Congress did not intend to limit a plaintiff's damages when she appeared as a “wrongful death claimant.” 28 U.S.C. § 1350 note § 2; see MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928, 957 n. 8 (9th Cir.2010) ("a legislative body generally uses a particular word with a consistent meaning in a given context" (quotations marks omitted)). Congress appears to have contemplated a uniform damages rule tailored to the purposes of the TVPA.
Our previous encounters with the TVPA have recognized as much. In
Cabello v. Fernandez-Larios,
we affirmed an award for $4 million dollars for violations cognizable under the ATS and TVPA.
. Application of Alabama's choice-of-law provisions leads us to apply Colombian law. Alabama adheres to the doctrine of
lex loci delicti,
such that in аn action for wrongful death a plaintiff's substantive rights are determined according to the law of the forum where the injury occurred.
See Northeast Utilities, Inc. v. Pittman Trucking Co.,
We reach the same result applying Alabama’s substantive law. First, we would find that the Children are not proper wrongful death complainants under Alabama’s internal law. See Ala.Code § 6-5-410(a)'(only a “personal representative” may bring a wrongful death action). Thus, the Children would find themselves with “no remedy whatsoever” under Anglo-American law. As instructed by the Senate Committee Report in footnote 10, we would then determine whether the Children possessed a remedy under foreign law, which in this case the parties concede to be that of Colombia. S.Rep. No. 102-249, at 7 n. 10.
. As mentioned, the Children alleged that they were proper legal beneficiaries under the law of Colombia, and at the pleadings stage,
*1350
we accept this allegation as true. With regard to the affidavit of Mr. Pianetta, Federal Rule of Civil Procedure Rule 44.1 permits us, in determining foreign law, to "consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.” This Rule further provides that such a determination of foreign law should be treated as a ruling on a question of law.
Id.; see Trinidad Foundry & Fabricating, Ltd.
v.
M/V K.A.S. Camilla,