In Kiobel v. Royal Dutch Petroleum Co., — U.S. -,
BACKGROUND
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 eases, 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 Chris
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 convent
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/ParliamentaryJBusiness/ Committees/Senate/Community_Affairs/ completedJnquiries/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 orders
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),
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,
Plaintiffs appealed. On appeal, defendants argued for the first time that our decision in Kiobel v. Royal Dutch Petroleum Co.,
After Kiobel was finally decided, the parties submitted supplemental briefing on its impact. Plaintiffs conceded that Kiobel
DISCUSSION
I. Standard of Review
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.,
II. The ATS and the Supreme Court’s Kiobel Decision
The ATS, passed in 1789, provides that the federal 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 Act has been “read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time” of passage. Sosa v. Alvarez-Machain,
In Kiobel, Nigerian nationals residing in the United States sued Dutch, British, and Nigerian corporations under the ATS, alleging that the corporations aided and abetted the Nigerian government in committing numerous atrocities that violated the law of nations.
The Court determined that the presumption applied to ATS claims. It rested that conclusion in part upon the three causes of action that were recognized as constituting violations of the law of nations when the ATS was passed: the violation of safe conducts, infringement on the rights of ambassadors, and piracy. Id. at 1666, citing 4 W. Blackstone, Commentaries on the Laws of Eng. 68 (1769). The first two violations concerned conduct occurring within the territory of the United States, while the third, piracy, occurred “on the high seas, beyond the territorial jurisdiction of the United States or any other country.” Id. at 1667. The Court noted that pirates might be “a category unto themselves” since they were “fair game wherever found, by any nation, because they generally did not operate within any jurisdiction.” Id. Finding these examples
The Court left open the possibility that conduct outside the United States could be covered by the ATS where the claims' “touch and concern the territory of the United States.” Id. But “even where the claims touch and concern the territory of the United States,” the Court cautioned, “they must do so with sufficient force to displace the presumption against extraterritorial application.” Id. The conduct of the corporate defendants in Kiobel did not meet that test, according to the Supreme Court, because “[cjorporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” Id.
III. Plaintiffs’ ATS Claims and Extraterritoriality
Plaintiffs concede that Kiobel could be read to bar those of their ATS claims that stem from conduct that occurred entirely within the territory of Australia. Pls.’ Letter of May 10, 2013, ECF No. 169, at 7 (“The claims for forced labor, slavery and involuntary servitude as well as for cruel, inhuman[ ] and degrading treatment or punishment are likely precluded under ... Kiobel.”). However, they argue that Kiobel should not be read so broadly, and contend that their claims survive that decision because both defendants have a “sub•stantial nexus ... to the United States.” Id. Moreover, they argue that even if read broadly to preclude most of their ATS claims, Kiobel by its own terms does not reach their human trafficking claim,
Plaintiffs base their “substantial nexus” argument on the fact that defendants “were at all times unincorporated associations, and, while committing the alleged wrongs, maintained a substantial presence and significant operations in the United States.” Id. at 7. Although Kiobel provides no “substantial nexus” exception to the presumption against extraterritoriality, plaintiffs’ argument essentially contends that their claims “touch and concern” the territory of the United States, and there
Even so construed, however, plaintiffs’ claims fail to meet the Court’s standard. Kiobel rejected the notion that a defendant’s mere presence in the United States is sufficient to displace the presumption against extraterritoriality. See • id. (“[I]t would reach too far to say that mere corporate presence suffices.”).
Accordingly, following the Supreme Court’s controlling precedent, we hold that plaintiffs’ claims under the ATS for violations of international law that occurred in Australia, that is to say, all except plaintiffs’ claim for human trafficking, must be dismissed as extraterritorial applications of the ATS.
Plaintiffs’ sole remaining ATS claim is for human trafficking. They argue that human trafficking is transnational in nature and does not occur within the exclusive territory of a single foreign sovereign: In this case, for example, the trafficking may have begun in Britain and Malta and ended in Australia, but it also encompassed plaintiffs’ transportation from Europe to Australia on the high seas. There-fore, plaintiffs contend, human trafficking, like piracy, does not take place exclusively within the jurisdiction of a foreign state and thus, like piracy, falls outside the presumption against extraterritoriality. See Pis.’ Letter of May 10, 2013, ECF No. 169, at 3-4. We need not decide whether human trafficking claims remain cognizable in U.S. courts after Kiobel, however, because plaintiffs’ trafficking claim is barred by the statute of limitations.
IV. Plaintiffs’ Human Trafficking Claim and the Statute of Limitations
The ATS does not specify a statute of limitations. In the absence of a limitations period prescribed by statute, federal courts typically borrow the local state statute of limitations unless “a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes.” N. Star Steel Co. v. Thomas,
Given that assumption, plaintiffs’ human trafficking claim is untimely. The complaint makes plain that the actions allegedly constituting trafficking took place more than fifty years ago, when plaintiffs were transported from their homes in Europe to Australia. Consequently, for plaintiffs’ claim to be considered within the limitations period, plaintiffs must demonstrate that they did not discover their cause of action — and could not have discovered it with due diligence — until less than ten years before bringing suit. See Guilbert v. Gardner,
Nevertheless, plaintiffs argue that the Senate Report revealed two crucial facts that were not known to them before 2001: first, that defendants used fraud or deceit to take plaintiffs from their families and transport them to Australia, and, second, that defendants were obligated under indentures between themselves and the Australian government to hold plaintiffs’ wages in trust for them. Those facts are
We need not here discuss in detail what is sufficient to put plaintiffs on notice under the diligence-discovery rule. Even if that rule required that plaintiffs know that defendants would be liable under a particular cause of action, which is dubious, see Rotella v. Wood,
Ellul alleged that he was taken from his family on the promise that he would be educated and then reunited with them when he turned eighteen. As he well knew at the time he came of age, neither promise had been fulfilled. Carmack was told when she returned to Australia as an adult that, contrary to what she had previously been told, her mother might be alive. Goulding’s family tracked her down and engineered her return to Britain. All the plaintiffs were therefore aware years before the Senate Report that defendants effected their transfer to Australia through some sort of deception or abusive tactic. See Velez v. Sanchez,
As to the exploitation element, international law, as stated in the Palermo Protocol, defines exploitation to include “at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” Id., quoting Palermo Protocol, art. 3. The complaint alleges that all of the plaintiffs were forced to work long hours and were not paid for their labor, something of which the plaintiffs obviously were well aware when it occurred and continued to be aware after achieving majority. Plaintiffs therefore knew that they had been exploited decades before the issuance of the Senate Report. While knowledge of the indentures between defendants and the Australian government might have made plaintiffs aware that their unpaid labor violated Australian law, it is irrelevant to exploitation under international law, which turns solely on the practice of slavery or forced labor, not on whether such practice violated promises made to the Australian government. , Accordingly, plaintiffs were aware of all of the elements of a human trafficking claim more than ten years before they filed this lawsuit.
The distinction between equitable tolling and the diligence-discovery rule has not always been clear in our caselaw. “Our Court has used ‘equitable tolling’ to mean [both] fraudulent concealment of a cause of action that has in some sense accrued earlier, and to mean fraudulent concealment that postpones the accrual of a cause of action.” Pearl v. City of Long Beach,
The basis for plaintiffs’ claim of equitable tolling here is two-fold: first, they point to their allegation, substantiated by the Senate Report, that defendants destroyed or otherwise withheld documents related to the child migration program; second, they argue that defendants acted as plaintiffs’ guardians in loco parentis and as fiduciaries with respect to plaintiffs’ wages held in trust. But, as just discussed in the context of accrual, plaintiffs possessed the necessary information to bring a human trafficking claim well before the ten-year period preceding the filing of the complaint. Defendants’ concealment thus did not prevent them from discovering their cause of action. See Koch,
Finally, plaintiffs argue that defendants should be equitably estopped from asserting a statute of limitations defense. “Unlike equitable tolling, which is invoked in cases where the plaintiff is ignorant of his cause of action because of the defendant’s fraudulent concealment, equitable estoppel is invoked in cases where the plaintiff knew of the existence of his cause of action but the defendant’s conduct caused him to delay in bringing his lawsuit.” Cerbone v. Int’l Ladies’ Garment Workers’ Union,
Accordingly, plaintiffs’ sole arguably remaining claim under the ATS for human trafficking, and any claim of Carmack’s for which jurisdiction arguably may be premised under 28 U.S.C. § 1331, are barred by the statute of limitations that plaintiffs agree applies to their case. For the same reasons, the district court correctly dismissed plaintiffs’ state common law claims, all of which have a limitations period shorter than ten years.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
Notes
. The following facts are taken from the allegations in the complaint, which we presume to be true at this stage of the proceeding. Dejesus v. HF Mgmt. Servs., LLC,
. Plaintiffs do not allege tjiat this convent or Nazareth House was operated by any of the named defendants.
. The complaint also named Mercy International Association as a defendant, but plaintiffs voluntarily dismissed all claims against it.
.Carmack also separately asserted claims for violations of customary international law under 28 U.S.C. § 1331.
. Rather than serving process on CCB's headquarters in Rome, plaintiffs had instead served a North American association of Christian Brothers that the district court found was a separate and distinct entity from CCB. The district court also noted that all of the allegations in the complaint charged unlawful conduct by “Christian Brothers Oceania,” which was itself a separate entity from either the Rome association or the North American association. Ellul,
.' For essentially the same reason, the court also held that service on the North American Sisters of Mercy did not create personal jurisdiction over the Australian organization alleged to have committed the acts described in the complaint. Id.
.Justice Breyer, joined by three other justices, concurred in the judgment. Unlike the Court, he would not have invoked the presumption against extraterritoriality. Rather, he would, have established a multi-factor test whereby jurisdiction is conferred if:
(1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.
Id. at 1671 (Breyer, J., concurring in the judgment).
. Plaintiffs characterized this claim in the complaint as one of “child trafficking,” but how refer to it as “human trafficking.” There does not appear to be any material distinction between the two.
. Carmack argues that her claims survive Kiobel because she is a U.S. citizen and may therefore assert claims for violations of customary international law pursuant to 28 U.S.C. § 1-331. Pls.’ Letter of May 10, 2013, ECF No. 169, at 6-7. However, to the extent that § 1331 might provide an alternative jurisdictional basis for Carmack’s claims — a question we need not decide — they fail on statute of limitations grounds for the reasons discussed below.
. Justice Breyer's concurrence similarly provides no support for finding a corporate defendant's presence in the United States sufficient to provide ATS jurisdiction. See id. at 1671 (Breyer, J., concurring in the judgment) (arguing for jurisdiction where “defendant is an American national" (emphasis added)).
. Carmack also argues that her claims "have a strong nexus to the United States in any event based upon her citizenship.” Pis.’ Letter of May 10, 2013, ECF No. 169, at 6. But to the extent that Carmack seeks to ground jurisdiction on the ATS, her citizenship defeats rather than grounds such jurisdiction. As noted above, the ATS grants jurisdiction over civil actions brought "by an alien.” 28 U.S.C. § 1350.
.Although the statute of limitations is ordinarily an affirmative defense that must be raised in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the defense appears on the face of the complaint. Staehr v. Hartford Fin. Servs. Grp., Inc.,
. District courts within our Circuit have similarly applied the ten-year limitations period from the TVPA. See Sikhs for Justice v. Nath,
. Similarly, we assume that a ten-year statute of limitations applies to all of Carmack's claims. While plaintiffs’ concession that the ten-year statute of limitations from the TVPA applies to their claims is worded in terms of claims brought under the ATS, there is no suggestion in their briefing, let alone an argument, that a different limitations period applies to Carmack’s substantively identical international law claims purportedly brought under § 1331.
. As noted above, see supra n. 14, we assume, based on plaintiffs' concession, that all of Carmack’s claims are governed by the ten-year statute of limitations regardless of their jurisdictional basis. Since we hold that plaintiffs knew of their injuries decades before the release of the Senate Report, Carmack’s claims for slavery and involuntary servitude, forced child labor, and cruel, inhuman, and degrading treatment or punishment, as well
. We assume without deciding that the doctrines of equitable tolling and equitable estop-pel are available in connection with the statute of limitations that plaintiffs agree applies to their claims. /
. Ellul, the youngest of the plaintiffs, turned twenty-one in 1967, more than forty years before this lawsuit was filed in 2009.
. As defendants point out, this distinction makes the application of equitable tolling and equitable estoppel mutually exclusive, though of course they can be argued in the alternative.