United States District Court, D. Massachusetts
DAVID BONIFACE, NISSANDÈRE MARTYR, AND JUDERS YSEMÉ, Plaintiffs,
JEAN MOROSE VILIENA, Defendant.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR
RECONSIDERATION, OR IN THE ALTERNATIVE, CERTIFICATION OF AN
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
Boniface, Nissandère Martyr,  and Juders Ysemé
(together, “Plaintiffs”), residents of Les Irois,
Haiti, allege that Jean Morose Viliena
(“Defendant”), the former mayor of Les Irois,
committed human rights abuses in violation of the Alien Tort
Statute (“ATS”), 28 U.S.C. § 1350, and the
Torture Victim Protection Act (“TVPA”), Pub. L.
No. 102-256, 106 Stat. 73 (1992), 28 U.S.C. § 1350
(codified at note). [ECF No. 1 (“Complaint” or
“Compl.”)]. On August 31, 2018, the Court granted
in part and denied in part Defendant's motion to dismiss.
[ECF No. 56]. Now before the Court is Defendant's motion
for reconsideration of the Court's motion to dismiss
order, or, in the alternative, a motion for certification of
an interlocutory appeal. [ECF Nos. 59, 66]. For the reasons
set forth below, Defendant's motion for reconsideration
[ECF No. 66] is DENIED, and Defendant's motion
for the alternative relief of certification of an
interlocutory appeal [ECF No. 59] is GRANTED.
August 31, 2018 Motion to Dismiss Order
Court presumes familiarity with the underlying facts alleged
in the Complaint that were summarized in the Court's
memorandum and order granting in part and denying in part
Defendant's motion to dismiss (“Motion to Dismiss
Order”). See Boniface v. Viliena, 338
F.Supp.3d 50, 56 (D. Mass. 2018). Below, the Court summarizes
the portions of the Motion to Dismiss Order that are relevant
to Defendant's request for reconsideration.
Motion to Dismiss Order began by addressing Defendant's
argument that the Court lacked jurisdiction over Counts I-IV
under the ATS because the relevant conduct occurred in Haiti.
Id. at 60. The ATS states that “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. After clarifying that Defendant's
argument applied only to Count IV because Counts I-III
asserted claims under the TVPA, the Court concluded that it
lacked jurisdiction over Count IV under the ATS. See
id. at 60-63.
Court began its analysis of the ATS claim with Kiobel v.
Royal Dutch Petroleum Co., 569 U.S. 108 (2013), which
“addressed the question of whether a claim brought
pursuant to the ATS ‘may reach conduct occurring in the
territory of a foreign sovereign.'”
Boniface, 338 F.Supp.3d at 60 (quoting
Kiobel, 569 U.S. at 115). In Kiobel, the
Supreme Court observed that the “presumption against
extraterritorial application”-which is a canon of
statutory interpretation that provides that “when a
statute gives no clear indication of an extraterritorial
application, it has none”-“constrain[s] courts
considering causes of action that may be brought under the
ATS.” Kiobel, 569 U.S. at 115-16 (internal
quotation marks and citations omitted). Applying this
construction, the Supreme Court in Kiobel held that
the plaintiffs' claims were barred by the ATS because
“all of the relevant conduct took place outside the
United States.” Id. at 124. In so holding,
however, the Supreme Court also recognized that claims could
be actionable under the ATS so long as they “touch[ed]
and concern[ed] the territory of the United States . . . with
sufficient force to displace the presumption against
extraterritorial application.” Id. at 124-25.
Court then turned to Kiobel's progeny to flesh
out the boundaries of the “touch and concern”
standard while noting that the inquiry is “naturally
fact-dependent.” Boniface, 338 F.Supp.3d at
61-62. Next, the Court summarized analogous cases from this
district. See id. at 61- 62 (first citing Sexual
Minorities Uganda v. Lively, 960 F.Supp.2d 304 (D. Mass.
2013) and then citing Sexual Minorities Uganda v.
Lively, 254 F.Supp.3d 262 (D. Mass. 2017)
(“Lively II”), aff'd in
part, appeal dismissed in part, 899 F.3d 24 (1st Cir.
2018)). Finally, the Court examined the Complaint and found
that the three major incidents alleged in the Complaint
occurred before Defendant fled to the United States and
therefore did not “touch and concern” the United
States sufficiently to confer jurisdiction under the ATS.
Id. at 62. Removing these allegations,
the only remaining allegations indicating that the claims
“touch and concern” the United States are that,
after he fled to the United States in 2009, Defendant
continued to hold office as the mayor of Les Irois, continued
to exercise control over the KOREGA militia, and that from
the United States, he coordinated his return to Les Irois and
the campaign of persecution against his enemies.
Id. at 63. Analogizing to Lively II, the
Court concluded that these facts indicate that
Defendant's involvement from the United Stated was
“limited” and held that “the Complaint does
not demonstrate that the Plaintiffs' ATS claims have a
sufficient connection to the United States.”
Id. The Court dismissed Count IV and proceeded to
assess whether it had jurisdiction over Counts I-III under
Court recognized that “the TVPA creates a cause of
action, but unlike the ATS, it does not provide for federal
jurisdiction.” Id. (citing Kadic v.
Karadzic, 70 F.3d 232, 246 (2d Cir. 1995)). The Court
summarized that federal jurisdiction over TVPA claims
“is conferred by both the ATS and general federal
question jurisdiction pursuant to 28 U.S.C. § 1331, but
many courts have determined that section 1331 is sufficient
in and of itself to establish federal jurisdiction over TVPA
claims.” Id. (first citing Doe v. Drummond
Co., 782 F.3d 576, 601 (11th Cir. 2015), then citing
Haim v. Neeman, No. 12-cv-00351, 2012 WL 12905235,
at *3 (D.N.J. Aug. 29, 2012), then citing Doe v.
Saravia, 348 F.Supp.2d 1112, 1118 n.2 (E.D. Cal. 2004),
and then citing Xuncax v. Gramajo, 886 F.Supp. 162,
178 (D. Mass. 1995)). The Court appended a footnote to the
end of this sentence that read:
Other courts have suggested that the question of
“[w]hether subject matter jurisdiction for a claim
asserted under the TVPA must be conferred on this Court
through the [ATS] or can be based solely on 28 U.S.C. §
1331” is a “thorny issue” that has not been
resolved. Defendant has not made any argument as to why
section 1331 is insufficient, however, nor has Defendant
cited cases explaining why the Court would not have
jurisdiction under section 1331. As subject matter
jurisdiction is an issue that can be raised at any time . . .
Defendant may renew his motion for dismissal on this basis
with a fully-developed argument if he believes that section
1331 is not sufficient to confer jurisdiction over the TVPA
Id. at 63 n.2 (citations omitted). The Court
concluded that it could exercise jurisdiction over the TVPA
claims through section 1331. Id. at 63-64.
concluding that it possessed jurisdiction over the TVPA
claims, the Court rejected Defendant's argument that the
concerns about extraterritorial jurisdiction expressed by the
Supreme Court in Kiobel “should apply equally
to claims brought pursuant to the TVPA.” Id.
at 64. The Court observed that “[o]ther courts have
rejected this argument, and Defendant cites no legal
authority that directly supports this proposition.”
Id. (first citing Drummond, 782 F.3d at
601-02 and then citing Chowdhury v. Worldtel Bangl.
Holding, Ltd., 746 F.3d 42, 50-51 (2d Cir. 2014)).
September 25, 2018, following entry of the Motion to Dismiss
Order, Defendant filed a motion for certification of
interlocutory appeal. [ECF No. 59]. On September 26, 2018,
the Court issued an electronic order advising the parties
that it deemed Defendant's filing to be a motion for
reconsideration or, in the alternative, a motion for
certification of an interlocutory appeal, and permitted
Defendant to file a supporting memorandum. [ECF No. 60]. On
November 2, 2018, Defendant filed a motion for
reconsideration and supporting memorandum. [ECF Nos. 66-67].
On November 21, 2018, Plaintiffs opposed reconsideration and
certification of an interlocutory appeal. [ECF No. 70].
MOTION FOR ...