Court Holds that ATS Claims for Medical Experimentation Are Not Impermissibly Extraterritorial
May 20, 2022
In a recent decision, Estate of Alvarez v. The Johns Hopkins University, a federal district court held that claims under the Alien Tort Statute (ATS) based on nonconsensual medical experiments in Guatemala were not impermissibly extraterritorial. Although the district court ultimately granted summary judgment for the defendants on other grounds, the decision is significant because it demonstrates that some ATS claims can survive the limits on the ATS cause of action that the U.S. Supreme Court recently imposed in Nestlé, USA v. Doe (2021).
The plaintiffs in Alvarez are 842 individuals who were subjected to nonconsensual medical experiments involving sexually transmitted diseases in Guatemala from 1946 to 1948. These experiments were led by doctors working for the Rockefeller Foundation and the Johns Hopkins University and were funded by grants from the U.S. Public Health Service. In 2010, President Obama apologized for the experiments in a call with the President of Guatemala.
After suits against the United States and the Pan-American Health Organization were dismissed on grounds of immunity, plaintiffs brought suit under the ATS against the Rockefeller Foundation and Johns Hopkins. The ATS gives federal courts jurisdiction over claims by non-U.S. citizens for torts in violation of international law, and the U.S. Supreme Court has recognized a cause of action under the ATS for violations of well-established human rights norms. Nonconsensual medical experiments have previously been held actionable under the ATS, and the district court reached the same conclusion here.
The defendants, however, argued that the plaintiffs’ claims were impermissibly extraterritorial under the Supreme Court’s recent decision in Nestlé. In Nestlé, plaintiffs alleged that they were trafficked as children to work as slaves on cocoa farms in Ivory Coast and that the defendants, two U.S. chocolate companies, aided and abetted their slavery by providing financial assistance to the farms that enslaved them. Although the plaintiffs claimed that the U.S. companies’ decisions to support to these farms were made in the United States, the Court found that the ATS claims were impermissibly extraterritorial because nearly all the conduct aiding and abetting the forced labor occurred in Ivory Coast and general corporate decisionmaking did not constitute sufficient conduct in the United States. Commenting on the decision shortly after it came down, I observed that ATS claims against U.S. defendants that could meet Nestlé’s new conduct requirement were “likely to be few and far between.”
Alvarez proved to be one of those cases. The district court distinguished Nestlé on the ground that the claims in Alvarezdid not simply involve general corporate decisionmaking. Rather, “the nonconsensual human medical experiments were conceived, designed, and approved in the United States, by United States citizens working for both the United States government and United States institutions such as Defendants.” The district court found the facts in Alvarez closer to those in Al Shimari v. CACI Premier Technology (2014), where the Fourth Circuit held that allegations that a U.S. company working as a contractor for the U.S. government had aided and abetted human rights violations at Abu Ghraib prison in Iraq were sufficient to rebut the presumption against extraterritoriality.
The decision in Alvarez shows that it is possible for ATS claims against U.S. defendants to meet Nestlé’s conduct requirement. But the limits the Supreme Court has placed on the ATS cause of action remain daunting. As reported previously on TLB, there is a bill in Congress to amend the ATS to apply extraterritorially, which would eliminate Nestlé’s requirement of conduct in the United States.
Even if this bill passes, however, ATS claims will still face other hurdles. In Alvarez, for example, the district court ultimately granted summary judgment for the defendants because the plaintiffs had not shown that the doctors involved in the experiments acted as agents of the Rockefeller Foundation and Johns Hopkins with respect to the experiments. Analogous problems arise in the corporate context when U.S. corporations act abroad through foreign subsidiaries. Successful ATS cases are hard to bring. The new bill would help, but as Alvarez demonstrates, other obstacles will remain.