Does the TVPRA Apply Extraterritorially? Thoughts on the U.S. Chamber of Commerce Amicus Brief in Doe v. Apple
October 20, 2022
As the U.S. Supreme Court has repeatedly limited the scope of the implied cause of action under the Alien Tort Statute (ATS), victims of human rights abuses have looked to other U.S. statutes for remedies. One of these is the Trafficking Victims Protection Reauthorization Act (TVPRA), which creates a civil remedy against perpetrators and others who knowingly benefit from slavery, forced labor, and human trafficking. In Doe v. Apple, a case decided late last year, the District Court for the District of Columbia (Judge Carl Nichols) held that only the TVPRA’s criminal provisions apply extraterritorially and not its civil cause of action.
The case is now on appeal to the D.C. Circuit and set for argument on December 8. Last Friday, the U.S. Chamber of Commerce and other business groups filed an amicus brief arguing that the TVPRA’s civil remedy does not apply extraterritorially. I have joined a different amicus brief arguing the contrary position, along with several other TLB editors and advisors. This post offers some of my own thoughts in response to the Chamber’s brief.
First enacted in 2000, the TVPRA has been expanded and reauthorized several times with broad bipartisan support. The original act added forced labor, trafficking for forced labor, and sex trafficking of children as federal offenses to Chapter 77 of Title 18, which already contained offenses relating to peonage and slavery. In 2003, Congress passed the Trafficking Victims Protection Reauthorization Act of 2003, which added a civil remedy against perpetrators, codified at § 1595, for victims of these three offenses.
The 2003 TVPRA also extended one part of the act extraterritorially for the first time, making the provision on sex trafficking of children applicable “within the special maritime and territorial jurisdiction of the United States,” a phrase that includes the high seas, U.S. ships and planes, and U.S. embassies, consulates, and military installations. Two years later, Congress extended the extraterritorial reach of the TVPRA further, making it a crime for any person “employed by or accompanying the Federal Government outside the United States” to violate Chapter 77. And three years after that, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 significantly expanded the TVPRA’s geographic scope by providing in § 1596 that “the courts of the United States have extra-territorial jurisdiction over any offense (or any attempt or conspiracy to commit an offense) under section 1581 [peonage], 1583 [enticement into slavery], 1584 [sale into involuntary servitude], 1589 [forced labor], 1590 [trafficking for forced labor], or 1591 [sex trafficking of children],” provided that the alleged offender is a U.S. national or resident or is present in the United States.
When Congress extended the extraterritorial reach of the TVPRA in 2008, it also expanded § 1595’s civil remedy in three ways. First, Congress expanded the TVPRA cause of action beyond the three original offenses of forced labor, trafficking for forced labor, and sex trafficking of children, so that it now applies to any violation of Chapter 77. Second, Congress broadened the class of potential defendants beyond perpetrators to include any person who “knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter.” Third, Congress established a generous ten-years statute of limitations for civil claims. Congress has reauthorized the TVPRA several times since.
Doe v. Apple
The plaintiffs in Doe v. Apple are children and the family members of children who were injured or killed mining cobalt in the Democratic Republic of the Congo (DRC). Cobalt is a key ingredient in lithium-ion batteries, which power devices from mobile phones to electric vehicles. The defendants are U.S. companies, Apple, Alphabet, Microsoft, Dell, and Tesla, that purchase large amounts of cobalt through supply chains to power their products. The plaintiffs sought to represent a class of similar child laborers seeking damages and injunctive relief for violations of § 1589 (forced labor) and § 1590 (trafficking for forced labor).
The district court dismissed the TVPRA claims on several grounds. First, the court held that the plaintiffs’ injuries were not fairly traceable to the defendants’ conduct, noting that the allegations “involve the actions of several independent third parties in the causal chain between Plaintiffs and Defendants.” Second, the court held that the plaintiffs had not adequately alleged that the defendants participated in a “venture” that they knew or should have known was violating the TVPRA, reasoning that “a ‘global supply chain’ is not a venture.” Third, the court held that plaintiffs had not adequately alleged violations of § 1589 (force labor) or § 1590 (trafficking for forced labor) because the allegations showed that they were driven to work in cobalt mines by economic necessity rather than threats of harm. Any of these three grounds would have been sufficient for the district court to hold that the ultimate consumers of cobalt could not be held liable for injuries and deaths that occurred in the mines.
But the district court went further than this, concluding that the TVPRA’s civil remedy did not apply extraterritorially to any injuries from forced labor or trafficking abroad. The court relied on the two-step framework for the presumption against extraterritoriality that the Supreme Court articulated in RJR Nabisco v. European Community. This requires a court to look first for a clear indication of a provision’s geographic scope. In the absence of such a clear indication, a court may still apply a provision if conduct relevant to its focus occurred in the United States.
At the first step of the presumption analysis, the district court looked to the language of § 1595, finding no clear indication of extraterritoriality. The court rejected the plaintiffs’ argument that § 1595 applies extraterritorially because it refers to offenses that apply extraterritorially by virtue of § 1596. The court thought that § 1596 pointed to the opposite conclusion because it listed only criminal offenses as applying extraterritorially, without any reference to § 1595’s civil remedy.
At the second step, the court rejected the plaintiffs’ argument that applying the civil remedy to defendants should be considered a domestic application because they “knowingly benefit[ed]” in the United States. It held that the focus of the TVPRA’s civil remedy was not the “benefit” but rather the “violation,” which occurred in the DRC.
The Chamber of Commerce Amicus Brief
The Chamber’s amicus brief makes many of the same points that the district court did. It finds no clear indication of extraterritoriality in the language of § 1595 and rejects the proposition that referring to extraterritorial predicates is sufficient. It also notes § 1596’s failure to include § 1595 among the offenses that apply extraterritorially. And it agrees with the district court that the focus of § 1595 is the violation.
The Chamber does make some additional points that are worth noting. First, the Chamber suggests that there should be a special rule for causes of action to apply extraterritoriality because they have a greater potential to create “international friction” than criminal provisions (pp. 14-15). The Chamber points to the Anti-Terrorism Act(ATA) and the Torture Victim Protection Act (TVPA) as examples of Congress creating expressly extraterritorial causes of action (pp. 9-10).
Second, the Chamber argues that addressing forced labor in global supply chains involves difficult policy choices that are best addressed by the political branches (p. 25). To say that the global community should address forced labor in supply chains is not to say that every actor in a supply chain should be held liable (p. 26). Indeed, imposing liability on companies that try to exercise control over their supply chains runs the risk of discouraging industry-led efforts to combat human trafficking and forced labor (p. 32).
Some Thoughts in Response
On Reading RJR Nabisco
Applying the presumption against extraterritoriality correctly to the TVPRA depends on a proper understanding of the Supreme Court’s decision in RJR Nabisco, a case I have discussed at length elsewhere. RJR Nabisco not only articulated the Court’s two-step framework for the presumption; it also applied that framework to determine the geographic scope of RICO’s criminal provisions and its civil cause of action. As the Chamber notes, RJR Nabisco held that RICO’s criminal provisions apply extraterritorially whereas its civil cause of action does not. But the same is not necessarily true for all civil causes of action.
RICO § 1962 makes it a criminal offense to engage in a pattern of racketeering activity in connection with an enterprise. Racketeering activity is defined to include various predicate offenses under federal and state law, some of which apply extraterritorially. Although the text of § 1962 says nothing about whether it applies extraterritorially, the Supreme Court held in RJR Nabisco that “Congress’s incorporation of … extraterritorial predicates into RICO gives a clear, affirmative indication that § 1962 applies to foreign racketeering activity—but only to the extent that the predicates alleged in a particular case themselves apply extraterritorially.”
The Supreme Court reached a different conclusion with respect to RICO’s civil cause of action, found in § 1964(c), which provides that “[a]ny person injured in his business or property by reason of a violation of section 1962” may sue for treble damages. The Court applied the presumption separately to § 1964(c), reasoning that “providing a private civil remedy for foreign conduct creates a potential for international friction beyond that presented by merely applying U.S. substantive law to that foreign conduct.” The Court found no clear indication that RICO’s civil remedy applied extraterritorially. To the contrary, the Court emphasized that “by cabining RICO’s private cause of action to particular kinds of injury—excluding, for example, personal injuries—Congress signaled that the civil remedy is not coextensive with § 1962’s substantive prohibitions.” Turning to step two of the analysis, the Court concluded that the focus of § 1964(c) was the injury to business or property referred to in its text and therefore held that the provision “requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries.”
The fundamental question in Doe v. Apple is whether the TVPRA’s civil remedy is more analogous to RICO § 1962, which the Supreme Court held applies extraterritorially, or to RICO § 1964(c), which the Court held does not. The Fourth Circuit concluded in Roe v. Howard that the TVPRA’s civil remedy was more like RICO § 1962. The opinion in that case by Judge King (a Clinton appointee), joined in full by Judge Wilkinson (a Reagan appointee) and Judge Quattlebaum (a Trump appointee), is worth reading in full.
First, like RICO § 1962, TVPRA § 1595 directly incorporates predicate offenses, some of which apply extraterritorially. As in RJR Nabisco, “Congress’s incorporation of … extraterritorial predicates … gives a clear, affirmative indication” that § 1595 applies extraterritorially to the same extent as its predicate offenses. RICO § 1964(c), by contrast, incorporates extraterritorial predicates only indirectly, by referring to § 1962, which in turn refers to other statutes that apply extraterritorially.
Second, unlike RICO § 1964(c), there is no indication that Congress intended the TVPRA’s civil remedy to be narrower than its criminal provisions. Whereas RICO’s civil cause of action was limited to “[a]ny person injured in his business or property by reason of a violation of section 1962,” the TVPRA’s civil cause of action extends without limitation to any “individual who is a victim of a violation of this chapter.” As the Fourth Circuit noted in Roe v. Howard, “the text of § 1595 shows that it applies coextensively with its predicate offenses, omitting any qualifying or modifying language, which further distinguishes it from § 1964(c).”
Section 1596’s List of Offenses
Like the district court, the Chamber’s amicus brief notes (pp. 6-7) that § 1596, the 2008 amendment that extended six of Chapter 77’s criminal offenses extraterritorially, does not mention § 1595 containing the civil cause of action. But the explanation for this is straightforward. Section 1596, by its terms, extends extraterritorial jurisdiction over certain “offense[s].” Section 1595 does not create an “offense” but rather a “civil remedy” for victims of offenses. It would have made no sense for Congress to include § 1595 in a list of offenses. Nor was it necessary for Congress to do so. By creating a civil remedy that applies without limitation to any “individual who is a victim of a violation of this chapter,” Congress created a right to sue that is coextensive with its predicate offenses and applies extraterritorially whenever they do.
The Focus of § 1595
Because TVPRA § 1595’s incorporation of extraterritorial predicates provides a clear indication of extraterritoriality at step one of the presumption analysis, RJR Nabisco teaches that the D.C. Circuit should not proceed to step two. But if the Court of Appeals finds it necessary to determine the focus of the TVPRA’s civil remedy, it seems clear that benefitting is the focus of § 1595’s benefit prong. Recall that § 1595 originally applied only to three offenses and only to perpetrators. The 2008 amendments made it applicable to all violations of Chapter 77 and allowed victims to bring claims not only against the perpetrator but also against “whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter.”
Just as the text of RICO’s civil cause of action suggested in RJR Nabisco that its focus was on “injur[y]” to “business or property,” so the text of the TVPRA’s civil cause of action suggests that the focus of this provision is “benefit … from participation in a venture.” Indeed, the D.C. Circuit recently reached a similar conclusion in Rodriguez v. Pan American Health Organization, holding that the “gravamen” of a TVPRA claim for benefiting from forced labor—a question relevant to the defendant’s immunity in that case—was the benefit that occurred in the United States rather than the forced labor that occurred abroad. Although Rodriguez involved a different statutory question, it would be odd for the D.C. Circuit to conclude that the gravamen of a TVPRA claim was not also the focus of the provision.
The Same Presumption Applies to Causes of Action
As noted above, the Chamber suggests that a special rule should apply to causes of action because they are more liable to cause international friction. In RJR Nabisco, the Supreme Court clearly held that the presumption against extraterritoriality applies “separately” to causes of action. But the Court has never suggested—not in RJR Nabisco nor any other case of which I am aware—that the presumption applies differently to causes of action. In particular, the principles that the presumption is “not a clear statement rule” and that “an express statement of extraterritoriality is not essential” apply equally to causes of action. As in RJR Nabisco, a clear indication can be found in the “structure” of the statute.
In fact, the Chamber’s examples of causes of action that clearly apply extraterritorially turn out to be no clearer than the TVPRA’s. ATA § 2333 creates a civil cause of action for any U.S. national injured by an “act of international terrorism” but says nothing else about its geographic scope. “International terrorism” is defined in a separate provision as acts that “occur primarily outside the territorial jurisdiction of the United States” or “transcend national boundaries.” How is this any clearer an indication of extraterritoriality than TVPRA § 1595, which refers directly to violations of criminal provisions that apply extraterritoriality?
The TPVA creates a civil cause of action against any “individual who, under actual or apparent authority, or color of law, of any foreign nation” subjects another individual to torture or extrajudicial killing, provided that the claimant has “exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.” It says nothing else about its geographic scope. I agree with the Chamber that the TVPA’s references to “foreign law” and to “the place in which the conduct … occurred” are sufficient to rebut the presumption against extraterritoriality. But they are no clearer than TVPRA § 1595’s reference to extraterritorial predicate offenses.
The Implications of Each Interpretation
Finally, the Chamber argues that it is going too far to hold the ultimate consumers of cobalt liable for the forced labor and human trafficking that may have occurred during its production. I tend to agree. Indeed, I see no principled way to distinguish Apple’s liability as a consumer of cobalt from my own liability as a consumer of Apple products. But the D.C. Circuit could affirm the decision below on the other grounds that the district court identified, for example, that the plaintiffs’ injuries were not fairly traceable to the defendants’ conduct. The Court of Appeals need not hold that the TVPRA’s civil remedy can never apply extraterritorially.
To hold that the TVPRA’s civil remedy does not apply extraterritorially would have negative implications of its own, which the Chamber’s brief does not consider. It would preclude civil actions in cases where U.S. nationals were much more directly involved in forced labor, trafficking, and sexual abuse. In Roe v. Howard, for example, a victim of sexual abuse on U.S. embassy property in Yemen successfully sued a U.S. diplomat who was the spouse of her abuser. Other cases have involved claims by workers trapped in debt bondage against U.S. government contractors in Iraq, and claims by child victims of a U.S.-run sex tourism business in Brazil. The latter two cases failed because the offenses occurred before Congress expanded the TVPRA’s extraterritorial reach in 2008. But under the Chamber’s interpretation of § 1595, the same claims would have to be dismissed today, despite the efforts Congress has made to expand the TVPRA’s extraterritorial reach and civil remedy.
Faithful application of the two-step framework for the presumption against extraterritoriality articulated and applied in RJR Nabisco leads to the conclusion that the TVPRA’s civil remedy applies extraterritorially to the same extent as its criminal offenses and that anyone who benefits from participating in a venture that they knew or should have known violated the act may be held liable. Although this may not help the plaintiffs in Doe v. Apple because of the other problems with their claims noted above, it will help other victims of forced labor, trafficking, and sexual abuse recover damages from U.S. nationals and others to whom the TVPRA’s criminal provisions extend, including those who benefit from participating in a venture with the perpetrators. The district court’s cramped reading of the TVPRA is not consistent with the Supreme Court’s approach and should be reversed on appeal.