Rejecting Comity-Based Abstention in Human Rights Cases
March 8, 2023
Defendants in transnational human rights cases may seek dismissal on a great many bases—so many, in fact, that it can be hard to keep them all straight. One growing source of confusion is the argument that a case should be dismissed based on “comity.” The problem is that comity isn’t a single doctrine. But because courts haven’t always given different comity doctrines clear labels, vague invocations of “comity” allow defendants to argue for dismissal based on the collective vibes of other cases.
In a recent decision, Judge Allison D. Burroughs of the District of Massachusetts correctly called out a defendant for sloppy and shifting invocations of “comity” as a basis for dismissal. Boniface v. Viliena is a case that belongs in U.S. court: not only does it allege serious human rights violations that the government of Haiti has been unable to redress, but the defendant is also a U.S. legal permanent resident who has allegedly continued to direct political affairs and armed groups in Haiti while living in Massachusetts.
Political Violence in Haiti
The three plaintiffs in Boniface allege that they or their family members were violently targeted by Jean Morose Viliena, a local mayor, for their work organizing political opposition. One plaintiff alleges that Viliena led an armed group to his house, where they killed his 23-year-old brother. The two other plaintiffs were maimed after an armed group allegedly led by Viliena attacked the small radio station that they helped support. One plaintiff was still in high school at the time and was shot in the face, while the other had his injured leg amputated above the knee. They further allege that Viliena led an armed mob that burned down their homes, as well as more than thirty others, in a night of political violence.
The plaintiffs pursued charges in Haitian courts with some success against other defendants, though they have been unable to recover on any judgments. Viliena, however, has avoided any proceedings in Haiti in part because he now lives in Massachusetts (although he continues to visit Haiti). Indeed, between the first two attacks and the night of mass arson, Viliena became a lawful permanent resident of the United States.
Rejecting the Defense of “Comity”
The plaintiffs eventually sued Viliena in federal court in Massachusetts, asserting claims under the Torture Victims Protection Act (TVPA), the Alien Tort Statute (ATS), and Haitian law. Although the court dismissed the ATS claim in 2018 (more on that below), the other claims remain—despite the defendant’s repeated efforts to quash them.
Judge Burroughs recently issued her third pre-trial opinion in Boniface, and for the third time she rejected Viliena’s request to dismiss the TVPA claims on comity grounds. Viliena’s argument for why comity requires dismissal, however, has shifted over time.
In his initial motion to dismiss, Viliena’s (undeveloped) comity argument alluded to parallel proceedings in Haiti. At the very least, deference to foreign parallel proceedings requires the foreign litigation to involve substantially the same parties and issues. If the plaintiffs have been unable to sue Viliena in Haiti, then by definition any proceedings in Haiti are not parallel. The court rejected that argument easily.
In his motion for reconsideration, Viliena invoked prescriptive comity instead, drawing on Justice Scalia’s dissent in Hartford Fire Insurance Co. v. California (1993) to urge the district court to construe the TVPA narrowly so as not to reach his conduct in Haiti. The court correctly held that the TVPA rebuts the presumption against extraterritoriality, and it rejected any comity-based limit on its extraterritorial application.
In his motion for summary judgment, Viliena again argued that the court should abstain in light of international comity, this time invoking the Ninth Circuit’s version of comity abstention in Mujica v. AirScan Inc. (2014). Even if the court were to apply this out-of-circuit precedent, Judge Burroughs observed, abstention would not be appropriate given the plaintiffs’ “overwhelming” evidence that proceedings in Haiti would not be procedurally fair. Further, she noted, abstention would not be appropriate after more than five years of litigation, including extensive discovery.
This decision is reasonable and correct, and the court is to be lauded for correctly disentangling the defendant’s shifting theories (and for its patience).
The rest of this post highlights three broader take-aways from the Boniface litigation: (1) The Ninth Circuit’s Mujica abstention should not be adopted in other circuits and is particularly inappropriate in TVPA cases; (2) defendants in human rights cases have too many tools for dismissing claims, which allows conflation of arguments and wastes judicial resources; and (3) the ATS of Filártiga v. Peña-Irala (2d Cir. 1980) is now dead.
The Ninth Circuit’s Mujica Doctrine Is a Bad Idea
As the defendant’s shifting arguments in Boniface indicate, the federal courts might mean many different things when they talk about abstention on the basis of comity. Most typically, they mean deference to foreign parallel proceedings. But the Ninth and Eleventh Circuits also invoke “international comity abstention” to permit dismissal of cases that might implicate foreign relations sensitivities. While the Eleventh Circuit has since backed away from this idea, the Ninth Circuit embraced it in Mujica and has affirmed its use in other cases.
As I have argued before (including with Bill Dodge), Mujica abstention is a bad idea. It should be unnecessary, given the many other comity-based doctrines that judges already have for checking excessive transnational litigation in U.S. courts (more on that below). It is at the same time dangerously open-ended, with almost no constraints on the judge’s discretion. It thus serves as precisely the sort of “vague doctrine of abstention” for avoiding embarrassment to other countries that Justice Scalia, on behalf of a unanimous Supreme Court, rejected when cabining the act of state doctrine in W.S. Kirkpatrick & Co. v. Environmental Tectonics (1990). Indeed, Mujica abstention runs counter to the Supreme Court’s broader efforts to curtail prudential discretion in other doctrines of justiciability (like standing and Younger abstention). Courts in other circuits should reject Mujica abstention, and courts in the Ninth and Eleventh Circuits should be skeptical of its invocation.
One way that courts in the Ninth and Eleventh Circuits might cabin Mujica abstention is by recognizing its logical inapplicability to TVPA cases. The TVPA includes an exhaustion requirement: a “court shall decline to hear a claim under [the TVPA] if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.” Satisfying the exhaustion requirement should also establish that there is not an alternative forum in which the case can otherwise be heard, an apparent precondition for Mujica abstention.
Too Many Tools
Even without Mujica abstention, defendants have a panoply of procedural devices for getting rid of human rights cases. Defendants can challenge the U.S. court’s exercise of personal jurisdiction over them—which, after Daimler AG v. Bauman (2014), basically prevents plaintiffs from bringing global human rights claims against non-U.S. corporations in U.S. courts. Defendants can argue cases are non-justiciable under the political question doctrine; that they are entitled to foreign sovereign or foreign official immunity; or that the questioned conduct is an official act of a foreign sovereign within its own territory and thus shielded by the act of state doctrine. They can argue preclusion based on a foreign judgment or that, if they are sued under U.S. state law, foreign law should apply instead and would block recovery. They can argue that U.S. judges should dismiss cases for a variety of discretionary reasons, including forum non conveniens, deference to foreign parallel litigation, or (in some circuits, for some claims) because the plaintiff did not first exhaust foreign remedies. And they can argue that, under the presumption against extraterritoriality, U.S. statutes do not apply to conduct or harm in other countries, or that even if they do, those U.S. laws should be interpreted restrictively so as not to reach their conduct.
Supreme Court precedents also limit the application of explicitly extraterritorial statutes that are often invoked in human rights cases. The Court has held, for example, that the TVPA only permits claims against individual (not corporate) defendants. And it has significantly curtailed the ATS through cases like Kiobel v. Royal Dutch Petroleum Co. (2013), Jesner v. Arab Bank, PLC (2018), and Nestlé USA, Inc. v. Doe (2021).
The Death of the ATS
The Alien Tort Statute was first revived in around 1980 in a case much like Boniface. In Filártiga, the family of a seventeen-year-old Paraguayan boy who was tortured to death in Paraguay by the local Inspector General of the police, Americo Norberto Peña-Irala, invoked the ATS to sue Peña-Irala in New York when they learned he was living there and was about to be deported for overstaying his tourist visa.
In Boniface, the defendant’s connection to the United States is arguably stronger than Peña-Irala’s, given that the defendant was already a legal permanent resident of the United States at the time of the mass arson alleged in the complaint. But Judge Burroughs dismissed the ATS claims (relating to the first two counts) because they did not sufficiently “touch and concern” the United States, as required by Kiobel. Other courts (I think correctly) had concluded that the residence of the defendant in the United States was sufficient to satisfy Kiobel’s nexus requirement. But regardless, Nestlé’s subsequent requirement that some conduct must have occurred in the United States will—as Bill Dodge presciently argued—make it nearly impossible to bring ATS claims against individuals like Peña-Irala and Viliena going forward.
Yet despite all of these hurdles, the plaintiffs in Boniface have survived summary judgment on a narrowed set of claims. A trial in Boston is set to begin later this month.