Presumption Against Extraterritoriality Applied to Alien Tort Statute in Jurisdictional Dispute over Folk Singer’s Death

A popular Chilean folk singer named Víctor Jara was tortured and killed in the wake of the 1973 military coup that toppled Salvador Allende’s government and brought Augusto Pinochet to power. Nearly 40 years later, Jara’s family discovered that his suspected killer, a former Chilean military officer named Pedro Pablo Barrientos Núñez, had moved to Florida and become a U.S. citizen. Barrientos refused to leave the country to face murder charges in Chile, so Jara’s family sued him in federal district court under the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992).

Although the Jaras obtained a $28-million jury verdict against Barrientos on their statutory claims under the Torture Act, the district court dismissed their common-law claims under the Alien Tort Statute for lack of subject-matter jurisdiction. Unlike the Torture Act (which supports its own, federal-question claims), the Alien Tort Statute does not provide an independent cause of action. It only gives district courts “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 considering the Jaras’ allegations, the district court dismissed claims premised on jurisdiction under the Alien Tort Statute because regardless of Barrientos’s U.S. citizenship, his tortious conduct took place entirely outside the United States.

The Jaras appealed (Barrientos did not), and the Eleventh Circuit affirmed the dismissal of their tort claims in Jara v. Barrientos Núñez, 878 F.3d 1268 (11th Cir. 2018). In an opinion by Judge William Pryor, the court held “that the district court correctly dismissed the Jaras’ claims that invoked the Alien Tort Statute because Barrientos’s relevant conduct occurred exclusively in Chile and a defendant must have engaged in relevant conduct on American soil before a claim carries sufficient force to displace the presumption against extraterritorial application.”

The Supreme Court has held that a claim must “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application” before a district court can exercise jurisdiction under the Alien Tort Statute. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013). Given that holding, and despite arguments that dismissing some of the claims against Barrientos would give him a “safe harbor” in the United States, Judge Pryor explained that the Alien Tort Statute does not confer subject-matter jurisdiction over “the foreign torts of American corporations and citizens.”

Posted by Lee Peifer.

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