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Ellul v. Congregation of Christian Bros.

United States Court of Appeals, Second Circuit

December 8, 2014

EMMANUEL ELLUL, on behalf of himself and all others similarly situated, VALERIE CARMACK, on behalf of herself and all others similarly situated, HAZEL GOULDING, on behalf of herself and all others similarly situated, Plaintiffs - Appellants, --
v.
-- CONGREGATION OF CHRISTIAN BROTHERS, ORDER OF THE SISTERS OF MERCY, CATHOLIC RELIGIOUS ORDER, DOES 1-10, Defendants - Appellees, MERCY INTERNATIONAL ASSOCIATION, Defendant. [*]

Argued June 19, 2012.

Page 792

Plaintiffs-appellants Emmanuel Ellul, Valerie Carmack, and Hazel Goulding sued the Congregation of Christian Brothers, the Order of the Sisters of Mercy, Mercy International Association, and various unnamed Catholic religious orders, alleging, inter alia, violations of the Alien Tort Statute, 28 U.S.C. § 1350 (" ATS" ). The United States District Court for the Southern District of New York (Paul A. Crotty, Judge), granted defendants' motion to dismiss on various grounds, including that plaintiffs' claims were barred by the statute of limitations. Because the bulk of plaintiffs' claims are no longer cognizable under the ATS as interpreted by the Supreme Court's recent decision in Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), and plaintiffs' remaining federal claims are barred by the statute of limitations, we affirm the dismissal of the complaint.

NEAL DEYOUNG (H. Rajan Sharma on the brief), Sharma & DeYoung LLP, New York, New York, for plaintiffs-appellants Emmanuel Ellul, Valerie Carmack, and Hazel Goulding.

TIMOTHY JAMES O'SHAUGHNESSY (Matthew W. Naparty on the brief), Mauro Lilling Naparty LLP, Great Neck, New York, for defendant-appellee Congregation of Christian Brothers.

THOMAS EDWARD WACK (Michael Gordon Biggers on the brief), Bryan Cave LLP, St. Louis, Missouri, for defendant-appellee Order of the Sisters of Mercy.

Before: CALABRESI, LYNCH, and LOHIER, Circuit Judges.

OPINION

Page 793

Gerard E. Lynch, Circuit Judge :

In Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), the Supreme Court held that, with very limited exceptions, the Alien Tort Statute, 28 U.S.C. § 1350 (" ATS" ), does not apply extraterritorially to conduct that occurs outside the United States. 133 S.Ct. at 1665. The actions that form the basis of this case occurred far from the United States and many decades ago. It is beyond question -- and defendants do not dispute -- that plaintiffs allege shocking violations of internationally accepted norms. But it is also beyond question that, based on the Supreme Court's interpretation of the ATS, most of plaintiffs' claims are not cognizable in an American court. Plaintiffs' remaining federal claims that even arguably survive Kiobel are, in any event, barred by the statute of limitations. Accordingly, we affirm the district court's dismissal of plaintiffs' complaint.

BACKGROUND[1]

Plaintiffs' claims stem from an alleged " child migration" program undertaken in the aftermath of World War II. As part of the scheme, the purpose of which was to populate Australia with " pure white stock" from Britain and " working boys" from Malta (Compl. ¶ 1), defendants allegedly took plaintiffs away from their families as children, falsely told them that their parents had died or abandoned them, and transported them to Australia, where plaintiffs and other children were made to work essentially as slaves, for long hours without pay, and were subjected to extreme physical and, in some cases, sexual abuse.

Emmanuel Ellul was born in Malta in 1946. At age fourteen, he and his brothers were sent to Australia as part of the child migration program. Ellul's parents were told that he would be educated in Australia, and that after his education was complete, he could return to Malta or the family could be reunited in Australia. Once in Australia, however, Ellul and his brothers were taken to an agricultural school run by the Congregation of Christian

Page 794

Brothers (" CCB" ), a Roman Catholic religious order, where they were made to work on a large commercial farm and were not given any schooling. The children at the farm performed physical labor from early morning until nightfall, were frequently beaten and threatened with physical violence, and were told that their parents were dead. At age seventeen, Ellul was sent to another farm where he worked for a year. Ellul was never paid for any of his labor and he lost contact with his brothers for nearly two decades.

Valerie Carmack was born in Britain in 1943. When she was ten years old, her mother was told that Carmack had been adopted by another family in Britain, but in fact she had been sent to Australia. Once there, she was made to work at Nazareth House, a home for the elderly. For roughly six years, she worked long hours, seven days a week, for no pay. At age sixteen, Carmack was sent to work at a convent[2] where she was told that her wages were being kept for her " savings," but upon reaching the age of majority, she was not given those savings. (Id. ¶ 24.) After leaving Australia, Carmack returned to Nazareth House as an adult to obtain her birth certificate. She was then informed that " she might have a mother but . . . it would be pointless to contact her." (Id. ¶ 25.) Carmack, who is now a U.S. citizen, made several attempts to locate information about what had happened to her, including a trip to Australia in 1993 during which she sought records about herself from government officials.

Hazel Goulding was sent from Britain to Australia in 1947 when she was eight years old. Like the other plaintiffs, she was made to work long hours for no pay and received virtually no education. She lived at an institution run by nuns who allegedly were part of the Order of the Sisters of Mercy (" OSM" ). The nuns routinely beat and starved their wards, including Goulding. When Goulding was fifteen, she escaped the institution, but was caught and returned to the custody of OSM, after which she was kept in solitary confinement. In 1954, Goulding's family managed to track her down and she and her sister returned to Britain. She returned to Australia in 1970. Since then, she has sought public records about herself. She also testified about her personal experiences as part of an inquiry into the child migration program by the Australian Senate, which resulted in the 2001 release of a comprehensive report on the program (the " Senate Report" ). See Commonwealth of Australia, Lost Innocents: Righting the Record - Report on child migration (Aug. 30, 2001), available at http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/completed_inquiries/1999-02/child_migrat/report/index.htm.

Plaintiffs brought this suit in the Southern District of New York on December 30, 2009. They brought claims against CCB, OSM, and various unnamed Catholic religious orders[3] under the ATS, alleging violations of customary international law including slavery and involuntary servitude, child trafficking, forced child labor, and cruel, inhuman, and degrading treatment or punishment, as well as common law claims of ...


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