Time Is Not on Your Side: Establishing a Consistent Statute of Limitations for the Alien Tort Claims Act

• Publication year: 2003
• Citation: Vol. 27 No. 04

SEATTLE UNIVERSITY LAW REVIEWVolume 27, No. 1SUMMER 2003

COMMENT

Time Is Not on Your Side: Establishing a Consistent Statute of Limitations for the Alien Tort Claims Act

David E. Chawes(fn*)

I. Introduction

In October 1942, Nazi troops abducted seventeen-year old Elsa Iwanowa, from Rostov, Russia, and transported her to Germany with approximately 2,000 other adolescents.(fn1) Ford Werke, the German subsidiary of Ford Motor Corporation (Ford), purchased Iwanowa and many of the others as slave laborers for their Cologne, Germany truck manufacturing plant.(fn2) There, she was crammed with the others into a locked wooden hut, without heat, bedding, running water, or sewage facilities.(fn3) Ford Werke manufactured approximately sixty percent of the three-ton tracked vehicles the German army used during World War II.(fn4)

Slave labor was an essential part of the German war effort, with an estimated seven million men, women, and children forced to work under unbearable conditions for such corporations as BMW,(fn5) Daimler-Benz,(fn6) General Motors' Opel Division,(fn7) and Ford Werke.(fn8) The Nazis took their slave laborers from the captive populations, concentration camp inmates, and prisoners of war.(fn9) From 1942 to 1945, Ford Werke overseers forced Iwanowa and the other slave laborers to perform heavy labor at the plant without pay, building motor blocks for the German military trucks.(fn10) At times, the overseers beat the laborers with rubber truncheons if they failed to meet production quotas.(fn11)

In 1998, fifty-three years after the War's end, Iwanowa became the first plaintiff in a class action suit filed against Ford and Ford Werke, accusing them of complicity with the Nazi government and of willing participation in the Reich's forced labor program.(fn12) The suit named Ford because it owned a majority of Ford Werke's outstanding shares during World War II.(fn13) Iwanowa sought compensation for the reasonable value of her services, restitution, and damages for the pain and suffering caused by the inhuman working conditions.(fn14) She partially based her claim on the Alien Tort Claims Act (ATCA),(fn15) asserting that the law granted the court subject matter jurisdiction over her tort claims under customary international law, thereby allowing her, as an alien, to sue a U.S. corporation in a U.S. court.(fn16)

The first U.S. Congress originally passed the ATCA as part of the Judiciary Act of 1789.(fn17) Congress' intent was to provide a federal forum for foreign plaintiffs to recover damages for torts that violated international law or a U.S. treaty.(fn18) The founders desired that the foreign affairs remain within the federal government's jurisdiction,(fn19) and the newly created federal courts, rather than state courts, retained original jurisdiction over matters relating to foreign affairs.(fn20) The impetus for passage of the ATCA arose in the late 1700's, when several incidents involving torts against foreign dignitaries occurred while they were conducting their official business on U.S. soil.(fn21) The Continental Congress found it could not exercise jurisdiction over the tortfeasors in those cases.(fn22) Based on adverse foreign reaction to the earlier incidents, the Continental Congress recognized that uncompensated torts against foreign dignitaries might deeply offend foreign nations, possibly leading to war.(fn23) In planning the new federal government, John Jay was concerned about the consequences of leaving the foreign affairs of the new United States to a "variety of independent courts and judges appointed by different and independent governments."(fn24)

To remedy this serious situation, in 1789 the U.S. Congress passed the ATCA to allow aliens to bring tort claims based on treaties and international law in the newly created federal courts without regard to the amount in controversy.(fn25) For nearly 200 years after its passage, the ATCA was rarely used.(fn26) It was not until 1980, in Filartiga v. Pena-Irala,(fn27) that the ATCA was successfully used to establish that the law "opens federal courts to civil suits by aliens for torts committed in violation of customary international law, even when the case involves acts perpetrated in another country by a non-U.S. citizen."(fn28) In this landmark case, Paraguayan citizens successfully used the ATCA to recover damages in federal court from a former Paraguayan official for acts of official torture that had occurred in Paraguay.(fn29)

Since Filartiga, aliens have repeatedly used the ATCA to recover damages for internationally recognized torts such as official torture, prolonged arbitrary detention, and summary execution.(fn30) Benefits of such uses of the ATCA accrue not only to the foreign citizens gaining a forum for their grievances, but also to the United States, which can visibly demonstrate its goal of furthering human rights worldwide.(fn31) [T]he United States itself has a real interest in seeing to it that nationals of other countries are not the victims of terrorism or genocide perpetrated by their own governments or by other entities in foreign lands .... The interest that a country has in its nationals is expanded, under the law of human rights, to include an interest in non-nationals, especially where basic human rights are threatened.(fn32)

Returning to the Iwanowa case, that court agreed with Iwanowa's allegations that Ford had engaged in slave trading under The Nuremberg Tribunals,(fn33) and that U.S. courts had repeatedly held that "deportation to slave labor" violates the law of nations.(fn34) Nevertheless, the court dismissed her claims against Ford, finding that the applicable limitations period had run.(fn35) Although the tort occurred fifty-three years before Iwanowa brought the action, the court's ruling stood even though the ATCA has no express or implied statute of limitations.(fn36)

The explanation for this seeming anomaly lies in the well-established doctrine that when a federal statute contains no limitations period of its own, federal courts must look to analogous state or federal law in order to borrow a statute of limitations.(fn37) At times, courts apply the limitations periods of analogous federal statutes, and at other times they apply the limitations period of the law of the state in which the court is located.(fn38) If the tort occurred outside the United States, the court may even examine the limitations period of the foreign country where the act occurred.(fn39) District courts, forced to choose from a variety of state, federal, and foreign limitations periods, therefore face the very type of situation that the ATCA was originally designed to prevent: a variety of independent courts and judges, appointed by different governments, inconsistently applying the law.(fn40)

In 1991, the Congress passed the Torture Victim Protection Act (TVPA),(fn41) which provides a fixed ten-year statute of limitations.(fn42) Many courts are now analogizing ATCA claims to the TVPA and consistently borrowing its ten-year limitations period.(fn43) Other courts that have considered the limitations period applicable to ATCA claims since the passage of the TVPA have left unresolved the question of whether the TVPA provides the closest federal analogy. (fn44)

This Comment argues that inconsistent application of limitations periods to ATCA claims does not provide sufficient and certain notice to potential parties to allow them to bring a timely claim, thereby potentially denying them an opportunity to receive a fair hearing in federal courts. While many courts have used the TVPA to apply a ten-year limitations period to ATCA claims, this practice is by no means universal. Therefore, absent a U.S. Supreme Court ruling to provide consistent guidance on the applicable ATCA limitations period, Congress should amend the statute to provide a specific ten-year limitations period for most torts. Because both international and U.S. laws provide that murder committed as part of the crime of genocide has no statute of limitations,(fn45) ATCA claims arising from genocidal acts should also be free of any limitations period. In addition, the amended ATCA should expressly provide that equitable tolling principles and the discovery rule apply, so that there is no leeway for courts to interpret the law to limit application of those doctrines.

Following these introductory remarks, Part II provides general background on statute of limitations jurisprudence and related concepts, such as borrowing statutes, the doctrines of repose and laches, equitable tolling, and the discovery rule. Part II also examines the application of limitations law in federal courts. Part III reviews the history and progression of application of limitations law to the ATCA, focusing on the inconsistency of the limitations periods in representative ATCA claims. Part IV examines arguments for and against amending the ATCA to include a fixed limitations period, and evaluates several proposed alternatives for Congress to consider when amending the ATCA. Part IV also presents the key elements that the amended ATCA should contain. Part V presents conclusions about the appropriate limitations period for Congress to adopt.

II. Background on Limitations Law

Before discussing how the courts apply the statute of limitations to ATCA cases, it is important to review the rationale for having limitations periods in the first...