United States: New York District Court Clarifies the Jurisdictional Scope of the Alien Tort Claims Act and Torture Victim Protection Act

Last Updated: December 10 2010
Article by Eric A. Savage, Milton Castro and Michael G. Congiu

In a decision issued in late November, the Eastern District of New York confirmed the limited scope of jurisdiction under the Alien Tort Claims Act (ATCA) and further defined the scope of liability under the Torture Victim Protection Act (TVPA). Velez v. Sanchez, No. 04-CV-4797, 2010 U.S. Dist. LEXIS 126586 (Nov. 30, 2010). Although the decision arises from facts uncommon to multinational companies, the decision nonetheless serves as further clarification on the jurisdictional interrelation between ATCA and TVPA and is an example of how courts continue to interpret ATCA and TVPA claims.1


Since ATCA's enactment in 1789, the statute has provided original jurisdiction to the federal district courts for any civil action: (1) brought by an alien; (2) for a tort; (3) committed in violation of international law or a U.S. treaty.2 Over the years, ATCA claims have been utilized with little success in efforts to hold multinational corporations liable for alleged human rights abuses related to their international operations.

TVPA, a 1992 amendment to ATCA, established a cause of action for torture or extrajudicial killing committed by individuals acting under actual or apparent authority, or under "color of law." The Eleventh Circuit Court of Appeals recently explained the relationship between ATCA and TVPA as follows:

The two related statutes . . . perform complementary but distinct roles. [ATCA] is jurisdictional and does not create an independent cause of action. . . . In contrast, [TVPA] provides a cause of action for torture and extrajudicial killing but does not grant jurisdiction. . . . Federal courts are empowered to entertain complaints under [TVPA] when either [ATCA] or the federal question statute, 28 U.S.C. § 1331, provides jurisdiction.3

Although TVPA expressly creates a private right of action for torture and extrajudicial killing, TVPA appears to cover a much narrower set of potential claims than those that were potentially available under ATCA, due in large part to the U.S. Supreme Court's decision in Sosa v. Alvarez-Machain.4 In Sosa, the Court held that ATCA, although jurisdictional in nature, establishes a private right of action, but only for violations of international law. The Court further held that ATCA claims must allege violations of international norms that are "specific, universal and obligatory."5 Although these holdings created meaningful limitations on ATCA's scope, the case law surrounding ATCA and TVPA claims continues to evolve.

The Facts: Velez v. Sanchez

The plaintiff, Linda Velez ("Velez"), filed a lawsuit under ATCA, alleging that she had been trafficked from Ecuador and forced to work in the home of defendant Betsy Sanchez ("Sanchez") and her family.6 According to Velez, Sanchez asked Velez to come to the United States to stay in the Sanchez household, care for the Sanchez children, and perform various housekeeping duties. In return, Sanchez would pay Velez weekly wages and assist her in continuing her education. Velez agreed; moved from Ecuador to the United States on a 6-month tourist visa and began living and working in the Sanchez household.

However, Velez claimed that Sanchez never paid Velez for her services – providing only room and board – and was allegedly abusive to Velez, as were other family members. After several years under these conditions, Velez left the Sanchez household and its employ. When Velez was asked why she had not left sooner, she stated she had nowhere to go besides going back to Ecuador.

Clarifying ATCA and TVPA's Jurisdiction

Velez pled her claims of human trafficking and forced labor under ATCA. Although the defendants did not challenge the jurisdictional basis of these claims, the court exercised its authority to do so. The court agreed that human trafficking and forced labor violate "specific, universal and obligatory" international norms so as to fall within ATCA's jurisdiction, but ruled that other jurisdictional defects in Velez's ATCA claims mandated dismissal.

Acknowledging that Velez's ATCA claims were a matter of first impression, the court initially noted that all of Velez's allegations involved actions that had occurred within the United States (i.e., domestic actions). Although the court found no case law holding that ATCA claims must only involve actions occurring abroad, the court nonetheless held that Velez's claims of human trafficking and forced labor were not within the Supreme Court's conception of ATCA jurisdiction. Moreover, the court called Velez's foreign national status "pure happenstance," dismissing it as irrelevant to the establishment of ATCA jurisdiction.

Secondly, the court held that although Velez's allegations fell within ATCA's ambit, such jurisdiction has already been "implicitly withdrawn" by the enactment of TVPA. Finding that TVPA created a cause of action "for any individual who is a victim of a violation of the federal criminal laws prohibiting human trafficking and forced labor," the court held (again as a matter of first impression) that Congress intended for TVPA to limit ATCA's jurisdiction in the area of civil remedies for human trafficking and forced labor.

The court declined, however, to decide whether TVPA provides a remedy only for domestic violations of the criminal laws against human trafficking and forced labor, which, if true, would leave the scope of ATCA "undiminished." Noting a lack of guiding authority or consensus among the courts, the Velez court tabled that issue, explaining that it would not resolve the question at this time, especially since all of Velez's claims arose in the United States. The court further reasoned that even if TVPA applied to both domestic and foreign actions, ATCA would still remain viable for those claims by aliens alleging "any other violation of the law of nations or . . . treaty of the United States."

The Merits of Velez's ATCA/TVPA Claims

Despite finding jurisdictional defects in Velez's ATCA claims, the court nonetheless moved onto the merits, explaining that it would treat the claims as if Velez had properly pled them under TVPA. The court began its analysis by defining "forced labor" as labor obtained by:

(1) force or the threat of force; (2) serious harm or threat of serious harm; (3) abuse or threatened abuse of law or the legal process; [or] (4) any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint.

The court further noted that because TVPA defines human trafficking as "knowingly recruiting any person for forced labor," an alleged violation requires establishment of one of the four criterion listed above.

Turning to the facts of the case, the court found that Velez was not subjected to force of any kind until the final days of her stay in the Sanchez household, in which the defendants on two occasions allegedly pushed or pulled Velez briefly, but did not completely restrain or confine her. Velez also cited incidents in which the defendants threatened her with legal action if she left the Sanchez household, but the court found that "Velez's own testimony demonstrates that she did not feel forced to work because of [the legal threats]; on the contrary, she made a voluntary choice to stay to make a life for herself in the United States." Accordingly, the court granted summary judgment on Velez's ATCA/TVPA claims.7


Velez does three important things for the steadily developing body of ATCA and TVPA law. First, the case provides further support for the notion that Congress intended TVPA's jurisdiction to supplant that of ATCA with regard to human trafficking and forced labor claims.

Second, Velez suggests that a plaintiff who improperly brings his or her claim under ATCA may still be permitted to proceed under TVPA even where he or she has not invoked TVPA on alternative grounds.

Finally, and perhaps most important for employers to note, is the reality that the court in Velez endorsed the notion that domestic and foreign-born employees may bring human trafficking or forced labor claims under TVPA even where the alleged violations occurred entirely within the United States.


1 For further information on these issues, see Littler's ASAPs, New York Federal Court Rejects Attempt to Litigate Alleged Human Rights Abuses in the U.S.(Dec. 2010), and The Continued Viability of the Alien Tort Claims Act and the Torture Victim Protection Act(Jan. 2009).

2 28 U.S.C. § 1350 (2000).

3 Juan Aquas Romero v. Drummond Co., Inc., 552 F.3d 1303, 1315 (11th Cir. 2008) (internal citations omitted).

4 542 U.S. 692 (2004).

5 Id. at 732.

6 Velez also brought numerous state law and Fair Labor Standards Act (29 U.S.C. §§ 201-19) claims.

7 The district court ultimately granted summary judgment on all of Velez's federal law claims and declined to exercise supplemental jurisdiction over Velez's remaining state law claims. As such, the court dismissed the case in its entirety.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions