To amend title 28, United States Code, to clarify jurisdiction of Federal Courts over a tort action brought by an alien, and for other purposes.

October 17, 2005

Mrs. FEINSTEIN introduced the following bill; which was read twice and referred to the Committee on the Judiciary

To amend title 28, United States Code, to clarify jurisdiction of Federal Courts over a tort action brought by an alien, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Alien Tort Statute Reform Act'.

SEC. 2. SUITS BY ALIENS.

Section 1350 of title 28, United States Code, is amended to read as follows:

`Sec. 1350. Alien's action for tort

`(a) Jurisdiction of District Courts- The district courts shall have original and exclusive jurisdiction of any civil action brought by an alien asserting a claim of torture, extrajudicial killing, genocide, piracy, slavery, or slave trading if a defendant is a direct participant acting with specific intent to commit the alleged tort. The district courts shall not have jurisdiction over such civil suits brought by an alien if a foreign state is responsible for committing the tort in question within its sovereign territory.

`(b) Definitions- For the purposes of this section:

`(1) DEFENDANT- The term `defendant' means any person subject to the jurisdiction of the district courts of the United States, including--

`(A) a United States citizen;

`(B) a natural person who is a permanent resident of the United States;

`(C) a natural person who resides in the United States; or

`(D) a partnership, corporation, or other legal entity organized under the laws of the United States or of a foreign state.

`(2) FOREIGN STATE- The term `foreign state' has the meaning given that term in section 1603 of title 28, United States Code.

`(3) EXTRAJUDICIAL KILLING- The term `extrajudicial killing'--

`(A) means a deliberated killing, which--

`(i) notwithstanding the jurisdictional limitations referred to in subsection (a), is carried out by an individual under actual or apparent authority, or color of law, of any foreign state;

`(ii) is directed against another individual in the offender's custody or physical control; and

`(iii) is not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples; and

`(B) does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign state.

`(4) GENOCIDE- The term `genocide' means, whether in time of peace or in time of war, an act carried out, or an attempt to carry out an act, with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such, which--

`(A) kills members of that group;

`(B) causes serious bodily injury to members of that group;

`(C) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;

`(D) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;

`(E) imposes measures intended to prevent births within the group; or

`(F) transfers by force children of the group to another group.

`(5) PIRACY- The term `piracy' means--

`(A) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed--

`(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; or

`(ii) against a ship, aircraft, persons, or property in a place outside the jurisdiction of any country;

`(B) any act of voluntary participation in the operations of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; or

`(C) any act of inciting or of intentionally facilitating an act described in subparagraph (A) or (B).

`(6) SLAVE TRADING- The term `slave trading' includes--

`(A) all acts involved in the capture, acquisition, or disposal of a person with intent to reduce such person to slavery;

`(B) all acts involved in the acquisition of a slave with a view to selling or exchanging such slave;

`(C) all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged; and

`(D) in general, every act of trade or transport of slaves.

`(7) SLAVERY- The term `slavery' means the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.

`(8) TORTURE-

`(A) IN GENERAL- Notwithstanding the jurisdictional limitations referred to in subsection (a), the term `torture' means any act, carried out by an individual under actual or apparent authority, or color of law, of any foreign state, directed against another individual in the offender's custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind.

`(B) MENTAL PAIN OR SUFFERING- In subparagraph (A), mental pain or suffering refers to prolonged mental harm caused by or resulting from--

`(i) the intentional infliction or threatened infliction of severe physical pain or suffering;

`(ii) the administration or application, or threatened administration or application, of mind altering substances, or other procedures calculated to disrupt profoundly the senses or the personality;

`(iii) the threat of imminent death; or

`(iv) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

`(c) Liability for Damages- Any defendant who is a direct participant acting with specific intent to commit a tort referred to in subsection (a) against an alien shall be liable for damages to that alien or to any person who may be a claimant in an action for the wrongful death of that alien.

`(d) Exhaustion of Remedies- A district court shall abstain from the exercise of jurisdiction over a civil action described in subsection (a) if the claimant has not exhausted adequate and available remedies in the place in which the injury occurred. Adequate and available remedies include those available through local courts, claims tribunals, and similar legal processes.

`(e) Foreign Policy Interests of the United States- No court in the United States shall proceed in considering the merits of a claim under subsection (a) if the President, or a designee of the President, adequately certifies to the court in writing that such exercise of jurisdiction will have a negative impact on the foreign policy interests of the United States.

`(f) Procedural Requirements-

`(1) SPECIFICITY- In any action brought under this section, the complaint shall state with particularity specific facts that--

`(A) describe each tort alleged to have been committed and demonstrate the reason or reasons why the tort action may be brought under this section, provided that if an allegation is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed; and

`(B) demonstrate that the defendant had the specific intent to commit the tort alleged to have been committed.

`(2) MOTION TO DISMISS- In any action brought under this section, the court shall, on the motion of any defendant, dismiss the complaint if the requirements of subparagraphs (A) and (B) of paragraph (1) are not met.

`(3) STAY OF DISCOVERY- In any action brought under this section, all discovery related to the merits of the claim and other proceedings shall be stayed during the pendency of any motion to dismiss, unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party.

`(4) PLAINTIFF IDENTITY-

`(A) REQUIREMENT- Subject to subparagraph (B), in any action brought under this section, the first and last names of all plaintiffs shall be disclosed in the complaint filed with the court.

`(B) EXCEPTION- A court may permit an anonymous filing of a complaint if a plaintiff's life or safety would be endangered by publicly disclosing the plaintiff's identity.

`(g) Fees- Contingency fee arrangements are prohibited in any action brought under the jurisdiction provided in this section.

`(h) Statute of Limitations- No action shall be maintained under this section unless it is commenced not later than 10 years from the date the injury occurred.

`(i) Application of Other Laws- Nothing in this section may be construed to waive or modify the application of any provision of the Class Action Fairness Act of 2005 (Public Law 109-2; 119 Stat. 4) and any amendment made by that Act, or of title 28, United States Code, to any class action law suit brought under this section.'.

END