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Case 3:04-cv-01146-RNC Document 123 Filed 09/20/13 Page 1 of 11



CHEN GANG, et al.,





CASE NO. 3:04CV1146 (RNC)


Plaintiffs, on behalf of themselves and others similarly
situated, bring this action pursuant to the Alien Tort Statute
("ATS"), 28 U.S.C. § 1350, and the Torture Victims Protection Act
("TVPA"), 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350
note), alleging that the named defendant Zhao Zhizhen has
committed torts in violation of international and domestic law.
The defendant is alleged to be liable under theories of aiding
and abetting, command responsibility, and conspiracy for torture,
arbitrary arrest and detention, crimes against humanity and
violation of the rights to life, liberty, security of persons and
peaceful assembly and association. Plaintiffs also bring state
law claims of negligent and intentional infliction of emotional
distress. The defendant has moved to dismiss the case under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Because
subject matter jurisdiction is lacking under the ATS, the motion
to dismiss (ECF No. 91) is granted.


Case 3:04-cv-01146-RNC Document 123 Filed 09/20/13 Page 2 of 11

I. Background

Plaintiffs' second amended complaint ("SAC") alleges the

following. Plaintiffs are all residents of the Peoples Republic
of China, refugees from that country, or aliens who visited that
country. SAC (ECF No. 85) ¶¶ 1, 15. In China, primarily in the
city of Wuhan, plaintiffs were subjected to persecution and human
rights abuses due to their adherence to Falun Gong, a spiritual
practice based on the teachings of Li Hongzhi. Id. ¶¶ 2, 5. The
defendant, a Chinese citizen, "exercised authority over media and
related brainwashing and propaganda activities of the People's
Republic of China," id. ¶ 16, as part of a "nationwide . . .
crackdown against Falun Gong practitioners." Id. ¶ 5.

The defendant, in his capacity as the former chief of the

state-owned Wuhan Radio and TV Broadcasting Bureau ("WRTB"), and
as the executive director of Wuhan Television Station ("WTV"),
"produced, scripted or aired anti-Falun Gong television shows and
news reports inciting, encouraging, and supporting acts of
torture and other major human rights abuses against the
Plaintiffs." Id. ¶ 18. The defendant also founded and served as
an executive of the China Anti-Cult Association ("CACA"), a
private non-profit organization dedicated to the development and
dissemination of training material describing how to "transform"
Falun Gong practitioners through torture. CACA operated a
website that served as a "semiofficial database source, reference


Case 3:04-cv-01146-RNC Document 123 Filed 09/20/13 Page 3 of 11

and medium for the displays of all anti-Falun Gong material . . .
viewed . . . not only in the cities of Beijing and Wuhan, but
also in China at large." Id. ¶ 19.

The SAC adds the following allegations. Through the

defendant's media campaign against Falun Gong, "[a]dherents of
the religion were portrayed as a serious social and political
threat to Chinese society, as an inhuman pestilence infesting
China, and as . . . 'demonic' elements which had to be eliminated
from Chinese society." Id. ¶ 26. Much of the propaganda the
defendant employed "relied upon Cultural Revolution-style
ideological terminology with specialized meanings in modern
China." Id. For example, the defendant called for "douzheng"
against Falun Gong and employed other terms that, "[t]o any
Chinese citizen alive today . . . are unmistakably redolent of
the greatest excesses of ideological hatred and persecution in
modern Chinese history." Id. ¶ 27. As chief editor of a daily
WTV program "Light of Science", the defendant also created "Li
Hongzhi-The Man and His Deed", a documentary that provided a
template for Falun Gong persecution. Id. ¶ 25.


Over the course of the nationwide douzheng incited by the
defendant, plaintiffs and other Falun Gong practitioners were
detained either in transformation facilities or in "reeducation-


Plaintiffs translate douzheng to mean "persecutory campaign,"
which specifically includes the mental transformation of targeted
groups through torture.


Case 3:04-cv-01146-RNC Document 123 Filed 09/20/13 Page 4 of 11

through-labor" camps in China for extended periods of time and
made to watch anti-Falun Gong propaganda films, such as "Li
Hongzhi-The Man and His Deed". See id. ¶ 98. They were also
physically tortured by Chinese security forces: shocked with
electric batons, handcuffed to beds while their bodies were
stretched in opposite directions and hung from ceilings with
handcuffs. See id. ¶ 24. The defendant "personally, and in
collaboration with others, mobilized, instigated, ordered, [and]
aided and abetted" these abuses. Id. ¶ 3.
II. Procedural History

Plaintiffs brought this case alleging that subject matter
jurisdiction exists under the ATS, a "strictly jurisdictional"
statute that "allows federal courts to recognize certain causes
of action based on sufficiently definite norms of international
law." Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659, 1664
(2013). The defendant was served with the complaint while "in
this country . . . as a temporary visitor." SAC ¶ 3. Following
a motion to dismiss, plaintiffs filed the SAC. The defendant
then filed the present motion to dismiss the SAC, primarily on
the ground that plaintiffs have failed to state a cognizable
violation of international law sufficient to establish subject
matter jurisdiction under the ATS. While this motion was
pending, the Supreme Court ruled in Kiobel that the ATS does not
confer subject matter jurisdiction over international law


Case 3:04-cv-01146-RNC Document 123 Filed 09/20/13 Page 5 of 11

violations occurring solely within the territory of a foreign
sovereign. 133 S. Ct. at 1669. In light of the ruling in
Kiobel, this Court requested supplemental briefing from the
parties on the following questions: (1) whether the plaintiffs'
ATS claims survive Kiobel; and (2) if the ATS claims fail,
whether the remaining claims in this action must also be
dismissed. These matters have been briefed and the motion is
ripe for decision.
III. Discussion

After careful review of the SAC and the parties'

submissions, it is apparent that the Court lacks jurisdiction
over the plaintiffs' ATS claims. In Kiobel, the Supreme Court
relied on "a canon of statutory interpretation known as the
presumption against extraterritorial application" and held that
this presumption applies to all claims under the ATS. Id. at
1664. Even though the respondent corporations in Kiobel had
American affiliates and allegedly engaged in heinous violations
of international law against the Nigerian petitioners, including
extrajudicial killing, torture and crimes against humanity, the
Supreme Court held that jurisdiction was lacking under the ATS
because "all the relevant conduct took place outside the United
States." Id. at 1669. The Court noted that "even where claims
touch and concern the territory of the United States, they must
do so with sufficient force to displace the presumption against


Case 3:04-cv-01146-RNC Document 123 Filed 09/20/13 Page 6 of 11

extraterritorial application" in order to confer jurisdiction.

The plaintiffs have seized on the Court's "touch and

concern" language, arguing that their claims are distinguishable
because they impact the United States to a greater extent than
the claims in Kiobel, "a paradigmatic 'foreign-cubed' case —
foreign defendant, foreign plaintiff, and exclusively foreign
conduct — lacking any connection to the United States beyond
'mere corporate presence.'" Pls.' Supp. Br. (ECF No. 115) at 2.
Plaintiffs argue that this case sufficiently touches and concerns
the United States because (1) the defendant "specifically
directed" his propaganda campaign toward United States citizens
and residents -- through CACA's website, for example; (2) a
refusal to provide redress for serious violations of
international law would deprive the plaintiffs of the only relief
available to them; and (3) there is no risk of international
discord in this case because the U.S. Department of State has not
indicated that the case should be dismissed. See id. at 7.

Despite plaintiffs' attempts to distinguish their claims

from those in Kiobel, this case is also a paradigmatic "foreign-
cubed" case. The plaintiffs are all "past or present residents
of the People's Republic of China, or visitors to that country",
SAC ¶ 1, the defendant is a Chinese citizen, id. ¶ 10, and the
alleged violations of international law that the defendant


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allegedly aided and abetted -- torture, arbitrary arrest and
detention, crimes against humanity and violation of the rights to
life, liberty, security of persons and peaceful assembly and
association –- all took place entirely abroad, in "Mainland
China." See id. ¶ 2. Under Kiobel, the ATS does not confer
jurisdiction over such exclusively extraterritorial claims. See
Balintulo v. Daimler AG, 09-2778-CV L, 2013 WL 4437057, at *7 (2d
Cir. Aug. 21, 2013) ("[C]laims under the ATS cannot be brought
for violations of the law of nations occurring within the
territory of a sovereign other than the United States."); Hua
Chen v. Honghui Shi, 09 CIV. 8920 RJS, 2013 WL 3963735 (S.D.N.Y.
Aug. 1, 2013) (finding no jurisdiction under the ATS over claims
of "torture, genocide, violation of the right to life, arbitrary
arrest and imprisonment, and violation of freedom of thought,
conscience, and religion" brought by "members of the Falun Gong
movement who currently reside in the United States" because "all
of the abuses took place in China"); Ahmed-Al-Khalifa v.
Minister of Interior, Fed. Republic of Nigeria, 5:13-CV-172-RS-
GRJ, 2013 WL 3991961, at *2 (N.D. Fla. Aug. 2, 2013) ("In light
of Kiobel, the ATS cannot confer subject-matter jurisdiction onto
Plaintiff's claims because the violations at issue occurred
outside the United States."); Ahmed-Al-Khalifa v. Trayers, 313-
CV-00869CSH, 2013 WL 3326212, at *2 (D. Conn. July 1, 2013) ("The
Alien Tort Statute cannot confer jurisdiction in this Court over


Case 3:04-cv-01146-RNC Document 123 Filed 09/20/13 Page 8 of 11

conduct committed outside of the United States."); Al Shimari v.
CACI Int'l, Inc., 1:08-CV-827 GBL/JFA, 2013 WL 3229720, at *10
(E.D. Va. June 25, 2013) ("Plaintiffs' ATS claims are barred
because the ATS does not provide jurisdiction over their claims,
which involve tortious conduct occurring exclusively outside the
territory of the United States."); Mohammadi v. Islamic Republic
of Iran, CIV.A. 09-1289 BAH, 2013 WL 2370594, at *15 (D.D.C. May
31, 2013) ("[T]o the extent that the plaintiffs seek to pursue
claims under the ATS . . . for conduct that occurred entirely
within the sovereign territory of Iran, those claims are also
barred under the holding of Kiobel."). Compare with Sexual
Minorities Uganda v. Lively, 12-CV-30051-MAP, 2013 WL 4130756, at
*2 (D. Mass. Aug. 14, 2013) (finding that the Kiobel restrictions
on extraterritorial application of the ATS did not apply where
the defendant was a citizen of the United States and where the
alleged conduct occurred in substantial part within the United

Even assuming the presumption against extraterritorial
application could be displaced by "specifically directing"
tortious conduct toward the United States, as plaintiffs argue,
the SAC does not support displacement under such a theory. The
tortious conduct relevant to the plaintiffs' ATS claims occurred
in China and was directed toward people there. See SAC ¶ 5 ("The
acts alleged herein against Plaintiffs were carried out in the


Case 3:04-cv-01146-RNC Document 123 Filed 09/20/13 Page 9 of 11

context of the nationwide douzheng crackdown against Falun Gong
practitioners."); id. ¶ 26 ("Defendant . . . implemented a
campaign of propaganda vigorously supporting and elaborating upon
this call to persecute Falun Gong. Adherents of the religion
were portrayed as a serious social and political threat . . .
which had to be eliminated from Chinese society. Much of this
invective, moreover, relied upon Cultural Revolution-style
ideological terminology with specialized meanings in modern
China."). Any alleged conduct arguably directed at the United
States, such as website opinion pieces attacking U.S. legislators
for nominating Li Hongzhi for a Nobel Prize, see id. ¶ 63, does
not touch and concern the United States with sufficient force to
displace the presumption against extraterritorial application
under Kiobel. Compare with Mwani v. Bin Laden, CIV.A. 99-125
JMF, 2013 WL 2325166, at *4 (D.D.C. May 29, 2013) ("Surely, if
any circumstances were to fit the Court's framework of 'touching
and concerning the United States with sufficient force,' it would
be a terrorist attack that 1) was plotted in part within the
United States, and 2) was directed at a United States Embassy and
its employees."). "[T]he presumption against extraterritorial
application would be a craven watchdog indeed if it retreated to
its kennel whenever some domestic activity is involved in the


Case 3:04-cv-01146-RNC Document 123 Filed 09/20/13 Page 10 of 11

case." Kiobel, 133 S. Ct. at 1669 (citing Morrison v. National
Austrlia Bank Ltd., 130 S. Ct. 2869, 2884 (2010)).


Because the alleged abuses occurred in China and do not
sufficiently "touch and concern" the United States, the Court
does not have subject matter jurisdiction over the plaintiffs'
ATS claims. Plaintiffs' argument regarding the necessity of
providing redress for international law violations does not
provide a basis for jurisdiction. See Kiobel, 133 S. Ct. at 1668
("[T]here is no indication that the ATS was passed to make the
United States a uniquely hospitable forum for the enforcement of
international norms."). Nor does plaintiffs' prediction
concerning the risk of international discord associated with this

Without subject matter jurisdiction under the ATS, the Court

also lacks jurisdiction over plaintiffs' TVPA claim. See Kadic
v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995) ("Though the Torture
Victim Act creates a cause of action for official torture, this
statute, unlike the Alien Tort Act, is not itself a
jurisdictional statute."). In the absence of any federal claims,
the Court declines to exercise supplemental jurisdiction over
plaintiffs' state law claims for intentional and negligent


In their supplemental brief responding to Kiobel, the

plaintiffs attempt to submit new claims and factual allegations.
As this is contrary to the Court's directive, the new claims and
allegations will not be considered here.


Case 3:04-cv-01146-RNC Document 123 Filed 09/20/13 Page 11 of 11

infliction of emotional distress. See New York Mercantile Exch.,
Inc. v. IntercontinentalExchange, Inc., 497 F.3d 109, 119 (2d
Cir. 2007) ("In general, where the federal claims are dismissed
before trial, the state claims should be dismissed as well."
(citing Marcus v. AT&T Co., 138 F.3d 46, 57 (2d Cir.1998)).
IV. Conclusion

Accordingly, the defendant's motion to dismiss (ECF No. 91)

is granted.

So ordered this 20th day of September 2013.

Robert N. Chatigny
United States District Judge