ATS Lawsuit Against Haitian Colonel Goes Forward

Last week the 11th Circuit issued a decision in Jean v. Dorelien, available here, authorizing the plaintiffs ATS and TVPA lawsuit against the Haitian Colonel Carl Dorélien to go forward. In 1993, Dorélien allegedly subjected the plaintiffs relative, Michel Pierre, to torture, arbitrary detention, and cruel, inhuman and degrading treatment. The 11th Circuit reversed the dismissal of the lawsuit by the district court.

The case is important for two reasons. First, it reaffirmed the equitable tolling of the statute of limitations in cases involving grave human rights abuses. “Congress acknowledged that plaintiffs face unique impediments such as reprisals from death squads and immunity of high-ranking government officials in bringing human rights litigation. Litigation will often not be possible until there has been a regime change in the plaintiff’s country of origin, after which the plaintiff can investigate and compile evidence without fear of reprisals against him, his family and witnesses… The pattern and practice of torture, mass murder, intimidation and reprisals against perceived opponents of the government during the military regime in Haiti from 1991 to 1994 as alleged in [the] complaint clearly qualify as extraordinary circumstances….”

Second, it ruled that the plaintiffs were not required to exhaust available remedies in Haiti. It declined to apply the exhaustion of remedies requirement for ATS claims. As for their TVPA claims, the court found that defendants had not satisfied their burden of showing that plaintiffs had not exhausted available remedies under the TVPA. The facts are complicated because in November 2000 a Haitian tribunal found Dorélien responsible for the massacre the led to Pierre’s death, but that since that time Dorélien has been freed from prison and returned to power. As such, this Haitian judgment is currently ineffective and unenforceable in Haiti.

In a bizarre twist in the story, this particular defendant is anything but judgment proof. While living in the United States in 1997 Dorélien won over $3.2 million in the Florida lottery. Part of this ATS litigation involves attempts by the plaintiffs to prevent Dorélien from shielding these assets from future attachment. A Florida state court has blocked the transfer of over $1 million of Dorélien’s assets. Dorélien attempted to assign to a third party, LSC, his right to 13 additional payments of $159,000 in exchange for one-time payment of $1.3 million. Part of the plaintiffs’ claim is that that transfer was fraudulent and a violation of state laws on the fradulent transfer of assets.

What is not clear is why the plaintiffs are still pursuing their ATS and TVPA claim given that, according to this report, the Haitian judgment has been enforced in the United States as a foreign money judgment and the plaintiffs are seeking to garnish Dorélien’s assets pursuant to that judgment.