Re-argument of Important Human Rights Case in U.S. Supreme Court

On October 1, 2012, the U.S. Supreme Court heard re-arguments in an important human rights case, Kiobel v. Royal Dutch Petroleum Co. (Sup. Ct. No. 10-1491).[1]

This case involves claims by a putative class of Nigerians against Netherlands/United Kingdom corporations (Royal Dutch Petroleum Co. and Shell Transport and Trading Company PLC (Shell)) for allegedly assisting in certain human rights violations in Nigeria in 1993-1995.

The claims in this case were asserted under the Alien Tort Statute (ATS) that provides that U.S. federal district courts have “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[2]

The order for rehearing asked the parties to address the following issue:

  • Whether and under what circumstances the [ATS] . . .  allows courts to recognize a cause of        action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

This issue was addressed in the Petitioners’ Supplemental Opening Brief; the Supplemental Brief for Respondents; the Supplemental Reply Brief for Petitioners; 31 amici curiae briefs supporting the petitioners; 14 amici curiae briefs supporting respondents; and 7 amici curiae briefs supporting neither party.  One of those not supporting either party was the U.S. Government.[3]

During the hour-long hearing the Court heard from lawyers representing the plaintiffs-petitioners, the defendants-respondents and the U.S. Government. They all were actively questioned by eight of the Justices with only Justice Thomas not participating. Those eight Justices all seemed to be searching for a way to limit the reach of the ATS, especially when such cases adversely affected U.S. foreign policy.[4]

I will not attempt to predict how the Court will resolve the case. Instead I will set forth how I think the Court should do so.

First, Corporations are not immune from lawsuits under the ATS.

Second, As the Court held in Sosa v. Alverez-Machain in 2004, the ATS is a jurisdictional statute.[5] The Court’s presumption against extraterritorial application of U.S. statutes (unless Congress specifically states otherwise), applies to statutes that impose substantive U.S. regulatory measures, not to jurisdictional statutes.[6] Therefore, there is no issue of extraterritoriality with respect to the ATS.

Third, there are various existing legal doctrines and jurisprudence that federal courts have used and should use, in appropriate cases, to dismiss ATS cases at the outset upon a motion by the defendant asserting such affirmative defenses. They include the following:

  • The court lacks personal jurisdiction over the defendant because it does not have sufficient contacts with the forum to make litigation consistent with U.S. notions of fair play and substantial justice as guaranteed by the Fifth and Fourteenth Amendments’ due process clauses.[7]
  • The case is not brought within 10 years after the acts in question under the statute of limitations borrowed from the Torture Victims Protection Act unless under established principles of equity the statute of limitations should be tolled or stayed.[8]
  • The plaintiff has failed to exhaust remedies in the country where the acts occurred unless those remedies are unavailable or futile.[9]
  • A foreign court is the more appropriate and convenient forum than an U.S. courts under the established principles of forum non conveniens.[10]
  • An individual defendant is entitled to official immunity according to the U.S. Department of State.[11]
  • A non-individual defendant is entitled to immunity under the Foreign Sovereign Immunities Act.[12]
  • The “act of state” doctrine protects the conduct in question.[13]
  • The case presents a “political question” that is inappropriate for judicial resolution.[14]
  • The case should be rejected because of concerns about its impact on U.S. foreign relations or because of “international comity.”[15]
  • The case presents an issue of U.S. state secrets that prevent adjudication of the case.[16]

Fourth, the affirmative defenses just mentioned were not raised by the defendants-respondents in                     their appeal to the U.S. Court of Appeals for the Second Circuit and, therefore, are not before            the Supreme Court for decision.

Fifth, the Second Circuit is reversed, and the case is remanded to the District Court for further        proceedings in accordance with this opinion.

Within the next four months the Court should issue its opinion(s) in this case.

[1]  Prior posts reviewed the procedural background of this case, the Second Circuit decision rejecting such liability, the initial Supreme Court argument in this case regarding whether corporations could be held liable under the ATS, and the Supreme Court’s order for rehearing in this case.

[2] Earlier posts have reviewed the history of the ATS for the periods 1789-1979, 1980 (Filartigacase), 1980-2004, 2004 (Sosa case) and 2004-present.

[3] All of the briefs in Kiobel are available on the website of the Center for Justice and Accountability, a human rights organization, along with its summary of 18 of the 52 amici curiae briefs.

[4] The transcript of that hearing is available online. Reports about the hearing are available in the New York Times, the Washington Post, the Wall Street Journal and the widely followed U.S. Supreme Court blog. In an editorial the New York Times supported sustaining the ATS in this case; the Wall Street Journal did not.

[5]  Sosa v. Alvarez-Machain, 542 U.S.692, 713 (2004).

[6] Morrison v. Australia Nat’l Bank, 130 S. Ct. 2869, 2877 (2010).

[7]  In one of the most recent Supreme Court cases on personal jurisdiction in another context, the Court unanimously determined, in an opinion by Justice Ginsburg, that the South Carolina courts did not have personal jurisdiction over  three corporations that were organized and operating in France, Luxembourg and Turkey, but were not registered to do business in South Carolina, had no place of business, employees or bank accounts in the state, did not design, manufacture or advertise its products in the state and did not solicit business in the state or sell or ship products to customers in the state. (Goodyear Dunlop Tires Operations, S.A. v. Brown, No. 10-76 (Sup. Ct. June 27, 2011). This defense has ended ATS cases for some foreign corporate defendants. (E.g., Doe v. Unocal Corp., 248 F.3d 915, 930-31 (9th Cir. 2001) (French corporation).) However, Shell and the other defendants in the Kiobel case did not raise this defense and thereby waived it under Fed. R. Civ. Pro. 12 (h)(1); another defendant (a Nigerian subsidiary) was dismissed from this case on this ground.

[8] E.g., Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 462 (D.N.J. 1999); Doe v. Saravia, 348 F. Supp. 2d 1112, 1146-48 (E.D.. Cal. 2005)(10-year period tolled or stayed because plaintiff could not have obtained justice due to legitimate fear of being killed for making a claim).

[9] This defense was suggested by the Supreme Court in Sosa, 542 U.S. at 733 n.21, and the lower courts are split as to whether it is appropriate in ATS cases. (E.g., Lizarbe v. Rondon, 642 F. Supp. 2d 473 (D. Md. 2009)(civil remedy in Peru inadequate because it is contingent on conclusion of criminal charges that can take years and because civil damages are ineffective).)

[10] Here are two examples of dismissal of ATS cases on the forum non conveniens ground. (Aldana v. Del Monte Fresh Produce N.A., 578 F.3d 1283 (11th Cir. 2009), cert.denied, 549 U.S. 1032 (2010) (litigation in Guatemala, but with the proviso that the motion would be reconsidered if plaintiffs had to return to Guatemala where they feared for their safety); Turedi v. Coca-Cola Co., 343 Fed. Appx. 623 (2d Cir. 2009) (litigation in Turkey).) But such a dismissal was rejected in Licea v. Curacao Drydock Co., 537 F. Supp. 2d 1270, 1274 (S.D. Fla. 2008) (Cuban plaintiffs would be in danger if forced to litigate in Curaco where they had been subjected to slavery-like conditions). In Kiobel,  Shell did not assert the forum non conveniens defense and, therefore, waived it. Shell did do so in a parallel case, but the court rejected the defense. (Wiwa v. Royal Dutch Pet. Co., 226 F.3d 88, 108 (2d Cir. 2000), cert. denied, 532 U.S. 941 (2001).)

[11]  For example, the issue of official immunity for former government officials of Somalia and Mexico has been examined in prior posts.

[12] A prior post looked at some of the basic provisions of the Foreign Sovereign Immunities Act while another post discussed the Supreme Court case that decided that his statute did not protect former foreign government officials.

[13] This defense was suggested by the Supreme Court in Sosa, 542 U.S. at 733 n.21, and it has been used in ATS cases. E.g., Doe v. Israel, 400 F. Supp. 2d 86, 114 (D.D.C. 2005) (acts of Israeli government).

[14] This defense was suggested by the Supreme Court in Sosa, 542 U.S. at 733 n.21, and it has been used in ATS cases. E.g., Corrie v. Caterpiller, 503 f. 3d 974 (9th Cir. 2007) (dismissal of ATS claim for selling bulldozers to Israeli Defense Force);  Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005), cert. denied, 547 U.S. 1069 (2006) (dismissal on political question ground of ATS case against former U.S. National Security Advisor over killing of Chilean general in 1970 coup d’etat).

[15] E.g., Ungaro-Benages v. Dresdner Bank AG, 379 F. 3d 1227, 1237-39 (11th Cir. 2004).

[16] Foreigners sued an U.S. corporation under the ATS and TVPA for allegedly aiding and abetting the CIA’s extraordinary rendition of five foreign nationals to other countries for torture and interrogation when the corporation provided flight training and logistical and support services to the aircraft and crew. Before the defendant answered the complaint, the U.S. Government intervened and moved to dismiss the complaint under the state secrets doctrine. The district court granted the motion, which the Ninth Circuit, en banc, ultimately affirmed, 6 to 5. The court held that the state secret privilege established by United States v. Reynolds, 348 U.S. 1 (1953), required dismissal because “there is no feasible way to litigate [the defendant’s] alleged liability without creating un unjustifiable risk of divulging state secrets.” (Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc).)

U.S. District Court Decides that Former Somali Government Official Is Not Entitled to Common Law Immunity and Is Liable for $21 Million of Compensatory and Punitive Damages

Mohamed Ali Samantar

As discussed in a prior post, the U.S. Supreme Court in 2010 decided that former Somali General Mohamed Ali Samantar was not covered by the immunity provisions of the Foreign Sovereign Immunities Act (FSIA) and remanded the case to the U.S. District Court for the Eastern District of Virginia to determine if he was entitled to common law immunity.

This was in a case brought by four Somalis against Samantar for money damages under two U.S. statutes–the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA). The complaint alleged that Samantar aided and abetted, and had command responsibility for, extrajudicial killing; arbitrary detention; torture; cruel, inhuman or degrading treatment; crimes against humanity; and war crimes in Somalia from 1969 through 1991.[1]

U.S. District Court, Alexandria, VA

After remand, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia in Alexandria [2] first decided that Samantar was not entitled to any common law immunity. She then decided that $21 million of compensatory and punitive damages were appropriate. Those decisions will now be reviewed.

No Common Law Immunity

On February 14, 2011, the U.S. Government provided the court with a letter from Harold Koh, the State Department’s Legal Adviser, stating that the Department had determined that Samantar did not enjoy immunity from this lawsuit. The key reason for this decision was the lack of any recognized Somali government that could assert or waive any immunity he might enjoy.

The formal U.S. filing with the court provided the relevant common law of immunity for former foreign government officials or what the filing called “Foreign Official Immunity Doctrine.” Here are the key points of that common law or doctrine without the filing’s citations of legal authority:

  • Under the law and practice of nations, a foreign sovereign is generally immune from lawsuits in the territory of another sovereign.
  • Until the 1976 enactment of the Foreign Sovereign Immunities Act (FSIA), U.S. federal courts routinely “‘surrendered’ jurisdiction over suits against foreign sovereigns ‘on recognition, allowance and certification of the asserted immunity by the political branch of the government charged with the conduct of foreign affairs when its certificate to that effect was presented to the court.'”
  • “This deferential judicial posture was not merely discretionary [for the courts], but was rooted in the separation of powers.” Under the Constitution, the executive branch of the federal government had the responsibility for foreign affairs.
  • “The immunity of a foreign state was, early on, generally understood to extend not only to the state, heads of state, and diplomatic officials, but also to other officials in an official capacity.”
  • Any immunity protecting foreign officials for their official acts ultimately belongs to the sovereign, not the official. Thus, the foreign state must claim or waive any such immunity for the official. Where there is no recognized government, there is no one that can assert such a claim or make such a waiver.
  • When a former foreign official becomes a resident of the U.S., as Samantar had since 1997, the U.S. has a right to exercise jurisdiction over that individual.
  • The U.S. Supreme Court in this case agreed with the government’s position that FSIA did not apply to the issue of immunity for current or former foreign government officials. Instead, that issue was left to the State Department, whose decisions should be accepted by the courts.
Judge Leonie Brinkema

On February 15, 2011 (the day after the above government filing), Judge Brinkema issued a one-page order. It stated, “The government has determined that the defendant does not have foreign official immunity. Accordingly, defendant’s common law sovereign immunity defense is no longer before the Court . . . .” The court then directed the parties to agree upon a date to argue the remaining issues in the defendant’s dismissal motion.

Samantar’s motions for reconsideration of this order and for a stay pending appeal were denied. Nevertheless, he appealed to the Fourth Circuit (No. 11-1479), and on May 16, 2012, the appeal was argued to the appellate court, which as of September 13th had not yet issued its decision. In my opinion, he has virtually no chance of success on this appeal.

The Court’s Determination of Damages

The district court on August 28, 2012, determined that each of the seven plaintiffs was entitled to $1 million of compensatory damages plus $2 million of punitive damages for a total judgment of $21 million. How the court came to this determination is a fascinating story.

After the court’s rejection of his immunity defense, Samantar moved for summary judgment on the grounds that the latest complaint failed to state a claim for his secondary liability, that the TVPA did not retroactively apply to acts before 1991 and that the claims were untimely and nonjusticiable. That motion was denied on December 22, 2011.

Two days before the scheduled start of a jury trial on February 21, 2012, Samantar advised the court that he had filed for bankruptcy in the Eastern District of Virginia (1-12-bk-11085). The automatic stay of this case by the bankruptcy filing was soon lifted, and the start of the jury trial in the main case was rescheduled for February 23rd.

On February 23rd Samantar’s attorney informed the court that Samantar intended to take a default rather than contest liability and damages. The court then asked the defendant questions about this decision and was satisfied that he knowingly and voluntarily had conceded liability.

On August 28th the court filed its Memorandum Opinion that made extensive findings and legal conclusions regarding Samantar’s liability under theories of aiding and abetting and command responsibility.

After noting that compensatory damages were recoverable for physical and psychological injuries, the court found that the plaintiffs had provided the following “credible and compelling testimony of cognizable injuries stemming from the alleged violations:”

  • Plaintiff Yousuf had endured torture and seven years of imprisonment, largely in solitary confinement that had affected his memory and emotional health. He suffers from depression and nightmares and still relives the five-step length of his cell.
  • Plaintiff Baralle was tortured and barely escaped execution. He continues to experience pain and occasional shaking on the left side of his body as well as flashbacks. His two brothers were executed, and Baralle and his family have taken responsibility for raising his brothers’ children.
  • Plaintiff Gulaid went before a firing squad, but escaped death. He continues to suffer nightmares, flashbacks and anxiety, memory loss, high-blood pressure and poor vision.
  • Plaintiff Aziz and his sister testified about the extrajudicial executions of their father, who was the family’s breadwinner, and their brother.

The court then found that each of the three plaintiffs suing in their own capacity and each of the four decedents’ estates would be awarded compensatory damages of $1 million.

After finding that there was evidence of Samantar’s conduct having been intentional, malicious, wanton and reckless and that ATC and TVPA cases commonly awarding punitive damages, the court determined that $2 million of such damages for each of the seven claimants was appropriate. Such amount, said the court, reflected the “seriousness of [his] . . . uncontested conduct;” [eased] . . . any burden on plaintiffs in having to bring this case;” and recognized the award of substantial compensatory damages, the lack of any financial gain by Samantar and his prospective bankruptcy.

The execution of the judgment was stayed pending resolution of the bankruptcy case.


The ability of the plaintiffs to collect any significant amount of their $21million judgment is highly questionable. On April 3, 2012, the Chapter 7 Bankruptcy Trustee reported Samantar had no assets available for distribution to creditors, but for unknown reasons that report was withdrawn on June 11th.

On August 23rd the plaintiffs commenced an adversary proceeding against Samantar in the bankruptcy court to have his judgment debt to them determined to be a non-dischargeable debt for willful and malicious injury under Bankruptcy Code § 727 (1:12-ap-01356). If the bankruptcy court agrees, this merely keeps open the possibility of future collections on the judgment if Samantar obtains any future assets or income.Judge L:

[1]  This case was supported by the Center for Justice and Accountability, an human rights NGO based in San Francisco, California.

[2]  Judge Brinkema presided over the criminal trial of Zacarias Moussaoui, who was convicted for conspiring to kill U.S. citizens in the 9/11 attacks. I appeared before her in another case, one involving Scientology.

U.S. Supreme Court Decides that Foreign Sovereign Immunities Act Does Not Apply to Former Foreign Government Official

As discussed in a prior post, the U.S. Foreign Sovereign Immunities Act (FSIA) codifies the conditions for a U.S. court’s deciding that a “foreign state” as defined in that statute shall be granted immunity from a lawsuit in the U.S. courts.

Somali plaintiffs

The issue of whether the FSIA applied to individuals who had been officials of a foreign state was raised in a case brought by four Somalis against former Somali General Mohamed Ali Samantar for money damages under two U.S. statutes–the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA).

Mohamed Ali Samantar

The complaint alleged that Samantar aided and abetted, and had command responsibility for, extrajudicial killing; arbitrary detention; torture; cruel, inhuman or degrading treatment; crimes against humanity; and war crimes in Somalia from 1969 through 1991.[1]

U.S. District Judge Leonie Brinkema of the Eastern District of Virginia[2] in August 2007 dismissed the case on the ground that Samantar was an “agency or instrumentality of” the state of Somalia and, therefore, entitled to immunity under FSIA (2007 U.S. Dist. LEXIS 56227). This judgment was reversed in January 2009 by the U.S. Court of Appeals for the Fourth Circuit (552 F.3d 371) on the ground that the FSIA did not cover individuals, after which the U.S. Supreme Court agreed to review the case.

In Yousuf v. Samantar, 560 U.S.__, 130 S. Ct. 2278, 176 L.Ed.2d 1047 (2010), the Supreme Court decided, 9 to 0, that the FSIA did not apply to government officials and that the immunity of such individuals was a matter of federal common law.[3]

In an opinion for the Supreme Court by Justice Stevens that was joined by Chief Justice Roberts and five Associate Justices (Kennedy, Ginsburg, Breyer, Alito and Sotomayor), Justice Stevens said there was nothing in the FSIA suggesting that “foreign state” should be read to include an official acting on behalf of that state. Indeed, according to the opinion, FSIA specifies that a foreign state “includes a political subdivision . . . or an agency or instrumentality” of that state, §1603(a), and specifically delimits what counts as an “agency or instrumentality,” §1603(b). Moreover, the statutory “agency or instrumentality” definition militates against its covering individuals.

The Court’s opinion also stated that FSIA’s history and purposes do not support an argument that the Act governs individual immunity claims. There is little reason to presume, said the Court, that when Congress codified state immunity, it intended to codify, sub silentio, official immunity. [4]

The Supreme Court remanded the case to the district court for its determination in the first instance as to whether Samantar was entitled to any common law immunity.

Upon remand, as will be discussed in a subsequent post, the district court decided that Samantar was not entitled to common law immunity and awarded the plaintiffs compensatory and punitive damages of $21 million.

[1]  This case was supported by the Center for Justice and Accountability, a human rights NGO based in San Francisco, California.

[2]  Judge Brinkema presided over the criminal trial of Zacarias Moussaoui, who was convicted for conspiring to kill U.S. citizens in the 9/11 attacks. I appeared before her in another case, one involving Scientology.

[3] According to John B. Bellinger, III, a former Legal Adviser to the U.S. State Department, this Supreme Court decision vindicated the position of the Department’s Office of the Legal Adviser, which had long argued that the immunities of current and former foreign government officials in U.S. courts are defined by federal common law and customary international law as articulated by the Executive Branch, rather than by FSIA. But, says Bellinger, the decision will place a burden on that Office, which will now be asked to submit its views on the potential immunity of every foreign government official sued in the U.S.

[4]  Justices Alito, Thomas and Scalia each filed concurring opinions to say that the Court’s references to FSIA’s   legislative history were unnecessary.

The U.S. Foreign Sovereign Immunities Act

In order to give context to subsequent posts about U.S. federal court decisions regarding immunity for former foreign government officials, this post will sketch some of the provisions and issues in the U.S. Foreign Sovereign Immunities Act (FSIA) of 1976.[1]

Congress in FSIA found that under “international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities.” Congress also found in FSIA that “the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts.” (28 U.S.C. § 1602.)

As a result, FSIA grants to U.S. district courts “original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title [Title 28] as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.” (28 U.S.C. § 1330(a).)[2]

Under the statute a foreign state is presumptively immune unless one of the statutory exceptions applies. (28 U.S.C. § 1604.)

Some of the important exceptions to sovereign immunity are waiver (28 U.S.C. § 1605(a)(1)), commercial activity (28 U.S.C. § 1605(a)(2)), noncommercial tort (28 U.S.C. § 1605(a)(5)) and state-sponsored terrorism (28 U.S.C. § 1605(a)(7).[3]

For the purposes of this statute, a “foreign state” is defined to include “a political subdivision of a foreign state or an agency or instrumentality of a foreign state.” (28 U.S.C. § 1603(a).) The term “agency or instrumentality of a foreign state” in turn is defined in section 1603(b) as “any entity–

  • (1) which is a separate legal person, corporate or otherwise; and
  • (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
  • (3) which is neither a citizen of a State of the United States as defined in section 1332   (c )and (d) of this title [Title 28], nor created under the laws of any third country.”

[1]  See generally David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, at 1001-14 (4th ed. 2009); Wikipedia, Foreign Sovereign Immunities Act.

[2] Prior to FSIA, questions of such immunity were determined primarily by the Executive Branch, which were generally followed without question by the courts.

[3] An earlier post looked at a U.S. Court of Appeals for the Second Circuit case regarding the exception for noncommercial tort.


U.S. courts