Kiobel – dwkcommentaries

U.S. Supreme Court Severely Limits Application of the Alien Tort Statute

On April 17, 2013, the U.S. Supreme Court issued a decision in Kiobel v. Royal Dutch Petroleum Co. that severely limited the application of the Alien Tort Statute (ATS),[1] which provides that the U.S. district courts “shall have original 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 [U.S.].”[2]

The Court unanimously decided that the ATS did not cover a lawsuit by Nigerian plaintiffs for money damages against corporations incorporated in the Netherlands, the U.K. and Nigeria for their alleged aiding and abetting the Nigerian military and police’s beating, raping, killing and arresting of Nigerians and destroying and looting their property, all in Nigeria.[3]

The Court, however, differed, 5 to 4, on the rationale for this conclusion.

The Majority’s Rationale

The opinion for the Court by Chief Justice John Roberts, expressing the majority’s rationale, held that the Court’s presumption against extraterritorial application of federal statutes applies to claims under the ATS and that nothing in the ATS rebutted that presumption. Therefore, said the Chief Justice, this “case seeking relief for violations of the law of nations occurring outside the [U.S.] . . . is barred.”[4]

This presumption, according to Roberts, was recognized in these precedents from the Court in 1957, 1991, 2007 and 2010, which were referenced by him as follows:

The 1957 case, Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 (1957), was merely quoted in the 1991 case to say, “For us to run interference in . . . a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.”
The 1991 case, EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991), said this presumption “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” After the above quotation from the Benz case, the Court in the 1991 case continued, ” The presumption against extraterritorial application helps ensure that the Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches.”
The 2007 case, Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007), said the “presumption [assumes] that [U.S.] . . . law governs domestically but does not rule the world.”
The 2010 case, Morrison v. National Australian Bank Ltd., 561 U.S. ___, ___ (2010), said this canon of statutory construction provides that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” This case, noted the Chief Justice, said “the question of extraterritorial application was a ‘merits question,’ not a question of jurisdiction.”

In discussing whether and how this presumption applied to the ATS, the Chief Justice first disposed of the Morrison case’s limitation of the presumption to the merits whereas the ATS was only jurisdictional as established by the Supreme Court in Sosa v. Alverez-Machain, 542 U.S.692, 713 (2004). Said Roberts, “the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.”

Roberts then found nothing in the ATS itself that suggested a congressional intent that it have extraterritorial application. It refers to “violations of the law of nations,” but such violations can occur in the U.S. It says it covers “any” civil action, but the Court in decisions in 1949 and 2005 had established that generic terms like “any” or “every” do not rebut the presumption. It covers actions for “torts,” but that word does not evidence such an intent.

Nor, according to Roberts, did the historical context of the 1789 adoption of the ATS overcome the presumption. At the time, as Sosa noted, two of the three recognized violations of the law of nations at the time–violation of safe conducts and infringement of the rights of ambassadors–had no extraterritorial application.

The other recognized violation in 1789–piracy–was not as easy for the Chief Justice to get around. He said, “Piracy typically occurs on the high seas, beyond the territorial jurisdiction of the [U.S.] . . . or any other country.” Although the Court “has generally treated the high seas the same as foreign soil for purposes of the presumption,” Roberts refused to regard that as evidence of congressional intent for extraterritorial application. Said Roberts, “Applying U.S. law to pirates . . . does not typically impose the sovereign will of the [U.S.] . . . onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction.”

Finally, according to Roberts, “there is no indication that the ATS was passed to make the [U.S.] . . . a uniquely hospitable forum for the enforcement of international norms . . . It is implausible to suppose that the First Congress wanted their fledgling Republic–struggling to receive international recognition–to be the first [custos morum or guardian of manners or morals of the whole world]. Indeed, the parties offer no evidence that any nation, meek or mighty, presumed to do such a thing.”

Applying these principles to the Kiobel case itself, Roberts said “all the relevant conduct took place outside the . . . [U.S.]. And even where the claims touch and concern the territory of the . . . [U.S.], they must do so with sufficient force to displace the presumption against extraterritorial application.” A “mere corporate presence” in the U.S. such as an office of a corporate affiliate of the corporate defendants in this case had would not suffice.

The Minority’s Rationale

The minority’s rationale was set forth in the concurring opinion of Justice Breyer, which was joined by Justices Ginsburg, Sotomayor and Kagan.

Breyer first rejected use of the presumption against extraterritoriality because the ATS’ use of “alien,” “treaties” and “the law of nations” clearly demonstrate that Congress had foreign matters in mind.

Moreover, piracy was clearly contemplated as covered by the statute in 1789 and takes place abroad. The Chief Justice’s treatment of piracy, however, Breyer implied, is erroneous. Says Breyer, “the robbery and murder that make up piracy do not normally take place on the water; they take place on a ship. And a ship is like land, in that it falls within the jurisdiction of the nation whose flag it flies.” Thus, ‘applying U.S. law to pirates’ does typically involve applying our law to acts taking place within the jurisdiction of another sovereign.”

On the other hand, Breyer agreed with Roberts that pirates “were fair game wherever found, by any nation,” but not, as Roberts said, because they did not operate within any jurisdiction, but because pirates were “common enemies of all mankind and all nations have an equal interest in their apprehension and punishment.” Today, according to Breyer, torturers and perpetrators of genocide are today’s pirates.

Breyer then said that international jurisdictional principles justified the conclusion that ATS jurisdiction exists where “(1) the alleged tort occurs on American soil, [or] (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest.” One such national interest, according to Breyer, is “preventing the [U.S.] from become a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”

With respect to Kiobel itself, Breyer noted that the corporate defendants were foreign corporations who were present in the U.S. only through a small office of a corporate affiliate, that the plaintiffs are not U.S. nationals, that the conduct at issue took place abroad and that the alleged illegal corporate conduct was not direct, but accessory. It, therefore, “would be farfetched to believe . . . that this legal action helps to vindicate a distinct American interest.”

Conclusion

The majority’s rationale essentially obliterates the 34 years of ATS jurisprudence carefully developed by the lower federal courts. It should lead to the immediate dismissal of many pending ATS cases.[5]

I disagree with the result in this case and with the majority’s rationale because I believe that the ATS has been an important way of expanding the reach of international human rights norms and because the Congress in these 34 years has not chosen to amend the ATS to negate this jurisprudential development. Indeed, when Congress in 1991 adopted the Torture Victims Protection Act, it recognized and approved this ATS jurisprudence.

Moreover, the Supreme Court’s creation and elaboration of the presumption against extraterritorial application, I believe, is a development of the last 60 years and was not clearly known to the Congress when it initially adopted the ATS in 1789. It, therefore, seems unfair and inappropriate to employ this interpretative presumption to construe the ATS. In more recent years, on the other hand, the Congress should be aware of this presumption in drafting statutes.

I also continue to be baffled by everyone’s failure to include in the analysis of the congressional intent behind the ATS the fact that Congress in 1948 re-enacted the ATS as part of the Judicial Code (title 28 of the U.S. Code). That year–1948– was a very important year in the development of the law of nations regarding human rights. The U.N. Charter–a treaty ratified by the U.S.–was three years old, and one of its purposes was “promoting and encouraging respect for human rights” (Article 1(3)) while its Economic and Social Council was directed to set up a commission “for the promotion of human rights” (Article 68). Such a commission was established, and in 1948 its Universal Declaration of Human Rights and its Convention on the Prevention and Punishment of the Crime of Genocide were approved by the U.N. General Assembly. Such an appreciation should broaden the types of “torts in violation of the law of nations” beyond the three discussed by the Chief Justice.

Justice Breyer’s legitimate concern for the U.S. interest in not being a safe haven for the common enemies of mankind, as discussed in a prior post, has been recognized by the Congress in several statutes–the Intelligence Reform and Terrorism Prevention act of 2004 and the Magnitsky Act of 2012–and by the legal proceedings to remove or deport such common enemies of mankind from the U.S. by the Human Rights Violators and War Crimes Center of the U.S. Immigration and Customs Enforcement agency and by the criminal prosecution of other such individuals for immigration fraud and perjury.

Finally, we must remember that this is a case of statutory interpretation, and Congress could always amend the ATS or adopt a new statute to overrule this decision. In a future post, I will set forth a draft outline of such a new statute even though I am not hopeful that this dysfunctional U.S. Congress will be prepared to take such action in the near future.

[1] The New York Times and the Washington Post obviously covered this decision. The Times editorial board criticized the decision while the Wall Street Journal reached the opposite conclusion.

[2] Many prior posts have discussed the ATS. Some of these focused on the Kiobel case itself.

[3] The Court did not address another issue presented by this case–whether corporations could be held liable under the ATS.

[4] The Chief Justice’s opinion was joined by Justices Scalia, Kennedy, Thomas and Alito. Justice Kennedy also authored a short concurring opinion, which stated, “Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the [Torture Victims Protection Act] . . . nor by the reasoning and holding of today’s case; and in these disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.” Another concurring opinion was submitted by Justice Alito joined by Justice Thomas; it said, “a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality–and will therefore be barred–unless the domestic conduct is sufficient to violate an international law norm that satisfies Sosa‘s requirements of definiteness and acceptance among civilized nations.”

[5] For example, the Supreme Court’s decision should lead to the dismissal of the ATS claims against Ernesto Zedillo, the former President of Mexico, but the claims against him under the Torture Victims Protection Act should survive for the court’s ruling on the immunity issue.

Alien Tort Statute Case Against a Corporation Is Settled with Its Payment of $5.28 Million

On October 5, 2012, Engility Corporation (formerly known as L-3 Services, Inc. and as Titan Corporation and hereafter “Titan” or “Engility”) paid $5.28 million to settle claims brought by 71 Iraqi citizens for the corporation’s alleged participation in their torture and inhuman treatment at the now notorious Abu Ghraib and other prisons in that country.[1]

Proceedings in the Case Against Engility

The case started in June 2008 in the U.S. District Court for the District of Maryland. The complaint, which was twice amended by October 2008, asserted that during 2003 through 2007 the plaintiffs were tortured at these prisons, which were then under the control of the U.S. Armed Forces. At that time L-3 Services, Inc. was a private contractor that provided translators at the prisons who allegedly participated in, or approved of, the torture and inhuman treatment. The alleged acts of torture and cruel, inhuman and degrading treatment included sexual assault, sleep deprivation, electric shocks, threats (including use of unleashed dogs) and denial of medical treatment.

The complaints sought unspecified compensatory and punitive damages and attorneys’ fees under the Alien Tort Statute (“ATS”)[2] and state tort law (assault and battery, intentional infliction of emotional distress and negligent hiring and supervision of employees).

On July 29, 2010, U.S. District Judge Peter J. Messitte denied L-3’s motion to dismiss the complaint. The court’s careful and detailed opinion ruled that (a) aliens who had been detained abroad by the U.S. were not barred from bringing suit in U.S. courts over their detention; (b) private government contractors were not immune from such suits; (c) the political question doctrine did not apply and, therefore, the case was justiciable; (d) private parties, including corporations, were subject to ATS claims for war crimes, torture and cruel, inhuman and degrading treatment; and (e) Iraqi law, not Maryland law, applied to the state-law claims possibly subject to Maryland public policy forbidding such application of foreign law.[3]

Immediately after that decision, Titan filed a notice of appeal to the U.S. Court of Appeals for the Fourth Circuit. A three-judge panel of that court, 2 to 1, in September 2011, reversed the district court while deciding that the plaintiffs’ state law claims were preempted by federal law and that the case should be dismissed. This decision, however, was overturned by the entire Fourth Circuit in May 2012, when it decided, 11 to 3, that it did not have interlocutory jurisdiction to consider the appeal on the merits.

Thereafter the case was remanded to the district court after the Fourth Circuit had denied Engility’s motion to stay the remand pending the filing and resolution of the corporation’s forthcoming petition for review by the U.S. Supreme Court.

After the remand and Engility’s failure to file a petition with the Supreme Court, the parties on October 5, 2012, agreed to the previously mentioned settlement, and on October 10th the plaintiffs dismissed their case and thereby terminated the litigation.

Comments

This case was sponsored by New York City’s Center for Constitutional Rights, which is “dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights.”

The Center’s extensive experience and expertise in litigating cases against corporations under the ATS and other laws are exceedingly important for successful prosecution of these cases. Their backing also provides the resources, persistence and stamina necessary to conduct such cases over a long time period (here, over four years) in various courts.

A similar case is pending in the federal court in Virginia in preparation for trial against another U.S. corporation, CACI International, Inc., which also was involved in interrogation and translation of detainees at Abu Ghraib and other Iraqi prisons. It is in pretrial discovery awaiting trial and is also sponsored by the Center for Constitutional Rights. It was reviewed in a prior post.

Another similar case sponsored by the Center, Saleh v. Titan, was brought by more than 250 Iraqi plaintiffs against CACI International, Inc. and Titan. In September 2009 the U.S. Court of Appeals for the District of Columbia, 2 to 1, affirmed the dismissal of all claims against Titan and, reversing to the district court, also dismissed all claims against CACI. On June 27, 2011, the U.S. Supreme Court denied the plaintiffs petition for certiorari, thereby ending this case.

Overhanging all of these cases is another case awaiting decision in the U.S. Supreme Court–Kiobel v. Royal Dutch Petroleum (Shell)–that raises the issue whether corporations may be sued under the ATS. This case has been discussed in prior posts.

[1] The settlement is described in an SEC filing by Engility’s parent company (Engility Holdings, Inc.’s Quarterly 10-Q Report at 11 (Nov. 13, 2012)); Cushman, Contractor Settles Case in Iraq Prison Abuse, N.Y. Times (Jan. 8, 2013); Yost, Abu Ghraib Settlement: Defense Contractor Engility Holdings Pays $5M To Iraqi Torture Detainees, Huffington Post (Jan. 8, 2013); Assoc. Press, Iraqis Held at Abu Ghraib, Other Sites Receive $5 Million, W.S. J. (Jan. 9, 2013).

[2] Prior posts have discussed the Alien Tort Statute.

[3] District Judge Peter J. Messitte, was a 1966 classmate of mine at the University of Chicago Law School.

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. Supreme Court Orders Rehearing in Kiobel Case Regarding Extraterritorial Application of the Alien Tort Statute

US-Supreme-Court-Building — U.S.Supreme Court Building

As discussed in a prior post, on February 28th the U.S. Supreme Court heard oral arguments in Kiobel v. Royal Dutch Petroleum (Shell) (Sup. Ct. No. 10-1491) on the issue of whether or not corporations could be held liable under the U.S. Alien Tort Statute (ATS), and a decision in the case was expected by the end of this June.

The Kiobel Rehearing Order

Less than a week later (on March 5th) all of that changed when the Court ordered new briefs and a rehearing this Fall on a different issue that previously had not been considered in this case by the U.S. Court of Appeals for the Second Circuit or by the Supreme Court itself. That new issue of extraterritorial application of the ATS was expressed by the Supreme Court as follows:

Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, 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 surprising development appears to have been triggered by that very issue having been raised in another ATS case in a pending petition for a writ of certiorari to the Supreme Court in Rio Tinto vs. Saari (Sup. Ct. No. 11-649) brought by a corporation that had lost an ATS case in the U.S. Court of Appeals for the Ninth Circuit in San Francisco, California. The Rio Tinto cert. petition was considered by the Court at its private conference on Friday, March 2nd, and the order for rehearing in Kiobel was issued the following Monday (March 5th) without any announced action on the Rio Tinto cert. petition.

This apparent connection between the two cases calls for seeing what additional light may be shed on this new issue in Kiobel by examining that same issue in the Rio Tinto case. Rio Tinto, by the way, submitted an amicus curiae brief in Kiobel, but that brief did not discuss the extraterritoriality issue presumably because it was not germane to the two issues previously specified by the Supreme Court for the first Kiobel argument.

The Rio Tinto Case

This case under the ATS was brought by current or former residents of an island (Bougainville) in Papua New Guinea in the South Pacific Ocean. In the late 1980’s many residents of the island protested the mining activities on the island by Rio Tinto PLC and Rio Tinto Ltd., and the country’s military stopped the protests by killing many of the protesters. Their ATS case alleged that the military’s human rights violations were aided and abetted by Rio Tinto PLC, a public company headquartered in the U.K., and Riot Tinto Ltd., an affiliated public company headquartered in Australia.

The case started before 2002 and has a long complicated history.

The decision leading to the pending petition for a writ of certiorari in the Supreme Court was the October 25, 2011, en banc decision of the Ninth Circuit issued more than a year after the oral arguments. That decision partially sustained an ATS complaint against the two corporations and remanded the case to the federal district court in California for further proceedings. This decision by the 11 judges of the Ninth Circuit consisted of seven opinions spanning 170 pages covering many issues with different splits on different issues.

On the issue of extraterritoriality of the ATS, seven of the judges held that the statute had such application while the other four judges disagreed.

1. Majority opinion on extraterritoriality

The author of the 49-page majority opinion that sustained the ATS complaint was Chief Judge Mary Schroeder, who was joined on the issue of extraterritoriality by Judges Silverman, Berzon, Reinhardt, Pregerson, Rawlinson and McKeon. This section of the majority opinion is found on pages 19334-39 of the slip opinion.

The majority opinion first noted that the Ninth Circuit itself previously had decided that the ATS had extraterritorial application in In re Estate of Ferdinand Marcos, Human Rights Litig. (Marcos I), 978 F.2d 493, 499-501 (9th Cir. 1992), which involved torture that took place in the Philippines. In categorically rejecting the argument that the ATS applies only to torts committed in the U.S., the court had stated, “we are constrained by what [the ATS] . . . shows on its face: no limitations as to the citizenship of the defendant, or the locus of the injury.” (Id. at 500.) By implication, as a matter of stare decisis, the Ninth Circuit should reach the same conclusion in the current case. The majority opinion buttressed this point by citing cases in other circuits that had reached the same conclusion.

The majority opinion then observed that the U.S. Supreme Court’s only opinion on the ATS in the Sosa case in 2004 had recognized that the First Congress in 1789 had overseas conduct in mind when the Court in Sosa explained that in 1789, piracy was one of the paradigmatic classes of cases recognized under the ATS.

Next in the majority opinion was its analysis of the dissenting opinion’s principal authority, Morrison v. National Australian Bank Ltd., 130 S. Ct. 2869, 2877 (2010), which held that section 10(b) of the U.S. Securities Exchange Act of 1934 did not apply to securities transactions conducted in other nations. In so doing, the Ninth Circuit’s majority opinion correctly acknowledged that the Supreme Court in Morrison employed a “presumption against extraterritoriality” and stated that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” (130 S. Ct. at 2878.)

The Ninth Circuit’s majority opinion said, however, there was no indication in Morrison or elsewhere, that a “presumption against extraterritoriality” existed and could have been invoked by Congress in 1789. Moreover, according to the majority opinion, Morrison “did not require that Congress use the precise word ‘extraterritorial’ in a statute to establish such applicability. It [Morrison] required only that there be a ‘clear indication,’ stating that such an indication may come from either the text or the context of the statute. Id. at 2883.”

Such “clear indications” of extraterritorial applicability of the ATS were found by the majority opinion in both the statute’s text and its context. The text of the ATS provides for jurisdiction “of any civil action by an alien . . . committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. This text expressly creates jurisdiction for claims brought by persons who are not U.S. citizens. The text’s explicit reference to the “law of nations” indicates that one must look beyond U.S. law to international law in order to decide what torts fall under its jurisdictional grant. Moreover, the ATS was enacted in 1789 in the context of piracy occurring outside the U.S. as one of the paradigmatic classes of cases covered by the ATS.

Finally, according to the majority opinion, the ATS is a jurisdictional statute, and federal courts frequently exercise jurisdiction with regard to matters occurring outside the U.S., subject to the courts having personal jurisdiction over the defendants and to the principles of forum non conveniens and conflict of law principles that may call for dismissal of specific cases based upon their facts. In short, says the majority of the Ninth Circuit, the ATS provides a domestic forum for claims based on conduct that is illegal everywhere, including the place where that conduct took place. It is no infringement on the sovereign authority of other nations, therefore, to adjudicate claims cognizable under the ATS.

2. Dissenting opinion on extraterritoriality

Dissenting on this issue was a 36-page opinion by Judge Kleinfeld, which was joined by Judges Bea and Ikuta. (Slip Opinion at 19429-65.) I consider Judge Callahan to be the fourth dissenting judge on this issue by his joining the separate dissenting opinion of Judge Ikuta, which expressed agreement with the Kleinfeld opinion. (Slip. Op. at 19491 n.12.)

These dissenters’ concluded that the ATS was limited to torts in the U.S. to foreigners who were in the U.S. or who were outside any foreign state’s territory (i.e., on the high seas). There were four points or arguments advanced to support this conclusion.

First, they say, the previously discussed Morrison v. National Australian Bank Ltd. case reaffirms a long-standing canon of construction against implied extraterritoriality: “When a statute gives no clear indication of an extraterritorial application, it has none.”

Second, the ATS, they state, does not expressly authorize extraterritorial application, and its reference to the “law of nations” does not imply that it does. In addition, while the ATS does cover piracy on the high seas, that fact does not imply jurisdiction over wrongs committed within the territory of a foreign state.

Third, the dissenting opinion says the historical context of the adoption of the ATS in 1789 shows that its purpose was to afford a remedy for wrongs committed within the United States, not to enact a statute with extraterritorial effect. The dissenters say that the statute was enacted “to enable foreigners to sue for violations in America of a narrow set of norms, where failure to vindicate the wrongs might embroil our weak, new nation in diplomatic or military disputes. The wrongs were to ambassadorial officials in the United States, and piracy, sometimes by Americans.” Indeed, they say, with detailed support, “We had just signed a peace treaty with Great Britain after a War of Independence we barely won. We could ill afford diplomatic problems with the British, who bordered us on the north, the Spanish, who then bordered us on the south and west, or the French, whose support had been essential to our independence. Given our precariousness, the First Congress was concerned that American, not foreign, violations of the law of nations might ‘afford just causes of war,’ a war we likely could not win.”

Fourth, according to these dissenters, extraterritorial application of the ATS to so-called “Foreign-Cubed” tort cases (lawsuits by foreigners against foreigners over something that happened in foreign countries) would itself violate the law of nations. According to these dissenters, “The most fundamental principle of the law of nations . . . [is] ‘equality of sovereignty.’ Equality of sovereignty requires that every sovereign is to be treated as the equal of every other in its entitlement to govern persons within its own territory. ‘Under international law, a state has . . . sovereignty over its territory,’ which ‘implies a state’s lawful control over its territory generally to the exclusion of other states, authority to govern in that territory, and authority to apply law there.’”

Conclusion

I concur with commentators in the New York Times and Wall Street Journal that the order for rehearing is not a good sign for maintaining the ATS as a means of enforcing international human rights and for upholding corporate liability under the ATS.

Another commentator speculates that the new issue specified by the Court for rehearing in Kiobel even encompasses the serious issues of (a) defining the elements for the tort of aiding and abetting a government’s human rights violations; and (b) the constitutionality of extraterritorial application of the ATS, both of which were addressed in the previously mentioned en banc opinions in Rio Tinto.

In the meantime, the U.S. is adjudicating so-called “Foreign-Cubed” cases in other contexts. An U.S. immigration judge, after trial, has found that a former Salvadoran military officer participated in torture and extrajudicial killing of Salvadorans in El Salvador as a predicate for revocation of his U.S. legal residency and removal or deportation from the U.S. Another Salvadoran military officer, who is subject to a Spanish arrest warrant for his alleged participation in the 1989 killing in El Salvador of the six Jesuit priests (five Spanish and one Salvadoran) and their Salvadoran housekeeper and her daughter, recently has been indicted by a U.S. district court for alleged lying on U.S. immigration forms and thereby potentially leading to revocation of his U.S. legal residency status and removal or deportation from the U.S. (The latter was discussed in a Comment to a prior post.)

Finally, there is a bill in Congress with respect to other “Foreign-Cubed” matters. The bill would punish foreigners linked to foreign human rights abuses of foreigners (or presumably U.S. citizens) by denying them U.S. travel visas and freezing their financial assets in the U.S. Similar legislation has been proposed in the U.K. and eight other European countries.

U.S.Supreme Court To Consider Another Case Regarding Corporate Liability for Assisting Torture or Extrajudicial Killing

On February 28th, the U.S. Supreme Court will hear oral arguments on the following issue in a case from the U.S. Court of Appeals for the District of Columbia, Mohamad v. Palestinian Authority (Sup. Ct. No. 11-88):

Whether the Torture Victim Protection Act [TVPA], 28 U.S.C. § 1350 note § 2(a), permits actions against defendants which are not natural persons.

The TVPA provides a civil cause of action for money damages by an “individual” who is a victim of torture or by his or her representative for extrajudicial killing against the “individual” who committed the wrong.

The D.C. Circuit’s panel of three judges unanimously affirmed the dismissal of a TVPA complaint against the Palestinian Authority. That court stated, “Because the Congress did not define the term ‘individual’ in the TVPA, we give the word its ordinary meaning, . . . which typically encompasses only natural persons and not corporations or other organizations . . . . Notably, the Dictionary Act, which provides guidance in ‘determining the meaning of any Act of Congress,’ strongly implies the word individual does not comprise organizations because it defines ‘person’ to include ‘corporations, companies, associations, firms, partnerships, societies, … as well as individuals.’ ‘ (Emphasis in original.)

The D.C. Circuit concluded, “The Congress used the word ‘individual’ [in the TVPA] to denote only natural persons. The liability provision of the statute uses the word ‘individual’ five times in the same sentences—four times to refer to the victim of torture or extrajudicial killing, which could be only a natural person, and once to the perpetrator of the torture or killing. The [plaintiffs-appellants] . . . advance no cogent reason, and we see none, to think the term ‘individual’ has a different meaning when referring to the victim as opposed to the perpetrator.”

On October 17, 2011, the Supreme court granted the plaintiffs-petitioners’ petition for a writ of certiorari to review this decision.

Copies of the Supreme Court briefs of the parties and most of the eight amici curiae supporting the petitioners and the three amici supporting the defendants (including the U.S. Government) are available online. One of the three amici supporting the defendants was by the U.S. Government urging affirmance of the D.C. Circuit on essentially the same grounds enunciated by that court.

As previously stated, I find the D.C. Circuit opinion persuasive and believe the Supreme Court will affirm that court and hold that corporations are not liable under the TVPA.

This is a companion case to Kiobel v. Royal Dutch Petroleum Co. (Shell) that was discussed in posts on February 25th and 26th and that also will be argued on February 28th. The Supreme Court’s resolution of both of these cases is expected by the end of the current term at the end of June 2012.

This summary illustrates the importance of this issue for the parties, for the enforcement of international human rights and for governments and businesses around the world. Nevertheless, remember that this is a case of statutory interpretation, and at any time the Congress with a presidential signature could amend the statute to make corporate liability express or to exclude such liability specifically.

Second Circuit’s Decision in Kiobel Rejecting Corporate Liability for Assisting Foreign Human Rights Violations

In September 2010 the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Pet. Co., 621 F.3d 111 (2d Cir. 2010), rejected corporate liability in a civil case for money damages under the U.S. Alien Tort Statute (ATS), 28 U.S.C. § 1350. As mentioned in a prior post, this issue in this case will be the subject of a hearing before the U.S. Supreme Court on February 28th.

Subject-matter Jurisdiction

The Second Circuit in an opinion by Judge Cabranes in Kiobel first held, without much discussion, that the ATS incorporates any limitation arising from customary international law on whom may properly be sued as a defendant under the statute and that this was a requirement for subject-matter jurisdiction of the federal courts. No other circuit court, however, has come to this conclusion about such jurisdiction.

This was an important conclusion because federal courts are courts of limited jurisdiction requiring such courts always to determine if they have such jurisdiction and prohibiting the litigating parties from conferring such jurisdiction on the courts by not themselves raising problems over such jurisdiction. This conclusion enabled Judge Cabranes to raise, discuss and decide the issue of corporate liability under the ATS in this case even though it had not been briefed or argued by the parties themselves.

As mentioned in a prior post, the Supreme Court will be examining the correctness of this conclusion by the Second Circuit in this case.

Corporate Liability under ATS

Most of the lengthy opinion by Judge Cabranes held (a) that international law was the relevant law for determining whether corporations (or other legal entities) could be held liable under ATS for alleged violations of the law of nations; and (b) that customary international law and hence ATS did not recognize or allow corporate direct or accessory civil liability for human rights violations. The court, therefore, ruled that the complaint against a corporation had to be dismissed.

Important for the latter conclusion was the court’s view that international criminal tribunals starting with the Nuremberg Tribunal after World War II only imposed criminal sanctions on individuals for violating international legal norms. Other such tribunals, said the Second Circuit, were the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court (ICC).

The Second Circuit stressed the ICC’s Rome Statute’s limitation of jurisdiction in Article 25(1) to “natural persons.” Equally important for the Second Circuit was the Rome Conference’s development of the ICC’s Rome Statute and the Conference’s rejection of a French proposal to include corporations and other “juridical” persons in the ICC’s jurisdiction because, according to commentators, corporate criminal liability was rejected by many national legal systems and thus such inclusion in the Rome Statute would eliminate the possibility of national systems’ preempting ICC jurisdiction under the principle of complementarity.

One of the judges in the three-judge panel in Kiobel, Judge Leval, submitted an even lengthier concurring opinion. He agreed that the complaint in its entirety had to be dismissed because it did not allege that the corporate defendants had purposefully aided and abetted the Nigerian government’s alleged violations of human rights. (The important issue of the proper legal requirements for aiding and abetting liability will not be before the Supreme Court in this case on February 28th.)

Judge Leval, however, concluded that international law left to domestic law the issue of whether corporations were civilly liable for aiding and abetting violations of international law and that U.S. law allowed for such liability.

Judge Leval acknowledged that the ICC’s jurisdiction was limited to “natural persons” and that the Rome Conference had rejected the idea of extending the ICC’s jurisdiction to corporations and other legal entities. This structure, said Judge Leval, was due to a belief that a corporation could not act with the requisite criminal intent and the inefficacy of criminal punishment for such entities. On the other hand, Judge Leval quoted the Chairman of the Rome Statute’s Drafting Committee as saying that despite the diversity of views about corporate criminal liability, “all positions now accept in some form or another the principle that a legal entity, private or public, can, through its policies or actions, transgress a norm for which the law, whether national or international, provides, at the very least damages.”

Conclusion

As was noted by the Supreme Court itself in stating the second of the two issues to be argued on February 28th, the U.S. Court of Appeals for the 11th Circuit has disagreed with the Second Circuit on the issue of corporate liability under the ATS. Moreover, three other circuit courts–the 7th, the 9th and the District of Columbia Circuits–also have decided that corporations may be held liable under the ATS.[1]

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[1] An earlier version of this paper appeared in the blog of the American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC).

Procedural Background for U.S. Supreme Court Argument in Kiobel Case on Corporate Liability for Foreign Human Rights Violations

350px-Supreme_Court_US_2010 — U.S. Supreme Court Justices

On February 28th, the U.S. Supreme Court will hear oral arguments on the following two issues in a case from the U.S. Court of Appeals for the Second Circuit, Kiobel v. Royal Dutch Petroleum (Sup. Ct. No. 10-1491):

Whether the issue of corporate civil tort liability under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time.
Whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, as the court of appeals decisions provides, or if corporations may be sued in the same manner as any other private party defendant under the ATS for such egregious violations, as the [U.S.] Eleventh Circuit [Court of Appeals] has explicitly held.

The Supreme Court’s resolution of these issues is expected by the end of the current term at the end of June 2012.

The ATS 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.” (Earlier posts have reviewed the history of the ATS for the periods 1789-1979, 1980, 1980-2004, the U.S. Supreme Court decision in 2004 and 2004-present.)

This post will provide the procedural background for the Kiobel case. Subsequent posts will examine the substantive issues in the Second Circuit and before the Supreme Court.

The facts giving rise to the lawsuit took place in Nigeria in 1993-1995, when the Movement for the Survival of the Ogoni People and other Ogoni groups demanded an end to oil development in their region and were met with a violent military crackdown. Shell allegedly aided and abetted the crackdown.

Thereafter representatives of the Ogoni people, including Dr. Barinem Kiobel, commenced a putative class action against Shell under the ATS for allegedly aiding and abetting various human rights violations by the Nigerian government.

The case was brought in the federal court in New York City (the U.S. District Court for the Southern District of New York). After various pretrial motions and other proceedings, that court in September 2006 denied Shell’s motion to dismiss the claims with respect to alleged aiding and abetting crimes against humanity, torture and arbitrary arrest and detention. (Other claims were dismissed.)

The case then went up on appeal to the Second Circuit in New York City. Nearly four years later, September 2010, a three-judge panel of that court reversed the district court’s denial of the dismissal motion on the ground (2 to 1) that corporations could not be held liable under the ATS. (621 F.3d 111 (2d Cir. 2010).)

In February 2011, the Second Circuit’s original three-judge panel denied, 2 to 1, the plaintiffs’ petition for rehearing, and the entire Second Circuit denied, 6 to 4, the petition for rehearing en banc.

In October 2011, the Supreme Court granted the plaintiffs’ petition for a writ of certiorari to review the Second Circuit’s decision. The following briefing then took place:

In December 2011 the plaintiffs-petitioners submitted their brief supported by 19 amici curiae (friends of the court) briefs, including the U.S. Government, the U.N. High Commissioner for Human Rights, Joseph Stieglitz (Nobel Prize economist), law professors, human rights centers and plaintiffs in similar cases.

In January 2012 Shell filed its respondent’s brief supported by 16 amici curiae briefs, including the Federal Republic of Germany, the United Kingdom and the Netherlands, the U.S. Chamber of Commerce and other business organizations, other law professors, the Cato Institute and defendants in similar cases.

In early February the plaintiffs-petitioners submitted their reply brief.

Most of these briefs are available online.

This procedural background by itself illustrates the importance of this issue for the parties, for the enforcement of international human rights and for governments and businesses around the world. Nevertheless, remember that this is a case of statutory interpretation coupled with federal common law under the 2004 Sosa case, and at any time the Congress with a presidential signature could amend the statute to make corporate liability express or to exclude such liability specifically.