In its recently released decision in Al Shimari v. CACI International (4th Cir. 2014), the Fourth Circuit followed a recent trend that has emerged in alien tort statute (“ATS”) cases, post-Kiobel. Like other courts grappling with questions of subject matter jurisdiction under the ATS, the Fourth Circuit purported to apply the presumption against extraterritoriality (“PAE”) in assessing whether it had jurisdiction over the plaintiff’s ATS claims. Also like other courts, however, the Fourth Circuit’s invocation of the PAE was pretense; it instead applied an entirely different doctrine which has, at best, only a passing connection to the PAE, or at least the PAE as it existed pre-Kiobel.

The plaintiffs in Al Shimari are four Iraqi citizens who allege that CACI, a U.S. government contractor providing “interrogation services” to the Department of the Interior, violated international law by torturing and mistreating prisoners at Abu Ghraib. Following the Supreme Court’s decision in Kiobel, however, the district court dismissed their claims under the alien tort statute (“ATS”), concluding that, under Kiobel’s newly issued guidance, there was no subject matter jurisdiction to hear the case, as the alleged torts all took place extraterritorially in Iraq. The plaintiffs appealed.

Constrained by Kiobel’s dictates, the Fourth Circuit analyzed its jurisdiction to hear the suit by applying a test that it called the PAE. After reviewing CACI’s “ties to the territory of the United States,” the court concluded that the plaintiffs’ ATS claims “touch[ed] and concern[ed] the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application.”

But the judicial doctrine that the Fourth Circuit applied was the PAE in name only. The analysis it performed was a lengthy balancing test, and, absent a single, perfunctory reference to congressional intent in enacting the TVPA, contains nothing that could be described as statutory construction (slip op., at 31).

This is hard to reconcile with the court’s claim that it was applying the PAE. The PAE is a longstanding canon of construction, with a well-developed pedigree, in which courts presume that a stature regulates domestic conduct unless otherwise specified. In Kiobel, however, the Supreme Court announced that, in interpreting the jurisdictional scope of the ATS, the PAE required the Court to construe the statute in a manner that precluded jurisdiction over a foreign plaintiff’s claim against a foreign defendant for foreign conduct. The First Congress had not intended for the ATS to regulate non-domestic conduct (or so SCOTUS claimed – as I’ve discussed in prior posts, this claim is not necessarily supported by history), and, as a result, when a plaintiff brings a case in which “all the relevant conduct took place outside of the United States,” the ATS does not provide the federal courts with jurisdiction to hear it.

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