Tag Archives: Alien Tort Statute

A New Supreme Court Case Shows What Might’ve Been in Kiobel

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For some time now, Susan and I have been saying that courts already have a number of tools at their disposal to limit the reach of the ATS, even before Kiobel. Because of those tools, there was really no need for the Court to reach out and limit the scope of the potential substantive claims that could be brought under the ATS. Although the Court was concerned that the ATS permitted undue judicial interference in foreign affairs, courts could’ve already used things like personal jurisdiction, comity, forum non conveniens, and the like to keep themselves out of distant foreign fights.

The Supreme Court granted cert in a case today that shows just how that could’ve worked. DaimlerChrysler AG v. Bauman might first first appear to be a rather dry personal jurisdiction case, lovable only to civil-procedure nerds. But the root question–whether a company may be subjected to a lawsuit in the United States based only on the acts of its subsidiary–goes to a question quite close to the one in Kiobel. (And interestingly, Bauman includes claims under the ATS.) If the court uses Bauman to reemphasize the jurisdictional importance of corporate separateness, then all the problems that the Court was trying to solve in Kiobel would’ve gone away.

Take Kiobel itself as an example. That case involved a Nigerian subsidiary (who was the primary tortfeasor) and a British/Dutch parent. So far as I know, the Nigerian subsidiary had no contacts with the United States, so personal jurisdiction would be hard to establish as to that defendant. (I believe that the District Court ultimately dismissed the Nigerian subsidiary for that very reason.) The British/Dutch parent had an office in the United States, which probably shouldn’t be enough for jurisdiction.  But see Wiwa v. Royal Dutch Petro., 226 F. 3d 88, 92 (2d Cir. 2000). So if we’re being truthful, the lower courts were probably comfortable exercising jurisdiction over the British/Dutch parent because of the parent’s “American connection” through a separate, American subsidiary. But if Bauman goes the way that I expect, than that connection wouldn’t be nearly enough. 

In any event, the Supreme Court probably took Bauman because it applies a test embraced by Wiwa, and Wiwa was invoked (and repudiated) by a few of the players in Kiobel. In other words, the Supreme Court was reminded that a bad case was floating out there and saw a chance to fix it. Still, I wish that Bauman had also reminded the Court that Kiobel was a needless overreach, which could’ve been avoided through the strict application of first-year civil-procedure principles. Too late now.

-Michael

These Aren’t The Droids … Err … Jurisdictional Hooks You’re Looking For

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Folks are already getting creative in their efforts to define potential claims under the new, post-Kiobel ATS. Over at Opinio Juris, Thomas Lee suggests:

Another [case where the ATS might still be invoked] might be an instance where there is US sovereign complicity in the violation outside of the territorial United States, for instance, where a US or alien subcontractor, acting under U.S. governmental authority or authorization, has violated specific, universal, and obligatory customary international law norms (e.g., Common Article III) by enhanced interrogation techniques employed against an alien plaintiff in a foreign sovereign territory.

I’m not sure how that would work. If we’re talking about bringing claims against the individual offender, then you’re going to run into problems with the Westfall Act, which transforms tort claims against federal actors (acting in their official capacties) into Federal Tort Claims Act claims against the United States.  See, e.g., Garcia v. Sebelius, 867 F. Supp. 2d 125, 134-36 (D.D.C. 2012) (magically tranforming ATS claims into FTCA claims). And the FTCA bars claims that arise from (a) intentional torts; or (b) acts in foreign countries, so ATS claims would be dead-in-the water. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 700-12 (2004). For the same reason, a potential alien plaintiff couldn’t bring a claim against the United States directly.

-Michael

Citizens United Is Not Relevant

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Josh Blackman, who I usually agree with, writes this:

What precedent is *not* cited anywhere in Kiobel?

Citizens United. Not a single citation anywhere. So much for an expansion of the corporate-personhood-bugaboo.

I don’t get it. Kiobel, as written, doesn’t really go anwhere near the corporate liability issue. How on Earth would Citizens United then be relevant? One could just as easily say:

What precedent is *not* cited anywhere in Kiobel?

Roe v. Wade. Not a single citation anywhere. So much for an expansion of the abortion-rights-bugaboo.

-Michael

Kiobel: Hating on Common Law?

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My last post on Kiobel got me thinking: is this just a product of good-ole-fashioned conservative hatred of judge-made law? The first part of the majority’s analysis begins by noting that the statute wasn’t used much for the first 200 years or so of its existence. The fact that the Court needed to cite this rather irrelevant fact hints that the Court is none-to-pleased with the emergence of the ATS as an honest-to-goodness statute of judge-made liability, and feels that it’s killing off a statute that never should have developed into anything in the first place. And, in the same vein, the Court later complains about the difficulties of defining standards of liability in the international law context. So what? That difficulty should have been apparent to the Court in Sosa, but it wasn’t a reason to trash the statute then, and it shouldn’t be now.

Erie said more than 70 years ago that ”[t]here is no federal general common law.” I get the sense in reading Kiobel that the conservatives continue to wish that were true, even though the ATS cries out for quite a different conclusion.

-Michael

Congressional Wishes vs. Federal Common Law

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One of the incongruities of Kiobel comes from the fact that the Court is looking to Congress’ wishes or intent in trying to figure out whether the ATS applies abroad. As the Court simultaneously concedes, the ATS is really a very thin reed that opens the window to jurisdiciton, and it is courts that actually determine whether a claim exists. See Kiobel, slip op. at 5 (“[The ATS] instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law. … [T]he question is not what Congress has done but instead what courts may do.”)

I’m not aware of any other case involving this kind of “federal common law” where Congress’ intentions are treated as relevant, let alone decisive. The closest situation I can bring to mind is Federal Rule of Evidence 501, which instructs courts to apply common law notions of privilege. With some rare exceptions, I do not believe that courts analyzing privileges under that rule go back to the original Congressionally-enacted rule and ask what the rule’s “intent” was. My point is, I struggle with the idea that Congress put the power to define this cause of action in the hands of courts–under some very fuzzily-defined standards–but courts are unwilling to use that power in a certain fashion because courts did not receive a particular form of instruction from Congress.

More to come later.

-Michael

Update: Howard Wasserman does a better job of explaining this than I do.

Misunderstanding the Presumption Against Extraterritoriality

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The Supreme Court applied the infamous presumption against extraterritoriality today to knock out Kiobel v. Royal Dutch Petroleum. The majority opinion is so terrible that Susan and I have spent the last couple hours basically yelling at each other over gChat. But now I’d like to focus on one aspect of the opinion that I find particularly infuriating: Roberts’ misapprehension of the presumption itself.

First, let’s imagine that there are three areas of the world:

  • The United States (our territory);
  • All other countries (their territory); and
  • Land belonging to no one (the high seas, Antarctica, etc.).

The language of the Alien Tort statute is pretty heavy on language suggesting it applies to all three of these areas–it mentions “aliens” and “the law of nations,” among other things. But we know that the statute applies to at least the first and third areas, as the Sosa decision told us that the law can apply to piracy.  (Let’s ignore the fact that boats sailing on the high seas might actually be considered part of their flag countries.)

The majority, from all appearances, believes that the presumption against extraterritoriality can only be overcome where it can be shown that Congress specifically intended for the relevant law to apply to all three areas. Laws governing “uncontrolled” areas, like the high seas, evidently aren’t relevant because they don’t ”impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign.” So, even though the ATS reaches two of the three, it can’t be said to be “extraterritorial.”

Wrong, wrong, wrong.

First of all, the presumption against extraterritoriality presumes that a law does not reach any conduct outside the United States’ borders, whether that conduct occurs in uncontrolled areas or areas controlled by other countries.  See, e.g., Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949) (“[L]egislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.”); Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 357 (1909) (“All legislation is prima facie territorial.”). So, any admittedly covered conduct outside the borders of the United States would meaningfully rebut the presumption. This is really the converse of the well-accepted principle that the presumption against extraterritoriality applies even to “uncontrolled” areas–well, except in the case of the ATS, as of today.  See generally Smith v. United States, 507 U.S. 197, 204 (1993) (applying the presumption to conduct in Antarctica).

Second, Roberts seems to think that the presumption against extraterritoriality is motivated by a concern over undue interference in other nations’ affairs. That would be stupid, as notions like comity, or even personal jurisdiction, could help address concerns over undue interference in separate sovereign affairs. In fact, Charming Betsy (which tells us to interpret laws in conformity with international law) would also keep us from overreaching, as it would lead courts to punish extraterritorial conduct only when international law actually imbues the United States with prescriptive jurisdiction. But all of this is something of a moot point because Roberts’ premise is false. The presumption is not motivated by concerns of interference. (If it was, it would probably be called something like “the presumption against intercessiones terra firma,” rather than the presumption against extraterritoriality.)  Rather, the Court has taken great pains to stress that it is “based on the assumption that Congress is primarily concerned with domestic concerns.”  Foley Bros., 336 U.S. at 285; accord Small v. United States, 544 U.S. 385, 388 (2005); Smith, 507 U.S. at 204 n.5. (If it were otherwise, the presumption analysis would probably always begin with an analysis of whether there is any conflict in the first place, as courts do in domestic conflict-of-law cases. But that’s not the way it works.) Given that every Justice seemed to concede that Congress was not only concerned with domestic matters when it passed the ATS, the presumption should have been overcome.

Susan and I will have a lot more to say about this. In the meantime, head over to Opinio Juris to get some good analysis, including this post from Julian Ku.

-Michael

Update: In rereading Morrison, the most recent extraterritoriality case, I found that even that decision acknowledged that conflicts of law have very little to do with the presumption.  See Morrison v. Nat’l Australia Bank Ltd., No. 08-1191, slip op. at 6 (S. Ct. June 24, 2010) (“The canon or presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law.”).

Kiobel: A Blessing In Disguise?

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When the Supreme Court first got hold of Kiobel v. Royal Dutch Petroleum, the case presented a relatively straightforward question: does the Alien Tort Statute allow for liability against corporations? Answering that question should have been a difficult enough task. But the Supreme Court wanted more, so it scheduled the case for a second argument that will consider whether the Alien Tort Statute applies extraterritorially–that is, whether (and when) it covers violations of the law of nations happening outside the United States.

For fans of the Alien Tort Statute, that second argument is a bad sign. Many (including me) worry that the Supreme Court is readying itself to use its trusty “presumption against extraterritoriality” to significantly weaken the statute. Many of the Justices’ questions at the first argument hinted that they didn’t want U.S. quasi-international law to reach outside the country. But if the Alien Tort Statute doesn’t punish acts outside the United States, it’s not likely to be of much use at all.

Yet after having some time to think it over, I’ve begun to wonder: would a “bad” Supreme Court decision really be that bad at all?

My assumption has always been that a Supreme Court decision squishing the Alien Tort Statute would spell the end of the matter. Plaintiffs would largely be out of luck, and international law professors around the country would have to find some other topic to occupy their time. But the reality is that the Supreme Court is often not the last word on a subject, especially where the subject concerns statutory (as opposed to constitutional) interpretation.

It’s actually pretty surprising how often Congress responds to Supreme Court decisions. Of course, there are some relatively well-known examples, such as the time when Congress “reversed” a Supreme Court employment discrimination case by passing an act named after the plaintiff in the case. But would you have ever guessed that Congress considers an average of 5 bills for each Supreme Court decision? That’s what one study found.

Of course, not all (or even many) of these Congressional responses are eventually passed. And some of these bills are positive “codifications” of Supreme Court decisions. Even so, the rate of “Congressional overrides” is surprisingly high, all things considered. According to one study, about one out of every ten Supreme Court statutory interpretation cases spurs Congress to issue legislation reversing or modifying the case. (Where the Court invalidates a statute for constitutional reasons, Congress has attempted to reinstate the statute in some form in 48% of cases.) The chance of Congressional reversal goes up when other factors are present, such as (1) when the decision is not unanimous, (2) there is significant media attention, (3) the United States was on the losing side of the case as an amicus, (4) there were a significant number of amici on the losing side, and (5) the case involves civil liberties issues.

If the Supreme Court guts the Alien Tort Statute in Kiobel, the case would seem to invite Congressional reversal. Kiobel has garnered a good amount of media attention. It’s drawn an enormous amount of amicus attention, too; 14 amicus parties supported the human rights victims in the initial argument, and a breathtaking 30 more briefs supported the victims in advance of the second argument. The United States initially supported the petitioner, even though it later switched its argument and now says it’s supporting “neither party.”  Thus, there are many voices supporting the Petitioner’s side. And when all is said and done, this case is not likely to be unanimous.

As I’ve said before, a negative decision for the petitioners in Kiobel also feeds the narrative that the Supreme Court loves corporations. (Just today, in fact, the Huffington Post had a blog article begging the Supreme Court to keep the “legal responsibilities” of corporations intact by finding for the Petitioner in Kiobel.) So Congress might be inclined to reverse Kiobel as convenient way to strike back at the Supreme Court’s purportedly cushy treatment of corporations–especially if Congress grows more liberal after the elections.

Congressional action would be welcome in this context. As it stands now, Alien Tort Statute litigation is something of a crapshoot. Some claims are allowed in some circuits and disallowed in others. The same is true when it comes to identifying “proper” defendants. Certainly, a Supreme Court decision in Kiobel could just as easily resolve this mess while keeping the statute intact. But the fuzzy treatment given to the statute in Sosa v. Alvarez-Machain makes me think that any Supreme Court decision in this area is likely to do a poor job of dispelling confusion. In contrast, when Congress enacts an override, research suggests that the legislation often does serve to clear up judicial confusion. Thus, Kiobel might convince Congress to finally get of its butt and do something about this vague little statute that hasn’t been touched since 1789, to ultimately better effect than a Supreme Court decision.

I’ll admit that I might just be stretching here to find a silver lining. But maybe, just maybe, this will all work out in the end.

-Michael

Do Over: The Supreme Court Takes a Second Shot at Kiobel

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In a move reminiscent of Citizens United, the Supreme Court has agreed to reargue Kiobel v. Royal Dutch Petroleum so as to reach an issue not squarely presented by the case in the first instance: whether the ATS applies extraterritorially.  Anyone watching the first (now moot) argument could get the sense that the Court was especially uncomfortable with the geographic broadness of the present statute. But, as counsel for the Petitioner emphasized during his argument, that was not a question presented. The Supreme Court, never letting the limits of a particular case get in its way, has now addressed that problem by slapping on the extra question itself.

This move strikes me as an exceptionally haphazard way of dealing with a complex statute. By gobbling up all of these questions in one case, the Supreme Court threatens to do a poor job of addressing any one particular issue.  I predict a sloppy opinion composed of various rudimentary answers to all sorts of ATS-related questions; I’d wager that the final product, a slapped-together product stumbling about like Frankenstein’s monster, will effectively emasculate the ATS and render Filartiga nothing more than an historical footnote.

-Michael

One Prediction on the Court’s Decision in Kiobel

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Susan has offered her eight predictions below, but I’ll offer only one: the court will not determine whether corporations may be held liable under the Alien Tort Statute. Instead, the Court will determine that the question of corporate liability is not a question of subject matter jurisdiction and dismiss the rest of the case.

Why? Keep in mind the procedural posture here. This case came out of the district court as a certified appeal unrelated to corporate liability. The Second Circuit only reached that question because it determined corporate liability was a question of subject matter jurisdiction that it had an obligation to address sua sponte. If that decision was improper, then I expect the Supreme Court will simply flip it back to the Second, scold them for reaching an unnecessary issue, and avoid addressing the meat of the argument for now.

Such a decision would fit the Court’s recent tendency to insist that most questions are not questions of subject matter jurisdiction. But it would also be another moment when civil procedure ruins everything. Blech.

-Michael

Eight Predictions on the Court’s Decision in Kiobel

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With Supreme Court oral arguments on Kiobel v. Royal Dutch Petroleum set for tomorrow, it will still be a while yet before the Court releases its opinion. In the meantime, however, here are my predictions on what the outcome of the case will be. Once the Court has actually gotten around to issuing an order, I’ll check back to see if I managed to get any right.

  1. The Kiobel plaintiffs will lose. Either directly on the Supreme Court’s ruling, or after being kicked back to the lower courts with a directive to make findings that spell doom for the plaintiffs, the case against Royal Dutch/Shell will ultimately be dismissed.

  2. But not because of a finding that corporations cannot be liable under the Alien Tort Statute. The ATS was enacted as a mechanism allowing aliens injured by acts violations of international law to recover damages directly from the party who caused them harm, rather than having the U.S. itself make reparations to the victims. The ATS’s concern is not punishment, but in the financial reparation of damages. And, to that end, from the precedent set by prize law, marine torts, and other areas of the law which, in 1789, regularly featured civil claims for violations of the law of nations, there is plenty for the Court to draw from in finding that principles of agency law apply when ascertaining the entity liable for the damages under the ATS. Sosa already made it clear the Court is going to pay close attention to history in making pronouncements on the ATS’s scope and function, and an enquiry into the historical purpose of the statute necessitates a finding of corporate liability.

  3. Instead, Kiobel will be dismissed under principals of comity. If I had to bet, this is the battleground on which Kiobel will be fought. The hubris of allowing a suit brought by aliens against foreign companies for foreign torts will be too much for the Supreme Court to look past, and they will find that international comity requires that U.S. courts decline to exercise jurisdiction in the situation presented. The defendants are corporations based in and operated out of the United Kingdom and the Netherlands, and none of their corporate holdings in the U.S. had any direct involvement with Shell’s abhorrent practices in Ogoniland. Allowing suit against these companies in the U.S. is one step short of having U.S. federal courts declare themselves to be an international tribunal competent of adjudicating foreign state’s violations of the law of nations, and the Supreme Court just isn’t going to go there. Bonus prediction: look to see Charming Betsy invoked to explain why the Founders only intended the ATS to be limited to cases with either (a) a sufficient U.S. nexus, whether it be based on territorial concerns or personality jurisdiction, or (b) universal jurisdiction. If Justice Breyer gets his way, part (b) will be expansive and include Really Super Bad Awful Acts. Otherwise, it’ll be limited to piracy and any other crimes in the jurisdictional void.

  4. And possibly for failing to meet exhaustion requirements. The requirement that a plaintiff exhaust all domestic remedies before proceeding in a foreign forum was not a consideration in Sosa, but the Court noted then that “[w]e would certainly consider this requirement in an appropriate case. ” It’s also an issue that cropped up frequently in amici briefs submitted by foreign sovereigns in Kiobel, so the Court may consider it again now, assuming it doesn’t stop once it gets to the comity issue. Although I expect the Kiobel plaintiffs won’t be required to have filed suit in Nigeria in order to meet exhaustion requirements, their failure to pursue suits in the Netherlands and the UK may prove fatal. Particularly so for the UK — the fact that many of the plaintiffs, including the Kiobel family, are themselves UK citizens or residents puts the inappropriateness of a U.S. forum into stark relief.

  5. The Court may also look into the Second Circuit’s decisions regarding aiding-and-abetting liability. The “knowledge and purpose” standard for aiding and abetting liability under the ATS may get some dicta thrown its way, but as Kiobel can be decided without reaching the question of secondary liability, I would guess that it will not feature prominently in the Court’s decision. There may be some discussion, though, about aiding and abetting as a substantive violation vs. agency liability as a theory of recovery, and whether both are decided under domestic law, neither are, or one is but not the other.

  6.  Justice Scalia will author a very terse opinion dissenting in part.  Expect it to feature scathing but memorable descriptions about the purported ridiculousness of the Court exercising jurisdiction under the ATS.

  7. Justice Thomas will join Scalia’s dissent.  True story.

  8. Ultimately, even though the specific plaintiffs in this case will lose, the Court’s decision in Kiobel will strengthen, not weaken, a global regime of corporate liability for international human rights violations. The Court’s opinion will signal its intention to respect both international comity and international human rights. As such, one day, in a different case, with different facts, where the U.S. is a proper forum from which a judgment should be issued, Kiobel will ultimately provide support for a finding of corporate liability for violations of international law. And aside from that, the simple fact that the highest court in the U.S. will have gone on record acknowledging that the activities of corporations are indeed cognizable under international law will be a small but significant step in shaping global norms regarding corporate human rights abuses.


-Susan