In a 2-1 decision issued last month, the Eleventh Circuit granted Chiquita’s motion to dismiss Cardona v. Chiquita Brands Int’l, Inc., a longstanding ATS case brought by four thousand Colombians alleging that, as part of its business operations in Colombia, Chiquita supervised and supplied a campaign of torture and murder conducted by Colombian terrorist organizations. In doing so, the Eleventh Circuit promptly broke the recent trend I sketched out in my previous post, by correctly applying the presumption against extraterritoriality to conclude that the ATS does not confer jurisdiction over “torture [that] occurred outside the territorial jurisdiction of the United States.”
The majority opinion also explicitly rejected the nascent “international rights and obligations” test that the Fourth Circuit applied in Al Shimari. Judge Martin’s dissenting opinion just as explicitly adopted that test, and would have found jurisdiction over Chiquita on the grounds that “the United States would fail to meet the expectations of the international community were we to allow U.S. citizens to travel to foreign shores and commit violations of the laws of nations with impunity.” But writing for the majority, Judge Sentelle (of the D.C. Circuit, sitting by designation) summarily dismissed Judge Martin’s argument as a statement of policy rather than an applicable principle of law, finding that “[e]ven assuming the correctness of the assumption that the present complaint states violations of the law of nations, the dissent’s observation is not relevant to our determination in this case.” In other words: the presumption against extraterritoriality has no relationship with the U.S.’s foreign policy interests in complying with international obligations.
Chiquita is therefore the first firm rejection of the specialized (and misnamed) version of the presumption against extraterritoriality (a.k.a, the PAE-for-ATS) that the lower courts have distilled from Kiobel’s intentionally ambiguous holding. Although the Second Circuit has previously declined to find jurisdiction in a post-Kiobel ATS case on similar grounds, that case, Balintulo v. Daimler, is unlike Chiquita in that the Second Circuit would have reached the same result regardless of whether it applied the PAE or the PAE-for-ATS. In Chiquita, by contrast, application of the PAE-for-ATS should have resulted in a finding of jurisdiction. But the Eleventh Circuit instead took the Supreme Court at its word, and applied the “traditional” PAE.