Category: Alien Tort Statute

Though the Supreme Court’s April 17, 2013 decision in Kiobel v. Royal Dutch Petroleum, 2013 WL 1628935, is just three weeks old (for a full discussion of the case, see here), the judicial universe has already applied it to cases brought under the Alien Tort Statute (“ATS”). 

In fact, just two days after the Supreme Court decided Kiobel, the Southern District of Texas dismissed a case brought under the ATS, the Torture Victim Protection Act (“TVPA”), and other legal theories, that involved alleged actions taken by the Honduran army.  Murillo v. Bain, 2013 WL 1718915 (S.D. Tex. Apr. 19, 2013).  In holding that “American Laws like the [ATS and TVPA] are presumed not [to] apply beyond the borders of the United States,” the District Court naturally cited to Kiobel.

In other district courts, litigants are avidly briefing the issue of Kiobel’s application.  In one such case in the District of Massachusetts, the plaintiff, who resides in the Republic of Moldova, brought suit against the defendant, a United States resident, under the ATS and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Prostitution, and Child Pornography of the United Nations General Assembly.  V.D. v. Nikolayev (No. 10673).  On May 1, 2013, the defendant filed a motion to dismiss, based almost entirely on the premise that, per the Supreme Court’s decision in Kiobel, the District Court lacks jurisdiction under the ATS.   

Indeed, the Supreme Court itself has addressed the impact of Kiobel in two cases.  In the first—Rio Tinto PLC, et al. v. Sarei, et al. (No. 11-649), also a corporate ATS case—the Supreme Court on April 22, 2013, granted the petition, vacated the judgment, and remanded the case to the Ninth Circuit for further consideration in light of Kiobel.  In the second, also decided on April 22, 2013, the Supreme Court granted certiorari in yet another corporate ATS case involving claims brought by Argentinian residents against a German Corporation for alleged human rights abuses by the corporation’s Argentinian subsidiary.  DaimlerChrysler Corp. v. Bauman (No. 11-965).  The Supreme Court granted certiorari to decide whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum state.  Interestingly, the case could allow the Supreme Court to further clarify one of the key issues it left open in Kiobel—that is, the exact extent to which claims brought under the ATS must “touch and concern” the United States in order to displace the presumption against extraterritoriality.

We will continue to keep an eye on these cases, as well as any future cases further clarifying the new reach of the ATS after Kiobel.

Last week, the Supreme Court issued its decision in Kiobel v. Royal Dutch Petroleum, a case that has been closely monitored by multi-national corporations who do business abroad.  In Kiobel, the Court held that the presumption against extraterritorial application of U.S. laws applies to claims brought under the Alien Tort Statute (“ATS”).  Because there was no connection to the United States – the defendants were Dutch, British, and Nigerian c0mpanies, and the alleged human rights abuses occurred in Nigeria – the Court unanimously affirmed the Second Circuit’s dismissal of the case.  Notwithstanding the unanimous decision, however, the Court did not give a clear indication as to the future of “corporate ATS cases.”

While the Court unanimously held that the Second Circuit’s dismissal should be affirmed, the reasoning was split down typical ideological lines.  Chief Justice Roberts wrote the majority opinion, which was joined by Justices Scalia, Thomas, Alito, and Kennedy.  Justice Breyer wrote a concurring opinion, which was joined by Justices Ginsburg, Sotomayor, and Kagan.  The foundation of Roberts’s majority opinion was the simple cannon that statutes do not apply extraterritorially absent a clear indication that they are so intended.  The ATS, the majority held, does not indicate any intent to apply extraterritorially, and therefore, the Court held that it does not. 

Although the Court appears to have created a categorical rule against extraterritorial ATS cases, the concurring opinion of Justice Kennedy suggests that the Court’s application of the presumption against extraterritoriality to the ATS should not be read to foreclose all extraterritorial applications of the statute.  Instead, he notes that “[o]ther cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today’s case; and in those disputes, the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.”  With this caveat, Justice Kennedy’s concurrence preserves the possibility that in a future case where more compelling (and perhaps extraordinary) facts and circumstances are presented, the ATS could be applied extraterritorially.

Justice Breyer’s concurring opinion concurred in judgment only, not in the reasoning.  Justice Breyer rejected the notion that the ATS could not be applied extraterritorially.  Rather, he laid out three scenarios under which ATS jurisdiction should be found:  (1) where the alleged tort occurs on U.S. soil; (2) where the defendant is an American national; or (3) where the defendant’s conduct substantially and adversely affects an important American national interest (which would include preventing the U.S. from becoming a safe harbor for torturers or other “common enemy[s] of mankind.”  As a result, the connection to the United States that would be required for Justice Breyer (and his colleagues) to find jurisdiction appears to be much less than what would be required by the majority. 

Both sides agree, however, that mere corporate presence in the United States is insufficient to establish jurisdiction.  The open question, however, is where on the spectrum of conduct must a case fall in order to establish jurisdiction.  Once again, Justice Kennedy is key, as he has indicated an openness to finding jurisdiction exists where there is some tie to the United States.  The question remains, however, where on the spectrum a case must fall in order to convince Justice Kennedy that jurisdiction is appropriate.  Federal courts will likely wrestle with this question in the future, and at some point, it is likely that the Court will again need to take up a corporate ATS case in order to further define its scope.

For more detailed discussion of the Kiobel case, including the lower court decisions, see prior posts on this blog here, here, here, here, here, here, here, and here.

The Supreme Court unanimously decided on Wednesday that parties may bring suit under the Torture Victim Protection Act of 1991  [“TVPA”], 28 U.S.C. § 1350, only against human beings, not organizations allegedly engaged in human rights violations overseas.  The case, Mohamad v. Palestinian Authority, No. 11-88,  involved the proclaimed death of a naturalized United States citizen, Azzam Rahim, as a result of injuries suffered while being tortured by officers of the Palestinian Authority and the Palestine Liberation Organization in Jericho, a city in the West Bank of the Palestinian Territories.  The family of Azzam Rahim brought their complaint under the TVPA, a supplement to the Alien Tort Statute [“ATS”], 28 U.S.C. § 1350, that authorizes a cause of action against “[a]n individual” for acts of torture or extrajudicial killing committed under the authority or color of law of any foreign nation.

The case came knocking at the Supreme Court’s door to address one question:  whether the TVPA permits actions against defendants who are not natural persons.  The family’s brief asked the Court to read the word “individual” in the context of collective liability for acts of individuals.  In an opinion written by Justice Sonia Sotomayor, the Supreme Court held that interpreting “individual” to include organizations would give the word an unnatural meaning – “[a]fter all, this is [not] how we use the word in everyday parlance.”  Justice Sotomayor acknowledged that this may foreclose effective remedies for victims and their families and thus render the TVPA “toothless,” but maintained that the statutory text was unambiguous.  Notably, Justice Stephen Breyer wrote a separate concurrence to clarify his position that in other instances, “[t]he word “individual” is open to multiple interpretations, permitting it, linguistically speaking, to include natural persons, corporations, and other entities.” Continue reading »