Eric Holder and the ATS

Plaintiffs will apparently appeal yesterday’s jury verdict in the Chevron ATS case. In the meantime, as we contemplate a new Administration, it’s worth considering, how, if at all, USG views will shift with respect to litigation under the Alien Tort Claims Act (a.k.a. the Alien Tort Statute (ATS)). Although he offered his views in full advocacy mode for his client, Chiquita, it’s worth noting that Attorney General-nominee Eric Holder’s characterization of ATS doctrine suggests that he may not be a big fan of more expansive readings of that statute. Here’s what he had to say (minus footnotes) in a brief filed in December 2007 in Doe v. Chiquita Brands International (in which plaintiffs sought to hold Chiquita liable for Colombian civilian deaths perpetuated by paramilitary groups that Chiquita had made payments to for purposes of continuing operations):

Even if plaintiffs could make the allegations necessary to sustain a claim of state action, the claim would be equivalent to an assertion that the Colombian government was complicit in the summary executions of its own citizens by terrorist organizations. Such a claim would present a nonjusticiable “political question” and should be dismissed because it “challenges the official acts of an existing government in a region where diplomacy is delicate and U.S. interests are great.” Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1032 (W.D. Wa. 2005), aff’d, No. 05-36210 (9th Cir. Sept. 17, 2007), pet. for reh’g pending (filed Oct. 9, 2007). . . . A finding of state action in this case would directly contradict the foreign policy position of the United States, which sees Colombia as a staunch ally in the fight against terrorism, and would thus constitute unwarranted judicial interference in the foreign relations of the United States. For years, the United States has consistently provided political, economic, and military support to the Colombian government, including support to Colombia’s efforts to disarm and prosecute paramilitaries, and to provide reparations to their victims. A judicial finding of “complicity” between Colombia and the AUC in this case would be at odds with this policy and create the potential for disparate pronouncements by the executive and the judiciary on Colombia’s terrorism policies. See Baker, 369 U.S. at 217.

And here’s what Holder’s brief had to say about corporate liability for aiding and abetting:

Plaintiffs’ core contention is that Chiquita aided and abetted the murders committed by the paramilitaries because it paid money to them. (See Compl. ¶¶ 219, 224.) In so contending, plaintiffs rely on a theory of secondary liability whose continued viability following Sosa has been the subject of intense controversy among the courts and which has been strongly opposed by the United States Government. While neither the Supreme Court nor the D.C. Circuit have addressed this issue, at least one Judge in this District has held squarely that aiding and abetting claims are not actionable under the ATS. See Exxon, 393 F. Supp. 2d at 24 (Oberdorfer, J.). In so holding, Judge Oberdorfer relied in large part on Judge Sprizzo’s decision in In re South African Apartheid Litigation, 346 F. Supp. 2d 548 (S.D.N.Y. 2004), in which the court there rejected aiding and abetting claims brought by “three groups of black South Africans [against] several multinational corporations that had done business in South Africa during the apartheid years.” Exxon, 393 F. Supp. 2d at 24 (dismissing aiding and abetting claims “largely for the reasons explained by the court in [Apartheid]”). . . .

Finally, Holder suggests further expansions of ATS doctrine require legislative, not judicial, action:

[A]llowing aiding and abetting claims under the ATS would be inconsistent with settled law. In Central Bank of Denver v. First Interstate Bank, 511 U.S. 164 (1994), the Supreme Court held that whether to allow aiding and abetting liability for civil claims is fundamentally a legislative choice for Congress, and not the courts, to make. See id. at 181-82, 189-90 (concluding that the availability of civil aiding and abetting liability under § 10(b) of the Securities Exchange Act of 1934 could not be inferred absent some indication that Congress intended such liability). The Court explained that “Congress has not enacted a general civil aiding and abetting statute . . . for suits by private parties” and that, as a consequence, “there is no general presumption that the plaintiff may sue aiders and abettors.” Id. at 182 (further noting that the concept of aiding and abetting in a civil context is “at best uncertain in application”). Central Bank is especially relevant here, as there is no evidence that Congress intended aiding and abetting liability for international law violations. See Exxon, 393 F. Supp. 2d at 24. Given the absence of any indicia that Congress intended to impose aiding and abetting liability under the ATS, it would be highly inappropriate for a court to expand the scope of ATS jurisdiction to reach alleged aiders and abettors. Cf. Sosa, 542 U.S. at 726 (noting that the trend has been for federal courts to avoid “innovative” interpretations over substantive law in an area such as foreign relations, which rather should be left to Congress).

Now, obviously, all the usual caveats apply to such pronouncements; they were made by Holder in his representation of a client and in litigation, so they may not reflect his personal views of the law in toto. Moreover, I am also not persuaded as Earth Rights International tries to argue, that we should be concerned about Holder’s nomination because he took this case.

On the other hand, I do think these views are worth highlighting here to the extent they reflect his characterization of the law and indicate a hostility to judicial action on the ATS where it would interfere with executive or legislative prerogatives. To the extent, he’s about to joint the executive branch, I’d be very surprised if his views were to actually soften. On the contrary, I expect we’ll see a federal government that continues to counsel the courts to exercise great caution in ATS cases in the years to come.

Hat Tip: Earth Rights International