A Completely New Standing Argument Against the Alien Tort Statute

by Julian Ku

(Please note that a commenter has rightly corrected me on two points, which I correct below)

Former State Department Legal Adviser John Bellinger (and former OJ guest blogger) spoke today at Hofstra’s biennial Legal Ethics Conference.  His talk was typically engaging, honest, and interesting (it will not be news to many of our readers that Bellinger was an internal dissenter on many Bush Administration policies).  But you will have to wait for the webcast to get more details.

Bellinger also flagged a case that I have totally missed: Judge Royce Lamberth’s curious dismissal of a major Alien Tort Statute lawsuit against Exxon Mobil arising out of activities in Indonesia.   It is curious because it comes up with a completely new and potentially devastating argument against most ATS cases: that non-residents aliens do not have standing to bring lawsuits in the U.S., as a general matter.  Whoa! Where did that argument come from?  It seems to come entirely from a 1976 district court decision in Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144 (D.D.C. 1976). [Correction: a commenter points out that the current case only has DC tort law claims remaining, and no claims under international law, although it is not clear to me that this would affect the standing argument]

I have to admit I know very little about “prudential” standing (as opposed to constitutional standing).  It is worth noting that the [analysis of standing in the] 1976 decision in  Berlin Democratic Club has never been cited in any judicial opinion.  Ever! It is “precedent”, but hardly a very deeply developed one. I smell a reversal coming…


6 Responses

  1. Note that the U.S. gov’t lawyer pushing for the no-standing rule in the Berlin Democratic Club was none other than Judge Lambreth himself!

  2. This posting is incorrect — Berlin Democratic Club has been cited as precedent a number of times.  Other cases also support the same argument; check the cases cited in Exxon’s briefs to find a few examples.

    Also, Lamberth’s opinion dealt with the Plaintiff’s claims under “D.C. tort law.”  The ATS-related claims had already been dismissed in the case.

  3. Thanks for the correction. I will update the post in a couple of ways.  I meant to say that the point on “standing” has never been cited in a case.

    As for the DC tort law claims, thanks for making that point, which I also missed.  Although, I don’t see that Lamberth’s holding on standing is limited to DC tort law claims, although that would make sense if it did.
  4. No problem.  One of the cases that cited Berlin Democratic Club is actually Cardenas v. Smith, 733 F.2d 909 (D.C. Cir. 1984), which was another case that Lamberth relied on and which dealt with non-resident alien standing on constitutional claims.   Lamberth’s decision in Exxon purportedly follows Cardenas’ “case-by-case” approach in determining whether prudential standing would bar the non-resident alien plaintiff’s claims. 

    The distinction between ATS and non-ATS claims could be relevant because prudential standing limitations can essentially be overriden by Congress with a particular statute designed to protect the class in question.  This is one of the exceptions cited by Lamberth in the Exxon opinion and is otherwise well-established in prudential standing cases.  Claims filed pursuant to the ATS arguably fall within this definition in light of the statute’s history and background.   In contrast, claiming that D.C. tort law protects Indonesian plaintiffs in Indonesia for injuries sustained in Indonesia by Indonesian soldiers is an unusual and relatively novel position itself; Lamberth’s opinion essentially rejects it.

  5. A related argument is raised in the most recent issue of the Berkeley Journal of International Law.  In Whether Foreigner or Alien: A New Look at the Original Language of the Alien Tort Statute, Anderson Berry points out that the only change made to the draft ATS before it was passed was to substitute the word “alien” for “foreigner,” and argues that this change was made because in 1789 “alien” was used to include only foreign citizens residing in the United States, while “foreigner” was used more broadly to include all non-citizens. 

  6. It is most likely that the decision will be reversed particularly because the Alien Tort Statute is gaining more ground. A cautionary application of the statute in Sosa case essentially provides validity of the ATS which helps to encourage corporate accounbility internationally. Exxon Mobil should not celebrate yet (assuming the plaintiffs have legitimate grounds other than standing/jurisdictional barriers to clear).

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