U.S. Government Stabs Kiobel ATS Plaintiffs in the Back

OK, that is a little overdramatic.  Still, the U.S. government has effectively switched sides in the upcoming Supreme Court case: Kiobel v Royal Dutch Shell.  In the first incarnation of this case, the U.S. government had filed a brief supporting the petitioners and rejecting the lower court’s holding that corporations cannot be sued under the Alien Tort Statute.

But in a supplemental amicus brief filed in response to the Court’s request for reargument, the U.S. is now arguing that the Kiobel case should be dismissed because the case lacks a sufficient nexus to the U.S.  While rejecting an “across-the-board categorical rule” barring all ATS cases that involve activities occurring in foreign jurisdictions, the U.S. government seems to be arguing that cases where the United States government could not be held responsible for the actions of defendants should fall outside the ATS. From p. 3 of the brief:

The relevant question is whether a court should create a federal common-law cause of action today to redress an alleged international law violation, in light of present-day criteria for recognizing private rights of action and fashioning federal common law. The text of the ATS, a jurisdictional statute, does not answer that question. Courts, however, should be guided at least in general terms by the legislative purpose to permit a tort remedy in federal court for law-of-nations violations for which the aggrieved foreign nation could hold the United States accountable, which is an important touchstone for determining whether U.S. courts should be deemed responsible for affording a remedy under U.S. law. See Sosa, 542 U.S. at 714-718, 722-724 & n.15.

The brief goes out of the way to distinguish Sosa (which was dismissed on other grounds and involved U.S. government conduct anyway) and Filartiga (where the U.S. might have been accused of harboring a war criminal since the defendant had immigrated to the U.S.).  I don’t know why the USG reversed itself here, although Trey Childress provides some very informed speculation here.

In any event, I agree with the brief’s view that the ATS could not possibly have been intended to embroil US courts in disputes between foreign parties for actions occurring in foreign jurisdictions where there was no connection to the U.S. government.  More importantly, I am fairly confident that Justices Kennedy, Roberts, and Alito will be convinced by this argument, especially when it is made by the U.S. government.  So I think the defendants will get five votes, and might even get more than five votes, to dismiss this case. (After all, the Court unanimously dismissed the TVPA claim in Mohamed v. Palestinian Authority).

The harder question will be whether the Court will consider drawing some sort of general “across the board” rule to guide lower courts in cases involving different fact patterns.  What happens if the corporation that is acting abroad is a U.S. national? Or if the foreign corporate subsidiary was directed by a parent corporation in the U.S.?  Would this kind of nexus be sufficient to trigger ATS jurisdiction?  And what about the original question of corporate liability under the ATS, which was the issue in the lower court?  I am all in favor of the Court deciding all issues that are fairly in front of it, but I can imagine good reasons for them to send this one back to the lower courts.