Kiobel Insta-Symposium: What Remains of the ATS?

At first glance, the Court’s decision in Kiobel appears to portend a significant restriction on Alien Tort Statute jurisdiction—even for suits that allege torture, genocide, or another of what the Court in Sosa called the “modest number of international law violations” cognizable under the ATS, those with “definite content and acceptance among civilized nations” equal to that of the “historical paradigms” (such as piracy and violation of safe conducts) familiar in 1789.

And perhaps that will, indeed, be Kiobel’s legacy.  But perhaps not.  What’s most striking about the collected opinions is that the Justices themselves apparently do not think the decision will necessarily cut off ATS claims in such a comprehensive manner.  Justice Kennedy writes that the decision “leave[s] open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute”; and even Justices Alito and Thomas acknowledge, with evident regret, that the Court’s opinion “obviously leaves much unanswered” (emphasis added).

What is the “much” that the Court does not answer?  The “number” of “significant” questions that remain unresolved?  If only it were as “obvious[]” as Justice Alito suggests.

To begin with, what legal propositions is it fair to say the Kiobel decision does establish?  Well, it is now settled that where the alleged conduct in question occurred wholly abroad, the mere fact that a corporate defendant has an office in the United States and shares that are traded on a U.S. exchange is insufficient to establish ATS jurisdiction, unless and until Congress amends the statute.  (All nine Justices agree that this is the case where only aiding and abetting is alleged; and I think it’s safe to say that a majority would rule the same way even where the defendant corporation is alleged to be the principal tortfeasor.)

By contrast, all nine Justices agree that there is ATS jurisdiction when, in Justice Alito’s words, “the domestic conduct is sufficient to violate an international law norm that satisfies Sosa’s requirements of definiteness and acceptance among civilized nations.”

But what about cases falling somewhere in between these polar ends?

Tom Lee describes some hypothetical cases that might not be covered by the Kiobel holding, such as where the conduct occurred in a “failed state”; but I doubt such rare hypotheticals are what the Justices had foremost in mind.  (It’s hard to imagine these are the “significant” questions that the decision “obviously” does not answer.)

I can think of at least three more familiar types of cases that the Justices might have had in mind as those that remain “unresolved” by Kiobel:

(i) Cases alleging Sosa-sufficient torts committed overseas by U.S. defendants;

(ii) Cases such as Filartiga, where a foreign defendant uses the U.S. as an effective “safe harbor,” thereby preventing other states from bringing him to justice;

and

(iii) Cases in which the defendant is alleged to have engaged in conduct in the United States that contributed materially to the violation of a Sosa-sufficient law of nations norm (such as providing active assistance to torture), but where that conduct in the U.S. was not itself sufficient to establish the violation.  (I am not including in this category cases alleging aiding and abetting predicated solely on knowledge by a U.S. corporation of a foreign subsidiary’s bad acts.  Although even that case is not technically resolved by Kiobel, I think it’s safe to predict the Court would not recognize such a claim, most likely on the theory that such general knowledge, and failure to stop the tort, does not satisfy the scienter requirement for a Sosa-qualified claim.)

We can say with some confidence that at least four current Justices (Breyer, Ginsburg, Sotomayor and Kagan) would recognize ATS jurisdiction in many or all cases in these three categories . . . and that, by contrast, two Justices (Alito and Thomas) would not.  What we do not know is whether and in what circumstances one or more of the other three Justices — or future Justices — would recognize ATS jurisdiction in such cases.

The question going forward, then, is whether such claims can satisfy the standard the Chief Justice articulates in the key, final paragraph of the Court’s opinion:  Do they “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application”?

I think it is likely lower courts will conclude that most such claims do not satisfy this “test,” owing to certain cues in the Court’s final paragraph itself.

For one thing, in the sentence immediately prior to the “touch and concern” formulation, the Roberts opinion stresses that “all of the relevant conduct” alleged in Kiobel itself “took place outside the United States.”  If this sentence were read, as many courts might be inclined to read it, to categorically preclude ATS claims where all of the “relevant” conduct occurred overseas, then it is hard to see how at least the cases in my first category — involving conduct overseas by U.S. persons — would be viable.  And the same might be true for the second, Filartiga category, depending on whether the defendant’s use of the U.S. as a “safe harbor” could be viewed as “relevant” conduct.

Then there is the critical, operative sentence itself.  The Chief Justice pointedly did not write that the alleged “relevant conduct” must “touch and concern” the United States, or U.S. interests — he wrote, instead, that the conduct must “touch and concern” U.S. territory.  Moreover, the “test” is framed in conjunctive terms:  We don’t yet know quite what it means for conduct to “touch” or to “concern” U.S. territory; but apparently it must do both, not simply one or the other, in order to “displace” application of the presumption against extraterritoriality.

One close observer remarked to me that there might be an even greater obstacle to allowing cases to go forward in the three categories noted above–namely, that Part III of the Court’s opinion suggests that in order to rebut the presumption against extraterritoriality, the statute itself “would need to evince a ‘clear indication of extraterritoriality” . . . and surely it’s difficult to read the language of the ATS to draw the sorts of distinctions that would “displace” the presumption in such categories of cases.  Moreover, the Court at several places indicates that the question it is addressing is whether causes of action can be brought “for violations of the law of nations occurring abroad.”

To be sure, a future court could certainly point to such passages in the Kiobel opinion as support for the view that law-of-nations violations “occurring” abroad are categorically outside the scope of the ATS.  But I don’t think Kiobel itself can fairly be read to have established that much. . . because if it had, then the Court majority presumably would have embraced the rationale in Justice Alito’s concurring opinion; but only one other Justice joined that opinion.  Moreover, such a reading would be difficult to reconcile with the conspicuous statements of Justices Kennedy and Alito that the majority’s ruling “obviously” leaves unresolved a “significant” number of questions involving ATS coverage.  The better reading, then, is that the language and history of the ATS provide no basis for wholly rebutting the presumption against extraterritoriality; but that there also remain unresolved sets of “significant” cases in which the conduct alleged might be sufficient to “displace[]” the presumption.  (It is not an accident, I think, that the Chief Justice uses different verbs in the two sections of his opinion:  In Part III he writes that the presumption is not “rebutted”; but in Part IV he suggests that it can be “displaced” in certain as-yet-undetermined cases.)

Still, in light of such language in the Chief’s opinion, it is likely that lower courts will be very hesitant to recognize ATS claims in these categories of cases (especially the first).  And perhaps that will be the end of it, since the Supreme Court might decline to hear any cases in the near future that would require a more fine-grained fleshing out of the questions left unanswered.

Even so, the Justices’ opinions are ambiguous enough that a future Court majority could very well recognize ATS claims in some or all of those categories, consistent with Kiobel itself.  The relevant question in such cases, I would think, is what it might mean for there to be “sufficient force” in a particular case “to displace the presumption against extraterritorial application.”  And in order to evaluate that question, one would naturally consider the reasons for the application of the presumption to the ATS, and whether those reasons are implicated in the particular case.

When one looks to such normative or practical considerations, however, things appear even more indistinct, owing to the unusual way in which the Court explains its application of the presumption against extraterritoriality in Kiobel.  As the Court itself notes, the Court applies the presumption against extraterritoriality to most statutes because of a natural skepticism that Congress would intend U.S. law to “prescribe” rules for conduct overseas that might be inconsistent with the rules of the territorial jurisdiction, i.e., to declare unlawful conduct that is legal where it occurs.  But that is not a concern here, because the only conduct the ATS can cover, per Sosa, are violations of the law of nations that states the world over universally condemn, such as the prohibitions on torture and genocide.  Indeed, as the Chief Justice explains, it is international law itself, not U.S. domestic law, that establishes the substantive rules for conduct:  “[The ATS] does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.”  The U.S., that is to say, is not providing a remedy for conduct that is lawful in the place where it occurs, and therefore the ordinary reason for presuming no extraterritoriality is not present.

So why employ the presumption against extraterritoriality to the ATS at all?  The Court does not provide much by way of specific explanation, other than to invoke Sosa for the proposition that, especially when the conduct occurred overseas, “‘many attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of adverse foreign policy consequences‘” (emphasis added).

If the risk of such foreign policy concerns is the basis for the presumption against extraterritorial application of the ATS in the first instance, then presumably such risk also ought to inform the Court’s judgment — and that of lower courts, as well — in deciding when, if ever, the presumption should be “displaced” in the categories of cases described above.  If this is correct, then the cases most amenable to such displacement would be those in which a U.S. person or corporation is responsible for the violation–that is to say, cases in which U.S. foreign policy objectives would presumptively be advanced if the U.S. were to take responsibility for harm caused by our own nationals–or cases such as Filartiga, where the defendant cannot be held accountable by other states because he is using the U.S. as a “safe harbor.”  On the other hand, even within these categories of cases, one might expect that the “risks of adverse foreign policy consequences” would be most acute when a case implicates the conduct of a foreign ally–a factor unmentioned in the Kiobel opinions, but one that I assume will take on an increasingly prominent role when the lower courts, and ultimately the Supreme Court, begin to answer the many “significant” questions that Kiobel leaves unresolved.