23 Sep Lower Courts Narrowly Interpret Kiobel
It’s been over five months since the Supreme Court rendered its landmark decision in Kiobel v. Royal Dutch Petroleum. A quick review of lower court decisions suggests that Kiobel marks the end of the Filartiga revolution in the United States.
The most significant lower court ruling to date is Balintulo v. Daimler AG where the Second Circuit rejected plaintiffs’ argument that Kiobel did not preclude claims based on foreign conduct when the defendants are Americans. Nor did the claims “touch and concern” the territory of the United States based on American interests to support the struggle against South African apartheid. In other words, according to the Second Circuit domestic conduct is required for an ATS claim to proceed under Kiobel.
The Supreme Court expressly held that claims under the ATS cannot be brought for violations of the law of nations occurring within the territory of a sovereign other than the United States…. If all the relevant conduct occurred abroad, that is simply the end of the matter under Kiobel…. In all cases, therefore the ATS does not permit claims based on illegal conduct that occurred entirely in the territory of another sovereign.
There are numerous district court cases that are in accord, dismissing ATS claims based on the absence of domestic conduct, regardless of the nationality of the defendants. There is not a single case in which the defendant’s American nationality has been sufficient to displace the presumption.
A few cases further clarify whether claims “touch and concern the territory of the United States … with sufficient force to displace the presumption against extraterritoriality.”
A magistrate judge in Mwani v. Bin Laden held that an attack on the U.S. embassy in Kenya plotted in part within the United States could overcome the presumption. “If any circumstances were to fit the Court’s framework of ‘touching and concerning the United States with sufficient force,’ it would be a terrorist attack that (1) was plotted in part within the United States, and (2) was directed at a United States Embassy and its employees.” By contrast, a federal court in Kaplan v. Central Bank of Iran held that a foreign terrorist attack that killed Americans but targeted another country would not be sufficient to overcome the presumption.
The case of Sexual Minorities Uganda v. Lively, involving an American defendant who allegedly led a campaign of persecution against the LGBT community in Uganda, represents a rare example of substantial conduct within the United States sufficient to displace the presumption. A federal district court in Massachusetts held that where an American defendant engaged in tortious acts that “took place to a substantial degree within the United States, over many years, with only infrequent actual visits to Uganda…. Defendant’s alleged actions in planning and managing a campaign of repression in Uganda from the United States are analogous to a terrorist designing and manufacturing a bomb in this country, which he then mails to Uganda with the intent that it explode there.” In other words, territorial conduct with extraterritorial injuries are sufficient.
Another district court emphasized that it was not sufficient to simply find some conduct within the United States. In Giraldo v. Drummond Company, Inc., a federal district court in Alabama held that even if certain corporate decisions were made within the United States to support human rights abuses abroad, the focus is not on finding some domestic conduct, but what type of conduct occurred at home and abroad. “Where a complaint alleges activity in both foreign and domestic spheres, an extraterritorial application of a statute arises only if the event on which the statute focuses did not occur abroad. Of course, the ATS focuses on the torts of extrajudicial killings and war crimes and … the tort at issue occurred abroad in Colombia, and not in the United States.” This opinion seems to follow Justice Alito’s concurrence, requiring the domestic conduct to violate the law of nations.
As to what constitutes the territory of the United States, a federal court in Al Shimari v. CACI International, Inc. suggested but did not decide that de facto sovereignty might be enough. “The Court finds inconclusive, at best, Plaintiffs’ support for their contention that the United States held de facto sovereignty over Iraq during the relevant period in this case…. It would be difficult to conclude that the United States, to the exclusion of all other involved nations, exercised complete jurisdiction over Iraq.” One wonders whether a claim based on human rights violations in a location where the United States did exercise de facto sovereignty, (i.e., Guantanamo Bay) might be enough.
So there you have it. It is still too early to reach any serious conclusions about Kiobel‘s progeny. But the early scorecard does not look promising for plaintiffs.
Thanks for this informative survey. Things are undoubtedly bad for ATS plaintiffs, but a couple points should be kept in mind about Balintulo. 1. It’s far from clear that the panel had jurisdiction in any sense that would allow it to establish circuit precedent. The many pronouncements about the meaning of Kiobel were delivered in the course of denying a petition for mandamus. The panel concluded that the petition should be denied because, in its view, it was obvious that Kiobel required dismissal of Baliuntulo. But as the panel acknowledged, “a decision denying mandamus relief is usually, if not always, an inappropriate occasion to address novel questions of law, since the authority to issue mandamus is narrowly circumscribed, and a court considering mandamus generally does not have jurisdiction otherwise.” As a prudential question, allowing precedent to be established this way is problematic. Any petition for mandamus would become an opportunity to decide far-reaching legal questions, which among other things would destroy the settled Second Circuit convention of allocating novel legal questions to randomly-assigned panels. 2. Although Balintulo purported to apply the “clear” holding of Kiobel, it in fact took a debatable position on what it takes for a case to… Read more »
This is a good roundup, but it misses the most favorable decision to plaintiffs – Ahmed v. Magan, in which the court found that the Kiobel presumption was displaced simply because the defendant was a permanent resident in the U.S. (See http://cja.live2.radicaldesigns.org/downloads/Ahmed%20v.pdf)
I also agree with the caution on interpreting Balintulo. The plaintiffs have filed a petition for rehearing in the case. In addition to the problems raised by David, the panel’s opinion has another problem which should prevent it from being considered authority (especially when it purports to overrule Filartiga). The opinion did not suggest that Kiobel extraterritoriality was a question of subject matter jurisdiction; in fact it remanded to allow the defendants to move for judgment on the pleadings – not for dismissal for lack of subject matter jurisdiction. But under current Second Circuit law from the first Kiobel decision, there is no subject matter jurisdiction over ATS cases against corporations. Without overruling his decision on corporate liability, Judge Cabranes can’t use Balintulo as a vehicle to make a decision about extraterritoriality, because there’s no jurisdiction to opine about the merits.
I should have said “Without acknowledging that the Supreme Court has implicitly overruled his decision on corporate liability,” because that’s what the Court should be considered to have done in Kiobel. Just as Judge Cabranes couldn’t reach the extraterritoriality issue in Balintulo if he was right about corporate liability, the Supreme Court couldn’t have reached the extraterritoriality issue in Kiobel if Judge Cabranes was right on corporate liability. Cabranes can’t have it both ways; he either needs to acknowledge that his earlier decision is no longer good law, or that the court has no jurisdiction to address other issues in any ATS corporate case.
Marco: there were already 20 US Sup. Ct. cases recognizing that corps. or cos. can have rights and duties under international law. see
http://ssrn.com/abstract=2173474
and
http://ssrn.com/abstract=1701992
I will post some Notes and Questions for a casebook shortly
Notes and Questions l. If the main issue was that set forth in the first paragraph of the opinion of Chief Justice Roberts regarding violations of international law occurring within the territory of a foreign state, in view of the extraterritorial aspects of conduct in violation of international law addressed in early cases such as Bolchos, Moxon, and those not addressed in his opinion should the answer have been yes? Compare Chief Justice Roberts (“The two cases in which the ATS was invoked shortly after its passage also concerned conduct within the territory of the United States. See Bolchos, 3 F. Cas. 810 (wrongful seizure of slaves from a vessel while in port in the United States); Moxon,17 F. Cas. 942 (wrongful seizure in United States territorial waters)”) with Jordan J. Paust, Kiobel, Corporate Liability, and the Extraterritorial Reach of the ATS, 53 Va. J. Int’l L. Digest 18, 27-28 (2012) [hereinafter Paust, Kiobel], available at http://ssrn.com/abstract=2173474 (“In Moxon, there were acts engaged in by French persons that originated from a French vessel onto an English vessel during its capture in U.S. waters and, as noted below [see Note 6 below], acts on a foreign flag vessel are acts within… Read more »
In my view, the first difficulty with Balintulo’s reading is that it relies on Morrison’s “craven watchdog” language regarding the “focus” analysis to rewrite Kiobel’s suggested exception for “claims that touch and concern” the United States to instead read “conduct that touches and concerns” the United States. This is understandable; Kiobel did after all cite Morrison. But upon inspection, that particular part of Morrison is a bad fit. It dealt with whether the statutory “focus” in the case was domestic or foreign—and thus whether the presumption was even triggered to begin with. If the statutory focus had been a domestic element of the claim (say, the fraudulent conduct in Morrison), there would have been no extraterritorial application of the statute and thus no need for the presumption. This is at odds with Kiobel’s description of the presumption as already being in place, and then being “displaced” by claims that touch and concern the United States. Nor is this simply about the chronology of similar analytical steps. One step—the “focus” inquiry—asks whether the statute’s application is territorial or extraterritorial; the other step—the “displace[ment]” inquiry—asks whether the presumption, once in place, is displaced. Moreover, the nature of each inquiry is completely… Read more »
Marco, Great catch! When I was writing this I did a search of all federal cases that reference Kiobel and the Alien Tort Statute. The Ahmed v. Magan, (S.D. Ohio) (2013 WL 4479077) case did not come up. The reason is because the magistrate judge in Magan calls it the “Alien Torture Statute.” Here’s the key language from Magan: “The presumption against extra-territoriality has been rebutted in this case because defendant Magan is a resident of the United States and the United States has an interest in not becoming a haven for persons who commit serious crimes actionable under the ATS…. I conclude that defendant has waived any merits argument he may have raised based on the Kiobel decision. I also find that as a permanent resident of the United States, the presumption of against extraterritoriality has been overcome in this case. The United States Department of State expressly stated its assessment that it is appropriate to give effect to the proposition that U.S. residents who enjoy the protections of U.S. law ordinarily should be subject to the jurisdiction of the courts.” This case certainly is the most favorable precedent for plaintiffs thus far. It appears that defendant’s only connection to… Read more »