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.