Lower Courts Narrowly Interpret Kiobel

by Roger Alford

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.


7 Responses

  1. 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 overcome the presumption against extraterritoriality.  The panel said that the citizenship of a corporate defendant was “irrelevant,” dismissing the touch-and-concern language in the Chief Justice’s opinion as dicta.  But as Justice Kennedy observed, there are unspecified “cases covered neither by the TVPA nor by the reasoning and holding of today’s case.”  Maybe a case involving a U.S. defendant falls within that category, particularly if decisionmaking took place in the United States.  Given that Kiobel was an f-cubed case, it can hardly have decided the question with the clarity the panel assumes.
    In short, this looks like a decision that is reaching out to make law on an issue where the writing judge seems to have a long-term agenda.  I wouldn’t be surprised if the district court, other Second Circuit panels, and other circuits undertake an independent analysis of the questions Balintulo purports to resolve.

  2. 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.

  3. 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.

  4. Marco: there were already 20 US Sup. Ct. cases recognizing that corps. or cos. can have rights and duties under international law. see
    I will post some Notes and Questions for a casebook shortly

  5. 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 foreign state territory. In Bolchos v. Darrel, “the original cause arose at sea” on a Spanish vessel and the ATS allowed the court “to take cognizance of the cause” between two aliens, a Spanish claimant and an agent on behalf of a British national. Interesting dictum also appeared in some early extraterritorial cases [See, e.g., Jansen v. The Vrow Christina Magdalena, 13 F. Cas. 356, 358 (D.S.C. 1794) (No. 7,216) (dictum: “the powers of the district courts are expressed … as to civil causes … where an alien sues for a tort only,” a case involving seizure of a Dutch vessel abroad); M’Grath v. Candalero, 16 F. Cas. 128 (D.S.C. 1794) (No.6,810) (dictum: where a vessel was seized abroad by a foreign vessel, “[i]f an alien sue here for a tort under the law of nations or a treaty … the suit will be sustained”); Jordan J. Paust, The History, Nature, and Reach of the Alien Tort Claims Act, 16 Fla. J. Int’l L. 249, 250-51 n.3 (2004)]. A pre-Filartiga case in 1961 was also extraterritorial, involving recognized violations of international law within Lebanon and alien disputants [Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961)].”).
    Filartiga, approved in Sosa, had also involved violations of international law occurring in a foreign territory. Why did Chief Justice Roberts mention only four cases that were decided prior to Filartiga in Part II of his opinion?
    Was the answer to the question “yes” in part, since a majority of the Justices will allow at least partial extraterritorial application of the ATS? See also Breyer, J., opinion (2nd para. in Part I and lst para. in Part II).
    2. Since, after Sosa, a right to a remedy or cause of action can arise under international law (as well as under an act of Congress or “common law”) and the ATS is “jurisdictional,” does enforcement of international law (1) as the substantive law incorporated by reference in the ATS, and/or (2) as the law that provides a right to an effective remedy pose a clash between “our laws and those of other nations” within the meaning of Aramco? Where, for example, human rights law provides a right to an effective remedy, it is international law as the substantive law as well as the law that provides a right to a remedy that is being enforced and not domestic law. See also Paust, Kiobel, supra at 20-21, 23. Further, it is international law over which there is a universal jurisdictional competence of the U.S. and other countries.
    3. Indeed, if Sosa ruled that the ATS does not create a cause of action but the right to an effective remedy can arise under international law, was Chief Justice Roberts correct when stating “[t]he question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provided by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law”?
    4. If, given the language used in the ATS, violations of international law “can occur either within or outside the United States” (Roberts, C.J.), which is true, doesn’t this confirm the fact, from the face of the statute, that violations addressed in the ATS can occur in a foreign state? Does the language necessarily “evince a ‘clear indication of extraterritoriality’”? See also Breyer, J., concurring (in Part I B). Must the drafters have known this? Did the drafters or Congress at any subsequent time set a limit to its facially possible extension to conduct abroad?
    5. Under the transitory tort doctrine (whereby civil claims follow the person), isn’t a cause of action under international law over which there is universal jurisdiction a cause of action “in that place” where the violation occurred as well as anywhere else?
    6. Regarding piracy, Justice Breyer was correct to emphasize, contrary to Chief Justice Roberts, that piracy unavoidably involves the boarding of some other vessel flying the flag of some state and that, therefore, the piratical acts in violation of international law must necessarily occur in the equivalent of foreign state territory when the victim vessel is not a U.S. flag vessel. Concerning the fact that a foreign flag vessel or aircraft is the equivalent of foreign state territory, see, e.g., Kiobel, at _ (Breyer, J., concurring); Jordan J. Paust, M. Cherif Bassiouni, et al., International Criminal Law 196-97 (4 ed. 2013); Paust, Kiobel, supra at 28 & nn.46-47.
    7. If international law over which there is universal jurisdiction is the substantive law that is being enforced, does the dictum from La Jeune Eugenie about no nation being the “custos morum of the whole world” have any direct relevance? especially when, under international law, there is a duty to provide a right to a remedy? Also note what Justice Story emphasized in that case: “in an American court of judicature, I am bound to consider the [slave] trade an offence against the universal law of society and in all cases, where it is not protected by a foreign government, to deal with it as an offence carrying with it the penalty of confiscation” and, “if the African slave trade is repugnant to the law of nations, no nation can rightly permit its subjects to carry it on, or exempt them … [and] no nation can privilege itself to commit a crime against the law of nations,” but no nation can sit in judgment of another nation as opposed to sitting in judgment against private perpetrators [see Note 8 below]. “It would be inconsistent with the equality and sovereignty of nations, which admit of no common superior. No nation has ever yet pretended to be the custos morum of the whole world.” 26 F. Cas. at 847-51. Why did Chief Justice Roberts ignore this part of the opinion? See also Talbot v. Janson, 3 U.S. (3 Dall.) 133, 159-61 (1795) (Iredell, J., concurring) (“all … trespasses committed against the general law of nations, are enquirable, and may be proceeded against, in any nation where no special exemption can be maintained, either by the general law of nations, or by some treaty which forbids or restrains it”).
    8. With respect to “foreign policy,” compare The Perterhoff, 72 U.S. (5 Wall.) 28, 57 (1866) (“we administer the public law of nations, and are not at liberty to inquire what is for the particular … disadvantage of our own or another country”); and La Jeune Eugenie, 26 F. Cas. at 851 (where property is claimed by private violators of international law and would not go to their sovereign, “this court must follow the duty prescribed to it by law, independently of any wishes of our own government or of France”). See also Paust, Kiobel, supra at 23-25 n.27. Should “foreign policy” interests be identified and weighed by Congress and the Executive and not by unelected judges? See also Note 9 below.
    9. Justice Breyer mentions § 403 of the Restatement. Despite the claim made in the Restatement, the comity-factors limitation of jurisdiction preferred in § 403 is not part of international law and expressly does not apply when § 404 is applicable (i.e., when universal jurisdiction pertains even if, as recognized in § 404, there are no links with the forum state). See, e.g., Paust, Bassiouni, et al., supra at 241-44; Paust, Kiobel, supra at 23.
    10. Why was there a seeming focus on three violations of international law that happened to be addressed by Blackstone when the Framers and early judiciary had paid attention to several others, including breaches of neutrality addressed in 1 Op. Att’y Gen. 57 (1795) (Bradford, Att’y Gen.)? Compare the opinions of Chief Justice Roberts; Justice Alito (last para.); Justice Breyer (first para. in Section I A, but rightly using the word “including” and thereafter addressing other violations of customary international law and treaties of the United States) with Paust, Bassiouni, et al., supra at 181-83; Paust, Kiobel, supra at 22-23 & nn.19-22; Chapter One.
    11. Did Justice Breyer pay sufficient attention to the fact that complicitors of international crimes are also hostis humani generis when they aid or abet crimes under customary international law implicating universal jurisdiction when he stated that “plaintiffs allege, not that the defendants directly engaged in acts … but that they helped others”? Concerning responsibility for complicitors under international law, see, e.g., Paust, Bassiouni, et al., supra at 69-74; Paust, Kiobel, supra at 27; 1 Op. Att’y Gen. 57, 58-59 (1795) (“and abetted”).
    12. Despite the fact that a majority of the Justices would allow at least partial extraterritorial application of the ATS, is there a majority view of what the criteria should be? What limits to extraterritoriality would Justice Alito prefer? What limits would Justice Breyer prefer? Does Justice Kennedy offer any guidance concerning “proper implementation” and the “open … reach” of the ATS? What approach would you prefer?
    13. Given the fact (1) that federal statutes should “never … be construed to violate the law of nations if any other possible construction remains, and, consequently, can never be construed to violate … rights … further than is warranted by the law of nations,” Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 117-18 (1804) (Marshall, C.J.), and (2) that some forms of international law require that victims of violations have a right to an effective remedy, is it evident that “the Charming Betsy rule requires that the ATS not be interpreted restrictively to deny universal jurisdiction and rights under the law of nations” regarding the customary prohibition of “denial of justice” to aliens and customary and treaty-based human rights law? See Paust, Kiobel, supra at 29-31.
    Does the focus in Justice Breyer’s opinion on customary and treaty-based international legal duties not to provide a “safe haven” for those who commit international crimes partly support an interpretation of the ATS that, as he states, will serve “its substantive objectives, holding out ‘the word of promise’ of compensation for victims”? But has he paid sufficient attention to the nature of those duties (which apply, for example, “when the alleged offender is present”) as if a “minimal … presence” could not trigger a duty of the United States to comply with such obligations?
    For further attention to the nature of the law that is expressly incorporated by reference in the ATS and its jurisdictional character and substantive grasp, the full set of early cases and opinions of the Attorneys General, congressional endorsement of the Filartiga line of cases, how the Charming Betsy rule supplements the need to interpret the statute consistently with universal jurisdiction and responsibility, and related matters, see, e.g., Jordan J. Paust, Human Rights Through the ATS After Kiobel: Partial Extraterritoriality, Misconceptions, and Elusive and Problematic Judicially-Created Criteria, forthcoming, 6 Duke Forum for L. & Social Change (2014).

  6. 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 different. Morrison’s “focus” determination is a thoroughgoing legal, textual analysis of the statute in question. Kiobel’s suggestion that the presumption might be displaced where claims sufficiently touch and concern the United States is, by contrast, a factual inquiry.
    The other difficulty with Balintulo is that the Second Circuit read Kiobel’s statement that “mere corporate presence” is not enough to allow claims under the ATS to categorically mean no corporate presence can ever be enough to authorize claims under the ATS. But “corporate presence” is a legal term of art. And there is a robust and recent Supreme Court jurisprudence that distinguishes some types of corporate presence from others. Within that jurisprudence, “mere” corporate presence signifies exactly what the Court in Kiobel described: comparatively minor contacts with many forums. On the other end of the spectrum, however, are comparatively major contacts, like a corporation’s place of incorporation and headquarters—contacts that, according to the Supreme Court, render the corporation “at home” in a limited number of forums. On a reading of Kiobel that actually takes account of recent Supreme Court jurisprudence, I’d argue that this citizenship-type of relationship with the United States should suffice to displace the presumption.
    Assuming the Second Circuit’s reading is plausible, when two readings are plausible courts should adopt the reading that is consistent with existing law, not the reading that breaks from it.
    I intend to publish these thoughts and more in a piece forthcoming in the Cornell Law Review. For those interested, the AALS Conflict of Laws section going to have a dynamite panel on this topic at the annual meeting in New York City in January.  


  7. 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 the United States is his after-acquired permanent residency in the United States.

    Roger Alford

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