02
Sep
11th Circuit Dismisses ATS Claims in Bolivia Case
John Bellinger writes at Lawfare on the 11th Circuit's dismissal of Alien Tort Statute claims against former senior Bolivian government officials. (Jack Goldsmith served as defense co-counsel.) This case (opinion) involves former government officials, and so does not raise perhaps the most hotly-contested issue in ATS litigation today, corporate liability, on which there is now a signficant circuit split. However, I agree with John that the tone of the 11th Circuit opinion reflects something that Roger has mentioned here at OJ, a note of caution entering appellate decisions in ATS cases.First, the Court shows considerable sensitivity (if not irritation) about being asked to judge security actions taken by foreign leaders, especially in this case where the leaders were “faced with thousands of people taking to the streets in opposition.” Repeatedly invoking the Supreme Court’s call for caution in Sosa, the Court emphasizes that the ATS is “no license for judicial innovation” and that “judicial restraint is demanded.” Moreover, the Court observes that “We know and worry about the foreign policy implications of civil actions in federal courts against the leaders (even the former ones) of nations. And we accept that we must exercise particular caution when considering a claim that a former head of state acted unlawfully in governing his country’s own citizens.” Second, the Court also emphasizes that Iqbal requires not only specific factual allegations of misconduct but allegations of misconduct by the particular defendants. “We do not accept that, even if some soldiers or policemen committed wrongful acts, present international law embraces strict liability akin to respondeat superior for national leaders at the top of the long chain of command in a case like this one.”