Emailing Does Not Pass the Kiobel Test: US Court Dismisses ATS Case Against Anti-Gay Pastor

by Julian Ku

Distracted by #ComeyDay and other international crises, I missed this recent U.S. federal court decision in Sexual Minorities of Uganda v. Livelydismissing an Alien Tort Statute lawsuit on Kiobel extra-territoriality grounds.  While using unusually critical language to denounce U.S. pastor-defendant Scott Lively’s involvement in Uganda’s anti-homosexual laws and actions, the U.S. District Court for Massachusetts held:

…Defendant’s status as an American citizen and his physical presence in the United States is clearly not enough under controlling authority to support ATS extraterritorial jurisdiction. The sporadic trail of emails sent by Defendant to Uganda does not add enough to the record to demonstrate that Plaintiff’s claims “touch and concern the territory of the United States . . with sufficient force to displace the presumption against extraterritorial application.” Kiobel, 133 S. Ct. at 1669.

What is notable about this case is that the same court and judge refused to dismiss this case on Kiobel grounds back in 2013 with largely the same allegations. The main difference with the result in 2017 seems to be that discovery revealed that Lively, the U.S. pastor, did not provide any

financial backing to the detestable campaign in Uganda, he directed no physical violence, he hired no employees, and he provided no supplies or other material support. His most significant efforts on behalf of the campaign occurred within Uganda: itself, when he appeared at conferences, meetings, and media events.

On these facts, this seems like the right result.  Kiobel requires something more than communications from the United States to “displace the presumption against extraterritoriality.” But caselaw continues to be a little muddy and I fully expect this to be appealed.


Did the Supreme Court Implicitly Reverse Kiobel’s Corporate Liability Holding?

by Julian Ku

Way back in 2010, the U.S. Court of Appeals in the Second Circuit held that corporations cannot be held liable under customary international law in ATS lawsuits.  That decision, which was the original basis for the Supreme Court’s consideration of the Kiobel case, has remained the law of the Second Circuit (New York, Connecticut, Vermont) though no other circuit court in the U.S. has followed it.  The Supreme Court was initially going to review that original Kiobel decision, but then decided Kiobel on other grounds, namely, that the presumption against extraterritoriality applies to claims brought under the Alien Tort Statute.  In recent cases, ATS plaintiffs have raised questions about the viability of the original Kiobel corporate liability holding. Did the Supreme Court leave that question open or had it reversed the lower court’s corporate liability decision sub silentio?

The argument that the Kiobel corporate liability holding no longer stands has two parts.  First, a plain reading of the Supreme Court’s Kiobel decision turns up language suggesting that corporations could be liable under the Alien Tort Statute.  In the majority opinion, Chief Justice Roberts stated that ““[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices [to displace the presumption against extraterritorial application].”  The argument here is that although “mere corporate presence” is not enough, corporations with other, deeper connections might displace the presumption against extraterritoriality. (Since the Court in other places explicitly stated it was not reaching the corporate liability question, I am skeptical of this argument).

Second, and more persuasively, you might argue that because the Supreme Court dismissed the Kiobel case on the grounds that the presumption against extraterritoriality applied to the Alien Tort Statute and that the presumption only applies if the court has reached the merits (e.g. whether the statute applies to the facts at hand).  Because the corporate liability defense was a jurisdictional ruling, this line of reasoning goes, then the Supreme Court must have implicitly found that it had jurisdiction over corporations in order to dismiss the case on the merits.

This second argument has some force to it (it was previewed in our insta-symposium last spring), and it was accepted by Judge Shira Scheindlin in a separate New York district court ATS case even though she ended up dismissing that case on other grounds.   It looks like the plaintiffs in another ATS case, Jesner v. Arab Bank, will get the appeals court to consider the issue as well, according to this NY Law Journal write up of oral argument in that case.

I think it is unlikely that the panel will conclude that the Kiobel corporate liability holding has been implicitly reversed, but I do think there is enough of an argument here to attract review of the full en banc Second Circuit. The tricky part here is that the ATS is itself a “jurisdictional” statute, and as the Supreme Court in Kiobel acknowledged, the presumption against extraterritoriality doesn’t typically apply to jurisdictional statutes.  So the Kiobel presumption is a little different and its application to causes of action that can be brought under the ATS is not exactly the same as when the standard presumption against extraterritoriality is applied to a regular non-jurisdictional statute. But it is unclear whether it is different enough to matter.

I am still coming to my own point of view on this issue. I don’t think the defendants in Jesner really addressed this issue effectively in their brief, but it is a complex issue.  At the very least, I think it will be resolved in the near future by the Second Circuit, either by this panel or by the full court. Corporate liability under the Alien Tort Statute is not quite a dead issue, but ti will take some time to figure out how alive it is.

Kiobel Roundtable: The ATS Was About Protecting Safe-Conducts

by Thomas Lee

[Thomas H. Lee is Leitner Professor of Law at Fordham University School of Law. He is currently a visiting professor of law at Harvard.]

I agree with Meir that piracy is a “red herring”  and am writing to elaborate on his thoughtful remarks.  The thing that troubles me most about how the Court is thinking about this case is that it continues to accept the Sosa statement that the ATS is 2/3 about piracy and ambassadorial infringements, but not thinking at all about the 1/3 nebulous “safe conduct” violation which I have argued was the real purpose of the ATS.  106 Columbia Law Rev. 830 (2006).  Other scholars have agreed in the past that the ATS was likely not about ambassadorial infringements or piracy (e.g., Anne-Marie Slaughter in 1989 re ambassadorial infringements; Curt Bradley re piracy in 2002).

This conclusion becomes crystal clear when the Judiciary Act’s jurisdictional provisions are read as a unit.  Regardless whether holistic reading makes sense for the Constitution or other statutes, it surely makes sense for the First Judiciary Act, which was largely the work of Oliver Ellsworth and enacted by the first session of the First Congress to set up the federal courts for the first time.  Ambassadors can sue in the Supreme Court, with concurrent jurisdiction in state court under section 13 of the Judiciary Act (pages 851-64 of my article explain why), and piracy falls within the admiralty and maritime jurisdiction of the district courts under clause 2 of section 9 of the Judiciary Act, two clauses before the ATS which is the fourth clause in section 9.  People often seem to forget that the ATS is not a free-standing statute but just a clause in a section of a much bigger, iconic enactment.

The admiralty and maritime grant in clause 2 was exclusive with the exception of the saving to suitors clause to state courts; the ATS grant in clause 4 is concurrent with state and the federal circuits.  The admiralty jurisdiction would have been territorially limited because most actions (called “libels”) were in rem, but if a pirate ship were brought to a US port, it could be condemned and its captain and crew tried for piracy.  This is all explained in pages 866-71 of my article, and the tension with Bradford’s construction of the ATS in 1795 is explained at pages 889 to 895.

In my view, all of this is explicit from a careful reading of the Judiciary  Act.  It then raises the question of what exactly the ATS is about, and the safe-conduct is all that is left.  My article was an attempt to understand what exactly the late eighteenth century safe conduct was at international law, how it was understood by the First Congress, and what it means today.  My conclusion for what it means today was that the ATS was enacted “to redress common law torts brought by friendly or neutral aliens [thus, the tort was in violation of the law of nations or a treaty of the United States” promising safety] committed by private actors — including aliens– with a United States sovereign nexus, not for international law violations committed by anyone anywhere.”

Kiobel Roundtable: The Devil in the Details

by Beth Stephens

[Beth Stephens is Professor of Law at Rutgers, the State University of New Jersey-Camden.]

Monday’s oral argument in Kiobel v. Royal Dutch Petroleum, Inc. focused on the search for a coherent limit to the reach of the Alien Tort Statute. The need for some limit is uncontroversial: even the most ardent advocates of human rights accountability agree that not all cases involving human rights violations, no matter how egregious, belong in U.S. courts.

The devil, as always, is in the details.

Would a holding that the ATS does not apply to claims arising in foreign countries constitute a coherent limit? The questions at the first Kiobel argument in February and the order for reargument issued the following week suggested that a majority of the Court was considering such a holding. At Monday’s reargument, however, this time with the benefit of full briefing on that issue, the questions indicated that the Justices had recognized that this apparently simple solution would pose its own problems, and that other doctrines might respond to some or all of their concerns.

A categorical bar on ATS claims arising in the territory of foreign states would require rejecting thirty years of ATS litigation, including the holding of Filártiga v. Peña-Irala. As Justice Kagan explained, it would also require abandoning the reasoning of the Court’s 2004 decision in Sosa v. Alvarez-Machain. Justice Scalia pointed out that applying the presumption against extraterritoriality would bar claims arising on the high seas as well as those arising in the territory of a foreign state, despite Sosa’s indication that the ATS was intended to apply to piracy, an international crime that occurs at sea. Sosa also relied on a 1794 opinion by U.S. Attorney General William Bradford, which stated that the statute applied to international law violations committed in foreign countries. The questions and comments at Monday’s argument suggest that the limit proposed in the order for reargument is neither coherent nor supported by statutory text, history, or precedent.

A categorical bar would be flawed for another fundamental reason: it would be an over-inclusive response to concerns about interference in the affairs of foreign states. International human rights norms both prohibit certain violent conduct and…

Kiobel Roundtable: Getting Exhaustion Right

by Doug Cassel

[Doug Cassel is Professor of Law at Notre Dame Law School]

If Alien Tort Statute suits to redress human rights violations committed abroad are upheld in Kiobel, the Supreme Court is likely to require that plaintiffs first exhaust their foreign and international remedies (or show good cause for not doing so).  If so, it is important that the Supreme Court get right the contours of the exhaustion doctrine under international law.  The Court should require exhaustion only in ATS cases brought exclusively under universal jurisdiction, and not in ATS suits against US companies.  Even in purely universal jurisdiction cases, the Court should respect exceptions to exhaustion recognized by international law.

An exhaustion requirement seems likely.  In the Kiobel oral argument on the extraterritorial reach of the ATS, three Justices likely to support extraterritorial reach — Ginsburg, Kagan and Sotomayor — asked questions sympathetic to an exhaustion requirement (Tss. at 8, 13-15).  In response, Paul Hoffman, plaintiffs’ counsel, appeared open to an exhaustion requirement (Tss. at 13-14).  No Justice or counsel spoke against an exhaustion requirement; even two Justices generally hostile to the plaintiffs – Alito and Scalia – seemed friendly to an exhaustion requirement (in the event extraterritorial ATS suits are allowed) (Tss. at 15, 31).

The most substantial brief on the exhaustion issue, favorably cited by Justice Sotomayor (Tss. at 12-13), is the amicus brief of the European Commission on behalf of the European Union.  The EU brief is generally excellent.  It correctly limits an exhaustion requirement to ATS cases whose exclusive jurisdictional basis under international law is universal jurisdiction (part A below).

However, its articulation of the exceptions to exhaustion in universal jurisdiction cases is imprecise (Part B below).  There is a resulting risk that the Court may saddle plaintiffs with a vague and overbroad exhaustion requirement.  This would undermine the very purpose of universal civil jurisdiction – to ensure that grave international crimes do not go unredressed.


Kiobel Roundtable: Protecting National Interests or Universal Ones?

by Meir Feder

[Meir Feder heads up the appeals and issues practice at the New York office of Jones Day.]

For anyone looking to yesterday’s oral argument to predict how the Court will resolve Kiobel—a dubious exercise in any event, as last Term’s health care case should remind us— yesterday’s argument was a mess. The Justices seemed skeptical of the positions of both parties (and, for that matter, equally skeptical of the Solicitor General’s middle ground), but no obvious alternative approach distinguished itself, either.

Much of the confusion doubtless stems from the unusual nature of the problem. It is difficult, perhaps impossible, to draw definitive answers about modern human rights litigation from the ATS itself or from the specific intentions of its enacters, given the fundamental changes—in the nature and scope of international law, and in prevalent understandings of the nature of the common law and the limited common law powers of federal courts—in the two-plus centuries since the ATS was enacted. And the Court’s one opinion on the ATS, Sosa v. Alvarez-Machain, is opaque on many of the key questions—announcing that any cause of action attendant to the ATS is a discretionary creation of federal common law, but (other than ruling out claims based on norms that lack definite content or widespread acceptance) providing little direction as to what factors should guide that discretion. As a result, it is not even clear how a Justice should go about answering the question in Kiobel, which makes the apparent lack of consensus at argument (and the difficulty in drawing conclusions from the questioning) unsurprising.

Nonetheless, there are at least two aspects of the oral argument that I think are worth highlighting. . .

Kiobel Roundtable: What is the Purpose of the ATS? Should That Matter?

by Julian Ku

I have very much enjoyed our guest commentary on Kiobel extraterritoriality issue and can’t resist adding my two cents.  In short, I am pretty dissatisfied with the arguments made by the petitioners, respondents and the United States government. I am not dissatisfied because the arguments are “wrong”, but because none seem to offer a persuasive theory of the purpose of the ATS.

Kiobel Roundtable: Who’s Afraid of Transitory Torts? Thoughts on Kiobel II

by Chimene Keitner

[Chimène I. Keitner, is a Visiting Professor of Law at the USC Gould School of Law and Professor of Law, University of California Hastings College of the Law.]

Personal jurisdiction ain’t what it used to be. As Justice Ginsburg noted (Tr. at 54), in the age of Goodyear Tire, multinational corporations can’t necessarily be sued everywhere for everything. But Shell’s message at oral argument on Monday was clear: we don’t want to rely on Goodyear Tire or on any other rule that gives a U.S. judge discretion over whether or not an ATS case goes forward. We want a categorical prohibition, period.

It’s fascinating listening to judges worry about the consequences of letting judges make decisions. Some of them seem downright determined to ensure their own irrelevance. They say: listen to Congress.

In this case, Congress spoke. It didn’t say very much. But Congress said that cases brought by aliens for international law violations should be brought in federal court, not state court. Shell wants to send them back to state court (Tr. at 32).

In Ackerson v. Erie R. Co., 31 N.J.L. 309, 310-11 (1865), the New Jersey Supreme Court stated that “[i]t is, in the international code, the well established doctrine, that every nation may rightfully exercise jurisdiction over all persons within its domains, with regard to matters purely personal,” and that transitory actions “are universally founded on the supposed violation of rights, which, in contemplation of law, have no locality.” This case didn’t come up in oral argument, but the language nicely captures the idea…

Kiobel Roundtable: The Supreme Court Gropes Toward a Sensible Solution

by William S. Dodge

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs of the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

My thanks to Opinio Juris for inviting me to guest blog on the reargument in Kiobel v. Royal Dutch Petroleum Co., which I attended on Monday. As most readers likely know, the Supreme Court originally granted cert to decide whether corporations may be sued for human rights violations under the Alien Tort Statute (ATS) as natural persons may be. But after oral argument last February, the Court asked the parties to address the additional question of whether, and under what circumstances, the ATS applies to conduct in foreign countries. Because almost all claims brought under the ATS to date—including the Second Circuit’s seminal 1980 decision in Filartiga v.Pena-Irala and the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain—have involved alleged conduct abroad, the Court’s additional question raised the stakes for human rights litigation considerably.

Respondents and many of their amici urged the Court to apply the presumption against extraterritoriality to the ATS and limit causes of action exclusively to violations of international law in the United States. But that argument appeared to gain little traction with the Court on Monday. Chief Justice Roberts expressed skepticism when Respondents’ counsel Kathleen Sullivan argued that piracy on the high seas was not within the original scope of the ATS, while Justice Scalia (who wrote the Court’s most recent decision applying the presumption against extraterritoriality in Morrison v. National Australia Bank) said he did not know of any cases applying the presumption only to the territory of a foreign country and not to the high seas. Sullivan’s assertion that “[e]very single founding era precedent that stimulated the ATS or came soon in its aftermath involved international law violations alleged to have occurred on U.S. soil or in U.S. waters” was quickly rebutted by Justice Breyer, invoking Attorney General Bradford’s 1795 opinion that expressed “no doubt” that a civil suit could be brought under the ATS for violations of the law of nations in Sierra Leone.

Meanwhile, Justice Kagan offered a variation of the 1784 Marbois incident, hypothesizing that the French ambassador to Britain was attacked in London by an American citizen who sought refuge in the United States and suggesting that…

Kiobel Roundtable: The Alien Tort Statute, Kiobel, and Extraterritoriality

by Curtis Bradley

[Curtis Bradley is the William Van Alstyne Professor of Law at Duke University.]

The Alien Tort Statute (ATS) is one-sentence long, was enacted more than 200 years ago, has essentially no drafting history, and was relatively unknown before the Second Circuit’s seminal Filartiga decision in 1980.  As a result, although it is obvious that the ATS was meant to provide the federal courts with jurisdiction over certain suits brought by aliens concerning torts in violation of international law, it is difficult to discern precisely what sort of suits Congress had in mind.  Determining how such a statute should apply to modern conditions, in the light of fundamental changes in international law and in the nature of U.S. common law since the statute’s enactment, is even more challenging, to say the least.

We do know that the ATS was enacted at a time when the authority of nations to regulate conduct was thought to be highly territorial, especially with respect to the conduct of foreign citizens.  We also know that the most prominent mention of the ATS in the early years after it was enacted—in Attorney General Bradford’s 1795 opinion concerning the involvement of U.S. citizens in an attack on the British colony in Sierra Leone—involved a situation in which the United States was alleged to have international responsibility for the torts (as I discussed here).  In addition, we know that the United States would not then—and still does not—have international responsibility for torts committed by foreign citizens (or corporations) on foreign soil.  These and related considerations have led a number of scholars to conclude that the ATS was not designed for a case like Kiobel, where the United States has no responsibility for the alleged tort, and where applying the statute raises extraterritoriality concerns.

Supporters of broad ATS litigation have responded that this line of argumentation is “purposive” and improperly neglects the ATS’s plain language.  One problem with this critique is that the plain language of the ATS provides no support for any federal cause of action, let alone an extraterritorial one.  As a result, supporters of broad ATS litigation do not, in fact, rely simply on the text of the ATS.  They argue, as did the majority of the Supreme Court in Sosa v. Alvarez-Machain, that the ATS was implicitly designed to allow certain tort claims to be brought without a separate statutory cause of action, and they cite various historical materials and events in support of this hypothesis.  To address the requirement in modern doctrine of a positive law source for the cause of action, they also contend, as did the Court in Sosa, that the ATS should be construed as authorizing federal common law claims for certain torts that violate international law.  The Court in Sosa explained that it was adopting this construction in order to give effect to the “ambient law of the era” in which the ATS was enacted.  Whatever one may think about this approach to statutory construction, it is not based solely on plain language.

In any event, there is nothing improperly purposivist about applying a limiting presumption such as the presumption against extraterritoriality (which was applied in Morrison v. National Australia Bank (2010)), or the softer presumption against extraterritorial applications that would involve an “unreasonable interference with the sovereign authority of other nations” (applied in F. Hoffman-La Roche v. Empagran (2004)).  Among other things, such a presumption can prompt Congress to provide additional policy guidance.  The ATS would seem to be a prime candidate for such prompting.  After all, Congress’s intent in the ATS is obscure, and, as noted, the text does not even mention causes of action, let alone define their proper scope.  Moreover, extraterritorial application of this statute, by focusing on alleged tortious conduct by foreign governments and their supporters abroad, has a high potential for creating foreign relations friction. A number of the briefs filed in Kiobel emphasize this concern, including the latest brief filed by the Executive Branch, a brief filed by the United Kingdom and The Netherlands, and a brief filed by former State Department Legal Advisers.

It has been argued that an extraterritorial limiting presumption should not apply to the ATS because…

Kiobel Oral Argument: Why the ATS as We Know it is in Jeopardy

by Roger Alford

My initial impression of the Kiobel oral argument is that the Supreme Court is going to do its best to do an historical analysis of the ATS and use that history to find ways to limit its scope. It could do so by holding that the ATS does not apply extraterritorially, or that it does not apply unless there is some U.S. nexus, or that it does not apply to corporations, or that it does not apply without exhausting local remedies, or that it does not apply to certain types of conduct (such as aiding and abetting). But one way or the other, I predict that the ATS as it currently is applied by lower courts will be severely limited.

I say that by reading the tea leaves of the Justices’ votes that are up for grabs. Justice Kennedy asked, among other things, about whether there was a U.S. nexus in this case (page 4), about risks of reciprocal claims brought against U.S. corporations in foreign courts (page 5), about the risk of ATS litigation causing complications with foreign governments (page 10), and about the scope of the presumption against extraterritoriality (p. 37). Several Justices, including Chief Justice Roberts, asked about the possibility of vindicating one’s rights in another forum that has a closer connection to the events or the parties, including the defendant’s domiciliary forum (the United Kingdom or the Netherlands) or the place of injury (Nigeria). None of the swing Justices seemed interested in the concept of universal jurisdiction, except to preserve the Sosa paradigm that embraced piracy on the high seas as an actionable international law violation.

The good news for the plaintiffs is that Paul Hoffman did an exceptional job of trying to make the ATS sound unexceptional. One of his best arguments was that courts have all the tools they need to address the concerns about friction with foreign nations, including the political question doctrine, the act of state doctrine, international comity, forum non conveniens, and personal jurisdiction. In other words, these concerns about tensions with foreign nations are legitimate, but courts already have developed doctrines sensitive to those concerns. When pressed, he was even willing to make more concessions, such as the possible need to exhaust local remedies. The bad news is that the swing Justices did not appear to be buying the argument that the arrows currently in the quivers of the courts are enough to limit the reach of the ATS.

As for extraterritoriality, Hoffmann’s key argument was that the presumption against extraterritoriality is overcome where the purpose of the statute requires its extraterritorial application. The presumption, he argued, “would undermine the very purposes of the statute” which is “the best evidence that we have about what it meant in the era” (page 52). He cogently cited the Bradford opinion as an historical example of what the drafters were thinking in this regard.

To be sure, there is ample Supreme Court case law to support an argument that sometimes the purpose of a statute requires its extraterritorial application. See United States v. Bowman, Blackmer v. United States, United States v. Flores, Cook v. Tait, Browder v. United States. One way to articulate this is to say that the clear intent of Congress is expressed in drafting a statute that necessarily requires extraterritorial application. Whether or not the swing Justices will interpret the ATS in this fashion is anyone’s guess.

Kathleen Sullivan’s key argument was that the presumption against extraterritoriality required clear congressional intent, which she argued was lacking in this case. She then fumbled by trying to argue that the Court’s recognition of piracy in Sosa did not undercut this argument. She should have stuck with her argument about the purpose of the presumption against extraterritoriality—to avoid encroachment on the sovereign prerogatives of other nations to regulate conduct in their territory—and conceded the point about piracy on the high seas as falling within the scope of the ATS. Instead, she argued that pirate ships are mini-foreign countries and tried to argue that that the presumption applied even to pirate ships. It was not a fatal mistake, but it was painful to read.

Sullivan also struggled with Justice Kagan’s creative reverse Marbois question, (page 30-32) which aptly addresses the possibility that foreign tensions can arise from an American’s misconduct against a foreign national on foreign soil, just as much as an American’s misconduct on domestic soil. Sullivan argued that other remedies were available, such as extradition or state law torts for assault. That may be true, but that is also true for an American’s misconduct on domestic soil. Her argument didn’t address the critical question of why Congress believed the ATS was necessary in the first place, and why it should only apply to domestic misconduct by Americans. If concern about foreign friction is what is driving the ATS, she should have taken a page from Hoffman and conceded points that were not essential to her case, such as the possibility that the ATS applied to foreign conduct by an American non-corporate defendant. (That seemed to be Solicitor General Verrilli’s position: that the ATS should only apply where there is a clear U.S. nexus, such as misconduct by an American national on foreign soil or misconduct by a foreign national on U.S. soil.)

So I predict that the ATS as we know it will be curtailed. I don’t know exactly how it will be curtailed, but based on the oral argument today I predict that the future of foreign plaintiffs using the ATS to sue foreign corporations for conduct on foreign soil is in serious jeopardy.