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R.I.P. A.T.S.? How much of the Alien Tort Statute survives the Supreme Court’s Kiobel Decision?

This morn­ing, the Supreme Court dis­missed the human rights claims of a group of Niger­ian nation­als against Roy­al Dutch Petro­le­um (Shell) under the Alien Tort Statute (A.T.S.) in a 9–0 deci­sion, though the jus­tices split 5–4 as to the rea­son­ing. For the orig­i­nal opin­ion, see: Kio­bel v. Roy­al Dutch Petro­le­um Co., 569 U.S. ___ (2013)

Jus­tice Roberts deliv­ered the opin­ion of the Court on behalf of 5 jus­tices. First, the Court held that the pre­sump­tion against extrater­ri­to­ri­al­i­ty, explained with force in Mor­ri­son v. Nation­al Aus­tralia Bank, 561 U.S. ___ (2010), applies to the statute and the fed­er­al com­mon law cause of action under the statute. Sec­ond, the court found noth­ing in the statute’s lan­guage or his­to­ry to rebut the pre­sump­tion. Third, there are no facts to rebut the pre­sump­tion in the instant case. Fourth and final­ly, the Court jus­ti­fies its solu­tion as pre­vent­ing the ‘diplo­mat­ic strife’ that may arise from judi­cial inter­fer­ence in for­eign pol­i­cy, an area that is tra­di­tion­al­ly reserved to the polit­i­cal branch­es. The Court implied that even if the pri­ma­ry norm that cre­at­ed the cause of action might not cause strife, the judi­cial search for sec­ondary rules (such as cor­po­rate lia­bil­i­ty) may still do so.

Jus­tice Kennedy wrote a one para­graph con­cur­rence where­by he not­ed that the A.T.S. is not dead, and that the “prop­er imple­men­ta­tion of the pre­sump­tion against extrater­ri­to­r­i­al appli­ca­tion” could be revis­it­ed in the appro­pri­ate case. This seems to com­port with Roberts’s analy­sis of whether or not the pre­sump­tion applied in the instant case. Kennedy seems to be respond­ing to the last para­graph of the major­i­ty opin­ion, which states “even where the claims touch and con­cern the ter­ri­to­ry of the Unit­ed States, they must do so with suf­fi­cient force to dis­place the pre­sump­tion against extrater­ri­to­r­i­al appli­ca­tion.”

Jus­tice Ali­to, joined by Jus­tice Thomas, attempt­ed both to give more guid­ance to low­er courts on how to deter­mine when to rebut the pre­sump­tion and to link this deci­sion with the one in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the only oth­er Supreme Court opin­ion con­sid­er­ing the A.T.S. Ali­to sug­gests that the test for whether the pre­sump­tion applies is whether the “focus” of the statute was meant to apply ter­ri­to­ri­al­ly. The focus of the A.T.S., he con­cludes, is any con­duct that vio­lates “an inter­na­tion­al law norm that sat­is­fies Sosa’s require­ments of def­i­nite­ness and accep­tance among civ­i­lized nations”. There­fore, in order to rebut the pre­sump­tion against extrater­ri­to­ri­al­i­ty, a valid claim under the A.T.S. must allege con­duct that meets the Sosa def­i­nite­ness stan­dard and that occurred with­in the U.S.‘s domes­tic juris­dic­tion.

Jus­tice Breyer’s con­cur­rence, joined by Jus­tices Gins­burg, Sotomay­or, and Kagan, takes the argu­men­ta­tive tone of a dis­sent. Brey­er finds the statute’s ref­er­ences to “‘alien[s],’ ‘treat[ies],’ and ‘the law of nations’” suf­fi­cient indi­ca­tion to rebut the pre­sump­tion of extrater­ri­to­ri­al­i­ty. Fur­ther, he picks apart the majority’s sur­vey of his­to­ry. In par­tic­u­lar, he points out that the major­i­ty opin­ion “can­not wish [the] pira­cy exam­ple away”, espe­cial­ly as the Sosa court acknowl­edged that acts of pira­cy was one of the three inter­na­tion­al law norms def­i­nite­ly cov­ered by the A.T.S. In response to Roberts’s point that pira­cy occurred on the high seas and not in anoth­er State’s ter­ri­to­ry, Brey­er points to Supreme Court prece­dent find­ing that “a ship is like land, in that if falls with­in the juris­dic­tion of the nation whose flag it flies.” Fur­ther, Brey­er quotes the majority’s lan­guage that “Pirates were fair game wher­ev­er found, by any nation”. From this, he deduces a dif­fer­ent lim­i­ta­tion to dis­pose of the case. Rather than requir­ing that the offen­sive con­duct occur with­in the U.S.‘s juris­dic­tion, Brey­er would mere­ly require that “dis­tinct Amer­i­can inter­ests” be at issue. Such inter­ests are impli­cat­ed when the alleged acts took place on U.S. soil, when the defen­dant is Amer­i­can, or when dis­miss­ing the case would cre­ate a safe har­bor in the U.S. “for a tor­tur­er or oth­er com­mon ene­my of mankind.” Because Brey­er does not see an Amer­i­can inter­est at stake here, he joins the major­i­ty to dis­miss the case.

Despite Jus­tice Kennedy’s assur­ance that the deci­sion does not kill the A.T.S., it wipes out much of its caselaw. Where­as Breyer’s con­cur­rence would have upheld sem­i­nal cas­es like Filar­ti­ga and Mar­cos, the major­i­ty opin­ion essen­tial­ly vacates them. This goes well beyond the dreams of the defen­dants in this case, who had ini­tial­ly asked for cert only on the ques­tion of whether cor­po­ra­tions could be liable under inter­na­tion­al law. After rais­ing the extrater­ri­to­ri­al­i­ty issue sua sponte and demand­ing a rehear­ing, the Court has now over­ruled vir­tu­al­ly unan­i­mous find­ings in the low­er courts that the pre­sump­tion against extrater­ri­to­ri­al­i­ty did not apply to the A.T.S. See Flo­mo v. Fire­stone Nat­ur­al Rub­ber Co., 643 F.3d 1013 (7th Cir. 2011), Sarei v. Rio Tin­to PLC, 487 F.3d 1193 (9th Cir. 2007), and Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011).

In addi­tion to cur­tail­ing future A.T.S. lit­i­ga­tion, the major­i­ty opin­ion will have impor­tant ram­i­fi­ca­tions for the pre­sump­tion against extrater­ri­to­ri­al­i­ty. First, it is now clear that the pre­sump­tion relies on a ‘focus’ test. That is, the con­duct that is the focus of a par­tic­u­lar statute is the start of the pre­sump­tion analy­sis rather than any ‘effect’ on the U.S.

Sec­ond, the pre­sump­tion against extrater­ri­to­ri­al­i­ty now applies not just to statutes, but to judi­cial action. Because the Court decid­ed in Sosa that A.T.S. is strict­ly juris­dic­tion­al, the cause of action in any A.T.S. suit aris­es not under the statute, but rather fed­er­al com­mon law. This is trou­bling, because it is unclear what the pre­sump­tion means when applied to judi­cial action; for exam­ple, the analy­sis of leg­isla­tive his­to­ry and con­gres­sion­al intent is com­plete­ly inap­plic­a­ble when the judge mak­ing the inquiry is also mak­ing up the rule. Addi­tion­al­ly, it is unclear how far this pre­sump­tion goes. Does the pre­sump­tion against extrater­ri­to­ri­al­i­ty pro­hib­it judges from issu­ing anti-suit injunc­tions that apply abroad? Does the pre­sump­tion pro­hib­it cer­tain dis­cov­ery orders regard­ing infor­ma­tion abroad?

Third, the opin­ion seems to bifur­cate the analy­sis of the pre­sump­tion into ‘facial’ and ‘as applied’ stages. Con­fus­ing­ly, how­ev­er, the court did not make the sec­ond stage of this analy­sis clear, and there may be scope to insert the old ‘effects’ test here. Alter­na­tive­ly, this could be an oppor­tu­ni­ty to rec­on­cile the major­i­ty opin­ion with Breyer’s con­cur­rence; per­haps if a “dis­tinct Amer­i­can inter­est” were at stake in a par­tic­u­lar case, the Court would be sat­is­fied that the pre­sump­tion has been rebutted in that par­tic­u­lar case. Only Ali­to and Thomas sup­port­ed the notion that the offend­ing con­duct must occur on U.S. soil. The final para­graph of the major­i­ty opin­ion says that claims should “touch and con­cern the ter­ri­to­ry of the Unit­ed States”, which sounds like the old ‘effects’ test. While the tone of the opin­ion sug­gests that the Court has grown hos­tile to A.T.S. suits, the final para­graph of the major­i­ty opin­ion sug­gests that A.T.S. lit­i­ga­tion is not dead yet.

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