Alien Tort Statute lives to die another day

kiobelPerhaps the only surprise in yesterday’s ruling in Kiobel v. Royal Dutch Petroleum was the vote: the long-running lawsuit, brought by Nigerian-born U.S. asylees, was rejected unanimously by the 9 Justices of the U.S. Supreme Court.

The bottom-line outcome (though not the vote margin) could be read on the wall 13 months ago, when the Court – having just heard argument on the question of whether corporations could be sued under the statute – announced that it would hear reargument on this question:

‘Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.’

As I’d noted ‘way back in 2010, the question became ripe when the Court, in a securities judgment called Morrison v. National Bank Australia Limited, broadly reaffirmed the notion that absent clear statement to the contrary, all acts of Congress should be presumed to apply only within the borders of the United States.

In many respects, the rather terse, 14-page opinion of the Court by Chief Justice John G. Roberts, Jr. does little more than state that this presumption of extraterritoriality applies to suits under the circa-1789 statute at issue, the 33 words of which –

‘The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.’

– include no explicit statement one way or another. Much is left for future litigation, with various opinions offering glimmers of fact patterns that might, to adopt the words of the Court (p. 14), operate “with sufficient force to displace the presumption against extraterritorial application”:

► Roberts’ own opinion concludes by stating:

‘On these facts, all the relevant conduct took place outside the United States. … Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. …’

The sentences permit the inference that the outcome would not be predetermined if some “relevant conduct” occurred within the United States and/or if the corporate defendant were chartered in or otherwise operated extensively in the United States, to a degree greater than Shell.

► The 4 Justices whom many expected to dissent, though they agreed with rejection of the suit in Kiobel, set out a 15-page concurrence in the judgment positing a framework for situations that might be actionable notwithstanding the newly reaffirmed presumption against extraterritoriality. Justice Stephen G. Breyer thus wrote – in an opinion joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan – that jurisdiction would lie if:

‘(1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest …’

National interest, this exceptionally American opinion stated,

‘includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.’

► The Court’s perennial swing vote did not expressly endorse the above 3-part test. Nevertheless, Justice Anthony M. Kennedy, in a solo concurrence, underscored that Roberts’ opinion

‘is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.’

Kennedy noted that the decision in Kiobel does not affect fact patterns falling within the scope of the Torture Victim Protection Act of 1991. Even allegations of human rights abuses not covered by TVPA, yet not fully foreclosed by Kiobel, await additional litigation. As Kennedy put it:

‘[I]n those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.’

In short: Dealt a harsh blow yesterday, some litigation under the Alien Tort Statute lives on, though perhaps just to die another day.

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