Sidestepping corporate liability, Supreme Court shifts focus of Kiobel case to extraterritoriality

(Marco Simons is Legal Director of EarthRights International.  He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)

Last week I blogged about the Kiobel v. Royal Dutch Petroleum case, in which the Supreme Court was considering whether corporations could be sued for complicity in serious human rights abuses under the Alien Tort Statute (ATS). I noted that some scholars and amici were urging the Supreme Court to decide the case on other grounds; namely, that the ATS was limited to suits against U.S. citizens.

On Monday the Supreme Court issued a rare reargument order in Kiobel, directing the parties to re-brief and argue next Term the question of “[w]hether and under what circumstances” the ATS allows suits for abuses “occurring within the territory of a sovereign other than the United States.”

This is a significant development, for several reasons, although it’s probably not as earth-shattering as some have suggested. First, it’s noteworthy what’s not in the order – namely, no concern about the constitutional jurisdiction issue that I discussed earlier, even though Justice Alito briefly alluded to that issue during the argument. (See page 50 of the transcript.) And of course, constitutional jurisdiction would be prior to any other issue the Court considers.

Second, this order may suggest that the Court is unwilling to dismiss Kiobel on the basis of corporate immunity. There’s no reason that extraterritoriality necessarily needs to be decided first, unless it’s jurisdictional (which it’s probably not) and corporate liability is a merits question (in which case that would be reason enough for remand, since one of questions presented in Kiobel was whether the Second Circuit properly treated corporate liability as jurisdictional).

Third, it’s important that the Court is taking the step of ordering full briefing on this issue rather than just deciding it. That’s good for the petitioners, because right now nearly all the briefing on this point – extraterritoriality and related issues – comes from the respondents and their amici. EarthRights International’s own amicus brief did address extraterritoriality briefly, but in large part the petitioners and their amici addressed the question actually presented – corporate liability – while the respondents and their amici raised a whole host of other issues that the petitioners had little opportunity to respond to.

Fourth, the phrase “under what circumstances” is probably more significant than the basic question of extraterritoriality. There’s almost no chance that the Court would decide that the ATS doesn’t reach violations of international law in other countries. The modern use of the ATS in human rights cases began with cases such as Filartiga v. Pena-Irala, in which a Paraguayan torturer was found in the US and sued by his victims for committing torture in Paraguay. And in Sosa v. Alvarez-Machain in 2004, the Supreme Court (including Justice Kennedy) generally approved of this line of cases.

Justice Kennedy has shown no inclination to revisit that conclusion. At the argument (pages 12-14 of the transcript), when Justice Alito questioned whether Congress intended suits to be brought under the ATS arising outside the US, Justice Ginsburg responded:

That sounds very much like Filartiga. And I thought that — that Sosa accepted that Filartiga would be a viable action under the tort claims act.

Justice Kennedy then chimed in:

But I agree that we can assume that Filartiga is a binding and important precedent for the Second Circuit. But in that case the only place they could sue was in the United States. He was an individual. He was walking down the streets of New York, and the victim saw him walking down the streets of New York and brought the suit.
In this case, the corporations have residences and presence in many other countries where they have much more — many more contacts than here.

If Kennedy’s comment is any indication of why the Court issued the reargument order, it’s not about extraterritoriality per se; there’s no way to rule against extraterritorial ATS claims without wiping out the Filartiga line, and Kennedy doesn’t want to do that.

But if the Court starts from the principle that the ATS is not limited in its territorial reach, the ordinary rules of U.S. jurisdiction and procedure should answer the “under what circumstances” question. Kennedy’s point about the defendant corporations having greater contacts in other countries is typically addressed through the forum non conveniens doctrine, which applies in ATS cases. And of course, no case can be brought against a foreign defendant without satisfying the minimum contacts necessary for U.S. personal jurisdiction.

This all makes sense, because if the scope of the ATS were limited in some other way, it would simply leave cases to state courts. Since the founding, it’s been accepted that common-law courts can hear “transitory” tort cases arising anywhere in world against defendants who are present in the forum; in Federalist 82, for example, Hamilton noted that “The judiciary power of every government looks beyond its own local or  municipal laws, and in civil cases lays hold of all subjects of  litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe.” The Supreme Court agreed in 1843 in McKenna v. Fisk,  noting that “the courts in England have been open in cases of trespass other than trespass upon real property, to foreigners as well as to subjects and to foreigners against foreigners when found in England, for trespasses committed within the realm and out of the realm or within or without the King’s foreign dominions.”

Since one of the purposes of the ATS was to allow federal courts to hear cases implicating international law when those cases would otherwise be heard in state courts, the fact that state courts are empowered to hear cases by “foreigners against foreigners” for torts committed “out of the realm” suggests that the federal courts should not be subject to any special jurisdictional limitations under the ATS. Otherwise, some cases involving violations of the law of nations could be left only to state courts, thwarting Congress’ original intent.

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