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Kiobel and the Weakening of Precedent: A Long Walk for a Short Drink

Published online by Cambridge University Press:  20 January 2017

Ralph G. Steinhardt
Ralph G. Steinhardt*
Affiliation:
The George Washington University Law School
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Extract

Kiobel v. Royal Dutch Petroleum Co. marks the second time in nine years that the Supreme Court has ruled unanimously that the Alien Tort Statute (ATS) does not provide jurisdiction in a high-profile human rights case, a sequence that might suggest an end to the gilded age of human rights litigation that began with Filártiga v. Peña-Irala. On closer analysis, however, Kiobel, like Sosa v. Alvarez-Machain before it, adopts a rhetoric of caution without foreclosing litigation that fits the Filártiga model. To the contrary, Sosa and Kiobel invite considerably more ATS litigation than they resolve or bar and therefore confirm Justice Antonin Scalia’s memorable encapsulation of the Court’s “Never Say Never Jurisprudence.” All four of the opinions in Kiobel confirm that multiple significant issues remain for future resolution, but it is unrealistic to expect answers on the basis of the Court’s decision because what is law in Kiobel isnt clear and what is clear in Kiobel isn’t law.

Type
Research Article
Information
American Journal of International Law , Volume 107 , Issue 4 , October 2013 , pp. 841 - 845
Copyright
Copyright © American Society of International Law 2013

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References

1 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013).

2 28 U.S.C. §1350 [hereinafter ATS].

3 Filártiga v. Peñã-Irala, 630 F.2d 876 (2d Cir. 1980). Filártiga established that the ATS could be used to advance certain human rights claims in U.S. courts, even if the abuse occurred abroad and involved exclusively non-American citizens, so long as the defendant was within the personal jurisdiction of the court.

4 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

5 Id. at 750 (Scalia, J., concurring) (“In today’s latest victory for its Never Say Never Jurisprudence, the Court ignores its own conclusion that the ATS provides only jurisdiction, wags a finger at the lower courts for going too far, and then—repeating the same formula the ambitious lower courts themselves have used—invites them to try again.”).

6 Foley Bros. Inc. v. Filardo, 336 U.S. 281 (1949).

7 Morrison v. Nat’l Austl. Bank Ltd., 130 S.Ct. 2869 (2010).

8 Sosa, 542 U.S. at 724; see also id. at 729 (“All Members of the Court agree that §1350 is only jurisdictional.”).

9 See, e.g., EEOC v. Arabian Am. Oil Co. (Aramco), 499 U.S. 244 (1991) (antidiscrimination law); F. Hoffmann–La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004) (antitrust); Morrison, 130 S.Ct. 2869 (securities regulation); Foley Bros., 336 U.S. 281 (labor law). Each of these cases rejected the projection of substantive U.S. regulation into foreign territories and held that U.S. standards could not govern foreign conduct by foreigners in the absence of a clear congressional directive to the contrary.

10 Sosa, 542 U.S. at 729.

11 Id. at 725. Under Sosa, that part of U.S. law that consists of federal common law comes into ATS litigation not as a substantive regulation applied abroad but in recognition of a cause of action that is defined by the law of nations.

12 See, e.g., Filártiga v. Peñá-Irala, 630 F.2d 876, 885–86 (2d Cir. 1980); In re Estate of Marcos, Human Rights Litig., 978 F.2d 493, 500 (9th Cir. 1992) (“We are constrained by what §1350 shows on its face: no limitations as to the citizenship of the defendant or the locus of the injury.”).

13 See, e.g., Sareiv. Rio Tinto, PLC, 671 F.3d 736, 745–47(9th Cir. 2011) (en banc); Doev. Exxon Mobil Corp., 654 F.3d 11, 20–28 (D.C. Cir. 2011); Flomo v. Firestone Natural Rubber Co., 643 F.2d 1013, 1025 (7th Cir. 2011). From this perspective, far from violating international law restricting the application of domestic law, ATS cases in the Filártiga mold should be viewed as enforcement of the modest body of international norms that Sosa acknowledges.

14 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1669 (2013).

15 The procedural consequence is that ATS claims in the future must be tested on a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as distinct from a challenge to subject matter jurisdiction under Rule 12(b)(1), as has traditionally been the case.

16 Kiobel, 133 S.Ct. at 1669.

17 See, e.g., Elemary v. Holzmann, 533 F.Supp.2d 116, 123 (D.D.C. 2008) (“A federal court’s jurisdiction over a person, may be either general—adjudicatory authority to entertain a suit against a defendant without regard to the claim’s relationship vel non to the defendant’s forum-linked activity—or specific—authority to entertain controversies based on acts of a defendant that touch and concern the forum” (internal quotation marks and citation omitted) (emphasis added).).

18 In addition to Morrison, Aramco, and F. Hoffmann–La Roche Ltd., see Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 454 (2007). But see Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993).

19 International standards governing the jurisdiction to prescribe apply by analogy to the post-Kiobel “touch and concern” analysis because technically the ATS is not an exercise in jurisdiction to prescribe. The securities laws in Morrison were such an exercise, but Sosa established that the ATS recognizes only claims arising out of a violation of international law. Other international law doctrines may also shed light by analogy on the kinds of claims that touch and concern the United States, including state responsibility, jurisdiction to adjudicate, and diplomatic protection.

20 In re Estate of Marcos, Human Rights Litig., 978 F.2d 493 (9th Cir. 1992).

21 In the decision below, the Second Circuit held that the managers or directors or employees of the corporation do bear obligations under international law. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 122 (2d Cir. 2010) (“[N]othing in this opinion limits or forecloses suits under the ATS against the individual perpetrators of violations of customary international law—including the employees, managers, officers, and directors of a corporation—as well as anyone who purposefully aids and abets a violation of customary international law.”).

22 Kiobel, 133 S.Ct. at 1670 (Alito & Thomas, JJ., concurring).

23 When precisely the same “extraterritoriality” argument was made inSosa, see, for example, Brief for the United States as Respondent Supporting Petitioner, Sosav.Alvarez-Machain, 542 U.S. 692 (2004) (No. 03-339), available at http://www.justice.gov/osg/briefs/2003/3mer/2mer/2003-0339.mer.aa.pdf, the Supreme Court cited with approval a variety of foreign-cubed cases against individuals, alleging conduct that occurred abroad, applying the ATS to causes of action that arose abroad, every one of them a foreign-cubed case. Sosa, 542 U.S. at 732–33.

24 Supplemental Brief for the United States as Amicus Curiae in Partial Support of Affirmance at 19–20, Kiobel v. Royal Dutch Petroleum Co.,133 S.Ct. 1659 (2013) (No. 10-1491), available at http://sblog.s3.amazonaws.com/wp-content/uploads/2012/06/Kiobel-US-supp-brief-6-13-12.pdf.

25 Every other circuit court to address the issue of whether corporations could in principle face liability under the ATS had disagreed with the Second Circuit’s conclusion in Kiobel.See Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008); Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011); Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011); Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011), vacated and remanded on other grounds, 133 S.Ct. 1995 (mem. op.), remanded to 722 F.3d 1109 (9th Cir. 2013) (en banc) (affirming the district court’s dismissal of the complaint, which had been based on defects in the case, having nothing in principle to do with corporate immunity under the ATS).

26 ICJ Statute, Art. 38(1)(c); see also 1 Restatement (Third) of the Foreign Relations Law of the United States §102(1)(c) (1987>) (“A rule of international law is one that has been accepted as such by the international community of states... by derivation from general principles common to the major legal systems of the world.”).

27 Doe v. Unocal Corp., 963 F.Supp. 880 (C.D. Cal. 1997), aff’d in part and rev’d in part, 395 F.3d 932 (9th Cir. 2002).

28 United States v. Alvarez-Machain, 504 U.S. 655 (1992).

29 Medellín v. Texas, 552 U.S. 491 (2008).

30 See, in this Agora, Zachary D. Clopton, Kiobel and the Law of Nations, available at www.asil.org/AJILUnbound/KiobelAgora.

31 On the essential transformation of modern international law from a negative code of abstentions into a code of affirmative and mutual obligations, see Wolfgang Friedmann, The Changing Structure of Inter National Law 62 (1964).