The Obama Administration urged the Supreme Court on Thursday to close the U.S. courts to most lawsuits involving claims that a foreign corporation helped a foreign government engage in human rights abuses in that country. While arguing that the door to American courts should be left somewhat ajar to allow some abuse claims, the options that would remain would appear to be quite narrow, with a variety of legal hurdles to overcome. The government’s new reaction to lawsuits under the Alien Tort Statute, first enacted in 1789, was expressed in a brief filed in Kiobel v. Royal Dutch Petroleum (docket 10-1491). That specific lawsuit, the brief argued, should not be permitted.
That case, heard by the Justices in February, is due to be reheard in the new Term starting October 1. The new issue to be explored then — a question raised by the Court itself in March– is whether and under what circumstances an ATS lawsuit should be allowed based on international law violations that had occurred in a foreign land. Technically, that is the issue of “extraterritorial application” of the ATS. Previously, the Kiobel case had focused only on whether corporations could be sued in U.S. courts under the ATS for foreign violations of global law.
The supplemental government brief offered a complex argument, attempting to move between a sharply negative view of lawsuits by private individuals that focus on foreign conduct, and an unwillingness to say that no ATS lawsuit should ever be allowed in a U.S. court for overseas breaches of international law. The views appeared to have been strongly influenced by State Department concerns that opening U.S. courts for many claims that involved foreign government actions would disrupt foreign policy and complicate diplomatic relations, and perhaps expose the U.S. to reprisals abroad. The ultimate conclusion was that the Court need not resolve all issues surrounding ATS claims in this one lawsuit, but that the Justices should embrace some controlling principles that generally would work against U.S. courts’ fashioning new ATS claims for breaches of international law.
However, there was no mistaking the clarity of this statement: American courts “should not create a cause of action that challenges the actions of a foreign sovereign in its own territory, where the [sued party] is a foreign corporation of a third country that allegedly aided and abetted the foreign sovereign’s conduct.” Beyond that, the brief added, the Court should not go, leaving open the questions of whether an ATS lawsuit could proceed against a U.S. national or U.S. corporation, whether such a suit could be brought where the alleged misconduct of a foreign government had occurred outside its own territory, or where the lawsuit targeted the conduct of others within the U.S. or on the high seas.
The brief did claim that the Obama Administration had softened the federal government’s past opposition to ATS lawsuits. It noted that the government “in recent years has advanced a more categorical rule against extraterritoriality before this Court and the courts of appeals,” referring to one brief in 2004 in which the Justice Department had argued that no lawsuit should be recognized under the ATS for the conduct of foreign individuals in foreign countries, and another brief in 2009 arguing against an ATS lawsuit aimed at conduct occurring in a foreign country. The new brief added: “As explained in this brief, the government urges the Court not to adopt such a categorical rule here.”
Even so, the opening that the new brief would leave for ATS claims was tightly circumscribed. It was focused, as is the Kiobel case in particular, on when the courts should create, on their own initiative, a right to sue for violations of international law. Accepting that Congress has wider power to create a right to sue for foreign abuses, as the lawmakers did in 1991 in the Torture Victim Protection Act, the brief suggested that there should be a “general assumption” that creating a right to sue for private individuals under ATS was “better left to legislative judgment.”
The filing did accept (and noted that the State Department, too, had accepted) that a right to sue had been properly recognized by the Second Circuit Court in 1980, in the case of Filartiga v. Pena-Irala. That was the decision that is generally credited with launching a wave of new lawsuits under the ATS after that law had languished for decades. But note the key features of the Filartiga ruling that the Justice and State Departments now endorse as valid claims: while that case involved a claim by Paraguayan individuals against a Paraguayan individual for abuses committed in that Latin American country, the claim was for torture, and the sued individual had actually been found living in the U.S., and that suggested that maybe the U.S. government could be accused of harboring him. And, the brief added, those Paraguayan individuals if suing now would be able to due so under the anti-torture law, the TVPA.
Turning to the Kiobel case itself, the new filing flatly urged that it be rejected. It involved, the brief noted, Nigerian nationals suing Dutch and British corporations for allegedly helping the Nigerian military and police forces to commit torture, killings, “crimes against humanity,” and arbitrary arrest and detention — all of which had occurred inside Nigeria. In those circumstances, the brief said, “the United States cannot be thought responsible in the eyes of the international community for affording a remedy for the company’s actions, while the nations directly concerned could.”
Even when circumstances might arise that would justify bringing an ATS lawsuit in the U.S. courts for abuses that occurred in foreign lands, the brief said, there should be strict requirements that those who sued should first have to have tried to get some legal relief in the courts or the government of that country, and, if there is an international claims agency available, to try for a remedy there. Such lawsuits, it added, also should be limited by the notion that a U.S. court might well be an inconvenient forum, in which it was more difficult or costly for a foreign government or foreign corporation to mount a defense many miles from its own shores.
Those two limiting requirements should be imposed “at the outset of the litigation,” and should be applied “with special force,” the brief argued. In particular, when the link to the U.S. “is slight,” the filing contended, “a U.S. court applying U.S. law should be a forum of last resort, if available at all.”
The Kiobel plaintiffs have already filed their supplemental brief on the overseas reach of ATS, urging that the Justices allow such an applications of that law in their case. The two oil companies sued in the case are due to file their briefs on that issue in August. After that, the Kiobel parties will have a chance to fie a reply brief.
The Justice Department has been taking part in the Kiobel case since briefing began. In an earlier brief filed in December, it supported the Kiobel plaintiffs and urged the Court to rule that corporations could be sued under the ATS for overseas human rights abuses, saying there was nothing in the history of that old law that provided a basis for applying it only to natural persons. Its new position against the Kiobel claims is bound to draw criticism of the government from human rights activists, who had been hoping that the Justice Department would not file a brief against the claims in this case.
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