Commentary: What’s left of the Alien Tort Statute?

SCOTUSblog is pleased to have reactions from supporters of both sides to yesterday’s decision in Kiobel v. Royal Dutch Petroleum.  This post is written by Anton Metlitsky, who is counsel to Rio Tinto, which filed an amicus brief in support of the respondents in this case.

The Alien Tort Statute (“ATS”), which grants district courts jurisdiction over “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,” was enacted in 1789, but lay essentially dormant for two centuries.  In 1980, however, the Second Circuit held in Filartiga v. Pena-Irala, that the ATS allows aliens subjected by foreign officials to violations of modern-day international human rights norms – in that case, torture – to bring suit for damages in U.S. courts.  The Second Circuit’s position was subsequently adopted by several other courts.  But ATS litigation did not proliferate broadly until the late 1990s, when plaintiffs began to sue not just individuals alleged to have directly violated human rights norms, but also deep-pocketed corporations that were usually alleged to have aided and abetted such violations.  Since then, ATS defendants have contended that to the extent private actions under the ATS should be allowed at all, they should be subject to significant limitations, including the limitation that ATS suits should not be allowed when the alleged human rights violation took place within the territory of a foreign sovereign.  Today’s decision in Kiobel v. Royal Dutch Petroleum can only be seen as a broad validation of that position.  To understand the opinion and its likely implications, however, it is important to see how we got to this point.

As noted, the Second Circuit revived the ATS in 1980.  But the Supreme Court had no occasion to consider the scope of that provision until 2004, in Sosa v. Alvarez-Machain. There, the Court held that while the ATS was itself a purely jurisdictional provision, it also authorized federal courts, under federal common law, to recognize a private damages action by aliens for violations of “a very limited category” of universally recognized and clearly defined norms of international human-rights law.  To that extent, Sosa was consistent with Filartiga.

But while the precondition of clear definition and universal recognition was enough to resolve Sosa, the Court explained that ATS actions would be subject to other limitations as well: “our demanding standard of definition,” the Court noted, “must be met to raise even the possibility of a private cause of action.”  And while Sosa did not go into detail about what those other limitations would be, it provided a general guide to approaching that question.

In particular, the Court explained that courts must exercise “great caution” before recognizing federal-common-law actions under the ATS.  A cautious approach was necessary for several reasons, including the limited nature of federal common law generally and the Court’s general reluctance to imply private causes of action from congressional silence.  Most important for present purposes, the Court emphasized that “the potential implications for the foreign relations of the United States of recognizing such causes should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.”

Kiobel was the Court’s second opportunity to articulate the limits that apply to federal-common-law actions authorized by the ATS.  While certiorari was originally granted to determine whether corporations could be sued under the ATS, the Court after oral argument ordered supplemental briefing and argument on a new question: to what extent could courts recognize a cause of action under the ATS for conduct that occurred within the territory of a foreign sovereign?

In answering that question, the Court stayed true to Sosa’s admonition that courts approach questions concerning the scope of ATS actions with “great caution.”  Notably, the Court unanimously concluded that courts may not recognize an action in the circumstances of this case, viz., a suit by aliens against foreign corporations for allegedly aiding and abetting the commission of human rights abuses on foreign soil.  The Chief Justice’s opinion for the Court and Justice Breyer’s concurrence in the judgment did, however, disagree on the proper mode of analysis for reaching that conclusion.  And while their debate was principally methodological, the distinction between the the Chief Justice’s  and Justice Breyer’s approaches will have important practical consequences for ATS litigation going forward.

In answering when and under what circumstances an ATS action can be recognized for conduct occurring abroad, Justice Breyer (joined by Justices Ginsburg, Sotomayor, and Kagan) would have relied on a multi-factor approach based in large part on international-law principles of prescriptive jurisdiction – i.e., the rules governing when a sovereign may apply its own law to conduct that occurs outside its borders.  Applying that approach, Justice Breyer would have recognized an ATS action “where (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.”  This case did not satisfy that standard, according to Justice Breyer, because the plaintiffs and defendants are foreign nationals, the relevant conduct occurred abroad, and plaintiffs allege only that defendants aided and abetted the violation of human rights norms, not that they violate those norms themselves.

The Chief Justice’s opinion, while reaching the same conclusion on the facts of this case, approached the question from a different perspective.  Rather than adopting a multi-factor approach, the Chief Justice relied on the general presumption against the extension of U.S. law to conduct occurring abroad.  While the ATS is a jurisdictional statute that does not itself proscribe conduct, the Court explained, “the principles underlying the [presumption against extraterritoriality] similarly constrain courts considering causes of action that may be brought under the ATS.”  Indeed, the principles underlying the general presumption against extraterritoriality – which is meant to avoid judicial interference with foreign relations by assuming that Congress did not mean to extend U.S. law extraterritorially absent a clear statement to the contrary – “are magnified in the context of the ATS, because the question is not what Congress has done but instead what courts may do.”  Noting that Sosa emphasized the need for “caution” because of “the danger of unwarranted judicial interference in the conduct of foreign policy,” the Court noted that “[t]hese concerns … are all the more pressing when the question is whether a cause of action under the ATS reaches conduct within the territory of another sovereign.”  And in applying the presumption against extraterritoriality to the relevant facts, the Court held that plaintiffs’ “case seeking relief for violations of the law of nations occurring outside the United States is barred.”

The practical difference between the the Chief Justice’s and Justice Breyer’s  methodologies is reflected in the sentence just quoted – the plaintiffs’ action “is barred” because it “seek[s] relief for violations of the law of nations occurring outside the United States.”  As explained earlier, while all agree that this case cannot go forward, Justice Breyer’s approach presumably would allow suits against U.S. corporations – i.e., when “the defendant is an American national” – whether or not the alleged human rights violation occurs abroad.  The majority opinion appears to squarely foreclose that result, because it focuses on where the relevant conduct occurred – i.e., whether the alleged “violation[] of the law of nations occur[red] outside the United States.”  From the majority’s perspective, the identity of the defendant is irrelevant.

That said, it appears that some questions under the ATS remain unanswered.  Justice Kennedy, who joined the majority opinion in full, also concurred separately, stating that “the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute,” and that this is in Justice Kennedy’s view a “proper disposition.”  Justice Kennedy does not say what he believes those “significant questions” to be, but based on his questions in oral argument, Justice Kennedy appears concerned that actions of the sort at issue in Filartiga – i.e., actions by aliens against individual direct perpetrators of human rights abuses abroad – be preserved.  That conclusion is reinforced by the concurrence’s statement that Congress addressed “[m]any serious concerns with respect to human rights abuses committed abroad” by enacting the Torture Victim Protection Act of 1991 (“TVPA”).  That statute was enacted in large part to provide an express cause of action in cases like Filartiga, but only authorizes suits for torture and extrajudicial killing, subject to important limitations (e.g., corporations may not be sued).  The TVPA does not, however, provide for actions based on other important human rights norms, such as genocide.  And Justice Kennedy cautions that “[o]ther cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today’s opinion,” and that the application of the presumption against extraterritoriality in such cases “may require further elaboration and exploration.”  Justice Kennedy’s concerns at oral argument with preserving Filartiga, combined with his invocation of the TVPA, suggest that he may be open in some circumstances to recognizing actions by aliens against individual direct perpetrators of human rights norms beyond those covered by the TVPA.

Thus, while Kiobel places significant limitations on ATS actions, this may not be the Supreme Court’s last word on the ATS’s scope.