Commentary: Why the Court unanimously jettisoned thirty years of lower court precedent (and what that can tell us about how to read Kiobel)
SCOTUSblog is pleased to have reactions from supporters of both sides to this week’s decision in Kiobel v. Royal Dutch Petroleum. This post is written by Meir Feder of Jones Day. Mr. Feder served as counsel to Professors of International Law, Foreign Relations Law and Federal Jurisdiction on an amicus brief in support of the respondents in this case.
For more than thirty years, since the Second Circuit’s 1980 decision in Filartiga v. Pena-Irala (and more recently the 2004 Supreme Court decision in Sosa v. Alvarez-Machain), the lower courts have interpreted the Alien Tort Statute (“ATS”) as giving rise to a global remedy for international law violations. The Supreme Court’s decision in Kiobel not only rejected that seemingly entrenched understanding of the ATS as creating a global cause of action, but did so unanimously. While splitting five to four over how close a connection would be required, the Justices all agreed that claims without some significant connection to the United States are not actionable under the ATS, and that the Kiobel plaintiffs’ claims against foreign defendants based on the actions of a foreign government in its own territory should therefore be dismissed.
The unanimous rejection of a view so firmly established in the lower courts may seem surprising. And yet, at the risk of indulging in 20/20 hindsight, I think that rejection was close to inevitable – at least once the Court decided in Sosa that the ATS did not make all international law violations actionable, and that any cause of action would have to be created “if at all, with great caution,” in a manner akin to the creation of federal common law and implied rights of action. Once Sosa eliminated any assumption that all alleged international law violations were actionable (and imposed a burden of justification), it is hard to see on what basis the Court could have decided to recognize a cause of action for international law violations wholly unconnected to the United States. Certainly there is no evidence of any congressional intent to create a global cause of action for all victims of international law violations. The purpose of the ATS, as Sosa explained, was parochial – it was prompted by domestic incidents and aimed at conduct that threatened foreign retaliation if left unremedied. Whatever the current merit of the policy arguments for creating a damages action for overseas human rights violations, the Congress that passed the ATS never addressed that choice, or any remotely like it. And modern courts do not view it as their role to make such policy choices when Congress has not – particularly where the choices involve foreign policy, which is viewed as especially the province of the political branches.
What, then, explains the decades of lower court cases treating the ATS as exactly the kind of global cause of action the Supreme Court has now unanimously rejected? I think at least part of the answer relates to changing views of the power of the federal courts to create causes of action, and increasing recognition that creating a right of action is a distinct act of substantive lawmaking. Filartiga arrived near the end of a period of permissive attitudes toward the federal courts’ recognition of so-called “implied rights of action” to enforce substantive rights that were not accompanied by any express statutory private right of action. So long as the ATS provided federal jurisdiction and international law provided a substantive right, the leap to recognizing a damages action to enforce the right may not have seemed a great one. Those attitudes have changed significantly, and the federal courts are now much more restrictive about implied rights of action, and far more focused on what, if anything, might justify judicial creation or recognition of one. Sosa ultimately made the connection between these cases and the ATS, expressly tying the recognition of ATS-based causes of action to the creation of federal common law and implied rights of action, and focusing attention on the heavy burden of justification that must be satisfied before judges can make law in this way.
It is harder to explain how courts and litigants continued to assume the validity of a global cause of action after Sosa, which should have prompted them to ask whether there was a convincing basis for judicially creating such a cause of action. Many seem to have read into the Sosa Court’s judicial minimalism – its refusal to reach questions unnecessary to dispose of the case – things that were not there. Sosa disposed of the claim before it on a relatively narrow basis – holding that, at a minimum, a claim must be based on an international law principle with “definite content and acceptance among civilized nations” – and expressly declined to address what other limitations might exist on the recognition of claims attendant to the ATS. Yet many somehow read this as if it were a holding that “definite content and acceptance” were the only limitations on an otherwise general endorsement of a global cause of action for international law violations. Similarly, some read Sosa’s discussion of aspects of the Filartiga case without disapproval as if it amounted to a holding that Filartiga had correctly decided issues the Sosa Court never addressed.
This misreading of Sosa returns us to Kiobel, because it provides some cautionary lessons for those who would read too much into what Kiobel refrained from deciding. Already advocates are claiming that the Kiobel majority’s statement that a defendant’s “mere corporate presence” in the United States is not sufficient to “displace the presumption against extraterritorial application” – all that was necessary to dispose of the case before the Court – means that any corporation with more than “mere presence,” such as a U.S. corporation, will be subject to ATS suits for allegedly aiding the conduct of foreign governments. A related argument is that references like “mere corporate presence” assume that at least some ATS claims against corporations will be valid, and thereby implicitly reject the Second Circuit’s holding (which the Court did not reach) that corporations are not subject to suit under the ATS.
As the ill-fated overreadings of Sosa should indicate, that is not how it works. As in Sosa, the Court’s determination that one factual scenario (here, “mere corporate presence”) is insufficient to support an ATS claim in no way means that other scenarios are sufficient. And the purported assumption that corporations can be sued under the ATS is no more meaningful than the purported assumption in Sosa that Filartiga was correctly decided. What is meaningful – and should not be overlooked, as many courts and litigants overlooked the federal common law analysis required by Sosa – is the legal analysis mandated by the Court’s holding that the presumption against extraterritoriality applies to the ATS. Notably, that analysis appears to leave little room for the argument that ATS suits may be brought against U.S. corporations for overseas violations of international law. Extraterritoriality analysis turns on the location of the relevant conduct, not the citizenship of the defendant, as reflected in the Kiobel opinion itself, which concludes that under the presumption against extraterritoriality the plaintiffs’ “case seeking relief for violations of the law of nations occurring outside the United States is barred.” Claims against U.S. corporations for similarly extraterritorial violations are likely to fare no better.