ROGERS, Circuit Judge:
Pursuant to a contract with the Indonesian government, Exxon Mobil Corporation, a United States corporation, and several of its wholly owned subsidiaries (hereinafter "Exxon") operated a large natural gas extraction and processing facility in the Aceh province of Indonesia in
For the reasons that follow, we conclude that aiding and abetting liability is well established under the ATS. We further conclude under our precedent that this court should address Exxon's contention on appeal of corporate immunity and, contrary to its view and that of the Second Circuit, we join the Eleventh Circuit in holding that neither the text, history, nor purpose of the ATS supports corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations. We affirm the dismissal of the TVPA claims in view of recent precedent of this court. We conclude, however, that Exxon's objections to justiciability are unpersuasive and that the district court erred in ruling that appellants lack prudential standing to bring their non-federal tort claims and in the choice of law determination. Finally, we conclude that Exxon's challenge to the diversity of parties in the Doe VIII complaint is to be resolved initially by the district court. Therefore, we affirm the dismissal of plaintiffs-appellants' TVPA claims, reverse the dismissal of the ATS claims at issue in this appeal, along with plaintiffs-appellants' non-federal tort claims, and remand the cases to the district court.
Accepting the allegations of the complaints as true, and construing the complaints in favor of plaintiffs-appellants, as we must, see Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), the plaintiffs claim that Exxon's security forces were comprised of members of the Indonesian military and that Exxon and its subsidiaries, which were incorporated at the time of the filing of the first complaint in New Jersey and Delaware, Doe I Compl. ¶¶ 17, 20, 23, retained these soldiers as guards for its natural gas facility even though Exxon was aware that
According to the complaints, these actions of the Indonesian military could be attributed to Exxon because they were committed by a unit dedicated only to Exxon's Aceh facility and Exxon had the authority "to control and direct[]" the soldiers' actions. Id. ¶ 40. Plaintiffs-appellants claim Exxon was aware of the atrocities committed by the Indonesian military in Aceh, as confirmed by public reports including reports of atrocities committed by Exxon's dedicated unit, and that Exxon nonetheless provided logistical and material support to the military by hiring mercenaries to provide advice, training, intelligence, and equipment to the unit while Exxon profited from the operation of its Aceh facility. Id. ¶¶ 39-41, 46. By acting together with Indonesian security forces, the plaintiffs-appellants claim that Exxon acted under color of Indonesian law. Id.
On October 1, 2001, Exxon moved to dismiss the complaint, and after a hearing on the motion the district court requested the Office of Legal Adviser of the Department of State to inform the court whether the Department deemed adjudication of the case to affect adversely the interests of the United States. On July 29, 2002, the Office of Legal Adviser filed a statement of interest and attached a statement of the Indonesian Ambassador to the United States. Thereafter, the district court dismissed the statutory claims. It ruled that aiding and abetting was not actionable under the ATS, Doe I, 393 F.Supp.2d at 24, that "sexual violence" is not sufficiently recognized as a violation of the law of nations to be actionable under the ATS, and that Exxon could not be liable for genocide and crimes against humanity because adjudication of such claims would "be an impermissible intrusion in Indonesia's internal affairs." Id. at 25. Although concluding that "resolving claims of complicity in arbitrary detention, torture, and extrajudicial killing pose[d] less of a threat of infringing Indonesia's sovereignty," id., the district court ruled that the plaintiffs could not assert such claims against Exxon because color-of-law jurisprudence developed in lawsuits under 42 U.S.C. § 1983 was inapplicable in view of Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). Doe I, 393 F.Supp.2d at 25-26. The district court
On appeal, plaintiffs-appellants challenge the dismissal of their ATS and TVPA claims based on prohibitions of extrajudicial killing, torture, and prolonged arbitrary detention, but do not appeal the dismissal of their claims of genocide, crimes against humanity, or sexual violence. They contend, and Exxon does not dispute, that extrajudicial killing, torture, and prolonged arbitrary detention are clearly established norms of international law.
Finally, appellants challenge the dismissal of their non-federal tort claims, contending that history demonstrates that there is no per se bar on non-resident alien standing and that they meet the traditional zone-of-interests test for prudential standing. Exxon maintains that appellants cannot meet the zone-of-interests test because the alleged torts occurred on foreign soil and that any state law claims would be subject to foreign affairs preemption, and even if those claims survive, Indonesian law ought to apply. Exxon also raises three justiciability objections: the complaint should be dismissed in deference to the foreign policy views of the Executive Branch; the claims interfere with a peace agreement supported by the United States; and the claims threaten international comity with Indonesia. Exxon further maintains the Doe VIII complaint must be dismissed for lack of diversity jurisdiction.
In Part II, we address aiding and abetting liability under the ATS, concluding that it is well established. In Part III, we examine Exxon's claim of corporate immunity, concluding that corporations can be held liable under the ATS. In Part IV, we affirm the dismissal of appellants' claims under the TVPA in view of precedent issued by this court after oral argument in these cases. In Part V, we consider Exxon's contentions that the complaints should be dismissed on justiciability grounds and find them unpersuasive. In Part VI, we resolve appellants' challenge to the dismissal of their common law claims for lack of prudential standing, concluding that they have such standing; we agree, however,
We conclude that none of the four reasons offered by our dissenting colleague for reaching a different conclusion about the reach of the ATS withstand analysis. The dissent's first objection relates to extraterritoriality when that issue is not presented and, as the historical context makes clear, the ATS reaches harm occurring outside of the United States. The dissent's objection to corporate liability is based on a misstatement of the definition of customary international law and of Supreme Court precedent, and disregards both a fundamental distinction between causes of action based on conduct that violates the law of nations or treaties and the remedy under domestic law, and a source of international law. The dissent's third objection that the TVPA precludes the court's conclusions regarding the ATS is contrary to the Supreme Court's conclusion about the effect of the TVPA on the ATS and inappropriately addresses an argument forfeited by Exxon. Finally, the dissent's justiciability objection selectively characterizes not only the complaints but also the State Department's expression of interest in this litigation.
The ATS stood largely dormant for nearly two centuries after its enactment in 1789. Two district courts invoked jurisdiction under the ATS. See Adra v. Clift, 195 F.Supp. 857 (D.Md.1961); Bolchos v. Darrel, 3 F.Cas. 810 (D.S.C.1795) (No. 1,607). The first appellate court to uphold a claim under the ATS did so in 1980 when the Second Circuit held in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980), that deliberate torture perpetrated under color of official authority violated universally accepted norms of international law on human rights and that the ATS provided federal jurisdiction over a claim by a resident alien against a Paraguayan official for the death of his son in Paraguay. The Supreme Court in Sosa described Filartiga as "the birth of the modern line of [ATS] cases." 542 U.S. at 724-25, 124 S.Ct. 2739. Even after Filartiga, however, courts and commentators continued to disagree as to the proper interpretation of the ATS, resulting in the exchange between Judge Edwards and Judge Bork in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir.1984). The Supreme Court in Sosa settled this disagreement, adopting an approach consistent with both Filartiga and Judge Edwards' separate opinion in Tel-Oren.
The issue in Sosa was whether a Mexican citizen (Alvarez-Machain) could bring a claim under the ATS against Mexican nationals hired by the U.S. Drug Enforcement Administration ("DEA") for an alleged violation of the law of nations arising from his "arbitrary arrest." DEA agents had obtained an arrest warrant from a U.S. district court and hired Mexican nationals (including Sosa) to abduct Alvarez-Machain and bring him to the United States to be arrested. 542 U.S. at 698, 124 S.Ct. 2739. The Supreme Court, although concluding the ATS was "intended as jurisdictional," id. at 714, 124 S.Ct. 2739, and "creat[ed] no new causes of action," id. at 724, 124 S.Ct. 2739, held that "[t]he jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal
Upon considering the history and purpose of the ATS, the Supreme Court instructed that "courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized," id., referencing violation of safe conducts, infringement of the rights of ambassadors, and piracy, id. at 724, 124 S.Ct. 2739. The Court recognized that "a judge deciding in reliance on an international norm will find a substantial element of discretionary judgment in the decision," id. at 726, 124 S.Ct. 2739, but admonished that "federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted," id. at 732, 124 S.Ct. 2739. Appellants' aiding and abetting contention meets this test.
In dismissing appellants' statutory claims, the district court relied principally on In re South African Apartheid Litigation, 346 F.Supp.2d 538, 549-51 (S.D.N.Y. 2004), which held that private actors who did not engage in state action committed no violation remediable under the ATS. That authority was overruled in Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir.2007), aff'd for lack of en banc quorum sub nom. Am. Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028, 128 S.Ct. 2424, 171 L.Ed.2d 225 (2008); see also Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 256 (2d Cir.2009), cert. denied, ___ U.S. ___, 131 S.Ct. 79, 178 L.Ed.2d 241 (2010). The district court also ruled that there was no liability for aiding and abetting under the ATS, applying the rule of statutory construction in Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 181-82, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994), superseded in part by statute, 15 U.S.C. § 78t(e), that there is no general presumption in favor of aiding and abetting liability. Doe I, 393 F.Supp.2d at 24.
Appellants persuasively contend that aiding and abetting liability exists under the ATS. Virtually every court to address the issue, before and after Sosa, has so held, recognizing secondary liability for violations of international law since the founding of the Republic. Appellants cite as examples Talbot v. Jansen, 3 U.S. (3 Dall.) 133, 167-68, 1 L.Ed. 540 (1795) (Iredell, J.), The Amiable Nancy, 1 F. Cas. 765, 768 (C.C.D.N.Y.1817) (No. 331), and Henfield's Case, 11 F. Cas. 1099 (C.C.D.Pa.1793) (No. 6,360). Further, they note that aiding and abetting liability was a common feature of Founding-era statutes addressing international law offenses, see Crimes Act of 1790, ch. 9, § 10, 1 Stat. 112, 114 (1790) (deeming "an accessary [sic] to ... piracies" anyone who "knowingly and willingly aided" piracy). Exxon maintains, however, that there is no aiding and abetting liability under the ATS because of the presumption against extraterritorial application established at the time of the ATS's enactment, and the Supreme Court's instruction in Central Bank, 511 U.S. at 181-82, 114 S.Ct. 1439, that although "aiding and abetting is an ancient criminal law doctrine," id. at 181, 114 S.Ct. 1439,
The issue of extraterritoriality, although briefed,
The Supreme Court, however, recently reaffirmed the "presumption against extraterritoriality" in Morrison v. National Australia Bank Ltd., ___ U.S. ___, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010), holding that "[r]ather than guess anew in each case, we apply the presumption in all cases, preserving a stable background against which Congress can legislate with predictable effects." Id. at 2881. "This principle represents a canon of construction, or a presumption about a statute's meaning." Id. at 2877. "When a statute gives no clear indication of an extraterritorial application, it has none." Id. at 2878.
The ATS provides in full:
28 U.S.C. § 1350. The ATS was enacted as part of the Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77 (1789), and its content has not been materially amended since its enactment.
Citing Morrison, Exxon contends that a "strong presumption ... against extending [federal statutes] to encompass conduct in foreign territory" militates against recognizing a common law aiding and abetting claim based on human rights violations committed in a foreign country. Appellees' Br. 37. Exxon posits a novel form of the canon, for it appears beyond debate that piracy is contemplated by the ATS, see Sosa, 542 U.S. at 719, 124 S.Ct. 2739; Tel-Oren, 726 F.2d at 779 (Edwards, J., concurring) (citing 4 BLACKSTONE'S COMMENTARIES *67); id. at 813-14 (Bork, J., concurring), and piracy can occur outside of the territorial bounds of the United States, see generally United States v. Hasan, 747 F.Supp.2d 599 (E.D.Va.2010), and, the Supreme Court has held, also within the territorial waters of another nation, see United States v. Furlong, 18 U.S. (5 Wheat.) 184, 200-01, 5 L.Ed. 64 (1820). Morrison and other Supreme Court cases hold, in contrast to Exxon's canon, "that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." 130 S.Ct. at 2877 (quoting EEOC v. Arabian Am. Oil Co. ("ARAMCO"), 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991)); see also Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949); Blackmer v. United States, 284 U.S. 421, 437, 52 S.Ct. 252, 76 L.Ed. 375 (1932); United States v. Bowman, 260 U.S. 94, 98-99, 43 S.Ct. 39, 67 L.Ed. 149 (1922). It is at least arguable that none of the modern cases cited by Exxon (and our dissenting colleague, Dis.
"This principle [of a presumption against extraterritorial reach of a statute] represents a canon of construction ... rather than a limit upon Congress's power to legislate." Morrison, 130 S.Ct. at 2877. Exxon's characterization of the presumption against extraterritoriality is incomplete at best, stating the presumption is "against extending [federal statutes] to encompass conduct in foreign territory." Appellees' Br. 37. Exxon has cited no authority supporting the existence of a presumption that a statute applies to the high seas (e.g., piracy) but not to foreign territory; indeed, Exxon cites two Supreme Court cases supporting the contrary: The Apollon, 22 U.S. (9 Wheat.) 362, 370, 6 L.Ed. 111 (1824), and Rose v. Himely, 8 U.S. (4 Cranch) 241, 279, 2 L.Ed. 608 (1808). In The Apollon the Court held that "[t]he laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens," 22 U.S. at 370 (emphasis added), and in Rose v. Himely "that the legislation of every country is territorial; that beyond its own territory, it can only affect its own subjects or citizens," 8 U.S. at 279 (emphasis added).
Our dissenting colleague would bifurcate the canon by requiring a separate query with respect to the high seas and foreign countries. The dissent posits that because piracy by definition occurs on the high seas, application of the canon against extraterritoriality — as that canon has been consistently defined by the Supreme Court for over two hundred years — creates a statutory outcome that is at odds with congressional intent that the ATS grant federal courts jurisdiction over aliens' piracy-related torts. Dis. Op. at 78-79. Finding the existing canon of no avail, the dissent mutates both the canon and the precedent into a new canon that produces the desired result. To the extent that a canon of construction draws its persuasiveness in large measure from the fact that Congress is "presumptively aware," Lockhart, 546 U.S. at 148, 126 S.Ct. 699, of such canons of outstanding vintage when it legislates and thus "preserv[es] a stable background against which Congress can legislate with predictable effects," Morrison, 130 S.Ct. at 2878, a newly minted canon fashioned in a dissenting opinion more than two hundred years after the First Congress provides no such benefit.
Thus, the question here is not whether the ATS applies extraterritorially but is instead whether the common law causes of action that federal courts recognize in ATS lawsuits may extend to harm to aliens occurring in foreign countries. One might hope to resolve this question by considering whether the First Congress would have understood federal courts to have the authority to recognize such causes of action. Unfortunately, the historical record with respect to this question is sparse and has been characterized as ambiguous. The authority most on point is a 1795 legal opinion by U.S. Attorney General William Bradford. See Breach of Neutrality, 1 Op. Att'y Gen. 57 (1795). In the midst of the war between Britain and France that followed the French Revolution, U.S. citizens participated in a French privateer fleet's attack and plunder of the British colony of Sierra Leone in 1794. See id. at 58.
Bradford's opinion, however, is not a model of clarity. The paragraph containing Bradford's discussion of the ATS opens by stating, "So far ... as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts...." Id. at 58. In context, this statement might be best read as applying only to the scope of the U.S. courts' criminal jurisdiction. The majority in the Second Circuit, however, interpreted the statement more broadly, citing it as support for the proposition that at the time of its enactment, the ATS was not understood to grant federal courts jurisdiction over international law violations committed within the territorial jurisdiction of foreign nations but "only for the actions taken by Americans on the high seas." See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 142 n. 44 (2d Cir.2010).
Extraterritorial application of the ATS would reflect the contemporaneous understanding that, by the time of the Judiciary Act of 1789, a transitory tort action arising out of activities beyond the forum state's territorial limits could be tried in the forum
Chancellor Kent, "the great commentator on American law," Holy Trinity Church v. United States, 143 U.S. 457, 470, 12 S.Ct. 511, 36 L.Ed. 226 (1892), and then "the country's foremost legal scholar," Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 278 n. 13, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977), in "his landmark work," Sun Oil Co. v. Wortman, 486 U.S. 717, 726, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988), described both Lindo and the piracy statute as "only declaratory of the law of nations." 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW 189 (New York 8th ed. 1854) (hereinafter "KENT'S COMMENTARIES"). The Crimes Act of 1790 had similarly contemplated violations of the law against piracy committed on land.
True, the 1790 Act did not provide for primary liability for actions taken on the land of another nation, instead providing punishment as a principal only for crimes of piracy committed "upon the high seas, or in any river, basin or bay, out of the jurisdiction of any particular [U.S.] state," ch. 9, § 8, 1 Stat. at 113-14; Furlong, 18 U.S. at 200-01. Moreover, amici suggest that the provisions were never invoked by prosecutors in cases involving actions taken within the territory of another nation, Brief of Washington Legal Foundation and Allied Educational Foundation as Amici Curiae in Support of Defendants-Appellees ("Wash. Legal Found. Br.") 11 n.8, although the facts of Furlong, see supra note 7, weaken this point. Consequently, the historical record, clear on the notion that U.S. courts at the nation's founding could exercise jurisdiction over at least some international law violations committed beyond our domestic shores and in the territorial waters of another nation, Furlong, 18 U.S. at 200-01, is nonetheless ambiguous regarding whether jurisdiction
To the extent the historical record is inconclusive, two modern developments convince us that it is entirely appropriate to permit appellants to proceed with their aiding and abetting claims even though much of the conduct relating to the international law violations alleged in their complaint occurred in Indonesia. First, modern ATS litigation has primarily focused on atrocities committed in foreign countries, and Congress in enacting the TVPA expressly endorsed federal courts' exercise of jurisdiction over such lawsuits. The Report of the Senate Committee on the Judiciary states that the "TVPA would establish an unambiguous basis for a cause of action that has been successfully maintained" in ATS lawsuits such as Filartiga, explaining that in that case "two citizens of Paraguay alleged that a former Paraguayan inspector general of police had tortured and killed a member of their family in Paraguay." S.REP. NO. 102-249, at 4 (1991).
The arguments of our dissenting colleague offer no basis for a contrary conclusion. First, the dissent notes that injuries of the sort alleged here, by aliens occurring abroad, could be remedied "by foreign sovereigns under their countries' laws." Dis. Op. at 77. Perhaps so, but the unchallenged finding by the district court is
Second, in deeming "very odd" that the First Congress would be interested in protecting "a Frenchman injured in London," Dis. Op. at 77, the dissent ignores that the calculus can change where a U.S. citizen is a cause of the harm.
4 BLACKSTONE'S COMMENTARIES *67-68. Blackstone's representation that a foreign country could deem the United States an "accomplice or abettor," id. at *68, of a violation of the law of nations if it does not censure a U.S. citizen who has violated that law makes the First Congress's judgment hardly "odd" at all.
The rule of statutory construction set forth in Central Bank does not preclude recognition of aiding and abetting liability for claims under the ATS. In Central Bank, the Supreme Court held that although § 10(b) of the Securities and Exchange Act, 15 U.S.C. § 78j, did not prohibit aiding and abetting liability, "the private plaintiff may not bring a 10b-5 suit against a defendant for acts not prohibited by the text of § 10(b)," 511 U.S. at 173, 114 S.Ct. 1439. The Court declined to create a presumption against aiding and abetting liability, but instructed that when Congress enacts a statute, there is no presumption in favor of aiding and abetting liability. Id. at 182, 114 S.Ct. 1439. Our conclusion that there is aiding and abetting liability under the ATS is not based on a presumption in favor of aiding and abetting liability.
The ATS provides jurisdiction for the federal courts to hear lawsuits regarding
Ample authority supports the conclusion that the First Congress considered aiding and abetting itself to be a violation of the law of nations. All three branches of government had addressed the subject and were in accord. Congress in 1790 enacted a piracy law providing for aiding and abetting liability. Crimes Act of 1790, § 10, 1 Stat. at 114. President George Washington, in response to the state of hostilities in Europe following the French Revolution, issued the Proclamation of Neutrality in 1793, warning "the citizens of the United States carefully to avoid all acts and proceedings" that would contravene that neutrality and "mak[ing] known that" citizens would render themselves "liable to punishment or forfeiture under the law of nations by committing, aiding, or abetting hostilities against any" power involved in the general conflict "or by carrying to any of them those articles which are deemed contraband by the modern usage of nations." Proclamation No. 3 (1793), reprinted in 11 Stat. 753 (1859) (emphasis added). So too, the 1795 opinion of Attorney General Bradford stated that civil recovery could be had in federal court against U.S. citizens who "aided and abetted" the French privateer fleet in its plunder of Sierra Leone. 1 U.S. Op. Att'y Gen. at 58; see also Sosa, 542 U.S. at 721, 124 S.Ct. 2739. An early decision of the Supreme Court upheld aiding and abetting liability for the unlawful capture of a neutral ship. See Talbot, 3 U.S. at 167-68; see also Henfield's Case, 11 F. Cas. 1099.
Decisions of the courts established by the U.N. Security Council, the International Military Tribunal at Nuremberg established in the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, U.N.T.S. 280 (hereinafter "London Charter"), and the several Nuremberg tribunals are recognized as an authoritative source of customary international law. See, e.g., Flores v. S. Peru Copper Corp., 414 F.3d 233, 244 n. 18 (2d Cir.2003); United States v. Yousef, 327 F.3d 56, 105 nn.39-40 (2d Cir.2003); cf. Hamdan v. Rumsfeld, 548 U.S. 557, 610 & n. 40, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006); Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 (D.C.Cir.1994), cert. denied, 513 U.S. 1121, 115 S.Ct. 923, 130 L.Ed.2d 803 (1995). See generally Theodor Meron, Reflections on the Prosecution of War Crimes by International Tribunals, 100 AM. J. INT'L L. 551, 559 (2006). The General Assembly of the United Nations has unanimously affirmed the principles of international law recognized by the London Charter and the Nuremberg tribunals. See Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal, G.A. Res. 95(I), U.N. Doc. A/236 (Dec. 11, 1946) ("Nuremberg Principles Resolution I"). Exxon does not dispute that the London Charter and the cases prosecuted thereunder constitute sources of customary international law.
"[C]riminal responsibility of those who aid and abet violations of international law" has been "accepted as one of the core principles of the post-World War II war crimes trials." Khulumani, 504 F.3d at 273 (Katzmann, J., concurring). The London Charter extended responsibility for crimes to "accomplices participating in the formulation or execution of a common plan or conspiracy to commit" any of the crimes triable by the Tribunal. London Charter art. 6, 82 U.N.T.S. 282. At the direction of the U.N. General Assembly, the International Law Commission ("ILC") in 1950 formulated "principles recognized in the Charter ... and in the judgment of the Tribunal," as a codification of certain legal
The U.N. Security Council resolutions establishing the International Criminal Tribunal for the Former Yugoslavia ("ICTY") and the International Criminal Tribunal for Rwanda ("ICTR") likewise imposed liability on any "person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution" of a crime. Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 7, U.N. Doc. S/25704 annex (May 3, 1993) ("ICTY Statute"), adopted in S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993); Statute of the International Criminal Tribunal for Rwanda, art. 6, S.C. Res. 955, U.N. Doc. S/RES/955 annex (Nov. 8, 1994) ("ICTR Statute"). The Secretary General of the United Nations explained that "in assigning to the International Tribunal the task of prosecuting persons responsible for serious violations of international humanitarian law, the Security Council would not be creating or purporting to `legislate' that law. Rather, the International Tribunal would have the task of applying existing international humanitarian law." Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, ¶ 29, U.N. Doc. S/25704 (May 3, 1993) ("Sec'y General ICTY Report"). The ICTY's jurisdiction was limited to "rules of international humanitarian law which are beyond any doubt part of customary [international] law." Id. ¶ 34; see Khulumani, 504 F.3d at 275 (Katzmann, J., concurring) (citing Prosecutor v. Furundzija, Case No. IT-95-17/1 Trial Chamber Judgement, ¶¶ 249, 275 (Dec. 10, 1998); Prosecutor v. Tadic, Case No. IT-94-1-T, Trial Chamber Opinion and Judgement, ¶¶ 689-92, 730, 735, 738 (May 7, 1997)). The ICTY emphasized that it was required to determine "the objective basis for such individual responsibility as a matter of customary international law ... since the International Tribunal is only empowered to apply international humanitarian law that is `beyond any doubt customary law.'" Tadic, Trial Chamber Opinion and Judgement, ¶ 662 (quoting Sec'y General ICTY Report ¶ 34). The ICTR has a similar mandate to that of the ICTY but also encompasses several treaties. See Report of the Secretary-General Pursuant to Paragraph 5 of the Security Council Resolution 955, ¶ 12, U.N. Doc. S/1995/134 (Feb. 13, 1995).
Federal courts have, in turn, relied on international criminal law norms in establishing
The question remains what intent must be proved for aiding and abetting liability under the ATS. Appellants suggest that the federal common law standard for aiding and abetting — knowing assistance that has a substantial effect on the commission of the human rights violation — is well established and that the standard under customary international law is essentially the same. Exxon urges the court to follow the Second Circuit in Presbyterian Church of Sudan, 582 F.3d at 259, by requiring proof that the defendant acted with the purpose of committing the alleged human rights violation, maintaining that "[i]f a federal common law aiding and abetting cause of action is to be recognized under the ATS, then Sosa requires that the scope of the federal common law rule derive from international law." Appellees' Br. 40.
In Sosa, the Supreme Court stated that the ATS's "jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action." 542 U.S. at 724, 124 S.Ct. 2739. From this statement appellants draw the conclusion that federal common law provides the standard for aiding and abetting liability. Judge Edwards similarly observed in Tel-Oren, 726 F.2d at 777-78, that "the law of nations never has been perceived to create or define the civil actions to be made available by each member of the community of nations; by consensus, the states leave that determination to their respective municipal laws." Appellants also cite the United States' amicus brief in the Second Circuit urging that the "validity of a federal-common-law claim under Sosa should generally be treated as a merits question, with the ATS conferring subject-matter jurisdiction so long as the allegations of a violation of customary international law are not plainly insubstantial." Brief for the United States as Amicus Curiae at 20, Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir.2009). Appellants suggest that "[t]he application of domestic common law standards is essential because international law does not ordinarily provide for the means of its own enforcement in domestic courts," Appellants' Br. 33, and in their view, the Supreme Court in Sosa, 542 U.S. at 731, 124 S.Ct. 2739, "endorsed Judge Edwards' view that domestic rules govern the litigation of ATS claims in U.S. courts," Appellants' Br. 33-34.
The history of the ATS examined by the Supreme Court in Sosa, 542 U.S. at 731, 124 S.Ct. 2739, indicated the First Congress's understanding that federal common law would supply the rules in ATS cases. Amici law professors in Sosa noted that when the ATS was enacted there was no clear distinction between common law and customary international law. See Brief of
That a particular cause of action cognizable under the ATS is to be recognized as a federal common law claim, however, does not identify the source of law to which the court must look for a standard. The Supreme Court in Sosa mandated that courts recognize only "a narrow set of common law actions derived from the law of nations." 542 U.S. at 721, 124 S.Ct. 2739. In so doing, a court must identify a norm for conduct of no less "definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted," id. at 732, 124 S.Ct. 2739, to which the international community expresses approbation or disapprobation.
The ICTY, in addressing whether the accomplice
Id. ¶ 249; see also id. ¶¶ 238-40, 245-46 (citing inter alia, In re Tesch, 1 LAW REPORTS OF TRIALS OF WAR CRIMINALS 93); Prosecutor v. Krstic, Case No. IT -98-33-A, Appeals Judgement, ¶¶ 139-41 (Apr. 19, 2004); Prosecutor v. Delalic, Case No. IT-96-21-I, Trial Chamber Judgement, ¶¶ 325-29 (Nov. 16, 1998); Tadic, Trial Chamber Judgement, ¶¶ 674, 692. The ICTR is in agreement. See Prosecutor v. Ntakirutimana, Case No. ICTR-96-13-I, Appeals Judgement, ¶ 501 (Dec. 13, 2004); Prosecutor v. Musema, Case No. ICTR-96-13-I, Trial Chamber Judgement, ¶¶ 180-82 (Jan. 27, 2000). The parties do not suggest that the approach of the ICTY and the ICTR is inconsistent with the federal standard for aiding and abetting liability.
In Halberstam v. Welch, 705 F.2d 472 (D.C.Cir.1983), which the Supreme Court described as "a comprehensive opinion on the subject [of aiding and abetting]," Central Bank, 511 U.S. at 181, 114 S.Ct. 1439, this court defined the scope of aiding and abetting for tort liability in the civil context as follows:
705 F.2d at 477 (citing, inter alia, RESTATEMENT (SECOND) OF TORTS § 876 (1979),
The Second Circuit, in Presbyterian Church of Sudan, 582 F.3d at 259, nonetheless held that the aider and abettor must share the same purpose as the principal actor, relying on the Rome Statute of the International Criminal Court ("Rome Statute"), July 17, 1998, 2187 U.N.T.S. 90, and United States v. von Weizsaecker ("The Ministries Case"), in 14 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at 308, 622 (1997) ("TRIALS OF WAR CRIMINALS"); see also Khulumani, 504 F.3d at 276 (Katzmann, J., concurring). Under that standard, "the defendant (1) provides practical assistance to the principal which has a substantial effect on the perpetration of the crime, and (2) does so with the purpose of facilitating the commission of that crime." Khulumani, 504 F.3d at 277 (Katzmann, J., concurring). The Second Circuit reasoned that whether to recognize "aiding and abetting liability is no less significant a decision than whether to recognize a whole new tort in the first place," Presbyterian Church of Sudan, 582 F.3d at 259, and consistent with Sosa's command about the definiteness of new norms, it concluded from those two sources that "no such [international] consensus exists for imposing liability on individuals who knowingly (but not purposefully) aid and abet a violation of international law," id.
Although we agree with the Second Circuit's premise that aiding and abetting must be embodied in a norm of customary international law, amici international law scholars point out why its conclusion was flawed. The Rome Statute, which created the International Criminal Court ("ICC"), is properly viewed in the nature of a treaty and not as customary international law. See Int'l Law Scholars Amicus Br. 19-20 (citing Rome Statute, art. 10; Leila Nadya Sadat, Custom, Codification and Some Thoughts About the Relationship Between the Two: Article 10 of the ICC Statute, 49 DEPAUL L.REV. 909, 911 & n.11, 917 (2000); Otto Triffterer, Article 10, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 317 (Otto Triffterer ed., 1999)). It specifically provides in Article 10 that it is not to "be interpreted as limiting or prejudicing in any way existing or developing rules of international law." This acknowledges that the Rome Statute was not meant to affect or amend existing customary international law. See Int'l Law Scholars Amicus Br. 19. As a treaty, the Rome Statute binds only those countries that have ratified it, see Military and Paramilitary Activities (Nicar.v.U.S.), 1986 I.C.J. 14, ¶ 175 (June 27), and the
Even were we to agree that the Rome Statute reflects customary international law, the Second Circuit's interpretation in Khulumani, 504 F.3d at 276 (Katzmann, J., concurring), and Presbyterian Church of Sudan, 582 F.3d at 259, appears inconsistent with its provisions. Article 25(3)(c) of the Rome Statute provides for liability if an individual, "[f]or the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission." Rome Statute, art. 25(3)(c) (emphasis added). Article 25(3)(d) provides liability for an individual who "contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose" where such contribution is "intentional" and either "made with the aim of furthering the criminal activity or criminal purpose of the group" or "made in the knowledge of the intention of the group to commit the crime." Id. art. 25(3)(d) (emphasis added). Article 30 provides that "a person has intent where ... [i]n relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events." Id. art. 30(2)(b) (emphasis added). Although the text of Article 25(3)(c) appears to require proof of "purpose," the text of Article 25(3)(d) requires no more than "knowledge." Given that Exxon is alleged to have aided and abetted the Indonesian military forces, which in turn are alleged to have committed violations of the law of nations against appellants, were the Rome Statute to apply it appears that Article 25(3)(d) and its mens rea of "knowledge" would apply. Cf. Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC/01/04-01/06, Pre-Trial Chamber Decision on the Confirmation of Charges (Jan. 29, 2007) (applying a "knowledge" standard under Article 25(3)(a) to international law violations by co-perpetrator). To the same effect are decisions applying Article 30, which defines the mens rea requirement of intent to include "knowledge," such as Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC -01/14-01/07, Decision on the Confirmation of Charges, ¶¶ 528, 530 (Sept. 30, 2008), Prosecutor v. Jean-Pierre Bemba Gombo,
Finally, focusing only on The Ministries Case overlooks the fact that in numerous decisions of the Nuremberg tribunals defendants were convicted as aiders and abettors based on a mens rea of knowledge and not purpose. See Int'l Law Scholars Amicus Br. 21. Amici cite as examples United States v. Ohlendorf, in 4 TRIALS OF WAR CRIMINALS 568-70 (defendant "was aware that the people listed would be executed when found"); United States v. Flick, 6 TRIALS OF WAR CRIMINALS 1217, 1222 (defendant knowingly contributed money to an organization even though it was "unthinkable" he would "willingly be a party" to atrocities); In re Tesch, 13 INT'L L. REP. 250 (1947) (defendant acted "with knowledge" that gas would be used to kill prisoners). See Int'l Law Scholars Amicus Br. 21. These cases are not addressed by the Second Circuit in either Presbyterian Church of Sudan or Judge Katzmann's concurring opinion in Khulumani. But see Khulumani, 504 F.3d at 290 (Hall, J., concurring).
Instead, the Second Circuit considered only one of the decisions rendered in the multi-defendant prosecution in The Ministries Case. In Presbyterian Church of Sudan, 582 F.3d at 251, and Khulumani, 504 F.3d at 276 (Katzmann, J., concurring), that court examined the case of Karl Rasche, the Chairman of Dresdner Bank, who was acquitted of war crimes and crimes against humanity on an aiding and abetting theory, 14 TRIALS OF WAR CRIMINALS 622, although convicted on other charges, id. at 784. Yet in the same proceeding the Tribunal convicted Emil Puhl, deputy to the president of the German Reichsbank, based on the same charge and theory, where he knowingly took part in disposing of gold, including gold teeth and crowns and other valuables looted from Holocaust victims, even though he did not share the intent of the Holocaust perpetrators and did not "originate[ ] the matter [that] was probably repugnant to him." Id. at 621. The Tribunal concluded that Puhl had no part in the actual extermination of concentration camp inmates, and that it had "no doubt that he would not, even under orders, have participated in that part of the program." Id. at 620-21. The distinction for the Tribunal appears to have been not that Rasche had mere knowledge of the activities of the German Nazis whereas Puhl had purpose; both had knowledge only. Instead the actus reus was the critical distinction relied on by the Tribunal.
Accordingly, we hold that aiding and abetting liability is available under the ATS because it involves a norm established by customary international law and that the mens rea and actus reus requirements are those established by the ICTY, the ICTR, and the Nuremberg tribunals, whose opinions constitute expressions of customary international law. The Rome Statute does not constitute customary international law. Its mens rea requirements contemplate, in any event, a "knowledge" standard. The discussion of the aiding and abetting charge against Rasche in The Ministries Case does not support a "purpose" standard when considered in conjunction with the charges against Puhl, also part of The Ministries Case, and other cases heard at Nuremberg that establish that "knowledge" suffices to meet the mens rea requirement for aiding and abetting liability. The decisions of the ICTY and ICTR adopt a "knowledge" mens rea and a showing for actus reus of acts that have a substantial effect in bringing about the violation. For all practical purposes, we agree with appellants that the standard under federal common law applies inasmuch as the parties suggest no differences between it and the standard under customary international law.
Exxon contends, for the first time on appeal, that the ATS does not recognize corporate liability. The district court dismissed appellants' ATS claims for failing adequately to plead joint action or causation under a color of law theory of liability, having ruled that aiding and abetting liability was unavailable. See Doe I, 393 F.Supp.2d at 24-27. Appellants contend that, therefore, this court should not address Exxon's new argument, but they have responded to the argument on the merits and an addendum to their reply brief contains amicus briefs on corporate liability under the ATS that were lodged with the Second Circuit in Kiobel v. Royal Dutch Petroleum, No. 06-4800-cv (Oct. 14 & 15, 2010) (en banc).
In urging the court to address the question of corporate liability although it is raised for the first time on appeal, Exxon
It is unnecessary to decide whether Herero settles the jurisdictional question after Sosa because, as Exxon alternatively maintains, "[c]ourts of appeals are not rigidly limited to issues raised in the tribunal of first instance; they have a fair measure of discretion to determine what questions to consider and resolve for the first time on appeal." Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n.5 (D.C.Cir.1992) (citing, inter alia, Hormel v. Helvering, 312 U.S. 552, 555-59, 61 S.Ct. 719, 85 L.Ed. 1037 (1941)). Although such review is usually confined to "exceptional circumstances," id., the court in Roosevelt gave as examples of such circumstances "uncertainty in the state of the law," id. (citing Proctor v. State Farm Mut. Auto. Ins. Co., 675 F.2d 308, 325-26 (D.C.Cir.), cert. denied, 459 U.S. 839, 103 S.Ct. 86, 74 L.Ed.2d 81 (1982)), and a "novel, important, and recurring question of federal law," id. (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 255-57, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981)). The issue of corporate liability under the ATS is all of the above, and it "does not depend on any additional facts not considered by the district court." Id.; see also Time Warner Entm't Co., L.P. v. FCC, 93 F.3d 957, 974-75 (D.C.Cir.1996). Because appellants do not suggest they are prejudiced by not having had an opportunity to present their position on the merits in the district court and they have fully addressed the issue on appeal, including attaching amici briefs, and because the question is one of law, we conclude that addressing whether there is corporate liability under the ATS is both a fair and efficient way to proceed inasmuch as the Doe I complaint was filed more than a decade ago.
Appellants contend that there is no basis for corporate immunity in either the text or the history of the ATS or international law, and that the question of corporate liability is to be decided either pursuant to federal common law or general principles of international law. They observe, as the Eleventh Circuit held in Romero, 552 F.3d at 1315, that the text of the ATS places no limit on who can be a defendant, by contrast with who can be a plaintiff, and the phrase "any civil action" undermines any implied limitations not contained in the text. They also observe that the codified statute's use of "any civil action," see supra note 5, does not alter its meaning, citing the Brief of Amici Curiae Professors of Federal Jurisdiction and Legal History in Support of Plaintiffs-Appellants Seeking Petition for Rehearing En Banc at 2 n.3, Kiobel v. Royal Dutch Petroleum Co., 642 F.3d 268 (2d Cir.2011) ("Kiobel Legal History Amicus Br."). Consistent with Sosa's emphasis on history, 542 U.S. at 712-24, 124 S.Ct. 2739, appellants maintain that the textual and historical evidence indicates that the First Congress would have considered juridical entities
Our analysis begins by recognizing that corporate liability differs fundamentally from the conduct-governing norms at issue in Sosa, and consequently customary international law does not provide the rule of decision. Then we establish that corporate liability is consistent with the purpose of the ATS, with the understanding of agency law in 1789 and the present, and with sources of international law. Our conclusion differs from that of the Second Circuit in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir.2010), reh'g en banc denied, 642 F.3d 268 (2d Cir.2011), because its analysis conflates the norms of conduct at issue in Sosa and the rules for any remedy to be found in federal common law at issue here; even on its own terms, its analysis misinterprets the import of footnote 20 in Sosa and is unduly circumscribed in examining the sources of customary international law. Finally, we conclude that Exxon's other arguments for corporate immunity are unpersuasive.
Corporate liability presents a conceptually different question. By way of example, in legal parlance one does not refer to the tort of "corporate battery" as a cause of action. The cause of action is battery; agency law determines whether a principal will pay damages for the battery committed by the principal's agent. Here the court may assume that individuals acting as agents of a corporation violated substantive international law norms. The question is whether a corporation can be made to pay damages for the conduct of its agents in violation of the law of nations. Sosa did not address this question and "at best lends Delphian guidance," Khulumani, 504 F.3d at 286 (Hall, J., concurring), on what law supplies the rules governing "the technical accoutrements to [a cause of] action," Tel-Oren, 726 F.2d at 778 (Edwards, J., concurring).
Sosa instructs that the substantive content of the common law causes of action that courts recognize in ATS cases must have its source in customary international law. It is clear from the fact that the law of nations, outside of certain treaties, see Dreyfus v. Von Finck, 534 F.2d 24, 31 (2d Cir.1976), creates no civil remedies and no private right of action that federal courts must determine the nature of any remedy
LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 245-46 (2d ed.1996). Judge Edwards elaborated in Tel-Oren, specifically addressing ATS claims:
726 F.2d at 778 (Edwards, J., concurring) (citations omitted); accord Dreyfus, 534 F.2d at 31; RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 906 & cmt. b; 1 OPPENHEIM'S INTERNATIONAL LAW § 19. That the ATS provides federal jurisdiction where the conduct at issue fits a norm qualifying under Sosa implies that for purposes of affording a remedy, if any, the law of the United States and not the law of nations must provide the rule of decision in an ATS lawsuit.
Consequently, the fact that the law of nations provides no private right of action to sue corporations addresses the wrong question and does not demonstrate that corporations are immune from liability under the ATS. There is no right to sue under the law of nations; no right to sue natural persons, juridical entities, or states. Customary international law — defined as the "[p]ractice of states," RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) & cmt. b, i.e., that law "made over time by widespread practice of governments acting from a sense of legal obligation," LOUIS HENKIN, HOW NATIONS BEHAVE: LAW AND FOREIGN POLICY 33 (2d ed.1979), 1 OPPENHEIM'S INTERNATIONAL LAW § 10, and "gradually ripening into a rule of international law," The Paquete Habana, 686, 20 S.Ct. 290, 44 L.Ed. 320 (1900); see also North Sea Continental Shelf (Ger.v.Den.), 1969 I.C.J. 3, ¶ 77 (Feb. 20); Asylum (Colom.v.Peru), 1950 I.C.J. 266, 276 (Nov. 20); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, § 102(2) & cmts. b, c, k; 1 OPPENHEIM'S INTERNATIONAL LAW §§ 16-17; 1 CHARLES CHENEY HYDE, INTERNATIONAL LAW § 6 (1922) — does not "partake of the prolixity of a legal code," cf. M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579 (1819). Although
As the Supreme Court observed in Sosa, under the Articles of Confederation, the federal government lacked authority to remedy or prevent violations of the law of nations.
THE FEDERALIST No. 42, at 258, 260 (James Madison) (Henry Cabot Lodge ed., 1888). The Continental Congress struggled to respond to violations of the law of nations. In 1779 it wrote to the French Minister Plenipotentiary to assure that the courts "will cause the law of nations to be most strictly observed: that if it shall be found, after due trial, that the owners of [ ] captured vessels have suffered damage from the misapprehension or violation of the rights of war and neutrality, Congress will cause reparation to be made...." 14 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 635 (Worthington Chauncey Ford ed., 1909). The promise rang hollow; although the Articles gave the federal courts authority over "the trial of piracies and felonies committed on the high seas," ARTICLES OF CONFEDERATION, art. 9, § 1, 1 Stat. 4, 6 (1778), the courts lacked authority over violations of the law of nations on land. In 1781, the Continental Congress adopted a resolution that "implored the States to vindicate rights under the law of nations," Sosa, 542 U.S. at 716, 124 S.Ct. 2739, specifically to "provide expeditious, exemplary and adequate punishment" for violations. 21 JOURNALS OF THE CONTINENTAL
The 1781 resolution is acknowledged to be "the direct precursor of the alien tort provision in the First Judiciary Act." Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AM. J. INT'L L. 461, 477 (1989); see also William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to the "Originalists," 19 HASTINGS INT'L & COMP. L REV. 221, 226-29 (1996); Casto, Law of Nations, supra note 8, at 490-91. The resolution requested that each state, "in words that echo Blackstone," Sosa, 542 U.S. at 716, 124 S.Ct. 2739, establish remedies for the "violation of safe conducts or passports," for "the commission of acts of hostility against such as are in amity, league or truce with the United States, or who are within the same, under a general implied safe conduct," for "the infractions of the immunities of ambassadors and other public ministers," for "infractions of treaties and conventions to which the United States are a party," and for "offences against the law of nations, not contained in the foregoing enumeration." 21 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 1136-37. In letters to the states, the Continental Congress pointed out that "a prince, to whom it may be hereafter necessary to disavow any transgression of that law by a citizen of the United States, will receive such disavowal with reluctance and suspicion, if regular and adequate punishment shall not have been provided against the transgressor." Id. at 1136.
Two examples illustrate concerns underlying the 1781 Resolution and enactment of the ATS. Sosa, 542 U.S. at 716-17, 124 S.Ct. 2739. In May 1784, the Chevalier De Longchamps, a French citizen, assaulted Francis Barbe Marbois, the French Consul General, on a street in Philadelphia, Pennsylvania. See Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 111, 1 L.Ed. 59 (O.T.Phila.1784). The French Ambassador complained to the Continental Congress and the Dutch Ambassador threatened to leave the State if action was not taken. Id. (citing Casto, Law of Nations, supra note 8, at 491-92 & n. 138). Although the Pennsylvania state court tried and convicted De Longchamps for an offense against the law of nations, which the Court of Oyer and Terminer termed "in its full extent, ... part of the law of" Pennsylvania, De Longchamps, 1 U.S. (1 Dall.) at 116, the events laid bare the impotence of the young nation. The Continental Congress and the Secretary of Foreign Affairs struggled to respond to an international incident over which the federal government had no authority.
James Madison lamented at the Constitutional Convention that "[t]he files of Cong[ress] contain complaints already, from almost every nation with which treaties have been formed. Hitherto indulgence has been shewn to us. This cannot be the permanent disposition of foreign nations." 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 316 (Max Farrand ed., 1937) ("FARRAND'S RECORDS") (statement of James Madison). Opposing the New Jersey Plan to enhance the power of small states, Madison asked: "Will it prevent those violations of the law of nations & of Treaties which if not prevented must involve us in the calamities of foreign wars? The tendency of the States to [sic] these violations has been manifested in sundry instances." Id.
The Judiciary Act of 1789 ensured that there would be no gap in federal subject matter jurisdiction with regard to torts in violation of treaties or the law of nations. It provided federal jurisdiction for lawsuits brought by aliens for torts in violation of the law of nations without textual limitation. By contrast, it contained no grant of federal question jurisdiction in civil cases,
Exemplary of a purpose of the ATS is the case of Bolchos v. Darrel, 3 F.Cas. 810.
Thus prior to the Constitutional Convention, when the new nation was at risk of losing respect abroad because it could not respond to violations of the law of nations, the Founders and the First Congress recognized that the inability to respond to such violations could lead to the United States' entanglement in foreign conflicts when a single citizen abroad offended a foreign power by violating the law of nations. The Bradford and Bolchos opinions are evidence of the realities of this concern. Attorney General Bradford could abide by the 1793 Proclamation of Neutrality by favoring neither France nor Great Britain and prevent a U.S. citizen from entangling the United States in the general conflict in Europe as a result of his activities abroad, in Sierra Leone. Similarly, in Bolchos the executive and legislative branches avoided expressing opinions on the civil dispute between British and Spanish subjects because the district court and the Supreme Court could adjudicate such disputes by applying the law of nations.
Kiobel Legal History Amicus Br. 6-7 (citations omitted) (emphasis in original).
The notion that corporations could be held liable for their torts, therefore, would not have been surprising to the First Congress that enacted the ATS. In Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 4 L.Ed. 629 (1819) (Story, J.), the Supreme Court held that an "aggregate corporation, at common law, is a collection of individuals, united into one collective body, under a special name ... possess[ing] the capacity ... of suing and being sued." Id. at 667. A corporation is, in short, an artificial person, existing in contemplation of law, and endowed with certain powers and franchises which, though they must be exercised through the medium of its natural members, are yet considered as subsisting in the corporation itself, as distinctly as if it were a real personage.
Id. The Court observed, moreover, that "a great variety of these corporations exist, in every country governed by the common law." Id. at 668; see also 1 BLACKSTONE'S COMMENTARIES *469. In Cook County, Ill. v. United States ex rel. Chandler, 538 U.S. 119, 123 S.Ct. 1239, 155 L.Ed.2d 247 (2003), the Court assembled sources, including a 1793 treatise on the law of corporations, see supra note 34, demonstrating the common law understanding that a corporation is a juridical person with the capacity to sue and be sued. See 538 U.S. at 125-26, 123 S.Ct. 1239. Thus it appears that the law in 1789 on corporate liability was the same as it is today: "The general rule of substantive law is that corporations, like individuals, are liable for their torts." White v. Cent. Dispensary & Emergency Hosp., 99 F.2d 355, 358 (D.C.Cir.1938); see also Daniels v. Tearney, 102 U.S. 415, 420, 26 L.Ed. 187 (1880); Lyon v. Carey, 533 F.2d 649, 652-53 (D.C.Cir.1976).
Exxon's reliance on the Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, U.N. Doc. A/HRC/ 4/35 (Feb. 19, 2007), is misplaced. Its selective quotation from the report overlooks the salient point. See Dis. Op. at 83-84. The report refers to many states' unwillingness to adopt domestic laws providing human rights standards for corporations. Id. ¶ 44. But elsewhere the report points to the "extension of responsibility for international crimes to corporations under domestic law," id. ¶ 22, and specifically recognizes that the ATS provides such jurisdiction against corporations, id. ¶¶ 23, 27.
In footnote 20, Sosa noted a consideration raised by a comparison of Tel-Oren and Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995).
621 F.3d at 166 (Leval, J., concurring) (emphasis in original).
Corporate liability governs the legal consequences of a relationship between a principal and an agent, see RESTATEMENT (THIRD) OF AGENCY § 1.01 (2006), and for the reasons explained by Professor Henkin and Judge Edwards, and endorsed in Sosa, 542 U.S. at 724, 124 S.Ct. 2739, the technical accoutrements to the ATS cause of action, such as corporate liability and agency law, are to be drawn from federal common law, mindful that "in most cases where a court is asked to state or formulate a common law principle in a new context, there is a general understanding that the law is not so much found or discovered as it is either made or created." Sosa, 542 U.S. at 725, 124 S.Ct. 2739; see also id. at 726, 124 S.Ct. 2739 (citing Textile Workers, 353 U.S. at 456, 77 S.Ct. 912). Although Sosa may not provide guidance on which particular body of law is to provide answers to questions ancillary to the conduct underlying the norm, it recognized that the tort cause of action under the ATS is derived from federal common law, 542 U.S. at 720-21, 124 S.Ct. 2739. In other words, "[t]he position of international law on whether civil liability should be imposed for violation of its norms is that international law takes no position and leaves that question to each nation to resolve." Kiobel, 621 F.3d at 152 (Leval, J., concurring); see Sosa, 542 U.S. at 724, 124 S.Ct. 2739.
But taking the analysis of the majority in Kiobel on its own terms regarding the proper source of law, it overlooks a source of international law that would tend to confirm that liability under the ATS is properly extended to corporate defendants. Preliminarily it is to be noted that
Amici Nuremberg scholars point out that the history of Nuremberg is more nuanced than Exxon suggests. Brief of Amici Curiae Nuremberg Scholars in Support of Plaintiffs-Appellants-Cross-Appellees' Petition for Rehearing and for Rehearing En Banc at 3, Kiobel v. Royal Dutch Petroleum Co., 642 F.3d 268, 2011 WL 338048 (2d Cir. Oct. 15, 2010) (No. 06-4800-cv) ("Kiobel Nuremberg Amicus Br."). The Allies' program for defeated Germany at the end of the war, amici note, "had three components: what to do with the German state upon defeat of the Third Reich, what to do with natural persons who committed crimes, and what to do with the German economy and its industrial cartels." Id. The Allies (1) partitioned Germany into zones; (2) dismantled Nazi Germany's industrial assets, public and private, and created a system of reparations for injured individuals and states; and (3) prosecuted major war criminals under the London Charter before an international military tribunal constituted at Nuremberg, indicting among others six Nazi organizations, designating three as criminal. Kiobel Nuremberg Amicus Br. 4-9. Control Council Law No. 9, ignored by Exxon and the majority in Kiobel, 621 F.3d at 134-35, directed the dissolution of I.G. Farben, and the disposal of the assets "of what was regarded as the Allies' principal economic enemy." Kiobel Nuremberg Amicus Br. 11. The preamble to Law No. 9 proclaimed that "I.G. Farben[ ] knowingly and prominently engaged in building up and maintaining the German war potential." Control Council Law No. 9, Providing for the Seizure of Property Owned by I.G. Farbenindustrie and the Control Thereof (Nov. 30, 1945), reprinted in 1 ENACTMENTS 225. Thus, amici Nuremberg scholars observe, the corporate death penalty enforced against I.G. Farben was as much an application of customary international law, on which Control Council Law No. 9 was based, as the sentences imposed by the tribunals themselves: the Allies determined that I.G. Farben had committed violations of the law of nations and therefore destroyed it. Kiobel Nuremberg Amicus Br. 11-12.
The Farben Case, 8 TRIALS OF WAR CRIMINALS 1132-33. The Tribunal continued:
Id. at 1140.
Additionally, the Kiobel majority overlooked general principles of international law as a proper source for the content of international law. Amici state that corporate liability is a universal feature of the world's legal systems and that no domestic jurisdiction exempts legal persons from liability. Kiobel Int'l Law Scholars Br. 12. Corporate personhood has been recognized by the ICJ upon considering the "wealth of practice already accumulated on the subject in municipal law," Barcelona Traction, Light & Power Co., 1970 I.C.J. 3, 38-39 (Feb. 20). Legal systems throughout the world recognize that corporate legal responsibility is part and parcel of the privilege of corporate personhood. In First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 628-29 & nn. 19-21, 103 S.Ct. 2591, 77
Unlike the manner in which customary international law is recognized through common practice or usage out of a sense of legal obligation, a general principle becomes international law by its widespread application domestically by civilized nations.
J.L. BRIERLY, THE LAW OF NATIONS 62-63 (6th ed.1963). International law "borrow[s] from" the principles of private law institutions for "an indication of legal policy or principle." Id. at 63. General principles of international law thus offer further support that corporate responsibility for the conduct of its agents under a principle of respondeat superior is recognized in the law of nations.
In sum, the majority in Kiobel not only ignores the plain text, history, and purpose of the ATS, it rests its conclusion of corporate immunity on a misreading of footnote 20 in Sosa while ignoring Sosa's conclusion
Kiobel, 621 F.3d at 152-53 (Leval, J., concurring).
Second, Exxon maintains that because Congress refrained from creating corporate liability in the TVPA, see Mohamad v.
In Sosa, the Supreme Court characterized the TVPA as "supplementing" the ATS, not replacing it. 542 U.S. at 731, 124 S.Ct. 2739.
The TVPA provides:
28 U.S.C. § 1350 note § 2(a). In Mohamad, 634 F.3d 604, this court held, after oral argument in the instant case, that Congress's use of the word "individual" indicated that it did not intend for the TVPA to apply to corporations or other organizations. Id. at 606-09; see also Bowoto, 621 F.3d at 1126-27. Accordingly, the district court did not err in dismissing
As an alternative to their claim of Exxon's direct liability under the TVPA, appellants contend that they may sue Exxon under the TVPA on a theory of aiding and abetting liability. They cite In re Nofziger, 956 F.2d 287 (D.C.Cir.1992), where the court stated the general proposition that in a criminal case "one may be found guilty of aiding and abetting another individual in his violation of a statute that the aider and abettor could not be charged personally with violating." Id. at 290 (citing Coffin v. United States, 156 U.S. 432, 447, 15 S.Ct. 394, 39 L.Ed. 481 (1895)). They also cite 18 U.S.C. § 2(a), which provides that any person who aids or abets a criminal offense is punishable as a principal. See also Standefer v. United States, 447 U.S. 10, 18 n. 11, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). There is a circuit split. The Eleventh Circuit has held that private parties, including corporations, can be liable for aiding and abetting violations of the TVPA. Aldana, 416 F.3d at 1247-48. The Ninth Circuit has held that corporations may not be held directly liable under the TVPA and that, "[e]ven assuming the TVPA permits some form of vicarious liability, the text limits such liability to individuals, meaning in this statute, natural persons." Bowoto, 621 F.3d at 1128; see also Mohamad, 634 F.3d at 608-09.
Given this court's holding in Mohamad, there is no basis in the statutory text for permitting vicarious corporate liability. The authorities that appellants cite, indicating that Congress can provide for aiding and abetting liability absent direct liability, do not support the inference that Congress so provided in the TVPA. Appellants point to no other provision in the TVPA that colorably provides for such liability. Even assuming arguendo that aiding and abetting liability is available under the TVPA, the court's precedent would limit such liability to natural persons. See Mohamad, 634 F.3d at 608-09.
Exxon presents three additional arguments in contending that appellants' lawsuit is non-justiciable: First, the complaint should be dismissed in deference to the foreign-policy views of the Executive Branch. Second, adjudication of the complaint would interfere with an international agreement supported by the United States. Third, comity is owed to the legislative, executive, or judicial acts of Indonesia.
In Sosa, the Supreme Court referenced the "policy of case-specific deference to the political branches." 542 U.S. at 733 n. 21, 124 S.Ct. 2739. The Court did not elaborate, although such deference could implicate a number of the factors identified in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
By letter of July 29, 2002, the Legal Adviser of the State Department, in response to the district court's inquiry, filed a statement of interest that appellants' lawsuit "would in fact risk a potentially serious adverse impact on significant interests of the United States." The letter noted, however, that the assessment was "necessarily predictive and contingent on how the case might unfold in the course of litigation." The letter emphasized that the impact on U.S. foreign policy interests "cannot be determined with certainty." The State Department attached a letter of July 15, 2002 from the Indonesian Ambassador stating that Indonesia "cannot accept" a suit against an Indonesian government institution, and that U.S. courts should not be adjudicating "allegation[s] of abuses of human rights by the Indonesian military." In a supplemental statement of July 14, 2003, the Justice Department referenced the views expressed in the State Department's 2002 letter while arguing the legal point that the ATS is merely a jurisdictional statute and that there is no private right of action under the ATS, a point rendered moot by Sosa. By letter of July 15, 2005, the State Department expressed "concerns" with the plaintiffs' proposed discovery plan of May 16, 2005 — not implemented by the district court — which would have involved relatively broad discovery that could extend to documents located in Indonesia. Doe I, 473 F.3d at 347. Upon dismissing the statutory claims on their merits, see Doe I, 393 F.Supp.2d at 24-27, the district court explained:
Id. at 29-30.
In the prior interlocutory appeal, this court rejected Exxon's justiciability contention inasmuch as the State Department's 2002 letter contained "several important qualifications." Doe I, 473 F.3d at 354. "[T]he State Department's letter [is] not [ ] an unqualified opinion that this suit must be dismissed, but rather [ ] a word of caution to the district court alerting it to the State Department's concerns." Id. The court further noted that the reference to "how the case might unfold in the course of litigation" leads to the inference that "the State Department did not necessarily expect the district court to immediately dismiss the case in its entirety." Id. Moreover, the court noted the possibility that it had misinterpreted the letter, and invited the State Department, if that were the case or if the Department had additional concerns about the litigation, "to file further letters or briefs with the district court expressing its views." Id. The court cited opinions from the Ninth and Eleventh Circuits rejecting non-justiciability objections for ATS or common law tort actions.
The interlocutory appeal decided only that Exxon lacked a "clear and indisputable" right to a writ of mandamus ordering appellants' common law tort claims to be dismissed under the political question doctrine. Doe I, 473 F.3d at 357. Now this court reviews de novo the district court's decision to dismiss those claims. See Lin v. United States, 561 F.3d 502, 505 (D.C.Cir.2009). Subsequent events persuade us that the considered analysis by this court in Doe I is correct. The Supreme Court denied Exxon's petition for a writ of certiorari, Exxon Mobil Corp. v. Doe I, 554 U.S. 909, 128 S.Ct. 2931, 171 L.Ed.2d 876 (2008), which the United States opposed. The United States stated that "[t]he district court carefully considered concerns identified by the United States in its submissions to that court," noting dismissal of the federal law claims,
This court "grant[s] substantial weight" to State Department statements regarding factual questions that are "at the heart of the Department's expertise." In re Papandreou, 139 F.3d 247, 252 & n. 2 (D.C.Cir.1998). Currently the court has no occasion to "decide what level of deference would be owed to a letter from the State Department that unambiguously requests that the district court dismiss a case as a non-justiciable political question." Doe I, 473 F.3d at 354 (emphasis in original). Before this court are only: (1) an ambiguous statement of interest by the State Department in 2002 regarding the plaintiffs' litigation, respecting both the federal statutory and non-federal tort claims; (2) an amicus brief filed by the Solicitor General and the State Department's Legal Advisor emphasizing that the statement of interest did not constitute an explicit request for dismissal and affirming that the district court had mitigated the concerns of the United States regarding discovery; (3) silence from the United States in the years since the United States' statement as amicus to the Supreme Court, notwithstanding this court's invitation in Doe I to file a further statement of interest; and (4) an amicus brief filed by the United States in another circuit emphasizing that the United States will make an explicit request for dismissal when appropriate. Also lodged but not filed in this court is a letter of January 24, 2011 from the Indonesian Embassy expressing continuing objection to plaintiffs' lawsuits. Given the United States' subsequent filings — and subsequent silence — the court concludes that it did not misinterpret the Legal Advisor's 2002 statement of interest.
In August 2005, a Memorandum of Understanding Between the Government of the Republic of Indonesia and the Free Aceh Movement was signed as part of the Helsinki Accord. Exxon characterizes the Memorandum as a peace treaty ending the Aceh conflict and appellants' claims as arising out of injuries allegedly sustained during the civil war. By letter of February 1, 2007 to the State Department, the Indonesian Embassy "reaffirm[ed] its position as contained in the previous correspondence," "highlight[ed]" the memorandum of understanding, and concluded that adjudication of appellants' lawsuit "could be deemed as undermining the result of the democratic process." Exxon suggests continuation of this litigation would also "necessarily embody a `lack of respect due' to the Executive Branch's support of the Helsinki Accord," Appellees' Br. 65 (citing Baker v. Carr, 369 U.S. at 217, 82 S.Ct. 691).
Exxon marshals paltry support for its asserted domestic doctrine of nonjusticiability based on interference with the peace process. It relies on the proposition that "war-related claims, including those not explicitly addressed, are extinguished by [a] peace settlement," id. at 64 (quoting Burger-Fischer v. Degussa AG, 65 F.Supp.2d 248, 274 (D.N.J.1999) (alteration in original), principally pointing to Ware v. Hylton, 3 U.S. (3 Dall.) 199, 230, 1 L.Ed. 568 (1796)). In Ware v. Hylton, a British subject sought to recover a debt confiscated by the Commonwealth of Virginia during the War of Independence, and Justice Chase wrote that inasmuch as "the treaty of peace abolishes the subject of the war, and that after peace is concluded, neither the matter in dispute, nor the conduct of either party, during the war, can ever be revived, or brought into contest again." Id. at 230. This principle was applied in Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C.Cir.2005), involving claims by women who had been abducted and forced into sexual slavery by the Japanese Army before and during World War II; both Japan and the State Department filed statements that treaties between Japan and Taiwan, South Korea, the Philippines, and China, respectively, had resolved all civil claims. Id. at 52. This court relied on the statement of the State Department that the claims had been extinguished by treaty.
Exxon's invocation of this doctrine founders on a fundamental level. As demonstrated by the noted sources, the basic principle is that a state has authority to bargain on behalf of its citizens and, consequently, to bargain away its citizens' civil claims. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 299-300. Once an international settlement agreement is finalized, the private claim becomes a "claim of the state and is under the state's control." RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 902 cmt. i. The flaw in Exxon's reasoning is that the Free Aceh Movement is not, and never was, a state. Appellants consequently challenge the characterization of the Memorandum of Understanding as a "treaty of peace," and it is notable that there is no statement by the Executive Branch that supports the characterization. The principle articulated by Justice Chase and the Restatement is that the citizens of once-warring countries may rely on their respective sovereigns to enforce their claims or not, if that proves a necessity of foreign relations. Following the conflict, citizens of each sovereign may petition their own governments to enforce their claims. Appellants have no such recourse because the Free Aceh Movement is not a sovereign; Aceh's rebellion did not result in its independence from Indonesia. Exxon cites no authority for the extension of the doctrine articulated in Ware to domestic agreements and the purpose underlying the doctrine would appear to have no applicability when the agreement is not bargained by two independent sovereigns.
So understood, Exxon's contention that the court must afford respect to "the Executive Branch's support" of the Memorandum of Understanding, Appellees' Br. 65, becomes no more than an alternative approach to the case-specific deference to the Executive Branch already discussed. The State Department filed its only statement of interest three years before the Memorandum of Understanding was signed, and the United States made no reference to it in its amicus brief filed before the Supreme Court. Thus, where Exxon's first contention regarding nonjusticiability was premised on ambiguity followed by silence, Exxon's second contention is premised on silence alone.
Exxon's invocation of the doctrine of comity, citing Hilton v. Guyot, 159 U.S. 113,
Id. at 202-03, 16 S.Ct. 139. In other words, a foreign judgment ought to have preclusive effect and be granted full credit and effect under the principles of comity and international law. Id. at 206, 16 S.Ct. 139. Circuit courts of appeals applying Hilton require adjudication of the propriety of a foreign judicial decision, Phila. Gear Corp. v. Phila. Gear de Mexico, S.A., 44 F.3d 187, 191 (3d Cir.1994), and where no proceeding has been conducted abroad, emphasize the importance of an available foreign forum, see, e.g., Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1238-39 (11th Cir.2004); Bigio v. Coca-Cola Co., 239 F.3d 440, 454 (2d Cir.2001); Jota v. Texaco Inc., 157 F.3d 153, 160 (2d Cir.1998).
In effect, Exxon challenges the district court's conclusion that, assuming without deciding that the ATS has a prudential exhaustion requirement, see Sosa, 542 U.S. at 733 n. 21, 124 S.Ct. 2739, the plaintiffs were excused from meeting the requirement because "it is apparent here that efforts to pursue this case in Indonesia would be futile." Doe I, 393 F.Supp.2d at 25. Specifically, the district court found that the plaintiffs, in response to an affidavit from an Indonesian Supreme Court Justice that their claims could be litigated in Indonesia, "effectively counter that they risk the very real possibility of reprisals, including death, if they pursue their claims there." Id. The only circuit court of appeals to address the question held that a prudential exhaustion requirement does exist under international law and the ATS, but that where "the United States `nexus' is weak, courts should carefully consider the question of exhaustion, particularly ... with regard to claims that do not involve matters of `universal concern,'" and in so doing apply the usual domestic exhaustion principles, including that "[t]he defendant bears the burden to plead and justify an exhaustion requirement, including the availability of local remedies." Sarei, 550 F.3d at 832. The "remedy must be available, effective, and not futile." Id.
Exxon's contention regarding international comity thus appears to be an attempt to reargue the issue of prudential exhaustion, which it has not appealed, see supra Part II.A, without challenging the district court's finding that efforts to pursue the case in Indonesia would be futile. In order to invoke this doctrine, Exxon must either point to a legal proceeding in Indonesia involving these particular plaintiffs to which the court must defer or at least the availability of effective and non-futile local remedies. See Bigio, 239 F.3d at 454. Exxon has done neither.
The district court dismissed the common law claims for lack of prudential standing. Doe VIII, 658 F.Supp.2d 131. Appellants correctly contend that there is no per se rule against standing for non-resident aliens in federal courts and that under a case-by-case approach, upon applying the zone-of-interests test, they have prudential standing to bring their claims. Exxon disputes that appellants meet the zone-of-interests test, and alternatively maintains that the district court erred in its choice of law analysis and that principles of federal foreign affairs preemption dispose of appellants' claims.
In dismissing the common law claims, the district court relied on Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144 (D.D.C.1976), which relied on an asserted "general rule that non-resident aliens have no standing to sue in United States courts." Id. at 152. Appellants contend that neither that case nor any subsequent case has established such a general rule, which would be contrary to the rules of prudential standing and the Framers' intent. Neither Exxon nor amici supporting Exxon rely in this court on Berlin Democratic Club or any per se rule. Instead they maintain appellants fail to show that they fall within the zone of interests of D.C. common law because neither the District of Columbia nor any state of the United States has any interest in extending its law to reach the allegations of non-residents involving foreign individuals within the territory of a foreign sovereign, particularly when, they assert, the claims concern acts of that sovereign's military during a civil war. Our analysis begins with a review of the standard for prudential standing and then applies that standard to appellants' tort claims.
To the extent the court in Berlin Democratic Club relied on this court's opinions, they have been qualified, if not overruled, by subsequent Supreme Court decisions.
Before this court spoke again on the question of prudential standing for a non-resident alien, the Supreme Court rendered a series of decisions on prudential standing,
Since Valley Forge this court has imposed no special disability on non-resident alien status in addressing standing to bring constitutional claims. In Cardenas v. Smith, 733 F.2d 909 (D.C.Cir.1984), the court characterized Kukatush Mining as identifying a non-exhaustive list of situations in which a non-resident alien may bring suit, and Constructores Civiles as signaling a "relaxation of rigidities" in adopting a "case-by-case analytical approach." Id. at 916. Applying the zone-of-interests test of Valley Forge, the court inquired whether the interest asserted by the plaintiff "enjoys the protection of the Fourth and Fifth Amendments," the substantive basis for the plaintiff's suit, and acknowledged that "the inquiry tends to meld into the question of whether [the plaintiff] has a cause of action to enforce these Amendments." Id. at 915. "It is beyond peradventure," the court noted, "that a foreign nonresident, non-hostile alien may, under some circumstances, enjoy the benefits of certain constitutional limitations imposed on United States actions." Id. In DKT Memorial Fund v. Agency for International Development, 887 F.2d 275 (D.C.Cir.1989), the court again decided the prudential standing question based on the substantive question of the territorial reach of the constitutional protection: the court looked at the merits of the plaintiff's claim to determine whether the First Amendment protected the conduct of the non-resident aliens. Id. at 284-85.
Consequently, regardless of whether Berlin Democratic Club was correctly decided based on authority in this circuit at the time, this court now analyzes prudential standing on a case-by-case basis based on the zone of interests of the law providing the basis for the plaintiff's cause of action. The court has not identified any special rule governing the prudential standing of non-resident aliens. To the extent the zone-of-interests test is dependent on a "peek at the merits," Emergency Coal. to Defend Educ. Travel v. U.S. Dep't of the Treasury, 545 F.3d 4, 11 (D.C.Cir. 2008), the substantive question will be whether a constitutional, statutory, or common law protection has extraterritorial reach or reaches non-resident aliens.
The test for prudential standing "is not meant to be especially demanding," and there "need be no indication of [legislative] purpose to benefit the would-be plaintiff." Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). The question whether appellants would have prudential standing under the zone-of-interests test, assuming it applies,
"To determine which jurisdiction's substantive law governs a dispute, District of Columbia courts blend a `governmental interests analysis' with a `most significant relationship' test." Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 842 (D.C.Cir.2009) (quoting Hercules & Co., Ltd. v. Shama Rest. Corp., 566 A.2d 31, 40-41 & n. 18 (D.C.1989)). "Under the governmental interests analysis[,] ... [a court] must evaluate the governmental policies underlying the applicable laws and determine which jurisdiction's policy would be most advanced by having its law applied to the facts of the case under review." Id. (quoting Hercules, 566 A.2d at 41) (alterations in original). "To determine which jurisdiction has the most significant relationship to a case, a court must consider ...:(1) `the place where the injury occurred'; (2) `the place where the conduct causing the injury occurred'; (3) `the domicil[e], residence, nationality, place of incorporation and place of business of the parties'; and (4) `the place where the relationship, if any, between the parties is centered.'" Id. (quoting RESTATEMENT (SECOND) OF CONFLICT OF LAW § 145(2) (1971)).
The District of Columbia courts follow section 145 of the Restatement, see Rymer v. Pool, 574 A.2d 283, 286 (D.C. 1990), a comment to which states: "When certain contacts involving a tort are located in two or more states with identical local law rules on the issue in question, the case will be treated for choice-of-law purposes as if those contacts were grouped in a single state." RESTATEMENT (SECOND) OF CONFLICT OF LAW § 145, cmt. i; see also Simon v. United States, 341 F.3d 193, 198 n. 3 (3d Cir.2003). The district court concluded that there was no conflict among the laws of the District of Columbia, Delaware, New Jersey, and Texas, except as to the wrongful death claim as to which the district court applied Delaware law.
"[S]ubject only to rare exceptions, the local law of the state where conduct and injury occurred will be applied to determine whether the actor satisfied minimum standards of acceptable conduct and whether the interest affected by the actor's conduct was entitled to legal protection." RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145 cmt. d; see also Drs. Groover, Christie & Merritt, P.C. v. Burke, 917 A.2d 1110, 1117 (D.C.2007). The place of injury is accorded particular importance "in the case of personal injuries and of injuries to tangible things." Washkoviak v. Student Loan Mkg. Ass'n, 900 A.2d 168, 182 (D.C.2006) (quoting RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145 cmt. f). The district court concluded that "[s]ome (perhaps most) of the conduct occurred in Indonesia, although plaintiffs argue that Exxon Mobil knew about and participated, indeed directed, from the United States the allegedly culpable conduct to the detriment of plaintiffs." Doe I, 2006 WL 516744, at *1. Other than decision-making, for purposes of the non-federal tort claims all conduct causing injury occurred in Indonesia according to the complaint. The plaintiffs are citizens of and reside in Indonesia. The defendants, at the time the Doe I complaint was filed in 2001, were incorporated in the United States: one corporate defendant had its principal place of business in Indonesia and three in various U.S. states. The citizenship of the corporate defendant with its principal place of business in Indonesia at the time the Doe VIII complaint was filed in 2007 remains in dispute. The district court found that "[t]he relationship between [Exxon] and plaintiffs is likely centered in Indonesia." Id.
In view of the importance that the Restatement places on the place of injury, which District of Columbia choice of law rules follow, RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145 cmt. d; Rymer, 574 A.2d at 286, and the fact that the remaining factors weigh in favor of a choice of Indonesian law, we hold that Indonesian law applies to appellants' non-federal claims. Exxon's objection that Indonesian law should not apply due to considerations of international comity concerns the content of Indonesian law, not its applicability under District of Columbia choice of law rules. Exxon relies on dictum in Phillips v. Eyre, (1870) 6 L.R.Q.B. 1 at 30-31 (Eng.), for the proposition that comity would support recognizing a general amnesty issued by the foreign jurisdiction upon whose law the court relies. It points to the objection of the Indonesian Embassy, which refers to an agreement to establish a human rights court and a commission for truth and reconciliation, but does not refer to either the implementation of that agreement, the exclusivity of that remedy, or amnesty for any party. None of the experts on Indonesian law presented to the district court referred to the remedies cited by the Embassy and their status and applicability are uncertain.
Because Indonesian law applies under District of Columbia choice of law rules,
Exxon contends that the Doe VIII complaint, which is based on diversity jurisdiction, 28 U.S.C. § 1332, should be dismissed for lack of complete diversity between plaintiffs and defendants. Complete diversity requires that no two parties on opposite sides of an action can be citizens of the same state. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267, 2 L.Ed. 435 (1806). The diversity statute does not confer subject matter jurisdiction over a lawsuit between an alien on one side, and an alien and a U.S. citizen on the other side. See Saadeh v. Farouki, 107 F.3d 52, 61 (D.C.Cir.1997). The Doe VIII complaint alleges that the plaintiffs are Indonesian citizens, Doe VIII Compl. ¶¶ 6-9, and that defendant Exxon Mobil of Indonesia ("EMOI"), is incorporated in the Cayman Islands with its principal place of business in Indonesia. Id. ¶ 16.
The district court did not reach Exxon's diversity objections. We agree with appellants that EMOI's non-diversity would not mandate dismissal because the district court, were it to find that EMOI is a non-diverse party, could dismiss EMOI, permitting appellants to proceed against Exxon Mobil Corporation. Federal Rule of Civil Procedure 21 permits dismissal of "jurisdictional spoilers" and creates a "fiction that [the dismissal] relates back to the date of the complaint," In re Lorazepam & Clorazepate Antitrust Litig., 631 F.3d 537, 542 (D.C.Cir.2011). We therefore remand this issue to the district court.
Accordingly, we affirm the dismissal of appellants' TVPA claims, we reverse the dismissal of the ATS claims at issue in this appeal, along with the dismissal of appellants' non-federal tort claims, and we remand the cases to the district court.
KAVANAUGH, Circuit Judge, dissenting in part:
Plaintiffs are Indonesian citizens who allege that they (or their family members) were imprisoned, beaten, abused, and in some cases killed in Indonesia by Indonesian soldiers. Plaintiffs claim that the Indonesian soldiers violated customary international norms against torture, extrajudicial killing, and prolonged detention. The Indonesian soldiers provided security for an American corporation, Exxon. In this case, plaintiffs did not sue Indonesia or Indonesian officials. Rather, they sued Exxon under the Alien Tort Statute, or ATS, for aiding and abetting the Indonesian officials' tortious conduct.
The ATS grants federal 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." 28 U.S.C. § 1350. In
In the District Court, Judge Oberdorfer dismissed plaintiffs' ATS claims. Doe I v. Exxon Mobil Corp., 393 F.Supp.2d 20, 24-27 (D.D.C.2005). I would affirm Judge Oberdorfer's decision for any of four independent reasons.
First, under the presumption against extraterritoriality, the ATS does not apply to conduct that occurred in foreign nations — such as this suit, which concerns conduct that occurred in Indonesia. A "longstanding principle of American law" dictates that "legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." EEOC v. Arabian American Oil Co. (ARAMCO), 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991). The presumption helps the United States avoid conflicts with other nations, which of course have a strong interest in policing and regulating conduct in their own countries. The ATS contains no textual indication that it was meant to apply to conduct in foreign countries. Moreover, the ATS's historical purpose was to avoid conflicts with foreign governments. It did so by providing redress for foreign citizens who suffered injuries within the United States or on the high seas. As this case exemplifies — given Indonesia's strenuous and repeated objections to a U.S. court's entertaining plaintiffs' suit — extending the ATS to conduct that occurs in foreign countries creates rather than avoids conflicts with foreign nations and thus runs directly counter to both the presumption against extraterritoriality and the ATS's design and purpose.
Second, as the Second Circuit recently held, the ATS does not apply to claims against corporations. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir.2010). In Sosa, the Supreme Court stated that courts in ATS cases must determine whether customary international law "extends the scope of liability for a violation of a given norm to the perpetrator being sued." 542 U.S. at 732 n. 20, 124 S.Ct. 2739. Customary international law does not recognize corporate liability. That means plaintiffs' ATS claims against a corporation (Exxon) cannot go forward. Moreover, the Supreme Court in Sosa emphasized the need for judicial restraint,
Third, even if customary international law established corporate liability for torture and extrajudicial killing, we still should not allow plaintiffs' ATS claims for those violations to go forward because doing so would be incongruous with the Torture Victim Protection Act. The Supreme Court has indicated that courts should exercise judicial restraint and interpret the open-ended language of the ATS by reference to analogous congressionally enacted causes of action. See Sosa, 542 U.S. at 731, 124 S.Ct. 2739. Plaintiffs assert that the ATS and customary international law give aliens a cause of action for torture and extrajudicial killing. The analogous Torture Victim Protection Act gives U.S. citizens a cause of action for torture and extrajudicial killing. But the TVPA does not allow corporate liability or aiding and abetting liability. In exercising the restraint mandated by the Supreme Court in ATS cases, we must follow Congress's approach to fashioning the TVPA for U.S. citizens and similarly fashion the ATS for aliens. Under the majority opinion's contrary approach, an alien can sue a corporation in a U.S. court for aiding and abetting torture and extrajudicial killing, but a U.S. citizen cannot sue the same corporation in the same U.S. court for the exact same aiding and abetting of torture and extrajudicial killing. That makes little sense and is, to put it charitably, a strange reading of congressional intent and Supreme Court precedent.
Fourth, the Supreme Court has required us to interpret the open-ended language of the ATS so as to avoid conflict with the Nation's foreign policy — and therefore, to heed Executive Branch statements of interest in ATS cases. See Sosa, 542 U.S. at 733, 124 S.Ct. 2739 n.21. Following Sosa, courts must dismiss ATS cases when the Executive Branch reasonably explains that the suit would harm U.S. foreign policy interests. Here, the Executive Branch has repeatedly stated that allowing these ATS claims to proceed would harm the United States' relationship with Indonesia — an assertion backed up by several pointed letters that the Government of Indonesia has submitted directly to this Court and the District Court. The Executive Branch has explained that damage to the United States' relationship with Indonesia would in turn impair American national security and foreign policy with respect to the ongoing war against al Qaeda, a war in which Indonesia is a key ally. Judge Oberdorfer heeded those concerns and, in light of them, properly dismissed plaintiffs' ATS claims.
First, I would dismiss the ATS claims because the torts alleged here occurred in Indonesia and the ATS does not extend to conduct that occurred in foreign lands.
It is a "longstanding principle of American law `that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.'" EEOC v. Arabian American Oil Co. (ARAMCO), 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949)). Because Congress "ordinarily legislates with respect to domestic, not foreign matters," courts presume that statutes do not apply to conduct in foreign lands unless an "affirmative intention of the Congress clearly expressed" indicates otherwise. Morrison v. Nat'l Australia Bank Ltd., ___ U.S. ___, 130 S.Ct. 2869, 2877, 177 L.Ed.2d 535 (2010).
The presumption against extraterritoriality "serves to protect against unintended
The presumption against extraterritoriality is focused on the site of the conduct, not the identity of the defendant. See, e.g., Morrison, 130 S.Ct. at 2884 (the transactions that a statute "seeks to regulate" must occur domestically) (internal quotation marks omitted). That a defendant is a U.S. citizen thus does not mitigate the force of the presumption. In ARAMCO, for example, the Supreme Court held that Title VII did not regulate the foreign employment practices of two Delaware corporations. 499 U.S. at 247, 259, 111 S.Ct. 1227. And in Morrison, the Supreme Court dismissed a securities suit against both foreign and U.S. corporations for misconduct in connection with securities traded on foreign exchanges. 130 S.Ct. at 2875-76, 2888.
That canon of construction is deeply rooted. In 1824, for example, the Supreme Court instructed that "however general and comprehensive the phrases used in our municipal laws may be, they must always be restricted in construction, to places and persons, upon whom the Legislature have authority and jurisdiction." The Apollon, 22 U.S. 362, 370, 9
The canon remains to this day an essential part of the Supreme Court's jurisprudence. The Court has invoked it repeatedly in recent years. See, e.g., Morrison, 130 S.Ct. at 2877 (2010); Small v. United States, 544 U.S. 385, 388, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005); ARAMCO, 499 U.S. at 248, 111 S.Ct. 1227 (1991).
In applying the presumption against extraterritoriality, we "look to see whether language in the [relevant Act] gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control." ARAMCO, 499 U.S. at 248, 111 S.Ct. 1227 (alteration in original) (internal quotation marks omitted). "When a statute gives no clear indication of an extraterritorial application, it has none." Morrison, 130 S.Ct. at 2878.
Here, the sparse text of the ATS does not support application of the law to conduct in foreign lands. The ATS refers to conduct committed in "violation of the law of nations or a treaty of the United States." To be sure, such conduct can occur worldwide. But as the Supreme Court has explained, the mere fact that statutory language could plausibly apply to extraterritorial conduct does not suffice to overcome the presumption against extraterritoriality. Otherwise, most statutes, including most federal criminal laws, would apply extraterritorially and cover conduct occurring anywhere in the world. In Morrison and ARAMCO, the Supreme Court recognized that commonsense point and ruled that "broad jurisdictional language" and statutory references to acts occurring in "foreign commerce" did not suffice to overcome the presumption against extraterritoriality. See Morrison, 130 S.Ct. at 2882 (interpreting § 10(b) of the Exchange Act); ARAMCO, 499 U.S. at 251, 111 S.Ct. 1227 (interpreting Title VII); see also Small, 544 U.S. at 389-91, 125 S.Ct. 1752 (statutory phrase "convicted in any court" refers only to convictions in domestic courts).
Nor does the ATS's specific reference to alien plaintiffs establish that the statute applies extraterritorially. That language merely ensures that alien plaintiffs can sue under customary international law for injuries suffered within the United States. Similarly, in ARAMCO, the statute covered aliens, but the Supreme Court said the statute did not apply to extraterritorial conduct. See 499 U.S. at 255, 111 S.Ct. 1227 (Title VII did not apply abroad although the statute protected aliens working in the United States).
The ATS's historical context likewise provides no basis for rebutting the presumption against extraterritoriality. Indeed, the ATS's background provides affirmative evidence reinforcing the conclusion that the statute does not apply to conduct occurring in foreign countries.
Under the Articles of Confederation, which were in effect from 1781 until the U.S. Constitution was ratified in 1788, the U.S. Government lacked authority to remedy or prevent violations of the law of nations. Two incidents during that period involving foreigners mistreated in the United States highlighted the problem created by this legal vacuum. In the "Marbois Affair" of 1784, the Secretary of the French Legion, a French ambassador of sorts, was assaulted on a street in Philadelphia. See William R. Casto, The Federal Courts' Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations, 18 CONN. L.REV. 467, 491-92
After ratification of the Constitution in 1788, the First Congress addressed this problem in 1789 by enacting the Alien Tort Statute, which was part of Section 9 of the Judiciary Act of 1789. See id. at 717, 124 S.Ct. 2739. The statutory text allowed aliens to sue for torts committed in violation of the law of nations or a U.S. treaty. The ATS's primary purpose was to ensure federal redress for incidents like the two described above and thereby avoid unnecessary conflicts with foreign nations. See id. at 715-20, 124 S.Ct. 2739. The First Congress was concerned about aliens who were injured in the United States in violation of customary international law, but who had no redress in federal court. But there is no evidence that Congress was concerned about remedying aliens' injuries that occurred in foreign lands. And there is no particular reason that Congress would have been concerned about aliens injured in foreign lands. Remedies for such injuries could be provided, after all, by foreign sovereigns under their countries' laws.
The purpose and background of the ATS — avoiding conflict with foreign nations — thus reinforce the presumption against extraterritoriality. And modern ATS litigation further demonstrates the continuing vitality of the concerns that undergird the presumption. The goal of the presumption against extraterritoriality, like the goal of the ATS, is to avoid conflict with foreign nations. But recent ATS cases based on acts that occurred in foreign nations have often engendered conflict with other sovereign nations, rather than avoided it. The Government of Indonesia, for example, has strenuously and repeatedly objected to this lawsuit. The Government of South Africa complained for six years that an extraterritorial ATS case litigated in the Second Circuit interfered with the operation of its post-apartheid Truth and Reconciliation Commission. See Sosa, 542 U.S. at 733 n. 21, 124 S.Ct. 2739. The Canadian government objected to an ATS suit brought against a Canadian corporation for conduct that occurred in Sudan, explaining that the suit interfered with Canada's foreign relations. See Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01-9882, 2005 WL 2082846, at *1-2 (S.D.N.Y. Aug. 30, 2005). The Government of Papua New Guinea objected for at least two years to an ATS suit against a mining corporation that operated on the island, complaining that the
This laundry list shows that something is palpably awry in the modern ATS litigation juggernaut. The problem stems in large part from extension of the ATS to conduct occurring in foreign lands. The presumption against extraterritoriality was designed, in part, to prevent such overreaching and thereby avoid this kind of international discord. See ARAMCO, 499 U.S. at 248, 111 S.Ct. 1227. As its history reveals, the ATS shared the same broad purpose. Stretching the ATS to cover conduct in other countries thus has managed to flout the purposes of both the ATS itself and the longstanding presumption against extraterritoriality. Courts may — and indeed, under binding Supreme Court precedent, must — adhere to and apply the settled presumption against extraterritoriality, and thereby avoid creating this kind of unnecessary international discord.
To be sure, the interaction of the ATS and the presumption against extraterritoriality does raise one analytical wrinkle, although it's not presented in this case: Does the ATS apply to conduct on the high seas — that is, conduct neither in the territory of the United States nor in the territory of a foreign country? I believe the better answer is yes, and that the presumption against extraterritoriality is overcome to that limited extent in ATS cases. The Supreme Court noted in Sosa that piracy was one of the three causes of action contemplated by the First Congress when it passed the ATS. 542 U.S. at 720, 124 S.Ct. 2739. "[P]iracy, by the law of nations, is robbery upon the sea"; it cannot, as a definitional matter, occur on U.S. soil. United States v. Smith, 18 U.S. 153, 162, 5 Wheat. 153, 5 L.Ed. 57 (1820) (Story, J.). (The other two causes of action originally available under the ATS — offenses against ambassadors and violations of safe conducts — can occur in the United States.) Because we know that Congress intended the ATS to cover piracy and because piracy occurs on the high seas, it follows that Congress intended the ATS to apply to conduct on the high seas.
Applying the ATS to conduct on the high seas does not pose the risk of conflicts with foreign nations that the presumption against extraterritoriality and the ATS itself were primarily designed to avoid. The high seas are jurisdictionally unique. They are "the common highway of all nations," governed by no single sovereign. The Apollon, 22 U.S. at 371. As a result, the high seas may fall within the jurisdiction of the federal courts even
That distinction between foreign lands and the high seas makes good sense, particularly as applied to the ATS. Tortious conduct that occurs in a foreign nation's territory is regulated by the foreign sovereign. Tortious conduct on the high seas, by contrast, is regulated by no nation in particular. See Smith, 18 U.S. at 162 (describing "the general practice of all nations in punishing all persons, whether natives or foreigners, who have committed [piracy] against any persons whatsoever, with whom they are in amity"). Although the United States risks offending foreign nations by regulating conduct occurring in those foreign countries, it performs something of an international public service by supplying a customary international law cause of action in federal court against illegal conduct on the high seas. Cf. The Marianna Flora, 24 U.S. 1, 40, 11 Wheat. 1, 6 L.Ed. 405 (1825) (pirates "are, in truth, the common enemies of all mankind") (Story, J.). The ATS, designed to smooth and improve the United States' relations with foreign nations, thus quite sensibly may be interpreted to extend to conduct on the high seas but not to conduct in foreign countries.
Attorney General Bradford's 1795 opinion about an incident in Sierra Leone also supports this distinction between (i) conduct in the United States or on the high seas and (ii) conduct in foreign lands. The Bradford opinion considered whether the United States could criminally prosecute an individual for acts committed on the high seas and in Sierra Leone. The opinion also mentioned civil liability under the ATS. The opinion is best read to say that the ATS applies to conduct in the United States or on the high seas. It does not say that the ATS extends to conduct in foreign lands. Because the opinion's meaning has been the subject of some debate in ATS cases, compare Maj. Op. at 23-24, with Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 142 n. 44 (2d Cir.2010), I reproduce the relevant portion in its entirety here:
1 U.S. Op. Att'y Gen. at 58-59 (first and second emphases added). When the Bradford opinion finally mentions the ATS, it is focused on acts "committed on the high seas," not on acts that occurred in a foreign country. The Second Circuit recently analyzed the Bradford opinion and reached the same conclusion: "Attorney General Bradford circumscribes his opinion, appearing to conclude that the Company
In sum, the presumption against extraterritoriality bars ATS suits based on conduct in foreign lands. The ATS contains no "indication of a congressional purpose to extend its coverage" to conduct occurring in foreign lands. ARAMCO, 499 U.S. at 248, 111 S.Ct. 1227. And the ATS's history provides affirmative evidence supporting its limited geographic scope. The First Congress was, for good reason, primarily concerned about torts against aliens that occurred within the United States and on the high seas. Extending the ATS to conduct that occurs in foreign countries not only violates the presumption against extraterritoriality, but runs counter to the ATS's broad purpose of avoiding conflict with foreign nations. Applying the bedrock presumption against extraterritoriality would alleviate the serious discord with foreign nations that has arisen in recent years as courts have extended the ATS to conduct occurring in foreign lands. I would dismiss plaintiffs' ATS claims — which are based on conduct that occurred in Indonesia — because the ATS does not apply to conduct that occurred within a foreign country.
Second, and in the alternative, I would dismiss plaintiffs' ATS claims because the ATS does not apply to claims against corporations. In cases such as this where no U.S. treaty is involved, claims under the ATS are defined and limited by customary international law, and customary international law does not extend liability to corporations.
The ATS allows alien plaintiffs to bring tort claims for violations of customary international law norms that are "accepted by the civilized world and defined with a specificity comparable to" the three original norms thought to be cognizable under the ATS: offenses against ambassadors, violations of safe conducts, and piracy. Sosa v. Alvarez-Machain, 542 U.S. 692, 725, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). As the Supreme Court directed: "Whatever the ultimate criteria for accepting a cause of action subject to jurisdiction" under the ATS, "federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms [offenses against ambassadors, violations of safe conducts, and piracy] familiar when [the ATS] was enacted." Id. at 732, 124 S.Ct. 2739. The Court emphasized that courts must exercise "great caution" and "vigilant doorkeeping" in ATS cases. Id. at 728-29, 124 S.Ct. 2739.
The Supreme Court has said that we look to customary international law not only for the substantive content of the tort but also for the categories of defendants who may be sued. Id. at 732 n. 20, 124 S.Ct. 2739. This is done "on a norm-specific basis." Ali Shaft v. Palestinian Authority, 642 F.3d 1088, 1096 (D.C.Cir. 2011); see also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791-95 (D.C.Cir. 1984) (Edwards, J., concurring).
In particular, the Court in Sosa stated that customary international law determines whether only state actors may be
The Supreme Court has thus required that we look to customary international law to determine what categories of defendants can be liable for violating a particular norm. See Kiobel v. Royal Dutch Petroleum, 621 F.3d 111, 127-28 (2d Cir. 2010). As applied to this case, Sosa requires us to determine "whether international law extends the scope of liability" for aiding and abetting torture, extrajudicial killing, and prolonged detention "to the perpetrator being sued" — here, a corporation. Sosa, 542 U.S. at 732 n. 20, 124 S.Ct. 2739.
To support an ATS claim against a corporation, it would not be sufficient to show that customary international law prohibits torture, extrajudicial killing, and prolonged detention when committed by state actors. It likewise would not be sufficient to show that customary international law recognizes corporate liability for some violations, but not for aiding and abetting torture, extrajudicial killing, and prolonged detention. Rather, for plaintiffs to maintain their claims, customary international law must impose liability against corporations for aiding and abetting torture, extrajudicial killing, or prolonged detention.
Customary international law generally extends liability to states, as well as to individuals who act under color of state law or aid and abet states. For most customary international law norms, customary international law does not extend liability to individuals who act independently of state involvement. (Piracy is a prominent exception; customary international law imposes liability on private individuals for piracy.) Most importantly for, present purposes, customary international law does not extend liability to corporations. As the Second Circuit accurately stated, "[t]he concept of corporate liability for violations of customary international law has not achieved universal recognition or acceptance as a norm in the relations of States with each other." Kiobel, 621 F.3d at 149; see also id. at 186 (Leval, J., concurring) ("It is true that international law, of its own force, imposes no liabilities on corporations or other private juridical entities.").
A brief review of customary international law convincingly demonstrates that, as the Second Circuit concluded, there is no corporate liability in customary international law, much less corporate liability for violations of the norms alleged here.
Traditionally, legal rights and duties under international law applied primarily to sovereign states. See 1 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 101 (1987) (Reporters' Notes). The Nuremberg trials following World War II "for the first time made explicit and unambiguous" that "individuals are responsible" for the commission of international crimes. Robert H. Jackson, Final Report to the President Concerning the Nurnberg War Crimes Trial, reprinted in 20 TEMP. L.Q. 338, 342 (1946). No corporations were charged or convicted in the Nuremberg trials, however, even though many corporate executives were individually tried. See Jonathan A. Bush, The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said, 109 COLUM. L.REV. 1094, 1098 (2009). Although numerous executives of the German company I.G. Farben were charged at the U.S. military tribunal, the Tribunal stated that "the corporate defendant, Farben, is not before the bar of this Tribunal and cannot be subjected to criminal penalties in these proceedings" because "corporations act through individuals." 8 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10 1153 (1952). Indeed, the London Charter, which established the International Military Tribunal at Nuremberg, provided jurisdiction for the tribunal to "try and punish" only "individuals or ... members of organizations." Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis art. 6, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 280; see also id. art. 9-10 (Tribunal may declare that "the group or organization of which the individual was a member was a criminal organization," which designation may serve as proof in a subsequent trial of an individual "for membership therein.").
Every international tribunal since Nuremberg that has enforced customary international law has followed this path, extending liability to individuals but not to corporations. To take the most prominent examples, the International Criminal Tribunals for Rwanda and the former Yugoslavia
A recent U.N. Report noted the "absence of an international accountability mechanism" for corporate conduct. Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises ¶ 21, U.N. Doc. A/HRC/4/35 (Feb. 19, 2007). The U.N. Report concluded that "States have been unwilling to adopt binding international human rights standards for corporations." Id. ¶ 44. As a result, "[b]efore the current round of cases in U.S. courts, no corporation had ever been charged with or convicted for an international war crime or similar offense." Bush, Prehistory of Corporations at 1098.
The Second Circuit recently summarized the state of the law this way:
Kiobel, 621 F.3d at 120.
In short, the content of an ATS claim is governed by customary international law, and customary international law does not provide liability against corporations for torture, extrajudicial killing, or prolonged detention (or aiding and abetting thereof). Even assuming that there were hints in customary international law of corporate liability for certain customary international law violations, it surely cannot be said that corporate liability for the norms alleged in this case has been established with the specificity and widespread acceptance required by Sosa for ATS cases.
Plaintiffs agree that customary international law does not extend liability to certain categories of defendants. Plaintiffs acknowledge, for example, that customary international law, except with respect to certain norms such as piracy, does not impose liability on private individuals who act independently of state involvement. And plaintiffs recognize that when customary international law does not extend liability to private individual defendants for violations of a given norm, U.S. courts cannot allow ATS suits against private individual defendants for violations of that customary international law norm.
Despite acknowledging that we should follow customary international law in determining when private parties may be
Plaintiffs' position frankly makes little sense. Either customary international law determines which categories of defendants may be liable under the ATS, or it does not. In Sosa, the Supreme Court resolved that question. The Court stated that customary international law does in fact determine which categories of defendants may be liable in ATS cases on a norm-by-norm basis. See 542 U.S. at 732 n. 20, 737, 124 S.Ct. 2739. Our Court has said the same. See Ali Shafi, 642 F.3d at 1095-96; Tel-Oren, 726 F.2d at 791-95 (Edwards, J., concurring). Applying that principle here should not be complicated — other than for the inconvenient fact that it does not lead to plaintiffs' desired result with respect to corporate liability.
The approach of plaintiffs and the majority opinion produces a very odd result: A defendant who would not be liable in an international tribunal for violation of a particular customary international law norm nonetheless may be liable in a U.S. court in an ATS suit for violation of that customary international law norm. In light of Sosa's direction, I agree with the Second Circuit that such a result is simply "inconceivable." Kiobel, 621 F.3d at 122.
In sum, customary international law does not provide corporate liability for aiding and abetting torture, extrajudicial killing, or prolonged detention. Therefore, plaintiffs cannot maintain their ATS claims against Exxon, a corporation.
Third, and also in the alternative, even if customary international law established corporate liability for aiding and abetting torture and extrajudicial killing, we still should not allow plaintiffs' ATS claims for those violations to go forward because doing so would be incongruous with the Torture Victim Protection Act, 28 U.S.C. § 1350 note.
In 1992, Congress passed and President Bush signed the Torture Victim Protection Act. That Act supplies a civil cause of action to American citizens, as well as aliens, for torture and extrajudicial killing. Americans can sue under the TVPA, just as aliens can sue under the ATS. But the TVPA does not provide for corporate liability, and it does not provide for aiding and abetting liability. As I will explain, because the TVPA does not provide for corporate liability or aiding and abetting liability in suits by U.S. citizens, we should interpret the ATS likewise not to provide for corporate liability or aiding and abetting liability in analogous suits by aliens.
Why should we pay attention to the limits in the TVPA's causes of action for
All of this is good reason for judicial restraint in ATS cases. Indeed, in Sosa, the Supreme Court emphasized the paramount need for judicial restraint, "great caution," and "vigilant doorkeeping" in ATS cases, and the Court outlined several principles of restraint that must guide the Judiciary. See Sosa v. Alvarez-Machain, 542 U.S. 692, 725-33, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). For example, as discussed above in Part II of this opinion, the Court insisted that the Judiciary recognize only those customary international law norms that are sufficiently definite and widely accepted.
Relevant to the present discussion, the Court also emphasized that courts should "look for legislative guidance before exercising innovative authority over substantive law" in ATS cases. Id. at 726, 124 S.Ct. 2739. The Court pointed out that Congress by direct or indirect command may scale back customary international law norms otherwise cognizable in ATS cases. See id. at 731, 124 S.Ct. 2739 (Congress may "shut the door to the law of nations" either "explicitly, or implicitly by treaties or statutes that occupy the field"); see also id. at 760, 124 S.Ct. 2739 (Breyer, J., concurring) ("Congress can make clear that courts should not recognize any such norm, through a direct or indirect command or by occupying the field").
What this means is that plaintiffs in ATS cases must pass through two filters with respect to the substance of their claims. First, they must show that their alleged claim against the defendant is firmly grounded in customary international law. Second, they also must show that Congress has not cast doubt on their asserted ATS claim by direct or indirect command.
In my view, Sosa's emphasis on judicial restraint and on the role of Congress dictates the following interpretive principle in ATS cases: When Congress has enacted a statute that gives U.S. citizens a cause of action for tortious conduct that is also a violation of customary international law, then the statutory limits on U.S. citizens' recovery under that statute should presumptively apply to aliens' recovery under the ATS as well. That interpretive principle avoids the bizarre result that would ensue if aliens — but not U.S. citizens — could bring suit in U.S. court for the same injuries caused by the same defendants.
Under the Sosa-based interpretive principle, plaintiffs' ATS claims for torture and extrajudicial killing are barred not just because the TVPA provides no corporate liability, but also because the TVPA provides no aiding and abetting liability. Plaintiffs are suing Exxon under an aiding and abetting theory. But the text of the TVPA does not provide for aiding and abetting liability, and the Supreme Court has made crystal clear that there can be no civil aiding and abetting liability unless Congress expressly provides for it. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994). Because liability for aiding and abetting torture and extrajudicial killing does not exist under the TVPA, courts should not allow liability for aiding and abetting torture and extrajudicial killing under the ATS.
To be clear, the TVPA does not alter or affect the contours of ATS suits based on customary international law norms other than torture and extrajudicial killing. See Sosa, 542 U.S. at 728, 124 S.Ct. 2739. The TVPA was not intended to generally preempt or displace all ATS suits. See id. (TVPA's "legislative history includes the remark that [the ATS] should `remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law'") (quoting H.R.Rep. No. 102-367, pt. 1, p. 4, 1992 U.S.C.C.A.N. 84, 86 (1991)). But the TVPA does reflect a specific congressional decision about when and under what circumstances U.S. citizens (and aliens) may sue for torture and extrajudicial killing. It would be odd and incongruous to disregard those limits in defining when aliens may sue for torture and extrajudicial killing under the ATS. Put simply, Sosa told courts in ATS cases to look to Congress for guidance, and Congress has specifically delineated what limits should attach to civil suits for torture and extrajudicial killing. Consistent with that direction in Sosa, we should follow the TVPA when fashioning the contours of the famously vague ATS. And it makes eminent sense to fashion the ATS so that aliens cannot recover in U.S. court for torture and extrajudicial killing in circumstances where U.S. citizens could not recover in U.S. court for torture and extrajudicial killing.
Fourth, and again in the alternative, I would affirm the District Court's dismissal of plaintiffs' ATS claims because the Executive Branch has reasonably explained that adjudicating those ATS claims would harm U.S. foreign policy interests.
In Sosa, as noted above, the Supreme Court emphasized that lower courts must exercise judicial restraint in ATS cases. Part of that restraint, the Court said, is "a policy of case-specific deference to the political branches" that applies in cases touching on the foreign relations of the United States. Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n. 21, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). In "such cases," the Court instructed, "there is a strong argument that federal courts should give serious weight to the Executive Branch's view of the case's impact on foreign policy." Id.; see also id. at 760-61, 124 S.Ct. 2739 (Breyer, J., concurring) ("courts should give `serious weight' to the Executive Branch's view of the impact on foreign policy that permitting an ATS suit will likely have in a given case or type of case"). The Court added that courts considering ATS cases should be "particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs." Id. at 727, 124 S.Ct. 2739.
The judicial restraint dictated by Sosa footnote 21 means the following: When the Executive Branch reasonably explains that adjudication of a particular lawsuit would adversely affect U.S. foreign policy interests, the court should dismiss the lawsuit. See id. at 733 n. 21, 124 S.Ct. 2739; cf. Republic of Austria v. Altmann, 541 U.S. 677, 702, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004) ("[S]hould the State Department
The theory behind Sosa footnote 21 is straightforward. Congress created a tort cause of action for aliens based on customary international law, a kind of international common law. Congress did so in order to benefit America's foreign relations. But if an ATS suit would harm the Nation's foreign relations — as assessed and explained by the Department of State or Department of Justice as representative of the President of the United States — then the courts have no business ignoring that statement of interest, thereby threatening the Nation's foreign relations and thwarting Congress's intent in the ATS.
Plaintiffs' case against Exxon has been pending for a decade, and the Executive Branch has repeatedly expressed its views on the ATS claims. The Executive has reasonably and consistently stated that adjudication of plaintiffs' ATS claims would harm U.S. foreign policy interests.
In July 2002, the State Department filed a statement of interest with the District Court stating that this case would interfere with the U.S. Government's foreign policy goals. That letter explained:
Letter from William H. Taft, IV, Legal Adviser, Department of State, to The Honorable Louis F. Oberdorfer, United States District Court for the District of Columbia 1-2 (July 29, 2002) (footnote omitted).
In 2003, the Department of Justice submitted a "Supplemental Statement of Interest" addressing some of the legal issues raised by plaintiffs' claims. That statement explained that the U.S. Government's concerns about the litigation required that the District Court dismiss the ATS claims:
Supplemental Statement of Interest of the United States of America at 2, Doe I v. Exxon Mobil Corp., 393 F.Supp.2d 20 (D.D.C.2005).
In the District Court, Judge Oberdorfer paid careful attention to the Executive Branch's stated concerns and dismissed plaintiffs' ATS claims, in part to avoid "adjudicating the actions of the Indonesian government." Doe I v. Exxon Mobil Corp., 393 F.Supp.2d 20, 26-27 (D.D.C. 2005). Exxon then asked this Court to entertain an interlocutory appeal or grant a writ of mandamus compelling the District Court to dismiss plaintiffs' D.C. tort claims as well. This Court declined to do so. See Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C.Cir.2007). The Court's opinion focused on plaintiffs' D.C. tort claims — the only issue presented — and did not evaluate either the Executive Branch's statement of interest with respect to the ATS claims or the District Court's decision to dismiss the ATS claims.
Exxon petitioned for certiorari with respect to the D.C. tort claims, and the Government filed an amicus brief urging the Supreme Court to deny the writ. Brief for the United States as Amicus Curiae at 8-9, Exxon Mobil Corp. v. Doe, 554 U.S. 909 (2008) (No. 07-81). In so doing, the Government's brief — which was signed by the Solicitor General and the Legal Adviser to the Department of State — reiterated the U.S. Government's position on the ATS claims:
The U.S. Government's amicus brief to the Supreme Court thus plainly stated that the Executive Branch opposed the ATS claims and that the District Court correctly dismissed plaintiffs' ATS claims in light of the Executive Branch's concerns. That amicus brief was the Executive Branch's last statement on this lawsuit.
In sum, in 2002, 2003, and 2008, the Executive Branch reasonably explained that the court would harm U.S. foreign policy interests if it allowed plaintiffs' ATS claims to proceed. The Executive Branch has never retracted the statements.
The majority opinion disagrees. In my judgment, the majority opinion does not give proper weight to the Executive Branch statements about the ATS claims. To be sure, it is possible that the Supreme Court didn't mean what it said in Sosa footnote 21. And it is possible that the Executive Branch no longer believes what it said in 2002, 2003, and 2008. On the current record, however, there can be little doubt under Sosa footnote 21 that the Executive Branch's clear and consistent statements require dismissal of the ATS claims. On remand, the District Court still can (and in my view, should) invite the Executive Branch to state or clarify its views once again. If the Executive Branch reiterates its objection to the ATS claims, then the District Court should dismiss those claims.
I respectfully dissent.
Act of March 3, 1819, ch. 77, § 5, 3 Stat. 510 (1819) (emphasis added). The 1819 Act was indefinitely extended, Act of May 15, 1820, ch. 113, § 2, 3 Stat. 600 (1820), and the crime of piracy today is "nearly identical," Hasan, 747 F.Supp.2d at 614 (citing 18 U.S.C. § 1651 and, inter alia, United States v. Corrie, 25 F. Cas. 658, 663 (C.C.D.S.C.1860) (No. 14,869)). Other cases, such as The Apollon, 22 U.S. at 370, and Rose v. Himely, 8 U.S. at 279, on which Exxon (a U.S. citizen) relies, and the prize court cases on which amici Washington Legal Foundation and Allied Educational Foundation rely, do not advance their extraterritorial objection.
§ 10, 1 Stat. at 114 (emphasis added).
Memorandum for the United States as Amicus Curiae at 20, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980), reprinted in 19 I.L.M. 585, 602-03 (1980).
United States v. Bach, 172 F.3d 520, 523 (7th Cir.1999) (citing, inter alia, David J. Seipp, The Distinction Between Crime and Tort in the Early Common Law, 76 B.U. L. REV. 59, 81 (1996)).
Id.
ICJ Statute, art. 38; see also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 102(1), 103(2).
Our dissenting colleague incorrectly implies that the definition of customary international law is synonymous with the law of nations. Dis. Op. at 71-72, 84 n. 10. Rather, as the ICJ Statute indicates, customary international law is one of the sources for the law of nations. The misconception appears also in Kiobel, 621 F.3d at 116, and Flores, 414 F.3d at 237 & n. 2, where the cited authorities for treating the "law of nations" as a synonym for "customary international law" do not support the proposition. Nor did the Supreme Court in Sosa treat as equivalent customary international law and the law of nations generally. In Sosa the notion of customary international law is not discussed until Part IV. C, where the Court addresses whether Alvarez-Machain's abduction and arrest could be considered a violation of an international norm of a sufficiently specific character to be cognizable under the ATS. 542 U.S. at 735-37, 124 S.Ct. 2739. By contrast, where the Supreme Court reaches a general conclusion it refers to "international law" or the "law of nations" without modification. See, e.g., id. at 712, 714, 715, 124 S.Ct. 2739 (quoting The Paquete Habana, 175 U.S. 677, 686, 20 S.Ct. 290, 44 L.Ed. 320 (1900)). The Court's rejection of Alvarez-Machain's claim because the defendant's conduct "violate[d] no norm of customary international law so well defined as to support the creation of a federal remedy," id. at 738, 124 S.Ct. 2739, necessarily requires for liability to exist under the ATS, a finding that the defendant either violated a norm of customary international law or a treaty to which the United States is a party. This follows not from the fact that the "law of nations" is synonymous with "customary international law." Countless sources of international law conclusively demonstrate otherwise, see generally LOUIS HENKIN, RICHARD CRAWFORD PUGH & OSCAR SCHACHTER, INTERNATIONAL LAW 51-149 (3d ed.1993), and this court ought not assume that the Court misstated international law, cf. Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 2 L.Ed. 208 (1808). Rather, in stating that courts must engage in some form of common lawmaking subject to "vigilant doorkeeping," Sosa, 542 U.S. at 729, 124 S.Ct. 2739, the Court emphasized that the violation of a norm of customary international law is a necessary condition to the recognition under federal common law of a plaintiff's claim. This by no means indicates that customary international law constitutes the entire corpus of international law or that this court, in exercising its common law authority to decide interstitial and technical questions appurtenant to the substantive norm of primary conduct, which is governed by customary international law, may not look to guidance from other sources of international law.
Id. at 622. By contrast, with respect to Puhl, the Tribunal concluded:
Id. at 620-21.
the difficulties that may arise on this head from the nature of a federal union in which each State retains a distinct and absolute sovereignty [sic] in all matters not expressly delegated to Congress leaving to them only that of advising in many of those cases in which other governments decree.
33 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 314 (John C. Fitzpatrick ed., 1933). The Secretary explained that many allowances are to be made for a nation whose whole attention till the present period has been engaged in the pursuit of measures which were to determine their existence as such, even tho they should be found deficient in those wise provisions which experience has established among older Nations.
Id.
Sosa, 542 U.S. at 732 n. 20, 124 S.Ct. 2739.
369 U.S. at 217, 82 S.Ct. 691.
It is true that some courts of appeals, without any analysis of extraterritoriality, have permitted ATS suits even though the underlying tortious conduct occurred in foreign countries. See, e.g., Hilao v. Estate of Marcos, 25 F.3d 1467 (9th Cir.1994); Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980). We are of course not bound by decisions of other courts of appeals. Moreover, those cases contain no judicial analysis of the extraterritoriality question and thus provide no persuasive arguments for accepting the extraterritorial application of the ATS. See Arizona Christian School Tuition Organization v. Winn, ___ U.S. ___, 131 S.Ct. 1436, 1448-49, 179 L.Ed.2d 523 (2011) (conclusion assumed sub silentio in prior cases is not precedent). And the fact that some of those cases have been on the books for several years does not add materially to their persuasive force. See Milner v. Dep't of the Navy, ___ U.S. ___, 131 S.Ct. 1259, 1268, 179 L.Ed.2d 268 (2011) ("immaterial" that an incorrect doctrine "has been consistently relied upon and followed for 30 years" in the lower courts).
The Supreme Court has also ruled that the presumption against extraterritoriality bars a suit based on foreign conduct even when a U.S. citizen defendant took some actions in the United States related to the foreign conduct. In ARAMCO, for example, the Title VII defendant — who allegedly discriminated against an employee working in Saudi Arabia — originally hired that employee in Houston. 499 U.S. at 247, 111 S.Ct. 1227. And in Morrison, the allegedly deceptive conduct — which affected securities transactions abroad — occurred in Florida. 130 S.Ct. at 2883-84. As the Morrison Court explained, "it is a rare case of prohibited extraterritorial application that lacks all contact with the territory of the United States. But the presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case." Id. at 2884.
