Anton Metlitsky, counsel in the Appellate practice of O’Melveny & Myers LLP, writes in with the following comments on the Kiobel oral argument. Metlitsky represents the Rio Tinto Group in its pending cert petition before the Court, and as an amicus curiae in Kiobel:
I read with interest John Bellinger’s post . . . about the oral argument in Kiobel, and I agree that at least from the questions at argument, it appears that a majority of the Court is looking for ways to limit the scope of actions under the ATS, although it is not apparent from argument how far such limitations will extend or what they might look like. It seemed to me, however, that it was not only the “liberal Justices” who believed the essential holding of Filartiga should be preserved—Justice Kennedy appears to be of the same view. For example, Justice Kennedy twice made clear during Kathleen Sullivan’s argument for Shell that he was very interested in whether Shell’s theory meant that Filartiga was wrongly decided (Tr. 23-24, 37), asking specifically: “Just assume we think the Second Circuit was right [in Filartiga], pre-congressional action under the Alien Tort Statute. Is there any way in which we can use the principle of extraterritoriality to rule in your favor?” (Tr. 37.) It seems likely, then, that whatever limits the Court will place on ATS actions, the core of Filartiga will survive. And since Filartiga involved a suit by a Paraguayan national against a Paraguayan national for conduct that occurred in Paraguay, the Court seems unlikely to adopt the strongest form of the rule pressed by respondents: that ATS actions should never be allowed when the underlying conduct occurred within the territory of a foreign sovereign.
In Sosa v. Alvarez-Machain, the Supreme Court held that the limited action available under the ATS derives from federal common law. The question, then, is whether, in fashioning a common law rule, the Court can identify a coherent limiting principle that distinguishes between cases like Filartiga (which a majority of the Court appears to want to preserve), on the one hand, and cases like Kiobel itself (which a majority of the Court appears to want to limit), on the other. Several possibilities were floated at argument by both Dean Sullivan and the Solicitor General, but the one that seems most persuasive—at least from the point of view of the defendants in these cases—is that courts should preclude ATS actions when the claim (like the one in Kiobel) is one for secondary liability and where the primary actor is a foreign sovereign, while maintaining claims for primary liability like the claim in Filartiga. This rule finds support in the history of modern ATS litigation, as well as in Congress’s prior pronouncements on similar subjects.
First, the history. The ATS was rediscovered by the Second Circuit in Filartiga nearly 200 years after it was first enacted. But the initial wave of ATS suits that started with Filartiga were limited in scope and consequence. These cases were normally brought against individual defendants who were alleged to have violated concrete, universally recognized international human rights norms. Those suits were relatively limited in number, and do not appear to have elicited strong reactions from either the United States or from foreign sovereigns.
That all changed beginning in the mid-1990s, when plaintiffs began to bring suits (often in the form of class actions) not against primary violators of human rights norms, but against private corporations who allegedly aided and abetted alleged human rights abuses of foreign sovereigns. Thus, for example, plaintiffs brought suit against dozens of corporations for aiding and abetting South African apartheid; against ExxonMobil for aiding and abetting the Indonesian military’s conduct during the Aceh conflict; and against Rio Tinto for aiding and abetting the Papua New Guinea and Australian militaries’ prosecution of the civil war an Bougainville. This second wave of modern ATS litigation was different in kind and consequence from the early Filartiga-type cases for two basic reasons: First, the aiding-and-abetting theory afforded plaintiffs the opportunity to sue corporations, which proved much more attractive targets than the individual primary violators (who often had no assets), thus leading to a proliferation of ATS suits. Second, the primary conduct targeted by these suits was almost universally done under the official policies of foreign governments themselves, rather than by individual state actors not necessarily acting in accordance with state policy. Perhaps not surprisingly, then, these suits brought hostile reactions from foreign governments—both the governments whose corporations were named as defendants and, notably, the governments whose policies the suits sought to label as violative of fundamental human rights norms. For example, the South African government strongly protested the ATS apartheid action on the ground that it interfered with South Africa’s sovereign authority to deal with its own past, while the Indonesian government objected to the ATS suit against Exxon on the ground that the suit sought an unwarranted extraterritorial indictment by U.S. courts of the conduct of the Indonesian military. And the United States similarly began to lodge protests against such suits, both in the form of amicus briefs, and in Statements of Interest from the State Department.
In response to Kathleen Sullivan’s suggestion that Kiobel and similar cases are distinguishable from Filartiga on this ground, Justice Kennedy responded: “But in Filartiga, why wasn’t there an aiding and abetting? I think it was pretty clear. He probably was working for the government, which is even worse.” Tr. 37. But Filartiga was certainly not an aiding-and-abetting case—it was a direct action against the primary perpetrator—and it thus did not invite the vast expansion of ATS liability that is inherent in recognizing theories of secondary liability. Indeed, Justice Kennedy’s opinion for the Court in Central Bank relied on just that point in rejecting civil aiding-and-abetting liability in the securities fraud context. If that is a good reason to reject secondary liability for domestic law actions, it should resonate a fortiorari when applied in a context that so obviously implicates foreign relations. Moreover, the fact that the defendant in Filartiga was working for the government does not make that case “even worse,” because while Filartiga was a suit against a state actor acting within the scope of his employment, it did not seek a declaration from a U.S. court that the official policy of a foreign sovereign converted that sovereign into a flagrant human rights abuser. (A rough domestic law analogy would be the availability of a Section 1983 action against, say, a police officer, but not against the municipality, because while the officer was acting within the scope of his employment, he was not acting according to a custom or policy of the municipality.)
The history thus demonstrates that while both the early Filartiga-type suits and the later secondary liability actions against corporations have the potential to cause foreign policy friction, the latter category is significantly more likely to do so. That suggests that in fashioning a common law rule, the Court might accept the former category of cases as a matter of common law, while insisting on a clear indication from Congress before recognizing the latter.
Indeed, the one time Congress has spoken clearly in recognizing an extraterritorial tort action for human rights violations—the Torture Victim Protection Act—Congress drew more or less the same line. The TVPA was expressly meant, in part, to ratify the Second Circuit’s decision in Filartiga by providing an express cause of action for torture and extrajudicial killing. But Congress also imposed several limitations on that cause of action that would preclude the second wave of modern ATS litigation: First, and most obviously, the TVPA allows suits only against individuals, not corporations, as the Supreme Court unanimously held last year Mohamad v. Palestinian Authority. Second, it requires exhaustion of local remedies, which means that even for suits against individuals, the U.S. forum would be one of last resort. Finally, though the Supreme Court has not decided the issue, it seems that the holding in Central Bank—that courts should not recognize civil aiding-and-abetting actions unless Congress has specifically provided for it—would preclude recognizing aiding-and-abetting claims under the TVPA, the text of which makes no mention of secondary liability. Particularly in a context where the risk of interference with the political branches’ foreign-policy prerogatives is so high, the Court could take its cue from Congress and limit common-law claims under the ATS to those, like Filartiga, against primary individual violators of well-recognized and clearly defined human rights norms.