While Lawfare readers have been focused on other parts of the world, federal appellate courts have recently issued two significant, and potentially conflicting (in result, if not reasoning), decisions interpreting the extraterritorial reach of the Alien Tort Statute in light of the Supreme Court’s Kiobel decision. In June, a Fourth Circuit panel reversed the dismissal of an ATS claim brought against CACI, a U.S. defense contractor, by former detainees in Abu Ghraib prison who alleged they had been tortured or abused by CACI employees; the panel concluded that the claims did “touch and concern” the territory of the United States. Last week, a split panel of the Eleventh Circuit ordered the dismissal of an ATS claim filed by a group of Colombians against Chiquita Brands in connection with its alleged payments to paramilitary forces in Colombia; the panel said that “There is no allegation that any torture occurred on U.S. territory, or that any other act constituting a tort in terms of the ATS touched or concerned the territory of the United States with any force.” Together, the pair of decisions demonstrate that Kiobel still did not resolve the extraterritorial application of the ATS, at least to the conduct of US corporations.
CACI Decision. The Fourth Circuit considered only the issues of whether the ATS applied extraterritorially to the facts presented and whether the case presented a non-justiciable political question; the issues of corporate liability and whether torture by a non-state actor constitutes an actionable ATS claim were not before the court on appeal.
With respect to extraterritoriality, the CACI panel conducted a detailed analysis of the “touch and concern” standard in Kiobel. The panel stated that lower courts should not assume that the presumption against extraterritoriality enunciated in Kiobel “categorically bars cases that manifest a close connection to United States territory.” Instead, the panel concluded that a “fact-based analysis” is required to determine whether particular ATS claims displace the presumption. Applying this approach, the panel held that the plaintiffs’ ATS claims did “touch and concern” the territory of the US with sufficient force to displace the presumption because CACI is a US corporation; its employees who allegedly mistreated Abu Ghraib prisoners were US citizens; CACI’s actions were at a US military facility operated pursuant to a contract with the U.S. Government; and CACI managers allegedly gave tacit approval for the mistreatment. The panel also noted that the exercise of ATS jurisdiction in this case would not present foreign policy problems because the defendants are US citizens and the claims did not challenge the conduct of foreign governments. Although the panel held that the ATS did apply extraterritorially to cover plaintiffs’ claims, it nonetheless remanded the case to the district court to determine whether the suit presented a non-justiciable political question in light of the Fourth Circuit’s decision in Taylor v. Kellogg Brown & Root.
Of the pending ATS cases, the CACI suit may present the most compelling factual scenario for the extraterritorial application of the ATS to a US corporation. The facts would clearly trigger the criteria for jurisdiction set forth in Justice Breyer's concurring opinion in Kiobel (a U.S. national defendant and conduct by the defendant that "substantially and adversely affects an important American national interest"). And despite Kiobel's presumption against extraterritoriality, the Fourth Circuit panel may have concluded that the unique facts of Abu Ghraib might attract the support of Justice Kennedy, who stated in a cryptic concurring opinion in Kiobel that the majority opinion left "significant questions" unanswered.
Chiquita Decision. The Eleventh Circuit’s decision was written by Judge Sentelle of the DC Circuit (sitting by designation) and was joined by Judge Fay, over a dissent by Judge Beverly Martin. The majority noted that “all relevant conduct took place outside the United States” and concluded that Chiquita’s status as a US corporation was insufficient to rebut the presumption against extraterritoriality in Kiobel. Unlike the Fourth Circuit, the panel did not attempt to parse Kiobel’s “touch and concern” language, instead concluding tersely “There is no jurisdiction.” Somewhat surprisingly, the panel went further to question whether the alleged torture by a non-state actor would fall within the requirements for actionable ATS offenses set forth in the Supreme Court’s Sosa decision. In dissent, Judge Martin concluded that the allegations against Chiquita did “touch and concern” the United States because 1) Chiquita is a US corporation and, in her view, the ATS was intended to create a cause of action for torts committed by Americans outside the United States, and 2) plaintiffs had alleged that Chiquita had committed torts inside the United States by authorizing payments to paramilitary groups in Colombia.
In addition to the CACI and Chiquita cases, several other long-running ATS cases remain undecided after Kiobel. In August 2013, the DC Circuit remanded the 13-year-old ExxonMobil case (challenging ExxonMobil’s actions in Aceh, Indonesia) to the district court for reconsideration in light of Kiobel. In December 2013, the Ninth Circuit allowed the plaintiffs to amend their complaints against Nestle to argue whether their claims against Nestle, Cargill, and Archer Daniels Midland in connection with their operations in Cote d’Ivoire “touch and concern” the United States. And in April 2014, Judge Shira Scheindlin also authorized the plaintiffs in the Apartheid litigation to amend their complaints against Ford and IBM to show whether their claims met the Kiobel standard.